Protection & Advocacy Inc. - Publications - Mental Health - Study Guides: Related Systems, Residential Rights, Inpatient Rights, English

STUDY GUIDES

TABLE OF CONTENTS

Study Guide #1. RELATED SYSTEMS

Study Guide #2. RESIDENTIAL RIGHTS - PART 1

Study Guide #3. RESIDENTIAL RIGHTS - PART 2

Study Guide #4. INPATIENT RIGHTS - PART 1

Study Guide #5. INPATIENT RIGHTS - PART 2

STUDY GUIDE #1

RELATED SYSTEMS

INTRODUCTION

This is Study Guide #1, the first in a series of study guides which have been prepared to assist you in learning about mental health laws and regulations. The purpose is to make sure that you understand certain written materials (the Peer Advocacy Training Manual, the law, and the regulations) which you will need for effective advocacy.

Sometimes it's easy to read material and not even realize that it hasn't sunk in. We hope that these Study Guides will make the subject matter easier to absorb.

DIRECTIONS

1. Make a copy of all these materials, so you will have a clean set for your files.

2. Read through the "SOURCES" mentioned at the top of Page 1.

3. Next, re-read the material for each of the eight sections. It's shown in parenthesis after the title.

4. Go through and answer the questions. Go back to the SOURCES if you need to. This is not a test. But, if you need to go back to the SOURCES a lot, it means that the area is difficult '--or you. It would be helpful to continue reviewing the questions and discussing them together as a group.

MATERIALS NEEDED:

Key Related Systems

PL 99-319

SOURCES:

CHAPTER 3, PEER & SELF-ADVOCACY TRAINING MANUAL

ALSO HELPFUL:

Public Law (PL) 99-319

Welfare and Institutions Code (WIC)

Sections 5650-5651 (Find the WIC in the Mental Health Services Act)

The following are some key related systems for us as Peer & Self Advocates. At the end of this study guide, you will be invited to describe other key systems in your particular community.

1. Patients' Rights Advocacy System

A. State Office of Patients' Rights

B. County Patients' Rights Advocates

C. State Hospital Patients' Rights Advocates

2. Protection & Advocacy, Inc.

3. Local Mental Health Director

4. Health Facilities Licensing

5. Community Care Licensing

6. Ombudsman

7. Local Mental Health Advisory Board

8. California Council on Mental Health

1. PATIENTS' RIGHTS ADVOCACY SYSTEM -- Training Manual (TM) pages 7-11

A. What are the three parts of California's Internal Patients' Rights Advocacy System?

B. Name four of the eight statutory duties (duties mentioned in the Welfare & Institutions Code) of the State Office of Patients' Rights:

C. What is "INDIVIDUAL" advocacy?

D. "SYSTEM" advocacy works to improve the whole mental health system. Three possible ways to do this are:

E. Each of the 58 counties has a Patients' Rights office. The advocates are either county EMPLOYEES or else they work under a CONTRACT with the county. For this reason, they are called "INTERNAL" advocates. Who is the person in each county who designates (assigns) the Patients' Rights advocates?

F. A formula is used to provide minimum advocacy staffing. This formula allows one advocate per population.

G. List four of the seven duties of the county Patients' Rights Advocate which are given by the law (Welfare & Institutions Code section 5520)

2. PROTECTION & ADVOCACY, INC. (TM 14-16; PL 99-319)

A. Public Law 99-319 (the Protection & Advocacy for Mentally Ill Individuals Act of 1986) extended advocacy services which were already given to the developmentally disabled to those labeled "mentally ill." In California, the agency that provides these advocacy services is Protection and Advocacy, Inc. (PAI). PAI offers the following services:

1 .

B. Because PAI is not connected to state or county services, it is considered an "EXTERNAL" advocacy. How do you think this might be different from the "INTERNAL" advocacy which county Patients' Rights Advocates provide?

C. Who is eligible to receive help from PAI?

4. What other factors does PAI take into consideration n deciding whether to help someone?

D. Protection & Advocacy, Inc. does NOT represent certain parties. Who are they?

E. Does PAI charge for its services? [ ] yes [ ] no

What about costs (such as witness fees, court and travel expenses)?

3. LOCAL MENTAL HEALTH DIRECTOR (TM 11)

Each county, through its Board of Supervisors (or other governing body) appoints the local Mental Health Director.

A. One of this person's duties is to prepare the county SHORT-DOYLE plan. Look up Sections 5650 and 5651 of the Welfare & Institutions Code (in the Mental Health Services Act). Explain briefly this annual county plan and its contents.

B. What are the other five duties of the local Mental Health Director?

. HEALTH FACILITIES LICENSING (TM 12)

Hospitals and health facilities must be licensed by the Slate of California to operate. If you found serious health problems in a hospital or health facility, you might call Health Facilities Licensing.

A. What sorts of problems do you think might warrant a call to Licensing?

B. Under what heading would you look for Health Facilities Licensing in the phone book?

5. COMMUNITY CARE LICENSING (TM 12)

Board & Care Homes (and other community care facilities) nay also be licensed.

A. What sorts of problems do you think would warrant a call to Community Care Licensing?

B. Under what heading would you look for Community Care Licensing in the phone book?

6. OMBUDSMAN (TM 12-13)

An "Ombudsman" helps people who are having difficulty with government bureaucracy. Special ombudsman programs were started through the (federal) Older Americans Act of 1973 and with the California Department of Aging in 1975. In actuality, these programs do not just serve the aged, but anyone who lives in a long-term care facility (nursing home, skilled nursing facility, licensed or unlicensed Board & Care Home, or other residential setting).

