The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the
University of Iowa College of Law
http://disability.law.uiowa.edu/
and
The Burton Blatt Institute at Syracuse University
http://bbi.syr.edu
June 1, 2012
Volume 9, Issue 4
The Disability Law & Policy Newsletter is a monthly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Dear Colleague:
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to
successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information,
and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability
Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work
and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living
Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics
outside the U.S.
I. MISCELLANEOUS: News and topics may vary
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A. CIVIL RIGHTS
1. Settlement to Curb Isolation of Inmates with Mental Illness
On April 12, 2012, Mark L. Wolf, chief judge of a Federal District Court in Massachusetts, approved a settlement that would guarantee other options to segregation for inmates with psycho-social disabilities in Massachusetts prisons. The settlement results from a lawsuit filed in 2007 by a disability rights advocacy group known as the Disability Law Center (DLC). The lawsuit alleged violations of both the Eighth Amendment and the Americans with Disabilities Act. The lawsuit's principal focus was to prevent the state of Massachusetts from placing inmates with psycho-social disabilities in small prison cells that are completely segregated from the general population. This disciplinary measure, often referred to as solitary confinement, is generally used to deter or remedy disciplinary problems that occur within the state's prisons.
The DLC filed the suit against the Massachusetts Department of Corrections after eleven prisoners committed suicide in segregation cells within a 28-month period. According to the suit filed by the DLC, many state prisoners engage in self-destructive behavior while in solitary confinement without receiving adequate mental health services. In some cases, inmates were segregated for years against clinicians' recommendations.
Under the settlement, however, the state of Massachusetts will use two newer units at prisons in Shirley and Walpole as alternatives to disciplinary segregation for prisoners with mental illness. When inmates with severe psycho-social disabilities are placed in segregation, the state will provide "extra psychological help" and their cases will be reviewed regularly to determine other appropriate options.
Full Story: Abby Goodnough, Deal to Curb Isolation of Mentally Ill Inmates, New York Times, Apr. 12, 2012, available at
http://www.nytimes.com/2012/04/13/us/deal-to-reduce-isolation-of-mentally-ill-inmates-in-massachusetts.html?_r=1
2. Judge Certifies Disability Class-Action Suit against Hollister
On April 9, 2012, Wiley Daniel, a U.S. District Court of Colorado judge, certified a nationwide class-action suit against Hollister, a national clothing retailer. Judge Daniel had previously ruled that two of Hollister's stores located in Colorado violated the Americans with Disabilities Act (ADA) because the front entrance design, which contains steps, excludes individuals who use wheelchairs. This ruling expands the lawsuit to cover Hollister stores across the United States.
Judge Daniel's previous ruling, issued August 31, 2011, declared that the stores' design, which included two accessible side entrances, was not sufficient because it failed to take the goals of the ADA "to heart" and fulfill its "overarching aims." According to the legal-program director of the Colorado Cross-Disability Coalition, Kevin Williams, about 50 percent of the over-400 Hollister stores nationwide use the step entrance design.
Full Story: James Carlson, Judge Certifies CO Attorney's Disability Class-Action Suit, Law Week Colorado, Apr. 11, 2012, available at
http://www.lawweekonline.com/2012/04/judge-certifies-co-attorneys-disability-class-action-suit/See also: Howard Pankratz, Park Meadows, Orchard Town Entrances Violate ADA, Judge Rules, The Denver Post, Sept. 1, 2011, available at
http://www.denverpost.com/business/ci_18800167#ixzz1sEywbx9L
3. Justice Department Reaches Settlement with Trinity Health Systems in Iowa
On March 30, 2012, the Department of Justice (DOJ) announced a settlement under the Americans with Disabilities Act (ADA) with Trinity Health Systems. The lawsuit involved allegations that Trinity failed to provide deaf individuals with sign language interpreters. Sign language interpreters serve an essential role in establishing effective communication between individuals who have hearing impairments and health care providers. It was further alleged that Trinity relied on a seven-year-old to serve as an interpreter for her deaf mother. Trinity's failure to provide effective communication caused the mother to miss critical information and information about procedures being performed. The lawsuit claimed that Trinity violated the ADA by failing to provide the appropriate auxiliary aids and services, which in this case was a sign language interpreter services for a deaf patron.
