PART II
APPLYING THE LAW
Chapter IX.
PATIENTS’ RIGHTS
Persons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws, and the constitution and laws of the state of California, unless specifically limited by federal or state law or regulations. Cal. Welf. & Instit. Code § 5325.1 (emphasis added)
A. Rights
Mental health patients have the same legal rights guaranteed to everyone by the Constitution and other laws. As citizens, patients do not lose their rights by being hospitalized or receiving services. Patients' rights can be found in statutes, regulations and case law.
Cal. Welf. & Inst. Code § 5325 and § 5325.1 codify the statutory patients' rights in California:
1. Under California law, the following rights may never be denied (Cal. Welf. & Inst. Code § 5325.1):
• The right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of the personal liberty of the individual.
• The right to dignity, privacy, and human care.
• The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication may not be used as punishment, for the convenience of staff, as a substitute for, or in quantities that interfere with the treatment program.
• The right to prompt medical care and treatment.
• The right to religious freedom and practice.
• The right to participate in appropriate programs of publicly supported education.
• The right to social interaction.
• The right to physical exercise and recreational opportunities.
• The right to be free from hazardous procedures.
2. Psychiatric facilities must also uphold the following specific rights, which can be denied only when "good cause" exists (Cal. Welf. & Inst. Code § 5325; 9 C.C.R. § 865.2):
• The right to wear one's own clothing.
• The right to keep and use one's own personal possessions, including toilet
articles, in a place accessible to the patient.
• The right to keep and spend a reasonable sum of one’s money for small purchases.
• The right to have access to individual storage space for one's own use.
• The right to see visitors each day.
• The right to have reasonable access to phones both to make and receive
confidential calls.
• The right to have access to letter-writing materials, including stamps.
• The right to mail and receive unopened letters and correspondence.
Additionally, every mental health client has the right to see and receive the services of an a Patients' Rights Advocate.
3. All patients have the following treatment rights:
• The right to give or withhold informed consent to medical and psychiatric treatment, including the right to refuse antipsychotic medication, unless specific emergency criteria are met or there has been a judicial determination of incapacity (Cal. Welf. & Inst. Code § 5150, 5325.2).
• The right to participate in the development of individualized treatment and services
planning (Cal. Welf. & Inst. Code § 5600.03).
• The right to refuse psychosurgery (Cal. Welf. & Inst. Code § 5326.6).
• The right to confidentiality (Cal. Welf. & Inst. Code § 5328).
• The right to inspect and copy the medical record, unless specific criteria are met (Cal. Health & Safety Code § 1795).
• The right to have family/friends notified of certain treatment information with patient's permission (Cal. Welf. & Inst. Code § 5328.1).
• The right to an aftercare plan (Cal. Welf. & Inst. Code § 5622).
All mental health facilities must:
· Post a list of patients' rights.
· Inform patients of their rights in a manner in which they can comprehend.
· Inform patients of the rules, regulations and admissions procedures of the facility.
· Tell patients how they can contact the Patients’ Rights Advocate and how they can file a complaint (Cal. Welf. & Inst. Code § 5325).
B. Additional Rights
1. Right to Privacy and Personal Association
"Every institutionalized person is entitled to individualized treatment under the least restrictive conditions feasible - the institution should minimize interference with a patient’s individual autonomy and social interaction..." Foy v. Greenblott 141 Cal. App. 3d. 1, 9 (1983).
In the Foy case, the California Court of Appeals held that a mental hospital cannot prohibit sexual activity absolutely and that the privacy rights of residents include the right to have consensual sexual relations in a mental health facility. Limitations to the right may be made on a case-by-case basis when one of the parties does not consent, or is not competent to consent, or where coercion or threat is used or other legally defined ‘good cause’ exists. Advocates can play a valuable role in developing reasonable policies and procedures to recognize the right to maintain resident health and safety.
