CONSTITUTIONAL AND STATUTORY RIGHTS

Many rights for patients are guaranteed by the United States Constitution, federal laws and regulations as well as by the Oregon Constitution, laws and administrative rules.  A summary of basic patient rights must be posted on the ward.  A person still has many of the rights that he or she had outside of the hospital such as the right to sell property, make contracts or wills, vote, buy consumer items, and marry.  Rights can be limited in some cases but not for punishment purposes.

A person in the state hospital has the right to:

·      Communicate freely.

·      Have reasonable access to a telephone.

·      Send and receive mail.

·      Have a written individualized treatment plan, kept up to date with the progress of the person.

·          Participate in developing their treatment plan at a level appropriate to person’s capabilities.

·     Wear personal clothing.        

·           Practice a religion of choice but not be forced to practice any religion.

·      Keep reasonable amounts of personal belongings on the ward in a private storage area.

·      Be given a reasonable supply of writing materials and stamps

·      Not be forced to work unless necessary for treatment

·      Receive wages for work done in the hospital, other than personal housekeeping.

·      Develop advanced directives for the person’s care in the case of future serious medical or psychiatric illness.

·      Assert grievances regarding infringement of rights.

·      Have grievances considered in a fair, timely and impartial grievance procedure.

·      Petition for a writ of habeas corpus, which is a way to ask a court to decide whether detention in the hospital is legal.

·      Representation by an attorney whenever substantial right(s) of the person may be affected

·      Exercise all civil rights in the same manner and with the same effect as one not admitted to the  state hospital, including the right to dispose of real property, execute instruments, make purchases, enter contractual relationships, and vote, unless the person has been found by a court to be incompetent and has not been restored to legal capacity.

·      Request documents in Alternate Formats such as Braille or sign services.

·      Exercise these rights without any form of reprisal or punishment.

  ORS 426.385; Oregon State Hospital Policy Number 6.003 (February 5, 2001)

A simple and clear statement of patient’s rights must be prominently posted in each room frequented by patients in all facilities housing such patients.  A copy of the statement must be given to each patient upon admission and sent, upon request, to the legal counsel, guardian, relative or friend of the patient.

ORS 426.395

TREATMENT RIGHTS

A person in a state hospital has a right to an up-to-date written treatment plan and treatment that is consistent with professional standards, and provided in a safe and humane environment.  At a minimum, a person has the right not to be subject to psychiatric malpractice and to receive treatment that gives a realistic opportunity to be cured or improve a person’s mental condition.  Youngberg v. Romeo, 457 U.S. 307 (1982).

RIGHT TO MAKE TREATMENT DECISIONS

A person has the right to receive information about proposed treatment before agreeing to that treatment.  The doctor must explain a person’s illness, the proposed medication or treatment, the risks and benefits of the proposed medication or treatment, alternatives to the treatment and what will happen if the person does not receive the treatment.  OAR 309-114-0010.  The doctor should tell the person about the side effects of the medication.  OAR 309-114-0010

(3)(b)(D).  One serious risk of some neuroleptic drugs (such as Prolixin or Haldol) is tardive dyskinesia.  Tardive dyskinesia can cause involuntary movements of the mouth, tongue, limbs or body and can be permanent.  Some drugs can cause serious injuries if the person has too much in his or her body.  These drugs, such as Lithium and Clozaril, must be monitored by periodic blood tests.

RIGHT TO REFUSE TREATMENT

A person has the right to refuse prescribed medication, electroconvulsive (shock) therapy, AIDS testing or other important treatments.  A person has a right to change his or her mind about consenting to or refusing treatment.  OAR 309-114-0010.

  OVERRIDING TREATMENT REFUSAL

Treatment can be given without consent only in the case of an emergency or if the person is not able to make decisions. If the doctor believes a person under civil commitment or otherwise involuntarily hospitalized is not mentally competent to make decisions about treatment, the doctor can ask to give medication or other treatment without the person’s consent but only by following Oregon law.  OAR 309-114-0000 through 309-114-0025.

First, the doctor must try at least two times, at different times, to explain the medication/ procedure and get the person to agree.  This “conscientious effort” must be recorded in the person’s record.  If, after two times, the doctor thinks the person is not able to make a decision, another doctor who does not work for the hospital must be called in to decide if the person is able to make an informed decision to consent to or refuse treatment.  OAR 309-114-0020.

  The person’s right to give consent or refuse treatment can be overruled if he or she is found unable to make decisions and the two doctors agree the proposed treatment would be beneficial.  ORS 426.385(2); OAR 309-114-0000 through 309-114-0025.  In these situations, the doctor can force the person to be medicated.  This over-ride decision remains in effect for only as long as no substantial increase in risk is encountered in administering the significant procedure and in no case for longer than one year.