A. When did the Ombudsman Office get the right of access (the right to enter facilities)?

B. What are five things that nursing home Ombudsmen do?

C. What are five of the types of problems that Ombudsmen can resolve?

7. LOCAL MENTAL HEALTH ADVISORY BOARD (TM 13-14)

In each county, the supervisors (or other governing body must appoint a Board which ADVISES as to mental health matters.

A. In larger counties (more than 100,000) the Mental Health Advisory Board consists of ______ members, while in smaller counties, the board consists of ______ members.

B. GENERALLY, this Board helps in planning and developing its community mental health effort. Give four of its six SPECIFIC duties.

C. Describe the COMPOSITION of the Board: (one person is the chairperson of the governing board, e.g., Board of Supervisors, to represent the public interest; the rest are:

In larger counties, at least how many Mental Health Advisory Board Members must be direct consumers (mental health clients)?

At least how many clients must be on the Board in smaller counties?

8. CALIFORNIA COUNCIL ON MENTAL HEALTH (TM 16-17)

A. What is the purpose of this Council?

B. List five of the duties and powers of the California Council on Mental Health.

C. What was the former name of this council?

D. The COMPOSITION of this council may be hard to grasp. se this outline to understand it better.

15 members

9 Governor appointees

2 professionals (not psychiatrists)

4 public interest (2 clients, 2 family members)

3 other public interest

3 Speaker of Assembly appointees

2 professionals

1 general public

3 Senate Rules Committee appointees

1 psychiatrist

1 professional (not psychiatrist)

1 general public

A. How many members are on the California Council of Mental Health?

B. How many clients must the Governor appoint?

C. How many family members must the Governor appoint?

D. May a Council-member still serve if he or she is no longer in the category s/he was chosen for? [ ] yes [ ] no

E. What are the eight professions chosen from?

F. Can a "public" member be from one of those eight professions?

[ ] yes [ ] no

9. Is there a key related system in your community which was not mentioned here? If yes, it would be helpful for all of you to have your ideas on: (Name of System)

A. The purpose of that system:

B. Its duties and powers:

C. Who it serves/and does not serve:

D. Whether it includes clients in decision making:

E. How it interfaces with these related systems in Chapter 3 of the TM:

F. And anything else you think is important:

STUDY GUIDE #2

RESIDENTIAL RIGHTS -- PART 1

INTRODUCTION

This is Study Guide #2, the first part of two Study Guides covering RESIDENTIAL RIGHTS. The material on residential care facilities is pulled from different areas of law, regulations, and other background sources. The Study Guide shows you all the materials you need for each set of questions. You need to look up things in the original laws and regulations, so that you will get used to working with them. It's not hard!

The areas covered in Study Guide #2 RESIDENTIAL RIGHTS (1) are:

1. Explanation of Materials

2. Definitions

3. Title XXII

A. Personal Rights

B. Important Paperwork

1. Admission Agreement

2. Needs & Services Plan

C. Food

D. Activities

1. Self-Help Groups

2. Resident Councils

E. Eviction

1. 30-Day Notice

2. 3-Day Notice

3. The Right to Go to Court

4. Conservatorship

Study Guide #3 RESIDENTIAL RIGHTS (2) will cover:

4. Other Legal Protections

A. Landlord-Tenant Law

B. Unruh Civil Rights Act

C. California State Constitution

In Study guide #3 RESIDENTIAL RIGHTS (2), we will review these materials and cover OTHER LEGAL PROTECTIONS, before moving on to INPATIENT RIGHTS in Study Guides #4 and #5.

MATERIALS NEEDED:

State Dept. of Social Services, Policies & Procedures, General

Licensing Requirements and Adult Residential Facilities

Health & Safety Code, Community Care Facilities Act, Sections 1500 and following.

1. EXPLANATION OF MATERIALS

The following materials are most relevant to Residential Advocacy:

A. The LAW, passed by the state legislature in Sacramento:

1. In the Welfare & Institutions Code, beginning with section 5450, is the chapter: "Community Residential Treatment System." This is background material.

2. In the Health & Safety Code, beginning with section 1500, is the chapter: "Community Care Facilities." This is also background, mainly about licensing considerations.

B. The REGULATIONS, from the CA Code of Regulations. Regulations are not passed by the legislature, but by another (administrative) process. Regulations give specific rules for situations that the law does not take the time to spell out. The law gives agencies the authority to adopt regulations. (See, for example, section 1530 of the Health & Safety Code for the authority for the State Department of Social Services to adopt regulations.)

1. Title 22 (XXII) of the CA Code of Regulations deals with licensing requirements in Community Care Facilities.

a. 80000 and following describe GENERAL LICENSING REQUIREMENTS.

b. 85000 and following describe licensing requirements in ADULT RESIDENTIAL FACILITIES.

You will find that the numbering system matches--so that, for example, 80001 covers general definitions, and then 85001 covers more definitions just for Residential Facilities.

You will need to be flipping back and forth a lot, which can be a real pain but is just plain necessary.

2. Title 9 (IX) of the CA Code of Regulations (which we have not covered yet in these Study Guides), still protects clients in residential settings. Especially, the complaint procedure in Title IX still applies. For now, you just need to know this. Title IX will be covered more fully in the "Inpatient Rights" Study Guides #4 and #5.

C. POLICIES & PROCEDURES, put out by the State Department of Social Services (Licensing). These contain Title IX, but also, at the end of each section, you may find cross-references and editorial opinions (OPINIONS only, which are usually on the side of the B&C operator. See 85068.5) These Policies & Procedures are useful to know what the operators are going by, and are easier to read than Title XXII.

WHEN YOU HAVE A REFERENCE TO TITLE XXII, FOR NOW YOU SHOULD USE THESE POLICIES & PROCEDURES (BOTH GENERAL AND ADULT RESIDENTIAL FACILITIES).

