Producedby the California Network of Mental Health Clients Under a Contract With Protection and Advocacy, Inc.

TABLE OF CONTENTS

Chapter 1. Introduction

Chapter 2. Overview of Related Systems

Chapter 3. Rights in Inpatient Facilities

Chapter 4. Due Process Rights

Chapter 5. Advocacy For Clients in Residential (Board And Care) Homes

Chapter 6. Entitlement Rights: Social Security

Chapter 7. Learning to Assert Our Rights

Chapter 8. Role of The Peer Advocate in Teaching Self-advocacy Skills

Chapter 9. Providing Patients' Rights Presentations

CHAPTER 1

INTRODUCTION

TABLE OF CONTENTS

CHAPTER 2

OVERVIEW OF RELATED SYSTEM

TABLE OF CONTENTS

CHAPTER 3

RIGHTS IN INPATIENT FACILITIES

TABLE OF CONTENTS

CHAPTER 4

DUE PROCESS RIGHTS

TABLE OF CONTENTS

CHAPTER 5

ADVOCACY FOR CLIENTS IN

RESIDENTIAL (BOARD AND CARE) HOMES

TABLE OF CONTENTS

CHAPTER 6

ENTITLEMENT RIGHTS: SOCIAL SECURITY

TABLE OF CONTENTS

CHAPTER 7

LEARNING TO ASSERT OUR RIGHTS

TABLE OF CONTENTS

CHAPTER 8

ROLE OF THE PEER ADVOCATE IN TEACHING

SELF-ADVOCACY SKILLS

CHAPTER 9

PROVIDING PATIENTS' RIGHTS PRESENTATIONS

CHAPTER 1

INTRODUCTION

The California Network of Mental Health Clients (CNMHC) is a statewide, client-run, mutual and self-help network comprised entirely of people who have had first-hand experience in the mental health system. The goals of the Network are:

To empower clients of the mental health system through self-help groups and statewide networking.

To confront stigmatizing attitudes about mental health clients in the public, the media, the mental health system, and among mental health clients themselves.

To provide a strong voice of, by and for mental health clients, to be heard on all issues concerning clients and public policies affecting them in the government, the media, and the community.

To promote and instill the rights of clients in and out of treatment situations, with special attention to the right to freedom of choice.

To provide every possible reasonable accommodation to enable persons with a psychiatric disability to work.

To provide a range of employment opportunities--from subsidized prevocational training, to on-the-job skills development, to employment comparable to non-disabled individuals in similar positions.

Under a contract from Protection and Advocacy, Inc. (PAI), CNMHC launched a client-run training program for peer advocates, the Peer and Self-Advocacy (PSA) Program. Public Law 99-319 (the Federal Protection and Advocacy for Mentally Ill Individuals Act of 1986) mandates that each state provide an independent advocacy system for persons labeled "mentally ill." The PSA Program was established to train clients and ex-clients in peer and self-advocacy techniques.

PAI has hired people internally to continue the PSA work that was started. The program's goals are: to inform clients of their rights; to train clients to exercise their rights, to get what they need and to protect themselves from abuse and neglect in the mental health system; to help clients become more able to negotiate the maze of bureaucracy and ultimately become their own best advocates.

As clients, who have each had personal experiences in the mental health system, we have something unique and special to share with other clients. We know how it feels to be treated as "patients." Our knowledge is not theoretical, but so real that it hurts. We can offer each other encouragement and strength.

A. Our Responsibilities To Our Clients

Here are some of the things we have to offer clients:

Confidentiality

Listening

Information

Expressed Interest

Networking

Training

Support

C Confidentiality. Clients need someone they can trust; someone they can talk to in confidence. We honor the confidentiality of our clients and only share things with others with their permission.

L Listening. A peer advocate needs to be a good listener. Each client is the expert on his or her own experience.

I Information. We owe it to our clients to be informed on the law and on the local policies and practices of our communities. By sharing information and knowledge, we are sharing empowerment.

E Expressed-Interest versus "Best Interest" Advocacy. Many clients have expressed frustration when other people try to assert their ideas of what is, "best" for the client. As advocates, we must listen to what each client feels is in his or her own best interest. We may, from time to time, offer suggestions or ideas that a client has not considered, but, within the bounds of the law, we will respect the expressed desires of each client for whom we advocate.

N Networking. One of the advantages of clients reaching out to other clients is that it puts an end to much of the isolation and sense of being alone that many clients experience. Clients not only have a chance to be heard, but to make new and valuable contacts with other clients.

T Training. As clients, we are able to develop and offer practical training to clients and former clients. In our trainings, we use language we understand and focus on issues which we know are important to clients because we've been there ourselves.

S Support. As clients, we are able to draw from our own resources and tap others, to offer practical assistance to clients. We all can learn from and help each other. All of this amounts to a comprehensive mutual support system which will make a difference in all our lives.

B. The Unique Experience Of Being a Client Advocate

(by Jean Matulis)

Our experiences as former patients enable us to identify with people who are currently going through similar experiences. But sometimes our memories of being in situations can have an effect upon us as we walk on the wards to do our work as advocates.

One time, I was meeting with a charge nurse to discuss the way a certain patient had been treated. This patient had complained that when she was admitted, she was very upset and frightened. She kept begging the staff to just talk to her, but they had processed her quickly and had immediately put her in seclusion. The patient felt that the callous way in which she had been treated had made her more upset, more desperate and more out of control.

As I discussed this matter with the nurse, I noticed that she was unmoved by what the patient had experienced, and that she continued to justify the decision to put the patient in seclusion. As I spoke with her, I began to feel helpless that anything could be done for the patient. I also felt that the staff would very likely continue to treat other patients in this way. Something then happened that any client/advocate would dread; I started to cry. As any well-trained nurse would, this nurse had a box of tissue handy which she promptly offered me. I left the hospital feeling defeated and angry.

Later on at a meeting, this nurse spoke to my supervisor and told her what had happened. She expressed concern that due to my previous experiences, I had a problem with "over identifying" with the patients. When my supervisor returned from the meeting, she laughed about it because, as she said, "Advocates are supposed to identify with the patients!"

At first I was very angry and upset. But the more I thought about it, I realized there was nothing wrong with me because I "over-identify" with the patients. There is something terribly wrong with a system that "under-identifies" with patients! I felt that if admitting staff had been able to identify with that patient and her need to communicate, they would never have turned their backs on her. If they had been able to put themselves in her place, they would never have put her in seclusion.

In retrospect, I am not sorry that I cried. It gave me a chance to see that we have a lot of work to do! Not only must we continue to advocate for all patients/clients, but we really have to work hard at educating people who are in a position of working with patients/clients and changing their attitudes and behaviors.

C. Lori's Story: Leaving the Looney Bin, Learning the Law, Passing It On, Changing the System

For ten years I had been involved in various mental health programs in California. The more "treatment" I received, the more I realized I was losing my identity as an individual and gaining one as a "chronically mentally ill" person. Growing up, I frequently took up causes for human rights. When I unexpectedly found myself in a psychiatric hospital, things were no different. I immediately challenged the rules and the staff's decisions, not knowing that patients were viewed as "sick" and therefore had no status, credibility or input into ward decisions. It took until my eighth admission to a psychiatric institution that I realized what it meant to be a mental patient. To me, it meant a severe loss of personal power and decision making in my own life. I could no longer decide when to get up in the morning, when to go to bed, what or when to eat, or even what to watch on TV. All those decisions were made for me, for my own good.

After that stay, I got deeper and deeper into the mental health system, until I obtained the label "chronically mentally ill," a term I detest to this day. For the next two years I lost my will to fight the bureaucracy and rules that didn't make sense. I ended up in a Board and Care Facility that specialized in behavior modification. There, I was subjected to outrageous acts of human indignity. How many adults have to scrub their bathrooms to earn their first cup of coffee in the morning? I consider having to earn what most people take for granted unconscionable.

I began to question and to assert myself against the tyranny of the staff. When I left, I had begun to take back control of my life. Unfortunately, I still had the label of "chronically mentally ill" and was perceived by the mental health staff as being dependent. Hence, the beginning of a major struggle to see who would control my life. Since leaving the Board and Care Facility, I had begun a life independent of the mental health system. I had a love relationship, plans to return to college to finish my Master's Degree, and a good possibility of a part-time job with the help of vocational rehabilitation. However, what the mental health staff had in mind was an LPS conservatorship, placement in a board and care facility or a locked facility, and my receiving SSI.

During my 14th and last stay on an in-patient unit I learned the value of patients' rights and self advocacy. The staff had decided to place me on an LPS conservatorship, so even though I was a "voluntary" patient, I was not allowed to sign out against medical advice. My family was not allowed to visit me, nor was I allowed to leave the facility on a pass, something that was afforded other voluntary patients.

I requested that I be placed on an involuntary hold so that I could go before a judge to seek my release. I knew I had this right because I had learned about this right during a previous commitment. I was not 5150-able according to a notation in my chart. I was told I was a voluntary patient until they could get the conservatorship papers completed, but I still wasn't allowed to sign out AMA. I felt like I was in a no-man's land. I requested to see the Patients' Rights Advocate, but it was Saturday morning and he was on vacation for the next week and a half to boot. The number printed on the Patients' Rights Handbook had been disconnected with no forwarding phone number, so I was on my own.

I became extremely helpful to the staff by offering to make up beds and pass out medications, and I entertained the other patients to keep them out of the staff members' way. I did absolutely nothing that would give the staff any justification to pursue the LPS conservatorship. I made plans with a friend. If I wasn't released on Monday or placed on an involuntary hold, I would escape by climbing over the fence.

On Monday morning, I approached a staff member and said I had contacted my attorney over the weekend. Either they had to release me, place me on an involuntary hold so I could go to court, or I would take legal action against them for violating my civil rights.

I was released! I left feeling very angry and frustrated about the way I was treated and vowed to do something about it. I remember reading the Mental Health Services Act. I couldn't believe all the laws and regulations in this act that were supposed to protect me and my rights. I kept thinking, "If only I had known about these laws and regulations when I was in the hospital." I have had 14 different admissions to psychiatric facilities in California, and, according to the Welfare and Institutions Code, my rights had been violated on every single incarceration. I was determined not to let it happen again.

I read everything I could about the mental health system. I became involved with the Public Policy Committee of the CNMHC. I wanted to learn everything I could about the system to prevent what had happened to me from happening to other clients. I talked with other clients around the country about the way we were treated by the mental health system and I shared the regulations with people and encouraged them to advocate for themselves.

