BILL NUMBER: SB 1534 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 3, 2000
AMENDED IN SENATE APRIL 13, 2000
INTRODUCED BY Senator Perata
(Coauthor: Assembly Member Steinberg)
FEBRUARY 17, 2000
An act to amend Sections 5325, 5325.1, 5326.9, 5500, 5520, 5521,
5522, 5523, 5541, 5542, and 5550 of, and to add Sections 5500.1,
5500.2, 5500.3, 5544.1, 5545.1, 5545.2, and 5545.3 to, the Welfare
and Institutions Code, relating to mental health.
LEGISLATIVE COUNSEL'S DIGEST
SB 1534, as amended, Perata. Mental health: patient advocacy:
special programs.
Under existing law the State Department of Mental Health is
required to contract with a single nonprofit agency for the provision
of mental health patient advocacy services. The services include
conducting investigations of abuse, neglect, and death of persons
with mental disabilities residing in state hospitals.
Existing law provides that each person involuntarily detained for
evaluation or treatment under provisions of this part, each person
admitted as a voluntary patient for psychiatric evaluation or
treatment to any health facility, as defined, in which psychiatric
evaluation or treatment is offered, and each mentally retarded person
committed to a state hospital shall have certain rights.
This bill would revise that provision to eliminate the reference
to mentally retarded persons committed to a state hospital, and would
include each person with psychiatric disabilities receiving
residential care at a community care facility, as defined, within the
scope of that requirement.
This bill would require the Director of Mental Health to collect
statistics on the provision of advocacy services by the counties.
This bill would require each county to provide for county patients'
rights advocacy services and would require each county to provide
those services at not less than a specified level.
The bill would also require the Director of Mental Health to
provide patients' rights advocacy services in a county that does not
meet those requirements and would require the county to pay that
office for the provision of those services. By requiring counties to
provide that level of services or to pay for the provision of those
services, this bill would increase county responsibilities for the
provision of those services, and would result in a state-mandated
local program.
This bill would revise the scope of responsibilities of a county
patients' rights advocate, and the scope of authority to refer
complaints to government agencies. By increasing the scope of those
responsibilities, this bill would increase county responsibilities in
the administration of patients' rights advocacy, and would result in
a state-mandated local program.
This bill would revise the scope of the right of a county patients'
rights advocate for access to records and information for certain
purposes, and to facilities for the purpose of hearing,
investigating, and resolving complaints by or on behalf of
individuals in psychiatric facilities.
Existing law authorizes the court to impose a civil penalty on any
person or facility found in violation of a prohibition against
discrimination or retaliatory activities against certain persons
participating in filing a complaint or providing information
regarding complaints by individuals in psychiatric facilities and for
obstruction of a county patients' rights advocate in the performance
of his or her duties.
This bill would increase the civil penalty and would authorize the
county director of mental health to impose the penalty.
The bill would authorize certain persons to bring an action in court
to impose and collect the civil penalties if the local
mental health director, the district attorney ,
or the Attorney General declines to enforce the penalties.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 5325 of the Welfare and Institutions Code is
amended to read:
5325. Each person involuntarily detained for evaluation or
treatment under provisions of this part, each person admitted as a
voluntary patient for psychiatric evaluation or treatment to any
health facility, as defined in Section 1250 of the Health and Safety
Code, in which psychiatric evaluation or treatment is offered, and
each person with psychiatric disabilities receiving residential care
at a community care facility, as defined in subdivision (a) of
Section 1502 of the Health and Safety Code, shall have the following
rights, a list of which shall be prominently posted in the
predominant languages of the community and explained in a language or
modality accessible to the patient in all facilities providing such
services and otherwise brought to his or her attention by such
additional means as the Director of Mental Health may designate by
regulation:
(a) To wear his or her own clothes; to keep and use his or her own
personal possessions including his or her toilet articles; and to
keep and be allowed to spend a reasonable sum of his or her own money
for canteen expenses and small purchases.
(b) To have access to individual storage space for his or her
private use.
(c) To see visitors each day.
