Tuesday, February 08, 2005


The Rights of the Mentally Ill

The Rights of Persons with Mental Illness

From here.

Read about Deliberate Indifference here.

Purpose and Summary
This statement expresses the convictions of the National Mental Health Association (NMHA) with regard to the rights of persons involved with the mental health system and/or who are recovering from mental illness (including children, adolescents and their families). The NMHA is committed to promoting adherence by all treatment systems to the policies and principles set forth herein and to assisting our state and local affiliates in working with their state and local governments to do likewise. This pledge also includes adherence to the ADA, IDEA, the Rehabilitation Services Act, the Fair Housing Act, and other legislation that protects the rights of citizens, especially those recovering from mental illness. This statement consolidates prior policies that addressed rights issues.

Equal justice under the law is a fundamental concept in American jurisprudence. Yet persons with mental illness are often denied equal justice in virtually every part of our country. Too often discriminatory practices proceed from the misconception that people who are in the mental health treatment system are incapable of exercising the rights of citizenship. In fact, the decision to institutionalize people or treat them against their will may be based upon the assumption that to resist treatment recommendations is evidence that one is incapable of making such a judgment. This completely ignores the principle that a person is competent unless legally proven otherwise. While major strides have been made, people with mental illness continue to be denied rights as citizens, dignity as human beings, and a life free from stigma.

The NMHA recognizes that myths and misinformation prohibit the full participation of individuals recovering from mental illness in their communities. For example, despite common misperceptions, persons with mental illness are not more violent than people without mental illness. NMHA has worked to educate the public, as well as legal and medical advisors, providers, educators, and the media about laws protecting rights and to provide information that counteracts stigmatizing attitudes, language and behavior.

Specific Rights
The NMHA reaffirms its commitment to equal justice and protection of legal rights for all persons with mental illness, including children, adolescents and their families. To carry out this principle, NMHA pledges itself to protecting the civil rights of persons who are recovering from mental illness. The following rights are specifically identified because they are most likely to be abridged:

Rights Regarding Benefits and Service Delivery

The right to receive timely, culturally appropriate and complete information about rights upon enrollment in a health plan, upon entering the treatment system, and at any time upon request. This information must include benefits and services, as well as information about how to access available services, appeal a decision, lodge a complaint, and/or get help to navigate a service delivery system.
The right to be fully informed of all beneficial treatment options covered and not covered, including related costs.
The right to have advance directives about treatment preferences-and the right to have them honored.
The right to insurance parity, including freedom from limits based on annual and lifetime expenditures, days or visits, copayments, or diagnosis.
The right to the least restrictive and least intrusive response to a need for mental health services.
The right to sue the health plan for authorization denials that result in harm to the consumer.
The right to expedited reviews and appeals from one's health plan when the situation is emergent or urgent.
The right to access services in one's own community, including but not limited to crisis intervention, emergency, diversion, rehabilitation, outreach, housing, employment, and mobile services, including the right to seek care from a provider who does not participate in the health plan, if the provider network is insufficient.
The right to be fully involved in treatment, referral and discharge plans as they are developed, implemented and revised. Parents and guardians have the right to meaningful involvement in developing and implementing the treatment plan for their children who are still minors, as well as for their adult children if consent is given by the adult consumer.
The right to be fully informed of treatment side effects and treatment alternatives in order to make informed decisions without coercion or the threat of discontinued services.
The right to selectively refuse undesired treatment services without the loss of desired services.
The right to receive services from providers who have appropriate language skills and linguistic support services.
The right to be directed to treatment modalities that are culturally competent according to ethnicity, sexual orientation, religious beliefs, and disability.
The right to access medically necessary and effective medications without being subjected to "fail first" policies, discriminatory or excessive copayments, or time-consuming prior authorization paperwork.
The right to receive appropriate, specialized and individually tailored education as a component of treatment for youths.
The right to receive treatment services in one's own community, with reasonable efforts to serve children and adolescents while they remain in their homes.
The right to be transported to treatment facilities by medical personnel, rather than law enforcement agents.

