Case Summary:
Balbir
Sethi & 5 Others Vs. Health Department & Others
Disability
Certificate: Complainants submitted
they were struggling to get themselves or their children assessed for mental or
neurological disorders from various Delhi hospitals. Hospitals cited the
unavailability of neurologists to assess the disorders. Court asked them to look
into possibilities of deputizing neurologists for the tasks, or co-opt them
from the private sector.
During the course of the hearing, certificates
started getting issued to the complainants. Court gave additional directions to
enable people with such disorders to get adequate help.
Order / Judgement:
In the Court of State Commissioner for
Persons with Disabilities
National
Capital Territory of Delhi
25-
D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
Case No.
4/1674/2017/Wel./CD/ 1616-1626 Dated:
25.08.2017
In the matter of:
Sl. No.
|
Case No./Complainants
|
|
Respondents
|
1.
2.
3.
4.
5.
6.
|
Case No. 4/1674/2017/Wel./CD/
Mr.
Balbir Sethi
R/o 46/12, Ashok
Nagar,
New Delhi-110078
Case
No.4/1675/2017-Wel/CD/
Mr.
Saksham Arora
S/o Ms.
Meenu Arora
BA-316,
Tagore Garden
New Delhi-110027
Case No.4/1680/2017-Wel/CD/
Ms. Stuti Kapoor
D/o Ms. Simmi Kapoor
18/17, West Punjabi Bagh,
J.K. Kapoor, Gate No. 03,
Ground Floor, New Delhi-110027
Case
No.4/1682/2017-Wel/CD/
Mr.
Rajesh Verma
F/o Mr.
Nischal Verma
Rajput304@gmail.com
Case
No.4/1683/2017-Wel/CD/
Ms.
Kavita
B2/16B,
East Raza puri
Gali
No-09, Uttam Nagar
New Delhi-110059
Case
No.4/1684/2017-Wel/CD
Smt.
Neelam
R-Z-41B, Majhandra
Park,
Phanka Road, Uttam
Nagar,
Delhi-110059
|
Vs.
|
The Pr.
Secretary
Health
Department,
Govt of
NCT of Delhi
9th
Level, A- Wing,
IP
Extension,
Delhi
Secretariat,
Delhi-110002
…………..Respondent No-1
The
Medical Superintendent
Janakpuri
Super Speciality Hospital
C- 28,
Janakpuri,
New Delhi-110058 …………..Respondent
No-2
The
Medical Superintendent
IHBAS
Hospital,
GNCT of
Delhi,
Dilshad
Garden
New
Delhi-110095
....………..Respondent
No-3
The
Medical Superintendent
Deen
Dayal Upadhyay Hospital
Hari
Nagar, Clock Tower,
New
Delhi-110064
....………..Respondent
No-4
|
Date of hearing: 11.08.2017
Present:
Dr. B.K. Tyagi, AMS-II, JSSH, Dr. K.N. Mohan, S.M.O, DDU Hospital, Dr. Deepak
Kumar, DMS, IHBAS, Deepak Singh, UDC, JSSH, Omprakash, Computer Asstt., IHBAS,
Dr. A.K. Mishra, GB Pant.
ORDER
The above mentioned six
complainants vide their complaints under the Rights of Persons with
Disabilities, Act, 2016, herein after referred to as the Act submitted that
they have been struggling to get themselves/their children assessed for
mental/neurological disorders and get disability certificates from Janakpuri
Super Specialty Hospital and therefore, requested that they be issued the
disability certificates at the earliest.
2. In
view of the common issues involved, all the complaints are being disposed off
by a common order.
3. Brief
facts of each case are indicated as under:
(i).
Case
No.4/1674/2017-Wel/CD
Sh. Balbir Sethi vide his
email (complaint) dated 12.07.2017 submitted that he is facing enormous
problems in getting Mental Disability Certificate of his child for last 7-8
months. He visited Ram Manohar Lohia
Hospital in January 2017 who referred his child to Janakpuri Super Speciality
Hospital(JSSH) in February 2017. That
Hospital did not issue the certificate due to non-availability of Neurologist
in the Hospital.
(ii). Case
No.4/1675/2017-Wel/CD
Ms.
Meenu Arora vide her complaint dated 17.07.2017 submitted that she had applied
for disability certificate of her son on 22.05.2017 and visited Jankapuri Super
Speciality Hospital. They suggested her
to apply at Deen Dayal Upadhyay Hospital who said that they do not issue mental
certificate for deficiencies. She again went to JSSH who referred her son to
IHBAS. IHBAS refused to issue the certificate.
(iii). Case
No.4/1680/2017-Wel/CD
Ms.
