Efforts in Massachusetts to Stop Human Rights Abuses

FIVE FUNDAMENTAL RIGHTS LAW

(Massachusetts General Laws, Chapter 123, Section 23)

The law clarifying five basic civil liberties for persons in psych hospitals and group homes (public and private). It is violated on a daily basis at most facilities. Enforcement is almost completely nonexistent and violations are the norm. This is one of two rights issues that have been combined in proposed legislation.

Paraphrased text of the law (full text available at link below):

Anyone who is hospitalized or living at a residential mental health facility (public and private) must be given the following rights:

1.)    The right to make and receive telephone calls, in privacy.

2.)    The right to send and receive sealed, unread mail.

3.)    The right to receive, or refuse, visitors, in privacy.

4.)    The right to a humane and dignified physical and psychological environment, including privacy and security while reading, resting, sleeping, bathing and/or toileting.

5.)    The right to access, even if beyond normal visiting hours, an attorney; outpatient provider; or clergy member.

“Reasonable” assistance must be provided to people in using phones and sending mail.

These rights must be posted in a place where they can be easily read, and translated on request.

Rights #1 (Phones) and #3 (Visitors) may be TEMPORARILY suspended for individuals, only by the Hospital Director. The reasons for such suspension must be documented, and suspension can only occur if the person poses a significant, imminent threat to themselves or others. Right #2 (Mail) can be suspended ONLY if there is a strong reason to believe contraband is being transmitted, and opening and inspecting mail can only be done with the patient present.

• Link to “Five Fundamental Rights” law (Massachusetts General Laws, Chapter 123, Section 23):

http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter123/Section23

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‘FRESH AIR’ ADVOCACY

Information on efforts from 2003 to present to guarantee ‘daily access to fresh air and the outdoors’ as a basic human right at psych hospitals and residences. Bill filed in 2005 and 2007. Currently, at least 40 hospitals and units in the State deny fresh air access to patients.

Articles on the effort itself:

Articles have been published in several Mass. newspapers – the Boston Globe, Worcester Telegram-Gazette and Watertown TAB – in 2006-07. Several are online on other sites, and the Telegram article isn’t available online without a subscription. Please email Jonathan Dosick for a copy: ambient871@hotmail.com.

• Boston Globe, “Right to fresh air sought for mental patients,” July 8, 2007

http://www.dlc-ma.org/news/fresh_air_sought_for_mental_pati.htm

• Blog entry by Dr. John Grohol, founder of PsychCentral.com, in response to Globe article:

http://psychcentral.com/blog/archives/2007/07/08/closed-psychiatric-hospitals-reused-but-current-patients-rights-restricted/

• Worcester Telegram-Gazette, “Fresh air sought for mental patients,” March 13, 2006 (available by request)

• Watertown [MA] TAB, “Don’t take fresh air for granted,” March 10, 2006

http://www.wickedlocal.com/watertown/news/x1817184014#axzz1erHHTaet

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Access to Fresh Air and the Outdoors – Mandated for Prison Inmates and Livestock, but not Mental Health Consumer/Peers:

(I wish this was some kind of sick joke!)

United States Department of Agriculture (USDA) – Regulations for Organic Livestock

Title 7: Agriculture; PART 205—NATIONAL ORGANIC PROGRAM

Subpart C—Organic Production and Handling Requirements

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§ 205.239   Livestock living conditions. [PARAPHRASED]

(a) The producer of an organic livestock operation must establish and maintain year-round livestock living conditions which accommodate the health and natural behavior of animals, including:

(1) Year-round access for all animals to the outdoors, shade, shelter, exercise areas, fresh air, clean water for drinking, and direct sunlight, suitable to the species, its stage of life, the climate, and the environment…Yards, feeding pads, and feedlots shall be large enough to allow all ruminant livestock to feed simultaneously without crowding and without competition for food. Continuous total confinement of any animal indoors is prohibited…

(4) Shelter designed to allow for:

(i) Natural maintenance, comfort behaviors, and opportunity to exercise.

