BILL NUMBER: SB 1534 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 18, 2000
AMENDED IN ASSEMBLY JULY 6, 2000
AMENDED IN ASSEMBLY JUNE 26, 2000
AMENDED IN SENATE MAY 30, 2000
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, 5328, 5500,
5512, 5520, 5521, 5522, 5523, 5530, 5541, 5542, and
5550 of, and to add Sections 5520.1, 5544.1, 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 revise the training and 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. The bill would authorize certain persons to
bring an action in court to impose civil penalties if 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 for adults, as defined in subdivision
(a) of Section 1502 of the Health and Safety Code, or each person who
resides in a community care facility to which Section 1502.4 of the
Health and Safety Code applies, 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 for adults, as defined in
subdivision (a) of Section 1502 of the Health and Safety Code, or
each person who resides in a community care facility, as defined in
Section 1502.4 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 actions :
(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.
(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, 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, 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.
(e) 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.
(f) Notwithstanding the remedies provided in this section, 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. Nothing in this section shall
be construed to require any person who privately enforces the right
of action authorized by this subdivision to prove any actual damages.
(g) 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 5328 of the Welfare and Institutions Code is
amended to read:
5328. All information and records obtained in the course of
providing services under Division 4 (commencing with Section 4000),
Division 4.1 (commencing with Section 4400), Division 4.5 (commencing
with Section 4500), Division 5 (commencing with Section 5000),
Division 6 (commencing with Section 6000), or Division 7 (commencing
with Section 7100), to either voluntary or involuntary recipients of
services shall be confidential. Information and records obtained in
the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons in
the provision of services or appropriate referrals, or in the course
of conservatorship proceedings. The consent of the patient, or his
or her guardian or conservator shall be obtained before information
or records may be disclosed by a professional person employed by a
facility to a professional person not employed by the facility who
does not have the medical or psychological responsibility for the
patient's care.
(b) When the patient, with the approval of the physician, licensed
psychologist, or social worker with a master's
degree in social work, or marriage and family therapist
who is in charge of the patient, designates persons to whom
information or records may be released, except that nothing in this
article shall be construed to compel a physician, psychologist,
social worker, marriage and family therapist, nurse,
attorney, or other professional person to reveal information which
has been given to him or her in confidence by members of a patient's
family.
(c) To the extent necessary for a recipient to make a claim, or
for a claim to be made on behalf of a recipient for aid, insurance,
or medical assistance to which he or she may be entitled.
(d) If the recipient of services is a minor, ward, or conservatee,
and his or her parent, guardian, guardian ad litem, or conservator
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this article shall be construed to
compel a physician, psychologist, social worker, marriage and
family therapist, nurse, attorney, or other professional person
to reveal information which has been given to him or her in
confidence by members of a patient's family.
(e) For research, provided that the Director of Mental Health or
the Director of Developmental Services designates by regulation,
rules for the conduct of research and requires the research to be
first reviewed by the appropriate institutional review board or
boards. The rules shall include, but need not be limited to, the
requirement that all researchers shall sign an oath of
confidentiality as follows:
_______________________________
Date
As a condition of doing research concerning persons who have
received services from ____ (fill in the facility, agency or person),
I, ____, agree to obtain the prior informed consent of such persons
who have received services to the maximum degree possible as
determined by the appropriate institutional review board or boards
for protection of human subjects reviewing my research, and I further
agree not to divulge any information obtained in the course of such
research to unauthorized persons, and not to publish or otherwise
make public any information regarding persons who have received
services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Committee on Senate Rules or the Committee on Assembly
Rules for the purposes of legislative investigation authorized by the
committee.
(i) If the recipient of services who applies for life or
disability insurance designates in writing the insurer to which
records or information may be disclosed.
(j) To the attorney for the patient in any and all proceedings
upon presentation of a release of information signed by the patient,
except that when the patient is unable to sign the release, the staff
of the facility, upon satisfying itself of the identity of the
attorney, and of the fact that the attorney does represent the
interests of the patient, may release all information and records
relating to the patient except that nothing in this article shall be
construed to compel a physician, psychologist, social worker, nurse,
attorney, or other professional person to reveal information that has
been given to him or her in confidence by members of a patient's
family.
