Library Collections: Document: Full Text

ARTICLE V

The mentally retarded person has a right to a qualified guardian when this is required to protect his personel -sic- well-being and interest. No person rendering direct services to the mentally retarded should also serve as his guardian.

ARTICLE VI

The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If accused, he has a right to a fair trial with full recognition being given to his degree of responsibility.

ARTICLE VII

Some mentally retarded persons may be unable, due to the severity of their handicap, to exercise for themselves all of their rights in a meaningful way. For others, modification of some or all of these rights is appropriate. The procedure used for modification or denial of rights must contain proper legal safeguards against every form of abuse, must be based on an evaluation of the social capability of the mentally retarded person by qualified experts and must be subject to periodic reviews and to the right of appeal to higher authorities. ABOVE ALL -- THE MENTALLY RETARDED PERSON HAS THE RIGHT TO RESPECT."

To some members of this audience, this bill of rights may sound unrealistic, and far too broad in its provisions. In actuality the exact opposite is the case. Unrealistic, that is, not in accordance with the realities of the given case, has been the traditional approach to the mentally retarded by way of broad prejudgements, rigid categorization, and a general tendency to exclude the mentally retarded from ordinary services and benefits on the basis of these categorical preconceptions.

In most countries there would be little doubt that a young child's most basic right is to live and grow up in his family home. For a small but nonetheless significant number of mentally retarded children this right is denied when they are confined in an institution. Very often this step is either initiated or supported by physicians under circumstances which are open to serious question. In many cases, a physician may recommend institutionalization "for the good of the family"; frequently this means saving the parents from social embarrassment, but what about the right of the child? He is not a "'thing" that can be disposed of like property (as used to be done with slaves). In other instances, it is the lack of community facilities and services, or the attitude of the public or certain professions, rather than the need of the child, which causes his confinement. (8) Very frequently a decision is made to send a child to an institution or hospital (which easily may become a lifetime banishment) without due consideration by the physician and the participating authorities of other solutions which would far less interfere with the child's basic rights. (9) "We are dealing here with a phenomenon that is highly unusual, if not unique, in the practice of medicine. There are e.g. many medical administrators of mental retardation institutions who are convinced, who indeed 'know', that they are receiving in their institution children with Mongolism who are not only not helped but who are actually harmed by being in the institution. Yet, year in, year out, these administrators continue to keep these children with Mongolism confined (and I am using this term advisedly) in these institutions without so much as an official protest. Where in the field of medical practice would one find a parallel to this situation?" (10)

(9) Allen, Richard C., Legal Rights of the Mentally Retarded: Equal Justice for the Unequal, paper presented at the 4th International Congress, International League of Societies for the Mentally Handicapped, Jerusalem, October 1968 (mimeographed).

(10) Dybwad, Gunnar, Medical Needs of the Displaced Retarded Child, presented at the 43rd Ross Conference on Pediatric Research, New York City, 1962, in: Dybwad, Challenges in Mental Retardation, New York, Columbia University Press, 1964.

But it is not only the child sent away from home whose rights are in jeopardy. In many countries the severely and profoundly retarded child is being excluded from service in health centers and clinics for no other reason than that he is retarded, even though their medical services would be appropriate for him. One of the hardest and most heartbreaking problems encountered by parents is the lack of interest in, if not outright rejection of their mentally retarded child by the pediatrician or general practitioner they are consulting, even though once again the medical services he is requested to render are well within the province of his practice. (11) A working party organized in 1962 by the Paediatric Society of the South-east Metropolitan Region (London) saw no justification for general hospitals to refuse admission to mentally retarded children merely because of their mental handicap. (12) None of these comments in any way militates against specialized services for the mentally retarded where such are appropriate to cope with special medical, psychological or social needs.

(12) The Needs of Mentally Handicapped Children -- Report of a Working Party set up by the Paediatric Society of South-East Metropolitan Region, London, National Society for Mentally Handicapped Children, 1962.