Mental Health Representation

Office of Patient Rights (Department of Mental Health) 

Californians with mental illness who are receiving treatment in mental health facilities, including those persons subject to involuntary commitment, are guaranteed numerous rights under State and federal laws, including the right to be free from abuse and neglect, the right to privacy, dignity, and human care, and the right to basic procedural protections in the commitment process. The Office of Patients’ Rights (OPR) is contracted by the Department of Human Services to provide investigative and advocacy services to persons with mental disabilities. The OPR also provides direct advocacy services in the state hospitals as well as training and technical assistance to all county patients’ rights advocates.  For more information call: (916) 654-2327

Persons with Psychiatric Disabilities - Patient Rights

IT IS THE INTENT OF THE LEGISLATURE THAT PERSONS WITH PSYCHIATRIC DISABILITIES SHALL HAVE RIGHTS INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING (W&I CODE, SEC. 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 humane 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, or as a substitute for, or in quantities that interfere with, the treatment program.
  • Emergency – A situation in which action is immediately necessary to prevent immediate injury to the patient or others.
  • Seclusion – Involuntary isolation (includes “time-outs” if prevented from leaving a specified area).
  • Restraint – Physical devices or techniques for restricting movement. Medication – A situation in which action to impose treatment immediately necessary for the preservation of life or the prevention of serious bodily harm and it is impractical to first gain consent.
  • 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.
  • The right to see and receive the services of an attorney and a Patients’ Rights Advocate.

PSYCHIATRIC FACILITIES MUST ALSO UPHOLD THE FOLLOWING SPECIFIC LEGAL RIGHTS OF PATIENTS. THESE RIGHTS CAN ONLY BE DENIED WHEN “GOOD CAUSE” EXISTS (W&IC §5325: TITLE 9 C.C.R. SEC. 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 own money for canteen expenses and 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 a telephone, to make and receive confidential calls or to have calls made for them.
  • To mail and receive unopened correspondence.
  • The right to have ready access to letter-writing materials, including stamps. These rights can only be denied for “Good Cause” and a formal Denial of Rights must be filed in order to deny these rights to any patient. “Good Cause” exists only when the exercise of the right would cause: 1. INJURY TO THE PATIENT 2. A SERIOUS INFRINGEMENT ON THE RIGHTS OF OTHERS 3. SERIOUS DAMAGE TO THE FACILITY AND THERE IS NO LESS RESTRICTIVE WAY OF PROTECTING THE INTEREST SPECIFIED ABOVE. Rights must be restored once “Good Cause” no longer exists. These rights cannot be denied as a condition of admission to the facility, as a privilege to be earned, as a punishment, as part of a treatment plan, or for the convenience of staff. In addition, one retains these rights even when in either seclusion or some form of restraint.
  • However, if one is in seclusion and/or restraint, a specific request must be made in order to exercise these rights (individually). Once a request is made, staff will make the determination whether it is appropriate to honor the request. If staff find that there is “Good Cause” to deny the request, then they will file a Denial of Rights which explains the grounds for their decision and the plan to assist the patient in the restoration of the right denied. If a DOR is being filed, the patient should be informed that such action is being taken and will be requested to sign the DOR form and should receive a copy of it for their records. Guardians, conservators, relatives, attorneys, public defender, etc cannot have a patient’s rights denied or restricted. 

ALL PATIENTS HAVE THE FOLLOWING TREATMENT RIGHTS:

  • To be fully informed about any medical and psychiatric treatment that they are to receive, including the right to refuse such medication or treatment, as allowable by law.

