UPDATE:
In 2006, the legislature voted to restore Dental and Vision Benefits to MassHealth beneficiaries! Thank you to everyone who worked to make this happen, and to the legislators who recognized the importance of these services to overall health! Well done!
June 23, 2005
Dear Empowered Event Members,
Every group of Massachusetts Leadership Academy Graduates have prioritized MassHealth Dental and Vision as the most important issues affecting them.
We would like to ask you to call or write your legislators and express your opinions about this issue.
We hope you will be able to contact your legislator, if you care about this one way or the other.
There will be a hearing on July 6th for bills on Healthcare including Adult Dental Benefits (House Bill #3101) and House Bill (#3102)Hs #3101 restores. Adult Benefits to the level that they were in 2002. Hs. #3102
advocates for having Dental coverage for pregnant woman and woman with children under the age of 3 who are on Mass Health Benefits.
This hearing will take place in the Statehouse in room A2.
At the next EMPOWERED event we will be practicing meeting with and visiting our legislators offices.
We will be contacting you soon about the date for our next EMPOWERED Event.
Yours Very Truly,
Sara Sternberg, Jessel Smith, Deborah Delman and Linda Fountas
updated 11/27/07
Mission: To create a statewide support and advocacy network of people who have a variety of experiences with the mental health system. Honoring our past, we envision an integrated community, which promotes the greatest degree of self-determination. We come together to link resources and engage as equal partners in creating person-centered services.
Consumer/survivors Helping, Advocating and Networking for Growth and Empowerment
Mission:
CHANGE is a statewide support and advocacy network of people who have a variety of experiences with the mental health system. Honoring our past, we envision an integrated community, which promotes the greatest degree of self-determination. We come together to link resources and engage as equal partners in creating person-centered services.
We promote the following values:
RESPECT
We value RESPECT. It is the foundation for communication. Honoring the dignity and uniqueness of others strengthens our organization and fosters commitment as we take the high ground in accomplishing our mission. We recognize that we must give respect to receive it.
EMPOWERMENT
We value EMPOWERMENT. We grow and gain confidence as we stand up for ourselves and contribute to our organization by creating a collective, responsible power and commitment toward achieving common goals.
CHOICE
We value CHOICE. In the dignity of being able to take risks, there is a freedom and flexibility to consider our options, and learn through consequences of our decisions as we promote wellness and overcome obstacles.
DIVERSITY
We value DIVERSITY. Welcoming varied viewpoints, beliefs, backgrounds and experiences, we commit to attract and support a membership which is culturally and ethnically diverse.
COMMUNITY
We value COMMUNITY. Demonstrating the power of inclusiveness and support we come together in unity toward a common vision and mission and create a sense of belonging that inspires and nourishes our organizational spirit and energy.
HONESTY
We value HONESTY. Speaking and hearing truth matters as it establishes our integrity and creates an atmosphere of respect. Clarity and accountability are essential as we work together.
TRUST
We value TRUST. It is essential for working together and enhances our physical, emotional, and psychological safety as we rely on each other to create a comfortable environment that supports our progressive change.
CREATIVITY
We value CREATIVITY. Fresh approaches and new ideas can provide changes and solutions to seemingly insurmountable problems and ever-changing circumstances. Group expression releases potential for inspiration and resilience.
Young Adult Leadership Academy
(YALC)
Young People
Speaking Out for Young People!
The Young Adult Leadership Commission is working to improve mental health services for youth in transition.
WHY IS THE YALC NEEDED?
The Young Adult Leadership Commission (YALC) is a group of young people between the ages of 16 to 25 who reside in the Northeast Area of Massachusetts. The group is sponsored by the Northeast Area Department of Mental Health.
The need for a youth commission grew out of concern for young people who leave the adolescent public mental health system and do not transition well into adulthood. Some of these young people have the misfortune of falling through the cracks and are more likely to face problems such as crime, homelessness, early pregnancy, and other troubles.
The YALC intends to broaden youth voice regarding quality of mental health services by interviewing their peers with surveys and presenting the gathered information to their peers and concerned stakeholders.
What Young People Are Saying
Young Adult Leadership Commission members took part in a focus group. They raised issues such as:
Past Activities of the YALC:
Leadership Training: Involvement in a 4-day, 3-night Massachusetts Leadership Academy retreat.
Public Speaking Training: Participation in a workshop by the Portia Group, an organization that instructs professionals worldwide on communication.
Research: Trainings by CQI Inc. on research; one on one survey interviews with peers
Policy Work: Commission representation on the Northeast Area DMH Transition Age Steering Committee.
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Mission Statement
The YALC's mission is to inform DMH policymakers about the state of mental health services and what can be done to improve them.
Our purpose is to change the mental health system to better support youth in their transition to adulthood.
The integration of the "youth voice" within mental health services is critical to effectively deal with transition age issues.
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The Young Adult Leadership Commission
thanks MPOWER & The Northeast Area Department of Mental Health
for their support.
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Young Adult Leadership Commission
Jessel-Paul Smith
98 Magazine Street
Roxbury, MA 02119
Phone: 617-442-4111
Toll Free: 877-769-7693
Fax: 617-442-4005
E-mail: jessel@m-power.org
OLMSTEAD UPDATE
On November 9, 2007 the following message was sent by Laurie Burgess and Ellie Shea-Delaney, from EOHHS:
Dear Members of the Systems Transformation Grant Subcommittees:
We are writing to invite you to participate on an exciting, newly created, short-term subcommittee of the Systems Transformation Grant, the Olmstead Plan group. In recent weeks, Governor Patrick has expressed a desire to have an updated Olmstead Plan delivered to his office by March 2008. In response to this request, we are implementing this Olmstead Planning process as an appropriate activity to be addressed under the auspices of our Systems Transformation work. We anticipate that the Olmstead Plan Subcommittee will work intensively to:
• create a draft work plan in concert with the Administration that outlines what we have accomplished since the first Olmstead Planning phase in 2003-2003, what we have yet to focus on or complete, and steps for doing so, and,
• assist with designing and orchestrating a public process for vetting the new plan.
As part of this process, we will be providing the Governor an update on progress made and current planning and implementation activities, as they relate to recommendations that were presented in the People’s Plan and the Enhancing Community Based Services Plan (ECBS Plan), two reports produced in 2002 and 2003. The update will also include our proposed strategy for how we will use the Systems Transformation Grant subcommittee process, engage the public, and produce a plan. The Governor has requested that we provide the progress update by December 1, 2007, that we solicit public input over the winter and early spring, and that we submit a plan by March 2008.
In order to accomplish this ambitious work we anticipate that this new Systems Transformation Grant subcommittee will begin meeting the third week in November and will meet intensively, every two weeks or more often, until we have submitted the plan. We would expect that those of you interested in participating on the subcommittee will be able to make a firm commitment to participation on this very important new group. We will also create a process to keep everyone involved with the Grant, but who are not able to commit to subcommittee attendance, apprised of the group’s progress.
The group met on November 19, 2007 and plans to meet roughly every other week.
Questions or concerns, contact:
Dede Alley at 617-442-4111, or dede@m-power.org
updated November 2007
By
Wendy Fox-Grage
Kevin Horahan
Donna Folkemer
March 2001
In June 1999, the Supreme Court ruled in L.C. & E.W. vs. Olmstead that it is a violation of the Americans with Disabilities Act for states to discriminate against people by providing services in institutions when the individual could be served more appropriately in a community-based setting. States are required to provide community-based services for people with disabilities if treatment professionals determine that it is appropriate, the affected individuals do not object to such placement, and the state has the available resources to provide community-based services. The court suggests that a state could establish compliance with the Americans with Disabilities Act if it has 1) a comprehensive and effective working plan for placing qualified people in less restrictive settings, and 2) a waiting list for community-based services that ensures people can come of the list at a reasonable pace and receive services.