Under the settlement, Trinity will pay $198,000 to wronged individuals along with a $20,000 civil penalty; train hospital staff on ADA requirements; and adopt policies and procedures to ensure that auxiliary aids and services are provided to patients or companions who are deaf or hard of hearing in a prompt manner. In short, the settlement now ensures that Trinity Regional Medical Center will provide effective communication to individuals who are deaf or have hearing impairments.
Full Story: Department of Justice, Press Release, Justice Department Reaches Americans with Disabilities Act Settlement with Trinity Health Systems in Iowa, Department of Justice Office of Public Affairs, Mar. 30, 2012, available at
http://www.justice.gov/opa/pr/2012/March/12-crt-404.html
4. Court Overturns Ruling Giving Supportive Housing to Individuals with Mental Illness
On April 6, 2012, a federal appeals court struck down a judge's order that New York State transfer thousands of adults diagnosed with psycho-social disabilities in New York City from institutional group homes into their own homes and apartments. The court ruled that Disability Advocates, a nonprofit organization that brought the lawsuit, did not have standing to sue. This ruling ended the nearly nine-year legal dispute on procedural grounds without resolving the issue of how the state of New York should care for such patients. The lower court had ruled that the system in place violated federal law by "warehousing" people with psycho-social disabilities in more restrictive conditions than necessary.
The original lawsuit was filed in 2003 after the New York Times published a series of articles describing the system of homes at issue in the lawsuit. The Times' article described how residents were exposed to unnecessary medical treatments and also how the system poorly monitored and cared for the residents. Had the plan not been struck down, it would have provided nearly all of these adult residents with the opportunity to move out of such housing. In other words, these individuals would be able to live independently and receive case management services from psychiatrists and nurses. The state argued, however, that the current system is adequate and that the demand for supported housing is low, while the cost is high.
A spokesman for Gov. Andrew M. Cuomo stated that their administration was reviewing the decision and that the governor is committed to improving quality of care for people with "disabling conditions." Cliff Zucker, the executive director of Disability Advocates, said he would seek a settlement with state officials, but if settlement is impossible, the Justice Department could file a new lawsuit.
Full Story: Mosi Secret, Court Upends 9-Year Fight on Housing Mentally Ill, New York Times, Apr. 6, 2012, available at
http://www.nytimes.com/2012/04/07/nyregion/order-on-housing-mentally-ill-adults-in-new-york-city-is-struck-down.html?_r=1&ref=todayspaper
B. EDUCATION
1. Graphic Video Reveals Abuses at the Judge Rotenburg Center
At trial, the plaintiff Andre McCollins and his attorney presented a rather shocking video to the jury. As a young man, Andre Collins resided at the Judge Rotenberg Center (JRC). The JRC is a facility in Canton, Massachusetts, that serves as a school for "both emotionally disturbed students with conduct, behavior, emotional, and/or psychiatric problems and developmentally delayed students with autistic-like behaviors." The video in question showed Mr. Collins, as an eighteen year old man, being tied down and shocked 31 times with electrodes. According to MyFox Boston, the incident that was caught on tape was precipitated by Mr. McCollins' refusal to remove his coat. In a 2007 exposé on the Center, Mother Jones discovered that "Of the 234 current residents, about half are wired to receive shocks, including some as young as nine or ten." These aversive treatments such as electric shock and even withholding of food were relatively common practices at JRC.
Full Story: Judge Rotenberg Center Trial: Tape Shows Teen Being Shocked 31 Times, Huffington Post, Apr. 12, 2012, available at
http://www.huffingtonpost.com/2012/04/12/judge-rotenberg-center-trial_n_1420633.htmlSee also: The Judge Rotenberg Center Website,
http://www.judgerc.org/
2. School Requires Five-Year-Old Student to Use a Wheelchair Instead of a Walker
LaKay Roberts is a five-year-old girl with cerebral palsy, who has been walking with a walker for the past two years, after using a wheelchair for her first three. However, LaKay's school, in the New Caney Independent School District in Texas, has demanded that LaKay now use a wheelchair despite her personal desire as well as her mother's desire for her to use a walker. The school district insists that they are merely looking out for the best interest of LaKay, and they cannot permit the use of the walker because they have not received a doctor's okay, regardless of LaKay's two year history of using a walker and personal preference. The school insisted that the walker is unsafe after LaKay's walker collapsed on the parking lot and she fell. LaKay's mother argues that children fall on the playground and their shoes are not taken away. She now seeks to sue the district.
