Code of Massachusetts Regulations › 104 CMR - DEPARTMENT OF MENTAL HEALTH › Title 104 CMR 27.00 - LICENSING AND OPERATIONAL STANDARDS FOR MENTAL HEALTH FACILITIES › Subpart C - OPERATIONAL STANDARDS FOR MENTAL HEALTH FACILITIES › Section 27.13 - Human Rights

Current through Register 1525, July 5, 2024
(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
.