Simmi Kapoor vide her complaint dated 17.07.2017 submitted that her daughter is
suffering from severe anxiety, depression and obsessive compulsive disorder for
10 years. She was advised to get mental illness certificate by the Equal
Opportunity Cell Office of Delhi University for availing reservation in
admission of her daughter. She applied
for the certificate in Acharya Shree Bhikshu Hospital on 22.05.2017. She was
told that certificate for mental illness can be made only at IHBAS. After
visiting IHBAS on 17.6.2017, she was told that certificates are issued zone
wise and she should consult JSSH. When
she visited JSSH, she came to know that the said hospital is not issuing
certificate since January 2017 due to unavailability of neurologist in the
medical board and she was again referred to IHBAS for certificate. After
showing refusal letter provided by JSSH in IHBAS, she was referred to Deen
Dayal Upadhyay Hospital (DDUH). At DDUH, Dr. Anuj Mittal, Head Psychiatrist
told her that certificate for mental illness is not issued in that hospital and
she was again referred to IHBAS with the refusal letter. She again applied for
disability certificate of her daughter at IHBAS. The documentation was completed on 12.07.2017.
Since then, she has been requesting authorities of IHBAS to issue the
certificate but neither they reverted back nor refused to issue certificate by
saying that hospital does not fall under her zone. She is worried about her
daughter as she is having more anxiety and pressure fearing dropping of one
more year due to unavailability of documents for college admission on time.
(iv).
Case
No.4/1682/2017-Wel/CD
Sh.
Rajesh Verma F/o master Nischal Verma vide his email dated 01.06.2017 submitted
that he got an I.Q. test of his son conducted from IHBAS. He requested for a
disability certificate. IHBAS advised him to get the certificate from his zonal
hospital. He visited Deen Dayal Upadhayay Hospital, who asked him to go to
Jankapuri Super Speciality Hospital. JSSHS informed him that there were no
authorised doctors for signing the certificate.
(v)
Case
No.4/1683/2017-Wel/CD
Brother
of Ms. Kavita vide complaint dated 26.07.2017 on her behalf submitted that she
had applied for disability certificate and visited Jankapuri Super Speciality
Hospital who said that there was no Neurologist. Thereafter she went to DR. Ram
Manhor Lohia Hospital and Safdarjung Hospital. They also refused and the JSSHS
told her to get it done from the office Commissioner for Persons with
Disabilities.
(vi). Case
No.4/1684/2017-Wel/CD
Smt.
Neelam vide her complaint dated 26.07.2017 submitted that she is facing
enormous problems in getting Mental Disability Certificate of her child. She visited G.B. Pant Hospital, who advised
her to visit Janakpuri Super Speciality Hospital. That Hospital did not issue certificate due to
non-availability of Neurologist in the Hospital.
4. Medical
Superintendent, Janakpuri Super Speciality Hospital, an autonomous institute of
Govt. of NCT of Delhi vide his letter dated 12.01.2017 and 19.05.2017 informed
that as Janakpuri Super Speciality Hospital Society had no neurologist (Asstt.
Professor, Associate Professor and Professor), it was not feasible for that
hospital to enrol neurology disability patients for issuing disability
certificates. The hospital would be able
to start issuing disability certificates when a neurologist joined the
Hospital. He requested the Office of
State Commissioner for Persons with Disabilities to amend order No.F.
82(265)AD-III/Amendment PWD Act /DSW/09/18340-358 dated 12.02.2014.
5. The
above mentioned complaints were taken up with the respondents vide Show Cause
Notices of 27.07.2017 and 31.07.2017. In
the said notices, respondents No. 1 was directed to show cause as to why
Specialist Doctor/Clinical Psychologist should not be deputed to Janakpuri
Super Speciality Hospital on specified
dates in a week as per requirement from one of the Government Hospitals
or the Medical Superintendent of the Janakpuri Super Speciality Hospital should
not be advised to Co-opt a specialist doctor from private sector for the purpose
or make any other arrangement to assess the disability of the persons who are
struggling for disability certificates and ensure that the eligible
applicants are issued the disability
certificates within the prescribed time period i.e. one week/ one month and
submit Action Taken Report by 04.08.2017.
The complaints were also scheduled for hearing on 11.08.2017.
6. The
following was also brought to the notice of the respondents:
(i) That the formats of Disability certificate
prescribed in the Delhi Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Amendment Rules, also envisage
assessment of disability by a specialist who may not be a Government
servant. Such a certificate would need
the countersignature of the Medical Superintendent or Head of Government
Hospital which implies that the Medical Superintendent or the Head of
Government Hospital can co-opt a private medical specialist for assessment of a
disability and that as per Rule 4 (2) of
the said Rules disability certificate shall be issued as far as possible within
a week from the date of receipt of the application by the Medical Authority but
in any case, not later than one month from such date.
