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answers to frequently asked questions | For the Connecticut's Patients' Rights Statutes>>> 17a-540-550
legal mumbo jumbo
    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 be adequately informed before making a decision about treatment options, 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.

    Increasingly, in mental health treatment settings, using personal preference forms or psychiatric advance directives can be other resources to use in ensuring due process protections are respected.
    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.
    • or contact a representative of the Connecticut Legal Rights Project at 877-402-2299 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
    9) Connecticut Probate Court Guidelines for Conservators [pdf file]
    10) Bazelon Center for Mental Health Law: Psychiatric Advance Directives
    11) Pat Risser's Model Informed Consent Form
    OTHER NOTES
    In 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 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"

website maintainer: Will Brady | wbrady@rondak.org -or- will.brady@gmail.com| this page updated july 04

     
     
 NOTE: Information on this page is from the Patients' Rights Handbook, Connecticut Valley Hospital, Midletown, CT | While Federal regulations [under authority vested in the Center for Medicare + Medicaid Services [CMS] apply thoughout the USA, and Standards estabilshed by JCAHO apply in the USA, state laws may differ regarding how strongly a patient's due process rights are protected | Likewise, each nation has other laws and regulatory agencies with different rules | This is provided only as an example |
image thanks to DENDRON This page provided as a public service by rondak.org | the site owner works as a mental health / human rights advocate.

This is not an official website of the State of Connecticut, CT Department of Mental Health + Addiction Services nor any other public or private mental health program or agency |

The comments, links, references and materials provided in this section are not a substitute for advocacy services, mental health care or treatment |

The author of this site cannot assist in emergency situations, nor can he provide case-specific consultations | Those seeking actual services, either from legal or mental health professionals are advised to contact those in the region wherein they reside |

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legal & disclaimer notice: © 1999 - 2004 / Will Brady || I hope you've found this site interesting, even thought provoking || please let me know of any factual errors or inactive links || Occasionally, images or text have been directly linked to source sites [rare] Other material may come from commercial sources || They are reproduced here under fair use guidelines of US Copyright law but every effort is made to credit such source material || As to the rest of the site's content, constructive comments, suggested links to add, are welcome.
since 12 june 1999