TITLE 59: MENTAL HEALTH
CHAPTER I: DEPARTMENT OF HUMAN SERVICES
PART 299 SEXUALLY VIOLENT PERSONS
SECTION 299.330 RIGHTS
Section 299.330 Rights
a) No resident shall be presumed incompetent, nor shall such person be held legally disabled, except as determined by a court. Such determination shall be separate from a judicial proceeding held to determine whether a person is subject to commitment as a sexually violent person.
b) Residents shall be provided reasonable opportunities to pursue their religious beliefs and practices subject to the Program's concerns regarding security, safety, rehabilitation, institutional order, space, and resources. A resident who is an adherent or a member of any well-recognized religious denomination, the principles and tenets of which teach reliance upon services by spiritual means through prayer alone for healing by a duly accredited practitioner thereof, shall have the right to choose such services. The parent or guardian of a resident who is a minor, or a guardian of a resident who is not a minor, shall have the right to choose services by spiritual means through prayer for the resident.
c) A resident may perform labor to which he consents, if the professional responsible for overseeing the implementation of the services plan for the resident determines that the labor would be consistent with such plan. A resident who performs labor which is of any consequential economic benefit to the Department shall be adequately compensated commensurate with the value of the work performed, in accordance with applicable federal and State statutes and regulations. A resident may be required to perform tasks of a personal housekeeping nature without compensation.
d) An adult resident, or, if the resident is under guardianship, the resident's guardian, may refuse generally accepted treatment services, except the Resident Behavior Management System.
1) Administration of Psychotropic Medication
A) Psychotropic medication shall not be administered to any resident against his or her will or without the consent of the parent or guardian of a minor who is under the age of 18, unless:
i) A psychiatrist, or in the absence of a psychiatrist a physician, has determined that: the resident suffers from a mental illness or mental disorder; and the medication is in the medical interest of the resident; and the resident is either gravely disabled or poses a likelihood of serious harm to self or others; and
ii) The administration of such medication has been approved by the Treatment Review Committee after a hearing (see subsection (d)(2) of this Section). However, no such approval or hearing shall be required when the medication is administered in an emergency situation. An emergency situation exists whenever the required determinations listed in subsection (d)(1)(A)(i) of this Section have been made and a psychiatrist, or in the absence of a psychiatrist a physician, has determined that the resident poses an imminent threat of serious physical harm to self or others. In all emergency situations, the procedures set forth in subsection (d)(5) of this Section shall be followed.
B) Whenever a physician orders the administration of psychotropic medication to a resident against the person's will, the physician shall document in the resident's clinical file the facts and underlying reasons supporting the determination that the standards in subsection (d)(1)(A) of this Section have been met and:
i) the Program Administrator shall be notified as soon as practicable; and
ii) unless the medication was administered in an emergency situation, the Chairperson of the Treatment Review Committee shall be notified in writing within three days.
2) Treatment Review Committee Hearing Procedures
The Treatment Review Committee shall be comprised of three members appointed by the Program Administrator, two of whom shall be mental health professionals and one of whom shall be a physician. One member shall serve as Chairperson of the Committee. None of the Committee members may be involved in the current decision to order the medication. The members of the Committee shall have completed a training program in the procedural and mental health issues involved that has been approved by the Clinical Director.
A) The Program Administrator shall designate a member of the program staff not involved in the current decision to order medication to assist the resident. The staff assistant shall have completed a training program in the procedural and mental health issues involved that has been approved by the Clinical Director.
B) The resident and staff assistant shall receive written notification of the time and place of the hearing at least 24 hours prior to the hearing. The notification shall include the tentative diagnosis and the reasons why the medical staff believes the medication is necessary. The staff assistant shall meet with the resident prior to the hearing to discuss the procedural and mental health issues involved.
C) The resident shall have the right to attend the hearing unless the Committee determines that it is likely that the person's attendance would subject the person to substantial risk of serious physical or emotional harm or pose a threat to the safety of others. If such a determination is made, the facts and underlying reasons supporting the determination shall be documented in the resident's clinical file. The staff assistant shall appear at the hearing whether or not the resident appears.
D) The documentation in the clinical file referred to in subsection (d)(1)(B) of this Section shall be reviewed by the Committee and the Committee may request the physician's personal appearance at the hearing.
E) Prior to the hearing, witnesses identified by the resident and the staff assistant may be interviewed by the staff assistant after consultation with the resident as to appropriate questions to ask. Any such questions shall be asked by the staff assistant unless cumulative, irrelevant, or a threat to the safety of individuals or the security of the facility.
F) Prior to the hearing, the resident and the staff assistant may request in writing that witnesses be interviewed by the Committee and may submit written questions for witnesses to the Chairperson of the Committee. These questions shall be asked by the Committee unless cumulative, irrelevant, or a threat to the safety of individuals or the security of the facility. If any witness is not interviewed, a written reason shall be provided.
G) Prior to the hearing, the resident and the staff assistant may request in writing that witnesses appear at the hearing. Any such request shall include an explanation of what the witnesses are expected to state. Reasonable efforts shall be made to have such witnesses present at the hearing, unless their testimony or presence would be cumulative, irrelevant, or a threat to the safety of individuals or the security of the facility, or for other reasons including, but not limited to, unavailability of the witness or matters relating to institutional order. In the event requested witnesses are unavailable to appear at the hearing but are otherwise available, they shall be interviewed by the Committee as provided for in subsections (d)(2)(F) and (d)(2)(I) of this Section.