(ii) That as per Department of Social Welfare
Notification No-
82(265)/AD-III/Amendment PWD Act./DSW/09/18340-358 Dated- 12.02.2014 (Remarks against Sl. No. 06), when any of the
hospitals does not have specialities from the related specialisation, then the
case can be referred by that Hospital to IHBAS and as per Note below the table,
if a designated doctor of concerned field who has been authorised to issue
Disability certificate is on leave or is not present, a suitable alternative
arrangement will be made by the Medical Superintendent of the concerned hospital. The Medical Superintendent will ensure
issuance of disability certificate within the time period specified in Rule 4
of Delhi Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Rules, 2011 as amended.
(iii) That as per Department of Social Welfare,
GNCTD’s Notification No. 27/8/93-H & FW/18337-355 Dated 29.08.2008, Medical
Superintendent of the concerned hospital shall be the Appellate Authority to
review the appeal of any dispute regarding issuance of disability certificate.
In specific cases requiring cardiological/ neurological/ psychiatric
examination, the Appellate Authority shall seek association of Professor in
concerned speciality from GB pant Hospital, GTB Hospital and IHBAS.
Please go to http//www.delhi.gov.in..........
click
Departments
Social Welfare Department
Our services
Welfare of Persons with Disabilities
List
of authorised hospitals
8. Subsequent
to the issuance of show cause notices, some of the complainants informed
through emails that the Janakpuri Super Specialty Hospital had called them and
after assessing the disability, certificates have either been issued or will be
issued in a few days. They therefore,
requested that they may be exempted from attending the hearing on 11.08.2017.
9. During
the Hearing on 11.08.2017 Dr. B.K. Tyagi, Janakpuri Super Speciality Hospital
informed that master Saksham Arora, Ms. Stuti Kapoor, Mr. Verma and Master
Shubham have been issued the disability certificates after assessment by the
Disability Board comprising the Neurologist, Psychiatrist and
Neurosurgeon. Ms. Kavita has been
assessed and the disability certificate will be issued to her within 10
days. Smt. Neelam who was contacted from
7th to 10th August, 2017 for hospital visit, informed
that her son Master Manish Kumar was not well.
She has been advised to apply alongwith necessary documents and bring
Master Manish Kumar to the hospital. He
would be assessed and issued a disability certificate as and when he is brought
to the hospital.
10. Dr.
B.K. Tyagi also informed that Health and Family Welfare Department vide order
No. 11/120/H&FW/2017 HR-Med/935-40 dated 09.08.2017 has assigned one
neurosurgeon and three neurologists on rotational monthly basis from Deen Dayal
Upadhyay Hospital, G.B. Pant Hospital and Dr. BSA Medical College/Hospital to
Janakpuri Super Speciality Hospital for assessment of persons with mental
disorders and neurological disorders.
This arrangement has been made for the month of August, September,
October and November, 2017. However, he
stated that Dr. Subodh Gupta, a neurosurgeon of Deen Dayal Upadhyay Hospital
who has been deputed only for the month of August, 2017 is already a member of
the Disability Board who is otherwise available to Janakpuri Super Speciality
Hospital every month. Because of the
order dated 09.08.2017, his availability is now restricted to the month of
August, 2017. He, therefore, suggested
that either another neurologist should be deputed for the regular disability
board at Janakpuri Super Speciality Hospital in place of Dr. Subodh Gupta or he
may be deputed on every Wednesday of all the months. He further submitted that this arrangement or
an alternative arrangement should be made beyond November, 2017 also so that
disability certification happens uninterruptedly. He also pointed out that Dr. Subodh Gupta is
a neurosurgeon whereas for assessment of neurological disorders, a neurologist
is required including for the month of August, 2017.
11. The
representatives of other hospitals submitted that the provisions in various
notifications in connection with issuance of disability certificates should be
consolidated in a single notification with more clarity particularly with
regard to co-opting of specialists from private sector in the event of
unavailability of a specialist in nearby government hospitals. Since the Delhi Persons with Disabilities
Rules or Central Persons With Disabilities Rules do not explicitly mention
about co-opting specialists from private sector, though the format of
disability certificate implies that a specialist from private sector can also
assess the disability of a person which would be valid after the certificate is
countersigned by the Medical Superintendent of the concerned hospital, the
notification or instructions should provide for the fee of such specialists,
and other terms and conditions of engagement.
For example whether there should be a formal contract for the purpose
and the format thereof. They suggested
that the specialists from private sector should be empanelled by the Health and
Family Welfare Department or the Medical Superintendent should be authorised
for such empanelment. They also brought
out the issue of shortage of specialists in different hospitals and Health and
Family Welfare Department should facilitate and ensure filling up of such
vacant posts.