Full Story: Linda Carroll, School Bans Girl with Cerebral Palsy from Using Walker, Today Show, March 29, 2012, available at
http://moms.today.msnbc.msn.com/_news/2012/03/29/10910817-school-bans-girl-with-cerebral-palsy-from-using-walkerSee also: Texas Mom Plans to Sue School District After She Says Daughter with Cerebral Palsy is Told to Ditch Walker, Mar. 24, 2012, available at
http://www.foxnews.com/us/2012/03/24/texas-mom-plans-to-sue-school-district-after-says-daughter-with-cerebral-palsy/
C. TECHNOLOGY / TELECOMMUNICATIONS
1. Student Op-Ed Highlights Inaccessibility in NYC Technological Education Programs
Every year, thousands of New York City eighth graders prepare for the Specialized High School Admissions Test (SHSAT), an exam that determines admissions to one of the New York City's eight "specialized" high schools. Admission to these programs is limited and competitive. A young student with cerebral palsy and a learning disability recently wrote an op-ed that highlighted some of the barriers for students with disabilities who aim to spend four-years at one of New York City's science or technology-specialized programs. After receiving accommodations for the SHSAT, eighth-grader Bryan Stromer was admitted to both Brooklyn Technical High School (Brooklyn Tech), one of the specialized high schools, and NYC Lab High School (Lab), a school that offers an innovative Integrated Co-Teaching program that allows students with disabilities to be challenged alongside students without disabilities.
Before making a decision as to which school to attend, Bryan visited both schools with his mother. During their orientation at Brooklyn Tech, Bryan and his mother were informed by a school administrator that the school, which is the largest in all of New York City, was equipped with only one special education teacher. The reason was that fewer than one percent of Brooklyn Tech's students have special needs. By contrast, Bryan and his mother discovered that the Lab program was more inclusive, offering co-teaching support services and other accommodations for its special education students who comprise ten percent of the student population.
Given these options, Bryan felt compelled to choose the non-technical program. Bryan wrote his op-ed to illustrate the reality that certain students with disabilities are being denied the opportunity to follow their academic interests despite being otherwise well qualified candidates. Bryan's op-ed called attention to the need for reform of the citywide program. Such reform would provide students with the necessary support regardless of their academic discipline and thus would broaden the availability of educational opportunities to students with disabilities.
Full Story: Bryan Stromer, Why Should a Disability Limit High School Choices?, New York Times, Apr. 20, 2012, available at
http://www.nytimes.com/schoolbook/2012/04/20/why-should-a-disability-limit-high-school-choices/
D. HEALTHCARE / BENEFITS
1. Social Security Will Go Paperless in 2013
The Treasury Department announced that it will stop mailing paper checks to Social Security and Supplemental Security Income beneficiaries on March 1, 2013. As a result, beneficiaries will receive payments either by direct deposit or through a Direct Express Debit MasterCard if they do not have a bank account. This is the last step in the Treasury Department's ongoing plan to phase out checks once and for all. Since May 1, 2011, Social Security applicants have not had the option to choose paper checks.
U.S. Treasurer Rosie Rios said that the switch to electronic payments will provide a safer, more secure and convenient way for Americans to access their benefits. It is also more efficient and cost effective, as it will save taxpayers more than one billion dollars over a ten-year period. This savings to the taxpayer is created because the cost of issuing Social Security benefits electronically is nearly ten times less expensive. An added benefit of going paperless is the reduced risk of stolen or lost checks.
The Treasury Department believes direct deposit is a better option than the debit card, so it is urging beneficiaries who do not have bank accounts to open one. One reason that direct deposit might be preferable to beneficiaries is that the debit card option comes with various fees that do not apply to direct deposit. For example, a beneficiary is allowed one free ATM withdrawal with every deposit to his or her debit card. After that, ATMs charge a 90-cent fee for each withdrawal. Seniors must also pay 75 cents each month if they request paper statements and $1.50 for each fund transfer to a bank account.
