§ 10841.
It is the sense of the Congress that, as previously stated in title V of the Mental Health Systems Act [
42 U.S.C. 9501 et seq.], each State should review and revise, if necessary, its laws to ensure that mental health patients receive the protection and services they require, and that in making such review and revision, States should take into account the recommendations of the President’s Commission on Mental Health and the following:
(1)
A person admitted to a program or facility for the purpose of receiving mental health services should be accorded the following:
(A)
The right to appropriate treatment and related services in a setting and under conditions that—
(i)
are the most supportive of such person’s personal liberty; and
(ii)
restrict such liberty only to the extent necessary consistent with such person’s treatment needs, applicable requirements of law, and applicable judicial orders.
(B)
The right to an individualized, written, treatment or service plan (such plan to be developed promptly after admission of such person), the right to treatment based on such plan, the right to periodic review and reassessment of treatment and related service needs, and the right to appropriate revision of such plan, including any revision necessary to provide a description of mental health services that may be needed after such person is discharged from such program or facility.
(C)
The right to ongoing participation, in a manner appropriate to such person’s capabilities, in the planning of mental health services to be provided such person (including the right to participate in the development and periodic revision of the plan described in subparagraph (B)), and, in connection with such participation, the right to be provided with a reasonable explanation, in terms and language appropriate to such person’s condition and ability to understand, of—
(i)
such person’s general mental condition and, if such program or facility has provided a physical examination, such person’s general physical condition;
(ii)
the objectives of treatment;
(iii)
the nature and significant possible adverse effects of recommended treatments;
(iv)
the reasons why a particular treatment is considered appropriate;
(v)
the reasons why access to certain visitors may not be appropriate; and
(vi)
any appropriate and available alternative treatments, services, and types of providers of mental health services.
(D)
The right not to receive a mode or course of treatment, established pursuant to the treatment plan, in the absence of such person’s informed, voluntary, written consent to such mode or course of treatment, except treatment—
(i)
during an emergency situation if such treatment is pursuant to or documented contemporaneously by the written order of a responsible mental health professional; or
(ii)
as permitted under applicable law in the case of a person committed by a court to a treatment program or facility.
(E)
The right not to participate in experimentation in the absence of such person’s informed, voluntary, written consent, the right to appropriate protections in connection with such participation, including the right to a reasonable explanation of the procedure to be followed, the benefits to be expected, the relative advantages of alternative treatments, and the potential discomforts and risks, and the right and opportunity to revoke such consent.
(F)
The right to freedom from restraint or seclusion, other than as a mode or course of treatment or restraint or seclusion during an emergency situation if such restraint or seclusion is pursuant to or documented contemporaneously by the written order of a responsible mental health professional.
(G)
The right to a humane treatment environment that affords reasonable protection from harm and appropriate privacy to such person with regard to personal needs.
(H)
The right to confidentiality of such person’s records.
(I)
The right to access, upon request, to such person’s mental health care records, except such person may be refused access to—
(i)
information in such records provided by a third party under assurance that such information shall remain confidential; and
(ii)
specific material in such records if the health professional responsible for the mental health services concerned has made a determination in writing that such access would be detrimental to such person’s health, except that such material may be made available to a similarly licensed health professional selected by such person and such health professional may, in the exercise of professional judgment, provide such person with access to any or all parts of such material or otherwise disclose the information contained in such material to such person.
(J)
The right, in the case of a person admitted on a residential or inpatient care basis, to converse with others privately, to have convenient and reasonable access to the telephone and mails, and to see visitors during regularly scheduled hours, except that, if a mental health professional treating such person determines that denial of access to a particular visitor is necessary for treatment purposes, such mental health professional may, for a specific, limited, and reasonable period of time, deny such access if such mental health professional has ordered such denial in writing and such order has been incorporated in the treatment plan for such person. An order denying such access should include the reasons for such denial.
(K)
The right to be informed promptly at the time of admission and periodically thereafter, in language and terms appropriate to such person’s condition and ability to understand, of the rights described in this section.
(L)
The right to assert grievances with respect to infringement of the rights described in this section, including the right to have such grievances considered in a fair, timely, and impartial grievance procedure provided for or by the program or facility.
(M)
Notwithstanding subparagraph (J), the right of access to (including the opportunities and facilities for private communication with) any available—
(i)
rights protection service within the program or facility;
(ii)
rights protection service within the State mental health system designed to be available to such person;
(iii)
system established under subchapter I to protect and advocate the rights of individuals with mental illness; and
for the purpose of receiving assistance to understand, exercise, and protect the rights described in this section and in other provisions of law.
(N)
The right to exercise the rights described in this section without reprisal, including reprisal in the form of denial of any appropriate, available treatment.
(O)
The right to referral as appropriate to other providers of mental health services upon discharge.
(3)
(A)
No otherwise eligible person should be denied admission to a program or facility for mental health services as a reprisal for the exercise of the rights described in this section.
(B)
Nothing in this section should—
(i)
obligate an individual mental health or health professional to administer treatment contrary to such professional’s clinical judgment;
(ii)
prevent any program or facility from discharging any person for whom the provision of appropriate treatment, consistent with the clinical judgment of the mental health professional primarily responsible for such person’s treatment, is or has become impossible as a result of such person’s refusal to consent to such treatment;
(iii)
require a program or facility to admit any person who, while admitted on prior occasions to such program or facility, has repeatedly frustrated the purposes of such admissions by withholding consent to proposed treatment; or
(iv)
obligate a program or facility to provide treatment services to any person who is admitted to such program or facility solely for diagnostic or evaluative purposes.
(C)
In order to assist a person admitted to a program or facility in the exercise or protection of such person’s rights, such person’s attorney or legal representatives should have reasonable access to—
(ii)
the areas of the program or facility where such person has received treatment, resided, or had access; and
(iii)
pursuant to the written authorization of such person, the records and information pertaining to such person’s diagnosis, treatment, and related services described in paragraph (1)(I).
(D)
Each program and facility should post a notice listing and describing, in language and terms appropriate to the ability of the persons to whom such notice is addressed to understand, the rights described in this section of all persons admitted to such program or facility. Each such notice should conform to the format and content for such notices, and should be posted in all appropriate locations.
(4)
(A)
In the case of a person adjudicated by a court of competent jurisdiction as being incompetent to exercise the right to consent to treatment or experimentation described in subparagraph (D) or (E) of paragraph (1), or the right to confidentiality of or access to records described in subparagraph (H) or (I) of such paragraph, or to provide authorization as described in paragraph (3)(C)(iii), such right may be exercised or such authorization may be provided by the individual appointed by such court as such person’s guardian or representative for the purpose of exercising such right or such authorization.
(B)
In the case of a person who lacks capacity to exercise the right to consent to treatment or experimentation under subparagraph (D) or (E) of paragraph (1), or the right to confidentiality of or access to records described in subparagraph (H) or (I) of such paragraph, or to provide authorization as described in paragraph (3)(C)(iii), because such person has not attained an age considered sufficiently advanced under State law to permit the exercise of such right or such authorization to be legally binding, such right may be exercised or such authorization may be provided on behalf of such person by a parent or legal guardian of such person.
(C)
Notwithstanding subparagraphs (A) and (B), in the case of a person admitted to a program or facility for the purpose of receiving mental health services, no individual employed by or receiving any remuneration from such program or facility should act as such person’s guardian or representative.
([Pub. L. 99–319, title II, § 201], May 23, 1986, [100 Stat. 485]; [Pub. L. 102–173, § 10(2)], Nov. 27, 1991, [105 Stat. 1219].)