BILL ANALYSIS
SB 1534
Page 1
Date of Hearing: June 20, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
SB 1534 (Perata) - As Amended: May 30, 2000
As Proposed to Be Amended
SUBJECT : MENTAL HEALTH PATIENT ADVOCACY
KEY ISSUE : SHOULD VARIOUS CLARIFICATIONS BE MADE TO THE LAWS
GOVERNING COUNTY PATIENTS' RIGHTS ADVOCATES IN ORDER TO BETTER
PROTECT THE RIGHTS OF CLIENTS THROUGH INCREASED OVERSIGHT OF THE
MENTAL HEALTH SYSTEM?
SUMMARY : Makes various clarifications to the laws governing
the rights of mental health clients and the duties and
responsibilities of patients' rights advocates. Specifically,
this bill , among other things:
1)Clarifies that people with psychiatric disabilities residing
in certain community care facilities have the same legal and
civil rights guaranteed patients hospitalized in mental health
treatment facilities, including access to the services of a
patients' rights advocate.
2)Adds mental health clients to the list of persons who can
bring an enforcement action for rights violations, and
specifies that the aggrieved person need not prove actual
damages in order to bring such an action.
3)Clarifies that the duties of county patients' rights advocates
(PRAs) include (in addition to those currently specified in
statute, as described in Existing Law #4 below): (a) providing
representation in certification review hearings, capacity
hearings, and "In re Roger S." hearings (pertaining to the
commitment of minors to public hospitals), unless such
representation is already provided by a local public
defender's office; (b) providing assistance to minors in
"independent clinical review" proceedings (which cover minors
committed to private psychiatric facilities); (c) assisting
recipients of public mental health services with complaints or
grievances regarding those services; and (d) providing
outreach to recipients of mental health services to ensure
that they are aware of their rights and of the complaint
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process, whenever appropriate and feasible.
4)Clarifies that PRAs have access to mental health clients in
community care facilities, as well as other facilities,
programs and services. It also clarifies that this access
shall be provided as necessary and reasonable, and if
feasible, during normal hours of operation, including access
for routine monitoring purposes. If a PRA conducting
monitoring wishes to interview a patient or resident, the
advocate must contact a representative of the facility, as
well as the treating provider, if they are reasonably
available for consultation, before conducting the interview.
5)Provides that a PRA 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
former recipient of mental health services if the client is
deceased, is absent (and due efforts have been made to locate
him or her), is unable to authorize the release of information
due to his or her physical or mental condition, or in
accordance with their routine monitoring duties. However, in
no case shall a PRA have access to such records over a
client's objections.
6)Clarifies the authority of PRAs to refer complaints to any
appropriate state or local government agency, and requires any
licensing agency that responds to a complaint referred by an
advocate to prepare a yearly report to the Legislature on the
number of patients' rights complaints, as well as the type,
nature, source and resolution of those complaints.
7)Prohibits retaliation against advocates for the performance of
their duties and prohibits discrimination and retaliation
against a resident of a community care facility who initiates
or participates in a complaint.
EXISTING LAW :
1)Declares the intent of the Legislature that the State
Department of Mental Health be responsible for ensuring that
mental health laws, regulations and policies on the rights of
recipients of mental health services are observed and
protected in state hospitals and in licensed health and
community care facilities. (Welfare and Institutions Code
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section 5510(a)(1). All further statutory references are to
this code unless otherwise specified.)
2)Declares that persons with mental disabilities are vulnerable
to abuse, neglect, and unreasonable and unlawful deprivations
of their rights. (Section 5510(a)(2).)
3)Sets forth the legal and civil rights of voluntary and
involuntary patients in mental health treatment facilities.
(Section 5325, 5325.1.) Among these rights is the right 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. (Section
5325(h).)
4)Requires each local mental health director to appoint, or
contract for the services of, one of more county patients'
rights advocates. (Section 5520.) It also provides that the
duties of these advocates must include, but not be limited to,
the following: (a) investigating 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 their rights;
(b) monitoring mental health facilities, services and programs
for compliance with statutory and regulatory patients' rights
provisions; (c) providing training and education about mental
health law and patients' right to mental health providers; (d)
ensuring that mental health clients in all licensed health and
community care facilities are notified of their rights; and
(e) exchanging information and cooperating with the state
Patients' Rights Office. ( Id .)
5)Authorizes the court to impose a civil penalty on any person
or facility for specified patient's rights violations, in an
amount of $50 per day during the time in which the violation
is not corrected, not to exceed $1,000 for each violation.