Full Story: Emily Brandon, Social Security to Go Paperless in 2013, Mar. 16, 2012, U.S. News & World Report LP, available at
http://money.usnews.com/money/blogs/planning-to-retire/2012/03/16/social-security-to-go-paperless-in-2013
2. Bill Introduced in Congress Would Benefit Military Children with Disabilities
On April 9th, 2012, Congressmen Charles Rangel (D-NY) and Jim Moran (D-VA) introduced in the House the Disabled Military Children Protection Act of 2012. The purpose of the bill is to allow the children of service men and women to access survivor benefits without losing their Medicaid and Social Security Disability eligibility. The bill would enable military retirees who invest in a Survivor Benefit Plan to transfer their benefits to a Special Needs Trust (SNT) for their children with disabilities. According to Rep. Rangel, there is a loophole in the current system where civilian federal retirees are permitted to establish SNTs for their children, but military retirees cannot. These military survivor benefits are then counted as income which puts many military children with disabilities over the resource limit for Medicaid and Social Security Disability eligibility.
Full Story: Targeted News Service, Rangel Joins Rep. Moran to Introduce Bill Benefitting Disabled Military Children," Apr. 10, 2012, Insurancenewsnet.com, available at
http://insurancenewsnet.com/article.aspx?id=337965
3. April Is National Sarcoidosis Awareness Month
Various providers of representation for Social Security Disability are observing National Sarcoidosis Awareness Month during April to bring attention to this condition, which can affect multiple systems in the body. Sarcoidosis is a disease caused by abnormal inflammation in the body. It can attack any organ but ninety percent of cases are located in the lungs. This type of sarcoidosis can interfere with breathing and lead to more serious conditions such as pulmonary fibrosis. People of all ages and ethnic backgrounds are affected by sarcoidosis, which usually develops between the ages of 20 and 50.
Social Security Disability organizations are drawing attention to sarcoidosis so that individuals with this condition know that their symptoms may make them eligible for benefits. To be eligible for Social Security Disability, applicants' condition must be severe enough to prevent them from working. Although the Social Security Administration does not have a specific medical listing for sarcoidosis, its symptoms--shortness of breath, fatigue, dizziness and pain--may be enough to prevent one from being able to work. By raising awareness of sarcoidosis, these organizations are making it more likely that individuals who are unable to work because of this condition will receive the necessary benefits.
Full Story: April Is National Sarcoidosis Awareness Month, Apr. 13, 2012, PR Web, available at
http://insurancenewsnet.com/article.aspx?id=338418
E. WORKFORCE
1. Employee with Bipolar Disorder Wins First Bipolar Discrimination Suit in United States
In 2004, Sean Reilly was diagnosed with bipolar disorder, a mood disorder that affects about 5.7 million Americans and is the sixth most common disability worldwide. He was given medications, but had another manic episode a year later. In June 2006, Reilly became an assistant manager at Cottonwood Financial, which owns and operates payday-lending stores in over a half dozen states. Reilly told his boss about his condition before he started the job and Reilly's company said they did not have a problem with it. Reilly thrived at his job and won an achievement award. He was promoted to store manager.
As time went on, Reilly's symptoms increased, and he went off his medication due to a weight-gain side effect. In late January 2007, he had a breakdown and called in sick. He had never missed a day of work before. His boss told him that he had to come in because nobody else could work that day. He reluctantly came in that day, but then requested a two-week leave. His employer denied his request and fired him in February of 2007. The U.S. Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Reilly, claiming violations of the Americans with Disabilities Act and Washington State disability law. On March 28, 2012, the U.S. District Court for Eastern Washington ruled in Reilly's favor, finding that the company's reasons for terminating Reilly were simply a pretext for discrimination. The judge awarded Reilly $6,500 in back wages and $50,000 for emotional pain and suffering. The court also issued a three-year injunction, requiring the company to train its managers and human resources personnel on antidiscrimination and anti-retaliation laws.
Reilly's case was the first workplace discrimination case ever taken to trial by the EEOC involving an employee with bipolar disorder, and will likely set new precedent for workplace discrimination toward individuals with bipolar disorder.
Full Story: Abby Ellin, Judge Rules in Favor of Fired Employee with Bipolar Disorder, ABC News, April 6, 2012, available at
http://abcnews.go.com/Business/judge-rules-favor-fired-employee-bipolar-disorder/story?id=16079631#.T40FjtnkqGV
F. INDEPENDENCE
1. Advocates Hold National Vigil for People with Disabilities Who Were Killed by Family
On March 30, 2012, candlelight vigils were held across the nation to honor and remember individuals with disabilities who have been murdered by their family members and caretakers. The nationwide remembrance was organized by the Autistic Self Advocacy Network and was supported by many other disability rights organizations, including the National Council on Independent Living.