(d) To have reasonable access to telephones, both to make and
receive confidential calls or to have such calls made for them.
(e) To have ready access to letterwriting materials, including
stamps, and to mail and receive unopened correspondence.
(f) To refuse convulsive treatment including, but not limited to,
any electroconvulsive treatment, any treatment of the mental
condition which depends on the induction of a convulsion by any
means, and insulin coma treatment.
(g) To refuse psychosurgery. Psychosurgery is defined as those
operations currently referred to as lobotomy, psychiatric surgery,
and behavioral surgery and all other forms of brain surgery if the
surgery is performed for the purpose of any of the following:
(1) Modification or control of thoughts, feelings, actions, or
behavior rather than the treatment of a known and diagnosed physical
disease of the brain.
(2) Modification of normal brain function or normal brain tissue
in order to control thoughts, feelings, actions, or behavior.
(3) Treatment of abnormal brain function or abnormal brain tissue
in order to modify thoughts, feelings, actions or behavior when the
abnormality is not an established cause for those thoughts, feelings,
actions, or behavior.
Psychosurgery does not include prefrontal sonic treatment wherein
there is no destruction of brain tissue. The Director of Mental
Health shall promulgate appropriate regulations to assure adequate
protection of patients' rights in such treatment.
(h) To see and receive the services of a patient advocate who has
no direct or indirect clinical or administrative responsibility for
the person receiving mental health services.
(i) Other rights, as specified by regulation.
Each patient shall also be given notification in a language or
modality accessible to the patient of other constitutional and
statutory rights which are found by the State Department of Mental
Health to be frequently misunderstood, ignored, or denied.
Upon admission to a facility each patient shall immediately be
given a copy of a State Department of Mental Health prepared patients'
rights handbook.
The State Department of Mental Health shall prepare and provide
the forms specified in this section and in Section 5157.
The rights specified in this section may not be waived by the
person's parent, guardian, or conservator.
SEC. 2. Section 5325.1 of the Welfare and Institutions Code is
amended to read:
5325.1. Persons with mental illness have the same legal rights
and responsibilities guaranteed all other persons by the Federal
Constitution and laws and the Constitution and laws of the State of
California, unless specifically limited by federal or state law or
regulations. No otherwise qualified person by reason of having been
involuntarily detained for evaluation or treatment under provisions
of this part or having been admitted as a voluntary patient to any
health facility, as defined in Section 1250 of the Health and Safety
Code, in which psychiatric evaluation or treatment is offered, or
such a person with a psychiatric disability receiving residential
care at a community care facility, as defined in subdivision (a) of
Section 1502 of the Health and Safety Code, shall be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity, which receives public
funds.
It is the intent of the Legislature that persons with mental
illness shall have rights including, but not limited to, the
following:
(a) A right to treatment services which promote the potential of
the person to function independently. Treatment should be provided
in ways that are least restrictive of the personal liberty of the
individual.
(b) A right to dignity, privacy, and humane care.
(c) A right to be free from harm, including unnecessary or
excessive physical restraint, isolation, medication, abuse, or
neglect. 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.
(d) A right to prompt medical care and treatment.
(e) A right to religious freedom and practice.
(f) A right to participate in appropriate programs of publicly
supported education.
(g) A right to social interaction and participation in community
activities.
(h) A right to physical exercise and recreational opportunities.
(i) A right to be free from hazardous procedures.
SEC. 3. Section 5326.9 of the Welfare and Institutions Code is
amended to read:
5326.9. (a) Any alleged or suspected violation of the rights
described in Chapter 2 (commencing with Section 5150) shall be
investigated by the local director of mental health, or his or her
designee. Violations of Sections 5326.2 to 5326.8, inclusive, shall
also be investigated by the Director of Mental Health, or his or her
designee. If it is determined by the local director of mental health
or Director of Mental Health that a right has been violated, a
formal notice of violation shall be issued.
(b) Either the local director of mental health or the Director of
Mental Health upon issuing a notice of violation may take any or all
of the following action:
(1) Assign a specified time period during which the violation
shall be corrected.