D. PSA TM, Chapter 6.

E. The brochure, YOUR RIGHTS IN RESIDENTIAL CARE FACILITIES, by the California Network of Mental Health Clients is very valuable.

2. DEFINITIONS

Use the reference shown to look up each thing on the list and define or explain it. Try to write down the main idea, not the exact same words.

A. What are "Adult Residential Facilities"? [Title XXII, 80001(a)(4)--use Policies & Procedures.]

B. What is an "authorized representative"? [Title XXII, 80001(a)(6)]

C. What is meant by "care & supervision"? [Title XXII., 80001(a)(10)]

9. Providing those BASIC SERVICES required by law and regulation in order for the B&C operator to keep his/her license.

10. (Title XXII, 85078):

D. What is a "license"? [Title XXII, 80001(a)(33)] (A license can also be thought of as a PERMIT TO OPERATE.)

Is a license transferable? [ ] yes [ ] no

E. What is the "licensee"? [Title XXII, 80001(a)(34)] (Simply, the licensee can be thought of as the B&C HOME OPERATOR.)

F. What is a "conservator"? [Title XXII, 80001(a)(17)]

G. What is a "Needs & Services Plan"? (Title XXII, 85001(a)(1)]

3. TITLE XXII

A. Personal Rights [Title XXII, 80072, 85072]

1. First, look up 85072(a). This shows you that you need 80072 to get the full picture.

2. Now look up 80072.

3. Is the resident LIMITED to the rights spelled out in this regulation? [ ] yes [ ] no

4. There are nine personal rights listed in 80072(a). Summarize them below. Try to use key words which will help you remember. For now, do not worry about sub-headings. 85072(a) --

5. The regulations for Adult Residential Facilities add to the above list. Go back to 85072 to find them. Again, summarize this extra list of rights. 85072(b) --

a. [don't worry about a & b now]

B. Important Paperwork

1. Admission Agreement [Title XXII, 80068,850681

a. First, look up 80068 and write down three things an Admission Agreement specifies:

(1)

(2)

(3)

b. Also, from 85068, the Admission Agreement specifies:

(1)

(2)

(3)

(4)

c. Is it legal for an Admission Agreement to require that a client give up any legal rights, as a term of admission? [ ] yes [ ] no

2. Needs & Services Plan [Title XXII, 85001, 85068 2]

a. Look back to the DEFINITIONS and, again, find "Needs & Services Plan."

b. Must a Needs & Services Plan be developed BEFORE admission? [85068.1(c)(2)] [ ] yes [ ] no

c. The Needs & Services Plan includes information from several key players. First, who are the key players? [85068.2(a)(1), (2) & (3)]

(1) (Or authorized representative)

(2)

(3)

d. Who else may also be involved in developing the Needs & Services Plan? [85068.2(b)(2)]

e. What information goes into the Needs & Services Plan? [85068.2(a)]

- from the client:

- from the placement agency/consultant:

- from the facility:

f. The Needs & Services Plan must be updated as needed so that it shows an accurate picture Of the resident's current needs, and the facility's plan to meet those needs. If the resident's situation changes and the facility can still meet the needs, then a new plan and time frame are developed. If the resident's new needs cannot be met, one of two things might happen [85068.3(b)(3)1:

(1)

(2)

C. Food

Food is often a major complaint about Board & Care (B&C) home living. It is important for you to know that many regulations deal with subject: see 80076 and 85076.

D. Activities

1. Read 85079.

2. Operators must provide planned recreational activities for residents as well as opportunity for residents to participate in community activities such as: 85079(c)(4)

3. Resident Councils [Health & Safety Code 1520.2; Title XXII 85080]

Resident Councils are NOT required for ALL facilities in which a majority off residents request one. They are only required for homes with more than six residents, where a majority request one.

a. What kinds of things may a Resident Council do?

Look up 1520.2(a) of the Health & Safety Code. Find the last sentence in the paragraph, which begins "The council may, among other things, . . ." Copy the rest of that sentence, word for word.

b. What is the composition of the Resident Council? [Health & Safety Code 1520.2(a)] (Who is on it?)

c. What must the B&C operator do to help residents establish and maintain a Resident Council? [Title XXII, 85087]

d. May the operator attend the entire meeting? [ ] yes [ ] no

e. Once a Resident Council is established, can residents be forced to attend? [ ] yes [ ] no

E. Eviction [Title XXII, 85068.5]

Title XXII contains an eviction procedure. From the start, it is important to remember that residents are tenants and are also protected by landlord- tenant law regarding eviction.

1. First, find 85068.5(f) and copy it. IT IS IMPORTANT.

Some counties have successfully argued that this gives residents the right to go before a judge, in an "unlawful detainer" action, before actually being bodily evicted.

2. How does the eviction procedure work? [85068.5]

There are two ways to give a resident an eviction notice. Both ways require a GOOD REASON.

a. 30-day written notice "to quit" (to leave). This notice may be given for any of these five reasons:

(1)

(2)

(3)

(4)

(5)

Note that, if rent is late through no fault of the resident (such as SSI error), the argument has won in some counties that this is NOT A GOOD REASON, so the person was not evicted.

b. For "emergencies", a three-day written notice "to quit". For this notice, what are both of the requirements?

(1)

AND

(2)

NOTE: Licensing must approve. If licensing does not respond within two working days, this is considered what?

Give an example of some behaviors which you think would be threatening to health and/or safety of the resident or others at the facility (should qualify for a three-day notice).

3. Conservatorship law gives one person (the conservator) the power to control another's placement and finances (and other things). If you are interested, laws about psychiatric conservatorship are found beginning with 5350 of the Welfare & Institutions Code. We will cover conservatorship in another study guide.