A person can protest a decision to medicate or treat without consent by filing an emergency grievance. This grievance goes directly to the hospital grievance committee and not to the treatment team.  OAR 309-114-0010(8).

The procedure for forced treatment is only for involuntarily committed or hospitalized persons.  This procedure cannot be used to force treatment on voluntary patients.  A voluntary patient cannot be given medication or other treatment without his or her consent or the consent of his or her guardian.  A completed Declaration for Mental Health Treatment can provide the consent.  The treatment decisions of voluntary patients cannot be overruled except in an emergency, to protect life or safety. The state hospital may discharge voluntary patients who refuse medications or treatment recommended by hospital staff.

Because the override procedure applies only to committed persons, a person in the hospital for a court-ordered evaluation only, cannot be given medication or other treatment without consent except in an emergency to protect life or safety.  OAR 309-114-0005(8).

A person cannot be subjected to psychosurgery under any circumstances.  ORS 426.385(3)

AIDS/HIV TESTING

The AIDS/HIV test is an antibody test to see if a person has been exposed to the AIDS virus.  If the AIDS/HIV test is positive, it may mean the person is infected and can infect other people.  If the hospital asks a person to take an AIDS/HIV test, he or she has the right to be fully informed about the risks and benefits of that test.  The person has the right to refuse the AIDS/HIV test.  The hospital can try to override a refusal by following the same procedure described in the informed consent section.

SECLUSION AND RESTRAINT

A person has a right to be free from restraints of any form that are not medically necessary or are used as a means of coercion, discipline, convenience, or retaliation by staff.  Medication must not be used as a restraint, but instead prescribed and administered only according to acceptable medical, nursing, and pharmaceutical practices. 

The term restraint includes either a physical restraint or a drug that is being used as a restraint.  A physical restraint includes anything that cannot be easily removed that restricts freedom of movement or normal access to one’s body, including but not limited to locking a person in his/ her own room; restricting a person’s physical movement; using any physical device to restrict a person’s movement, such as leather belts.  A drug used as a restraint is a medication used to control behavior or to restrict a person’s freedom of movement and is not a standard treatment for the person’s medical or psychiatric condition.  Seclusion is the involuntary confinement of a person in a room or an area where the person is physically prevented from leaving.

A restraint should only be used if:

<                    A person is threatening immediate physical harm to him/ herself or others; and

<                    Measures other than the use of restraint are deemed ineffective to manage the person’s behavior.

When seclusion and/ or restraint is used, the staff must follow certain rules:

<                    A person should be asked, if practicable, for his or her preferences or aversions to various forms of intervention.

<                    A person’s wishes for or against particular forms of intervention must be respected by the person authorizing the use of restraint, provided that primary consideration must be given to the need to protect the person and others in the institution.

<                    A person in seclusion and/ or restraint must be checked every 15 minutes by staff. Moreover, a person in seclusion and/ or restraint must be continuously observed.  After the first hour, a person in seclusion may be continuously monitored by using both video and audio equipment.  The Registered Nurse should evaluate the need for continued seclusion and / or restraint as required by the person’s condition but no less frequently than four hours for adults.  After the person has been calm and cooperative during two successive observations, the nurse should either release the person from seclusion and / or restraint, or should interact with person face to face at least hourly to evaluate the need for continued seclusion and / or restraint.  If the person is not released after the face to face interaction, the nurse should document the reasons for continuing seclusion and / or restraint.

<                    A person must be offered nourishment according to regular meal and snack schedules.

<                    A person must be offered the opportunity to use the toilet at regular intervals.

<                    A person in physical restraint must be exercised for a period not less than 10 minutes during each 2 hours of physical restraint except between the hours of 9:00 p.m. and 6:00 a.m., if the person is attempting to sleep.

<                    A person’s environment while in seclusion and / or restraint must be made as comfortable as reasonably possible.

42 C.F.R. section 482.13; Oregon State Hospital Policy 6.003; [OAR 309-033-0700 through 309-033-0740, currently being revised]

SECLUSION AND RESTRAINT AS PART OF A TREATMENT PLAN

Seclusion and/or restraint also can be used as part of a planned treatment program if the person consents. If the person does not consent, planned seclusion and/or restraint can be used only if the person is not competent to make decisions and the override procedures previously described are used.  OAR 309-112-0017.  More extensive reviews may be required in some programs.

THE LEVEL SYSTEM

Most wards have a level system that states the freedoms and responsibilities a person may earn by following the treatment program.  Levels are described by letters or numbers.  The treatment team decides a person’s level.

The level system should be used for treatment purposes and not for discipline or punishment. A person’s legal rights should not be affected by level decisions. If a person is unable to change levels, he or she can use the grievance procedure to question why he or she is not advancing.