When the county decided to contract out the patients' rights duties I submitted a joint proposal with a local agency to perform patients' rights advocacy. We got the contract. My patients' rights knowledge came from my personal experiences as a patient in the system and from participating on the CNMHC Public Policy Committee on LPS issues.

As a Patients' Rights Advocate, I wanted to make sure clients knew what their different options were. It was extremely difficult to go back to the very same facilities where I had been treated, as a patient in this new role of Patients' Rights Advocate. I felt at times I was not given the consideration due to a Patients' Rights Advocate and not taken seriously. One of my most painful memories was of walking on the in-patient unit and observing some of the same staff members who had put me in restraints put someone else in restraints.

Each time I went on the in-patient unit I was filled with sadness. Why were the only options locked doors and powerful sedating drugs forced on people going through difficult times? I tended to identify with those clients who knew they had problems but didn't see eye-to-eye with the staff as to how to solve them.

Once, when I was discussing with a psychiatrist whether a client met the criteria for an LPS conservatorship, he looked at me and said, "His case is similar to yours. We wanted to put you on a conservatorship for the same reasons." I replied, "You weren't successful with me and you won't be successful with this client." The client was released from the facility voluntarily.

It's situations like these that convince me that for any change to come about in the way clients are treated, clients must start the change process themselves. It is only through clients knowing their rights and how to exercise them effectively that we will create a system where clients are valued for taking responsibility for their lives.

I truly believe from my experiences as a Patients' Rights advocate that only when clients begin to question the system and the way it treats them and begin to assert their rights will the professionals in the mental health system respond. Together we will begin to change it to a more humanistic system and create alternatives that will help people in distress change their lives.

CHAPTER 2

OVERVIEW OF RELATED SYSTEMS

In order to be effective as a peer advocate, it is important to be aware of key individuals and agencies that provide services in your community. Part of the service we offer is to make appropriate referrals when necessary. For this reason, it is vital that peer advocates become acquainted with the patients' rights advocate, the local mental health director, the hospital and community care licensing, and the ombudsman. It is also helpful to be knowledgeable about the Mental Health Board, the California Planning Council, Protection and Advocacy, Incorporated, and other local legal resources. (For a directory of local legal resources, see Part 2, Resource Guide.)

A. Coordination With Local Advocates

Local Patients' Rights Advocates (PRA) are required by law to provide advocacy services to people in facilities. One of your duties as Peer Advocates is to refer rights, violations, and complaints of abuse and neglect to your PRA.

It is important that you sit down with your local PRA and work out a plan of how you can work most cooperatively with one another. e.g. When to refer a client to the PRA?

B. California Patients' Rights Advocacy System

The Patients' Rights Advocacy System in California consists of three components:

1. Office of Patients' Rights; (This function is operated by Protection & Advocacy, Inc., under a contract with the State Department of Mental Health.)

2. State Hospital Patients' Rights Advocate;

3. County Patients' Rights Advocacy.

The Office of Patients' Rights is responsible for ensuring that mental health laws, regulations and policies on the rights of recipients of mental health services are observed in state hospitals and in licensed health and community care facilities. (Welfare and Institutions Code (WIC) 5510.)

The major statutory duties which are assigned to the Office of Patients' Rights are contained in WIC 5512, 5513, 5325, 5326.1, 5326.9 and 5326.15. They include:

1. Training for county patients' rights advocates (WIC 5512). WIC 5512 states that the office shall train local county patients' rights advocates in the following areas:

(a) Knowledge of the service system, financial entitlement and service rights of persons receiving mental health care.

(b) Knowledge of patients' rights in institutions and community facilities.

(c) Knowledge of civil commitment statutes and procedures.

(d) Knowledge of state and federal laws affecting recipients of mental health services.

(e) Community organizations, skills to work effectively with service recipients, provider groups and other skills in interviewing and counseling services recipients.

(f) Ability to investigate and assess complaints and screen for legal problems.

(g) Knowledge of and commitment to advocacy ethics and principles.

(h) Knowledge of administrative and judicial codes.

2. Liaison between county patients' rights advocates and State Department of Mental Health. (WIC 5513).

3. To prepare, update and distribute the Patients' Rights Handbook in English and other appropriate languages and to ensure that every voluntary and involuntary patient receives a copy of this handbook at admission. (WIC 5325).

4. To obtain quarterly reports required by electroconvulsive treatment and psychosurgery from each county mental health director and to analyze such reports for investigation where necessary. (WIC 5326.15).

5. To obtain quarterly reports, required by law, of denials of patients' rights from mental health facilities, and to analyze such reports for further review or investigation. (WIC 5326.15).

6. To prepare and monitor the observance of the electroconvulsive treatment and psychosurgery regulations by periodic review of patient records through a random sampling process. (WIC 5326.15).

7. To prepare an annual report for the Legislature on the use of electroconvulsive treatment and psychosurgery; i.e. the number of patients, number of treatments, side effects. (WIC 5326.15).

8. To investigate or refer for investigation by county patients' rights advocates allegations regarding violations of laws on denials or abuses of patients' rights and electroconvulsive treatment and psychosurgery, and to take appropriate action such as requesting a hearing before the Board of Medical Quality Assurance. (WIC 5326.9).

The following are the other assigned duties of the Office of Patients' Rights:

1. Be responsible for provision of training and consultations for all county advocates and for implementing patients' rights laws and for resolving complaints alleging violations of patients' rights.

2. Analyze and make recommendations regarding legislation on patients' rights.

3. Answer telephone calls and complaint letters from mental patients and their families and ensure that these complaints are resolved when appropriate.

4. Monitor the implementation of patients' rights laws and regulations in 58 local mental health programs, and in state hospitals; this is facilitated by periodic on-site reviews and through a review of county mental health contracts prior to state approval of county mental health budgets.

5. Maintain liaison with patient advocacy groups organized by former patients, their parents and families, and other concerned citizens through meetings, discussions, and regular exchange of materials and information.

C. Levels of Advocacy

Individual Advocacy: Local Patients' Rights Advocates' primary responsibility is the investigation and resolution of individual problems.

System Advocacy: In addition, Local Patients' Rights Advocates work to improve the mental health system by:

1. regular monitoring and audits of county mental health facilities for compliance with patients' rights laws;

2. review and comment on county policies and practice which affect recipients of mental health services;

3. providing consultation and generating policy questions for the State Office of Patients' Rights;

4. coordinating with other local Patients' Rights Advocates and external advocates for system reform;

5. analysis and recommendations on state and federal legislation and regulatory developments;

6. education and outreach to recipients of mental health services to increase clients' ability to advocate for themselves; and

7. represent clients' interest in public forums.

D. Local Patients' Rights Advocate

The "local" Patients' Rights Advocate is an assigned county employee or a person/agency under contract to act as advocate in each county mental health program. Fifty-eight counties work closely with the state's Patients' Rights Specialist and provide direct advocacy for persons with mental disability residing in or receiving psychiatric services from mental health facilities.

Each county mental health director must assign a patients' rights advocate and delegate to this person the responsibility for ensuring the statutory and constitutional rights of persons with mental disability. The formula used provides minimal staffing of one advocate for every 500,000 population. (DMH Policy Letter 80-26, 1980).

The duties of the local county Patients' Rights Advocates are:

1. To post the list of patients' rights in all mental health facilities as well as the name and telephone number of the county advocate's office and the State Office of Patients' Rights.

2. To ensure that all incoming patients and residents are notified of their rights and receive a copy of the Patients' Rights Handbook.

3. To train staff in mental health facilities regarding patients' rights laws, regulations and policies.

4. To investigate and resolve complaints received from clients about violations or abuse of their rights.

5. To act as advocate for patients and residents who are unable or afraid to register a complaint because of their mental or physical condition.

6. To act as a local consultant to mental health professionals in the area of patients' and residents' rights.

7. To act as a liaison between the county mental health program and the State Office of Patients' Rights.

(WIC 5520).

NOTE: Most Patients' Rights Advocate Programs also provide assistance to patients during certification review hearings.

E. Local Mental Health Directors

(Reprinted from the California Department of Mental Health's Introduction to the Mental Health Services Act (1987)

The local director of mental health services is the chief administrator of a state-supported community mental health program. While appointed by the local governing body to which s/he reports, each director must meet the standards of training and experience set by the State Department of Mental Health. Generally, the local mental health director is a licensed physician, usually a psychiatrist. Under certain circumstances, a non-medical administrator may be appointed.

The local director of mental health services shall have the following powers and duties:

1. Serve as chief executive officer of the community mental health service responsible to the governing body through administrative channels designated by the governing body.

2. Be responsible for the preparation of the county Short-Doyle plan, as specified in 5650.

3. Exercise general supervision over mental health services provided under the county Short-Doyle plan.

4. Recommend to the governing body, after consultation with the advisory board, the provision of services, establishment of facilities, contracting for services or facilities and other matters necessary or desirable in accomplishing the purposes of the Community Mental Health, Services Act.

5. Submit an annual report to the governing body reporting all activities of the program, including a financial accounting of expenditures and a forecast of anticipated needs for the ensuing year.

6. Carry on such studies as may be appropriate for the discharge of his/her duties, including the control and prevention of psychiatric disorders.

F. Health Facilities Licensing

Hospitals and Health Facilities must be licensed by the State of California in order to operate. If you discover a health problem or other serious problem at a hospital or health facility, it may be necessary to call Health Facilities Licensing. To find the phone number for Health Facilities Licensing, look in the front of your phone book under State Government Offices. Then look under the sub-heading entitled Health Services Department. (See Resource List.)

G. Community Care Licensing

Board and Care Homes and other community care facilities are licensed by the State Department of Social Services. Each area's local office is listed in the phone book in the State Government Offices listings under Social Services Department. (See Resource List.)

H. What is an Ombudsman?

(Prepared by Ombudsman/Advocate Inc., Santa Cruz, California)

What does the word Ombudsman mean? Ombudsman is a Scandinavian word used worldwide, meaning conciliation on behalf of citizens encountering difficulties in relation to government. As interpreted by organizations serving patients/residents in nursing homes, an Ombudsman is a trained volunteer who attempts to make nursing homes and governmental and community agencies more responsible to the needs of residents and their families. An Ombudsman thereby becomes an advocate of the residents.

How did the Ombudsman idea get started? By federal mandate in 1973 through the Older Americans Act. In 1975 a state Ombudsman office was established in the California Department of Aging which supports and provides minimal funding for more than 30 local programs. Right to access by the Ombudsman's office went into effect on January 1, 1980.

