Patients’ Rights Advocacy

A person can be detained and treated involuntarily under the criteria presented in WIC sections 5150, 5250, 5260, 5300, 5352.1, 5350, and 4011.6. Under WIC 5150 a person may be involuntarily taken to a mental health facility for psychiatric evaluation. This evaluation can last up to 72 hours. During this period, only a doctor may discharge the person.

These are the three criteria that meet the requirements for involuntary detention:

1. The person presents a danger to him/herself.
2. The person presents a danger to others.
3. The person is incapacitated to the point of being gravely disabled. That means the person cannot provide for their own food, clothing, and/or shelter, or cannot make use of the food, clothing, and shelter available to him/her.

One or any combination of the above may be the reason for detaining an individual for an evaluation. These criteria apply only as a result of mental disorder. After the 72-hour evaluation period, a psychiatrist may petition for treatment up to an additional 14 days. The psychiatrist must file a “5250” or “certification for up to 14 days of intensive psychiatric treatment” with superior court. By law, the client must receive a copy of this certification.

The client is then entitled to an automatic hearing called a certification review hearing. This hearing is informal and a Patients’ Rights advocate from the Patients’ Rights Advocacy office represents the client.

At any point during an involuntary detention, a person may request a writ of habeas corpus. This is not automatic, and a request must be filed with the public defender.

It is important to remember that at any point during a 14-day hold, a person may be discharged based on physician’s discretion. A certification can last up to 14 days.

Some rights can only be denied if “Good Cause” exists. The facility must show it has good reason to believe that there is “good cause” because:

• The exercise of the right would be injurious to the patient, or;
• It would seriously infringe on the rights of others, or;
• The facility would suffer serious damage if the right is not denied;
• And there is no less restrictive way of protecting these three interests.

The specific rights afforded mental health clients are addressed in different places within the law. It is important to remember that in addition to the rights listed below, being a mental health client, whether voluntary or involuntary, does not automatically negate the rights that all citizens enjoy. The following laws contain information directly pertaining to patients’ rights:

1. Welfare and Institutions Code (WIC), Division 4,5, & 6
2. California Administrative Code (CAC), Title 9, Article 6
3. California Administrative Code (CAC), Title 22

Rights that pertain specifically to mental health clients are stated in WIC 5325.1 and 5325. They include:

1. The right to wear one’s own clothes
2. The right to keep and use one’s own personal belongings
3. The right to keep and spend a small amount of one’s own money for canteen expenses and small purchases
4. The right to see visitors each day
5. The right to have reasonable access to telephones, both to make and receive confidential calls or to have such calls made for them
6. To have ready access to letter writing materials, including stamps, and to mail and receive unopened correspondence
7. The right to refuse any type of convulsive treatment
8. The right to refuse any type of psychosurgery in which brain tissue is destroyed
9. The right to see and receive the services of a patients’ rights advocate who has no direct or indirect clinical or administrative responsibility for the person receiving mental health services (WIC 5325 and CAC 862)
10. The right to receive materials notifying each person of his or her rights within 24 hours of admission to a facility in a language or modality in which the person may comprehend. The State Department of Mental Health furnishes copies of the Patients’ Right Handbook in English, Spanish, and Chinese. The facility is responsible for supplying each patient with a copy.

WIC 5325.1

1. The right to receive treatment services which promote the potential of the person to function independently and which are provided in ways that are least restrictive of the individual’s personal liberty
2. The right to dignity, privacy, and humane care
3. The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect.
4. Medication shall not be used as punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program
5. The right to prompt medical care and treatment
6. The right to religious freedom and practice
7. The right to participate in appropriate programs of publicly supported education
8. The right to physical exercise and recreational opportunities
9. The right to be free from hazardous procedures

WIC 5325

1. The right to have one’s record remain confidential (there are exceptions specified in the legislature).
2. The right to not be discriminated against for filing a complaint.
3. The right to have the same legal rights and responsibilities guaranteed all other persons unless specifically limited by federal or state laws or regulations.

Parents, guardians, or conservators may not waive any of the rights specified in WIC 5325.

The professional person in charge of the facility or their designee may, for good cause, deny any of the following rights:

1. The right to wear one’s own clothing.
2. The right to keep and use one’s own personal possessions, including toilet articles, in a place accessible to the patient.
3. The right to keep and spend a reasonable sum of one’s money for small purchases.
4. The right to have access to individual storage space for the person’s private use.
5. The right to see visitors each day.
6. The right to have reasonable access to telephones, both to make and receive confidential calls or to have such calls made for them.
7. The right to have ready access to letter-writing materials, including stamps and to send and receive unopened mail and correspondence.

Voluntary Patients

If you are a voluntary adult patient, you have the right to consent to or refuse taking antipsychotic medications (except in an emergency). You may be treated with antipsychotic medications only after the hospital has completed the informed consent process, which is defined below.

Involuntary Patients

If you are on an involuntary hold, you have the right to refuse treatment with antipsychotic medications unless the situation is an emergency or a hearing officer or a judge has determined that you are incapable of making this decision.

The Informed Consent Process

Before you give your consent to take any antipsychotic medication, your doctor must first explain to you the following:

1. The reasons for your taking this medication and the benefits that you can expect
2. Your right to withdraw your consent at any time
3. The type and the amount of medication and how often you must take it
4. The common side effects from taking the medication, the effects that you are most likely to experience, and how long the doctor expects you will need to take the medication
5. Alternative treatments that are available (if any)
6. The potential long-term side effects of taking the medication

Barring a court determination at the time the conservatorship is appointed, a conservatee retains the right to:

1. Have the privilege of possessing a license with the DMV
2. Enter into contracts
3. Vote
4. Possess a firearm pursuant to subdivision (e) of Section 8103
5. Refuse or consent to treatment relating to the conservatee’s being gravely disabled
6. Refuse or consent to medical treatment (except in emergency cases in which the conservatee faces loss of life or serious bodily injury)

At all times, a conservatee retains the rights listed in WIC 5325 and 5325.