PERSONS WITH DISABILITIES ACT 2008
“We must now recognize that disability is not created as a result of various medical impairments, but is, in fact, created by society’s collective failure to adapt to, embrace and celebrate the varying levels of ability which we all have”.
Sen Jordan Steel-John
It is time to change the way we see disability.
What is disability?
We often think of disability as a physical or mental condition such as a long-term health condition of meromelia (the absence of one or both hands and feet) or perhaps a temporary one such as a broken leg. But disability is much more than that.
The word “disable” (“ dis- "to do the opposite of" + able "to be fitting or capable”) just means the lack of ability to do something. The lack of one’s ability to carry out responsibilities and function as a productive member of society may be caused by the person’s current physical or mental condition or by the society’s negative attitudes and environmental barriers.
In the case of a person who has depression, with low mood, feelings of low self-worth, difficulty concentrating, insomnia, low appetite and is tired, the impairment is the loss of functioning due to the depression. This impairment limits his participation in daily activities such as the ability to work, or engage in social and recreational activities.
What is further limits his functioning and ‘well being’ are
- Few mental health resources available.
0.28% to 0.39% of the health budget was spent on mental health resources in Malaysia; only 163 psychiatrists and 12 clinical psychologists worked in the public health system. [2]
- Stigma
Society views depression is as a sign of weakness or laziness and treats people with depression as such. People with mental illness are less likely to be employed, or given medical leave for treatment purposes.
- The lack of insurance coverage for mental health treatment.
Even if he would want to seek private treatment, his mental health treatment is not covered by his insurance plan.
Therefore, disability is the combination of two factors:
- the consequence of the person who has a certain condition of the body or mind which causes significant difficulties in functioning, and limits the person from performing tasks and engaging in social roles
- the current societal attitudes and barriers that prevent the person from participating fully in society and being treated as on par with someone without disabilities.
What are the rights of persons with disabilities in Malaysia?
The Malaysian government, who signed the Convention on Rights of Persons with Disabilities in United Nations Headquarters in 2008. Malaysia's ratification of the Convention on the Rights of Persons with Disabilities affirms broad protections for people with disabilities, including the rights to life, freedom from discrimination, equal recognition before the law, and access to justice, education, employment, and health. The treaty went into effect in Malaysia on August 18, 2010.[1]
The Persons of Disabilities Act 2008 defines Persons of Disabilities as:
“persons with disabilities” include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society. The main purpose of this act is to provide for the registration, protection, rehabilitation, development and wellbeing of persons with disabilities. In short, it is to remove barriers so that people with long term physical, mental, intellectual or sensory impairments can fully and effectively participate in society.
The Jabatan Kebajikan Masyarakat recognizes mental disability as “a state of severe mental illness makes a person unable to function either partially or fully in matters pertaining to his or relationships in society. Among the types of mental illness are serious Organic Mental Disorder and Chronic Schizophrenia, Paranoid, Mood Disorder (depression, bipolar) and other Psychotic Disorder and Schizoaffective Disorder as Persistent Delusional Disorders.”
The mention of “long-term” is not intended to exclude those with short-term physical, mental, intellectual or sensory impairments. On contrary, the law is to be applied to all persons with either short-term or long-term impairments. [3]
Kad OKU
If you want the protection and rights afforded under the Persons With Disabilities Act 2008 , you need to be registered with the Registrar General for Persons with Disabilities and be issued with a “Kad OKU’
The qualifying criteria for the Kad OKU card is
i. The person must have undergone at least two years of psychiatric treatment.
ii. Psychiatrists will determine the level of social functioning, cognitive and behavioral control significantly affected patient or worse before he be considered for the purpose of Person With Disabilities (PWD). [4]
1. The first criterion addresses treatment. Psychiatric treatment usually focuses on psychological and biological processes that causes mental illness. Examples of psychiatric treatment include psychotherapy and/ medication. Psychiatric treatments can be administered by qualified mental health professionals (appropriate to the respective treatment) other than psychiatrists. For instance, you can see a clinical psychologist to receive psychotherapy. It is generally recommended that a person’s mental health is monitored by an interdisciplinary mental health team which may include a clinical psychologist, a psychiatrist, a counsellor and an occupational therapist.
