Patient Rights

Informed Consent

The right to consent, as an attribute of personal autonomy, is fundamental to ethical medicine.  Its components are: information disclosure, voluntariness, and competency.  Breach of informed consent may be actionable as battery (an unconsented touching, not insurable) or as malpractice (professional negligence, insurable). Click here for state-by-state review of consent ages.   

Competency is a legal concept that reflects societal guidelines concerning when a proffered ”choice” will be recognized at law.  In general, however, competency is considered to be a rebutable presumption.  Various tests of decisional competency have evolved: 1) evidence choice, 2) reasonable choice, 3) choice is product of rational process, 4) ability to understand disclosed information, and 5) actual understanding and appreciation of information in context. 

Development of the Concept

Schloendorf vs. New York Hospital  (1914) said the individual has fundamental right to control what is done to his/her body.  The Nuremberg Court (1946) said patient consent to invade that right of personal autonomy was required.  Salgo vs. Leland Stanford Junior University (1957) declared such consent required provision of information.  How much information?  Natanson vs. Kline (1960) said it was that amount of information a reasonable doctor would provide. Canterbury vs. Spence (1972, Cobbs vs. Grant in California) said it was that amount of information a reasonable patient would need.   The basic elements are voluntariness, information, and competency. 

Nuremberg War Crimes Tribunal – The Medical Case

“…The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally.  The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are not procurable by other methods or means of study.  All agreed, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

1 The voluntary consent of the human subject is essential.  This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free choice, without the intervention of any element of force, fraud, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.  There should be made known to him the nature, duration, and purpose of the experiment; the method and means by which is to be conducted; all inconveniences and hazards reasonably to be expected; and the effect upon his health or person which may possibly come from his participation in the experiment.  The duty and responsibility to ascertain the quality of the consent rests upon each individual who initiates, directs or engages in the experiment.  It is a personal duty that may not be delegated to another with impunity.

2 The experiment should be such as to yield fruitful results for the good of society, not procurable by other methods or means of study, and not random and unnecessary in nature.

3 The experiment should be…designed and based on…animal experimentation and knowledge of…the disease…under study that the…results would justify the performance of the experiment.

4 The experiment should be conducted to avoid all unnecessary suffering and injury.

5 No experiment should be conducted if there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments were the experimental physicians also serves as subjects.

6 The risk to be taken should never exceed the importance of the problem to be.

7 Proper preparations…adequate facilities…to protect the subject against…disability, or death.

8 The experiment should be conducted only by qualified persons.  The highest skill and care should be required through all stages of the experiment of those who engage in the experiment.

9 During the course of the experiment the subject should be at liberty to bring the experiment to an end if he has reached the… state where continuation of the experiment seems to him to be impossible.”

Right to Treatment

The right to treatment doctrine first appeared in the 1960's.  It was the quid pro quo for commitment's deprivation of liberty.  It started as a District of Columbia statute affirmed in Rouse v. Cameron (1966).  In 1971, an Alabama court in Wyatt v. Stickney found a broad right to treatment in the 14th Amendment as well.  However, the right treatment was limited in O'Connor v. Donaldson (Florida, 1975) when the Court said the non-dangerous mentally ill who could survive outside of the hospital could not be committed without receiving treatment.  The right to treatment was limited further in Youngberg v. Romeo (US Supreme Court, 1982).   The Court held that the involuntarily hospitalized patient was only entitled to that amount of treatment required to assure his freedom from unnecessary restraint and preventable assault inside the detaining institution.  Court surveillance of this ruling extended only to whether a specific decision was rendered by a qualified professional “using judgment.” 

Right to Refuse Treatment

The right to refuse treatment is a fundamentally aspect of individual autonomy.  It lies at the heart of ethical medicine.  Judge Cordozo stated: "Every [person] of adult years and sound mind has a fundamental right to control what is to be done to his body."  California law presumes competence for all adults which can be overridden in an emergency, denied by a court, and limited by statute. See Determination of Medical Decisional Competency.

Right to Least Restrictive Alternative

This right was enunciated in Lake v. Cameron (1966) and in Lessard v. Schmidt (1972).  The least restrictive alternative may not be the most beneficial alternative.