What do Nursing Home Ombudsmen do? Ombudsmen investigate and resolve complaints made by or on behalf of residents of long-term care facilities. Ombudsmen work to ensure that residents are getting the services they are entitled to and that quality of care improves. They monitor the conditions of care and try to find solutions, and when necessary, bring unresolved problems to the attention of appropriate agencies.

Volunteer Ombudsmen are assigned to skilled nursing facilities and residential care homes for the elderly and make regular visits to see residents and their families, to assist them in solving problems. Ombudsmen are available as a resource for resident and family councils and serve as witnesses for Durable Power of Attorney for Health Care or the Natural Death Act.

What types of problems can an Ombudsman resolve? Financial problems, inadequacies in Medi-Cal, nursing and other services, neglect or physical and emotional abuse, family problems, personal and relationship problems. All communications with an Ombudsman are confidential, and there is no charge for services. For assistance, the toll-free hotline number is (800) 231-4024.

I. Local Mental Health Board

(Welfare and Institutions Code 5604; updated by Assembly Bill AB 14, in effect October 28, 1992.)

WIC 5604 requires the supervisors of counties to have an advisory board of 10-15 members appointed by the governing body. Supervisors of smaller counties may have a minimum of 5 members on the mental health advisory board. Each board is composed of mental health professionals and representatives of the public interested in and informed on mental health matters. In general, each board functions to lend a helping hand in the overall planning and development of its community's mental health effort. Specifically, the law defines the board's functions as follows:

1. Review and evaluate the community's mental health needs, services, facilities and special problems.

2. Review any county agreements entered into pursuant to Section 5650.

3. Advise the governing body and the local mental health director as to any aspect of the local mental health program.

4. Review and approve the procedures used to insure citizen and professional involvement at all stages of the planning process.

5. Submit an annual report to the governing body.

6. Make recommendations regarding the appointment of a local director of mental health services.

7. Review and comment on the county's performance outcome data and communicate its findings to the California Mental Health Planning Council.

8. Nothing in this part shall be construed to limit the ability of the governing body to transfer additional duties or authority to a mental health board.

Composition:

1. One member shall be the chairperson of the local governing body.

2. Fifty percent of the board membership shall be consumers or the parents, spouses, siblings, or adult children of consumers, who are receiving or have received mental health services. At least 20 percent of the total membership shall be consumers, and at least 20 percent shall be families of consumers.

3. In counties under 80,000 population, at least one member shall be a consumer, and at least one member shall be a parent, spouse, sibling, or adult child of a consumer, who is receiving, or has received, mental health services.

J. Protection and Advocacy, Inc.

(Excerpt from Description of Protection and Advocacy, Inc., Services 8/21/96)

In May, 1986, President Reagan signed PL 99-319 into law. The Act requires the developmental disabilities protection and advocacy system in every state (in California, PAI) to establish and operate a similar system for persons who are defined in the Act as "mentally ill." PL 99-319's mandate for P&A systems is twofold: first, to protect and advocate for the rights of such individuals through the enforcement of the Constitution and federal and state law and, second, to investigate incidents of abuse and neglect.

Under the Protection and Advocacy for the Mentally Ill Individuals Act, PAI has expanded and developed to provide advocacy services to persons identified as mentally ill. Additional professional staff with expertise in abuse, neglect and rights issues affecting those identified as mentally ill have been added to PAI's three offices and are available to provide the following services:

Information about the legal and service rights of persons identified as mentally ill and about procedures and sources of assistance in obtaining and enforcing those rights. This information is intended to assist people in addressing and resolving their problems independently. PAI's information services are not intended to and do not provide specific legal advice for individual problems. As part of this service PAI maintains a statewide toll-free number.

Referral to other sources of assistance, including other providers of advocacy services.

Technical assistance, training and support to persons identified and mentally ill, their families and advocates in the resolution of individual and systematic problems.

Direct representation of persons identified as mentally ill, including investigation of complaints of abuse, neglect and rights violations, and legal representation in administrative and judicial proceedings to establish and enforce their legal and service rights within the priorities identified in PAI's Three-Year Plan.

Monitoring and analysis of administrative policy, regulations and legislation which actually or potentially infringe upon or contravene the rights of persons identified as mentally ill.

Short Term Assistance. PAI will provide short-term assistance in the resolution of individual problems through the consultation or provision of advocacy and rights materials.

Peer/Self-Advocacy Training for persons identified as mentally ill. This training is provided by current and/or former mental health clients. The purpose of the training is to assist other clients in learning to advocate for themselves within the mental health system.

1. Eligibility

In keeping with the requirements of PL 99-319, PAI's mental health advocacy services are available to persons who:

(a) Have a significant mental illness or emotional impairment, as determined by a mental health professional; AND

(b) Are currently in a facility providing care or treatment; or

(c) Have complaints involving matters which occurred within 90 days of discharge from a facility providing care or treatment.

PAI will also consider the following factors in determining whether to undertake a case: whether the complaint represents a meritorious claim; whether the individual is able to advocate for him/herself; whether other competent resources are available; whether PAI resources are available to provide assistance.

PAI will only provide direct client representation when the problem is clearly related to the person being mentally ill or identified as mentally ill. PAI will not provide representation when the problem is one commonly accepted by private or legal aid programs. When a legal problem involves a statutory right to an attorney or an advocate, such as mental health commitment hearing or a criminal proceeding, PAI will not become involved unless there are compelling circumstances such as the need for legal expertise regarding the rights of the person involved.

PAI does not represent the interest of the mental health care provider, families or guardians, or conservators of persons identified as mentally ill.

2. To Obtain Services

Persons seeking PAI services may use the PAI toll-free number by dialing (800) 776-5746 from anywhere in California, or by contacting one of PAI's local offices:

Toll Free/TDD: 1-800-776-5746

3. Fees

PAI does not charge for any of its services. However, in individual cases, PAI may ask for reimbursement for costs in the course of providing representation, based on a client's ability to pay. Such costs may include witness fees, court and travel costs, etc.

K. California Mental Health Planning Council

(Prepared by the California Mental Health Planning Council)

The California Mental Health Planning Council (CMHPC) has been an invaluable instrument of public involvement in mental health planning. It has been particularly effective as a vehicle for involvement of direct consumers and families. In addition to the federal planning duties, state legislation, Chapter 564, Statutes of 1993 (SB 43) added new responsibilities and duties that are critically important to the provision of public input, system accountability and oversight. These duties include:

Advocating for effective, quality mental health programs.

Reviewing, assessing, and making recommendations regarding all components of the mental health system; and reporting, as necessary, to the Legislature, the Department, local boards, and local programs.

Reviewing program performance in delivering mental health services by annually reviewing performance outcome data and reporting findings and recommendations to the Department of Mental Health, the Legislature, and local mental health programs.

Advising the Legislature, the Department, and county boards on mental health issues, policies, and priorities that the State should be pursuing.

Reviewing the State's data systems and paperwork requirements to ensure they are reasonable.

Making recommendations to the Department on awarding grants to county programs to reward and stimulate innovation.

Conducting public hearings on the State mental health plan, the Mental Health Block Grant, and other topics are needed.

Participating in the recruitment of candidates for Director of Mental Health.

Assisting in the coordination of training and information dissemination to local mental health boards.

Advising the Director on the development of the State mental health plan and its priorities.

Suggesting rules, regulations, and standards for the administration of mental health programs.

Mediating disputes between the State and counties when requested.

Accepting federal or private grants and donations.

CHAPTER 3

RIGHTS IN INPATIENT FACILITIES

A. Undeniable Rights (All references are to the California Welfare and Institutions Code unless otherwise stated.)

No one, simply by virtue of being a voluntary or involuntary patient in a psychiatric facility, loses the fundamental rights and responsibilities possessed by every citizen. (See Welfare & Institutions Code (WIC 5325.1.) The California Legislative has identified certain rights that patients have which are "undeniable rights." These rights are not subject to the "denial for good cause" provisions described below. (WIC 5325, 5326.)

These undeniable rights are:

1. A right to treatment services which promote the potential of the person to function independently. Treatment should be provided in ways that are least restrictive of personal liberty.

2. A right to dignity, privacy, and humane care.

3. A right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse or neglect. Medication shall not be used as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program.

4. A right to prompt medical care and treatment.

5. A right to religious freedom and practice.

6. A right to participate in appropriate programs of publicly supported education.

7. A right to social interaction and participation in community activities.

8. A right to physical exercise and recreational opportunities.

9. A right to be free from hazardous procedures.

B."Deniable Rights and "Good Cause"

The Legislature has also identified certain rights of patients which cannot be denied except for "good cause." (See WIC 5326.)

1. To wear their own clothes.

2. To keep and use their own personal possessions including their own toilet articles.

3. To keep and be allowed to spend a reasonable sum of their own money for canteen expenses and small purchases.

4. To have access to individual storage space for private use.

5. To see visitors each day.

6. To have reasonable access to telephones, both to make and receive confidential calls or to have such calls made for them.

7. To have ready access to letter writing materials, including stamps, and to mail and receive unopened correspondence.

C. What is "Good Cause"?

The Legislature has given the Director of Mental Health the authority to adopt regulations outlining the conditions under which these rights can be denied. (See 9 California Code of Regulations (CCR) 865.2.) (As of January 1988 the California Administrative Code is now referred to as the California Code of Regulations.) According to these regulations, "Good Cause" for denying a patient one of these rights exists if the professional person in charge of the facility (or someone whom that person designates) has a good reason to believe:

1. That the exercise of the specific right would be injurious to the patient/resident; or

2. That there is evidence that the specific right, if exercised, would seriously infringe on the rights of others; or

3. That the institution or facility would suffer serious damage if the specific right is not denied; and

4. That there is no less restrictive way of protecting the interests specified in 1, 2, or 3. (9 CCR 865.2)

It is important to stress here that even if the exercise of a particular right may be injurious to a patient, a serious infringement on the rights of others, or cause serious damage to the facility, the right still may not be denied if there is a less extreme measure which would protect these same interests and still leave the patient's rights intact.

The hospital staff has an obligation to give the patient an explanation of why a particular right is being denied. (9 CCR 865.3(a)(3)(b)

It should also be emphasized that a right cannot be denied as a punishment, or as part of a treatment regime, or treated as a privilege that has to be earned. (9 CCR 865.2(b)(c))

The use of seclusion and restraints is subject to narrower restrictions, and cannot be imposed unless there is no sufficient alternative to protect the patient or others from injury. (9 CCR 865.3, 865.4; 22 CCR 71545)

When good cause no longer exists to justify the denial of a right, that right must be restored to the patient. It is good practice for the patient to be given a full, clear explanation of how to have a right restored.

