The inability to get consent from the minor's parent/guardian shall not preclude treatment of a minor held under the LPS Act. The treating facility must make "every effort" to "obtain the consent of the parent or legal guardian,"; however, inability to do so will not preclude holding and treatment of an involuntary minor. Cal. Welf. & Inst. Code § 5585.50

No minors under 16 years may be held with adults receiving psychiatric treatment. Cal. Welf. & Inst. Code § 5585.55 There is a statutory waiver provision for facilities who can show the requirement is a hardship. Cal. Welf. & Inst. Code § 5751.7. However, under no circumstances may a minor be put on the same treatment ward as an adult "in the custody of a jailer for a violent crime," an adult known registered sex offender or a person who has a "known history of or exhibited, inappropriate, sexual or other violent behavior which would present a threat to the physical safety of minors." Cal. Welf. & Inst. Code § 5751.7

SB 595 provides for a post-admission ICR at the facility, conducted by a psychiatrist selected by the facility who may or may not have staff privileges at the hospital which is treating the minor. Prior to the ICR, the psychiatrist-reviewer must interview the minor, review clinical information, including past treatment and future treatment plans, and consult with the treating physician to review alternative options.

"Independent clinical reviewer" means that the psychiatrist shall have no financial relationship with the family or the treating physician. The county mental health director must approve the list of independent reviewers at least annually. (Cal. Welf. & Inst. Code § 6002.25).

The ICR is not automatic, but is available to minors who request it, and is available only within the first ten days of admission. The facility does have the obligation to inform the minor of the right to the ICR in writing. No party in the proceeding has the right to counsel, but the Patients’ Rights Advocate is required to provide assistance to the minor at the review.

The standard of review at the ICR is 1) whether the minor continues to have a mental disorder; 2) whether further inpatient treatment is reasonably likely to be beneficial to the minor's mental disorder 3) or whether the placement in the facility represents the least restrictive, most appropriate available setting, within the constraints of reasonably available services, resources, and financial support, in which to treat the minor. (Cal. Welf. & Inst. Code § 6002.30(c)).

If the answer to any of these questions is "no" then the minor must be released. The decision of the reviewing psychiatrist is binding and not appealable. If the decision is to release the minor, the minor must be released that same day.

1) If the minor requests the ICR then the Advocate must be notified no later than one

working day after the request. Only the minor can waive the right to this hearing. Once a request is made, the minor can change his or her mind anytime; 2) The ICR must be held within five days of the request; 3) The minor has the right to be assisted by the Advocate and to question those recommending inpatient treatment. However, if the minor does not want to attend then the Advocate can represent the minor in his or her absence; 4)The review should be in an informal but private setting. The review can be limited to the minor, the parent/guardian, the Advocate, a representative of the facility, and the psychiatrist conducting the review; 5)An interpreter must be provided if any participant requires one; 6) The reviewing psychiatrist is responsible for keeping a record of the hearing.

The statutes governing minors in this category do not specifically give minors the right to a habeas corpus writ hearing. However, the right is made clear by the historical language. The statutes "do not preclude the right to review of inpatient treatment through the exercise of other legal remedies available to minors, including, but not limited to, a writ of habeas corpus." Many Superior Court Local Rules specifically provide minors with this right. (Note: The most recent judicial council writ form has an "Other" box where the form asks what law the person is being held under." Minors in this category should use that box and write Cal. Welf. & Inst. Code § 6002).

2. "Voluntary Per Parent" Treatment of Minors in Public Facilities ("Roger S.").

Minors admitted to public psychiatric facilities, like minors admitted to private psychiatric facilities, are not entitled to the protections of the LPS Act. Further, minors under the age of 14 years are not entitled by statute to the pre-commitment hearing described below.

In re Roger S., 19 Cal. 3d 921 (1977), the California Supreme Court held that though a minor's personal liberty interest is less comprehensive than that of an adult, a minor does possess due process rights which cannot be waived by a parent or guardian before being committed to a state hospital. The minor is not entitled to full LPS protections, but is entitled to a pre-admission hearing on the issue of whether inpatient hospitalization is appropriate. The court did not require that the hearing be judicial but did establish the right to counsel, the right to present evidence, and the right to cross-examine.