(2) Referral to the Medical Board of California or other
professional licensing agency. Such board shall investigate further,
if warranted, and shall subject the individual practitioner to any
penalty the board finds necessary and is authorized to impose.
(3) Revoke a facility's designation and authorization under
Section 5404 to evaluate and treat persons detained involuntarily.
(4) Refer any violation of law to a local district attorney or the
Attorney General for prosecution in any court with jurisdiction.
(5) Collect a civil penalty from any person or facility in
accordance with subdivision (d).
(c) Any physician who intentionally violates Sections 5326.2 to
5326.8, inclusive, shall be subject to a civil penalty of not more
than five thousand dollars ($5,000) for each violation. Such
penalty may be assessed and collected in a civil action brought by
the Attorney General in a superior court. Such intentional violation
shall be grounds for revocation of license.
(d) Any person or facility found to have knowingly violated the
provisions of the first paragraph of Section 5325.1 or to have denied
without good cause any of the rights specified in Section 5325 shall
pay a civil penalty of one hundred dollars ($100)
, as determined by the court, of fifty dollars ($50) per
day during the time in which the violation is not corrected,
commencing on the day on which a notice of violation was issued
, not to exceed one thousand dollars ($1,000), for each and
every violation that the county mental health director has
determined to have occurred , except that any liability
under this provision shall be offset by an amount equal to a fine or
penalty imposed for the same violation under the provisions of
Sections 1423 to 1425, inclusive, or 1428 of the Health and Safety
Code. These penalties shall be deposited in the mental health
subaccount of the local health and welfare trust fund of the county,
as described in Section 5701, in which the violation occurred. Any
person or facility who is sanctioned or fined by the local
mental health director pursuant to this paragraph may file
an appeal of the sanction or fine within 15 days of receiving formal
notice of the sanction. If the local mental health director
fails to enforce the civil penalties under this paragraph, the
The local district attorney or the Attorney
General shall enforce this section in any court with jurisdiction.
Where the State Department of Health Services, under the provisions
of Sections 1423 to 1425, inclusive, of the Health and Safety Code,
determines that no violation has occurred, the provisions of
paragraph (4) of subdivision (b) shall not apply. If the
local mental health director, district attorney,
district attorney or the Attorney General declines to enforce
the civil penalties provided for in this paragraph, the person whose
right or rights were violated by the person or facility subject to
the penalties under this subdivision may bring a private action in
any court of jurisdiction and may collect the civil penalties. Any
person who privately enforces the right of action authorized by this
subdivision shall not be required to prove any actual damages.
(e) The remedies provided by this subdivision shall be in addition
to and not in substitution for any other remedies which an
individual may have under law.
SEC. 4. Section 5500 of the Welfare and Institutions Code is
amended to read:
5500. As used in this chapter:
(a) "Advocacy" means those activities undertaken on behalf of
persons who are receiving , are entitled to receive, or
have received mental health services to protect their rights or to
secure or upgrade treatment or other services to which they are
entitled and includes, but is not limited to, representation of
patients receiving mental health treatment at administrative hearings
as described in subdivision (f) of Section 5520 .
(b) "Mental health client" or "client" means any person who is
receiving , is entitled to receive, or has received
services from a mental health facility, service or program and who
has personally or through a guardian ad litem, entered into an
agreement with a county patients' rights advocate for the provision
of advocacy services.
(c) "Mental health facilities, services, or programs" means any
publicly operated or supported mental health or community care
facility or program; any private facility or program licensed
or operated for health purposes providing services to mentally
disordered persons; and publicly supported agencies providing other
than mental health services to mentally disordered clients.
(d) "Independent of providers of service" means that the advocate
has no direct or indirect clinical or administrative responsibility
for any recipient of mental health services in any mental health
facility, program, or service for which he or she performs advocacy
activities.
(e) "County patients' rights advocate" means any advocate
appointed, or whose services are contracted for, by a local mental
health director.