Patients have a right to:

  • An explanation of their diagnosis.
  •  Information about their treatment
  • To give or refuse consent for treatment. (The right to refuse may only be removed by order of the court.) The limits on these rights are: 1. Emergency – (documented) A sudden, marked change with action necessary for preservation of life or prevention of serious bodily harm to the patient or others and it is impractical to first gain consent 2. Judicial Determination .. Reise or “capacity” Hearing .. Keyhea Physical Health Care: Probate Code § 4650 – “The Legislature finds the following: In recognition of the dignity and privacy a person has a right to expect, the law recognized that an adult has the fundamental right to control the decisions relating to his or her own health care, including the decision to have life-sustaining treatment withheld or with drawn”.
  • Probate Code § 4657 – “A patient is presumed to have the capacity to make a health care decision, to give or revoke an advance health care directive, and to designate or disqualify a surrogate. This presumption is a presumption of affecting the burden of proof”. Medical emergency exception In case of a medical emergency, medical treatment may be provided without the patient’s consent as long as no evidence exists (i.e. Advance Directives) to indicate that the patient would refuse the treatment. Only the emergency condition may be treated. Immediate services must be provided for the alleviation of severe pain, -Or- Immediate diagnosis and treatment of unforeseeable medical conditions must be provided, if such conditions would lead to serious disability or death if not immediately diagnosed and treated. Patients have the right to confidentiality of information and records obtained in the course of providing mental health services (WIC §5328). The right to request to have one’s own medical record copied (California Health & Safety Code §123130). A health care provider may prepare a summary of the record, according to the requirements of this section, for inspection and copying by a patient. If the health care provider chooses to prepare a summary of the record rather than allowing access to the entire record, he or she shall make the summary of the record available to the patient within 10 working days from the date of the patient's request. H&S code § 123115 does allow for a provider to deny access to the patient of the psychiatric records when it is determined there is a “substantial risk of significant adverse or detrimental consequences to the patient in seeing or receiving a copy” of the records. Access shall not be routinely denied because of a generalized concern over possible adverse consequences. The right to have family/friends notified about one’s condition with their permission. The right to an aftercare/discharge plan.
  • Notification of Rights - CCR – Title 9 § 862: Patients must be notified of their Rights. Each time notification is given it must be documented on a Legal Advisement of Rights form. A copy of this will be placed into the patients’ chart with a copy to the patient. Notification will occur within 24 hours of admission.
  • CCR – Title 22 § 73523: Patients are to be fully informed at the time of admissions and during their stay, of these rights (Patients’ Rights) and of all rules and regulations governing patient conduct. Below are times often used for these notifications:
  • Within 24 hours of admissions
  • Upon transfer to a new unit
  • Upon change of Legal status
  • And at least annually (once a year)

 

CALIFORNIA CODE DESCRIPTION OF INVOLUNTARY COMMITMENTS

  • PC 702.3 (MNGI) Minor not guilty by reason of insanity (age 18 or over).
  • PC 1026 Not Guilty By Reason of Insanity. Conditional Release Program, other state hospitals.
  • PC 1370 Incompetent to Stand Trial -- patients are educated to understand the nature of their pending court proceedings, and to be able to cooperate with their attorney. Court, other state hospitals.
  • PC 1372(e) Competent to stand trial but requiring continued inpatient treatment for duration of court proceedings.
  • PC 1610 Returned from community outpatient treatment pending court hearing regarding recommitment under one of the original commitments.
  • PC 2684 Mentally Ill Prisoners -- transfers from the Department of Corrections for psychiatric stabilization. Parole, return to Corrections, continued hospitalization as a Mentally Disordered Offender or other civil commitment.
  • PC 2962/2964 Mentally Disordered Offenders -- inmates from the Department of Corrections who serve their parole time at ASH. Conditional Release Program.
  • PC 2972 Post-parole mentally disordered offender committed for an additional year of treatment.
  • WIC 5008 (h) (1)(B) "Murphy" conservatorship on basis of continued incompetence to stand trial (after 3 years as PC 1370). Charges have not been dismissed.
  • WIC 5304 Post-Certification 180-day court commitment imminently dangerous behavior.
  • WIC 5358 (CONS) Permanent LPS conservatorship on basis of grave disability.
  • WIC 5353 & 5358 (TCONS) Temporary conservatorship pending determination of permanent conservatorship.
  • PC 6316 (MDSO) Mentally disordered sex offender committed prior to 1982 termination of statue.
  • WIC 6600 Series Sexually Violent Predators -- civil commitment. Conditional Release Program.