D. Additional Rights Not Subject to "Denial For Good Cause."

1. The right to see a patients' rights advocate (WIC 5325(h)) is not among those rights that can be denied for good cause. (WIC 5326)

2. Patients also have the right to refuse psychosurgery and electroconvulsive treatment (commonly known as "ECT" (or "shock treatment"). The right to refuse these procedures cannot be denied for good cause. However, ECT can still be given involuntarily if a court determines that the person lacks the capacity to give written informed consent, and written permission is given by a responsible relative, guardian or conservator of the patient. For complete information on what constitutes written informed consent, consult the California Welfare and Institutions Code 5326.2, 5326.3, 5326.4 and 5326.5.

3. A voluntary patient has the right to leave the hospital rather than to accept the denial of his or her rights. The patient must be informed of this at the time of admission. (9 CCR 865).

Welfare and Institutions Code 6002 states: "A voluntary adult patient may leave the hospital at any time by giving notice of his or her desire to leave to any member of the hospital staff and completing normal hospitalization departure procedures."

The Welfare and Institutions Code also indicates that it is possible that a patient who has become voluntary may become involuntary again under some circumstances. (WIC 5258). But, not only would the patient have to again meet the grounds for involuntary commitment (WIC 5150 and 5250(c)), but the intervening period of voluntary treatment can never be used to "stretch out" the total time that the person could be held against her or his will. (WIC 5258).

4. All patients have the right to confidentiality in respect to information and records involved in their treatment. (WIC 5328 et seq.)

For a thorough breakdown on all the specifics regarding the right to confidentiality, consult the chapter on Confidentiality in the Patients' Rights Advocacy Manual.

E. Complaint Procedure.

A patient whose right has been denied unlawfully can report it to the Patients' Rights Advocate who is required to investigate the complaint and to attempt to resolve it. The exact Title 9 complaint procedure reads as follows:

The list of rights that shall be posted, provided, or explained to the patient/resident pursuant to Section 862 shall contain:

1. Notification that any patient/resident who believes a right of his/hers has been abused, punitively withheld, or unreasonably denied may file a complaint with the Patients'/Residents' Rights Advocate.

2. The name of the Patients'/Residents' Advocate who has been assigned to handle such complaints, his/her telephone number, and the times during which s/he may be contacted.

When a complaint is received by the Patients'/Residents' Advocate, s/he shall, within two working days, take action to investigate and resolve it.

If the complainant expresses dissatisfaction with the action taken, the matter shall be referred, within five working days, to the local mental health director if the complaint originated in the mental disabilities program or to the regional center director if the complaint originated in the developmental disabilities program.

If the complaint cannot be satisfactorily resolved by the local mental health director or by the regional center director within ten working days, it shall be referred to the Patients' Rights Specialist, Department of Health, whose responsibility shall be to make a decision in the case. Appeal from the decision of the Patients' Rights Specialist may be made to the Director of State Department of Health, or his/her designed. (9 CCR 864, a-d).

F. Assembly Bill 595 (Bates 1981).

The following is an excerpt from the First Edition of the Patients' Rights Advocacy Manual (June 1985) printed by the California Department of Mental Health. This excerpt identifies ways in which Assembly Bill 595 (Bates 1931) has had a major impact on the patients' rights advocacy system.

This legislation:

1. Grants patients a statutory right to see and receive the services of a county patients' rights advocate, and establishes that a patient is presumed competent to enter an agreement with an advocate unless specifically found otherwise by a court. (WIC 5523(a) and 5325(b)).

2. Prohibits parents, guardians, or conservators from waiving any rights specified in WIC 5325.

3. Allows the county patients' rights advocates, when authorized by the client or guardian ad litem, access to patient information when necessary for the performance of their duties, with the exception of evidence given in confidence by members of the patient's family. (WIC 5328(m)).

4. Establishes a State Patients' Rights Office in statute with specific training functions. (WIC 5510 and 5512).

5. Confirms that a patient has the right to see and receive the services of an advocate who has no direct or indirect clinical responsibility for the patient. (WIC 5325(h) and 5500(d)).

6. Provides access for the county advocate to public and private health and community care facilities to monitor compliance with, and/or investigate complaints of patients' rights violations. (WIC 5530).

7. Provides for the assessment of civil penalties in instances where patients' rights violations exist, including obstruction of county advocates in their duties. (WIC 5326.9 and 5550(b) and (e)).

8. Prohibits facilities from discriminating against patients or employees who file a complaint. (WIC 5500(c)).

9. Establishes a penalty for privacy and confidentiality violations by county advocates. (WIC 5500(d) and (e)).

10. Provides under specified circumstances (including patients' release authorization) for the county advocate to copy confidential information and to provide to the patient information from his/her record, with the exception of information given in confidence by members of the patient's family. (WIC 5540-5546).

11. Permits the Director of Mental Health, or a state hospital executive director, to contract with independent agencies for advocacy services in state hospitals. (WIC 5511).

12. Confirms in statute a Patients' Rights Subcommittee of the California Advisory Council on Mental Health. (WIC 5514).

G. Medication Rights

1. Your Right To Give Or Refuse Consent For Psychiatric Medications

(Excerpted from Brochure by Mental Health Advocacy Project)

All mental health patients have the right to give informed consent for psychiatric medications, unless a judge has specifically ruled that they are not competent to consent to medications or there is an emergency.

Informed consent means that you knowingly and intelligently, without duress or coercion, clearly and explicitly have given consent to the proposed medications. This right applies to all medications used to treat psychiatric or emotional conditions.

The doctor must provide you with the following information so that you can make an informed decision about the medications.

(a) A description of the nature and seriousness of your mental condition, disorder, or behavior.

(b) An explanation of the reasons for the medication.

(c) The name and type, frequency, amount and method of dispensing the medication, and the probable length of time that the medication will be taken.

(d) A description of the likelihood of improvement, and the probable degree and duration (temporary and permanent) of improvement or remission expected with (and without) the medication.

(e) An explanation of the nature, degree, duration, and probability of the side effects and interactions (with other medications you are taking) the risks and how and to what extent they may be controlled, if at all.

(f) An explanation of the reasonable alternative treatments available (including other medications and non-medication oriented treatment) and why the doctor is recommending this particular medication.

You have the right to accept or refuse the proposed medication. If you consent, you have the right to revoke consent for any reason, at any time.

Your consent is also required in order to increase medication dosage or to change from one medication to another.

Questions to Ask About Medications

Feel free to ask your doctor or the nursing staff about your condition and your medications. Examples of questions include:

(a) What is your diagnosis of my condition? Explain what that means.

(b) What kind of medication are you prescribing?

(c) What other kinds of medication could be prescribed for my condition?

(d) Why are you prescribing this medication rather than others?

(e) What kinds of treatment, other than medication could be used for this condition?

(f) Why are you prescribing this medication rather than that treatment?

(g) How much medication are you prescribing?

(h) Why are you receiving at this dosage?

(i) Is this the normal dosage?

(j) What are the side effects of this medication?

(k) What is the likelihood of improvement with the medication? How will I improve?

(l) What is the likelihood of improvement without the medication?

(m) What will happen to me if I don't take the medication? What will the symptoms be?

(The above has been reprinted by permission from Mental Health Advocacy Project.)

2. Limitations On The Right To Refuse Medications For People On 72 Hour ( 5150) Holds Or 14 Day ( 5250) Holds.

(a) A legally defined EMERGENCY SITUATION. Welfare & Institutions Code Section 5008 (m) defines an "Emergency" as: A situation in which action to impose treatment over the person's objection is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impractical to first gain consent. It is not necessary for harm to take place or become unavoidable prior to treatment.

(b) A decision by a JUDICIALLY APPOINTED HEARING OFFICER. If you refuse medications, your doctor may file a petition with the county, and ask for a hearing at which a judicially appointed hearing officer will determine if you are capable of giving or refusing consent to take medications. The hearing will be held at the facility and you are entitled to representation by a Patients' Rights Advocate. This hearing is different from a writ of habeas corpus and a conservatorship hearing.

At a capacity hearing, the hearing officer will decide:

(i) whether you are aware of your situation and condition;

(ii) whether you are able to understand the benefits and lists of, as well as alternatives to, the proposed medication;

(iii) whether you are able to understand and evaluate the information and to rationally participate in treatment decisions.

If the hearing officer determines that you are not competent to make these decisions, the doctor has the authority to order medications without your consent. You have a right to appeal the decision to the superior court. If you decide to do that, you will have a lawyer appointed to represent you, and a judge will hear the case "de novo" which means "new." (In other words, the judge will not merely review whether the hearing officer made a correct determination at the time of the first hearing, but will take a fresh look at all the evidence.)

The hospital can continue the medication, pending the new hearing.

If the hearing officer decides that you do have the capacity to refuse medication, the hospital can also appeal the decision to the superior court, but you may not be medicated involuntarily in the meantime.

H. Background On California's Informed Consent Law

1. The Rights of Involuntary Patients With Respect to Psychotropic Medications.

(From Protection & Advocacy, Inc., Newsletter #31, Summer 1989.)

On June 22, 1989, the California Supreme Court unanimously reinstated a landmark 1987 Court of Appeal decision upholding the right of persons subject to short-term mental health commitment to make their own decisions concerning the use of psychotropic medications, unless a person has been judicially determined incapable of making such decisions, or an emergency exists. (Riese, et al. v. St. Mary's Hospital and Medical Center, No. S004002, Court of Appeal No. A034048.) The Court of Appeal's decision became final on June 29, 1989.

2. Legal Basis for the Decision

The Court's decision was based on extensive legislative history and numerous provisions in the Lanterman-Petris-Short (LPS) Act which guarantee involuntarily committed persons the same basic rights as all other citizens, and prohibit the imposition of legal disabilities without a judicial determination of patients' incompetence. The Court also declared that, entirely apart from the LPS Act, the right to give or withhold consent to medical treatment with these drugs is protected. by the common law and the right of privacy explicitly guaranteed by the California Constitution.

3. What the Decision Means?

Who is Affected? The individuals covered by the Court of Appeal's ruling are those persons involuntarily committed under California Welfare and Institutions Code, 5150 and 5250. Under these provisions, individuals may be involuntarily held in mental health facilities for up to 17 days.

Which Drugs are Included? The Court adopted the definition in the California Code of Regulations which defines "antipsychotic medication" as those drugs which are "customarily used for the treatment of symptoms of psychoses and other severe mental and emotional disorders."