SEC. 5. Section 5500.1 is added to the Welfare and Institutions
Code, to read:
5500.1. Each county shall provide advocacy services as defined in
subdivision (a) of Section 5500 at a level that is at least
minimally adequate. Each county shall provide at least one full-time
equivalent advocate, and in no case shall a county provide advocacy
services at a ratio of less than one full-time equivalent advocate
for each 250,000 county population. In determining the minimum
number of advocates for a county, the Director of Mental Health shall
consider factors including, but not limited to, the average annual
number of involuntary hospitalizations in the county, the number of
facilities designated to provide involuntary mental health services,
the number of institutes for mental disease, skilled nursing
facilities, community-based mental health clinics, and other
community care facilities in the county.
SEC. 6. Section 5500.2 is added to the Welfare and Institutions
Code, to read:
5500.2. (a) The Director of Mental Health shall collect and
review relevant statistics relating to the advocacy services being
provided by each county, on a quarterly basis, to determine the
adequacy of advocacy services in each county, including, but not
limited to, staffing and the functions of the advocates.
(b) The Director of Mental Health shall annually collect, publish,
and make available to the Legislature aggregate data regarding
patients' rights complaints, which shall include at least the number
of complaints, the type or nature of the complaints, the source of
the complaints, and the resolution of the complaints, including the
timeframe for the resolution of the complaints.
SEC. 7. Section 5500.3 is added to the Welfare and Institutions
Code, to read:
5500.3. If the director determines that a county has no appointed
county patients' rights advocate or the appointed county patients'
rights advocate does not meet the requirements set forth in
subdivision (a) of Section 5500, the Director of Mental Health shall
require the entity contracted with pursuant to Section 5370.2, to
provide advocacy services until the county mental health director
appoints a county patients' rights advocate who meets those
requirements. The county shall reimburse that entity for the
provision of those advocacy services provided pursuant to this
section.
SEC. 8. Section 5520 of the Welfare and Institutions Code is
amended to read:
5520. Each local mental health director shall appoint, or
contract for the services of, one or more county patients' rights
advocates. The duties of these advocates shall include, but not be
limited to, the following:
(a) To receive and investigate complaints from or concerning
recipients of mental health services residing in licensed health or
community care facilities regarding abuse, unreasonable denial or
punitive withholding of rights guaranteed under the provisions of
Division 5 (commencing with Section 5000).
(b) To monitor mental health facilities, services and programs for
compliance with statutory and regulatory patients' rights
provisions.
(c) To provide training and education about mental health law and
patients' rights to mental health providers.
(d) To ensure that recipients of mental health services in all
licensed health and community care facilities are notified of their
rights.
(e) To exchange information and cooperate with the Patients'
Rights Office.
(f) To represent patients at certification review hearings
pursuant to Section 5256.4.
(g) To represent patients at capacity hearings pursuant to Section
5333.
(h) To provide assistance to minors who are eligible for, and
request, an independent clinical review, pursuant to Section 6002.20.
(i) To provide assistance to recipients of public mental health
services concerning complaints or grievances regarding those
services.
(j) To advise and represent minors who are eligible for, and
request, a hearing pursuant to In re Roger S. ((1977) 19 Cal.3d 921),
at the hearing.
(k) To maintain records regarding numbers of administrative
hearings in which the patients' rights advocate provides
representation, and to maintain records of patients' rights
complaints alleged against licensed and unlicensed health and
community care facilities, in accordance with subdivision (b) of
Section 5500.2.
This section does not constitute a change in, but is declarative
of the existing law.
SEC. 9. Section 5521 of the Welfare and Institutions Code is
amended to read:
5521. It is the intent of the Legislature that legal
representation regarding changes in client legal status or conditions
and other areas covered by statute providing for local public
defender or court-appointed attorney representation, shall remain the
responsibility of local agencies, in particular the county public
defender. County patients' rights advocates, in the execution of
their duties and responsibilities defined in Section 5520, shall not
duplicate, replace, or conflict with these existing or mandated local
legal representations. This section shall not be construed to
prevent maximum cooperation between legal representatives and
providers of advocacy services.
SEC. 10. Section 5522 of the Welfare and Institutions Code is
amended to read:
5522. County patients' rights advocates may conduct
investigations if the advocate finds that there is probable cause to
believe that the rights of a past or present recipient of mental
health services have been, may have been, or may be violated.