Furthermore, psychiatric facilities must make available to residents appropriate forms of birth control and safe sex protection (including condoms). Mental health clients have a right to receive prompt medical care and treatment, and to be protected from harm, with respect to sexual activities, given the risks of pregnancy and sexually transmitted diseases. Advocates should work with the facility in developing policies and procedures regarding such care and treatment.
2. Right to Cultural Competency
Advocates should promote an increased culturally-competent mental health system. To this end, it is important for advocates to become informed of legal requirements that mental health facilities must comply with to meet the needs of their ethnically-diverse client population. (See also Chapter VIII. Cultural Competence).
One important step towards providing a culturally-competent mental health system is to assure adequate staffing of qualified bilingual persons within the mental health system. An adequate staffing pattern that reflects the make-up of the client population helps ensure the delivery of effective mental health services.
Patients have a legal right to obtain information in a language they can understand. If a facility fails to provide a means of communication with patients in their known language, advocates should have this occurrence documented as a denial of rights incident.
California Government Code (Gov’t) §§ 7292, 7293 provides that all state and local agencies which provide information or services to the public, and which have contact with "a substantial number of non-English-speaking people, shall employ a sufficient number of qualified bilingual persons in public contact positions to ensure provision of information and services to the public, in the language of the non-English-speaking person."
Section 7292 of the Cal. Gov’t Code gives the following definitions:
· Substantial number of non-English-speaking people
The bilingual staffing requirement applies when five percent or more
of the people served by the agency either do not speak English or are unable
to communicate effectively in English because it is not their native language.
(Cal. Gov’t Code § 7296.2).
· Sufficient number of qualified bilingual persons in public contact positions
A sufficient number of qualified bilingual persons is the number required to provide the same level of services to non-English-speakers as are available to English-speakers. Cal. Gov’t Code § 7296.4. (A public contact position is one which emphasizes the ability to meet, contact, and deal with the public in the performance of the agency's functions. (Cal. Gov’t Code § 7297)).
2. Right to Aftercare/Discharge Planning.
Mental health clients have a right to access services and programs which promote
a satisfying life in the least restrictive environment (Cal. Welf. & Inst. Code § 5600.1).
Patients should be the central and deciding figure in all planning for their individua
needs (Cal. Welf. & Inst. Code § 5600.2(a)).
Individualized evaluation, assessment and treatment planning is required throughout the LPS Act. Licensing regulations provide for initial and continuing assessment to determine the patient’s current level of functioning and service needs, as well as a written treatment plan to address those needs. Federal regulations governing Medi-Cal reimbursement also require comprehensive assessments and care plans with measurable objectives and time-lines to meet patient needs.
All licensed inpatient mental health facilities, including are required to comply with the discharge planning requirements contained in Cal. Welf. & Inst. Code § 5622. See Health & Safety Code § 1284. Prior to discharging a patient who was placed in the facility, any facility operated by a county or pursuant to a county contract, must prepare a written aftercare plan. See Cal. Welf. & Inst. Code § 5622(a). The aftercare plan must include, among other things, the following:
a. A functional assessment of the patient's level of daily living skills, such as personal care and grooming, health maintenance, communication, food preparation, vocation and employment;
b. The specific programs and services required so that he/she can minimize future confinement and receive further mental health services in the least restrictive setting; such specific programs and services include:
i. measurable goals and objective; Cal. Welf. & Inst. Code § 5622(a)(3)
ii. referral to providers of medical and mental health services; Cal. Welf. & Inst. Code § 5622(a)(5)
iii. identification of public social services, legal aid, education, and vocational services.
See Cal. Welf. & Inst. Code § 5622(a)(1),(4). A copy of the aftercare plan must be sent to the local county mental health director who shall adopt and implement the plan to the extent possible. Cal. Welf. & Inst. Code § 5622.
Advocates should assist patients in assuring that: 1) patients are in fact being
included in their treatment and placement planning; 2) discharge criteria is appropriate and is not vague; 3) the discharge/placement plan is the least restrictive environment; and 4) patients are receiving sufficient notice of discharge. Failure to comply with state statutory aftercare/discharge plan requirements is a denial of a patient's rights.