 

Welfare and Institutions Code Section 5150 holds.

72 Hour Hold  (Welfare and Institutions Code 5150)

In California, a person can be involuntarily committed to a mental facility temporarily under Welfare and Institutions Code Section 5150.  When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a professional person designated by the county may have a person, upon probable cause, to be taken into custody and place him or her in a facility approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation. A commitment shall require a written statement of probable cause.   If the probable cause is based on the statement of a person other than the officer, member of the attending staff, or professional person, such person shall be liable in a civil action for intentionally giving a statement which he or she knows to be false.

Each person admitted to a facility for 72-hour treatment and evaluation under the provisions of this article shall receive an evaluation as soon as possible after he or she is admitted and shall receive whatever treatment and care his or her condition requires for the full period that he or she is held. The person shall be released before 72 hours have elapsed only if the psychiatrist directly responsible for the person's treatment believes, as a result of the psychiatrist's personal observations, that the person no longer requires evaluation or treatment. However, in those situations in which both a psychiatrist and psychologist have personally evaluated or examined a person who is placed under a 72-hour hold and there is a collaborative treatment relationship between the psychiatrist and psychologist, either the psychiatrist or psychologist may authorize the release of the person from the hold, but only after they have consulted with one another.

It is possible for the person to be released before the end of the 72 hours. But if the staff decides that the person needs continued treatment, the person can be held for a longer period of time. If the person is held longer than 72 hours you have the right to a lawyer and a qualified interpreter and a hearing before a judge. If you are unable to pay for the lawyer, then one will be provided free.

 

Sexually Violent Predators

Welfare and Institutions Code Section 6600

The State Board of Parole Hearings (BPH) review the background and history of inmates convicted of specific sexual offenses to identify those who may be identified as sexually violent predators.  Those who meet criteria established in the law are referred to the Department of Mental Health (DMH) for clinical evaluations.  They may, in turn, be referred to county Districts Attorney, who may petition the courts for civil judgments that commit the inmate to a psychiatric facility for counseling and treatment after they have served the sentence for their initial conviction.

The initial screening is conducted by the Department of Corrections and Rehabilitation and the BPH.  If the case is forwarded to the DMH, two clinical evaluators must agree that the inmate meets the criteria that define sexually violent predators before the case is passed on to a District Attorney.

The criteria for commitment as a sexually violent predator includes:

  • conviction of specific, violent sexual crimes involving two or more victims
  • agreement between two clinical evaluators that the inmate has a mental disorder that likey will cause the person to commit a new violent sexual crime

The District Attorney may petition the court for a jury trial that could determine that the inmate be committed to a state psychiatric hospital for up to two years of treatment.  The inmate is evaluated at least once each year during this commitment and may petition the court to be released to the community.  At the end of the two year commitment, the inmate is evaluated by the court.  That could result in a trial that orders a another two years of commitment.   Recently the law has changed to allow for indeterminate (life) commitments, however, this new law has yet to be tested in the appeals court process.

If the District Attorney does not petition the court for civil commitment, the inmate is released to parole, where treatment in a community facility is often a condition of parole.

 

California Sexually Violent Predator (SVP) Statute

 

