STATUTORY AND CONSTITUTIONAL RIGHTS

Many people receive mental health services outside the state hospital.  Even persons who are civilly committed often receive treatment in private hospitals that have contracts with the state. Additionally, more people are receiving services in facilities, group homes and independent residences rather than in hospitals.

A person who is receiving services outside the state hospital system has the same rights as any other person who is a citizen of the United States.  These include the right to:

·        Vote

·        Exercise freedom of speech, freedom of association and freedom of religion.

·        Have privacy, including the right to marry and have children.

·        Be free from discrimination based on race, gender, color, national origin or disability.

In 1993, the legislature passed legislation that sets out some specific rights of persons receiving mental health or developmental disabilities services.  A person who is receiving mental health or developmental disabilities services outside of the state hospital has the right to:

·        Have a written treatment plan and participate in making the plan.

·        Choose from available services and have those services provided in the least restrictive way.

·        Receive only services to which a person gives informed, voluntary, written consent.

·        Receive medication only for individual clinical needs.

·        Not be involuntarily terminated or transferred from services without prior notice and the right to be notified of available sources for necessary services.

·        Receive humane services, be protected from harm and have reasonable privacy.

·        Be free from abuse and neglect.

·        Report abuse and neglect without retaliation.

·        Exercise religious freedom.

·        Not be required to perform labor, except personal chores, without being paid.

·        Visit with family, friends, advocates, legal and medical professionals.

·        Be told about rights and how to report abuse.

·        Assert grievances and have them considered in a fair, timely and impartial manner.

·        Communicate with any rights program or advocate. 

·        Exercise these rights without any reprisal or punishment..

ORS 430.210.

RIGHTS OF PEOPLE ON THE OREGON HEALTH PLAN

The Oregon Health Plan (OHP) is a Medicaid program that provides medical treatment to low income people.  OHP members have additional rights with regards to their medical treatment. 

All OHP members have the following rights:

¨      To be treated with dignity and respect;

¨      To be treated by providers the same as other people seeking health care benefits to which they are entitled;

¨      To choose a managed care plan or primary care case manager, a practitioner or service site, and to change those choices as permitted in OAR 410-141-0080.

¨      To refer oneself directly to mental health, chemical dependency or family planning services without getting a referral from a primary care physician or other provider;

¨      To have a friend, family member, or advocate present during appointments and at other times as needed within clinical guidelines;

¨      To be actively involved in the development of his/her treatment plan;

¨      To be given information about his/her condition and covered and non-covered services to allow an informed decision about proposed treatment(s);

¨      To consent to treatment or refuse services, and be told the consequences of that decision, except for court ordered services;

¨      To receive written materials describing rights, responsibilities, benefits available, how to access services, and what to do in an emergency;

¨      To have written materials explained in a manner which is understandable to the OHP member;

¨      To receive necessary and reasonable services to diagnose the presenting condition;

¨      To receive covered services under the Oregon Health Plan which meet generally accepted standards of practice and are medically appropriate;

¨      To obtain covered preventive services;

¨      To have access to urgent and emergency services 24 hours a day, 7 days a week.

¨      To receive a referral to specialty practitioners for medically appropriate covered services;

¨      To have a clinical record maintained which documents conditions, services received, and referrals made;

¨      To have access to one's own clinical record, unless restricted by statute;

¨      To transfer a copy of his/her clinical record to another provider;

¨      To execute a statement of wishes for treatment, including the right to accept or refuse medical, surgical, chemical dependency or mental health treatment and the right to execute directives and powers of attorney for health care.

¨      To receive written notices before a denial of, or change in, a benefit or service level is made, unless such notice is not required by federal or state regulations;

¨      To know how to make a complaint with the managed care health plan and receive a response;

¨      To request an administrative hearing with the Department of Human Services;

¨      To receive interpreter services; and

¨      To receive a notice of an appointment cancellation in a timely manner.

OAR 410-141-0320

GRIEVANCE PROCEDURES

If a person has a problem, the person should attempt to resolve the problem by talking with the people involved.  If this does not work, the next step is to file a grievance.

Most facilities and mental health service providers must have grievance procedures.  Each grievance procedure may be different, but all give a method to complain about the way a person is being treated.  Usually, the grievance procedure explains how to make a complaint and who will hear the complaint.

Also, the grievance procedure should have a way to appeal to someone else if the individual does not agree with the first decision.

INVOLUNTARY MEDICATION OUTSIDE THE STATE HOSPITALS

In some situations, a person receiving services outside the state hospital may still be medicated without his or her consent.  A person who is civilly committed and resides in a hospital, approved non-hospital facility, secure residential facility, intermediate care facility or enhanced care facility can be medicated without consent under certain circumstances.  Persons living in group homes, room and boards and independently cannot be medicated without consent.

A person in the listed living situations can be medicated without consent in an emergency or if the person is unable to consent and the treatment is in the person’s best interest.  To involuntarily medicate, the doctor must show he or she has tried to obtain consent.  Then, the doctor must consult with the treatment team and decide whether:

1.      The person is unable to consent,

2.      The proposed significant procedure (such as medication) will likely restore health or prevent deterioration of health, alleviate extreme suffering, or save or extend the person’s life, and

3.      The proposed significant procedure is the most appropriate treatment and less intrusive procedures have been considered.

In addition to the three requirements listed on page 30 above, another psychiatrist must then provide an independent review.  This psychiatrist cannot be either in a position to provide primary or on-call care to the person or an employee of the facility, The independent review must include:

Ø     A review of the person’s clinical record,

Ø     A personal examination of the individual,

Ø     An interview with the individual regarding the need for the proposed treatment and the person’s ability to consent, and

Ø     Consideration of any additional information presented by the individual

The second psychiatrist must then determine whether the person has the capacity to consent to the treatment.  If the psychiatrist determines the person cannot consent, the psychiatrist must approve or disapprove the proposed procedure.  The administrator of the hospital or facility must then make the final decision about approving or disapproving the procedure.  The administrator cannot approve the procedure if the second psychiatrist found that any one of the above-listed required factors-- which are numbered from one to three-- was absent.

If the procedure is approved, the approval ends with the end of the commitment period and in  no case longer than 180 days. Also, the approval ends if the person regains capacity to give consent or if the risks of the procedure increase substantially.

Once every 90 days, the person can request an independent review of the approval to treat without consent. If a person asks for review, the administrator of the facility must begin the independent review within 14 days.  OAR 309-33-0600 through 309-33-0650.

ABUSE REPORTING AND INVESTIGATION OF ABUSE OUTSIDE THE STATE HOSPITALS

Since 1991, the law has required the reporting and investigating of abuse of persons with mental disability who are receiving mental health services in the community. Abuse is defined as:

§      Any death caused by other than accidental or natural means.

§    Any physical injury caused by other than accidental means or that appears to be at variance with the explanation given of the injury.

§     Willful infliction of physical pain or injury.

§      Sexual harassment or exploitation, including any sexual contact between an employee of a facility or community program and an adult who is receiving mental       health services.

 A person may report abuse to the County Mental Health Program.  The County Mental Health Program staff should assist in providing the necessary information over the telephone.  A person should request to speak with a staff person who handles abuse complaints.  If a person needs assistance in reporting abuse, then the person may request assistance from any mental health professional he or she is working with, a person who is trustworthy, or OAC.  See page 24, “Protection From Abuse and Neglect” for further discussion of the state Office of Investigation and Training’s role in abuse investigations.