Link to USDA Regulation:

http://edocket.access.gpo.gov/cfr_2006/janqtr/pdf/7cfr205.239.pdf

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2007 MIND (UK) report: “Ecotherapy – The green agenda for mental health”

Link to Executive Summary:

http://www.mind.org.uk/assets/0000/2139/ecotherapy_executivesummary.pdf

Link to full report:

http://www.mind.org.uk/assets/0000/2138/ecotherapy_report.pdf

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“NO CHILD LEFT INSIDE”

Exploding grassroots movement to encourage children to spend more time outdoors, spearheaded by Richard Louv (California)

• Child and Nature Network link

http://www.childrenandnature.org/

• Link to author Richard Louv’s website:

http://richardlouv.com/

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Link between lack of fresh air access and loss of profits: DISPROVEN

“Already the inpatient mental health units are under extreme financial pressures, both externally and internally within their own hospital systems. Additional added costs will raise questions about the ongoing viability of many units.”

– Lobbyist testimony against fresh air as a right, September 2011

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Ten most profitable Mass. Hospitals, Fiscal Year 2010

(According to State Dept. of Healthcare Finance and Quality…This list doesn’t include stand-alone psych hospitals).

* An operating margin (ratio of operating income to total revenue) of 3-4 percent is considered “healthy.”

1.) Massachusetts General Hospital, Boston

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $181.3 million

FY10 Operating Margin: 6.13%

2.) Brigham and Women’s Hospital, Boston

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors? NO 

Fiscal Year 2010 Profit: $112.1 million

FY10 Operating Margin: 5.00%

3.) Beth Israel-Deaconess Medical Center, Boston

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $84.2 million

FY10 Operating Margin: 4.18%

4.) Children’s Hospital, Boston

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors? YES

Fiscal Year 2010 Profit: $74.1 million

FY10 Operating Margin: 4.38%

5.) Baystate Medical Center, Springfield

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $73.8 million

FY10 Operating Margin: 6.31%

6.) UMass Memorial Medical Center, Worcester

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $57.2 million

FY10 Operating Margin: 3.47%

7.) Lahey Clinic, Burlington

Does it have a psychiatric inpatient unit? NO

Does that unit provide fresh air and access to the outdoors?       –

Fiscal Year 2010 Profit: $47.9 million

FY10 Operating Margin: 3.21%

8.) Mount Auburn Hospital, Cambridge

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $27.3 million

FY10 Operating Margin: 5.38%

9.) Southcoast Hospitals Group, New Bedford (St. Luke’s Hospital)

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $24.9 million

FY10 Operating Margin: 2.97%

10.) Steward St. Elizabeth’s Medical Center, Boston

Does it have a psychiatric inpatient unit? YES

Does that unit provide fresh air and access to the outdoors?       NO

Fiscal Year 2010 Profit: $24.8 million

FY10 Operating Margin: 5.61%

TOTAL TOP TEN HOSPITALS WITH PSYCH. UNITS:

TOTAL TOP TEN HOSPITALS WITH PSYCH. UNITS THAT DO NOT ALLOW ACCESS TO FRESH AIR: 8

TOTAL PROFIT OF THESE EIGHT HOSPITALS: $585,749,165

Link to Information:

http://www.mass.gov/eohhs/docs/dhcfp/r/pubs/11/hospital-financial-performance-fy10.pdf

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Massachusetts Hospitals currently without Access to Fresh Air and the Outdoors

(‘Best guess’ based on anecdotal and formal information received):