12. The
representatives of the hospitals also brought out the issue of guidelines for
assessment of the disabilities that have been added and their certification
after coming into force of the Rights of Persons with Disabilities Act, 2016 as
they are receiving requests from persons who have those disabilities. The existing Rules in the Govt. of NCT of
Delhi should also be changed expeditiously so that such cases can be
attended. They also pointed out that in
the existing notification dated 12.02.2014 issued by the Department of Social
Welfare, the allocation of districts to various hospitals needs to be
rationalised keeping in view the distance.
For example, distance between north and north west to IHBAS would be
between 30 to 35 kms. The allocation
should be rationalised so that the persons with disabilities do not have to
travel more than 5-10 kms. This can be
achieved by notifying various Delhi Government as well as the Municipal
Corporations hospitals as the medical authorities. The specialists from other hospitals can
visit on weekly basis to such hospitals.
13. It
is observed that despite the notifications issued by Department of Social
Welfare, Govt. of NCT of Delhi from time to time the concerned certifying
authorities seem to be unclear about the action to be taken on their part in
different eventualities in order to ensure a hassle free arrangement for
assessment and issuance of disability certificates. In the cases under consideration, the
disability happens to be such that it is extremely difficult for the
parents/attendants/care givers to take the affected person to different
hospitals. Inconvenience was also
apparently caused due to non-availability of the Specialist Doctor in Janakpuri
Super Speciality Hospital. It is not
clear whether Respondent No. 2 informed the appropriate authority i.e. Health
and Family Welfare Department, Govt. of NCT of Delhi for deployment of
neurologist in January, 2017 in addition to requesting the Office of
Commissioner for Persons with Disabilities to amend the notification dated
12.02.2014 issued by Social Welfare Department.
It seems that had the matter been taken up with that Department for
deputing the neurologist and for modification of the said notification with the
Social Welfare Department, perhaps the assessment and certification of the
concerned persons would not have been delayed so much.
14. Department
of Empowerment of Persons with Disabilities, Govt. of India is in the process
of notifying the guidelines for assessment of various disabilities covered
under the Rights of persons with Disability Act, 2016. Social Welfare Department/Health and Family
Welfare Department, Govt. of NCT of Delhi will also be notifying the Delhi
Rights of Persons with Disabilities Rules and the procedure for certification,
jurisdiction of the designated hospitals, etc. shortly. Needless to say, the disability certificate
is the primary document that a person with disability must possess to avail any
right, entitlement or safeguards available to him/her. Disproportionate complications and
difficulties in obtaining the disability certificate may discourage many
persons/family members to attempt to get the certificate and thus deprive them
of their entitlements.
15. In
light of the facts and circumstances of the cases deliberated herein above and
based on the experiences of this court, the following recommendations are made:
(i)
While framing
guidelines/procedures, the concerned Department should consider the experiences
of the primary stakeholders particularly those persons with various
disabilities or their parents/family members who had faced difficulties in
obtaining the disability certificates as well as those who had positive
experience and the designated hospitals so that persons with disabilities are
able to get the disability certificates with ease and within the time period
prescribed in the rules.
(ii)
Persons who have approached
State Commissioner for Persons with Disabilities or the Nodal Departments could
be involved for consultation amongst the primary stakeholders.
(iii)
Arrangement to assess the persons who cannot
move by themselves and those who do not have adequate support to carry them to
the hospital, should be made at the place of their residence by the concerned
hospital.
(iv)
Children with disabilities
who are admitted in a special school but are residing in geographical
jurisdictions of different hospitals may be assessed and issued disability
certificates by organising special camps in consultation with the concerned
school/organisation. Doctors from the
concerned designated hospitals can be deputed in such camps.
(v)
The jurisdiction of hospitals
may be considered and decided so as to keep the commuting distance to the
hospitals to the minimum.
(vi)
Procedure for alternative
arrangements in case of various exigencies like unavailability of specialists
in a hospital, the procedure to be followed for co-opting specialists from
private sector etc., should be provided for in the rules or instructions which
should be widely publicised.
(vii) Workshops
on assessment of disabilities and procedure on issuance of disability
certificate should be organised from time to time for the Medical Authorities
and the doctors.
(viii) The
concerned nodal Department may also consider notifying the Hospitals under the
Municipal Corporations and New Delhi Municipal Council as the medical authority/competent
authority for the purpose of assessment and issuance of disability
certificates.
16. Given under my hand and the seal of the
Court this 25th day of August, 2017.
(T.D.
Dhariyal)
State Commissioner for Persons with
Disabilities
Copy for information & necessary action
to:
The Secretary, Department of Social Welfare,
Govt. of NCT of Delhi, GLNS Complex, Delhi Gate, Delhi-110002.
