Code of Massachusetts Regulations › 104 CMR - DEPARTMENT OF MENTAL HEALTH › Title 104 CMR 28.00 - Licensing and Operational Standards for Community Services › Subpart A - STANDARDS FOR COMMUNITY SERVICES › Section 28.03 - Legal and Human Rights

Current through Register 1525, July 5, 2024
(1) The utmost care
				shall be taken to protect the legal and human rights of all persons who receive
				services. These rights shall not be exercised in a manner as to infringe on the
				rights of other persons and staff. No person shall be subjected to retaliation
				as a result of the exercise of any right under any provision of the
				Department's regulations or other provision of law. These rights include, but
				are not limited to, the following:
(a) The
				right to be free from unlawful discrimination on the basis of race, creed,
				national origin, color, ethnicity, religion, sex, sexual orientation, gender
				identity, age, physical or mental disability or degree of disability, or such
				other bases as may be prohibited by law. However, classifications based on age,
				sex, or category or degree of disability shall not be considered discriminatory
				if based on written criteria developed by a provider and approved by the
				Department.
(b) The right to
				religious freedom and practice without compulsion according to the preference
				of the person;
(c) The right to
				vote, unless a minor or under guardianship which expressly restricts such
				right. Persons shall receive reasonable assistance when desired in registering
				and voting, and accessing voter registration information. Such assistance shall
				be provided in a non-partisan and non-coercive manner;
(d) The right to communicate, including:
1. The right to have reasonable access to a
				telephone and to make and receive confidential 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 another
				person's rights to make and receive telephone calls;
2. The unrestricted right to send and receive
				uncensored and unopened mail, to be provided with writing materials and postage
				in reasonable amounts and to reasonable assistance when desired and necessary
				in writing, addressing and posting letters and other documents; and
3. The right to receive or refuse visits and
				telephone calls from an attorney or legal advocate, physician, psychologist,
				clergy or social worker at any reasonable time, regardless of whether the
				person initiated or requested the visit or telephone call.
(e) The right to be represented by an
				attorney or advocate of the person's own choice, including for persons
				receiving services in a residential site, the right to meet in a private area
				at the residential site with an attorney or advocate;
(f) The right to be protected from commercial
				exploitation;
(g) The right to be
				visited and visit with others, daily and in private, provided that reasonable
				restrictions may be placed on the time and place of the visit, but only to
				protect the privacy of other persons or to avoid serious disruptions in the
				normal functioning of the service. Hours during which visitors may be received
				shall be sufficiently flexible as to accommodate individual needs and desires
				of persons and their visitors;
(h)
				The right to a humane psychological and physical environment. Where applicable
				to the service, persons 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 28.03 shall
				not be interpreted as requiring individual sleeping quarters;
(i) The right to file complaints and to have
				complaints responded to in accordance with
				104 CMR 32.00:
Investigation and Reporting Responsibilities;
(j) The right to informed consent. Informed
				consent means knowing consent, voluntarily given by a person who has the
				capacity to weigh the risks and benefits of the particular treatment being
				proposed. If a person does not have the capacity to provide informed consent,
				authorization for treatment may be obtained from a court of competent
				jurisdiction or the person's legally authorized representative, with the
				following exceptions:
1. Extraordinary
				medical care as it is defined by statute or court decision including, but not
				limited to, treatment with antipsychotic medication and electroconvulsive
				treatment (ECT), shall only be provided:
a.
				pursuant to a court order;
b. in
				the case of a minor, upon the consent of a legally authorized representative
				with authority to authorize such medical care; or
c. in the case of a duly activated health
				care proxy, upon the consent of the health care agent acting within the scope
				of such proxy.
2. If the
				person has no legally authorized representative, the Director may consent to
				routine or preventive medical care, including standard medical examinations,
				clinical tests, standard immunizations and treatment for minor illnesses and
				injuries. However, such medical care shall only be authorized upon
				recommendation of the treating physician that such care is necessary and
				appropriate, and provided the person agrees to such care, the person is not a
				minor or under guardianship, and has been found to lack capacity to make
				informed decisions about his or her medical care at his or her last service
				planning review.
3. Prior to an
				adjudication of incapacity, and court approval of a treatment plan, if
				applicable, a person retains the right to accept or refuse treatment as
				prescribed.
(k) The
				protections afforded to persons in certain residential sites under M.G.L. c.
				186, § 17A commonly known as the Community Residence Tenancy
				Law.