What is required of Treatment Staff? The Court recognized that treatment staff already have a statutory obligation to provide patients with detailed information regarding psychotropic medications and their side effects so that patients can make informed treatment decisions. This information includes: an explanation of the person's mental condition and why the person needs the medication, a description of the medication, including its name, type, the amount prescribed and how often it is to be taken; the likelihood the medications will bring about improvement of the person's mental condition; a description of the side effects and their probability and seriousness; and the available alternative treatments.

When May Individuals Be Involuntarily Medicated? Individuals may only be medicated over their objection in an emergency, or in the event a hearing has been held and a judge has determined that the person is incapable of making an informed decision about whether or not to use antipsychotic medications.

What Constitutes an Emergency? The Court adopted the existing definition of emergency contained in the California Code of Regulations: "an emergency exists when there is a sudden marked change in the patient's condition so that action is immediately necessary for the preservation of life or the prevention of serious bodily harm to the patient or others, and it is impracticable to first obtain informed consent." This definition has been used since 1980 to permit the involuntary administration of antipsychotic drugs to voluntary mental health patients in emergencies.

Who Must Have Hearings? Hearings are only required in non-emergency situations when a person refuses antipsychotic medications and the doctor and patient are unable to agree upon an alternative treatment plan.

What Type of Hearing is Required? As is the norm in California, there must be a competency hearing before a judge to determine whether the person is able to understand, and knowingly and intelligently act upon, the information required to be given regarding the drug treatment. At the hearing, the government (the hospital and its legal representative) has the burden of proving the person's incapacity by clear and convincing evidence.

What is the Court to Decide at the Hearings? The Court's role is "to determine whether a patient refusing medication is competent to do so despite his or her mental illness. The Court is not to decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available, but may consider such issues only as pertinent to assessment of the patient's ability to consent to treatment."

The Court's determination of the person's competency to consent to antipsychotic drug treatment should focus on three factors: (1) whether the person is aware of his or her situation; (2) whether the person is able to understand the benefits; and the risks of, as well as the alternatives to, the proposed drug intervention; and (3) whether the person is able to understand, and knowingly and intelligently evaluate, the information required to be given, and otherwise participate in the treatment decision by means of rational thought processes.

If a person is judicially determined to possess the capacity to give informed consent to the use of antipsychotic drugs and refuses to do so, the person may not be required to undergo the treatment. If the person is judicially determined incapable of giving informed consent, he or she may be required to accept the prescribed medications.

[NOTE: In 1991, the California State Legislature enacted a statute which embodied most of the principles of the Riese v. St. Mary's decision, but made a number of modifications (like enacting a different definition of emergency, and allowing lawyer hearing officers appointed by judges, instead of judges themselves to make the initial decision. The current statute is found in Welfare & Institutions Code sections 5332-5337.] (See attachment.)

Discussion Questions

You are on the ward giving information about patients' rights. How can you answer the following questions?

1. Angela is heartbroken because on admission she was required to take off her ring and turn it over to the admitting staff to be put in the safe. She wants to know if she can get it back. What can you do or say?

2. Bill is troubled because, though he is a voluntary patient and signed a form consenting to medication, he now feels as though the drugs are affecting him in a bad way. His doctor told him that if he refused the medication, he could be put on an involuntary hold and would not be allowed to leave the hospital. What are Bill's rights?

3. Flora is afraid because a staff member told her that if she doesn't attend all groups she will be put into seclusion. What are her rights?

CHAPTER 4

DUE PROCESS RIGHTS

A. 72-Hour Hold (See California Welfare and Institutions Code 5150 and following.) (All citations refer to Welf. & Inst. Code unless otherwise noted.)

The law allows the professional staff at a psychiatric facility to detain a person for 72 hours if the staff has probable cause to believe that, due to a mental disorder, the person being detained is:

1. a danger to others; and/or

2. a danger to him or herself; and/or

3. gravely disabled. (Grave disability is defined as: "a condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter.")

The person must be given written notice of why he or she is being held. ( 5157). While the person is detained for 72 hours, the hospital is required to do an evaluation of the person consisting of a multi-disciplinary analysis of the person's medical, psychological, educational, social, financial and legal situation. ( 5152, 5008(A)).

The hospital is under no obligation to hold the patient for the complete 72 hours. The psychiatrist should release the patient prior to the end of the 72 hours if the psychiatrist believes the patient no longer requires evaluation or treatment. ( 5152).

By the end of the 72 hours, one of the following things may happen:

1. the person may be released;

2. the person may sign in as a voluntary patient;

3. the person may be put on a 14-day involuntary hold (called a "certification for intensive treatment").

B.14-Day Hold (See 5250 and following.)

If the treating psychiatrist believes the patient is still a danger to self, a danger to others and/or gravely disabled due to a mental disorder or chronic alcoholism, and is unwilling or unable to accept treatment on a voluntary basis, then the psychiatrist may certify the patient for an additional 14-day period. At this time the patient is entitled to written notice of this fact including a statement of specific reasons for the psychiatrist's decision, which is followed by a certification review hearing.

1. Certification Review Hearings

The person being certified is entitled to notice of a certification review hearing to be held within seven days of the original detention, although a patient or advocate (but not the hospital staff) may get the hearing postponed for up to 48 hours. (If the patient is held in a county with 100,000 people or less, the hearing may be postponed until the next scheduled hearing date, even if the time exceeds 48 hours.) ( 5256 et seq). A certification review hearing is automatically scheduled for all patients regardless of whether they request it. This is to guarantee that no patient misses out on a hearing due to an inability to request one, intimidation or fear of requesting one, or for any other reason. Also the focus is on the hospital to justify its involuntary hold on the patient since it is the hospital which is imposing the hold. The burden is not on the patient.

2. Attending the Hearing

A patient who does not want to attend her or his hearing does not have to, and may waive his or her presence with the assistance of an advocate or attorney. ( 5256.3). If a patient wishes to challenge the hold and be released, it is usually advisable to be present at the hearing.

3. How the Hearing is Conducted

The certification review hearing is conducted in an informal manner by a hearing officer who has been either appointed by the court or selected by a special panel. The hearing officer must be a neutral person and may not be employed by the hospital or the county mental health program. The person who has been certified is entitled to assistance by an attorney or an advocate. In most counties, the patients' rights advocate provides representation. Also, someone will be present at the hearing who represents the facility and will offer evidence in support of the hold.

The patient may not only present evidence on his/her own behalf but can question those who represent the facility. The person may have family, friends or a peer advocate present to offer supportive evidence. The hospital representative may want to invite family members to the hearing if the representative believes that the family may offer evidence in support of the hold. However, the patient has the ultimate right to request that the family not be notified by the hospital. ( 5256.4(c)).

At the end of the hearing, if the hearing officer concludes that there is not a "probable cause" that due to a "mental disorder" a patient is a danger to self, a danger to others or gravely disabled, then that patient may no longer be held involuntarily.

If the hearing officer concludes that there is "probable cause" to continue holding the patient, then that patient may be held. Many patients who have been held after their certification hearing decide to take advantage of their right to file a Writ of Habeas Corpus and go before a judge to present their case.

4. Writ of Habeas Corpus Hearing

At the time the patient is first served with the notice of certification described above, the patient is also entitled to notice about the right to appear before a judge in a legal proceeding called a Writ of Habeas Corpus hearing. ( 5275). At this hearing, the patient is entitled to be represented by court appointed or private legal counsel who must help the patient challenge the grounds of the involuntary hold. ( 5264). A hearing for Writ of Habeas Corpus does not happen automatically. The patient must make a specific request for one by notifying the person giving the notice or any member of the treatment staff at the hospital. ( 5275). In many counties patients may make direct contact with the public or private defenders' offices who will then make arrangements for a hearing. Also, the patients' rights advocate is often available to assist in making arrangements.

If the patient asks to file a Writ of Habeas Corpus right at the time of being served a notice of certification, the writ hearing will take precedence and the certification review hearing will not take place. Many patients find it is a smart strategy to wait and see how things go at the certification review hearing. There are two reasons why this is advisable. First, the certification review hearing is generally scheduled as soon as, if not sooner than, a writ hearing. Second, if the patient loses at the certification review hearing, the patient can then take advantage of the right to file a Writ of Habeas Corpus and end up having two hearings instead of just one.

C. After the 14-Day Hold

By the end of the fourteen days, one of three things will happen:

1. the person may be released;

2. the person may decide to sign in as a voluntary patient;

3. the person may be held for an additional period of time.

D. Additional Holds Beyond the 14-Day Certification

If the psychiatrist wants to continue treating the person involuntarily there are three different mechanisms that can be used, depending on whether the person is certified as a danger to self, a danger to others or gravely disabled.

1. Danger to Self (Additional 14-Day Hold) ( 5260)

If at the end of the 14 days the person is considered to be suicidal, the hospital can certify the person for an additional 14 days and must file the notice of certification with the Superior Court. The patient may request a review of this by filing a Writ of Habeas Corpus as described above.

At the end of the additional 14 days allowed for danger to self, one of three things will happen:

(a) the person will be released;

(b) the person may sign in as a voluntary patient;

(c) if the person is also considered to be a danger to others or gravely disabled, the person can be held longer according to the provisions described below.

2.Danger to Others (Post-Certification Hold). ( 5300)

A person can be held for longer than 14 days if that person is considered to be imminently dangerous to other people as a result of a mental disorder.

The professional person in charge of the facility may ask the district attorney (or the county counsel) to file a petition with the Superior Court for an order requiring the person to undergo additional treatment for up to six months. This six-month period may be renewed if the person has attempted, inflicted or made serious threats of substantial physical harm toward another person during the six-month period. ( 5304(b)).

The person has a right to be represented by an attorney at the hearing and may demand a jury trial.

3.Gravely Disabled (Conservatorship Proceedings). ( 5350)

A person who has been certified as gravely disabled can be subject to an additional 30-day hold if the following conditions are met: The County Board of Supervisors must agree to apply this provision in that county ( 5279.1). The person must still meet the criteria of grave disability after the 14-day hold, and be unwilling to be a voluntary patient ( 5270.15). If a 30-day post-certification hold is instituted, the client is entitled to a judicial review to determine the need for continued involuntary treatment. A 30-day hold may run concurrently, but not consecutively, with a temporary conservatorship described below. ( 5270.55.(c)).