Privacy

Privacy addresses the individual's right to prevent others from knowing her secrets.  Privacy did not exist at common law.  Its modern protection started in an 1890 Harvard Law Review article by Brandies.  In California, privacy is specifically protected by Article I of the State Constitution. 

Confidentiality

Confidentiality is the right of the individual to control what another does with secrets she has divulged.  It is a promise inherent in the psychiatrist‑patient relationship.  The ethical basis of confidentiality is found in the Hippocratic Oath.  If a minor is old enough to consent to treatment, she is owed a duty of confidentiality.  Breach of confidentiality may be both a common law fiduciary tort and a statutory violation (Business and Professions Code).  In many states, confidentiality ‘survives” the death of the patient.  Confidentiality is not absolute.  It is subject to various mandatory or permissive reporting statutes and duties.  California Confidentiality of Medical Records Act  Privacy Act of 1974 (subject to FOIA & HIPAA)

Privilege

Privilege is the patient's right to refuse to testify and to refuse to allow others to testify about confidential communications.  It is wholly statutory.  It is a right owned exclusively by the patient, but it can be waived.  Privilege does not apply to communications made in the presence of a third party not involved in the patient's care.  The general basis of testimonial privilege is: (1) the communication was within a relationship with an expectation of confidentiality; (2) confidentiality is essential to that relationship; (3) the relationship is one society seeks to foster; and (4) the harm to the relationship by disclosure is more than the benefit to the judicial process.  Though privilege is owned by the patient, it must be asserted by the psychiatrist when the patient is not present. 

Exceptions to Privilege

Statutory Rights of Hospitalized Mental Patients in California

A. Rights

Mental health patients have the same legal rights guaranteed to everyone by the Constitution and other laws. As citizens, patients do not lose their rights by being hospitalized or receiving services. Patients' rights can be found in statutes, regulations and case law.  Cal. Welf. & Inst. Code § 5325 and § 5325.1 codify the statutory patients' rights in California:

1. Under California law, the following rights may never be denied (Cal. Welf. & Inst. Code § 5325.1):

• The 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.

• The right to dignity, privacy, and human care.

• The right to be free from harm, including unnecessary or excessive physical restraint, isolation, medication, abuse, or neglect. Medication may not be used as punishment, for the convenience of staff, as a substitute for, or in quantities that interfere with the treatment program.

• The right to prompt medical care and treatment.

• The right to religious freedom and practice.

• The right to participate in appropriate programs of publicly supported education.

• The right to social interaction.

• The right to physical exercise and recreational opportunities.

• The right to be free from hazardous procedures.

2. Psychiatric facilities must also uphold the following specific rights, which can be denied only when "good cause" exists (Cal. Welf. & Inst. Code § 5325; 9 C.C.R. § 865.2):

• The right to wear one's own clothing.

• The right to keep and use one's own personal possessions, including toilet articles, in a place accessible to the patient.

• The right to keep and spend a reasonable sum of one’s money for small purchases.

• The right to have access to individual storage space for one's own use.

• The right to see visitors each day.

• The right to have reasonable access to phones both to make and receiveconfidential calls.

• The right to have access to letter-writing materials, including stamps.

• The right to mail and receive unopened letters and correspondence.

Additionally, every mental health client has the right to see and receive the services of an a Patients' Rights Advocate.

3. All patients have the following treatment rights:

• The right to give or withhold informed consent to medical and psychiatric treatment, including the right to refuse antipsychotic medication, unless specific emergency criteria are met or there has been a judicial determination of incapacity (Cal. Welf. & Inst. Code § 5150, 5325.2).

• The right to participate in the development of individualized treatment and services planning (Cal. Welf. & Inst. Code § 5600.03).

• The right to refuse psychosurgery (Cal. Welf. & Inst. Code § 5326.6).

• The right to confidentiality (Cal. Welf. & Inst. Code § 5328).

• The right to inspect and copy the medical record, unless specific criteria are met (Cal. Health & Safety Code § 1795).

• The right to have family/friends notified of certain treatment information with patient's permission (Cal. Welf. & Inst. Code § 5328.1).

• The right to an aftercare plan (Cal. Welf. & Inst. Code § 5622).

B. Additional Rights

1. Right to Privacy and Personal Association

"Every institutionalized person is entitled to individualized treatment under the least restrictive conditions feasible - the institution should minimize interference with a patient’s individual autonomy and social interaction..." Foy v. Greenblott 141 Cal. App. 3d. 1, 9 (1983).