Rights Related to Preservation of Liberty and Personal Autonomy
The right to receive treatment services in a setting and under conditions that are the most supportive of personal liberty, with restrictions of that liberty only as needed to preserve safety.
The right to easy access to any available rights protection service and other qualified advocates, including federally-funded protection and advocacy systems.
The right to assert grievances and to have them addressed in a timely manner, as well as with an external reviewer upon request, with no negative repercussions.
The right to the use of voluntary admission procedures wherever possible.
The right to receive treatment and services only with informed consent, except as over-ridden by a court.
The right to establish advanced directives and living wills and to appoint surrogate decision-makers (with durable power of attorney), specifying how one wishes to be treated in an emergency or if s/he is incapacitated, as permitted by law.
The right to be free from any form of corporal punishment.
The right to a humane treatment environment affording appropriate privacy and personal dignity and protection from harm.
The right to converse with others privately, to have convenient access to the telephone and mail and to see visitors during regularly scheduled hours in inpatient or residential facilities.

Rights Related to Competency
The right to be deemed competent to exercise all constitutional, statutory and common law rights and privileges and to manage one's own affairs unless restricted or limited through appropriate due process procedures.
The right to inexpensive, stigma-free guardianship procedures that are the least intrusive necessary to accomplish the provision of appropriate services and which include a delineation of the duties of the guardian.
The right to have all restrictions explicitly enumerated in the court order and to have copies provided to the interested parties.
The right to legal counsel for every threat of loss of a privilege or right.
The right to easy access to a person's attorney or legal representative while under a commitment order.
Where involuntary commitment to an inpatient facility is deemed necessary, the following rights should apply (at a minimum):
due process hearing,
provision of counsel,
minimum burden of proof of "clear and convincing" evidence,
a jury trial (at their election),
presentation of witnesses and opportunity for cross examination,
clear standards for commitment based upon constitutional principles, and
commitment based on proof that:
the person requires the confinement being sought by the petitioner,
the place of confinement can provide the treatment being sought by the petitioner,
there are no less restrictive but suitable alternatives to the placement being sought, and
a specific overt act of dangerousness (including a stated threat).
Rights Related to Seclusion and Restraint:

Seclusion and restraint should be used only after other less restrictive techniques have been tried and failed, and only in response to violent behavior that creates extreme threats to life and safety.
Seclusion and restraint procedures should not be used on individuals with medical conditions that would render this dangerous.
Facilities should have written procedures governing the use of seclusion, restraints, and restraining procedures. These procedures should require the documentation of alternative, less intrusive intervention approaches that were tried and the rationale why these failed or were not appropriate.
Facilities should never use seclusion or restraint as punishment or for the convenience of staff.
Use of restraints and seclusion should always be implemented by experienced and trained staff, overseen by senior medical staff, approved by a physician, and be well-documented and justified in a consumer's file.
Seclusion and restraining procedures should be used only for the amount of time needed to restore safety and security of the consumer and others.
People in seclusion and restraints should be monitored on a continuous basis.
Facilities should be sufficiently staffed to reduce the need for physical and chemical restraints and the use of seclusion.
All staff should be trained and demonstrate competence in non-physical intervention techniques and in safe use of restraining procedures.
Facilities must be held accountable for all uses of seclusion and restraints, collect data and report it to the appropriate state agency or regulatory bodies. Failure to produce appropriate data or adhere to clinical guidelines should result in sanctions.
Facilities should apply the use of advanced directives, where they exist, that address the use of seclusion and restraint.
Consumers should be informed that specific behaviors may result in the use of restraining procedures or seclusion. Cooperation of the consumer with the procedure should be sought.
An individual's age, developmental needs, gender issues, ethnicity, and history of sexual or physical abuse should be taken into account when implementing seclusion and restraining procedures.
Rights Related to Privacy and Information Management:

The right to access and supplement one's own mental health record.
The right of parents or guardians to access their minor children's mental health records, except where such information is protected by law.
The right to receive information about confidentiality protocols when consumers join a new health plan or begin treatment with a new clinician, as well as on request on an ongoing basis.
The right to withdraw, narrow or otherwise modify terms of consent for information to be released.
Consumers have the right to be informed of:
the type(s) of information that will be disclosed (nature and extent);
who has the authority to disclose information;
to whom the information will be disclosed; and
for what purpose(s) the information is needed.

Approved by the NMHA Board of Directors June 11th, 2000

Expires on December 31st, 2005

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