104 CMR, § 27.13

Current through Register 1536, December 6, 2024

Section 27.13 - Human Rights

(1) No right protected by the Constitutions or laws of the United States and the Commonwealth of Massachusetts shall be abridged solely on the basis of a patient's admission or commitment to a facility, except insofar as the exercise of such rights have been limited by a court of competent jurisdiction. Furthermore, no patient shall be deprived of the right to manage his or her affairs, to contract, to hold professional, occupational or vehicle operator's licenses, to make a will, to marry, to hold or convey property or to vote in local, state, or federal elections solely by reason of his or her admission or commitment to a facility.

(2) In cases where there has been an adjudication that a patient lacks capacity, or when a legally authorized representative has been appointed or designated on behalf of such patient, such patient's human rights may be limited only to the extent of the legally authorized representative's authority. If at any time during a patient's treatment, the clinical team believes the patient to lack capacity to make treatment or other personal or financial decisions, the director or designee shall notify the patient that a recommendation may be made that there be an adjudication or other determination of the capacity of such patient.

(3)Right to Treatment. Each patient admitted to a facility shall, subject to his or her giving informed consent, receive treatment suited to his or her needs which shall be administered skillfully, safely, and humanely with full respect for dignity and personal integrity.

(4)Right to Education. Patients younger than 22 years old, under the care and treatment of the Department, have the right to receive education and training appropriate to their needs in accordance with M.G.L. c. 71B, and 603 CMR 28.00: Special Education.

(5) No facility shall employ corporal punishment, infliction of pain or physical discomfort, or, except as required for medical procedures or treatment, deprivation of food or sleep for any purpose.

(6) In addition to the foregoing, a patient of a facility:

(a) shall have reasonable access to a telephone to make and receive confidential telephone calls and to assistance, when desired and necessary to implement this right, provided that such calls do not constitute a criminal act or represent an unreasonable infringement of other patients' right to make and receive phone calls;

(b) shall have the right to send and receive sealed, unopened, uncensored mail, provided however, that the facility director or designee may direct, for good cause and with documentation of specific facts in the patient's record, that a particular patient's mail be opened and inspected in front of the patient, without it being read by staff, for the sole purpose of preventing the transmission of contraband. Writing materials and postage stamps in reasonable quantities shall be made available for use by patients. Reasonable assistance shall be provided to patients in writing, addressing and posting letters and other documents upon request;

(c) shall have the right to receive visitors of such patient's own choosing daily and in private, at reasonable times. Hours during which visitors may be received may be limited only to protect the privacy of other patients and to avoid serious disruptions in the normal functioning of the facility and shall be sufficiently flexible as to accommodate individual needs and desires of such patients and their visitors;

(d) shall have the right to a humane psychological and physical environment. Each such patient shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing, and in toileting. 104 CMR 27.13 shall not be interpreted as requiring individual sleeping quarters;

(e) shall have the right to receive, or refuse, visits and telephone calls from his or her attorney or legal advocate, physician, psychologist, clergy or social worker at any reasonable time, regardless of whether the patient initiated or requested the visit or telephone call;

(f) shall have reasonable daily access to the outdoors, as weather conditions reasonably permit, in a manner consistent with the patient's clinical condition and safety as determined by the treating clinician and with the ability of the facility to safely provide access.

1. For purposes of 104 CMR 27.13(6)(f) reasonable daily access shall mean supervised or unsupervised daily access to the outdoors, individually or in groups.

a. Nothing in 104 CMR 27.13(6)(f) shall be construed to:

i. prohibit a facility from establishing reasonable schedules or designated times for the provision of access to the outdoors, as long as each patient has a reasonable opportunity to access the outdoors on a daily basis, consistent with the provisions of 104 CMR 27.13(6)(f), during one or more of the scheduled or designated times;

ii. require a facility to conduct clinical programming outdoors; or

iii. require a facility to provide access to the outdoors "on demand".

b. No patient shall be compelled to participate in clinical programming as a condition of accessing the outdoors.

