Rights In The Community And In Facilities Other Than State Hospitals

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 in the community. Some of the rights of all persons in the United States are 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 rights 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.

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 nonhospital 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 medicate involuntarily, the doctor must show he or she has tried to obtain consent. Then, the doctor must consult with the treatment team and decide whether:

• The person is unable to consent,

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

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

Another psychiatrist, who is not in a position to provide primary or on-call care to the individual, must then provide an independent review. The independent review must include:

• A review of the person’s clinical record,

• A personal examination of the individual,

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

• Consideration of any additional information presented by the individual

The second psychiatrist must then determine whether the person has the capacity to consent to  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 of the required factors were absent.

If the procedure is approved, the approval ends with the end of the commitment period. Also, 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 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 309-33-600 through 309-33-650.

Since 1991, the law has required the reporting and investigating of abuse of persons with mental illness 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.

The law requires private and public officials to report abuse if they have reasonable cause to believe abuse occurred. This means that all doctors, nurses, aides, psychologists, employees of county mental health programs, employees of mental health services providers, clergy, attorneys, outreach workers, social workers, therapists, police and others must report abuse.

Abuse may be reported to the Mental Health and Developmental Disability Services Division (MHDDSD), the county mental health program or the police. The office that receives the abuse report must then conduct an investigation or make sure that an investigation is conducted. The person who may have been the victim of the abuse must be provided protective services if needed. The investigating office must complete a report of the investigation and send it to MHDDSD.

ORS 430.735 through 430.765.

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 way 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 person complaining does not agree with the first decision.