For now, it is important to understand that it may seem that a conservatee is being evicted without going by this Title XXII eviction procedure. However, the conservator has the power to move a conservatee without following the procedure. [But, there ale some limits on the conservator's power to put the client in a more restrictive setting.]

4. OTHER LEGAL PROTECTIONS (for the next Study Guide)

A. Landlord-Tenant Law

B. Unruh Civil Rights Act

C. California State Constitution

END OF STUDY GUIDE 2

STUDY GUIDE #3

RESIDENTIAL RIGHTS -- PART 2

INTRODUCTION

This is Study Guide #3, a continuation and review of the Study Guide #2 on RESIDENTIAL RIGHTS.

The areas covered in this Study Guide include:

4. OTHER LEGAL PROTECTIONS

A. Welfare & Institutions Code 5325.1

Using IGLESIAS as an example:

B. Landlord-Tenant Law

1. [rent control does NOT apply]

2. admissions agreement

3. eviction notice

4. definition

5. the right to go to court before eviction ("unlawful detainer")

6. retaliatory eviction

C. Unruh Civil Rights Act

D. Federal Law -- illegal to use police for an illegal eviction

E. Unlawful and unfair business practices

Enclosed are two handouts which relate to Landlord-Tenant applications for board and care residents. They refer to other laws, but don't worry about looking them up--just try to get a feel for what other KINDS of laws protect residents.

Also enclosed is a legal document--a "Memorandum of Points & Authorities." This is the basis for Robert Iglesias' case, With the winning argument that board and care residents have the right to have their cases heard by a judge before being evicted.

Some of you may know Robert. When you read the facts in his case, you will see how careful we have to be in trying to help residents organize without getting them into trouble. You don't have to read Robert Iglesias' full case. We will point out certain parts that show how these legal arguments can be used for protection.

The rest of this study guide is a review of Residential Rights

MATERIALS NEEDED:

Jean Matulis handout

Paul Bernstein handout

IGLESIAS Memorandum of Points & Authorities

SOURCES:

Welfare & Institutions Code, 5325.1

Health & Safety Code, 1518(b)

Jean Matulis Handout

Paul Bernstein Handout

Study Guide #2

IGLESIAS, Memorandum of Points & Authorities

First, we need to review Study Guide #2.

1. What is the difference between the law and regulations?

How is each passed?

2. What is the name of the set of regulations for licensed residential care facilities?

3. Where are the definitions found (what section numbers) in the "General Licensing Requirements" and "Adult Residential Facilities"?

4. What section numbers would you turn to in "General Licensing Requirements" and "Adult Residential Facilities" to find a list of PERSONAL RIGHTS?

5. What are two important pieces of paperwork that a Board and care operator must have for each resident?

6. What happens if a Needs & Services Plan must be modified?

7. In a home with 6 or fewer clients, if a majority of residents want a Resident Council, MUST the operator help them start one? [ ] yes [ ] no

8. What kinds of things can a Resident Council do?

9. Explain the EVICTION PROCESS:

A. Where is it found in Title XXII?

B. What are possible reasons for a 30-day notice?

C. What are possible reasons for a 3-day notice?

D. On a three-day notice, must Licensing be contacted? [ ] yes [ ] no

E. If someone is under CONSERVATORSHIP, how might this change his or her eviction procedure?

Now we can finish the rest of the RESIDENTIAL RIGHTS material--the part on OTHER LEGAL PROTECTIONS.

4. OTHER LEGAL PROTECTIONS

A. For the answer to the question "What other laws protect B&C Home residents?" look up section 5325.1 of the Welfare & Institutions Code and copy the first sentence word for word:

IN OTHER WORDS, BASICALLY ALL OTHER LAWS PROTECT RESIDENTS!

Now, get out the IGLESIAS memo. This is a perfect way to show SOME Protections from other areas of the law. You don't have to read the whole document, but you will probably want to get some idea of the facts, which are shown in the beginning of it.

If you do read the whole memo, you will see that those other laws were used IN ADDITION TO Title XXII. Iglesias called the Patients' Rights Advocate and Licensing, and used any and all laws and regulations he could. Sometimes one strategy works faster or better than another.

B. Landlord-Tenant Law. The question is, does it even apply?

1. [Rent control does NOT apply to licensed B&C homes. This does not mean that Landlord-Tenant law does not apply, but just that, because of the many regulations under Title XXII, more rent-control regulations were not added.]

2. Admission Agreement

a. Find the Admission Agreement section on Page 6 of Study Guide #2. Write down seven things an Admission Agreement specifies.

(1)

(2)

(3)

(4)

(5)

(6)

(7)

b. Look up Page 14, Line 13, in IGLESIAS. Beginning there, the document argues that the Admission Agreement establishes a Landlord-Tenant relationship. Why?

3. Eviction Notice

a. Look on Page 10 of Study Guide 2 to see if eviction notices must be IN WRITING. [ ] yes [ ] no

b. In IGLESIAS, it is argued that the eviction notice itself acknowledges the landlord-tenant relationship.

4. Definition

a. Finally, IGLESIAS argues that B&C residents are tenants because they pay rent in exchange for temporary use of the facility and no other law applies to exclude them.

