I hope this can put the “Five Fundamental Rights - Fresh Air” bill into context. I have placed the text of the bill inside of the language of the existing law. This is what the law will look like if the bill is adopted. The new language proposed by the bill would call for neutral, third-party legal hearings for those who have had their rights violated, the possibility of expedited appeals, and the addition of a sixth Fundamental Right – the right to daily access to fresh air and the outdoors. The ‘new’ text is in bold letters and italics.
Massachusetts General Laws, Chapter 123, Section 23
Chapter 123: Section 23. Rights of persons receiving services from programs or facilities of department of mental health
Section 23. This section sets forth the statutory rights of all persons regardless of age receiving services from any program or facility, or part thereof, operated by, licensed by or contracting with the department of mental health, including persons who are in state hospitals or community mental health centers or who are in residential programs or inpatient facilities operated by, licensed by or contracting with said department. Such persons may exercise the rights described in this section without harassment or reprisal, including reprisal in the form of denial of appropriate, available treatment. The rights contained herein shall be in addition to and not in derogation of any other statutory or constitutional rights accorded such persons.
Any such person shall have the following rights:
(a) reasonable access to a telephone to make and receive confidential telephone calls and to assistance when desired and necessary to implement such right; provided, that such calls do not constitute a criminal act or represent an unreasonable infringement of another person’s right to make and receive telephone calls;
(b) to send and receive sealed, unopened, uncensored mail; provided, however, that the superintendent or director or designee of an inpatient facility may direct, for good cause and with documentation of specific facts in such person’s record, that a particular person’s mail be opened and inspected in front of such person, without it being read by staff, for the sole purpose of preventing the transmission of contraband. Writing materials and postage stamps in reasonable quantities shall be made available for use by such person. Reasonable assistance shall be provided to such person in writing, addressing and posting letters and other documents upon request;
(c) to receive visitors of such person’s own choosing daily and in private, at reasonable times. Hours during which visitors may be received may be limited only to protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires of such person and the visitors of such person.
(d) to a humane psychological and physical environment. Each such person shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting. Nothing in this section shall be construed to require individual sleeping quarters.
(e) to receive at any reasonable time as defined in department regulations, or refuse to receive, visits and telephone calls from a client’s attorney or legal advocate, physician, psychologist, clergy member or social worker, even if not during normal visiting hours and regardless of whether such person initiated or requested the visit or telephone call. An attorney or legal advocate working under an attorney’s supervision and who represents a client shall have access to the client and, with such client’s consent, the client’s record, the hospital staff responsible for the client’s care and treatment and any meetings concerning treatment planning or discharge planning where the client would be or has the right to be present. Any program or facility, or part thereof, operated by, licensed by or contracting with the department shall ensure reasonable access by attorneys and legal advocates of the Massachusetts Mental Health Protection and Advocacy Project, the Mental Health Legal Advisors Committee, the committee for public counsel services and any other legal service agencies funded by the Massachusetts Legal Assistance Corporation under the provisions of chapter 221A, to provide free legal services. Upon admission, and upon request at any time thereafter, persons shall be provided with the name, address and telephone number of such organizations and shall be provided with reasonable assistance in contacting and receiving visits or telephone calls from attorneys or legal advocates from such organizations; provided, however, that the facility shall designate reasonable times for unsolicited visits and for the dissemination of educational materials to persons by such attorneys or legal advocates. The department shall promulgate rules and regulations further defining such access. Nothing in this paragraph shall be construed to limit the ability of attorneys or legal advocates to access clients records or staff as provided by any other state or federal law.
(f) to daily access to fresh air and the outdoors.
This right shall attach upon admission to an inpatient facility. The initial exercise of this right shall be subject to an assessment by a clinician which shall be completed no more than 48 hours after admission.
The exercise of this right shall only be suspended for a person in an inpatient facility upon written certification by a clinician that such person’s exercise of such right in the immediate future would present a substantial risk of serious harm to such person or others. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person’s record. The signing of a three-day notice shall not constitute a basis for suspending the rights set forth in clause (f).
Any dispute or disagreement concerning the exercise of the aforementioned rights in clauses (a) to (e), inclusive, and the reasons therefor shall be documented with specific facts in the client’s record and subject to timely appeal.
