Children[1] have always been a top priority requiring care, support, and protection from families, communities, and society. Children with disabilities, in particular, belong to a group that requires special care and support according to the policies of Vietnamese law.[2] According to reports from UNICEF (2016 and 2017), there are approximately 1.1 million children with disabilities under the age of 16 in Vietnam. The statistics from the Ministry of Labour, Invalids and Social Affairs (MOLISA) also show that the number of children with disabilities is 1.3 million.[3] In terms of proportion, the disability rate in general in our country is 7.06% of the population, of which the disability rate of children aged 2 to 17 is 2.83% (children aged 2-15 is 3.02%).[4] It can be seen that the number of children with disabilities in Vietnam is not small at present. The policies that support, protect, and care for children with disabilities are reflected in the Law on Persons with Disabilities 2010, and the Law on Children 2016, and are integrated into many different laws in various areas such as social protection, health, education and vocational training, and labour. This article focuses on addressing some of the issues related to policy determination of disability level and recommendations for improving this policy area to strengthen the legal basis to ensure the rights and benefits of children with disabilities in our country.
Overview of some positive aspects of the current policy on determining the degree of disability and enforcement mechanisms
Similar to persons with disabilities at other ages, legally, to be recognized as a person with disabilities, children with disabilities need to go through the process of determining the degree of disability and receive a certificate of disability from the Council for Determining the Degree of Disability (CDDD) at the commune level. The main provisions for determining the degree of disability are reflected in the Law on Persons with Disabilities 2010 and the detailed guidelines for this Law. However, starting from the perspective of always considering children as a special object (in terms of physical, mental and psychological aspects), the law has some specific provisions for determining the degree of disability for this group, aiming to ensure accuracy, objectivity and fairness in determining the degree of disability for children. Therefore, in addition to general guidelines on the method of evaluating the degree of disability, the current law has also prescribed a separate form for determining the degree of disability (disability type, degree of disability) for children under 6 years old.[5] At the same time, the law also stipulates the responsibility of the Chairman of the CDDD at the commune level in sending reference letters to educational institutions about difficulties in learning, living, and communication and recommendations on the type of disability and degree of disability of the person who has been determined to have a disability and is attending school (according to the prescribed form)[6], thus the CDDD can refer to them during the process of determining the degree of disability for children.
Image are for illustrative purposes
On the aspect of law enforcement, as of now, 100% of commune-level units in 63 provinces and centrally-run cities have established the CDDD and have identified nearly 3 million persons with disabilities who have been granted disability certificates (including children with disabilities).[7] It can be seen that, based on the current policy on determining the degree of disability, the organization of the CDDD has been actively implemented in our country, contributing to creating a premise for ensuring the legal rights and interests of persons with disabilities, especially children with disabilities.
Some Challenges in Determining the Level of Disability Related to Children with Disabilities
Determining the types of mental, intellectual, and other disabilities, especially children with disabilities is considered the most problematic.[8] There are many different reasons for this. Among them, some reasons must be mentioned: Obstacles due to the lack of clear regulations on the mandatory addition of members of the Commune Level Disability Assessment Council when determining the level of disability for children in some cases.
The current law stipulates that only one member of the Commune Level CDDD is required to have medical expertise (the head of the commune health station). However, if analyzing the content of the disability assessment tools (Disability Assessment Forms) according to current regulations[9], it is clear that health criteria still account for the dominant proportion compared to social criteria. At the age of children, especially children under 6 years old, most of them have not fully developed physically, mentally, linguistically, etc. Therefore, the manifestations of disability and the level of disability will be more difficult to evaluate and conclude than adults. In addition, according to the law, medical records and documents at medical facilities (medical records, examination, treatment, surgery...) are not the type of documents required to be submitted with the Disability Assessment Request Form when conducting disability assessment at the commune level.[10] This leads to many difficulties in reality for other members, as most of them do not have or do not have enough medical knowledge to determine the level of disability.[11] Meanwhile, working under the Council mechanism, the law stipulates that the official conclusion of the Commune Level Disability Assessment Council is based on the opinions of the majority of Council members.[12]
On the opinion of educational institutions: According to the law, the Chairman of the Communal CDDD is required to obtain written opinions from educational institutions that children with disabilities (mostly young children) attend and may invite representatives of these institutions to attend the meetings of the Council if necessary. However, regardless of the form of participation, the opinions of representatives of educational institutions are only advisory to the Council.[13] Meanwhile, if a child is attending school, the time spent at school is significant during the day, so teachers have the opportunity to observe and understand the disability manifestations affecting the child's learning, daily activities, and psychological issues... Therefore, their opinions and comments are very important and they need to participate in discussions and vote equally with other members at the meetings of the Council.