5. Therefore, IGLESIAS argues that, since residents are tenants, they have the right to go to COURT before being bodily evicted from their B&C homes. This is called the right to an "UNLAWFUL DETAINER" action.

a. Find Pages 17-18 of the IGLESIAS memo. Fill in the rest of the sentence which begins: "The expressed rationale [reason] behind this policy [to go to court before being thrown out] has been:

b. Does IGLESIAS see any reason why this procedure to preserve the peace is any less important in a B&C home than anywhere else? [ ] yes [ ] no

6. Retaliatory Eviction is Illegal

a. Retaliation is "getting back at." When the operator learned that the residents were going to try to better their living conditions, she got back at them by changing the house rules with no notice. Give some examples of how the new rules changed the services she provided. (IGLESIAS, Page 23)

b. Find Footnote 3 on Page 22 of IGLESIAS. Notice that Civil Code Section 1942.5(c) specifically protects tenants from being evicted just for belonging to tenants rights associations which are lawful and peaceful), such as Project Return.

C. Unruh Civil Rights Act (covers BUSINESSES). Iglesias' B&C home was a private, profit-making business establishment, licensed by the State. Therefore, the home was covered by the Unruh Civil Rights Act, which prevents unlawful discrimination by businesses. The unlawful discrimination here was RETALIATORY EVICTION.

D. Federal law -- prohibits using police to carry out an unlawful eviction.

Because police act with authority of the city or State, they are said to act under: (IGLESIAS, Page 28, Line 1)

The fact that the operator got the POLICE to help her evict Iglesias for illegal reasons and without his "day in court" means that a federal law was violated.

E. Unlawful & Unfair Business Practice

The Business & Professions Code allows practices to be stopped ("enjoined") if they are unlawful or unfair. (IGLESIAS, Page 34, Lines 3-5)

The operator's actions in retaliating and evicting without going through the court process were unlawful and unfair. Therefore, IGLESIAS argues that the court should stop the eviction.

END OF STUDY GUIDE 3

STUDY GUIDE #4

INPATIENT RIGHTS -- PART 1

INTRODUCTION

Enclosed is Study Guide #4, the first of two Study Guides on INPATIENT RIGHTS. This first part covers the following areas:

1. WHAT IS TITLE IX?

2. UNDERSTANDING CATEGORIES OF INPATIENT RIGHTS

3. UNDENIABLE RIGHTS

4. DENIABLE RIGHTS

A. RIGHTS DENIABLE FOR "GOOD CAUSE"

B. RIGHTS DENIABLE FOR OTHER REASONS

There are many examples here of working with the idea and reasoning of "GOOD CAUSE" denial of rights. We all need practice with this.

Study Guide #5 will finish INPATIENT RIGHTS and will cover:

5. VOLUNTARY RIGHTS

A. POLICY

B. DEFINITION

C. RIGHT TO BE VOLUNTARY--CONSIDERATIONS

D. ADDITIONAL RIGHTS NOT DENIABLE FOR "GOOD CAUSE"

1. INFORMED CONSENT

2. COMPLAINT PROCEDURES

3. DISCHARGE "AT WILL"

6. INVOLUNTARY ISSUES REGARDING DRUGS

A. THE RIGHT TO BE INFORMED

B. THE "RIESE V. ST. MARY'S" CASE

7. GENERAL COMPLAINT PROCEDURE

8. THE "BATES BILL" (1981 PATIENTS, RIGHTS LAW)

(Patients' rights regarding hearings, DUE PROCESS RIGHTS, are not covered here, but will be in Study Guide #6.

DIRECTIONS:

1. Read through the "SOURCES" mentioned at the top of Page .. of the Study Guide.

2. Re-read the material for each section as shown in parentheses after the title.

3. By yourselves or with others, go through and answer the questions. Go back to the material if you need to, or as we ask you to do. This is not a test. But, if you need to go back a lot, that means that the area is difficult for you. You should continue reviewing the questions, discuss them together as a group.

MATERIALS NEEDED:

Look up and copy the sections listed below from the gray Mental Health Services Act [put out by the Department of Mental Health].

Welfare & Institutions Code (WIC)

5325

5325.1

5326

Title IX, California Code of Regulations

Table of Contents for Subchapter 4

800

865.2

865.3

865.4

865.5

SOURCES:

CHAPTER 4, PEER & SELF ADVOCACY TRAINING MANUAL [TM, Pages 18-27]

California Code of Regulations, Title IX, Sections:

5325

5325.1

5326

Welfare & Institutions Code (WIC), Sections:

800

865.2

865.3

865.4

865.5

Table of Contents for Subchapter 4

Study Guide #2, Page 1

1. WHAT IS TITLE IX? [Review Study Guide #2, p. 1; Title IX, Table of Contents for Subchapter 4; Title IX, 800; WIC 5400.]

A. Look again at Study Guide 2 ("Residential Rights"), Page 1, to review the difference between LAWS & REGULATIONS.

B. Title IX (of the CA Code of Regulations) contains: laws regulations about patients' rights.

C. We will be using mainly Subchapter 4 of Title IX. Check out its TABLE OF CONTENTS to see what that covers.

Find Section 800 of Title IX and look under the "NOTE' part. This tells where the authority is found to establish the regulations for this subchapter. Where is thatof the Welfare & Inst. Code.

1. Now read Section 800 (not just the note) and write down its first sentence word for word:

"The Director of Mental Health shall . . .

authority?

2. Who must be consulted in developing these regulations?

3. What group must APPROVE these regulations?

2. UNDERSTANDING CATEGORIES OF INPATIENT RIGHTS

This is an overview:

A. Inpatient Rights are either:

1. Undeniable, or

2. Deniable:

a. for "GOOD CAUSE" or

b. for another reason.

B. Voluntary patients have extra rights.

3. UNDENIABLE RIGHTS [WIC 5325(g) and (h); WIC 5325.1; TM page 18]

A. Look up WIC 5325.1 and copy word for word the first sentence:

"Persons with mental illness . . .

For example, someone under conservatorship will have his or her rights limited by the court (under California law).