Any person who believes that their aforementioned rights in clauses (a) to (f), inclusive were violated may seek redress through the following procedure:
Any person alleging such violation shall file a written request for a hearing with the Department stating facts regarding the right(s) violated and requesting a hearing based on the alleged violation.
An impartial hearing officer shall select a hearing location convenient to the Department and to the client and shall conduct the hearing, which shall be an adjudicatory proceeding pursuant to section 11 of Chapter 30A, in not less than 10 business days and not later than 30 business days after the receipt of the request for the hearing. The client and the Department may be represented by an attorney or other person and shall be afforded the opportunity to present evidence, to examine adverse evidence and to examine and cross-examine witnesses.
Within 30 business days after the conclusion of the hearing, the hearing officer shall prepare a written decision containing findings of fact and conclusions of law based on the evidence received at the hearing. Said decision may order such remedial relief as necessary. If the person is likely to be discharge in less than 30 days after admission, the hearing shall be held within one business day of the issuance of the Department's finding and recommendations, unless otherwise requested by the person complaining, and the hearing officer shall issue a decision within one business day of the hearing. In both cases, the hearing officer shall submit copies of the decision, together with notice of appeal rights, to the client and the Department. The decision may be appealed to the superior court pursuant to section 14 of chapter 30A.
Any right set forth in clauses (a) and (c) may be temporarily suspended, but only for a person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person; concluding, pursuant to standards and procedures set forth in department regulations that, based on experience of such person’s exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person’s record.
A notice of the rights provided in this section shall be posted in appropriate and conspicuous places in the program or facility and shall be available to any such person upon request. The notice shall be in language understandable by such persons and translated for any such person who cannot read or understand English.
The department, after notice and public hearing pursuant to section 2 of chapter 30A, shall promulgate regulations to implement the provisions of this section.
In addition to the rights specified above and any other rights guaranteed by law, a mentally ill person in the care of the department shall have the following legal and civil rights: to wear his own clothes, to keep and use his own personal possessions including toilet articles, to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases, to have access to individual storage space for his private use, to refuse shock treatment, to refuse lobotomy, and any other rights specified in the regulations of the department; provided, however, that any of these rights may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such person.
PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE XVII. PUBLIC WELFARE
CHAPTER 123. MENTAL HEALTH
Chapter 123: Section 23. Rights of persons receiving services from programs or facilities of department of mental health
Section 23. This section sets forth the statutory rights of all persons regardless of age receiving services from any program or facility, or part thereof, operated by, licensed by or contracting with the department of mental health, including persons who are in state hospitals or community mental health centers or who are in residential programs or inpatient facilities operated by, licensed by or contracting with said department. Such persons may exercise the rights described in this section without harassment or reprisal, including reprisal in the form of denial of appropriate, available treatment. The rights contained herein shall be in addition to and not in derogation of any other statutory or constitutional rights accorded such persons.
Any such person shall have the following rights:
(a) reasonable access to a telephone to make and receive confidential telephone calls and to assistance when desired and necessary to implement such right; provided, that such calls do not constitute a criminal act or represent an unreasonable infringement of another person’s right to make and receive telephone calls;
(b) to send and receive sealed, unopened, uncensored mail; provided, however, that the superintendent or director or designee of an inpatient facility may direct, for good cause and with documentation of specific facts in such person’s record, that a particular person’s mail be opened and inspected in front of such person, without it being read by staff, for the sole purpose of preventing the transmission of contraband. Writing materials and postage stamps in reasonable quantities shall be made available for use by such person. Reasonable assistance shall be provided to such person in writing, addressing and posting letters and other documents upon request;
(c) to receive visitors of such person’s own choosing daily and in private, at reasonable times. Hours during which visitors may be received may be limited only to protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires of such person and the visitors of such person.
(d) to a humane psychological and physical environment. Each such person shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting. Nothing in this section shall be construed to require individual sleeping quarters.