EXERCISE

A person has a right to fresh air and regular outdoor exercise unless weather or treatment needs make it impossible.

MONEY AND VALUABLES

A person may spend his or her own money as he or she likes, but the hospital can limit the amount of money that a person keeps on the ward.  The hospital must safeguard any money it is holding by placing it in an account under the individual’s name.

The hospital is responsible for providing each person with a locked storage space.  If property is being held by the hospital for safekeeping, a person has the right to know why it is being held and to have it returned upon release from the hospital.  Property can be kept from a person only because of safety, space, or treatment reasons.  All property should be listed separately on a written property list.  If a person’s property is lost or stolen and it is the hospital’s fault, the hospital must repay the person.

OAR 309-108-0000 through 309-108-0020.

SOCIAL SECURITY PAYEE

If a doctor tells the Social Security Administration that a person cannot handle his or her own money, the Social Security Administration can appoint an individual or agency to keep the person’s money and spend it for him or her.  This individual or agency is called a payee.  A person has the right to protest the appointment of a payee, request a different payee, or ask to be allowed to manage his or her own money.  A person may contact the Social Security Administration (1-800-772-1213) with any complaints about a payee.

If the state hospital is appointed as a payee for a person in the hospital, it will usually give some or all of the money to the state to pay for the cost of the person’s care.  If a person has special financial needs (for example, money for discharge), some of the money paid for cost of care can be returned to him or her.

  A payee may be a friend or relative.  A payee cannot be required to give any or all of a person’s money to the state to pay for cost of care.  A payee may save this money to purchase items that will improve conditions for the person while in the hospital or to help the person in the community when he or she gets out of the hospital.

HOSPITAL COST OF CARE

An individual can be billed for the cost of his or her care in the hospital even though the person is hospitalized involuntarily.  The state must look at the person’s ability to pay and can issue an ability to pay order. If a person disagrees with this ability to pay order, the person can request a hearing. The person has a right to appeal the hearing decision also.

A person cannot be forced to pay for cost of care with Social Security money.  A person cannot be forced or required to “voluntarily” sign over money.  The hospital cannot punish a person or treat a person differently because he or she does not pay the hospital bill.

ORS 179.610 through ORS 179.770; OAR 309-12-0025; OAR 309-12-0030 through OAR 309-12-0035; OAR 309-12-0100 through OAR 309-12-0115.

ACCESS TO AND CONFIDENTIALITY OF MEDICAL RECORDS

  Medical records are confidential.  Usually medical records cannot be given to anyone outside the hospital without written consent of the patient or guardian.  The law does allow release of medical records without consent in some circumstances such as in cases of medical emergency, to other service providers for treatment purposes and to governmental agencies to receive payment for services.  ORS 179.505.  Consent to release records may be withdrawn by telling staff and signing a statement.

Each person has the right to see all of his or her medical records except parts that the doctor believes would be harmful. If the doctor will not release the records, the person can file a grievance.  ORS 179.505(9).

See page 11 for discussion of  “Confidentiality” pertaining to a person who is awaiting a civil commitment hearing, held under a civil commitment or recommitment order.

ACCESS TO COURTS AND ATTORNEYS

Any person in a hospital has a right to confidential communication with an attorney and to hire an attorney for any purpose.

In some circumstances, an attorney will be appointed if the person cannot afford to pay for one. An attorney will be appointed for Psychiatric Security Review Board matters (See page 12) if the person cannot afford to hire an attorney.  If the state is trying to recommit the person, an attorney will be appointed. For issues involving a criminal case, a person may be able to have an attorney appointed.  The State Public Defender can be called for more information about the appointment of attorneys for criminal matters.  The State Public Defender number is 1-503-378-3349.

A person has the right to use a law library or other legal research resources.  Access can be withheld only for security or staffing reasons.

Staff must help with local and long distance calls to an attorney if a person cannot afford to call.  A private telephone must be provided for a person’s telephone call to his or her attorney.

PROTECTION FROM ABUSE AND NEGLECT

A person has the right to be protected from physical and mental abuse and neglect.  Abuse means hitting, kicking, scratching, pinching, choking, pushing, ridicule, harassment, coercion, threats, cursing, sexual assault or exploitation, neglect in care, lack of food, or other similar acts or failures to act.

A person, who thinks he or she has been abused, can report this abuse to the superintendent. The report of abuse should be in writing.  The report of abuse can be written on special hospital forms or any kind of paper.  If the person is unable to write, a staff person should assist the person in making the report.  If the facts are disputed, the superintendent must notify the Office of Investigation and Training (OIT) and ask the OIT to investigate.  After receiving the notice from the superintendent, the OIT has 14 days to investigate and submit a report to the superintendent.  The superintendent has 15 working days to make a determination whether the abuse occurred.

