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| due process | a patients' right in treatment answers to frequently asked questions For the full text version of Connecticut's Patients' Rights Statues>>> 17a-540-550 Due Process protections ~that is, a person's rights to be heard~ are a legal rights tool generally underused by individuals with psychiatric or mental disabilities. Yet the power of this tool can be immeasurable. What you'll find here are some basic explanations about Due Process, as well as examples from Connecticut's Patients' Rights statutes, policies and practices. You may want to investigate what similar protections already exist on paper which apply to facilities where you reside or whose services you make use of. What is "Due Process"?"The essential elements of due process law are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case and the guarantee of due process requires that every [person] has protection of ...and benefit of general law..." Where does it come from?Due Process is protected by the first, fifth, sixth and fourteenth amendments of the United States Constitution. The sixth amendment of Connecticut's Constitution specifically protects the Due Process rights of people with "mental disabilities" as do other Connecticut Statutes. How Due Process works"...Due Process implies the right of the person to be present before a tribunal [that is, a decision making body] which pronounces judgement upon a question of life, libery or property in its most comprehensive sense; to be heard by testimony or otherwise, to have the right to argue against, by proof, every material fact which bears on the question of right in the matter involved." While not specifically identified as "due process" protections, certain parts of Connecticut General Statutes on Patients' Rights (CGS 17a-451 op cit) and CT DMHAS Commissioner's policies outline and identify the patients' grievance process in mental health facilities. Some of the areas where a patient's Due Process rights are protected include: • Active participation in the Treatment Planning Process (CGS 17a-542) • The right to have a Probable Cause Hearing within 72 hours of entering a hospital • The right to cross-examine others in a Civil Commitment hearing • Redress of grievances is protected (CGS 17a-541t(1-6)) Due Process protections have been violated if..."...any question of fact or liability be conclusively presumed against [the subject of discussion] this is not due process." Constitutional guarantee demands that decisions of law (or rule) "...shall not be unreasonable, arbitrary or capricious and that means selected shall have real and substantial relation to object." How does this relate to treatment?As this relates to participation in the treatment process, the patient has the right to be present in meetings or discussions affecting his or her treatment while at a facility. A patient has the right participate in the decision making process, to provide input about desired outcomes, and to dispute the conclusions that his or her treatment team may make if he or she disagrees. (see references below) How does this relate to resolving grievances?As this relates to the Grievance process, each patient has the right to be heard concerning a grievance, to discuss his or her grievance with appropriate authorized personnel of a facility, to have a grievance investigated and to expect mediation to be available (if necessary) in order to resolve a dispute. What if somebody doesn't understand critical issues?If he or she is unable to render decision or take part in such discussion, the person's assigned conservator -or an advocate whom the person has assigned and agreed to have speak on his or her behalf may be the participant in such affairs; due to language difficulties: Similarly, if someone does not have English as a primary language, case law exists that supports the person's right to have an interpreter present and available during such a process; or if he or she is civilly committed: Due Process rights are the same for patients who are voluntarily in treatment as well as for those who are involuntarily committed; or who has a conservator: Not directly on subject but as due process protections may relate to refusal of treatment, Connecticut court case findings in 1994 allow civilly committed patients who have conservators of persons to still refuse medications. In fact, guidelines for Probate Court administrators enjoin conservators to consult with their clients prior to making any decisions that might authorize the use of treatments which the patient with whom they are working might otherwise oppose. Another court case, Garcia which applies to people sent from the Court to a DMHAS facility for assessing a person's legal competency, outlines a process whereby DMHAS facilities must petition the court to override such persons' refusal of treatment. (this became a part of the Connecticut General Statutes in 1998 (CGS 54-56-d)). What other Due Process protections might apply to health care facilities?The Joint Commission for the Accreditation of Health Care Organizations (JCAHO), in