3. Smoking
There is no specific right to smoke in the LPS Act, although it is generally considered to be included in the right to keep and use one's own personal effects. In addition, most patients retain the right to make decisions about their medical treatment, absent an emergency (See Chapter XIII. Informed Consent) The Department of Health Services Licensing has adopted a policy instructing facilities to provide designated outdoor smoking areas and, in at least one instance, cited a skilled nursing facility for denying a patient the right to smoke without adequate "good cause" justification. Skilled nursing facilities must provide designated areas for smoking, and may limit smoking to those areas. The skilled nursing facility must also provide non-smoking areas. (22 C.C.R. § 72507(c)).
4. Theft and Loss of Property.
Clients often complain that property has been lost during hospital intake or during
the on-the-street detention process prior to short-term commitment. Those authorized persons who make the initial 72-hour detention are responsible for taking "reasonable precautions to preserve and safeguard the personal property in the possession of or on the premises occupied by the person." (Cal. Welf. & Inst. Code § 5156).
State law requires a long-term facility to develop and post its theft and investigation procedures, train all employees in the procedure, document all lost or stolen property worth more than $25, provide information on how to locate the property, and maintain current inventories of residents' property. (Health & Safety Code § 1289.3). If the facility complies with these requirements, it will be presumed to have made reasonable efforts to safeguard the property.
Also, existing regulations covering community care and skilled nursing facilities
require the facility to keep residents' money and valuables separate, intact, and free
from any incumbrance. (22 C.C.R. §§ 72529, 80026).
C. Denial of Rights
The rights under Cal. Welf. & Inst. Code § 5325 may be denied only when "good cause" exists to deny these rights; however, the rights listed in Cal. Welf. & Inst. Code § 5325.1 may never be denied.(9 C.C.R. § 865.2)
Good Cause.
a. That the exercise of the specific right would be injurious to the patient; or
b. That there is evidence that the specific right, if exercised, would seriously infringe on the rights of others; or
c. That the institution or facility would suffer serious damage if the specific right is not denied; and
d. And that there is no less restrictive way of protecting the interest specified in a, b or c above.
(9 C.C.R. § 865.2).
When a right is denied, the reason given for denying the right must have some clear relationship to the right denied (9 C.C.R. § 865.2). Example: A patient is denied the right to keep his cigarettes (the right to keep and use personal possessions) because he is burning himself and lighting fires and lesser restrictive alternatives (1:1 supervision during smoking) have failed.
Rights may not be denied as a condition of admission, as part of a treatment plan, or for the convenience of staff, nor may they be treated as a privilege to be earned.
Documentation. Clients are entitled to an explanation for each denial of rights. Each denial must be noted in the patient's treatment record "immediately." (9 C.C.R. § 865.3). The documentation must include the following:
• The specific right being denied.
• The date and time of denial.
• A specific and clear statement of good cause.
• Less restrictive alternatives tried.
• Continuing documentation of observation and assessment of good cause.
• Specific criteria for restoration of rights denied.
• The signature of the appropriate person authorizing denial.
Restoration of Rights. Once the good cause for denial of a right is no longer present, the right must be restored immediately (9 C.C.R. § 865.5). The date of the restoration of the right must be documented in the chart. In addition, all denials of rights must be reported each quarter to the director of mental health or her designee (9 C.C.R. § 866).
Analysis of Denial of Rights
1. Is there a right?
2. Can that right be denied?
3. Is it an absolute denial or a restriction?
4. If restriction, is it within reasonable limits (i.e., coffee in a.m. and meals, regular visiting hours)?
5. Is there a reason given for the denial?
6. Does the reason constitute "good cause"?
7. Is the reason given for the denial related to the right denied?
8. Were there less restrictive alternatives tried to address the reason prior
to denying the right?
9. Was the denial punishment, substitute for programming or for staff convenience?
10. Was the denial properly document?
11. Was the denial properly documented?
12. Was the right restored when good cause no longer existed?