(Section 5326.9(d).)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : According to the author, the intent of the bill is
to clarify the rights and responsibilities of mental health
advocates to create more uniformity in the delivery of patient
advocacy services, and to facilitate responses to concerns
forwarded by advocates to appropriate state licensing and other
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entities. The author states that "the LA Times series on mental
health in November of last year uncovered shocking incidents of
neglect and abuse in homes for the mentally ill throughout the
state. According to the Times, more than 4,000 severely
mentally ill people are housed in facilities that have
cumulatively amassed some 200 citations and fines since 1992.
Eight homes are credited with half of those citations alone."
The author believes that "one of the solutions for ensuring
compliance with patients' rights laws is to clarify the ability
of the advocate to monitor facilities and increase
accountability in reporting of potential and action in response
to alleged abuses."
Background . In 1974, the California Legislature mandated the
establishment of state patients' rights. The purpose was to
protect patients' rights in the mental health process and
improve the quality of care provided by psychiatric hospitals.
Administrative regulations adopted in 1976 required county
mental health departments and state hospitals to provide
patients' advocacy services including education about patients'
rights, investigating complaints and advocating on behalf of
patients whose rights were violated.
Currently, counties are required to designate a county mental
health patients' rights advocacy office that is responsible for
offering the statutorily defined services. The county
department of mental health oversees these advocates. Advocates
must meet qualifications necessary to fulfill the
responsibilities established by state law but specific
qualifications are not statutorily defined.
Advocates are mandated to attend annual state trainings
sponsored by the State Office of Patients' Rights.
Recent public debate and a series of Los Angeles Times articles
have brought attention to California's mental health system
including its history, problems, system of care, population
served, interaction with safety net programs and instances of
abuse. One of the Los Angeles
Times articles specifically discussed instances of abuse within
the State's long-term care system. It found that even though
there has been limited oversight of the care provided by
long-term care institutions, the State Department of Health
Services has issued 200 citations and fines against 35 of the 45
facilities certified to care for mentally ill people since 1992.
Citations were the result of a wide range of circumstances
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including exposure to water that was too hot, sexual abuse of
patients and deaths due to negligence. Low reimbursement rates
and unqualified staff were named as contributing to the abuse.
This bill seeks to improve the quality of California's mental
health care by increasing oversight of the system and scrutiny
of the care provided.
ARGUMENTS IN SUPPORT : The California Association of Mental
Health Patients' Rights Advocates (CAMHPRA), sponsor of the
bill, states that the bill "would clarify the current
responsibilities of patients' rights advocates, as well as
consolidate into one provision all those legal responsibilities.
Currently, county patients' rights advocates have numerous
duties that are not listed in the primary statutory provision
governing advocates' responsibilities. This bill proposes to
consolidate those functions in one section of the law in order
to clarify the advocates' role and diminish confusion."
CAMHPRA also states that the bill "would provide the necessary
clarification of patients' rights advocates' current access to
mental health records and to facilities where persons with
mental illness are either receiving treatment or residential
care. According to the state Attorney General and the state
Office of Patients' Rights, the current statute allows patients'
rights advocates to access ? confidential records in the course
of regular monitoring of mental health facilities. ? The
[bill's] clarification about access to records simply ensures
that patients who have died, left the area, or are unconscious
or otherwise unable to consent to a release of confidential
information are able to have equal access to advocacy services.
If this access were to be lost, the individuals most vulnerable
to abuse or neglect would be without such services."
CAMHPRA further asserts that "monitoring psychiatric facilities
cannot be accomplished without access to an appropriately sized
randomly selected data set of mental health records. While the
current law already allows advocates' access to confidential
records in that context, misinformed and misguided
interpretations of this access by certain parties who have a
vested interest in keeping advocates away from clients who may
complain or from records which may reveal noncompliance with
laws and regulations. Without the necessary access by advocates
to clients and records, advocates would be hamstrung from
performing their statutorily mandated duties." They also state
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that sufficient confidentiality protections are in place, and
that advocates do not pursue complaint investigations or seek
access to confidential records over the objections of their
clients, which the bill also makes clear.
Finally, CAMHPRA supports the bill's provision which extends the
basic patients' rights protections currently afforded to
patients in mental health facilities to include persons with
psychiatric disabilities who reside in certain community care
facilities. They state that there is no good reason why clients
in health facilities are afforded rights which those same
persons would not be afforded if they were receiving care and
treatment in a community care facility. "We believe this is an
oversight in the law and that, while regulations address some of
these rights, they do not go far enough to protect clients in
[community residential treatment] facilities where they ? are
just as vulnerable to possible abuse, neglect or undue
influence."