This nationwide candlelight vigil was significant primarily because of society's sympathetic view of family members who kill other family members with disabilities. Many times, society does not recognize or acknowledge the actual victim of the murder. Accordingly, these vigils were planned not only to bring attention to this important societal issue, but also to mourn properly these victims who are often neglected by the media and society. "We are sending a message that violence against disabled people is unacceptable," said Ari Ne'eman, president and cofounder of the Autistic Self Advocacy Network. "We are concerned that when acts of murder occur, the folks being killed are written out of their own story. It ends up being the tragic story of the parents, which in a lot of ways legitimizes the act and allows it to occur further."
Full Story: Lesley Young, Disability Advocates Alarmed by Parents Who Kill, Disability Scoop, Mar. 27, 2012, available at
http://www.disabilityscoop.com/2012/03/27/disability-advocates-parents-kill/15248/
2. Women with Disabilities Are More Likely to Be Abused, Less Likely to Receive Help
Women with disabilities are twice as likely to experience domestic violence. This is especially troubling because these individuals face additional challenges in attempting to escape from violent relationships. Women's Aid, an organization dedicated to ending domestic violence, recently published a report that found women with disabilities experience longer periods of domestic abuse and sustain more severe injuries. The report also noted that abusers--whether a spouse, caretaker, or personal assistants--will often take away the woman's mobility or sensory devices and/or withhold care as a form of abuse. The report also noted that the abusers use the woman's disability as a way to taunt or degrade her.
In some instances, women with disabilities suffering from this type of abuse may not be able to disclose their abuse readily or easily. This is particularly true where the abusers are their caretaker since they are always with the victim. Women with disabilities also stated that they have trouble reporting abuse to police officers because they fear officers might perceive them to lack credibility. This problem is further compounded by the fact that police precincts often lack standardized protocols for handling domestic violence complaints from individuals with disabilities.
Meanwhile, other women may not disclose the abuse because they fear that without their abuser, they may be sent to an institution for care. Furthermore, women with disabilities may not be able to leave the abusive environment because many women's shelters are not accessible. While this issue has not received much recognition in the past, researchers, funding agencies, and service providers are finally beginning to look into it.
Full Story: Eric Levy, The Challenge for Disabled Victims of Domestic Violence, Disaboom.com, available at
http://www.disaboom.com/disability-rights-and-advocacy-general/the-challenge-for-disabled-victims-of-domestic-violence
3. New Federal Agency to Support Community Living for People with Disabilities
A new federal agency has been created in hopes of achieving full community integration for people with disabilities. The new Administration for Community Living (ACL) will combine the Administration on Aging, the Office on Disability and the Administration on Developmental Disabilities into one agency. This new agency's goal will be to support "cross-cutting initiatives" and the unique needs of the different groups. The agency will also focus on increasing access to community supports, which includes helping people with disabilities and seniors fully participate in the community. To achieve these goals, the ACL will enhance and improve supports for people with disabilities, including housing, employment, and education supports.
Full Story: U.S. Department of Health and Human Services, News Release, A Statement from Secretary Sebelius on the Administration for Community Living, HHS.gov, Apr. 16, 2012, available at
http://www.hhs.gov/news/press/2012pres/04/20120416a.html
G. EMERGENCY RESPONSE / PREPAREDNESS
1. California EMA and Red Cross Develop Access and Functional Needs Preparedness Kits
The California Emergency Management Agency (EMA) and the Red Cross have developed and are currently distributing a special emergency preparedness starter kit for California's access and functional needs community. The state's EMA and Red Cross have partnered to ensure that all of California's diverse citizens are properly equipped to protect themselves as much as possible in the event of an emergency. The EMA and Red Cross will achieve this end by empowering citizens with both the necessary knowledge and tools. For instance, Red Cross chapters throughout the state are distributing kits during their community events. According to Sheri Burns, Executive Director of Community Resources for Independent Living, the kit differs from a standard preparedness kit in that its contents "are focused on the unique and special requirements of the access and functional needs community; the kit contains tools such as a medication organizer, collapsible water bowl for assistance animals, and emergency notification cards."