H) At the hearing, the resident and the staff assistant may make statements and present documents that are relevant to the proceedings. The staff assistant may direct relevant questions to any witnesses appearing at the hearing. The resident may request that the staff assistant direct relevant questions to any witnesses appearing at the hearing and the staff assistant shall ask such questions unless cumulative, irrelevant, or a threat to the safety of individuals or the security of the facility.
I) The Committee shall make such investigation as it deems necessary. The staff assistant shall be informed of any investigation conducted by the Committee and shall be permitted to direct relevant questions to any witnesses interviewed by the Committee. The staff assistant shall consult with the resident regarding any statements made by witnesses interviewed by the Committee and shall comply with requests by the resident to direct relevant questions to such witnesses unless cumulative, irrelevant, or a threat to the safety of individuals or the security of the facility.
J) The Committee shall consider all relevant information and material that has been presented in deciding whether to approve administration of the medication.
K) A written decision shall be prepared and signed by all members of the Committee that contains a summary of the hearing and the reasons for approving or disapproving the administration of the medication. Copies of the decision shall be given to the resident, the staff assistant, and the Program Administrator. Any decision by the Committee to approve involuntary administration of psychotropic medication must be unanimous. The Program Administrator shall direct staff to comply with the decision of the Committee.
L) If the Committee approves administration of the medication, the resident shall be advised of the opportunity to appeal the decision to the Clinical Director by filing a written appeal with the Chairperson within five days after the resident's receipt of the written decision.
3) Review by Clinical Director
A) If the resident appeals the Treatment Review Committee's decision, staff shall continue to administer the medication as ordered by the physician and approved by the Committee while awaiting the Clinical Director's decision on the appeal.
B) The Chairperson of the Committee shall promptly forward the written notice of appeal to the Clinical Director or a physician designated by the Clinical Director.
C) Within five working days after receipt of the written notice of appeal, the Clinical Director shall:
i) Review the Committee's decision, make such further investigation as deemed necessary, and submit a written decision to the Program Administrator; and
ii) Provide a copy of the written decision to the resident, the staff assistant, and the Chairperson of the Committee.
D) The Program Administrator shall direct staff to comply with the decision of the Clinical Director.
4) Periodic Review of Medication
A) Whenever any resident has been involuntarily receiving psychotropic medication continuously or on a regular basis for a period of six months, the administration of such medication shall, upon the resident's written request, be reviewed by the Treatment Review Committee in accordance with the procedures enumerated in subsections (d)(2) and (d)(3) of this Section. Every six months thereafter, for so long as the involuntary medication continues on a regular basis, the resident shall have the right to a review hearing upon written request.
B) Every resident who is involuntarily receiving psychotropic medication shall be evaluated by a psychiatrist at least every 30 days, and the psychiatrist shall document in the resident's clinical file the basis for the decision to continue the medication.
5) Emergency Procedures
Subsequent to the involuntary administration of psychotropic medication in an emergency situation:
A) The basis for the decision to administer the medication shall be documented in the resident's clinical file and a copy of the documentation shall be given to the resident and to the Clinical Director for review.
B) A mental health professional shall meet with the resident to discuss the reasons why the medication was administered and to give the resident an opportunity to express any concerns he or she may have regarding the medication.
Copies of all notifications and written decisions concerning involuntary administration of psychotropic medication shall be placed in the resident's clinical file.
In the case of a resident who is a minor under the age of 18, the parent or guardian shall be sent the documentation and written decisions that are provided to the resident pursuant to this Section and shall be permitted to attend and participate in any proceedings required by this Section. Notice of any Treatment Review Committee hearing shall be promptly sent to the parent or guardian and reasonable attempts shall be made to provide such notice at least 72 hours prior to the hearing.
e) Residents may only acquire personal property in accordance with provisions of this Part or posted rules established by the Program Director where the resident is assigned. Every resident who resides in a secure residential facility shall be permitted to receive, possess and use personal property and shall be provided with a reasonable amount of storage space therefor, except as provided in posted rules established by the Program Director.
1) Possession and use of certain classes of property may be restricted by the Program Director when necessary to protect the resident or others from harm.
2) The professional responsible for overseeing the implementation of a resident's services plan may, with the approval of the Program Director, restrict the right to property when necessary to insure implementation of the services plan, protect such resident or others from harm, or as part of the Resident Behavior Management System.
3) When a resident is discharged from the facility, all of his or her lawful personal property that is in the custody of the facility shall be returned.
4) A resident may use his or her funds as he chooses, unless he or she is a minor or prohibited from doing so under a court guardianship order. A resident may deposit or cause to be deposited money in his or her name with the Department or a financial institution with the approval of the Department and the financial institution. When a resident is discharged from the Department, all of his unspent money, including earnings, shall be returned.
f) A resident shall be permitted reasonable communication with persons of choice by mail, telephone and visitation. Communications may be reasonably restricted, censored, screened or monitored to protect the resident or others from harm, harassment or intimidation or to insure implementation of the resident's services plan. The Program Director, in conjunction with the Chief Administrative Officer, shall set the times and places for the use of telephones and visits.
g) Upon commencement of services, or as soon thereafter as the condition of the resident permits, every resident who is 12 years of age or older and the parent or guardian of a minor or person under guardianship shall be informed orally and in writing of the rights guaranteed by this Part which are relevant to the nature of the services plan. Every facility shall also post conspicuously in public areas a summary of the rights that are relevant to the services delivered by that facility.
h) Whenever the rights of a resident that are specified in this Section are restricted, the professional responsible for overseeing the implementation of the resident's services plan shall be responsible for promptly giving notice of the restriction.
i) The Program Administrator and the Program Director of each secure residential facility shall adopt in writing such policies and procedures as are necessary. Such policies and procedures may amplify or expand, but shall not restrict or limit, the rights of residents.