SEC. 11. Section 5523 of the Welfare and Institutions Code is
amended to read:
5523. (a) Notwithstanding any other provision of law, and without
regard to the existence of a guardianship or conservatorship, a
recipient of mental health services is presumed competent for the
purpose of entering into an agreement with county patients' rights
advocates for the provision of advocacy services unless found by the
superior court to be incompetent to enter into an agreement with an
advocate and a guardian ad litem is appointed for such purposes.
(b) In conducting investigations in cases in which an advocate has
not received a request for advocacy services from a recipient of
mental health services or from another person on behalf of a
recipient of mental health services, the advocate shall notify the
treating professional responsible for the care of any recipient of
services whom the advocate wishes to interview, and the facility,
service, or program administrator, of his or her intention to conduct
such an interview. Whenever the treating professional is reasonably
available for consultation, the advocate shall consult with the
professional concerning the appropriate time to conduct the
interview.
(c) Any agreement with any county patients' rights advocate
entered into by a mental health client shall be made knowingly and
voluntarily or by a guardian ad litem. It shall be in a language or
modality which the client understands. Any such agreement may, at
any time, be revoked by the client or by the guardian ad litem,
whoever has entered into the agreement, either in writing or by oral
declaration to the advocate.
(d) Nothing in this chapter shall be construed to prohibit a
recipient of mental health services from being represented by public
or private legal counsel of his or her choice.
(e) The remedies provided by this chapter shall be in addition to
any other remedies which may be available to any person, and the
failure to pursue or exhaust the remedies or engage in the procedures
provided by this chapter shall not preclude the invocation of any
other remedy.
(f) Investigations concerning violations of a past recipients'
rights shall be limited to cases involving discrimination, cases
indicating the need for education or training, or cases having a
direct bearing on violations of the right of a current recipient.
This subdivision is not intended to constrain the routine monitoring
for compliance with patients' rights provisions described in
subdivision (b) of Section 5520. County patients' rights advocates
shall have access to any and all records maintained by a mental
health facility or provider for investigative and routine monitoring
purposes.
SEC. 12. Section 5541 of the Welfare and Institutions Code is
amended to read:
5541. (a) A specific authorization by the client or by the
guardian ad litem is necessary for a county patients' rights advocate
to have access to, copy or otherwise use confidential records or
information pertaining to the client. Such an authorization shall be
given knowingly and voluntarily by a client or guardian ad litem and
shall be in writing or be reduced to writing. The client or the
guardian ad litem, whoever has entered into the agreement, may revoke
such authorization at any time, either in writing or by oral
declaration to the advocate.
(b) When specifically authorized by the client or the guardian ad
litem, the county patients' rights advocate may inspect any and all
records and information necessary to carry out his or her
responsibilities under this chapter.
SEC. 13. Section 5542 of the Welfare and Institutions Code is
amended to read:
5542. County patients' rights advocates shall have the right to
inspect or copy, or both, any records or other materials in the
possession of any mental health program, services, or facilities, or
city, county or state agencies relating to an investigation on behalf
of a client or which indicate compliance or lack of compliance with
laws and regulations governing patients' rights, including, but not
limited to, reports on the use of restraints or seclusion, and
autopsy reports.
SEC. 14. Section 5544.1 is added to the Welfare and Institutions
Code, to read:
5544.1. Notwithstanding any other provision of law, all records
and files of the patients' rights advocate relating to any complaint
or investigation made pursuant to this chapter and the identities of
complainants, witnesses, patients, or residents shall remain
confidential, unless the disclosure is authorized by the patient
resident or his or her legal representative, the disclosure is
required by court order, or the release of the information is to a
law enforcement agency, public protective services agency, or a
licensing or certification agency in a manner that is consistent with
state and federal laws and regulations.