MC = Medical Center

1.) Anna Jacques Hospital, Newburyport

2.) Arbour-HRI Hospital, Brookline

3.) Baystate Medical Center, Springfield

4.) Baystate Franklin MC, Greenfield

5.) Beth Israel Deaconess MC, Boston

6.) Cambridge Hospital, Cambridge

7.) Cape Cod Hospital , Hyannis

8.) Clinton Hospital, Clinton

9.) Cooley-Dickinson Hospital, Northampton

10.) Faulkner Hospital, Boston

11.) Franciscan Children’s Hospital, Boston

12.) Harrington Memorial Hospital, Southbridge

13.) Heywood Hospital, Gardner

14.) Holyoke Medical Center, Holyoke

15.) Jordan Hospital, Plymouth

16.) Kindred Hospital-North Shore, Stoughton

17.) Lawrence Memorial Hospital, Medford

18.) Martha’s Vineyard Hospital, Oak Bluffs

19.) Melrose-Wakefield Hospital, Melrose

20.) Metro West MC – Morse Hospital, Natick (Adult Unit)

21.) Morton Hospital,   Taunton

22.) Mount Auburn Hospital, Cambridge

23.) North Adams Regional MC, North Adams

24.) North Shore MC – Salem, Salem

25.) North Shore MC – Union, Lynn

26.) Quincy Medical Center, Quincy

27.) Signature Brockton Hospital, Brockton

28.) Steward Carney Hospital, Boston

29.) Steward Good Samaritan MC, Brockton

30.) Steward Holy Family Hospital, Methuen

31.) Steward Norwood Hospital, Norwood

32.) Steward St. Elizabeth’s Hospital, Boston

33.) St. Anne’s Hospital, Fall River

34.) St. Luke’s Hospital, New Bedford

35.) St. Vincent Hospital, Worcester

36.) Tufts Medical Center, Boston

37.) UMass Memorial MC, Worcester

38.) Walden Behavioral Care,   Waltham

39.) Whidden Hospital, Everett

40.) Wing Memorial Hospital and MC, Palmer

Total Number of people affected: 1184 +

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5+1: FIVE FUNDAMENTAL RIGHTS PLUS FRESH AIR ADVOCACY

The current state of our rights advocacy, combining the two issues and legislation to create enforcement and appeal of the law and provide sixth basic right – to the outdoors. Bills filed in 2009 and 2011.

United States Code of Federal Regulations, Patients’ Rights at Medicare & Medicaid facilities

(42CFR482.13)

“The hospital must establish a process for prompt resolution of patient grievances and must inform each patient whom to contact to file a grievance.”

2009 and 2011 filings of the bill ask for two main things:

1.) A fair and systematic way for people to make complaints about violations of the “Five Fundamental Rights” in front of a neutral legal party, which makes the final decision. (Currently, enforcement of the law and appeal is rare, and complainants must go through channels that are either biased toward hospitals or almost nonexistent due to budget cuts).

2.) Addition of “Daily access to fresh air and the outdoors” as a Sixth Fundamental Right under the “Five Fundamental Rights” law.

This bill, plus the earlier ‘fresh air only’ bills, have all either been “killed” in committees and often heavily compromised. The “Five Fundamental Rights” piece was eliminated outright last year, and the “fresh air” part is considered very controversial. In two Legislative Sessions, legislators ran out of time before the bills were able to move through the complex process.

-Text of 2011-12 bill – House Bill #1430 (also Senate Bill #986)

http://www.malegislature.gov/Bills/187/House/H01430

-Article in New England Psychologist magazine, “Massachusetts identifies top legislative priorities,” April 2010 [Paraphrased]

 

[MA Department of Mental Health Spokesperson Anna] Chinappi cites An Act Regarding Rights of Persons Receiving Services from Programs or Facilities in the Department of Mental Health (originally HB 1945/SB 743; now SB 2280) as another priority. This bill would add a right to fresh air for individuals in a mental hospital to the current Five Fundamental Rights law. The other rights include the right to reasonable access to receive and make confidential calls; the right to send and receive sealed, unopened, uncensored mail; the right to receive visitors “of our own choosing” daily and in private at reasonable times; the right to a humane environment, including a private and secure living space and the right to access legal representation.

According to Jonathan Dosick, coordinator for CFAR (The Coalition for Fresh Air Rights), this legislation originally focused on a proposed method for fair appeal when any of the Five Fundamental Rights were violated. This language was stricken, but the fresh air component has been retained.