It should be noted that the requirement for two years of treatment implies that someone with severe depression for a year cannot apply for a Kad OKU despite clear impairment in daily functioning and receiving treatment for a year.
2. The second criterion to receiving a Kad OKU is that the person needs a letter to the Registrar from the psychiatrist attesting to the person’s current mental health (current social, cognitive and behavioral functioning), and past psychiatric treatment (for at least two years) in order to qualify for a Kad OKU .
To make an appointment with a psychiatrist in the public health system, you would need to:
- Get a letter of referral from a General Practitioner
- Make an appointment with a psychiatrist at the Department of Psychiatry
- During the meeting with the psychiatrist: Disclose medical and psychiatric history and all current symptoms; Explore and discuss all treatment options and side-effects.
- Make a follow-up appointment and continue to be monitored by the psychiatrist; Get a referral to other mental health professionals if necessary.
Once you receive an OKU card, you will be able to claim certain benefits such as a monthly allowance (Elaun Pekerja Cacat (EPC)), scholarships, tax rebates, and free treatment at public hospitals.[5]
The Act also ensures that you have the right to equal access to public facilities, public transportation, education and employment for persons with disabilities as there are for persons without disabilities.
Your right to access to employment on equal basis with persons without disabilities is also protected (Section 29). Your employer has to provide favorable workplace conditions and stable employment. Any workplace discrimination can be challenged under the Act. This means that the Employer cannot terminate a person’s employment because a person has a mental health disability if terms of the employment contract has not been violated. Your employer also has to provide reasonable accommodations for your mental health condition. This may include self-paced workloads and flexible hours, different job responsibilities, allowing leave for treatment or during periods of hospitalization or incapacity. If your employer does not know about your mental health condition, they do not need to make any reasonable accommodations.
If and when social cognitive and/or behavioral functioning is no longer impaired, you will be taken off the Register of Persons with Disabilities (Section 21 and 25).
Limits of the Act
Dr Tiun Ling Ta, the President of Persatuan Orang Cacat Anggota Malaysia, pointed out that the Federal Constitution specifically prohibits discrimination on the grounds of religion, race, descent, place of birth and gender. However discrimination against persons with disabilities was surprisingly omitted. Dr Tiun pointed out further that unfortunately, the recognition for rights of persons with disabilities in Malaysia is seems to come from a charity-influenced intention rather than an inherent right. The Act does not provide any clause for anti-discrimination but only “appeal” to the authorities, bearing words such as merayu, meminta izin and hendaklah. The scene that is set for this Act seems to merely be advisory rather than enforcing; in comparison to the execution of the National Service Act, where students face penalties for failing to report for training.
Malaysia ratified the UN Convention with reservations to Article 15 and 18. Article 15 covers freedom from torture or cruel, inhuman or degrading treatment or punishment; Article 18 covers freedom of movement and nationality. This means that Malaysia is not bound to implement Article 15 and 18. There were no official reasons given for the reservations.
According to the SUHAKAM Report 2015, the reservation to Article 15 may have been made due to the broad interpretation involving the terms ‘torture or cruel, inhuman or degrading treatment or punishment’ in the Article. Malaysia has not ratified the International Covenant on Civil and Political Rights (ICCPR) and Convention against Torture (CAT), and criminal legislations in Malaysia include death sentence and whipping as part of punishment.
[1] https://www.hrw.org/news/2010/08/16/malaysia-disability-rights-treaty-ratification-important-step
[2] ASEAN Mental Health Systems, 2016. http://asean.org/storage/2017/02/55.-December-2016-ASEAN-Mental-Health-System.pdf
[3] UN Convention on the Rights of Persons With Disabilities. https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/frequently-asked-questions-regarding-the-convention-on-the-rights-of-persons-with-disabilities.html#iq6
[4] http://www.jkm.simple.my/content.php?pagename=pendaftaran_orang_kurang_upaya&lang=en
[5] http://www.jkm.gov.my/jkm/uploads/files/JPOKU/Kemudahan%20dan%20Keistimewaan%20OKU%20di%20Malaysia.pdf