B. Then, WIC 5325.1 gives a list of nine UNDENIABLE rights. List the nine undeniable rights (abbreviate each one).

C. There are also two other undeniable rights. Find then in WIC 5325(g) and 5325(h), [also covered in TM, Page 20]

5325(g)

5325(h)

4. DENIABLE RIGHTS

A. RIGHTS DENIABLE FOR "GOOD CAUSE" [WIC 5326 and 5325; TITLE IX 865.2, 865.3(a), 865.4(a), and 865.51

1. Find WIC 5326. It refers you to WIC 5325 and spells out certain patient rights which are deniable, bit only for "GOOD CAUSE."

"GOOD CAUSE" has a special meaning here. Find it on Page 19 of your TM. This comes from section 865.2 of Title IX. "GOOD CAUSE" means:

AND

2. The rights which can be denied for "GOOD CAUSE" are: (TM pp. 18-19) (ABBREVIATE)

3. THIS IS THE WAY YOU NEED TO THINK TO ANALYZE THIS TYPE OF "GOOD CAUSE" ISSUE:

Let's say that the doctor has taken away John's right to have visitors, because one visitor has been bringing him alcohol.

a. Is the right to have visitors one of the rights which is deniable for "GOOD CAUSE"? [See list, #2 above] [ ] yes [ ] no

b. If so, is there "GOOD CAUSE" in this situation? Do any of the following exist with respect o the patient exercising this particular right? [ ] yes [ ] no

(1) injury to patient

(2) seriously infringe on rights of others

(3) damage to facility

C. EVEN IF THERE IS "GOOD CAUSE", can you suggest a LESS RESTRICTIVE WAY to deal with the situation, rather than taking away his right to see all visitors?

4. Would it be correct for the person in charge to deny someone the use of the telephone because he refused to go to group therapy? [ ] yes [ ] no

Why or why not? [See Title IX, 865.2(b)]

5. Turn to the "Discussion Questions" on page 33 of the TM for more practice with rights deniable for "GOOD CAUSE."

First, look at Question 3. What if the person in charge threatens to put the patient in seclusion if he refuses to go to group therapy?

a. Look up Title IX, 865.4(a) and define "SECLUSION."

b. What right is threatened to be denied by seclusion?

c. Is this a right which is deniable for "GOOD CAUSE?" [See List #2] [ ] yes [ ] no

d. If so, is there "GOOD CAUSE" in this situation? Do any of the following exist, with respect to the patient exercising this particular right? [ ] yes [ ] no

(1) injury to patient

(2) seriously infringe on rights of others

(3) damage to facility

e. EVEN IF THERE IS "GOOD CAUSE", can you suggest a LESS RESTRICTIVE WAY to deal with the situation, rather than putting the patient in seclusion?

6. Now turn to Discussion Question 1 on Page 33 of the TM.

a. What right is being denied?

b. Is this a right which is deniable for "GOOD CAUSE"? [See List #2] [ ] yes [ ] no

c. If so, is there "GOOD CAUSE" in this situation? Do any of the following exist, with respect to the patient exercising THIS particular right? [ ] yes [ ] no

(1) injury to patient

(2) seriously infringe on rights of others

(3) damage to facility

d. EVEN IF THERE IS "GOOD CAUSE", can you suggest a LESS RESTRICTIVE WAY to deal with the situation, rather than leaving Angela's ring in the safe?

7. Only those seven rights listed above [#2] may be denied for "GOOD CAUSE."

A lobotomy is psychosurgery. Can the right to refuse a lobotomy be denied for "GOOD CAUSE"? [ ] yes [ ] no

8. Whenever a right is denied for "GOOD CAUSE", it must be documented immediately in the patient's chart. This must include: [Title IX, 865.3(a)]

9. What must happen when "GOOD CAUSE" no longer exists to deny the right? [Title IX, 865.51

The right must be . . .

B. RIGHTS DENIABLE FOR ANOTHER REASON (NOT "GOOD CAUSE") [TM page 20; WIC 5326.7]

1. The right to REFUSE CONVULSIVE TREATMENT (which usually means electroconvulsive treatment uL r,%-T") nar be denied in a different way. Read the TM, page 25 to find the two requirements to give someone a "shock treatment" against his/her will:

a. A court must decide that the person lacks.

AND

b. Written permission for the "shock treatment" must be obtained from someone else, either

[THIS IS CALLED "SUBSTITUTED INFORMED CONSENT."

In WIC it is found in section 5326.7.1

2. The right to CONFIDENTIALITY may be denied under certain circumstances which are spelled out in the law.

(For example, if a client makes it known to anyone that he or she has abused an older person or a child, that fact must be reported to the authorities. There are several other situations which require some facts to be reported.)

CONFIDENTIALITY will be covered in a later Study Guide, along with the subject of "RELEASES OF INFORMATION." For now, if you want to know more about confidentiality laws, a good source is Chapter 16 of the (blue) Patients' Rights Advocacy Manual, put out by the California Department of Mental Health (1985).