Purpose of the study
In light of this ruling, the National Conference of State Legislatures (NCSL) conducted a 50-state survey to determine the initial state responses to the Olmstead decision. The purpose of this study is to enhance informed decision making by helping state policy makers understand the choices states are making and the options that are available to meet the needs of people with disabilities.
The study is appropriately called a status report because states are in the early stages of implementing the Olmstead decision. The long-term effects of the decision are still unknown. NCSL will continue to track activity involving the implementation of the Olmstead decision and update this report pending permanent funding which NCSL is currently seeking.
Conclusion
At this point in time, it is too early to determine the full effects of the Olmstead decision. Every state is moving toward more home and community-based services, although some are moving faster than others. However, this study shows that most states are responding to the Olmstead decision by developing a plan, or appropriating more money toward home and community-based services, or in many cases are doing both.
The court's decision has caused providers, consumers, and state officials to come together with the shared commitment to provide more community-based services and reduce the waiting list for such services. It also has caused the federal government to revise its policies in this area and to offer states flexibility and funding for them to develop innovative solutions. At the same time, Several lawsuits have been filed or are pending in the states as a result of a lack of home and community-based alternatives. Olmstead implementation will take many years, and it involves not only health care but transportation, housing, education, and other social supports to fully intergrate people with disabilities into the least restrictive settings.
This study is a work in progress. Contact Wendy Fox-Grage at (202) 624-3571 or email at wendy.fox-grage@ncsl.org if the authors have incorrectly reported or inadvertently omitted certain Olmstead activities.
Any consumer, client or patient in any program or facility which is licensed or funded by the Department of Mental Health is guaranteed by law the following:
Reasonable access to a telephone to make and receive confidential telephone calls and to assistance when desired and necessary to implement such right;
To send and receive sealed, unopened, uncensored mail;
To receive visitors of such person's own choosing daily and in private, at reasonable times. Hours during which visitors may be received may be limited only to protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires of such person and the visitors of such person;
To a humane psychological and physical environment. Each such person shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting;
We have authorization to notify you of and post these law documents in the following links from the Mental Health Legal Advisors Committee
BASIC RIGHTS AT INPATIENT
MENTAL HEALTH FACILITIES
Many basic rights that people take for granted are not guaranteed for patients at inpatient mental health facilities. These rights should never be denied merely because you exercised a protected choice, such as refusing medication. Further, these rights should not be denied as punishment.
In addition to basic Constitutional rights, state law including The Five Fundamental Rights Act, (St. 1997 ch. 166 amending Mass. Gen. L ch. 123, § 23) protects the right to engage in some activities in programs and facilities operated by, licensed by or contracted with the Department of Mental Health (DMH). However, while some of those rights may be temporarily denied by the facility's superintendent, director, acting superintendent or acting director, other may never be denied.
I. YOU HAVE THE FOLLOWING RIGHTS:
Visitation*
Telephone*
*Note: The rights to have visitors or use the phone may be suspended only if there is a substantial risk of serious harm to you or others and less restrictive alternatives would be futile. Any suspension must be documented in your record and may last no longer than the time necessary to prevent the harm.
Access to Advocates
Privacy & Security
All programs must post a notice of these mail, visitation, telephone, access, and privacy rights "in appropriate and conspicuous places." The notice must be provided upon request and must be in a language "understandable" to the person.
Other Legal Rights
II. WHAT TO DO IF THESE RIGHTS ARE DENIED
If you believe that you were unfairly denied a basic right while at a program or facility operated by DMH, contracted for by DMH, or licensed by DMH, ask to speak with the Human Rights Officer. You may also file a written complaint with the Person in Charge of the program or facility. You can give your complaint to any facility employee; he or she must forward it to the Person in Charge. If you are dissatisfied with the response of the Person in Charge and believe that additional fact-finding should occur, you have 10 days to request reconsideration. You also may file an appeal to a higher level up to 10 days after receiving a decision. The person to whom the appeal is made depends upon the type of complaint and the type of facility about which the complaint is made. In most cases, you have the right to a further appeal, which must be filed within 10 days of receiving the appeal decision. If you have questions about the complaint process, contact the Human Rights Officer or the Mental Health Legal Advisors Committee (1-800-342-9092).
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
HOSPITALIZATION IN CONNECTION WITH A CRIMINAL CASE
Under Massachusetts General Laws Chapter 123, a court may order you to enter a hospital during some stages of a criminal proceeding. Evaluations and commitments should take place at a mental health facility, unless the judge specifically finds that the strict security of Bridgewater State Hospital (Bridgewater) is required.
- Sec. 15(b)
The criminal court may require a period of examination and observation at a mental health facility to determine whether you are competent to stand trial* and/or criminally responsible* * for the crimes with which you are charged. To make this determination, the court may order you hospitalized for 20 days, and for an additional 20 days if needed. You are strongly advised to speak with your attorney before you meet with hospital staff. During this period of observation, the hospital may petition the court for your involuntary commitment. You have a right to a commitment hearing at which you are represented by an attorney. In order to commit you, the judge must find, beyond a reasonable doubt, that you pose a present danger to yourself or others by virtue of a mental illness and that no less restrictive alternative is appropriate or available. The court initially may commit you for up to six months. Subsequent commitments, heard in district court at the hospital where you are located, are valid for one year.
- Sec. 15(e)
If you are found guilty of criminal charges, the criminal court may require an evaluation at a mental health facility for up to 40 days as an aid in sentencing. During this period of observation, the hospital may petition the court for your involuntary commitment. You have a right to a commitment hearing at which you are represented by an attorney. In order to commit you, the judge must find, beyond a reasonable doubt, that you pose a present danger to yourself or others by virtue of a mental illness and that no less restrictive alternative is appropriate or available. The court initially may commit you for up to six months. Subsequent commitments, heard in district court at the hospital where you are located, are valid for one year. If the court decides against recommitment and you have time remaining on your sentence, the hospital will return you to a correctional facility.
- Sec. 16(a)
If the criminal court finds you incompetent to stand trial or not guilty by reason of mental illness, it may order you hospitalized for examination and observation at a mental health facility. This hospitalization may last up to 40 days; however, total hospitalization under secs. 15(b) & 16(a) may not exceed 50 days.
- Secs. 16(b) & 16(c)
If you are found incompetent to stand trial or not criminally responsible, the hospital or the district attorney may petition the criminal court for your involuntary commitment. The hospital or district attorney must act either during the period of observation described under sec. 16(a) or within 60 days after you are found incompetent or not criminally responsible. You have a right to a commitment hearing at which you are represented by an attorney. In order to commit you, the judge must find, beyond a reasonable doubt, that you pose a present danger to yourself or others by virtue of a mental illness and that no less restrictive alternative is appropriate or available. The court initially may commit you for up to six months. Subsequent commitments, heard in district court at the hospital where you are located, are valid for one year. If you are committed after having been found not competent to stand trial, the criminal charges against you will be dismissed on the date you would have been eligible for parole had you been convicted.
- Sec. 16(e)
If the court commits you to a mental health facility under sec. 16(b), it may restrict your movements to the buildings and grounds of the facility. If the superintendent of the facility believes you no longer need to be restricted, she must inform the court which ordered the commitment. If the court fails to respond within 14 days, the restrictions must be removed. If the superintendent intends to discharge you, she must notify the criminal court and the district attorney. The district attorney has 30 days within which she can petition for your commitment. During these 30 days, you will be held at the facility.
-Sec. 18
If the head of a correctional facility believes that you, as a prisoner, are in need of hospitalization by reason of mental illness, she may have you evaluated. A copy of the report will be sent to the court. The court may then order you to be evaluated at a mental health facility or Bridgewater for up to 30 days. The mental health facility, Bridgewater, or the correctional facility may petition for your commitment. You have a right to a commitment hearing at which you are represented by an attorney. An initial commitment is valid for six months. Subsequent commitments, held at the hospital where you are located, are valid for one year. If the court decides against recommitment and you have not yet stood trial or have time remaining on your sentence, the hospital will return you to the correctional facility. Mental Health Legal Advisors Committee
JANUARY 31ST, 2005: THIS PAGE IS BEING REVISED, PLEASE CHECK BACK SOON.