Although the facts of Roger S. involved commitment to a state hospital, the rationale applies to any state controlled facility. It is the policy of the Department of Mental Health to apply Roger S. principles to county-operated and county-contracted facilities.

Most Superior Court Local Rules require that all of the following criteria be met, by a "preponderance of evidence," in order to hospitalize a minor under the Roger S. case: 1) whether the minor has a mental disorder; 2) whether the minor requires twenty-four hour treatment in a locked facility; 3) whether the hospital represents the least restrictive and most appropriate setting to fulfill the objectives of treatment; 4) whether hospitalization is reasonably expected to ameliorate the mental condition; and 5) whether the facility is in the minor’s home community, and if not, that the benefits of treatment out way the detriment of removal from that home community. If the answer to any of the above is negative, then the minor should not be committed.

The purpose of these pre-commitment hearings is to assure that admission is justified before the minor has been significantly deprived of their liberty interests. However, in reality most of these hearings are post admission because a minor is usually brought in under the 72 hour hold criteria and then "transferred" to voluntary per parent status.

1) The minor must be given notice and information about the hearing; 2) The hearing must be before a judge or an administrative officer of the court; 3) The minor has a right to counsel. (One appellate district court has interpreted "counsel" to mean an attorney. In re Antoine C., 186 Cal. App. 3d 424, 230 Cal. Rptr. 738 (1986). However, in at least one county, Advocates are successfully conducting these hearings.); 4) The minor has a right to appear and present evidence on their own behalf; 5) The minor must have the opportunity to confront and cross-examine witnesses brought against them. Only the minor can waive these rights after being given notice of them.

hearing. This lack of protection is premised on the idea that children that age are not intelligent or mature enough to assert their own rights. Therefore, should the facts of any particular situation refute that presumption, then the right to a pre-commitment hearing should be asserted.

A minor is entitled to inspect "patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent." See Section C(2) above for a list. (Cal. Health & Safety Code § 123110(a)) Significantly, the parent or guardian is NOT entitled to inspect these records without the express authorization of the minor. (Cal. Health & Safety Code § 123115(a)(1)). This is to encourage minors to seek medical and mental health care without fear of their parents/guardians finding out.

It is important to keep this protection in mind because children often talk about these issues in the course of mental health treatment and therefore it can and should, absent the minor's permission, be excised from any records the parent/guardian requests.

A minor patient can request their own mental health records but if "a health care provider determines there is a substantial risk of significant adverse or detrimental consequences to a patient in seeing or receiving a copy of mental health records requested by the patient," then the facility can refuse to show or give the records to the minor.(See Cal. Health & Safety Code § 123115(b)). Presumably, this applies to outpatient mental health care the minor has the right to consent to independently under California Family Code section 6924.

If inspection is refused then the health care provider has to document the request and the specific reasons for refusal. However, the provider must tell the minor that the provider is required to permit inspection by a licensed physician or psychologist if the minor patient requests that in writing. (See Cal. Health & Safety § 123115(b)(3)).

Therefore, any client, i.e. any person, including minors, who is receiving mental health

The rights of minors in residential care facilities are governed by 22 CCR §§ 80072 and 84072. While some of these rights are the same as those enumerated in WIC 5325, others are more diluted or qualified then those rights which minors in a acute psychiatric hospital have a right to. While patients’ rights advocates have access to clients receiving mental health services in those facilities, DSS-Community Care Licensing (CCL) is the agency which is responsible for monitoring and investigating residents’ complaints.

A facility cannot initiate forms of discipline which violate the minor’s personal rights refereed to above. Acceptable forms of discipline which a facility may utilize are listed in 22 CCR § 84072.1. A facility must maintain and implement written policies and procedures governing this practice. While use of locked seclusion and/or restraint are not allowed by the regulations, a licensee may request (and obtain) a "waiver" from DSS -CCL to utilize certain types of restraint which are approved by the licensing agency. Advocates should obtain a copy of the facility’s policies and procedures, as well as, any waivers which the facility has obtained from DSS-CCL when investigating a complaint regarding the appropriateness of a particular use of discipline and/or restraint. 22 CCR 80072(a)(7) & (8).