2. Right to Cultural Competency

3.  Right to Aftercare/Discharge Planning.

Mental health clients have a right to access services and programs which promote a satisfying life in the least restrictive environment (Cal. Welf. & Inst. Code § 5600.1).

Patients should be the central and deciding figure in all planning for their individual needs (Cal. Welf. & Inst. Code § 5600.2(a)).

Individualized evaluation, assessment and treatment planning is required throughout the LPS Act. Licensing regulations provide for initial and continuing assessment to determine the patient’s current level of functioning and service needs, as well as a written treatment plan to address those needs. Federal regulations governing Medi-Cal reimbursement also require comprehensive assessments and care plans with measurable objectives and time-lines to meet patient needs.

All licensed inpatient mental health facilities, including are required to comply with the discharge planning requirements contained in Cal. Welf. & Inst. Code § 5622. See Health & Safety Code § 1284. Prior to discharging a patient who was placed in the facility, any facility operated by a county or pursuant to a county contract, must prepare a written aftercare plan. See Cal. Welf. & Inst. Code § 5622(a). The aftercare plan must include, among other things, the following:

a. A functional assessment of the patient's level of daily living skills, such as personal care and grooming, health maintenance, communication, food preparation, vocation and employment;

b. The specific programs and services required so that he/she can minimize future confinement and receive further mental health services in the least restrictive setting; such specific programs and services include:

i. measurable goals and objective; Cal. Welf. & Inst. Code § 5622(a)(3)

ii. referral to providers of medical and mental health services; Cal. Welf. & Inst. Code § 5622(a)(5)

iii. identification of public social services, legal aid, education, and vocational services.

See Cal. Welf. & Inst. Code § 5622(a)(1),(4). A copy of the aftercare plan must be sent to the local county mental health director who shall adopt and implement the plan to the extent possible. Cal. Welf. & Inst. Code § 5622.

Advocates should assist patients in assuring that: 1) patients are in fact being included in their treatment and placement planning; 2) discharge criteria is appropriate and is not vague; 3) the discharge/placement plan is the least restrictive environment; and 4) patients are receiving sufficient notice of discharge. Failure to comply with state statutory aftercare/discharge plan requirements is a denial of a patient's rights.

C. Denial of Rights

The rights under Cal. Welf. & Inst. Code § 5325 may be denied only when "good cause" exists to deny these rights; however, the rights listed in Cal. Welf. & Inst. Code § 5325.1 may never be denied.(9 C.C.R. § 865.2)

Good Cause. Good cause for the denial of a right exists when the professional person in charge of the facility or his designee has good reason to believe one or all of the following:

a. That the exercise of the specific right would be injurious to the patient; or

b. That there is evidence that the specific right, if exercised, would seriously infringe on the rights of others; or

c. That the institution or facility would suffer serious damage if the specific right is not denied; and

d. And that there is no less restrictive way of protecting the interest specified in a, b or c above. (9 C.C.R. § 865.2).

When a right is denied, the reason given for denying the right must have some clear relationship to the right denied (9 C.C.R. § 865.2). Example: A patient is denied the right to keep his cigarettes (the right to keep and use personal possessions) because he is burning himself and lighting fires and lesser restrictive alternatives (1:1 supervision during smoking) have failed.

Rights may not be denied as a condition of admission, as part of a treatment plan, or for the convenience of staff, nor may they be treated as a privilege to be earned.

Documentation. Clients are entitled to an explanation for each denial of rights. Each denial must be noted in the patient's treatment record "immediately." (9 C.C.R. § 865.3). The documentation must include the following:

• The specific right being denied.

• The date and time of denial.

• A specific and clear statement of good cause.

• Less restrictive alternatives tried.

• Continuing documentation of observation and assessment of good cause.

• Specific criteria for restoration of rights denied.

• The signature of the appropriate person authorizing denial.

Restoration of Rights. Once the good cause for denial of a right is no longer present, the right must be restored immediately (9 C.C.R. § 865.5). The date of the restoration of the right must be documented in the chart. In addition, all denials of rights must be reported each quarter to the director of mental health or her designee (9 C.C.R. § 866).