VIII. FOR MORE INFORMATION ABOUT SOCIAL SECURITY AND REPRESENTATIVE PAYEES:
For information and legal advice regarding Social Security and representative payees, contact your local legal services office (the Legal Advocacy and Resource Center, at 617-742-9179, can give you the telephone number), the Disability Law Center (800-872-9992), the Center for Public Representation (413-584-1644 or 617-965-0776). For general information about disability issues, call the Mass. Network of Information Providers for People with Disabilities (800-642-0249) or the Mass. Office on Disability (800-322-2020).
Social Security has a toll-free number (800-772-1213) for information. It is good idea to write down the name of the person you speak to, the date and time you called, and what they said if you plan to rely on the information.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
RIGHTS REGARDING HOSPITAL PRIVILEGES
The Department of Mental Health (DMH) Patient Privileges Policy, #96-1, applies to adults and children at DMH operated inpatient facilities and at private inpatient units within state facilities. The policy also applies to any private inpatient facility which agrees by contract or other agreement with DMH to comply with it. This pamphlet describes the rights of patients in these facilities.
I. WHAT IS A PRIVILEGE?
A privilege is the level of freedom off the inpatient unit authorized for a patient. Privilege levels range from being restricted to the inpatient unit to being authorized to leave the buildings and grounds without escort for a specified period of time. Each inpatient facility must have a privilege policy, which is consistent with DMH Policy # 96-1 and provides a full range of privilege levels.
II. WHAT IS THE STANDARD FOR PRIVILEGES?
All patient privileges must be granted or withheld in a manner which provides the "most appropriate and least restrictive care and treatment consistent with safety, welfare, and legal rights of patients, staff and the public." Assignment of privilege level shall be based on the ability of the patient "to manage safely a given privilege level without unacceptable risk of serious harm to self or others."
Privileges may not be taken away as punishment. For example, privileges may not be withheld if a patient chooses to exercise his or her right to refuse treatment.
III. WHO DECIDES THE PRIVILEGE LEVEL?
The attending physician must assess the patient upon admission to determine the appropriate privilege level and must write an initial order regarding privileges. Within one business day following the initial order, not including Saturday, Sunday or holidays, the patient's attending physician, in consultation with the other members of the patient's treatment team, and input from the parent or guardian, will determine the privilege level. Privilege level must be determined with as much participation from the patient as possible. The attending physician must document in the patient's progress notes both the privilege level and the basis for its selection.
DMH Policy # 96-1 encourages the use of a point level system for child/adolescent patients to foster positive behaviors and support the patient in taking responsibility for his/her behaviors.
IV. HOW IS THE PRIVILEGE LEVEL DETERMINED?
The following factors must be considered in determining privilege levels:
The following factors must also be considered when determining privilege level for child or adolescent patients:
V. HOW DOES THE PRIVILEGE LEVEL CHANGE?
A patient's privilege level may only be changed after a review by the attending physician, in consultation with the treatment team. A change in the patient's privilege level will be made when necessary to meet the patient's individual needs. Adjustments to the patient's privilege categories must be considered at each treatment plan review, and, if necessary, more often. All changes in the patient's privilege level must be documented in the progress notes.
VI. MAY STAFF MAKE CHANGES TO A PATIENT'S PRIVILEGE LEVEL?
Professional staff members other than the attending physician, who have been designated by the facility, may make changes in a patient's privilege level when necessary for safety reasons. The attending physician, in consultation with the treatment team, must review all such changes, no later than the next business day.
VII. WHY WOULD STAFF SEEK A SPECIAL CLINICAL REVIEW?
A special clinical review is a review by the facility to ensure that the privileges granted to a patient do not contradict or violate the terms of any applicable court order confining the patient to the facility.
Upon the request of the treatment team, each DMH operated facility will arrange for a special clinical review of the decision to grant privileges. The special clinical review process varies amongst DMH operated facilities. A facility's Human Rights Officer should be able to explain that facility's process. All special clinical reviews must be completed within one week of the request except when special circumstances arise.
VIII. WHAT IF THE PATIENT IS HOSPITALIZED AS A RESULT OF A CRIMINAL CHARGE?
A court may order that a patient enters a hospital during several stages of a criminal proceeding. At all DMH-operated and contracted adult inpatient facilities, units and beds, there is an additional process that a patient must go through before gaining unsupervised privileges.
Pursuant to DMH's Mandatory Forensic Review Policy, #00-1, hospital treatment teams who seek to authorize
Must refer the patient to the DMH's Division of Forensic Mental Health for a mandatory forensic review of the team's decision if:
A final written report of the Forensic Consultant who conducted the review and the letter from the Senior Reviewer must be completed and sent to the treatment team within 25 business days of the referral completion date.
IX. HOW MAY A PATIENT REQUEST A CHANGE IN PRIVILEGE LEVEL?
A patient who wants to change his or her privilege level should first talk with the treatment team. The treatment team may consider a request for change during its regular treatment team meetings or during a periodic review. The patient should argue that he or she could safely manage a higher level of privileges without unacceptable risk of harm. If the patient is unable to negotiate a change with the treatment team, the following three options are available.
Special clinical review
A patient may request a special clinical review if he or she disagrees with a privilege decision. The patient may obtain help in this process from the Human Rights Officer or legal advocate.
Modifying or appealing the patient treatment plan
As the patient moves through various privilege levels, the attending physician documents in the treatment plan the criteria necessary for achieving the next privilege level. Thus, privilege level is influenced by language in the treatment plan. A patient has the right to reject part or all of the content of any treatment plan. A patient who is unhappy with his or her privilege level may seek to modify or appeal the treatment plan. Such an appeal must be filed within 30 days of the action or decision being appealed. For example, the patient should appeal within 30 days of being informed either orally or in writing of the privilege status. If the treatment plan is rejected, but an appeal is not filed in a timely manner, the treatment plan is considered to be accepted. To make the appeal, the patient must write a letter to the DMH Area Director describing the matter and the reason for appeal.
Complaint
The patient may make a formal written or oral complaint pursuant to DMH complaint process regulations. The complaint shall go to the Person in Charge of the facility in which the person is confined or to an employee of the facility, who shall forward the complaint to the Person in Charge. The complaint should explain how the current privilege level constitutes "a condition that he or she believes to be dangerous, illegal, or inhumane," the standard set out in the regulations.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
THE DMH COMPLAINT PROCESS
The Department of Mental Health (DMH) has a complaint process which applies to all programs and facilities operated by DMH, contracted for by DMH, or licensed by DMH.
I. WHO MAY FILE A DMH COMPLAINT?
Any individual (regardless of age or competence) may make a complaint, either verbally or in writing, to the Person in Charge or to any employee of a program or facility operated by DMH, contracted for by DMH, or licensed by DMH. An employee who is made aware of a complaint must provide the individual with a complaint form and, if the person requests, assist the person in completing the form. The Human Rights Officer (HRO) is also available to assist individuals in completing and filing written complaints.
II. WHAT TYPES OF EVENTS MAY A PERSON COMPLAIN ABOUT?
A complaint may be filed about an incident, condition or circumstance which is dangerous, illegal or inhumane. An incident, condition or circumstance is considered inhumane when it occurs without regard for an individual's dignity.
III. WHAT HAPPENS AFTER SUBMITTING A DMH COMPLAINT?
After a complaint is made, the Person in Charge shall determine whether the complaint should be handled within the facility or not, depending on the seriousness of the incident or condition.
A "Below the Line" Complaint
An incident or condition which is determined not to be serious is considered "below the line" and is investigated within the program or facility.