Although the law stipulates that the Chairman of the Communal People's Committee is responsible for making decisions to replace or supplement members of the Council[14], there is a lack of specific regulations on the mandatory responsibility to supplement necessary members with specialized knowledge in medical, psychological, and educational fields to participate in the Communal CDDD in certain cases. This can be considered one of the reasons affecting the quality of the Council's activities. This leads to difficulties in ensuring objective and comprehensive professional factors when the conclusions of the Communal CDDD at the communal level in determining the types and levels of disabilities of children, especially those under 6 years old.
Obstacles related to payment of medical appraisal fees in cases of disability assessment in the Medical Appraisal Council of the provincial general hospital in the implementation of the law.
In practice, in proposing the determination of the degree of disability, there are some cases where parents of children with disabilities reflect that some commune officials in charge of labour and wounded soldiers refuse to accept the Disability Assessment Proposal and answer that the family needs to wait until the child is 06 years old, then the commune will organize the determination of the degree of disability.[15] In our opinion, the current application is not under the provisions of the law, in addition to the reasons arising from the commune official's awareness, there may be other reasons as follows:
The activity of determining the degree of disability for children, especially children under 06 years old, as mentioned above, is generally complex. Therefore, in many cases, it is necessary to request a referral to the Medical Appraisal Council due to the expertise beyond the ability of the commune's Disability Assessment Council or due to the conclusion of the commune's council being complained or denounced by the family of the child according to regulations. In terms of funding, the commune must be responsible for paying the medical appraisal fee for these cases. Specifically:
First of all, in cases where there is no agreement on the conclusion regarding the type and severity of disability in children, the necessary solution is for the CDDD to proceed with requesting a transfer of the children to the Provincial Council for Medical Assessment (of the Provincial General Hospital)[16] to obtain an accurate and objective conclusion about their disability status. In this case, the cost of medical assessment at the Provincial Council for Medical Assessment will be covered by the state budget[17], specifically, the commune (People's Committee) will allocate funds from the state budget to pay for the medical assessment fee.
Secondly, the law stipulates that in cases where the result of the medical assessment is consistent with the complaint (or denunciation), it will also be covered by the state budget. That means if the result of the medical evaluation differs from the conclusion of the Council for Determining the Degree of Disability (which is complained or denounced), it will also be paid for by the state budget.[18] In this case, the Commune People's Committee must also allocate funds from the annual budget to pay for it.
Therefore, in our opinion, the current allocation mechanism for the state budget to ensure funding for the activities of the CDDD for Medical Assessment can be considered as one of the reasons leading to some communes being hesitant to organize Disability Assessment for children under 6 years old in practice. In the current context where the budget allocation for communes is still relatively modest, this is also an issue worth considering to find solutions to overcome.
Recommendations
Based on the situation and the implementation of laws regarding child protection, we would like to make the following recommendations to improve the mechanism of child protection, especially for children under 6 years old:
Firstly, we suggest renewing the regulations regarding the composition of the CDDD in a clearer and more specific manner, with more flexibility to contribute positively to the quality improvement of the Council. Specifically:
The Chairman of the Commune People's Committee must be responsible for inviting experts with appropriate expertise (health, psychology, education, etc.) to participate in the Council in certain cases:
- In cases where the target of persons with disabilities is children under 6 years old, it is necessary to add Council members with medical expertise (in addition to the "fixed" member who is the head of the Commune Health Station).
However, this solution needs to be carried out based on close coordination with the healthcare sector. Given the large number of commune-level units across the country at present[19], it is not easy to mobilize healthcare experts to participate in the district-level Council for CDDD at the commune level, especially in mountainous and remote areas. Therefore, the healthcare sector must study and supplement necessary regulations in mobilizing doctors and healthcare experts to participate in the CDDD at the commune level to create favourable conditions for positive coordination with the Department of Labor, Invalids and Social Affairs in implementing CDDD activities. It should be based on the principle that the participation of doctors and healthcare experts in the activities of the CDDD at the commune level is not a charitable activity, but rather one of the social obligations and responsibilities of healthcare professionals, equivalent to the obligation and responsibility of lawyers to participate in providing free legal assistance following current law regulations.[20]
- It is necessary to stipulate the requirement for compulsory representation of educational institutions as members of the CDDD in case the CDDD is organized for children who are attending educational institutions.
Secondly, regarding the budget guarantee:
The general recommendation is to increase the operating budget for the district-level CDDD (to ensure funding for training members of the Council, supporting knowledge training on policies and skills related to disabilities for members of the CDDD; ...).
At the same time, it is necessary to renew the mechanism for allocating the state budget to enhance the convenience for the operation of the CDDD at the provincial Council of Medical Examination and Treatment for children with disabilities.