Full Story: Cal EMA and American Red Cross Distribute Preparedness Kits for Functional Needs Community, Apr. 5, 2012, available at
http://www.lakeconews.com/index.php?option=com_content&view=article&id=24464:cal-ema-and-american-red-cross-distribute-preparedness-kits-for-functional-needs-community&catid=39:community&Itemid=269California Emergency Management Information can be found at
http://www.calema.ca.gov/Pages/default.aspx
H. INTERNATIONAL
1. 20 Percent of the Global Blind Population is Indian
In India 7.8 million people are blind. 62 percent of the cases of blindness in India are due to cataract, 19.7 percent refractive error, 5.8 percent glaucoma, and one percent corneal blindness. One estimate suggests that 285 million people in India have low vision. At the inaugural conference "Future of Ophthalmology Today," the Delhi Ophthalmological Society (DOS) discussed blindness statistics, as well as the major root causes of blindness and low vision. Many of the causes of blindness are curable if detected early enough in life. Raising awareness about blindness in India, as well as reducing the burden of blindness, is DOS's ultimate goal.
Full Story: India Accounts for 20 Per Cent of Global Blind Population, Disability News Asia, Apr. 7, 2012, available at
http://www.disabilitynewsasia.com/home-mainmenu-1/1203-india-accounts-for-20-per-cent-of-global-blind-population.htmlSee Also: Future of Ophthalmology Today, Delhi Ophthalmological Society, available at
http://dosonline.org/dos-annualconf-2012/
2. Japanese Blind Community Parades in Tokyo to Promote Service Dog Awareness
On April 25, 2012, people in Japan who are blind marched on the streets of Tokyo to promote guide dog awareness and to appeal for better guide dog access in Japan. The parade was organized as a part of the tenth anniversary of the enforcement of Japan's Act on Assistance Dogs for Physically Disabled Persons and also as a celebration of the annual International Guide Dog Day, which falls on the last Wednesday of April.
"There are still many shops that are not keen on letting in guide dogs based on religious or other reasons," said Shigenori Maruyama, a 59-year-old man who took part in the parade. "In order for everyone to feel relaxed, it is necessary that both sides understand each others' feelings."
Blind People March in Tokyo to Protest Guide Dog Discrimination, Global Accessibility News, Apr. 27, 2012, available at
http://globalaccessibilitynews.com/2012/04/27/blind-people-march-in-tokyo-to-protest-guide-dog-discrimination/
3. UK Judge Bans Woman with Autism from Having Sex
A UK senior judge in the Court of Protections ordered that a 29-year-old woman with atypical autism and an IQ of 64 be prevented "from engaging in sexual relations (which she would otherwise willingly do) because she does not have the capacity to consent and [the sexual relations] will be potentially exploitative and damaging."
The court found that the woman (known in during the proceedings as "H" to hide her identity) was on an "at-risk" register as a child, and was kept in a psychiatric hospital for almost two years. In November 2009, H was classified as "highly vulnerable" after one man was convicted of attempting to rape her and because she engaged in "exploitative and unconventional" behavior with a "group of much older men."
The judge had to consider the "sensitive and difficult" issue of whether or not she was able to consent to sexual relations. He said it was impossible to establish a test of someone's capacity to understand the moral component of sex, but that it was possible to determine whether someone understood the nature of a "choice," including a choice to refuse someone's advances. The judge concluded that H lacked capacity to consent to sex "as she does not understand the health implications" and "cannot deploy the information she has effectively into the decision-making process." He also ruled that she lacks the capacity to marry "[a]s sexual intercourse is required to consummate a marriage." However, the judge said that the matter will be kept under review because doctors say that H is capable of learning about protection and health.
Full Story: Martin Beckford, Autistic Woman Banned from Having Sex in Latest Court of Protection Case, The Telegraph, Feb. 3, 2012, available at
http://www.telegraph.co.uk/news/newstopics/lawreports/9059808/Autistic-woman-banned-from-having-sex-in-latest-Court-of-Protection-case.htmlJudgment available at
http://www.mentalhealthlaw.co.uk/images/Re_H%3B_A_Local_Authority_v_H_%282012%29_EWHC_49_%28COP%29,_%282012%29_MHLO_3.pdf
ANNOUNCEMENTS
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D.; Senior Editor Kelly J. Bunch, J.D.; and Associate Editors Brandon Sawyer, Matthew Saleh, Dana Mele, Tovah Miller, Jonathan Schnader, Stephanie Woodward, Robert Borrelle, Jr., Brandon Hill, and Paris Peckerman.
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