END OF STUDY GUIDE #4

Study Guide #5 will finish INPATIENT RIGHTS and will cover:

5. VOLUNTARY RIGHTS

A. POLICY

B. DEFINITIONS

C. RIGHT TO BE VOLUNTARY--CONSIDERATIONS

D. ADDITIONAL RIGHTS NOT DENIABLE FOR "GOOD CAUSE"

1. INFORMED CONSENT

2. COMPLAINT PROCEDURES

3. DISCHARGE "AT WILL"

6. INVOLUNTARY ISSUES REGARDING DRUGS

A. THE RIGHT TO BE INFORMED

B. THE "RIESE V. ST. MARY'S" CASE

7. GENERAL COMPLAINT PROCEDURE

8. THE "BATES BILL" (1981 PATIENTS' RIGHTS LAW)

STUDY GUIDE #5

INPATIENT RIGHTS -- PART 2

INTRODUCTION

Enclosed is Study Guide #5, a continuation of Study Guide #4, which covered the following material relating to INPATIENT RIGHTS:

1. WHAT IS TITLE IX?

2. UNDERSTANDING CATEGORIES OF INPATIENT RIGHTS

3. UNDENIABLE RIGHTS

4. DENIABLE RIGHTS

A. RIGHTS DENIABLE FOR "GOOD CAUSE"

B. RIGHTS DENIABLE FOR OTHER REASONS

This Study Guide will cover:

5. VOLUNTARY RIGHTS

A. POLICY

B. DEFINITIONS

C. RIGHT TO BE VOLUNTARY -- CONSIDERATIONS

D. ADDITIONAL RIGHTS NOT DENIABLE FOR "GOOD CAUSE"

1. INFORMED CONSENT

2. COMPLAINT PROCEDURES

3. DISCHARGE "AT WILL"

6. INVOLUNTARY ISSUES REGARDING DRUGS

A. THE RIGHT TO BE INFORMED

B. THE "RIESE V. ST. MARY'S" CASE

7. GENERAL COMPLAINT PROCEDURE

8. THE "BATES BILL" (1981 PATIENTS' RIGHTS LAW)

(Patients' rights regarding hearings, DUE PROCESS RIGHTS, are not covered here, but will be covered in Study Guide #6.)

DIRECTIONS:

1. Read through the "SOURCES" mentioned at the top of Page of the Study Guide.

2. Next, for each of the sections, reread the material for that section. It's shown in parentheses.

3. By yourselves or with others, go through and answer the questions. Go back to the material if you need to. This is not a test. But, if you need to go back a lot, that means that the area is difficult for you. You should continue reviewing the questions, discuss them together as a group.

4. Laws and regulations are referred to as follows; this is a standard way of abbreviating these references:

WIC 5000 Welfare & Institutions Code, Section 5)00

9 CCR 854.5000 Title 9 of the California Code of Regulations, Section 854

TM 27 TM, Page 27

MATERIALS NEEDED (enclosed):

WIC 5001(a) 5008(a) 5150 5250 5258 5276 6002 6004

9 CCR 836.1 851 853 854 855 857 864 865(d)

Chapter 5, Department of Mental Health Patients' Rights Advocacy Manual (1985)

SOURCES:

TM 25-33

WIC 5001(a), 5008(a), 5150, 5152(c), 5250, 5258, 5276, 6002, 6004

9 CCR 836.1 851 853 854 855 857 864 865(d)

Chapter 5, Department of Mental Health, Patients' Rights Advocacy Manual (1985)

5. VOLUNTARY RIGHTS [TM 20-21; WIC 5001(a), 5250(c), 5276, 60)2, 6004; 9 CCR 836.1, 8511

A. POLICY: Section 5000 of the Welfare & Institutions C)de, the Lanterman-Petris-Short Act, was passed in 1967.

Find WIC 5001(a). This is near the beginning of the act and discusses its purpose (legislative intent). Finish the rest of WIC 5001(a) word for word:

"To end the . . .

B. DEFINITIONS: What exactly is the difference between the definitions of involuntary and voluntary patients? [9 CCR 836.1. These definitions were established for convulsive treatment and psychosurgery; however, they are generally accurate for all WIC commitments.]

1. INVOLUNTARY patients are: [9 CCR 836.1(a)]

2. Everyone else is a VOLUNTARY patient. [9 CCR 835.1(b)]

3. Look up WIC 5250(c). One of the conditions for a 14-day hold is that: "The person has been but has not been . . . treatment on a voluntary basis."

[The different types of involuntary holds, and tie hearings available to clients to challenge then, will be covered in Study Guides #6 & #7. For now, it is important to see that voluntary status MUST be offered on a 14-day hold.]

4. If this condition [WIC 5250(c)] is not met, then . . . the Superior Court if he or she has a Writ of Habeas Corpus hearing. [WIC 5276, Paragraph 2(b)]

5. Patients have the right to treatment which is provided in ways that are LEAST RESTRICTIVE of individual liberty. [WIC 5325.1(a).] Voluntary treatment is less restrictive than involuntary treatment.

6. Now find WIC 6002 and 6004, Paragraph 1. The person in charge (of a private or public psychiatric facility) may receive as a voluntary patient any person suffering from a mental disorder who is a person shall be . . . for care and treatment . . .

C. RIGHT TO BE VOLUNTARY: Based on 3,4, 5 and 6 above, DO YOU THINK THAT PATIENTS HAVE THE RIGHT TO BE VOLUNTARY PATIENTS? [ ] yes [ ] no

Explain:

D. ADDITIONAL RIGHTS NOT DENIABLE FOR GOOD CAUSE: Voluntary patients have additional rights which are not deniable for GOOD CAUSE. (See GOOD CAUSE analysis in Study Guide #4.) However, these voluntary rights still may be denied for other reasons, such as an emergency. [TM 20-21; 9 CCR 851, 853, 854, 855, 857; WIC 5150]

1. INFORMED CONSENT: One of the rights both VOLUNTARY and INVOLUNTARY patients have is to give--or withhold--INFORMED CONSENT. [9 CCR 851 explain INFORMED CONSENT.]

a. The patient must be informed of the right t) accept or refuse, and must accept, [ ] before [ ] after drug treatment begins.

b. The patient must be provided with enough information to be able to make an informed decision. What information does this include?