An "Above the Line" Complaint
An incident or condition which alleges medicolegal death, sexual assault or abuse, physical assault or abuse, attempted suicide resulting in serious physical injury, a felony, restraint or seclusion practices not in accordance with Department regulations which result in serious physical injuries or which is sufficiently serious or complicated as to require an investigation by the Office of Investigation will be considered "above the line." The Person in Charge must forward it to DMH's Central Office where it will be addressed as follows:
These complaints are forwarded to the DMH Office of Investigations. If another agency is already investigating the complaint, the Office of Investigations may let the other agency investigate, investigate on the other agency's behalf, or undertake a concurrent investigation. However, if the Office of Investigations does not agree that the complaint is sufficiently serious, it may refer the matter back to the Person in Charge to investigate as a "below the line" incident. The office will assign an investigator if it is undertaking the investigation.
These complaints are forwarded to the DMH Director of Licensing who will coordinate the investigation with the DMH Office of Investigations.
IV. WHAT DOES THE INVESTIGATOR DO?
All investigations must begin with an interview of the complainant, followed by an interview with the individual wronged, if the individual is not the complainant, and interviews with each person complained of. The investigation should also include interviews with each witness and other people, including family members, who may have information related to the complaint. The investigator will have 30 days (which may be extended for good cause) to conduct the investigation and file written findings of fact and conclusions with the Area Director, Assistant Commissioner for Child and Adolescent or Forensic Services (hereinafter, "Assistant Commissioner") or Director of Licensing, as applicable.
V. WHO WILL ISSUE A DECISION LETTER?
A "Below the Line" Complaint
Upon receiving the complaint, the Person in Charge of the program or facility must undertake the necessary fact-finding and provide a written decision to the parties within ten days containing findings of fact and conclusions and any actions to be taken.
An "Above the Line" Complaint
Upon receiving an investigation report, the Area Director or Assistant Commissioner has ten days to issue a decision letter.
Upon receiving an investigation report, the Director of Licensing has ten days to issue a decision.
VI. IS THERE A RIGHT TO RECONSIDERATION?
Any party to the complaint has the right to request reconsideration of the decision from the person who issued the decision. The party must request reconsideration in writing within ten days of receipt of the decision. The request must indicate the failure of the investigator to interview an essential witness or consider an important fact or factor. A final decision shall issue within ten days of receipt of the request for reconsideration. Reconsideration is not a prerequisite to a DMH client filing an appeal.
VII. IS THERE A RIGHT TO AN APPEAL?
All appeals must be filed in writing within ten days of receiving a decision.
A "Below the Line" Complaint
The DMH client may appeal the decision of the Person in Charge to the DMH Area Director or the DMH Assistant Commissioner.
The DMH client may appeal the decision of the Person in Charge to the DMH Director of Licensing.
The appeal decision shall issue within 30 days, unless further fact-finding is required, in which case the decision shall issue within 40 days of receiving the appeal.
An "Above the Line" Complaint
A DMH client may appeal the decision of the Area Director or Assistant Commissioner to the Deputy Commissioner for Program Operations (hereinafter, "Deputy Commissioner"). The Deputy Commissioner must issue a decision within 30 days of receiving the appeal.
A DMH client may appeal the Director of Licensing's decision to the DMH Commissioner. The Commissioner shall issue a decision within 30 days of receiving the appeal and it will be final.
V111. IS THERE A FURTHER APPEAL?
A "Below the Line" Complaint
A DMH client may appeal the decision of the Area Director or Assistant Commissioner to the Deputy Commissioner. The Deputy Commissioner shall issue a decision within 30 days of receiving the appeal and it will be final.
A DMH client may appeal the decision of the DMH Director of Licensing to the DMH Commissioner. The Commissioner shall issue a decision within 30 days of receiving the appeal and it will be final.
An "Above the Line" Complaint
A DMH client may appeal the Deputy Commissioner's decision to the DMH Commissioner. The Commissioner shall issue a decision within 30 days of receiving the appeal and it will be final.
There is no further appeal.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
THE RIGHTS OF ADULTS
TO MOVE FREELY ON A HOSPITAL WARD
Staff have a number of methods to limit the movement of adult patients on a hospital ward. Some of these methods require patient consent, others do not if you are not sure if you have been properly restricted, ask to speak to the Human Rights Officer.
I. ROOM PLAN
A room plan is a form of treatment in which a schedule is created which dictates when a patient shall spend time in and out of a room on the ward, such as a bedroom. The schedule typically changes over the course of days if the patient abides by the plan, the time spent in the room gradually decreased and the time spent on the ward increased. The goal of a room plan is to cautiously bring a patient into life on the ward, while maintaining behavior that meets staff standards. Because a room plan is a form of treatment, it can only be used with the consent of the patient (if competent to consent) or a guardian (with the authority to consent to a room plan). Also, like other forms of treatment, it must be terminated if the patient withdraws consent.
II. QUIET ROOM
The quiet room is a room, usually empty, to which a patient goes to experience time away from staff and other patients. Use of the quiet room is voluntary and may not be ordered by staff. While staff may suggest or even encourage a patient to use the quiet room, the patient may refuse such a request. A patient has the right to leave the quiet room at any time.
III. SECLUSION
Seclusion is the placement of a patient alone in a room or enclosed space so that:
While seclusion does not require patient consent, staff may only place a patient in seclusion in an emergency, such as the occurrence of or serious imminent threat of extreme violence or self-destructive behavior. Seclusion may be used only when less restrictive alternatives have failed or are not possible. When the patient no longer meets the standard for seclusion, he or she must be released.
IV. OTHER RESTRICTIONS OF MOVEMENT ON A WARD
At some facilities, staff limit the movement of patients on a ward through the use of other restrictions. A patient might be restricted to the day hall, male or female end of the ward, or other common areas. The hospital may have a policy which outlines when such restrictions may be used and who must approve their use. Furthermore, unless the areas to which the patient is restricted are available to and shared by other patients, such restrictions may constitute seclusion and require an emergency prior to imposition absent patient consent.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
RIGHTS IN HOSPITALS REGARDING
RESTRAINT AND SECLUSION
Hospitals may use restraint and seclusion only in cases of emergency and in compliance with strict standards. Additional requirements, not included here, apply when restraining children.
I. WHAT IS RESTRAINT?
"Restraint" is physical force, mechanical devices, chemicals, seclusion, or any other means which unreasonably limit freedom of movement. Hospital staff may use four types of restraint to restrict patients who are acting, or threatening to act, in a violent way towards themselves or others.
Holding a patient in a way that restricts his or her movement.
Using a device, such as four-point or full-sheet restraint, to restrict a patient's movement (excludes devices prescribed for medical purposes).
Medicating a patient against the patient's will for the purpose of restraint rather than treatment.
Placing a patient alone in a room so that the patient cannot see or speak with patients or staff and so that the patient cannot leave or believes he or she cannot leave. In facilities licensed, operated, or contracted for by the state Department of Mental Health (DMH), a mechanically restrained patient cannot be secluded.
II. WHEN MAY RESTRAINT BE USED?
Restraint may only be used to prevent violence in an emergency. An emergency is the occurrence of or serious imminent threat of extreme violence or self-destructive behavior, "where there is the present ability to effect such harm." Restraint may not be used for treatment, punishment, behavior modification, staff convenience or on an "as needed" basis (PRN orders). Restraint must be the most appropriate alternative available. Restraint may only be used when less restrictive interventions have been determined to be ineffective.
III. WHO MAY ORDER RESTRAINT?
Mechanical restraint, physical restraint and seclusion require written orders by an authorized physician or other licensed independent practitioner permitted by the state and hospital to order a restraint. If the physician or other qualified practitioner is unavailable, a designated staff person may authorize restraint for no more than one hour. A physician or other licensed independent practitioner must see and evaluate the need for restraint or seclusion within one hour after the initiation of the intervention. These orders may be renewed only to prevent a continued or renewed emergency. Only an authorized physician may order chemical restraint, but he or she may issue the order over the telephone by speaking to a registered nurse or certified physician's assistant who has personally examined the patient. A physician may only order chemical restraint if the medication has been previously authorized in the patient's treatment plan. Furthermore, chemical restraint may only be administered if it is the least restrictive, most appropriate alternative available. The treating physician must be consulted as soon as possible, if he or she does not order the restraint.