To ensure accurate and objective conclusions about the form of disability and level of disability in children, it is always necessary that district-level councils transfer request files for medical examination and treatment to the provincial Council of Medical Examination and Treatment for some cases that are beyond the professional capacity of the district-level councils. To reduce the burden on the district-level budget, the competent authority may consider renewing the mechanism for allocating the budget for the operation of the CDDD at the provincial Council of Medical Examination and Treatment, as follows: The budget for the provincial Council of Medical Examination and Treatment should be allocated directly to the provincial management level without taking from the annual budget for the district-level. Applying this mechanism will contribute to partly reducing the burden on the district-level budget, and reducing the situation of “avoiding” the organization of the CDDD in the commune for children under 06 years old that still occurs in some localities at present. Moreover, controlling the use of the budget guarantee for the Council for Persons with Disabilities at the provincial Council of Medical Examination and Treatment will also be more convenient when the budget is allocated to the provincial management level (shortening the budget chain).
Thirdly, it is necessary to promote early detection and intervention activities for children (under 6 years old) with disabilities according to the guidelines of the Ministry of Health.
Currently, early detection and intervention activities for children with disabilities are highly emphasized and strengthened in the healthcare industry.[21] In our opinion, if early detection and intervention for disabilities in children are done well from the beginning, it will create a comprehensive solution to support positive activities for disability detection and intervention at the commune level for children under 6 years old.
Fourthly, the traditional solution needs to focus on promoting training and communication activities on disability detection and intervention policies. The goal is to improve the awareness and legal compliance of grassroots officials and increase the awareness of people with disabilities and their families about the disability determination regime to protect the legitimate rights and interests of persons with disabilities, especially disabled children in this field.
In summary, with the shortcomings of the regulations on disability detection and intervention for children as analyzed above, it is hoped that in the coming time, the regulations related to disability determination regimes will be stipulated in current legal documents such as the Law on Persons with Disabilities 2010; Circular 01/2019/TT-BLĐTBXH. Other related legal documents need to be urgently studied, amended and supplemented to create the most effective and comprehensive legal basis for improving the quality of activities of the commune-level Disability Determination Council to ensure accurate, objective, legal and timely disability determination for people with disabilities in general and disabled children in particular, with the spirit of "leave no one behind".
[1] Children under the Vietnam Law on Children 2016 are: “Persons under 16 years old” (Article 1).
[2] According to Article 10, Law on Children 2016.
[3] Page 5, Documents attached to the decision Decision No. 359/QD-BYT dated January 31, 2023 of the Ministry of Health on the issuance of the Document "Guidelines for early detection and early intervention of children's disabilities".
[4] General Statistics Office (Statistics Publishing House 2018). National Statistical Survey of People with Disabilities 2018, p. 14.
[5] Form No. 02 promulgated together with Circular No. 01/2019/TT- BLDTBXH of the Ministry of Labor, War Invalids and Social Affairs stipulating the determination of disability level is carried out by the Disability Level Determination Council.
[6] Point a, Clause 2, Article 5 of Circular No. 01/2019/TT-BLĐTBXH
[7] According to data at: Summary Report on the implementation of the Law on Persons with Disabilities 2010 at the Conference to evaluate the implementation of policies and laws on people with disabilities (Quang Ninh, October 13-14, 2022).
[9] See the Forms of identification of technical regulations No. 02 and 03 issued together with Circular No. 01/2019/TT-BLĐTBXH.
[10] See Clause 2, Article 4 of Circular 01/2019/TT-BLĐTBXH.
[12] Clause 3, Article 16 of the Law on Persons with Disabilities 2010
[13] See Clause 4, Article 2 and Clause 2, Article 5 of Circular No. 01/2019/TT-BLĐTBXH.
[14] Clause 5, Article 2 of Circular 01/2019/TT-BLĐTBXH.
[15] Through the practice of legal advice of ACDC.
[16] Point a, Clause 2, Article 15 of the Law on People with Disabilities 2010; Point b, Clause 3, Detailed instructions are provided in Form No. 2, issued together with Circular 01/2019/TT-BLĐTBXH.
[17] Point a, Clause 1, Article 13 of Joint Circular No. 34/2012/TTLT-BYT-BLĐTBXH of the Ministry of Health - Ministry of Labor, Invalids and Social Affairs.
[18] Point b, Clause 2, Article 13 of Joint Circular No. 34/2012/TTLT-BYT-BLĐTBXH.
[19] As of October 1, 2022, Vietnam has 10 599 commune-level administrative units (including communes, wards and townships), including 614 townships; 1,737 Ward (source: https://thuvienphapluat.vn/chinh-sach-phap-luat-moi/vn/thoi-su-phap-luat/tu-van-phap-luat/42978/so-luong-don-en -hanh-chinh-cap-tinh-huyen-xa-o-viet-nam).
[20] Point d, Clause 2, Article 21 of the Law on Lawyers 2012.
[21] The Ministry of Health has just issued Decision No. 359/QD-BYT dated January 31, 2023 on the issuance of the Document "Guidelines for early detection and early intervention of children's disabilities".