(k) Upon written agreement by a person previously confined in or
otherwise treated by a facility, the professional person in charge of
the facility or his or her designee may release any information,
except information that has been given in confidence by members of
the person's family, requested by a probation officer charged with
the evaluation of the person after his or her conviction of a crime
if the professional person in charge of the facility determines that
the information is relevant to the evaluation. The agreement shall
only be operative until sentence is passed on the crime of which the
person was convicted. The confidential information released pursuant
to this subdivision shall be transmitted to the court separately
from the probation report and shall not be placed in the probation
report. The confidential information shall remain confidential
except for purposes of sentencing. After sentencing, the
confidential information shall be sealed.
(l) Between persons who are trained and qualified to serve on
"multidisciplinary personnel" teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused child and his or her parents pursuant to
Chapter 11 (commencing with Section 18950) of Part 6 of Division 9.
(m) To county patients' rights advocates who have been given
knowing voluntary authorization by a client or a guardian ad litem.
The client or guardian ad litem, whoever entered into the agreement,
may revoke the authorization at any time, either in writing or by
oral declaration to an approved advocate.
(n) To county patients' rights advocates, in the course of
investigating complaints, pursuant to Section 5522, made by, or
regarding, a client who is a current or past recipient of mental
health services, if the client is deceased or is absent and due
efforts have been made to locate him or her, or he or she is unable
to give authorization pursuant to subdivision (m) due to his or her
physical or mental condition. In no case shall a patients' rights
advocate have access to a client's confidential records over that
person's objections.
(o) To county patients' rights advocates in accordance with their
routine monitoring duties pursuant to subdivision (b) of Section
5520. In no case shall a patients' rights advocate have access to a
client's confidential records over that person's objection.
(p) To a committee established in compliance with Sections 4070
and 5624.
(q) In providing information as described in Section 7325.5.
Nothing in this subdivision shall permit the release of any
information other than that described in Section 7325.5.
(r) To the county mental health director or the director's
designee, or to a law enforcement officer, or to the person
designated by a law enforcement agency, pursuant to Sections 5152.1
and 5250.1.
(s) If the patient gives his or her consent, information
specifically pertaining to the existence of genetically handicapping
conditions, as defined in Section 341.5 of the Health and Safety
Code, may be released to qualified professional persons for purposes
of genetic counseling for blood relatives upon request of the blood
relative. For purposes of this subdivision, "qualified professional
persons" means those persons with the qualifications necessary to
carry out the genetic counseling duties under this subdivision as
determined by the genetic disease unit established in the State
Department of Health Services under Section 309 of the Health and
Safety Code. If the patient does not respond or cannot respond to a
request for permission to release information pursuant to this
subdivision after reasonable attempts have been made over a two-week
period to get a response, the information may be released upon
request of the blood relative.
(t) When the patient, in the opinion of his or her
psychotherapist, presents a serious danger of violence to a
reasonably foreseeable victim or victims, then any of the information
or records specified in this section may be released to that person
or persons and to law enforcement agencies as the psychotherapist
determines is needed for the protection of that person or persons.
For purposes of this subdivision, "psychotherapist" means anyone so
defined within Section 1010 of the Evidence Code.
(u) To persons serving on an interagency case management council
established in compliance with Section 5606.6 to the extent necessary
to perform its duties. This council shall attempt to obtain the
consent of the client. If this consent is not given by the client,
the council shall justify in the client's chart why these records are
necessary for the work of the council.
(v) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
(w) (1) To a law enforcement officer who personally lodges with a
facility, as defined in paragraph (2), a warrant of arrest or an
abstract of such a warrant showing that the person sought is wanted
for a serious felony, as defined in Section 1192.7 of the Penal Code,
or a violent felony, as defined in Section 667.5 of the Penal Code.
The information sought and released shall be limited to whether or
not the person named in the arrest warrant is presently confined in
the facility. This paragraph shall be implemented with minimum
disruption to health facility operations and patients, in accordance
with Section 5212. If the law enforcement officer is informed that
the person named in the warrant is confined in the facility, the
officer may not enter the facility to arrest the person without
obtaining a valid search warrant or the permission of staff of the
facility.
