"We hold these truths to be self-evident: that all men are created equal."

- United States Declaration of Independence

Tuesday, November 23, 2010

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.

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:

• 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.

• 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.

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!!!


  1. Johnathon - I love what you are doing here. One thing that comes to mind thought is that when I was in the system....I did not know I had rights or choices or that I was being abused, manipulated and pretty much brainwashed into believing that I had an "illness" when in reality it was the drugs causing the symptoms.

    Is there any movements going on to educate those still in the system as well as those not in the system? I say this because when I was drugged...I could not have acted on my behalf; it seems vital to get those who have escaped and those who support the cause involved in educating those who can actually file complaints that these laws can be effective.

    Just some thoughts..what's your take?

  2. Fair play to you...Clients are supposed to be treated as Clients.
    Barbara Nolan, Ireland.

  3. I feel that the general public is afraid of this topic and therefore it still is considered a forbidden subject. No one wants to be part of the decision making on this very important part of society.

    The opening of mail and contraband is not just a simple issue and should be overseen by the physician, the patient and not the staff.

  4. Thanks all for your comments!

    @Susan: I agree fully. I was inpatient from 1998-2002, when the law was supposed to be enacted, but I never knew about the Five Fundamentals; in fact, I didn't even think of it until I got involved as an advocate. It's sad, but even though people are supposed to be told what their rights are, they clearly aren't.

    I've spoken to some groups at a few workshops about rights, and when I ask, "How many people know the Five Fundamental Rights?" No one knows. Unfortunately, there's not enough funding to train people. Staff is equally uninformed.

    Part of this work is getting the word out, which this blog aims to do - but also to get the word to the public and expose the wholesale denial of basic rights we suffer. The complaint process is broken, and we hope to see a fair means of complaint that currently doesn't exist. Hospital lobbyists continually deny anything being wrong.

    Here in MA, we have a burgeoning workforce of peer specialists whose job is to serve as models of recovery and hope; and they have been able to spread the word. We need many more in the 'system'!

  5. @Barbara - Not exactly sure what you're getting at; please elaborate - your input is valued!

    @Anonymous - Yes, it's true. The general public sees mental health as a 'taboo' issue, with "risk" as the be-all and end-all.

    The mail issue is fairly straightforward - i.e., the patient should always be present when mail is read - and only if mail presents a visible risk of contraband transmission.