Related California Bills

  • SB 1143 , by Senator Mountjoy, Chapter 762, Statutes of 1995 and AB 888 , by Assemblyman Rogan, Chapter 763, Statutes of 1995, established a civil commitment process for persons determined by the courts to be an SVP.
  • AB 1496 by Assembly Member Sher, Chapter 4, Statutes of 1996, authorizes the Board of Prison Terms to impose a temporary 45-day hold on CDC inmates where there is probable cause that the inmate may be an SVP.
  • AB 3483 , Chapter 197, Statutes of 1996 (Budget Trailer Bill) authorized $10,780,000 to the Department of Mental Health for implementation of the SVP program and limits placement of SVP’s at Atascadero State Hospital for the 1996-97 fiscal year.
  • AB 3130 , by Assembly Member Boland (R-Granada Hills), Chapter 462, Statutes of 1996, clarifies provisions governing the civil commitment of sexually violent predators to a secure facility. The bill expands current law to include predators who are familiar with, but have no substantial relationship with their victims. This bill is an urgency measure and took effect on September 13, 1996.
  • SB 2161 , by Senator Leslie (R-Roseville), Chapter 461, Statutes of 1996, provides a definition of "substantial sexual conduct" involving a person under age 14. The bill clarified that a sex offense against a child under the age of 14 meets the definition of a sexually violent offense. Substantial sexual conduct does not require the presence of force, violence, duress, menace or fear of injury. The bill too effect on January 1, 1997.
  • SB 536 ,by Senator Mountjoy, Chapter 19, Statutes of 1998, included an amendment to the SVP statute to clarify that the 2-year period of commitment begins on the date of the court order of commitment, without reduction of time spent in a secure facility. SB 536 required that there be a finding of probable cause prior to a "pre-commitment" SVP admitted to the state hospital. Also persons already in state hospitals as "pre-commitments" must be returned to the county for a probable cause hearing.
  • SB 1976 ,by Senator Mountjoy, Chapter 961, Statutes of 1998, included clarification that Atascadero State Hospital is to be used to house sexually violent predators only until a permanent housing and treatment facility is made available. This bill also requires that no more than 10 "pre-commitment" SVP state hospital patients can be returned to a county in one month to have a probable cause hearing pursuant to language in SB 536.
  • SB 11, by Senator Schiff, Chapter 136, Statutes of 1999, provides that a petition to have an offender declared to be a sexually violent predator (SVP) shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful as the result of a good faith mistake of fact or law.
  • SB 786, by Senator Schiff, Chapter 350, Statutes of 1999, clarifies that a prior felony conviction based on a predecessor statute can be used at the time of sentencing to impose an enhancement or a term of imprisonment so long as the predecessor statute included all the elements of the current offense specified as a qualifying "prior felony conviction."
  • SB 746, by Schiff, Chapter 995, Statutes of 1999, expands the definition of prior convictions for purposes of the sexually violent predator (SVP) law to include juvenile adjudications where the minor was age 16 or older, committed a sexually violent offense, and was committed to the California Youth Authority (YA).
  • SB 451, by Schiff, Chapter 41, Statutes of 2000, provides that a sexually violent predator (SVP) may be held in custody, pending completion of the probable cause hearing. The probable cause hearing may continue beyond the SVP's scheduled release date.
  • SB 2018, by Schiff, Chapter 420, Statutes of 2000, authorizes a district attorney to request the Department of Mental Health (DMH) to perform updated evaluations of offenders subject to commitment as sexually violent predators (SVPs) for evidence at commitment and recommitment hearings. Updated evaluations would include reviews of medical and psychological records, including treatment records and interviews.
  • AB 2849, by Assembly Members Havice and Cardoza, Chapter 643, Statutes of 2000, expands the definition of "conviction" to include a conviction which resulted in an indeterminate sentence or probation as it relates to the sexually violent predator (SVP) law.

 

Important California Court Decisions

  • Hubbart v. Superior Court of Santa Clara County (People), S052136, 1999 (19 Cal.4th 1138) – The California Supreme Court upheld that the civil commitment of individuals under the stature of the Sexually Violent Predator Act (SVPA) did not violate the federal or state constitutions.
  • People v. Torres, S079575, 2001 (25 Cal. 4th 680) – The court concludes that there is no requirement that the defendant’s prior crimes are “predatory acts”, which are statutorily defined as acts against a stranger, a casual acquaintance, or someone cultivated for the purpose of victimization, in order to find that he or she is a sexually violent predator.
  • People v. Superior Court of Marin County (Ghilotti), S102527, 2002 (27Cal.4th888) – The court decision includes that a sexually violent predator may be committed, or recommitted if due to a diagnosed mental disorder there is a substantial danger - that is, a serious and well founded risk that the individual is likely to engage in acts of sexual violence without the appropriate treatment and custody.
To Return To Practice Areas Click Here