IV. HOW LONG MAY RESTRAINT CONTINUE?
When an emergency no longer exists, the patient must be released. Thus, staff should release a patient who, upon examination, appears calm. The total time which a patient
may be restrained is limited.
V. WHAT FURTHER PROTECTIONS EXIST FOR RESTRAINED PATIENTS?
A patient in a facility operated by DMH, contracted for by DMH, or licensed by DMH has additional rights:
Furthermore, a patient in a DMH-operated facility has these additional rights:
without a break unless he or she poses a violent threat to self or others (or is asleep);
VI. WHAT ARE THE OBSERVATIONAL REQUIREMENTS FOR RESTRAINT?
When a patient is restrained or secluded, a specially trained person must be able to observe the patient. The condition of the patient in restraint must continually be assessed, monitored, and re-evaluated.
During seclusion, the observer may be immediately outside the patient's room--provided that the patient can fully see staff and staff can continuously observe the patient.
All staff who have direct patient contact must have ongoing education and training in the proper and safe use of restraint application and techniques and alternative methods for handling behavior, symptoms, and situations that traditionally have been treated through the use of restraints.
In facilities licensed, operated, or contracted for by DMH, staff must check a patient in mechanical restraint or seclusion every 15 minutes for comfort, body alignment and circulation.
VII. WHAT DOCUMENTATION IS NECESSARY FOR RESTRAINT?
VIII. WHAT SHOULD YOU DO IF YOU BELIEVE YOU HAVE BEEN ILLEGALLY RESTRAINED?
If you believe that you were illegally restrained while at a program or facility operated
by, contracted for, or licensed by DMH, ask to speak with the Human Rights Officer. You may also file a written complaint with the Person in Charge of the program or facility. You can give your complaint to any facility employee; he or she must forward it to the Person in Charge. If you are dissatisfied with the response of the Person in Charge and believe that additional fact-finding should occur, you have 10 days to request reconsideration. You also may file an appeal to a higher level up to 10 days after receiving a decision. The person to whom the appeal is made depends upon the type of complaint and the type of facility. In most cases, you have the right to a further appeal, which must be filed within 10 days of receiving the appeal decision. If you have questions about the complaint process, contact the Human Rights Officer or the Mental Health Legal Advisors Committee (1-800-342-9092).
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
YOUR RIGHTS REGARDING ACCESS TO
MENTAL HEALTH RECORDS
An individual has a right to confidentiality with respect to his or her own mental health records. This right of confidentiality provides that, in most cases, only the individual, his or her guardian, and the individual's treatment providers may know the content of the record. However, whether or not an individual has the right to access his or her own records depends on what laws are applicable.
I. LAWS GOVERNING THE RELEASE OF RECORDS
Inpatient facilities operated, by the Department of Mental Health (DMH), contracted for by DMH, or licensed by DMH and Intensive Residential Treatment Programs (IRTPs)
At mental health inpatient facilities operated by DMH, contracted for by DMH, or licensed by DMH and at IRTPs for adolescents, patient access to and release of medical records are governed by a state law and corresponding DMH regulations. In certain cases, DMH policy and guidelines also apply.
An individual or guardian has a right to "inspect" the individual's mental health record, unless the DMH Commissioner or designee has determined that inspection will result in "serious harm" to the individual. An individual has a right to obtain a copy of the record when it is in the individual's "best interest." The DMH regulations list certain circumstances in which the best interest standard is automatically met. They include the following:
The expectation of DMH is that: "In most instances, individuals should be permitted to review their records and/or obtain a copy."
For DMH operated inpatient facilities, private inpatient units located within a DMH operated facility, and any private inpatient facility which has contracted with DMH to follow a recent DMH policy regarding patient rights, DMH provides further direction regarding the "best interest" analysis. For these facilities, DMH defines disclosure as being in the individual's "best interest" unless:
The facility's chief executive officer or designee must review all decisions to deny disclosure.
Community programs operated by DMH, contracted for by DMH, or licensed by DMH
At community programs operated, by DMH, contracted for by DMH, or licensed by DMH, access to and release of mental health records is governed by DMH regulation. This regulation provides an individual the absolute right to inspect and copy the record upon request.
Residential programs licensed by the Office of Child Care Services (OCCS)
An individual may be able to access the records kept by a residential program licensed by OCCS (formerly the Office for Children). Such programs must have written procedures regarding access to the record by the resident (taking into account the resident's capacity to understand), parent(s), persons other than the parent who has custody, and persons not directly related to the service plan. The procedures must identify the person or persons, if any, whose consent is required before information in the resident's record may be released.
Facilities operated or licensed by DPH
An individual receiving inpatient or outpatient services at hospitals or clinics operated or licensed by the Department of Public Health (DPH) (and not operated or licensed by DMH) has a right to access his or her records. These facilities must allow the individual to inspect and copy their mental health records; there is no "best interest" standard. There is one exception to the right of an individual to access records under DPH law: when the records have been generated by a psychotherapist. This exception is described in the following section, entitled "Other health care providers."
Other health care providers
An individual receiving services from a health care provider, other than those providers who fall into any of the above categories, has a right to access his or her entire record. The individual's "authorized representative" is also entitled to the record. One exception exists to this general rule: a psychotherapist may prohibit access to that portion of the mental health record generated by the psychotherapist, if the psychotherapist believes that access to those specific records would "adversely affect the patient's well-being." If a psychotherapist limits access, he or she must provide the individual with a summary of the psychotherapy records. However, the psychotherapist must provide the entire record to the individual's attorney or to another psychotherapist if the individual consents to its release.
II. REQUESTING A RECORD AND CHALLENGING THE DENIAL
OF A REQUEST FOR RECORDS
Requests for mental health records should be made in writing to the appropriate body, as outlined below. If an individual believes that a request for a copy of the records has been improperly denied, he or she may seek review of that decision. The individual should make all requests and subsequent contacts in writing and keep copies of all correspondence.
Inpatient facilities operated, funded, or licensed by DMH and IRTPs
An individual may request a record from an inpatient facility operated by DMH, contracted for by DMH, or licensed by DMH or an IRTP by writing to the facility director, who shall be the DMH Commissioner's designee to determine whether access to records is appropriate. If the facility director denies the request, the individual may appeal the decision to the DMH Commissioner. The Commissioner may be reached at 25 Staniford Street, Boston, MA 02114, (617) 626-8000.
Community programs operated, licensed, or funded by DMH
An individual may request a record from a community program operated by DMH, contracted for by DMH, or licensed by DMH by writing to the program director. If the program director denies the request, the individual should appeal the decision to the DMH Commissioner. The Commissioner may be reached at 25 Staniford Street, Boston, MA 02114, (617) 626-8000.
Residential program licensed by OCCS
An individual may request a record from OCCS licensed residential program by writing to that person designated in the program's procedures. If the request is denied, the individual may seek a remedy pursuant to the program's procedures or file a complaint with the OCCS Regional Director for the region within which the program is located.
Facilities operated or licensed by DPH
An individual may request a record from a facility operated or licensed by DPH by writing to the head of the facility. If the request is denied, the individual may file a complaint with the DPH Division of Health Care Quality, 10 West Street, 5th Floor, Boston, MA 02111, (617) 727-5860.
Other health care providers
An individual may request a record from a health care provider by writing to that provider directly. If the request is denied, the individual should seek legal advice. The individual may also file a complaint with the division of the Board of Registration which licenses that provider.
III. FEES FOR COPYING
Facilities and providers supplying copies of an individual's mental health record are entitled to charge a reasonable fee. Inpatient facilities licensed by DPH or DMH may charge no more than the actual cost of copying. By department regulation, the same standard applies to community programs licensed or contracted for by DMH.