Approximately seven years ago, Dosick began lobbying to add access to fresh air to the fundamental rights law. “As a consumer, I saw a direct correlation with times being outside and overall wellness,” he says. “It used to be a test for readiness for discharge.”

When Dosick began his efforts, 13 hospitals denied patients access to the outdoors; now the number is closer to 30. “Hospital administrators and lobbyists are strongly against the bill citing cost and staffing as reasons,” he says.

Toby Fisher, MBA, MSW, [former] policy director for the National Alliance on Mental Illness of Massachusetts (NAMI) says, “We support the spirit of the bill and feel that fresh air is a benefit and should be part of the treatment; however, we are unclear how to maintain safety with some of the inner city hospitals where there are no open areas safely removed from major streets.”

Link to full article:

http://www.nepsy.com/articles/leading-stories/massachusetts-identifies-top-legislative-priorities/

Link to Jonathan Dosick’s “Civil Rights in Psychiatric Hospitals” blog:

http://civilrightspsychiatrichospital.blogspot.com/

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TESTIMONY IN OPPOSITION TO “5+1” RIGHTS LEGISLATION

Massachusetts Hospital Association (MHA)

Main hospital lobbying firm in Massachusetts; extremely powerful politically and representing more than 100 hospitals around the State. Has refused to testify about Five Fundamental Rights violations.

(House Bill – HB – #1430 and Senate Bill – SB – #986)

MHA opposes both HB1430 and SB986 as drafted. Both bills mandate that hospitals and other facilities that treat mentally ill patients provide daily access to fresh air and the outdoors. Prior to allowing any patient (medical or psychiatric) who is receiving inpatient acute level care to access the outdoors, there has to be a full clinical evaluation by the treating provider to determine if such access is safe and appropriate for each patient. From a psychiatric perspective, HB1430 and SB986 pose significant safety and operational concerns that are untenable for hospitals. Clinical and security staff shortages are the primary concern with implementation of these proposals. Patient clinical presentation, safety to the patient and others, and the funding to hire staff to escort and monitor patients outside must be the key determinants in any decision-making process to permit a patient to have access to the outdoors. Potential physical plant and logistic barriers must also be taken into account. Not every hospital in the Commonwealth has the ability to provide a safe, secure area for patients in the outdoors. Additionally, it is imperative that the treating clinician, not just any clinician on call, be responsible for the decision as to whether a patient should have access rights to the outdoors based upon the patient’s clinical condition, safety concerns, and the hospital resources available to assist the patient in accessing the outdoors. SB986 as drafted, also does not take into account the treating physician and does not take into account the resources to hire staff and escort and monitor patients outdoors. As these considerations are not part of the provisions set forth in either HB1430 or SB986, we are unable to support these bills. MHA looks forward to working with the committee on a reasonable approach to this issue.

MHA website:

http://www.mhalink.org/

Massachusetts Association of Behavioral Health Systems (MABHS)

Lobbyist group for Mass. private psychiatric hospitals. Has 49 members – eight full members and 41 “Associate” members. Five of the eight “full” members are Arbour HS hospitals, and organization began at Arbour Hospital. Has refused to testify about Five Fundamental Rights violations.

Massachusetts Association for Behavioral Health Systems (MABHS) testimony

On behalf of the Massachusetts Association for Behavioral Health Systems (MABHS), I [Executive Director David Matteodo] appreciate the opportunity to testify before the Committee on Mental Health and Substance Abuse on S. 986. The MABHS represents 49 inpatient facilities throughout Massachusetts that collectively admit over 60,000 patients annually for behavioral health treatment. Our facilities provide the overwhelming majority of acute inpatient psychiatric and substance abuse services in the Commonwealth.