2. For purposes of 104 CMR 27.13(6)(f), outdoors shall mean a space or area outside of a building, which may include a porch, courtyard, roof deck or open space surrounded by a building, and may be fenced, locked or otherwise secured.

3. A patient's initial psychiatric examination conducted within 24 hours of admission shall include a written assessment of the patient's ability to access the outdoors consistent with his or her clinical condition and safety. Factors that may be considered in such assessments may include, but are not necessarily limited to:

a. acuity of symptoms;

b. medical conditions;

c. forensic legal status, including pending charges and bail status;

d. risk of elopement;

e. need for secure or nonsecure space;

f. level of supervision required to ensure safety;

g. ability of the facility to meet the patient's requirements for safety; and

h. adequacy of historical or observational data upon which to make a determination.

4. A patient's status regarding access to the outdoors shall be reviewed at treatment team meetings and reassessed by the treating clinician whenever it appears that there has been a change in circumstances that may affect the patient's ability to safely access the outdoors.

a. A decision made in accordance with 104 CMR 27.13(6)(f)3. or 104 CMR 27.13(6)(f)4. to restrict a patient's access to the outdoors shall be reviewed daily to determine whether there is a change relative to the factors that resulted in the restriction. If such a determination is made, a new assessment shall be conducted.

b. A patient whose access to the outdoors has been restricted in accordance with 104 CMR 27.13(6)(f)3., may request a new assessment at any time. Such assessment shall be conducted within a reasonable period of time; provided however, there shall be no requirement to provide more than one assessment in a 24-hour period.

c. In the event a change in circumstances that may affect the patient's ability to safely access the outdoors occurs outside of normal business hours, an on-duty clinician acting on behalf of the treating clinician may, in accordance with 104 CMR 27.13(6)(f)3. and 4., restrict or authorize such access as indicated by the change in circumstances. Any such restriction of access shall be reviewed in accordance with 104 CMR 27.13(6)(f)4.

5. The facility shall have a written plan to implement its obligation to provide patients access to the outdoors.

a. The plan shall include the following:

i. procedures, including staffing and other safety requirements, to allow for access to nonsecure outdoor space for patients who have been assessed as clinically appropriate and safe to exercise this option; and

ii. procedures, including staffing and other safety requirements, to allow for access to secure outdoor space, if available, for patients who have been assessed as clinically appropriate and safe to exercise this option.

b. Reasonable efforts to safely provide access to outdoor space may include, but shall not be limited to:

i. reasonable capital expenditures to develop, construct or otherwise acquire outdoor space;

ii. reasonable modifications of staffing patterns to permit staff escorts; or

iii. reasonable modifications to building access policies to permit patient access to common areas of the facility or proximate to the facility not normally dedicated as patient areas.

c. If the facility determines that it cannot safely provide secure outdoor access due to staffing or physical plant limitations, it shall:

i. identify and document such limitations in the plan; and

ii. identify what actions the facility will take to address these limitations and the time frame for the actions.

If the facility determines that the limitations cannot be reasonably remedied, the facility shall identify the reasons for such determination. Such reasons shall be documented with sufficient detail to enable the Department to determine whether they constitute reasonable justification.

d. Upon request of the Department, but no less frequently than in its application for licensure or license renewal, the facility shall demonstrate to the Department's satisfaction that its plan is current and that it has identified, considered and implemented all reasonable actions to safely provide access to outdoor space.

6. The facility shall have procedures intended to ensure patient and staff safety at such times that patients are exercising their right of access to the outdoors. Such procedures may include, but are not necessarily limited to:

a. availability of electronic communication for staff supervising patients or for patients accessing the outdoors without staff supervision;

b. application of appropriate patient to staff ratios, including staffing requirements for patients not accessing the outdoors, taking into account the number of patients accessing the outdoors and any provisions for supervision determined by the treating clinician;

c. use of security cameras to monitor outdoor areas; and

d. provisions for altering designated times for access to accommodate inclement weather.