Facilities and providers may waive the fee in special circumstances, such as when an individual cannot afford to pay. If the records are needed to support a claim or appeal under any provision of the Social Security Act or any federal or state needs-based benefit program, such as SSI, SSDI, EAEDC, or Medicare, a hospital licensed by the DPH or supported by the Commonwealth to any degree may not charge a fee for copying.
IV. AMENDING THE RECORD
While an individual may not delete information in his or her mental health record, in certain cases he or she may add information. Under Massachusetts law, agencies of the executive branch of government, such as DMH, are considered "holders . . . of personal data" and must allow an individual to correct or amend his or her record when the individual so requests. If the holder and the individual disagree as to whether a change should be made, the holder must ensure that the individual claim is noted and included as part of the individual's record and included in any subsequent disclosure or dissemination of the record. Thus, DMH operated inpatient facilities and community programs, and DPH operated facilities, must accept an individual's additions to the record and include them whenever forwarding the record.
Other kinds of "holders . . .of personal data" must also allow an individual to correct or amend his or her mental health record. If a facility has a contract or arrangement with one of the agencies covered by this law, the facility is considered a "holder" of those records which the facility maintains because of the contract or arrangement. Thus, many of the types of records discussed in this brochure could be amended by the individual including those held at DMH licensed or contract inpatient facilities and community programs, IRTPs, OCCS licensed group care facilities, and DPH licensed facilities.
Further, facilities and programs operated, by DMH, contracted for by DMH, or licensed by DMH must allow for information to be added to an individual's inpatient record. Inpatient facilities are required to include in the individual's record, among other information, "any other information deemed necessary and significant to the care and treatment of the patient." Community programs are required to maintain records containing "accurate, complete, timely, pertinent and relevant information. If an individual or legally authorized representative believes that the record contains inaccurate or misleading information, he or she may prepare with assistance, if requested, a statement of disagreement which shall be entered in the record."
When amending his or her record, an individual should request that the additional information be placed next to the material in the record which he or she seeks to modify or correct. This request is important as medical records are often extensive and a letter of correction could easily be buried in the stack of papers.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
RIGHTS REGARDING TREATMENT PLANS
FOR DEPARTMENT OF MENTAL HEALTH
CONTINUING CARE SERVICES
A treatment plan determines the services you receive from a facility or program. This pamphlet discusses treatment plans for continuing care services which are operated by, or provided through contract with, the Department of Mental Health (DMH). This pamphlet discusses both individual service plans (ISPs) and program specific treatment plans (treatment plans). An ISP describes the range of services the individual receives from all providers, while a treatment plan identifies the specific services provided by a particular facility or program.
I. ELIGIBILITY FOR DMH CONTINUING CARE SERVICES
Individuals have the right to an ISP when they are eligible for DMH continuing care services and some or all of the services they need are available. DMH continuing care services are community-based services contracted for or operated by DMH; they do not include services of brief duration, outpatient services, court evaluations, or acute mental health services, such as crisis intervention or emergency screening.
II. ISP MEETING
As soon as an individual is determined eligible, DMH will assign a case manager. Within 20 days, the case manager must formally assess the individual’s service needs. Within 10 days of completing this assessment, the case manager must convene a meeting to prepare an ISP. The case manager must invite the client, any legally authorized representatives of the client, current and potential service providers, DMH staff, and anyone else, including family members, whom the client or their representative requests be invited. Each service provider who will administer DMH continuing care services must submit a written treatment plan to the case manager no more than 20 days after this initial ISP meeting.
III. THE ISP
The case manager must prepare a written ISP within 25 days of the initial ISP meeting, and include the treatment plans prepared by the service providers. An ISP must be individualized, identifying the client’s goals, strengths, and needs, as well as all DMH services and programs that address those needs. Services identified in the ISP, to the greatest extent possible, must be consistent with the client’s preferences, and provided in the least restrictive setting.
IV. TREATMENT PLANS
Treatment plans included in the ISP should be based on information gathered during the application process as well as the assessment of service needs. These plans must include both long and short-term treatment objectives (including the criteria and a timeline for gauging achievement), as well as the specific treatment modalities that will be used.
DMH regulations include additional requirements regarding treatment plans specific to the type of facility or program.
V. ACCEPTING OR REJECTING THE ISP
Once the ISP is complete, the case manager sends it to the client or the client’s legally authorized representative for acceptance or rejection. If the client or the client’s legally authorized representative fails to object to the ISP within 20 days of receipt, the plan is considered accepted. The ISP will be implemented as soon as it is accepted. The client or the client's legally authorized representative may reject all or part of the ISP, in which case the case manage must provide notice within five days of the right to meet and discuss potential modifications to the plan. If that meeting fails to yield an agreement, the client has the right to appeal the ISP. The appeal may be filed by the client, a legally authorized representative, or if one does not exist, a person designated by the client to act as a representative. If portions of the ISP are accepted, they may be implemented (when appropriate) even when an appeal is pending on other portions.
VI. APPEALING THE ISP
Some issues that may be brought up on appeal include:
An appeal is filed by submitting a written statement to the DMH Area Director, indicating the issue being appealed and the basis for the appeal. An appeal must be filed within 30 days; however, the Area Director may accept an appeal after 30 days for good cause.
Within 20 days after an appeal is filed, the Area Director or a designee will hold an informal conference with the client, their legally authorized representative (if any), the case manager, the program director (if appropriate), and other invited persons. If this conference fails to yield a resolution, the Area Director or designee will identify both the issues of fact that are not in dispute and those that remain the subject of the appeal. The Commissioner (or a designee) may waive this informal conference if the appealing party agrees to do so.
VII. HEARING
If the issue remains unresolved, within 10 days of the conference or its waiver the client may petition the Commissioner or designee for a hearing. Within 10 days of that petition, the Commissioner must appoint a hearing officer, who will schedule a hearing date that is agreeable to the parties. The hearing must be consistent with Massachusetts statutes, including chapter 30A of the Massachusetts General Laws, DMH regulations, and the state's informal fair hearing rules. The hearing officer must issue a written decision within 20 days of the close of the hearing. The parties have the right to petition for re-hearing or to appeal the decision (of either a hearing or a re-hearing) to the Superior Court. Appeals to the Superior Court must be filed within 30 days of the receipt of the decision of a hearing or a re-hearing.
VIII. RE-HEARING
A petition for re-hearing may be made on the following grounds:
Throughout the appeal process, DMH has the burden of showing that its proposed plan is the most appropriate in the circumstances. The standard of proof on all issues is a preponderance of the evidence. This means that if the client can show that it is more likely than not that the evidence supports a different plan, he or she should prevail on appeal (whether it is at the hearing, re-hearing, or Superior Court level).
The portions of an ISP that are in controversy will not be implemented during the appeal process, even if the proposal is for the modification or termination of an existing plan. However, in an emergency, or when necessary to comply with state contracting requirements, an existing treatment plan may be modified without the consent of the individual or his or her legal guardian. The emergency must pose a serious threat to the health, mental health, or safety of the client or others in order to make such a modification allowable.
IX. PERIODIC REVIEW OF TREATMENT PLANS
Massachusetts statute and DMH regulations require the periodic review of treatment plans:
Periodic reviews for individuals within the care of DMH must include, but are not necessarily limited to:
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
YOUR RIGHTS REGARDING
HOSPITALIZATION AND DISCHARGE
Massachusetts General Laws Chapter 123 provides individuals with certain rights regarding hospitalization and discharge. Your rights regarding admission to and discharge from a hospital depend on your legal status. If you are at a hospital, you can ask staff for information about your status.
I. EMERGENCY ADMISSIONS: "THE PINK PAPER" ("SECTION 12")
In Massachusetts, any individual may be forcibly admitted to a facility for up to four business days. The application for this kind of admission, called an "Application for Temporary Hospitalization" is known by several names, including an "emergency admission," a "pink paper," or a "Section 12."