The California Network of Mental Health Clients (CNMHC or the
Network), a statewide organization for and of people diagnosed
with mental illness in California, also supports the bill. In
addition to supporting the need for more advocacy resources,
CNMHC states that "[o]ne of the major barriers to accessing
[treatment] is the real and perceived abuses of the mental
health system... which is experienced by many clients as
abusive, disrespectful, and hurtful. This causes clients to
reject mental health treatment." In support of its position,
the Network cites to a recent report by the National Council on
Disability (NCD), which is an independent agency whose members
are appointed by the President and confirmed by the U.S. Senate,
which states:
People with psychiatric disabilities are routinely deprived
of their rights in a way no other disability group has
been. In order to learn more about the problems of
psychiatric disability, NCD conducted a special hearing on
this topic. ? The testimony pointed to the inescapable
fact that people with psychiatric disabilities are
systematically and routinely deprived of the rights, and
treated as less than full citizens or full human beings.
(National Council on Disability, From Privileges to Rights,
Executive Summary (January 2000), available online through
NCD's internet website at
http://www.ncd.gov/newsroom/publications/privileges.html#exe
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.)
According to the Network, "[t]he experience of the mental health
system as hurtful is as much a barrier to treatment as the
stigma of mental illness and the lack of accessible services.
Available advocacy would be a step toward addressing the routine
deprivation of rights experienced by people with mental
disabilities, and thus reducing a barrier to treatment."
Protection and Advocacy, Incorporated (PAI) also strongly
supports the bill, stating that "this bill will greatly improve
mental health services in California by improving the ability of
patients' rights advocates to advocate on behalf of their
clients." PAI further states that the bill "is respectful of
the rights and preferences of mental health clients, and is
consistent with the principle that persons receiving mental
health services should be allowed to participate in every aspect
of their treatment, as are persons who receive other kinds of
health services."
ARGUMENTS IN OPPOSITION : A coalition comprised of the
California Alliance of Child and Family Services, California
Association of Health Facilities, California Healthcare
Association, California Mental Health Directors Association, and
the California Psychiatric Association (the Coalition),
submitted a joint letter indicating that they oppose the bill
unless it is amended, and they expressing a number of concerns.
First, the Coalition opposes any expansion of the duties of
patients' rights advocates without additional resources. "By
simply increasing the scope of their existing duties, without
additional resources, the state is setting the system up for
failure while undermining the important services provided by
advocates."
Second, the Coalition objects to the bill's provisions that
would allow, as part of their "routine monitoring" duties,
patients' rights advocates "to have unlimited access to inspect
and copy confidential medical records without specific
authorization by the patient or his or her guardian. We have
serious concerns with the proposed expansion of the advocates'
access to a broader set of records than is allowed under current
law, without first having obtained the consent of the patient."
The Coalition argues that "[t]he advocate's training is focused
on determining whether a patient's rights have been violated,
not to review health care decisions outside the context of a
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client complaint. There is no compelling reason for advocates
to have the unlimited access afforded by this language. More
importantly, in cases where a child is involved, authorization
should be required of their legal guardian prior to any
confidential records being obtained in this regard." The
Coalition is also concerned about the bill's lack of an accurate
definition of what constitutes "routine monitoring" for purposes
of allowing advocates access to records and patient information.
They state that "[a] more precise definition would ensure more
consistency in the delivery of advocacy services, and we would
support more clarity on that issue."
Third, the Coalition complains that "the requirements for
training of patients' rights advocates are very vague and
somewhat limited. Many appear to receive on-the-job training,
which can vary greatly from county to county. Particularly with
the expanded scope of responsibilities envisioned by this bill,
which now includes children's community care facilities, we are
concerned that advocates will not have received the necessary
training to enable them to provide adequate services to this
population." The Coalition recommends "a standardized training
program to provide a basic knowledge of the services to be
provided and instruction on the consistent application and
interpretation of laws and regulations."
Finally, the Coalition argues that the expansion of the
patients' rights advocates' duties, without additional
oversight, "will actually lead to services being delivered in a
much more inconsistent manner depending upon the strengths and
weaknesses of the individual advocate. In addition to the
training recommended above, we recommend the county mental
health director exercise additional oversight when an advocate
seeks access to confidential medical records as part of an
investigation. We also recommend establishing a process for
complaints against an advocate to be referred for investigation
by the county mental health director."
Staff Comment . Understandably, the entities subject to the
oversight which is fine-tuned under this bill express concerns
about its reach. However, as poignantly noted in the recent LA
Times series, which exposed glaring deficiencies in the current
licensing and regulation of mental health care and treatment
facilities, this bill appears to appropriately consolidate and
clarify the authority and responsibilities of county patients'
rights advocates. With these changes, the bill offers hope for
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more effective oversight of the mental health system, while at
the same time enhancing the rights and dignity of Californians
with mental disabilities.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Mental Health Patients' Rights
Advocates (sponsor)
California Network of Mental Health Clients
Protection and Advocacy, Incorporated
Opposition
California Alliance of Child and Family Services
California Association of Health Facilities
California Healthcare Association
California Mental Health Directors Association
California Psychiatric Association
one individual
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334