The superintendent must prepare a report containing a statement of the allegations, the information obtained as a result of the investigation and a finding of whether the allegation of abuse was substantiated, not substantiated or inconclusive.  The person who claims to have been abused has a right to receive a copy of this report.  OAR 309-116-0000 through 309-116-0090.

If a person has difficulty reporting his or her allegation of abuse and/ or neglect to the OIT, then the person may contact OAC for assistance.  In addition, if a person is concerned with the thoroughness, independence or general quality of the investigation itself, then the person may contact OAC to monitor and/ or review the investigation procedure.

Requesting an investigation of abuse and neglect does not stop a person from bringing other claims against the hospital for personal injury or reporting the incident to the State Police as a crime.

PERSONAL SEARCHES

In a state hospital, a person may be searched when staff has reasonable cause to believe the person has a prohibited item.  Only a nurse or doctor can conduct an internal examination of body cavities and only if the superintendent or designee gives permission. OAR 309-108-0010(7).  Each hospital or facility should have policies or rules about how and when searches can be conducted.

TRANSFERS

A person who has been civilly committed can be transferred to another hospital or facility under certain conditions.  MHDDSD can transfer a committed person if the transfer is for good cause and in the best interest of the person.  ORS 426.060(2)(b).  If the person objects to the transfer, the transfer must be suspended until the grievance procedure has been completed, unless immediate transfer is necessary for health or safety.  The superintendent must have written procedures for resolving grievances about transfers.  OAR 309-33-0430.  A person should never be transferred to another facility or ward as punishment.

A person who is in the forensics program (primarily persons who have been found guilty except for insanity or who are being evaluated for ability to aid and assist in a criminal case) is not likely to be transferred to another institution, but may be transferred to another ward within OSH.  A person can be transferred to a different ward for treatment reasons or for security reasons. Staff must inform a person of the transfer before the transfer takes place unless an emergency exists.  When transferred to a maximum-security ward, staff should tell a person what behavior will get him or her returned to a less restrictive ward.  If a person does not want to be transferred, he or she can file a grievance.  The filing of a grievance does not necessarily stop the person’s transfer to a different ward.  OSH Administrative Memorandum 1.016 and Oregon Forensic Psychiatric Center Policy and Procedure 3.003.

WHAT A PERSON CAN DO IF RIGHTS ARE BEING VIOLATED

The first step is to try to resolve the problem informally.  For example, the person could try to talk with the staff person involved or another staff person.

If a person is not satisfied, she or he may file a grievance.  The state hospitals have a four level grievance procedure.

LEVEL 1--THE TREATMENT TEAM

The first step is to file a written grievance with the treatment team.  The grievance must be in writing and may be written on a form provided by staff or on any piece of paper.  Staff should help a person who wants to file a grievance or appeal a decision but is unable to write. The treatment team must meet with the person about the grievance and consider any information he or she furnishes.  The treatment team must give a written response to the grievance within 20 days of the date the grievance was submitted to staff.

If the person is not satisfied with the treatment team response or the proposed solution, he or she may appeal the treatment team decision to the hospital grievance committee.

LEVEL 2--THE GRIEVANCE COMMITTEE

The second step is to appeal the treatment team decision to the hospital grievance committee.  The appeal must be in writing and filed within 14 days of the treatment team decision.  The grievance committee has to tell the person in writing, at least three days before the hearing, when the hearing will be held.  At that hearing, a person may be represented by an advocate, attorney or any other person.  A person can call witnesses and question witnesses called by the grievance committee.  The grievance committee must give a written response within 21 days of this hearing.

LEVEL 3--SUPERINTENDENT’S REVIEW

The third step is to appeal to the superintendent of the hospital.  The appeal request must be in writing and state the reasons for requesting the review.  The superintendent must respond to the grievance in writing.

LEVEL 4--MHDDSD ADMINISTRATOR

  The final step is to appeal to the MHDDSD Administrator.  The request must be in writing.  The administrator must respond in writing.  The administrator’s decision is final.

EMERGENCY GRIEVANCES

If a grievance needs to be resolved quickly because a person will suffer irreparable harm to a substantial right if it is not resolved, a person can file an emergency grievance.  An emergency grievance is filed directly with the grievance committee.

OAR 309-118-0000 through 309-118-0050

LAWSUITS AGAINST THE STATE HOSPITAL

A person can sue the hospital if she or he has a legal claim.  A person cannot be punished for doing so. Because the hospital is part of state government, a person must file the lawsuit or notify the state in writing of a loss or injury within 180 days of the loss or injury.  A person who might have a claim should speak to an attorney as soon as possible.  The attorney can tell whether the person has a valid claim and what time deadlines apply.