A physician, qualified psychiatric nurse, qualified psychologist, or police officer may apply to admit anyone to a facility for up to four business days if he or she believes that, without hospitalization, the person would "create a likelihood of serious harm by reason of mental illness." "Likelihood of serious harm" means one of three things:
If an examination of the individual is not possible because of the emergency nature of the case or because the person refuses to consent to such examination, a doctor, qualified psychologist, or psychiatric nurse does not even need to see the person before signing the Application for Temporary Hospitalization. He or she may rely instead on whatever facts and circumstances have come to his or her attention. If none of those three medical professionals is available, then a police officer is allowed to make the application without an examination. Since the law does not say what "facts or circumstances" might be considered relevant, a mental health clinician may have considerable leeway in making the decision.
Following this procedure, an individual may be admitted to a psychiatric facility without a court hearing and against his or her will for up to four business days, provided that a physician designated by the hospital has examined the person and signed the admission papers. If the paper is signed either by a physician who is not designated by the hospital, by a qualified psychologist, by a qualified psychiatric nurse, or by a police officer, it is considered only an application for hospitalization; a designated physician at the facility must still actually admit the person.
At the time of admission, the hospital must inform each individual that the facility will, upon the person's request, notify the state public defender agency, the Committee for Public Counsel Services (CPCS), of the admission. In those cases in which the hospital notifies CPCS, CPCS will "forthwith" appoint an attorney to meet with and, unless the person voluntarily and knowingly declines assistance, represent the person.
Additionally, if the confined person believes that "an abuse or misuse" of the admission process has occurred, the person or his or her counsel may seek emergency judicial review in district court. Unless the individual seeks a delay, the hearing must be held no later than the next business day after the request for the hearing.
At any time during these four business days, the hospital may: 1) discharge you if it determines that you are not in need of care and treatment; or 2) petition the district court for involuntary commitment. At any time during the four days, you may: 1) change your status to that of a conditional voluntary patient; or 2) seek emergency judicial review in district court (discussed above).
II. VOLUNTARY ADMISSIONS
If you admit yourself to a hospital as a voluntary patient, your status is totally voluntary and may be terminated by you or the hospital at any time. Nevertheless, the hospital may restrict your right to leave to normal working hours and weekdays. Although the law allows for voluntary admissions, in practice hospitals rarely offer them. When facility staff describe a patient as "voluntary," typically they mean that the patient has "conditional voluntary" status.
III. CONDITIONAL VOLUNTARY ADMISSIONS ("10 & 11")
If the hospital considers you competent to make the decision, you may apply for conditional voluntary admission status. As a conditional voluntary patient, you remain on this status at the hospital indefinitely, until the hospital decides to discharge you or you ask to leave by filing a "three day notice."
Signing into the Hospital as a Conditional Voluntary Patient
Before signing in as a conditional voluntary patient, you must be given the opportunity to consult with an attorney or legal advocate.
A facility may accept an application for conditional voluntary admission only if, upon assessment by the admitting or treating physician, the physician determines that the person understands the conditional voluntary admission process.
By signing a conditional voluntary admission, you forfeit certain rights:
The Three Day Notice
You may at any time submit a written notice to the hospital of your intent to leave. During these three days you may be held at the hospital while the staff evaluates your clinical progress and suitability for discharge. You may not be held against your will for longer than three days unless, prior to the end of the third day, the hospital petitions for your commitment. Saturdays, Sundays and legal holidays are excluded from the calculation of the three days.
Practical advice: In deciding whether to submit your three day notice you may want to consult with your physician about your discharge plan and timetable for release. You may be able to negotiate an agreeable date for discharge. You may want to ask if the hospital would petition for your commitment were you to submit a three day notice.
IV. CIVIL COMMITMENT ("7 & 8")
Your Rights
If a hospital petitions the district court for your involuntary commitment, you have certain rights:
Notice
The Hearing
At any time prior to the hearing the hospital may withdraw the commitment petition if:
To commit you, the judge must find, beyond a reasonable doubt, that you pose a present danger to yourself or others by virtue of a mental illness and that no less restrictive alternative is appropriate or available. If this standard is not met, the hospital must discharge you. The judge must issue a decision within ten days unless she provides written reasons for the delay.
Length of Commitment
The first commitment is valid for six months; subsequent commitments for 12 months. During your commitment, if the hospital determines that you no longer need treatment and care, it must discharge you. Prior to the end of each commitment period, the hospital must file a new petition in order to continue holding you involuntarily.
V. DISCHARGE UNDER CIVIL COMMITMENT
If you are involuntarily committed, your options for discharge are limited to judicial and administrative reviews.
Judicial Review
The 9(a) Appeal of a Commitment Order
You may request with the appellate division of the district court a review of matters of law arising in commitment hearings. You must claim that an error of law occurred regarding the prior hearing (for example, the judge improperly allowed a witness to be qualified as an expert). Using this method to obtain your discharge has drawbacks: it usually requires an attorney's help, is a slow process, and is an uphill battle. Regardless of the outcome of the appeal, you are likely to be confined for several months before it is heard.
The 9(b) Application for Discharge.
Any person may petition for a patient's discharge by applying in writing to a superior court. This application may be filed at any time and in any county and must state that the person named is improperly or unnecessarily retained.
Within seven days of receiving the petition, the superior court must notify the hospital and other interested persons (your physician, spouse or family) of the time and place of the hearing. The hearing must be held promptly before a superior court judge. The court will appoint an attorney to represent you if you cannot afford one. If the judge determines that you do not presently meet the commitment standard, you must be discharged.
Practical Advice: You may file the application at any time following your commitment. Ask the attorney who represented you in your district court commitment hearing to file the paperwork for the 9(b) proceeding in the superior court; he or she is required to initiate this proceeding upon your request. The superior court will then appoint a new attorney to handle your 9(b) proceeding. Because you will have the burden in this proceeding of proving that you do not need hospitalization, it is usually helpful to enlist an expert to conduct an evaluation of you and to testify on your behalf. Your attorney may request funds from the court to pay for this evaluation.
Administrative Review
Discretionary Discharge by the Facility
The hospital must discharge you when, in the hospital staff's opinion, you no longer need inpatient care. Therefore, you need not necessarily be confined for the full term of your commitment order.
Periodic Review by the Facility
The hospital must review your status at least once during the first three months of commitment, once during the second three months, and annually thereafter. The review must include a consideration of all possible alternatives to continued hospitalization. If you are found no longer to need hospitalization, you must be discharged. Both you and your nearest relative or guardian have a right to advance notice of the review, as well as the right to attend and participate.
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
YOUR RIGHTS REGARDING MEDICATION
Massachusetts law protects your right to decide your course of treatment and, more specifically, to refuse medication. You have this right whether you are receiving inpatient or outpatient treatment, voluntarily or involuntarily hospitalized, in a public or private setting, or in a mental health or mental retardation facility.
I. INFORMED CONSENT
Before administering any type of treatment, including medication, your physician must obtain your informed consent. Harnish v. Children's Hospital Medical Center, 387 Mass. 152, 154-155 (1982).
In order to exercise informed consent, you must be told in terms you can understand:
See Harnish at 155, ("We hold, therefore, that a physician's failure to divulge in a REASONABLE manner to a competent adult patient...")(emphasis added).
Harnish at 156. Further, if you are in a facility that is operated or funded by the Department of Mental Health, your doctor must:
The fact that you have been admitted or committed to a mental health or retardation facility does not mean that you are incompetent to give or withhold consent. To the contrary, in Massachusetts, an adult is presumed competent to make his or her own decisions regarding antipsychotic medication until he or she is proven incompetent to do so in court.Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489, 497 (1983).
Neither your doctor nor the staff may threaten or punish you for refusing to consent to treatment.Jones v. U.S., 463 U.S. 354, 369 (1983). The hospital may not deny you privileges because you refuse to take medication.