its standards for patient care and treatment, as well as in the general standards established for Patients' Rights. JCAHO Standards have identified the importance of patients taking an active role in the planning of any treatment interventions that may be suggested or recommended by the clinical Treatment Team. What can someone do if Due Process rights have been violated?A couple of different options are available. Since Connecticut Statute and the DMHAS Grievance Process encourage that problems be resolved "as close to the source of origin" as possible... • one can appeal -via the DMHAS grievance process- to the Patient or Consumer Rights Officer of the facility. • A person could also contact a representative of the Connecticut Legal Rights Project at 888-659-0425 or the Connecticut Office of Protection and Advocacy at 800-842-7303 to speak an advocate who can assist in this matter. • Finally, the Superior Court "within whose jurisdiction the person resides" could also be petitioned for appropriate relief. *There may be exceptions and limitations to some rights. Your rights are detailed in the Connecticut General Statutes sections 17a=450 et seq; 17a-540 et seq; 17a-680 et seq; 52-146d-j; 54-56d; in Federal Regularion 42 CFR part 2, the Rehabilitation Act, the Americans with Disabilities Act; in the Patients' Self-Determination Act, in Section 1983 and in other parts of state and federal law. REFERENCES:1) Black's Law Dictionary 2) Mental Disability Law Primer (5th Edition). American Bar Association ©1995; chapter 13 / Rights Within Civil Instititions & Facilities; page 83 - Civil Due Process Hearing Model 3) Moses J v Hunter (right to refuse medications even with conservator of person 1994) 4) Essays in Therapeutic Jurispurdence Wexler & Winick (Carolina Academic Press ©1991) Procedural Due Process Considerations; pp 74-81 5) Rights of Legal Access Prisoner Self Help Document 6) The Rights of People with Mental Illness in Connecticut Connecticut Civil Liberties Union & Connecticut Legal Rights Project ©1996 7) Connecticut General Statutes 8) United States Constitution OTHER NOTESIn addition to these references, Due process protections might also be provided in the policies and procedures of a facility where a person resides. For examples, the following are from the 1997 edition of Connecticut Valley Hopsital's Policy and Procedure Manual: 9) CVH Operations Policy and Procedures Section I: Patient Focused Functions; Policy 1: Patient Rights & Organizational Ethics; Procedure 1.9 Patient Grievance Policy 10) CVH Division of General Psychiatry Chapter 4: Patient Care; Section 4.20: Treatment Planning; Part III/E & F: Patient Participation in Treatment Planning. "Patients will have the opportunity to select treatment options from available resources and offer suggestions regarding additional programming. Each treatment team ...in collaboration with the patient and his or her designated representative... must provide information relating to an explaination of the reasons for treatment, the nature of the proposed treatment method, the advantages and disadvantages... medically acceptable alternatives... the risk of proposed treatment and a detailed discharge plan for continuity of care in the community following ...discharge from the hospital. "In the event the patient lacks the capacity to participate in team meetings due to language difficulties, appropriate translation services will be provided by the hospital." "Patients may request a meeting with the treatment team at any time" |  This page is presented as a public service by the owner of this website. He works in mental health / human rights advocacy. This is not an official website of either the State of Connecticut or the Department of Mental Health & Addiction Services. related subjects watchdogs CT DMHASConsumer Rights Officers CT P&A Protection & Advocacy Bazelon Center informed consent Informed Consent Form Psychiatric Advance Directives directories, search engines Galaxy's Mental Health links page Mental Health Dictionary rondak.org: title page human rights dis/abilityresources human rights mental patients'rights patients' rightsindex community environment remote placescommunication going online creative arts media reference web essaysistshistory | culture ABO culture heritage / history usa civil wargovernment | legal government &bureaucracies legal resources correctionalsystems human condition g/b/l/t rights gay teens mental health women's issuessocial movements progressivepolitics labor movementmadbook Site Index References META SEARCH ENGINES: scrub the web dogpile yahoo hotbot/lycos altavista northern light LEGAL & DISCLAIMER NOTICE: ©: 2000 / Will Brady // I hope you've found the site interesting, even thought provoking. Most of the links are up-to-date, but I can't always guarantee the state of activity for other sites. Please don't write to me about the content of sites linked from here. On the other hand, please let me know of any inactive links. Constructive comments, suggested links to add, are welcome. site maintainer: Will Brady webmaster@rondak.org updated: 23 may 2000 |