Massachusetts’ Civil Rights Crisis, Part 2 – The Five Fundamental Rights

First Post – The Five Fundamental Rights Law

The landmark 2000 study “From Privileges to Rights,” published by the National Council on Disability contained these words:

Daniel Fisher, a psychiatrist, testified that some states, such as Massachusetts, had to pass legislation to ensure the human rights of people in institutions who are labeled with psychiatric disabilities, such as the right to make a phone call or have visitors, legislation that would not be necessary if people labeled with psychiatric disabilities did not lose their ordinary citizenship rights.

The law Dr. Fisher refers to is called the “Five Fundamental Rights” law. Sadly, twelve years after its passing, this law is still rarely enforced, and the appeals process is almost nonexistent – leaving thousands with no guaranteed civil rights - in hospitals and group homes.

This post will explain the Five Fundamental Rights (5FR) law. This law applies to Massachusetts only. However, many other states have the same or similar laws and/or regulations. What do you see happening in your State?

In the interest of readability, I am paraphrasing the law, and I’ve added bold type for emphasis. You can read the full language of the law here.


The “Five Fundamental Rights” (5FRs) Law:

Massachusetts General Laws, Chapter 123, Section 23

(As defined by Chapter 166 of the Acts of 1997, An Act Relative to Certain Rights of Persons with Mental Illness):


Rights of persons receiving services from programs or facilities of department of mental health

This law applies to all persons receiving services run or licensed by the Department of Mental Health, including all state and private hospitals, community mental health centers, and/or residential programs. These rights are to be exercised without fear of harassment or reprisal, including denial of appropriate treatment.

(a) The right to reasonable access to a telephone, to make and receive private calls. Assistance making calls must be available when necessary.

(b) The right to send and receive unopened and uncensored mail. On request, stamps and writing materials must be made available in reasonable quantities, as well as help writing and mailing letters.

(c) The right to receive visitors of one’s choice, daily and in private, at reasonable times. There must be some flexibility of visiting hours to accommodate the needs and wishes of individuals and their visitors.

(d) The right to a humane psychological and physical environment, including privacy and security in sleeping, dressing, bathing and toileting. This right does not require individual sleeping quarters.

(e) The right to receive or refuse visits and calls from an attorney, legal advocate, doctor, clergy member or social worker. These calls and/or visits can be outside of normal visiting hours, and can happen regardless of whether or not that person initiated or requested the call/visit.

ACCESS TO ATTORNEYS:
Facilities must give access to attorneys working for Massachusetts’ Protection and Advocacy agency – the Disability Law Center in Boston; the Committee for Public Counsel Services, a State office; and any agency funded by the State’s Legal Assistance Corporation to provide free legal services. The facility must designate ‘reasonable’ times for attorney visits, and provide help in contacting them.

The facility must provide the name, address, and phone number of the legal agencies listed above on admission and on request at any time after.

If an attorney is contacted, and only with consent of the client, the attorney shall have access to:
• The client;
• His/her medical records;
• Staff responsible for care and treatment; and
• Any treatment/discharge planning meetings with the client.


Proposed sixth right:
(Filed as legislation in 2005, 2007 and 2009; to be refiled in 2011.)

(f) The right to daily access to fresh air and the outdoors.


Additional provisions of the law:

POSTING OF RIGHTS
• The Five Fundamental Rights must be posted in appropriate, conspicuous places, in language that is easy to understand. Type size should be readable.
• On request, a copy of these rights must be provided to any client.
• If clients can’t read or understand English, the law must be translated.

ADDITIONAL RIGHTS
• To wear one’s own clothes;
• To keep and use one’s own possessions;
• To keep and use a reasonable sum of one’s own money;
• To have private, individual storage space; and
• To refuse shock treatment (ECT) or lobotomy.

RIGHT TO APPEAL
According to the law, any “dispute” regarding the 5FRs must be documented and “subject to timely appeal.” However (and this is the focus of our advocacy work), the appeals process is badly broken.

Exceptions (But NOT the rule!!!)
TEMPORARY Suspension of Rights

Suspension of Rights #1 (Telephones) and #3 (Visitors):
These exemptions apply only to inpatient facilities and can only be temporary. Suspension may occur only in the following circumstances:
• The suspension is on an individual basis;
• Suspension is issued by a hospital administrator or their designee;
• Suspension can only occur if there is a serious risk of ‘harm’ to self or others. The reason for suspension must be documented, and suspension can only last as long as the potential ‘harm’ exists.
• If use of the phone or visits cause ‘significant disruption’ in the functioning of the unit.

Suspension of Right #2 (Mail):
If a hospital administrator or his/her designee has ‘good cause’ to believe that a patient is receiving ‘contraband’ (i.e., drugs or weapons) through the mail, (s)he may open and inspect such mail.

However, if this is done, the mail must be opened in front of the patient, and staff may not read the mail. The purpose for opening must be documented.

Suspension of Additional Provisions of the Law:
Any of these rights can be denied by hospital administrators or their designees, provided that the reasons for denial are recorded in the client’s record.

What do you see happening in your state or country? Your observations are very important - please post!!!