(e) to receive at any reasonable time as defined in department regulations, or refuse to receive, visits and telephone calls from a client’s attorney or legal advocate, physician, psychologist, clergy member or social worker, even if not during normal visiting hours and regardless of whether such person initiated or requested the visit or telephone call. An attorney or legal advocate working under an attorney’s supervision and who represents a client shall have access to the client and, with such client’s consent, the client’s record, the hospital staff responsible for the client’s care and treatment and any meetings concerning treatment planning or discharge planning where the client would be or has the right to be present. Any program or facility, or part thereof, operated by, licensed by or contracting with the department shall ensure reasonable access by attorneys and legal advocates of the Massachusetts Mental Health Protection and Advocacy Project, the Mental Health Legal Advisors Committee, the committee for public counsel services and any other legal service agencies funded by the Massachusetts Legal Assistance Corporation under the provisions of chapter 221A, to provide free legal services. Upon admission, and upon request at any time thereafter, persons shall be provided with the name, address and telephone number of such organizations and shall be provided with reasonable assistance in contacting and receiving visits or telephone calls from attorneys or legal advocates from such organizations; provided, however, that the facility shall designate reasonable times for unsolicited visits and for the dissemination of educational materials to persons by such attorneys or legal advocates. The department shall promulgate rules and regulations further defining such access. Nothing in this paragraph shall be construed to limit the ability of attorneys or legal advocates to access clients records or staff as provided by any other state or federal law.
(f) to daily access to fresh air and the outdoors.
This right shall attach upon admission to an inpatient facility. The initial exercise of this right shall be subject to an assessment by a clinician which shall be completed no more than 48 hours after admission.
The exercise of this right shall only be suspended for a person in an inpatient facility upon written certification by a clinician that such person’s exercise of such right in the immediate future would present a substantial risk of serious harm to such person or others. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person’s record. The signing of a three-day notice shall not constitute a basis for suspending the rights set forth in clause (f).
Any dispute or disagreement concerning the exercise of the aforementioned rights in clauses (a) to (e), inclusive, and the reasons therefor shall be documented with specific facts in the client’s record and subject to timely appeal.
Any person who believes that their aforementioned rights in clauses (a) to (f), inclusive were violated may seek redress through the following procedure:
Any person alleging such violation shall file a written request for a hearing with the Department stating facts regarding the right(s) violated and requesting a hearing based on the alleged violation.
An impartial hearing officer shall select a hearing location convenient to the Department and to the client and shall conduct the hearing, which shall be an adjudicatory proceeding pursuant to section 11 of Chapter 30A, in not less than 10 business days and not later than 30 business days after the receipt of the request for the hearing. The client and the Department may be represented by an attorney or other person and shall be afforded the opportunity to present evidence, to examine adverse evidence and to examine and cross-examine witnesses.
Within 30 business days after the conclusion of the hearing, the hearing officer shall prepare a written decision containing findings of fact and conclusions of law based on the evidence received at the hearing. Said decision may order such remedial relief as necessary. If the person is likely to be discharge in less than 30 days after admission, the hearing shall be held within one business day of the issuance of the Department's finding and recommendations, unless otherwise requested by the person complaining, and the hearing officer shall issue a decision within one business day of the hearing. In both cases, the hearing officer shall submit copies of the decision, together with notice of appeal rights, to the client and the Department. The decision may be appealed to the superior court pursuant to section 14 of chapter 30A.
Any right set forth in clauses (a) and (c) may be temporarily suspended, but only for a person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person; concluding, pursuant to standards and procedures set forth in department regulations that, based on experience of such person’s exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person’s record.
A notice of the rights provided in this section shall be posted in appropriate and conspicuous places in the program or facility and shall be available to any such person upon request. The notice shall be in language understandable by such persons and translated for any such person who cannot read or understand English.
The department, after notice and public hearing pursuant to section 2 of chapter 30A, shall promulgate regulations to implement the provisions of this section.
In addition to the rights specified above and any other rights guaranteed by law, a mentally ill person in the care of the department shall have the following legal and civil rights: to wear his own clothes, to keep and use his own personal possessions including toilet articles, to keep and be allowed to spend a reasonable sum of his own money for canteen expenses and small purchases, to have access to individual storage space for his private use, to refuse shock treatment, to refuse lobotomy, and any other rights specified in the regulations of the department; provided, however, that any of these rights may be denied for good cause by the superintendent or his designee and a statement of the reasons for any such denial entered in the treatment record of such person.