If the person is considered "gravely disabled," the hospital can apply to the public guardian's office for "temporary conservatorship". This means that the patient can be held for an additional 30 days pending an investigation by a representative of the public guardian as to whether or not the patient is incapable, due to a "mental disorder" or chronic alcoholism, of providing food, clothing and shelter, and is unable or unwilling to consent to treatment as a voluntary patient. If the person doing the investigation believes this is true, a petition for a full, year-long conservatorship will be filed with the Superior Court. A hearing will be held before the end of the 30-day period unless the patient requests a jury trial. If the client requests a jury trial on the issue of whether s/he is gravely disabled, the court may extend the period of temporary conservatorship until the jury trial. However, the extension period before trial can never be longer than six months. (See "What's Grave Disability?" which follows.)

During the 30-day period, the patient can be detained at the hospital involuntarily if the temporary conservator gives consent to the hospitalization.

At the conservatorship hearing, the patient will be represented by a lawyer and will have a chance to present evidence to show that a conservatorship is not needed. Many patients find that it helps to have friends and/or family present who will testify on their behalf and offer practical assistance in terms of housing and support.

If the judge or jury decides that the patient is "gravely disabled" and needs a "permanent conservator" for a period of time longer than 30 days, a conservator can be appointed for a one-year period. This appointment may be renewed annually. The person appointed to be conservator can be a person from the guardian's office, or can be a family member or a friend or some other person. At the judge's discretion, the conservator may be given the power to consent to psychiatric treatment for the patient whether or not the patient wants it. However, non-psychiatric medical decisions are still up to the patient unless s/he has been judged incompetent to make those decisions as well. There are additional powers that the conservator can be given which are described in Welfare and Institutions Code 5357 and 5358. These include not allowing the client: to possess a driver's license, to vote, to enter into contracts or to refuse general medical treatment.

Any person placed on conservatorship can file a petition in the Superior Court for a rehearing. ( 5364). However, after the rehearing has been held, if the court decides that the person must remain on conservatorship, the person must wait for six months before filing another petition for a rehearing. Furthermore, any person on a conservatorship may a file a petition to contest any of the specific rights they have lost, or powers granted to the conservator. The person can file at any time, but once one petition has been filed and heard, the person must wait six months before being able to file again. ( 5358.3).

A Writ of Habeas Corpus is available to clients on temporary conservatorship. Writs are also available to clients on year-long conservatorship, if conditions or their placement become substantially more restrictive.

Writs Of Habeas Corpus For Psychiatric Clients:

Statutory v. Constitutional Writs

1. Distinctions

Statutory writs are provided for explicitly in the statute. The client is guaranteed to get into court within 48 working hours of when the petition for writ of habeas corpus is filed. The client is guaranteed free counsel if s/he cannot afford to pay.

Constitutional writs are available whenever someone is held against his/her will (i.e. jail, child custody disputes, and psychiatric holds where statutory writ is not provided). A conservatorship, even one in which the client is not confined to a facility, is still a hold (due to loss of liberty and imposition of stigma).

For constitutional writs, there is no guarantee that the client will get to court. Therefore, it is extremely important to fill out the form correctly. Also, there is no guarantee of court-appointed counsel. If the client does go to court, there is no speedy deadline for this to occur.

Conservatees should exhaust other remedies before filing constitutional writs (petitions for rehearings on status as conservatee and to have rights restored).

STATUTORY WRITS apply to:

• 5250 et seq 14-day certification
• 5260 2nd 14-day certification for imminently suicidal (this is still a 14-day certification)
• 5308 Revocation of outpatient status of one on a post-certification hold for dangerousness to others
• 5353 Temporary Conservatees

CONSTITUTIONAL WRITS apply to:

• 15150 72 hour involuntary hold
• 15300 et seq People held on post-certification holds for dangerousness to others only have statutory right to writ when outpatient status is revoked. In all other situations, they are limited to constitutional writs.

In Re Gandolfo Conservatees (not temporary conservatees) (1984) for which statutory review procedures 36 Cal 3d (rehearings) are inadequate and result in unreasonable, detrimental consequences.

PETITION FOR A WRIT OF HABEAS CORPUS -- LPS ACT

INSTRUCTIONS FOR PREPARING AND FILING PETITION

IN STATE COURTPREPARING THE PETITION

General Considerations

1) Read the entire form as well as these instructions before answering any questions.

2) Fill out the form as clearly as possible in ink or by typing your answers.

3) If you don't have enough space to answer any of the questions, finish your answer(s) on (an) additional page(s) and attach them to the back of the page. Note on the petition that your answer is "continued on additional page(s)."

4) Attach copies of any documents which support your claim or which are necessary to understand your claim. For example, if you were put in restraints without sufficient grounds, you might wish to include the copies of any complaints you've filed or copies from your medical chart.

5) Make certain that all of the statements you make are true to the best of your knowledge. If you make statements in the petition you know to be false, you can be prosecuted for perjury.

Instructions for Filling Out the Petition Form

For your reference, a blank petition has been attached. It may be helpful to refer to these when reading the directions below.

A) Boxes at the Top of the Petition Form

1) In the box that says "ATTORNEY OR PETITIONER WITHOUT AN ATTORNEY" fill in your name, the facility name and address, and the phone number (with area code)at which you can receive calls. For example, if you are a patient at Napa State Hospital, you would fill out this first box as follows:

Your name

c/o Napa State Hospital

2100 Napa-Vallejo Highway

Napa, CA 94558-6293

Remember to include your phone number and date of birth where indicated.

2) In the box that says "SUPERIOR COURT OF CALIFORNIA, COUNTY OF: " write the name of the county where you are presently confined. For example, Napa State Hospital is in Napa County.

3) Below the phrase "IN THE MATTER OF (NAME):" write your full name.

4) Leave the box that asks for your case number blank; the court will assign you a case number after your petition is filed.

B) Numbered questions/statements

1) Write the name of the hospital in which you are being held and, if you know, the name of your treating psychiatrist.

2) Write the date of your admission next to the phrase "(date)" on the first line of this section. Then, check the box that states your legal status. For example, if you are being held on a 14-day certification, check the box that says "W & I 5250 (14-day certification)."

3) If you are challenging the legitimacy of your confinement:

Check box "a", and list the reasons you believe your confinement to be illegal. For example, if you are being held on the basis of "grave disability" and you believe that you now have the ability to provide for your food, clothing and shelter needs, state this, and provide any information you have to show how you would meet your needs, including the assistance of other individuals or agencies. If you are being held on the basis of dangerousness to self or to others, and you feel that you are no longer a danger to yourself or others, state this, and provide any information you have to support that you are no longer a danger to yourself or others. Use extra sheets if you need to.

If you are challenging the conditions of your confinement:

Check box "b", and clearly describe the rights that are being denied you while you are confined, and the date(s) on which the violation(s) occurred. You can challenge the denial of any right which you are entitled to under state or federal law (including the constitution, court cases, statutes and administrative regulations) or under the policies of the facility in which you are being held. These might include such rights as the right to access to your possessions, the right to have visitors, the right to make phone calls and send and receive mail, the right not to be secluded or restrained inappropriately or excessively, the right not be involuntarily medicated on a nonemergency basis, etc. (For examples, see Welfare and Institutions Code 5325.) As noted above, it will be helpful (but is not necessary) for you to refer in your petition to the statute number, policy number, case citation, etc. guaranteeing the(se) right(s).

Usually, you can only protest when rights are currently being denied you or when you have evidence you will be denied your rights in the foreseeable future (such as if you are told that you are going to be transferred to a more restrictive unit/facility).

If you have been denied a right in the past and feel that you are at risk of being denied that right again for similar reasons, you may claim this as a right which has been violated. For example, if you were put in restraints for refusing medication, and the staff still claims that it has the right to do so, you could claim this as a violation of your rights, even if you have now been released from restraints, as you might be put in restraints again for the same reason in the future.

4) Check boxes a, b, c, and d. If you cannot afford an attorney to represent you in the habeas proceeding, next to or below box "d," you should write "including appointment of counsel to represent me in this action, as I am indigent."

C) Verification and Signature

Write the current date where indicated. Print or type your name on the line in the bottom, left corner. Sign your name on the line in the bottom, right corner.

FILING THE PETITION

1) Mail the originals and two (2) copies of the petition and any supporting documents (including any request for appointment of counsel) to the Superior Court for the County in which you are being held. For example, if you are being held in Napa State Hospital, the address is:

Napa County Superior Court

825 Brown St., P.O. Box 880

Napa, 94559-0880

E. What is Grave Disability?

(From Patients' Rights Advocacy and Training, Martinez, CA)

As a basis for involuntary commitment, Welfare and Institutions Code 5008 defines "grave disability" as: "A condition, in which a person, as a result of a mental disorder, is unable to provide for his or her basic needs for food, clothing or shelter..."

In the landmark case, Doe v. Gallinot, 486 F.Supp. 983 and 991, the court explored the meaning of "grave disability" in light of the U.S. Constitution. It stated:

"...standards for commitment are constitutional only if they require a finding of dangerousness to others or self," (cites omitted). It added, "The threat of harm to oneself may be through neglect or inability to care for oneself." (quoting from Doremus v. Farrell, 407 F.Supp. 509 514, 515). (1975)

The court determined that California's standard of "grave disability" meets the constitutional test, in that "it implicitly requires a finding of harm to self: an inability to provide for one's basic personal needs." Doe v. Gallinot, at 991.

The court cautioned, however, that the standard could easily be misapplied:

Even well intentioned persons might find that certain standards of food, clothing and shelter are "basic", even though failure to meet them does not harm or endanger a person sufficiently to justify confinement. (Id.)

To support a finding of "grave disability" it is not sufficient to conclude that a person is without food, clothing and shelter due to a mental disorder, if the failure to meet these needs has not actually resulted in danger or harm to the person. Because of the implicit, rather than explicit component of dangerousness in the California definition of "grave disability," the court concluded:

... For these reasons, there is a significant risk of erroneous application of the standard and due process requires a hearing to review probable cause for detention beyond the 72 hours emergency period. (Id.)

In the recent case, Conservatorship of Bonvenuto, 226 Cal.Rptr. 33 (1986), the California Court of Appeals further specified that a finding of "grave disability" must be based on a present condition, and not one predicted by medical witnesses. (Id. at 35). In this case, witnesses testified that the patient would become "gravely disabled" due to a propensity not to take anti-psychotic medication. The court concluded that this type of prediction was not sufficient to sustain a finding of "grave disability", and overturned the petition.

In Conservatorship of Smith, 87 Cal.App. 3d 903, the California Court of Appeals reaffirmed that if a person's refusal to seek shelter is not life threatening, such refusal cannot be grounds for a finding of "grave disability." Also, a person need not provide for her/his own food, clothing and shelter, as long as s/he possesses the basic abilities to elicit help from others.