(g) shall, upon admission and upon request at any time thereafter, be provided with the name, address, and telephone number of the Mental Health Legal Advisors Committee, Committee for Public Counsel Services, and authorized Protection and Advocacy organizations, and shall be provided with reasonable assistance in contacting and receiving visits or telephone calls from attorneys or paralegals from such organizations; provided further, that the facility shall designate reasonable times for unsolicited visits and for the dissemination of educational materials to patients by such attorneys or paralegals;

(h) shall have the right to file complaints and to have complaints responded to in accordance with 104 CMR 32.00: Investigation and Reporting Responsibilities.

(7) Any rights set forth in 104 CMR 27.13(6)(a), (c) or (f) may be temporarily suspended, but only by the facility director or designee upon concluding that based on the experience of the patient's exercise of such right, such further exercise of it in the immediate future would present a substantial risk of serious harm to said patient or others and that less restrictive alternatives have either been tried or failed or would be futile to attempt. Such suspension shall be reviewed at least daily and shall last no longer than the time necessary to prevent the harm, and its imposition shall be documented with specific facts in the patient's record. Notice of suspensions of rights under 104 CMR 27.13(7) shall be provided to the facility's human rights officer.

(8) An assessment or decision concerning the exercise of the rights set forth in 104 CMR 27.13(6)(a) through (f), and the reasons, therefore, shall be documented with specific facts in the patient's record and subject to timely appeal. An appeal brought pursuant to 104 CMR 27.13(8) shall be initiated by the filing of a complaint in accordance with 104 CMR 32.00: Investigation and Reporting Responsibilities, and shall be subject to the provisions thereof.

(9) Patients have the right to be free from unreasonable searches of their person or property.

(10) Each facility shall develop a written policy, consistent with applicable law and the requirements of 104 CMR 27.13, regarding patient possessions and the implementation of searches and seizures within the facility.

(a) Patients shall be informed of the policy upon admission to the facility. The policy shall, at a minimum, detail circumstances in which a search may be authorized and require that, in all except emergency circumstances, patients:

1. be informed of a search prior to the search;

2. be provided an opportunity to consent to the search; and

3. be present during the search of their property.

(b) If a search of a patient's property needs to be performed in an emergency, when the patient is not present during the search, the patient shall be informed as soon as possible about the search. In addition, the nature of the emergency, the extent and results of the search, and the reason(s) that patient was not present during the search shall be documented in the patient's record.

(c) Nothing in 104 CMR 27.13(10) shall prohibit a facility from having a policy of routine searches of patients on admission or upon returning from authorized or unauthorized time off unit; of periodic unit searches for contraband; or implementation of search protocols for visitors.

(11)Right of Habeas Corpus. Any patient involuntarily committed to any facility who believes or has reason to believe he or she should no longer be retained may make written application to the superior court for a judicial determination of the necessity of continued commitment pursuant to M.G.L. c. 123, § 9(b).

(12)Rights at Court Hearing. Whenever a court hearing is held under the provisions of M.G.L. c. 123 for the commitment or further retention of a patient in a facility, such patient shall have the right to a timely hearing and representation by counsel as provided by law.

(13)Rights of Aliens. Aliens shall have the same rights under the provisions of M.G.L. c. 123 as citizens of the United States.

(14) No patient shall be photographed, interviewed or exposed to public view for purposes of commercial exploitation without the express written consent of the patient or, if applicable, the patient's legal guardian; provided however, that a patient may be photographed by the facility for purposes of internal security, such as for medication administration or patient identification.

(15)Human Rights Information to Each Patient on Admission. A member of the admitting staff shall give each patient, and, if applicable, his or her legally authorized representative, at the time of admission a copy of the rights set forth in 104 CMR 27.13, or other materials explaining his or her rights prepared in accordance with Departmental guidelines.

(16)Copies of Rights Posted and Available in Facilities. Each facility shall post a copy of the rights set forth in 104 CMR 27.13 in the admitting room of the facility, in each unit, and in other appropriate and conspicuous places in the facility, and shall make copies available upon request.