Mentally Disabled Persons Entitled To Have Assessment Done At Their Homes For Disability Certificate : Madras High Court

In a verdict emphasizing the right to dignity of mentally disabled persons, the Madras High Court held that they are entitled to have the assessment done at their residences for the purposes of getting disability certificate under the Rights of Persons with Disabilities Act 2016.A single bench of Justice GR Swaminathan issued the direction after taking note of the hardships underwent by a medically disabled person at a mental hospital when he was brought there for the purposes of medical assessment.The bench observed as follows:"The assessment process must be as simple as possible. It must not cause any difficulty or trauma or even the least burden to the individual concerned. I take judicial notice of the fact that bringing such persons to a congested place like the Government Hospital would trigger considerable stress and anxiety to them. One does not know what can trigger panic and anxiety. There are children who seeing an ordinary balloon will go berserk".In this backdrop, the bench ordered :"It is clinically appropriate that assessment for issuing such certificates is done at their homes. I therefore hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside"The Court also stated that "authorities shall not insist that a person suffering from mental retardation/ mental illness should be physically present in the premises of the certifying institution". Justice GR Swaminathan also observed that obtaining the certificate of disability under Section 58 of the Rights of Persons with Disabilities Act 2016 without any hassle or difficulty is a right of the disabled person. Without obtaining the certificate, the disabled will be denied access to certain fundamental rights and facilities which are necessary for leading a quality life. Facts In the present case, the petitioner is close to becoming a nonagenarian and has been receiving a pension since November 1992. His 61-year-old son is mentally retarded. The writ petition wanted to make an entry in his pension book so that after his death his mentally disabled son could receive the pension benefits. A disability certificate was to be obtained for the same. The petitioner's daughter approached the second respondent Institute of Mental Health at Kilpauk for obtaining the certificate. The institute insisted the physical presence of the son and did not consider the certificate of Assistant Physician, Government General Hospital, Madras Medical College dated 29.02.1992 certifying that he is permanently mentally disordered. The sone was forcefully taken to the institute where he was examined and it was noted that he was mentally retarded. However, this was deemed insufficient for issuance of certificate. The institute again insisted the physical presence of disabled for conducting few more tests. The son was traumatized by what happened and he developed severe anxiety and became paranoid. Left with no other option, the present writ petition was filed to direct the respondents to issue the certificate. Courts Observation The court observed that under Article 41 of the Constitution of India, the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of sickness and disablement and in other cases of undeserved want. Thus, any statute has to be interpreted so as to advance Article 41 as held by the Supreme Court in Jacob M. Puthuparambil and Ors. v. Kerala Water Authority (1991) 1 SCC 28. In view of the decision of the Supreme Court in Sambhavana v. University of Delhi (2013) 14 SCC 781 it can be observed that the State has a special obligation to design a special approach depending upon the special needs of the concerned category of disabled. The court also stated that the persons with disabilities have a right to happiness and to lead a happy life. As unequals cannot be treated equally special provisions have to be made to integration of persons with disabilities into the social mainstream. Section 18(5)(d) of the Mental Healthcare Act, 2017 states that the appropriate Government shall ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides. National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 and Rights of Persons with Disabilities Act, 2016 all work towards ensuring the welfare of the mentally disabled. The court also observed that in a State where the Government has already introduced the e "Illam Thedi Kalvi" (Education at doorsteps) scheme, the same model could be applied to the cases at hand. The court remarked as follows: "The bureaucracy of the...

Mentally Disabled Persons Entitled To Have Assessment Done At Their Homes For Disability Certificate : Madras High Court

Upasana Sajeev

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