Although our hospitals believe that the ability of patients to have daily access to the outdoors is desirable, we are unable to support these bills as currently drafted. It would make the right to “daily access to fresh air and the outdoors” one of the Fundamental Rights of patients, which could only be revoked if certain criteria were met. In the past, we have met with the main proponents of this Legislation to review our concerns, and are willing to continue to meet with them to see if there are alternative ways the hospitals can address the issue. However, we hope that Committee does not report these bills Favorably for a number of reasons, as summarized below.

–          S. 986, by adding the right to go outside to the Patients’ Rights law, would create real safety issues for hospitals. Many of the patients who are admitted to our facilities come to us because they are a danger to themselves or others. Many of these patients would like to leave; they do not think they should be in the hospital. However, our hospitals are entrusted by families, loved ones, and the communities to keep the patients safe. Since many hospitals in Massachusetts do not have enclosed outdoor areas, escorting every patient outside is not possible. In 2010 a survey indicated that out of 64 psychiatric units, 29 of them did not have a secure outdoor area Many of these hospitals psychiatric units were on anywhere from the 3rd to 8th floor, so transporting patients outside would be very difficult. How could they safely comply with S. 986? How would families react if patients were eloping [escaping] because we were unable to contain them safely? The families and communities entrust the hospitals to keep the patients and the communities safe. If these bills were to pass, that safety could be jeopardized.

 

–          Our hospitals provide short term acute treatment. People come to our hospitals for treatment of acute psychiatric illnesses and stay for approximately 9 days. This is much different from the DMH State Hospitals where patients can stay for many months. Our major priorities are safety and treatment and stabilization of the patient’s symptoms. We are trying to treat patients so they can rapidly go back out to the communities as productive members of society. We are not trying to penalize or restrict patients. Just as acute hospitals seek to stabilize general medical conditions and discharge patients back to the community, so do mental health facilities – the difference is our hospitals are treating psychiatric illnesses, and in many cases, patients with both a psychiatric and medical illness. We treat our patients with respect, care, and dignity. The restrictions on patients going outside are not for punitive reasons, but rather for the safety of the patient, the unit, and the community. We do not believe our patients or hospitals should in any way be compared to prisoners or prisons; we are hospitals.

–          If these bills were to pass, it would require either additional Capital or Staffing costs for many hospitals. Hospitals would have to either build fenced-in areas; or if unable to do that, hire many new staff to escort patients outside. Already the inpatient mental health units are under extreme financial pressures, both externally and internally within their own hospital systems. Additional added costs will raise questions about the ongoing viability of many units, as hospitals struggle to find resources to fund a new mandate. Access to mental health services could suffer if the mandate forced hospitals to close their units. It is impractical for certain urban hospitals with no secure outdoor areas to allow every patient who asks to go outside.

–          Our hospitals in no way would endorse the idea of Outdoor privileges being taken away because of a punishment. We agree that going outside can often be beneficial for patients, and try to allow it when possible and safe. Many of our hospitals already allow patients outdoor access where they can safely provide it. Hospitals are also concerned with the movement towards Smoke Free Campuses and how a mandate such as called for in these bills could be complied with safely.

–          In the last Legislative Session, there was suggested Re-Drafted language that took into consideration patient clinical presentation and safety. That language was an improvement over these versions as it included language that said “and the ability of the facility to provide this right safely” as a criteria for providing outdoor access. [NOTE: This was compromise language that we did not approve of]. This would clarify the situations where because of physical plant and logistical issues, a unit simply could not safely allow patients broad access to outdoors.

In conclusion, we urge the Committee to not refer these bills favorably in their current forms. Our facilities are committed to providing as safe and humane environments for our patients as possible. We are willing to work with the advocates of this bill, or with the Committee if it so desires. However due to the above reasons, especially the safety concerns, we are not able to support these bills. Please do not report these bills Favorably.

MABHS website:

http://www.mabhs.org/

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Thank you, Jonathan Dosick! • Source: http://www.facebook.com/notes/jonathan-dosick/additional-information-for-bipolar-nation-radio-show-aired-november-13-abuse-in-/10150407449421172

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