In short, a person certified as "gravely disabled" must: 1) presently, 2) be unable to provide for food, clothing and shelter, 3) due to a mental disorder, 4) to the extent that failure to do so results in danger or harm to the person.

Discussion Questions

You are on a locked ward leading a discussion with the patients about their rights. How will you answer the following questions?

1. Sarah just arrived yesterday on a 72-hour hold. She wants to know how long she can be held here.

2. Chris lost his certification review hearing, but would still like to leave. What can you tell him?

3. Samuel says he was on a 14-day hold but the 14 days are over and he is still being detained. He wants to know why.

CHAPTER 5

ADVOCACY FOR CLIENTS IN RESIDENTIAL

(BOARD AND CARE) HOMES CLIENTS WHO LIVE IN RESIDENTIAL CARE HOMES (COMMONLY CALLED BOARD AND CARE HOMES) ARE ALSO ENTITLED TO PROTECTION OF THEIR RIGHTS. No person, simply by virtue of living in a residential care home, loses any of the fundamental rights and responsibilities guaranteed to everybody by the Constitution and by law.

To protect the rights of people in residential care homes it is important to be aware of four different sources of rights information.

1. Title 22 of the California Code of Regulations (formerly the California Administrative Code) 80000 et seq and 85000 et seq.

2. State and local landlord/tenant principles.

3. Local zoning laws.

4. Other laws that affect the rights of clients.

A. Title 22 of the California Code of Regulations 80000 and 85000

These are regulations which are enforced by the Department of Social Services: Division of Community Care Licensing. Not all board and care homes are regulated by the Division of Community Care Licensing. Unlicensed board and care homes will be discussed later. For specific citations please refer to the Title 22 code which is found in the Resource Guide.

Five areas of focus are: the sections of Personal Rights; Admissions Agreements and Procedures; Eviction Procedures; Needs and Services Plans; and Resident Councils.

1. Personal Rights

According to the Department of Social Services (DSS) Manual Letter No. 83-48 (22 CCR 80072):

(a) each client shall have personal rights which include, but are not limited to, the following:

(i) To be accorded dignity in his/her personal relationships with staff and other persons.

(ii) To be accorded safe, healthful and comfortable accommodations, furnishings and equipment to meet his/her needs.

(iii) To be free from corporal or unusual punishment, infliction of pain, humiliation, intimidation, ridicule, coercion, threat, mental abuse, or other actions of a punitive nature, including but not limited to: interference with the daily living functions, including eating, sleeping, or toileting; or withholding of shelter, clothing medication or aids to physical functioning.

(iv) To be informed, and to have his/her authorized representative, if any, informed, by the licensee of the provisions of law regarding complaints including, but not limited to, the address and telephone number of the complaint receiving unit of the licensing agency, and of information regarding confidentiality.

(v) To be free to attend religious services or activities of his/her choice and to have visits from the spiritual advisor or his/her choice.

(1) Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis.

(vi) To leave or depart the facility at any time.

(1) The licensee shall not be prohibited by this provision from setting curfew or other house rules for the protection of clients.

(2) This provision shall not apply to minors and other clients for whom a guardian, conservator, or other legal authority has been appointed.

(vii) Not to be locked in any room, building, or facility premises by day or night.

(1) The licensee shall not be prohibited by this provision from locking exterior doors and windows or from establishing house rules for the protection of clients provided the clients are able to exit the facility.

(2) The licensee shall be permitted to utilize means other than those specified in (1) above for securing exterior doors and windows only with the prior approval of the licensing agency.

(viii) Not to be placed in any restraining device, except a supportive restraint approved in advance by the licensing agency as specified in (1) through (5) below.

(1) Supportive restraints shall be limited to appliances or devices including straps, spring release trays, or soft ties, used to support a client in a bed, chair, or wheelchair to prevent falling.

(2) The request for prior approval to use supportive restraints shall include a written order of a physician indicating the need for such restraints. The licensing agency shall be authorized to require other additional documentation in order to evaluate the request.

(3) Approved supportive restraints shall be fastened or tied in a manner which permits quick release.

(4) The licensing agency shall approve the use of supportive restraints only after the appropriate fire clearance, as required by 80020, has been secured.

(5) The licensing agency shall have the authority to grant conditional and/or limited approvals to use supportive restraints.

(ix) To receive or reject medical care, or health-related services, except for minors and other clients for whom a guardian, conservator, or other legal authority has been appointed.

(b) All clients, or their authorized representative(s) shall be personally advised of and given at admission a copy of the rights specified in (a)(i) through (ix) above and in the applicable Personal Rights sections of Chapters 2 through 7.

(c) The information specified in (b) above shall be permanently posted in areas accessible to such clients and their visitors.

(d) The licensee shall ensure that each client is accorded the personal rights as specified in this section and the applicable sections of Chapters 2 through 7.

The personal rights that belong to every resident of a board and care home under Title 22 Calif. Code of Regs. 85000 are:

(a) To visit the facility with his/her relatives or authorized representative prior to admission;

(b) To have the facility inform his/her relatives or authorized representative, if any, of activities related to his/her care and supervision, including, but not limited to notification of any modifications to the needs and services plan;

(c) To have communications to the facility from his/her relatives or authorized representative answered promptly and completely;

(d) To have visitors, including advocacy representatives, visit privately during waking hours, provided that such visitations do not infringe upon the rights of other clients;

(e) To wear his/her own clothes;

(f) To possess and control his/her own personal items, including his/her own toilet articles;

(g) To possess and control his/her own cash resources;

(h) To have access to individual storage space for his/her private use;

(i) To have access to telephones in order to make and receive confidential calls, provided that such calls do not infringe upon the rights of other clients and do not restrict availability of the telephone during emergencies;

The licensee shall be permitted to require reimbursement from the client or his/her authorized representative for long distance calls.

The licensee shall be permitted to prohibit the making of long distance calls upon documentation that requested reimbursement for previous calls has not been received.

(j) To mail and receive unopened correspondence;

(k) To receive assistance in exercising the right to vote;

(l) To move from the facility in accordance with the terms of the Admissions Agreement.

2. Admission Agreements and Procedures

2.1 Admissions Agreement

An Admissions Agreement shall specify the following:

(a) payment provisions, including the client's funding source, the disclosure of which shall be at the client's discretion;

(b) general facility policies which are intended to ensure that no client, in the exercise of his/her personal rights, in rights upon the personal rights of any other client;

(c) those actions, circumstances, or conditions which may result in a client's eviction from the facility.

2.2 Admissions Procedures

The licensee shall develop, maintain, and implement admission procedures which shall meet the requirements specified in this section.

No client shall be admitted prior to a determination of the facility's ability to meet the needs of the client, which shall include an appraisal of his/her individual service needs as specified in 85068.2.

Prior to accepting a client for care and supervision, the person responsible for admissions shall interview the prospective client, and his/her authorized representative, if any.

An admission agreement, to be legal, cannot require that a client waive any rights as a term of admission.

3. Eviction Procedures

The licensee shall be permitted to evict a client by serving the client with a 30-day written notice to quit for any of the following reasons:

(a) Non-payment of the rate for basic services within ten days of the due date.

(b) Failure of the client to comply with state or local law after receiving written notice of the alleged violation.

(c) Failure of the client to comply with the facility policies as specified in the Admissions Agreement.

(d) A needs and services plan modification has been performed, as specified in

85068.3, which determined that the client's needs cannot be met by the facility and the client has been given an opportunity to relocate as specified in 85068.3(bX3).

(e) Change in the use of the facility.

The licensee shall be permitted to evict a client by serving the client with a three-day notice to quit provided that both of the following requirements have been met:

(a) The licensing agency has granted prior written and/or documented telephone approval for the eviction. The licensing agency shall reply to a request for such approval within two working days OR failure of the licensing agency to reply within two working days shall be considered approval.

(b) The client has engaged in or is engaging in behavior which is a threat to his/her mental and/or physical health or safety, or to the health or safety of the others in the facility.

The licensee shall set forth in the notice to quit the reasons for the eviction, with specific facts including the date, place, witnesses and circumstances.

The licensee shall, upon completion of the procedures specified above, notify or mail a copy of the notice to quit to the client's authorized representative, if any.

A written report of any eviction processed in accordance with the above shall be sent to the licensing agency within five days of the eviction.

Nothing in this section is intended to preclude the licensee or client from invoking any other available remedy.

Note that refusal to take medications is not among the grounds for eviction. If a client does not have a conservator, that client has the right to decide whether or not to take medications. However, a person who is on a conservatorship may be required to take medications by his/her conservator even over the client's objections if a court has found that the client does not have the right to make decisions by reason of being "gravely disabled." ( 5357(d)). However, the conservator also has a responsibility to try to help the client maintain in a living setting which is the least restrictive of the person's independence. If the client wants to withdraw from medication use and feels he or she can maintain in the community without the medication, the client should try to negotiate with the conservator and doctor to reduce/withdraw from medications.

Another important feature of this provision is that, even if any of the grounds for eviction are present (see above in bold), the client is still entitled to a 30-day notice. The only way a client can be evicted in the shorter period (three days) is if the board and care operator requests a waiver from Licensing. Only if Licensing has not denied the request within two working days may the operator licensee give a client a three-day notice. In order to apply this exception, a client must have acted in a way that is a threat to the physical and/or mental safety of that client or others in the facility.

These provisions (30-day eviction and three-day eviction) are to provide residents with NOTICE. To actually evict a client bodily, operators must go to court under UNLAWFUL DETAINER statutes.

4. Needs and Services Plan

Every resident in a residential care facility is entitled to a Needs and Services Plan that is tailored to his/her specific needs and desires.

The Needs and Services Plan shall include:

(a) the client's desires and background regarding the following, obtained from the client or his/her authorized representative, if any:

(i) Entrance to the facility;

(ii) Special services needed, if any;

(iii) Health history;

(iv) Mental condition;

(v) Functional limitations.

(b) Any needs appraisal or individual program plans completed by a placement agency or consultant.

(c) Facility plans for providing services to meet the individual's needs identified above.

The following persons shall be involved in the development of the Needs and Services Plan:

(a) The client, or his/her authorized representative, if any;

(b) Any relative participating in the placement;

(c) The placement or referral agency, if any;

(d) The person responsible for facility admissions.

4.1 Modifications to the Needs and Services Plan

The written Needs and Services Plan specified in 85068.2 shall be updated by any of the parties (listed above) who were involved with its development, as frequently as necessary to assure its accuracy, and to document significant occurrences which result in changes in the client's physical, mental and/or social functioning.