(2) For purposes of paragraph (1), a facility means all of the
following:
(A) A state hospital, as defined in Section 4001.
(B) A general acute care hospital, as defined in subdivision (a)
of Section 1250 of the Health and Safety Code, solely with regard to
information pertaining to a mentally disordered person subject to
this section.
(C) An acute psychiatric hospital, as defined in subdivision (b)
of Section 1250 of the Health and Safety Code.
(D) A psychiatric health facility, as described in Section 1250.2
of the Health and Safety Code.
(E) A mental health rehabilitation center, as described in Section
5675.
(F) A skilled nursing facility with a special treatment program
for chronically mentally disordered patients, as described in
Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the
California Code of Regulations.
(x) The amendment of subdivision (d) enacted at the 1970 Regular
Session of the Legislature does not constitute a change in, but is
declaratory of, the preexisting law.
SEC. 5. 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 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, 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 pursuant to Section 5520.
SEC. 6. Section 5512 of the Welfare and Institutions Code is
amended to read:
5512. Training of county patients' rights advocates shall be
provided by the contractor specified in Section 5510 responsible for
the provision of protection and advocacy services to persons with
mental disabilities. Training shall be directed at ensuring that all
county patients' rights advocates possess:
(a) Knowledge of the service system, mental health needs,
financial entitlements, and service rights of persons ,
including children and older adults, receiving mental health
services. This knowledge shall include, but need not be limited to,
knowledge of available treatment and service resources in order to
ensure timely access to treatment and services.
(b) Knowledge of patients' rights in institutional and community
facilities.
(c) Knowledge of civil commitment statutes and procedures.
(d) Knowledge of state and federal laws and regulations affecting
recipients of mental health services.
(e) Ability to work effectively and respectfully with service
recipients and providers, public administrators, community groups,
and the judicial system.
(f) Skill in interviewing and counseling service recipients,
including giving information and appropriate referrals.
(g) Ability to investigate and assess complaints and screen for
legal problems.
(h) Knowledge of administrative and judicial due process
proceedings for persons receiving mental health services,
including children and older adults, in order to provide
representation at administrative hearings and to assist in judicial
hearings when necessary to carry out the intent of Section 5522
regarding cooperation between advocates and legal representatives.
(i) Knowledge of, and commitment to, advocacy ethics and
principles.
(j) This section shall become operative on January 1, 1996.
SEC. 6.5. 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 provide representation in the following administrative
hearings, unless the representation is already provided by the local
public defender's office:
(1) Certification review hearings pursuant to Section 5256.4.
(2) Capacity hearings pursuant to Section 5333.
(3) Hearings held pursuant to In re Roger S. ((1977) 19 Cal. 3d
921).
(g) To provide assistance to minors who are eligible for, and
request, an independent clinical review, pursuant to Section 6002.20.
(h) To provide assistance to recipients of public mental health
services concerning complaints or grievances regarding those
services.
(i) To provide outreach to recipients of mental health services to
ensure that they are aware of their rights and of the complaint
process, in a manner that is respectful of the client's privacy,
preferences and cultural and linguistic needs, and to engage mental
health clients in this outreach effort whenever appropriate and
feasible.
(j) 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. 7. Section 5520.1 is added to the Welfare and Institutions
Code, to read:
5520.1. The local mental health director shall oversee the
patients' rights advocates and shall be responsible for responding to
the complainer about any complaint received about a patients' rights
advocate.
SEC. 8. 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. 9. Section 5522 of the Welfare and Institutions Code is
amended to read:
5522. County patients' rights advocates may conduct
investigations if 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. 10. 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) When patients' rights advocates are conducting advocacy
activities that are not investigations of specific complaints or
representations in administrative hearings pursuant to subdivision
(f) of Section 5520, 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 or representative of
the facility is reasonably available for consultation, the advocate
shall consult with the professional or representative of the facility
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.