II. EXCEPTIONS TO INFORMED CONSENT
The law recognizes only two situations in which your informed consent to treatment is not required: incompetency and emergency.
Incompetency
When your physician believes that you do not understand the nature of your illness or the proposed treatment, she may conclude that you are not competent to make your own treatment decisions, and, therefore, that she may not legally treat you on the basis of your consent. The only consideration for competency should be whether or not you are able to make or communicate informed decisions. The physician's opinion must not be based upon her belief that you made a "bad" treatment decision. Rogers, 390 Mass. at 500.
Rogers Hearings
When a doctor believes you are incompetent, she may initiate a guardianship proceeding, popularly called a Rogershearing. Rogers, 390 Mass. at 497.
At this court proceeding you have the right to be represented by an attorney, and, if you cannot afford an attorney, the court will appoint one for you. M.G.L. c. 201 s. 6(c) The court shall authorize treatment with antipsychotic medication only if:
Probate Court Rogers and District Court Rogers
Probate Court Rogers hearings are commenced in probate court. The statute governing probate court Rogers guardianships does not establish a time period for the duration of the guardianship.M.G.L. c. 201 s. 6 The Supreme Judicial Court, however, has ruled that all probate court Rogers orders must provide for periodic review and include a termination date.Guardianship of Weedon, 409 Mass. 196 (1991). You may file a petition with the probate court at any time for termination of the guardianship.
District Court Rogers hearings are commenced in district court. They may be initiated only when you are hospitalized and the subject of a petition for commitment. The petition for guardianship with authority to administer antipsychotic drugs is separate from the commitment proceeding and the court may consider it only after the judge issues an order for your commitment. A district court guardianship expires at the end of your commitment. You may petition the court at any time for termination of the medical treatment authorization. M.G.L. c. 123 s. 9(b)
Emergency
Absent a court-ordered Rogers guardianship you may be medicated against your will in only two emergency situations: to prevent violence against yourself or others or to prevent irreversible medical damage to yourself.
Chemical Restraint
A physician may authorize the use of chemical restraint to prevent violence in an emergency situation "such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide." M.G.L. c. 123 s. 21
Emergency Psychiatric Treatment
If your doctor believes that you have a serious mental illness, you are incompetent, and an "immediate, substantial, and irreversible deterioration" of your medical condition will occur unless you receive the medication, she may administer a single treatment of medication without your consent. However, this emergency treatment cannot continue without a judge's authorization.Rogers, 390 Mass. at 511-12.
III. HEALTH CARE PROXY
In 1990, Massachusetts enacted the Health Care Proxy law. The proxy allows you to choose, while competent, a trusted relative or friend to make medical treatment decisions for you if, and when, you are no longer competent to do so. The proxy only takes effect after your doctor determines that you lack the capacity to make decisions about your course of treatment.M.G.L. c. 201D A health care proxy may negate the need for future substituted judgment determinations by a court.
IV. WHAT TO DO IF YOU HAVE BEEN ILLEGALLY MEDICATED
If you believe that you have been illegally medicated while at a program or facility operated by DMH, contracted for by DMH, or licensed by DMH, ask to speak with the Human Rights Officer. You may also file a written complaint with the Person in Charge of the program or facility. You may give your complaint to any facility employee; he or she must forward it to the Person in Charge. If you are dissatisfied with the response of the Person in Charge and believe that additional fact-finding should occur, you have 10 days to request reconsideration. You also may file an appeal to a higher level up to 10 days after receiving a decision. In most cases, you have the right to a further appeal, which must be filed within 10 days of receiving the appeal decision. If you have questions about the complaint process, contact the Human Rights Officer or the Mental Health Legal Advisors Committee (1-800-342-9092).
YOUR RIGHTS UNDER THE
COMMUNITY RESIDENCE TENANCY LAW
WHAT DOES THE COMMUNITY RESIDENCE TENANCY (CRT) LAW DO?
The CRT law, Chapter 237 of the Acts of 2002: (1) clarifies who in Department of Mental Health (DMH) community housing is entitled to regular summary process eviction proceedings in court; and (2) establishes procedures which must be followed prior to removing those DMH clients who are not entitled to summary process.
WHO HAS A RIGHT TO THE EXISTING SUMMARY PROCESS?
A person has a right to summary process if he or she is a client living in a community residence operated by DMH, contracted for by DMH, or licensed by DMH and: (1) is a lawful housing occupant who is a client in a program of residential care and services; (2) receives from the program care and services in a housing unit equipped with a kitchen and bathroom; and (3) occupies the unit either alone or with the occupant's family, as defined in the regulations of the department.
WHO HAS A RIGHT TO THE NEW ADMINISTRATIVE DUE PROCESS
PROTECTIONS OF THE CRT LAW?
Every occupant in a community residence operated by DMH, contracted for by DMH, or licensed by DMH who does not qualify for summary process is entitled to the due process protections of the CRT law.
WHAT ARE THE NEW DUE PROCESS PROTECTIONS OF THE LAW?
Mental Health Legal Advisors Committee
294 Washington Street, Suite 320
Boston, MA 02108
(617) 338-2345
(800) 342-9092
Intake Hours: Monday & Wednesday 10:00 a.m. to 1:00 p.m.
A major portion of the work we do involves training. We conduct several "core" trainings for consumers and providers, and we develop new ones as the needs, resources, interests and concerns of our community evolve. Please click on the links below for descriptions of our current trainings.
this project is in the process of being revised. updates will be posted as information becomes available. check this site or call 617-442-4111 (toll free 877-769-7693) for the latest news on this training.
At M-POWER, we envision a world where discrimination is a thing of the past, where all human beings are treated with the respect they are entitled to, where all people live lives that have meaning and dignity.
We believe that advocacy (done with, not for), is the key which opens the door to that world.
Dr. Martin Luther King Jr. said,
“Injustice anywhere is a threat to justice everywhere.”
The Peer Advocacy Training uses the collective experience of mental health consumers to move the mental health system and the larger community toward justice and inclusion.
Peer Advocacy trainees learn about the history of the consumer/survivor/ex-patient movement, the service & benefits systems we encounter, and how to effectively influence and access those systems for all members of our community.
M-POWER’s Peer Advocacy Training involves:
Sixteen weeks of day-long classes
Six months of community service internship
Opportunities to give and get support and make changes
The training experience is dynamic, challenging, and fun. Classes include training on many topics and skill areas, including public speaking, rights, laws, benefits, negotiation, and working with the media. Students are assigned homework each week. The experience is both demanding and rewarding.
If you share our mission to unite and strengthen the voices of consumers across the state and in our communities, please call for information about applying for the Peer Advocacy Training.
updated 12/07
Merging Clinical & Recovery-Oriented Cultures: A Plan for Action
Beginning in the spring of 2001 the Massachusetts Behavioral Health Partnership and M-POWER, Inc collaborated to offer network service provider sites the opportunity to host trainings. The series focuses on helping sites develop practical Action Steps for increasing recovery orientation. We use Core Readings to focus attention on organizational “culture merging” and on a growing body of evidence that persons with psychiatric disabilities, even those most severely ill, do recover. Cultures that are person-centered, recovery oriented and hopeful are important.
Core Readings include:
This is An Opportunity to:
Contact the MPOWER office at 617-442-4111, or at info@m-power.org for the status of this project.
updated 12/07
Information on WRAP is being updated. Please check back soon.
For current information, please call the MPOWER office at 617-442-4111, or email: info@m-power.org.
Who?
The Voter Education Project was comprised of a core group of consumers/survivors who were interested in developing a consumer/survivor voice in the political process. Through its members’ diverse perspectives and experiences, the Voter Education Project group reflects the challenges faced by a spectrum of consumers/survivors.
What?
Concerned with the absence of the consumer/survivor perspective, the Voter Education Project team strives to develop a powerful voice in the political process, and aimed to foster the development of individual members’ skill sets. The Voter Education Project worked to accomplish the aforementioned goals through evaluati