(1)

(2)

(3)

(4)

(5)

(6)

c. Once a patient has given informed consent nay he or she withdraw it? [9 CCR 851(b)] [ ] yes [ ] no

d. If so, who would the person talk to in order to withdraw consent?

e. Would withdrawal of informed consent be, by itself, grounds for placing a voluntary patient on an INVOLUNTARY hold? [9 CCR 855] [ ] yes [ ] no

f. In an "emergency" a doctor may force a patient to take medications. How is "emergency" defined? [9 CCR 853] "An emergency exists when there is . . .

g. Try Discussion Question 2 on Page 33 of the TM.

(1) What does Bill need to do to withdraw his consent to medications? [9 CCR 854]

(2) Could his doctor put him on an involuntary hold JUST for refusing medications? [9 CCR 855] [ ] yes [ ] no

(3) Under what conditions COULD Bill's doctor put him on an involuntary hold? [WIC 5150]

(a)

(b)

(c)

(4) Under what conditions could Bill's doctor force drugs on Bill (a voluntary patient) against his will? [9 CCR 853]

2. COMPLAINT PROCEDURES: Two COMPLAINT PROCEDURES are available to Bill (TM 33, Q 2) if, as a voluntary patient, his right to informed consent is not properly honored. [9 CCR 857; WIC 5325.1(c); 9 CCR 8641

a. Under 9 CCR 857, Bill has a special complaint procedure for the denial of a voluntary patient's right to refuse medication.

(1) Bill would go to his patients' rights advocate.

(2) His advocate would report the complaint to the State Department of Mental Health.

(3) The State Department of Mental Health has these four options:

(a)

(b)

(c)

(d)

b. Under WIC 5325.1(c), all patients have the right to be free from harm, including:

"Medication shall not be used as:

This right is protected by the basic COMPLAINT PROCEDURE found in 9 CCR 864, which provide:

(1) Bill would complain to his patients' rights advocate.

(2) The advocate would contact the local Mental Health Director if he/she could not resolve the issue in five working days.

(3) The local Mental Health Director could order an investigation by quality assurance/medication monitoring specialist.

(4) If the local Mental Health Director could not resolve the issue within 10 working days, then the matter would be referred to the State Office of Patients' Rights.

(5) That decision would be appealable.

c. Bill may also have other remedies.

3. DISCHARGE AT WILL: A voluntary (adult) patient also has the right to leave the hospital at any time (at will). [TM 27; WIC 6002, 5008(a), 5150, 5250(a), 5258; 9 CCR 865(d)]

a. Find the last paragraph of WIC 6002. Whom must the voluntary (adult) patient tell that he wants to be discharged?

b. What kind of procedures must the voluntary (adult) patient complete in order to leave? [WIC 60021

c. When someone is admitted as a voluntary p tent (or becomes one), what must that person be told by staff? [9 CCR 865(d)]

d. A voluntary patient may leave absent some compelling reason. When can staff interfere with a voluntary patient's right to leave? [See 9 CCR 853, definition of emergency.]

In order to deny a patient the right to leave at will, there must be an evaluation that says the patient meets the following criteria:

(1)

(2)

(3)

e. Find WIC 5008(a) to define "evaluation."

"Evaluation consists of:

An evaluation is an on-going, thorough process. It is part of a treatment plan, not to be used at the last minute just as a way to deny discharge.

f. If the patient IS put on an involuntary hold after voluntary status, may the voluntary time be used to "stretch out" the total time the person is held against his will? [TM 27; WIC 5255.] [ ] yes [ ] no

7. INVOLUNTARY ISSUES REGARDING DRUGS

A. THE RIGHT TO BE INFORMED. [TM 22; WIC 5152(c)]

1. Welfare & Institutions Code 5152(c) provides that involuntary patients must be informed (in writing and orally) of:

the probable and

the possible of

medications given to them as a result of their mental illness.

2. The oral information must include: [WIC 5152(c)]

3. How soon after the involuntary hold begins must this information be given to the patient? [WIC 5152(c)]

B. THE RIESE V. ST. MARY'S CASE [TM 222-241

1. The Riese v. St. Mary's case is about involuntary patients having the right to refuse/give consent to medications.

2. The issue in RIESE is that involuntary patients, like voluntary patients, have the right to give (or withhold): to psychiatric drugs.

3. Under Riese v. St. Mary's, what are the two exceptions which could allow involuntary patients to be forced to take psychiatric drugs?

4. RIESE argues that the authority for this right already lies in the LPS Act, and that the right to BE informed [WIC 5152(c) above] makes no sense without the related right to make a choice based upon that information.

8. GENERAL COMPLAINT PROCEDURES [TM 24; 9 CCR 857,8641

A. For the violation of the right to INFORMED CONSENT, there is a special procedure shown above [#5.D.2.1.

B. There is a separate procedure which covers ALL types )f complaints, including denial of right to INFORMED CONSENT.

1. The patient complains to a Patients' Rights Advocate.

2. Within _____ working days, the Patients' Rights Advocate takes action to . . .

and . . .

the complaint.

3. If the patient is not satisfied, then the matter is referred to . . . within ______ working days.

4. If the patient is still not satisfied within working days, then the complaint is referred to . . . who makes a decision.

5. To appeal that decision, the patient contacts . . .

8. THE "BATES BILL" - 1981 PATIENTS' RIGHTS LEGISLATION [TM 25-26]

A. In 1981, the California legislature passed important patients' rights legislation. Assembly Bill 595 (Bates) changed many sections of the LPS Act. The Training Manual lists 12 changes which this bill made. Read through them, and comment on ONE change and why that change would be important to you as an INPATIENT.

CHANGE:

REASON CHANGE IS IMPORTANT:

END OF STUDY GUIDE #5.