SEC. 11. Section 5530 of the Welfare and Institutions Code is
amended to read:
5530. (a) County patients' rights advocates shall have access to
all clients and other recipients of mental health or community care
services in any mental health care facility,
program, or service at all times as are necessary and reasonable,
and, if feasible, during normal hours of operation, to investigate or
resolve specific complaints, to provide advice, answer questions, or
represent individuals in accordance with subdivision (f) of Section
5520, or in the course of routine monitoring and in accord
accordance with subdivision (b) of Section 5523,
when applicable. County patients' rights advocates shall endeavor
not to disturb the day-to-day operations of the facilities.
(b) County patients' rights advocates shall have access to mental
health and community care facilities, programs, and services, and
recipients of services therein during normal working hours and
visiting hours for other advocacy purposes and in accordance with
subdivision (b) of Section 5523. Advocates may appeal any denial of
access directly to the head of any facility, the director of a county
mental health program or the State Department of Mental Health or
may seek appropriate relief in the courts. If a petition to a court
sets forth prima facie evidence for relief, a hearing on the merits
of the petition shall be held within two judicial days of the filing
of the petition. The superior court for the county in which the
facility is located shall have jurisdiction to review petitions filed
pursuant to this chapter.
(c) County patients' rights advocates shall have the right to
interview all persons providing the client with diagnostic or
treatment services.
(d) Upon request, all mental health facilities shall, when
available, provide reasonable space for county patients' rights
advocates to interview clients in privacy and shall make appropriate
staff persons available for interview with the advocates in
connection with pending matters.
(e) Individual patients shall have a right to privacy which shall
include the right to terminate any visit by persons who have access
pursuant to this chapter and the right to refuse to see any patient
advocate.
(f) Notice of the availability of advocacy services and
information about patients' rights may be provided by county patients'
rights advocates by means of distribution of educational materials
and discussions in groups and with individual patients.
SEC. 12. Section 5541 of the Welfare and Institutions Code is
amended to read:
5541. (a) Except in those circumstances set out in subdivisions
(c) and (d), 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 or as provided in subdivision (c), the county patients' rights
advocate may inspect and obtain a copy of confidential client
information and records.
(c) A county patients' rights advocate may inspect and copy
confidential client information and records, without specific
authorization by the client or guardian ad litem, in the course of
investigating a complaint made by or regarding a client who is a
current or past recipient of mental health services, if the client is
deceased, is absent and due efforts have been made to locate him or
her, or he or she is unable to give authorization for the release of
confidential mental health information due to his or her physical or
mental condition. A patients' advocate shall only be permitted to
copy medical information if the patient's individually identifiable
information, as defined in the Confidentiality of Medical Information
Act (Part 2.6 (commencing with Section 56) of Division 1 of the
Civil Code), is redacted from the medical record, or if the patient
consents to have those records copied. In no case shall a patients'
rights advocate have access to a client's confidential records over
that person's objection.
(d) A county patients' rights advocate may inspect and obtain a
copy of confidential client information and records without specific
authorization by a client or guardian ad litem, in accordance with
their routine monitoring duties pursuant to subdivision (b) of
Section 5520 and Section 5522. In no case shall a patients' rights
advocate have access to a client's confidential records over that
person's objection.
(e) The facility may charge a reasonable fee for the cost of
record duplication pursuant to subdivisions (c) and (d) and Section
5542, not to exceed twenty-five cents ($.25) per page.
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 obtain a copy of, or both, any records or other
materials, except proprietary contracts, records prepared solely for
personnel management, and attorney-client privileged information, not
subject to confidentiality under Section 5328 or any other provision
of law, in the possession of any mental health or community care
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. All records and information in the possession 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 or the disclosure is to a court, pursuant to a
court order. The patients' rights advocate may release information
to the local mental health director, the State Department of Mental
Health, 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 5545.2 is added to the Welfare and Institutions
Code, to read:
5545.2. (a) A county patient's patients'
rights advocate may refer any complaint to any appropriate
state or local government agency including, but not limited to, the
following agencies:
(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 Nursing Home Administrator Program.
(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.
(b) Any licensing authority that responds to a complaint against a
health facility or community care facility that was referred to the
authority by the county patients' rights advocate shall forward to
the county patients' rights advocate, and 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,
and 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. 16. 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. 17. 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 of not
less than one hundred dollars ($100) or more than one thousand
dollars ($1,000), which shall be deposited in the county general
funds fund .
SEC. 18. 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.