SEC. 15. Section 5545.1 is added to the Welfare and Institutions
Code, to read:
5545.1. (a) County patients' rights advocates shall have the
right of entry to all facilities, programs, or services for the
purpose of hearing, investigating, and resolving complaints by, or to
render advice to, individuals who have psychiatric disabilities who
are, or have been, patients or residents of the facilities, at any
time deemed necessary and reasonable to the advocate to effectively
carry out his or her duties under this chapter.
(b) Nothing in this chapter shall be construed to restrict, limit,
or increase any existing right of any organization or individual not
described in subdivision (a) to enter, or provide assistance to
patients or residents of, mental health or community care facilities.
(c) Nothing in this chapter shall restrict any right or privilege
of any patient or resident of any facility to receive visitors of his
or her choice.
SEC. 16. Section 5545.2 is added to the Welfare and Institutions
Code, to read:
5545.2. (a) A county patient's rights advocate may refer any
complaint to any appropriate state or local government agency.
(b) The following state licensing authorities shall give priority
to any complaint referred to them by the patients' rights advocate,
except that any complaint alleging an immediate threat to one or more
residents' health or safety may be given first priority over that
complaint:
(1) The Licensing and Certification Division of the State
Department of Health Services.
(2) The Community Care Licensing Division of the State Department
of Social Services.
(3) The State Department of Mental Health.
(4) The State Board of Nursing Home Administrators.
(5) The Board of Registered Nursing.
(6) The Medical Board of California.
(7) The California State Board of Pharmacy.
(8) The Board of Vocational Nurse and Psychiatric Technician
Examiners.
(9) The American Occupational Therapy Certification Board.
(c) Any licensing authority that responds to a complaint against a
health facility or community care center facility that was referred
to the authority by the county patients' rights advocate shall
forward to the county patients' rights advocate, the county director
of mental health, and any state department responsible for certifying
the facility or program, copies of related inspection reports and
plans of correction and notify the county patients' rights advocate,
the county director of mental health, and any state department
responsible for certifying the facility or program of any citations
and civil penalties imposed on the facility.
SEC. 17. Section 5545.3 is added to the Welfare and Institutions
Code, to read:
5545.3. Any licensing authority that receives a complaint
pursuant to Section 5545.2 shall annually collect and publish and
make available to the Legislature aggregate data regarding patients'
rights complaints, which shall include at least the number of
complaints, the type or nature of the complaints, the source of the
complaints, and the resolution of the complaints, including the
timeframe for the resolution.
SEC. 18. Section 5550 of the Welfare and Institutions Code is
amended to read:
5550. (a) Any person participating in filing a complaint or
providing information pursuant to this chapter or participating in a
judicial proceeding resulting therefrom shall be presumed to be
acting in good faith and unless the presumption is rebutted shall be
immune from any liability, civil or criminal, and shall be immune
from any penalty, sanction, or restriction that otherwise might be
incurred or imposed.
(b) No person shall knowingly obstruct any county patients' rights
advocate in, or retaliate against any county patients' rights
advocate for, the performance of duties as described in this chapter,
including, but not limited to, access to clients or potential
clients, or to their records, whether financial, medical, or
otherwise, or to other information, materials, or records, or
otherwise violate the provisions of this chapter.
(c) No facility to which the provisions of Section 5325 are
applicable shall discriminate or retaliate in any manner against a
patient or employee on the basis that the patient, resident, or
employee has initiated or participated in any proceeding specified in
this chapter. Any attempt by a facility to expel a patient or
resident, or any discriminatory treatment of a patient, who, or upon
whose behalf, a complaint
has been submitted to a county patients' rights advocate within 120
days of the filing of the complaint shall raise a rebuttable
presumption that such action was taken by the facility in retaliation
for the filing of the complaint.
(d) No county patients' rights advocate shall knowingly violate
any provision of this chapter concerning client privacy and the
confidentiality of personally identifiable information.
(e) Any person or facility found in violation of subdivision (b)
or (d) shall pay a civil penalty, as determined by a court
or the local director of mental health, of not less than
one thousand dollars ($1,000), or more than one hundred
thousand dollars ($100,000), one hundred dollars
($100) or more than one thousand dollars ($1,000), which shall
be deposited in the county general funds.
SEC. 19. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.