If modifications to the plan identify an individual client service need which is not being met by the general program of facility services, the following requirements shall be met:

Consultation shall be secured from a dietitian, physician, social worker, psychologist or other consultant as necessary to assist in determining if such needs can be met by the facility within the facility's program of services.

If it is determined that the needs can be met, the licensee, in conjunction with the consultant, shall develop and maintain in the facility a written services plan which shall include the following:

(a) Objectives, within a time frame, which relate to the client's problems and/or needs;

(b) Plans for meeting the objectives;

(c) Identification of any individuals or agencies responsible for implementing and evaluating each part of the plan;

(d) Method of evaluating progress.

If it is determined that the needs cannot be met, the licensee shall bring this fact to the attention of the client and/or, his/her authorized representative, if any, and request that the client relocate.

If the client refuses to relocate, the licensee shall be permitted to evict the client in accordance with 85068.5(a).

Since regulations require the client's direct involvement in this plan, it is important that client be aware of the specifics and feel free to ask for changes. Some clients may not even be aware that such a plan exists or that they have a right to an individual plan. The home operators are obligated to make this information known to each client.

5. Resident Councils

Each facility with more than six residents shall assist its residents in establishing and maintaining a resident-oriented facility council, at the request of a majority of its residents.

The licensee shall provide space and post notice for meetings, and shall provide assistance in attending council meetings for those residents who request it.

If residents are unable to read the posted notice because of a physical or functional disability, the licensee shall notify the residents in a manner appropriate to that disability, including but not limited to verbal announcements.

The licensee shall document notice of meetings, meeting times, and recommendations from council meetings.

In order to permit a free exchange of ideas, at least part of each meeting shall be conducted without the presence of any facility personnel.

Residents shall be encouraged, but shall not be compelled, to attend council meetings.

B. What Can Be Done When a Resident's Rights Are Violated?

Although the preceding sections have shown that residents in board and care homes have numerous rights and protection, a resident may feel that his or her rights have been violated. In such a case, it is usually best if s/he can talk directly to the board and care operator or any other person who may be in a position to make the desired changes. However, if the resident feels intimidated, or does not get a satisfactory response, then an advocate can be very helpful.

C. Assistance From Advocates

Among the rights of board and care home residents is the right to receive visits from an advocate. ( 85072(a)(4)(2)). An advocate can be of help in a number of ways. An advocate can assist the resident in compiling data to substantiate a complaint, and can help a resident contact Licensing, if necessary. An advocate can also help clients get hooked up with community services they are entitled to, like public benefits and protection of their rights as tenants.

Also, an advocate may be able to give informal assistance in working out some of the problems between a resident and an operator. An advocate can help the residents feel more confident about themselves and more comfortable in asserting their rights. Sometimes, an operator may only need to be made aware of a problem or be reminded of the law in order to make the appropriate changes.

By promoting understanding and cooperation, an advocate can do much to resolve a problem before it becomes necessary to call Licensing. Many board and care home operators want to do everything possible to run their board and care homes properly, and are open and receptive to working out problems.

D. Community Care Licensing

The State Department of Social Services, under the Division of Community Care Licensing (referred to as "Licensing") is legally required to assure that licensed board and care homes are run according to the regulations. Each area's local office is listed in the phone book in the State Government listings under "Social Services Department."

1. Placing a Call to Community Care Licensing

Anyone can call Community Care Licensing if there is abuse or suspected abuse in a board and care home. The person calling can either give his/her name or can call anonymously. If the person gives his/her name, he/she can request that this information be kept confidential.

Before calling Licensing, it is important to have as much specific, concrete information as possible, including dates, times, names if possible, and a thorough description of the problem. Licensing will want to know the zip code of the board and care home. All of this information will aid Licensing in conducting their investigation. It is also important for a caller to be as calm as possible, so that the person at Licensing can understand clearly and get all the necessary information.

On the basis of a call, Licensing will then make an announced or unannounced visit. On the basis of this visit, the Licensing person will see if the complaint can be substantiated. This can be done by talking to people and by making observations. If the Licensing person determines that the complaint has substance, and it is a citable offense, Licensing will issue a formal statement which will describe the problem and will cite the regulations that are being violated.

Once a citation has been issued, Licensing will normally give the board and care home operator a chance to correct the problem before levying a fine. If the problem is not corrected in a reasonable assess a fine of between $25.00 and $50.00 for each day the violation continues.

If the problem continues in spite of the fines, Licensing can issue a Temporary Suspension Order (T.S.O.) (22 CCR 80042). If the board and care home operator appeals this T.S.O., a hearing will be set within 30 days. If the appeal is rejected, the board and care home can be shut down. Licensing will only shut down a board and care home as a last resort. To close a board and care home down can be very difficult for everyone, especially for the residents who have to move suddenly to a different place. For this reason, Licensing does everything possible to work with the board and care home to resolve difficulties.

2. Assistance From Ombudsmen

Ombudsmen have the responsibility of investigating complaints regarding elder abuse, and also the abuse or suspected abuse of any dependent adult (WIC 15630). An ombudsman can be a good liaison between a resident and licensing agencies and other governing bodies. For a more thorough description of the role of an ombudsman, see Chapter III, Overview of Related Systems: What is an Ombudsman?

3. General Legal Assistance

Additionally, clients and advocates should become acquainted with local legal services agencies to assist with landlord/tenant matters, public benefits and other legal issues. (See the Resource Guide for a list of various legal resources throughout the state.)

E. Unlicensed Boarding Houses

In addition to board and care homes which are licensed by the State Department of Social Services, there are some boarding houses which are available to clients which are not licensed as board and care homes. Therefore, the Department does not have jurisdiction for the purpose of monitoring the condition of these homes.

Nonetheless, as citizens, the residents of boarding houses are entitled to live in a dignified and healthful environment. The residents are paying for a service. The operation of these homes is therefore subject to local and state laws governing fair business practices.

Furthermore, board and care home and boarding house residents can expect protection of their rights as tenants, including the right to live in a place that is clean, safe and habitable, and the right to be protected against illegal eviction practices.

Discussion Questions

You have just met with a group of board and care residents to discuss the rights that they have. How would you answer the following questions?

1. Sharon has lived at the home for three years. She does not have a conservator. She recently decided that she could do better without her medications, and stopped taking them. A few days ago she lost her temper and yelled at the board and care operator because she thought the operator was treating her like a child. She was then told that if she did not resume taking her medication, she would have to move out. What are her rights?

2. James is on SSI. His checks arrive in his own name. Every month when he gets his check, he immediately signs it over to the board and care operator. She used to take out money for room and board and give him what was left for his personal use. Recently, the house rules were changed. The residents are now required to pay into a fund, and the operator purchases clothing and sundry items for the residents out of that fund and distributes them according to her discretion. James does not like this plan because he likes to control his own money. He is afraid, though, that if he says anything to her she will get mad and hold it against him. What can you say or do?

3. All the residents have use of a washing machine and dryer which is kept in the basement. The lighting on the basement stairway is very poor. Also, for the last two months, the washing machine has been spilling over a little, and there is always a pool of water on the floor around the machine. Several of the residents have mentioned this problem to the people who run the home, but nothing has been done. What can you suggest?

CHAPTER 6

ENTITLEMENT RIGHTS: SOCIAL SECURITY

(Written by Tanya Temkin)A stable and adequate income is the most basic need for people trying to live independently. However, the law does not recognize this need as a formal right. The benefits of federal, state, and local government programs such as Social Security Disability, SSI, general assistance, food stamps, etc., are available only to people who meet eligibility standards that are specific to each program.

All these benefits programs have certain things in common: any person has the right to apply for any of these benefits; any person whose application is turned down has the right to appeal that decision; and all people who are finally found to be eligible hold certain rights as recipients.

A. Social Security Disability and SSI: In General

The two major federal financial programs providing income for people with disabilities, including mental disabilities, are Supplemental Security Income (SSI) and Social Security Disability Income (SSDI). SSI is authorized by Title 16 of the Social Security Act, and SSDI is part of Title 2 of that Act.

BOTH are administered by the Social Security Administration (SSA).

BOTH are for people who have physical or mental impairments which:

(a) can be shown by medical evidence such as clinical findings or lab tests, and

(b) are serious enough to prevent a person from doing any substantial gainful work (i.e. earning a gross monthly income of $500), and

(c) have lasted or can be expected to last for at least 12 continuous months or result in death.

The major difference between the two programs is that SSDI is an insurance program; persons who have worked and paid Social Security payroll (FICA) taxes for a certain minimum amount of time before becoming disabled can receive these benefits. SSI, on the other hand, is based on financial need (low income and low resources), not on insurance coverage. Many people get both SSDI and SSI.

There are two major medical coverage programs connected with the SSI and SSDI programs. Medicaid (called Medi-Cal in California) pars many medical costs for people on SSI; in California, all people who get SSI are automatically eligible for Medi-Cal. Medicare is a different program, which covers people who have been eligible for SSDI checks for 24 months. People who get only SSI don't get Medicare.

B. Other Features of the SSI and SSDI Programs

(This table compares SSI in column one to SSDI in column two.)

There is another type of disability benefit under the Title 2 program called Disabled Adult Child (DAC). DAC is for an adult person who is 18 years or older, became disabled before the age of 22, and who has a parent who is either (a) receiving Social Security retirement or disability benefits, or (b) a deceased Social Security taxpayer. A DAC recipient gets benefits based on the Social Security taxes of his/her parent. DAC claimants, like SSI and SSDI claimants, must prove that they are unable to work due to physical and/or mental impairments.

C. More About Income and Resources for SSI

NOTE: The figures quoted in this section on Social Security benefits are accurate as of January 1997. Social Security rates and regulations are constantly changing. Please check with your local Social Security office for the most recent figures.

To get any money from SSI, both your income and resources must be within certain limits. Resources means anything you own, such as cash, liquid assets, or real or other property which you can convert to cash to use for your support and maintenance. Some common examples are bank accounts, stocks or bonds, real estate, and, business inventory. The SSI laws say that certain types of property or assets don't count as "resources," for example, a home you own and live in as your principal place of residence, or a car worth up to $4,500. [If an automobile is required for employment, medical condition or requires special modifications for a person with physical abilities, the $4,500 limit may not apply.]

As of January 1997, the limit on countable resources is $2,000 for a single person on SSI and $3,000 for a married couple on SSI. If you have more than those amounts, you can't get any SSI at all.

Income means any cash, property, goods, or services you receive during a calendar month which you can convert to cash to meet basic needs for food, clothing or she