CLIENT ADVOCACY OFFICE
History of Patient Rights Nationally and at the South Carolina Department of Mental Health
In early America when the Constitution and Bill of Rights were actually being formulated as written documents, the primary concern of the law was the protection and security of society. The law required that criminals be incarcerated and the laws were usually repressive toward the poor. The violently insane then were treated as criminals and the indigent were treated as the poor.
Each family was responsible for individuals within their own family. The local community would take some effort to deal with persons with mental illness only if the family could not. But this usually meant the local jail or poorhouse. There were no commitment statutes generally speaking and any commitments were not for treatment purposes. One of the earliest commitment statutes found was in 1676. The Massachusetts Bay Company had a statute that the select men from each town would take care of the mentally ill so that "they did not damnify others."
A movement toward reform occurred early in the 19th century. A philosophy of moral treatment advocated treatment within an institutional setting where an individuals environment could be therapeutically structured. Special institutions with selective admissions achieved success in treatment and care. A humanitarian crusade during the period for better care and treatment led to a network of public institutions. In response to a petition drawn by Benjamin Franklin in May, 1751, the Pennsylvania Assembly authorized the establishment of a hospital for the poor and mentally ill. Other early hospitals were established at Williamsburg, Virginia, Eastern Kentucky State Hospital and South Carolina State Hospital.
With the government assuming responsibility for the care and treatment of persons with mental illness, institutions could no longer be selective in their admission procedures. Public hospitals quickly exceeded their capacities. This structured therapeutic environment envisioned by the reformers could not exist in most of these institutions.
There was concern for the rights and liberty of individuals during this growth period but this concern was for the sane rather than a person with a mental illness. Vigorous commitment laws attempted to protect the sane from being committed. The commitment process took on the appearance of a criminal proceeding often including a jury trial. It was said that these jury trials resulted in more commitments than ever before. During World War II and after with advances in psychiatric knowledge, many commitment statutes were altered to allow commitments based solely on psychiatric certifications.
In the 1960s and 1970s there was an increasing awareness of minority and individual rights. This was also true for persons with mental illness. The responsibility for existing inadequacies in the mental health field was placed on almost every segment of our society: administrators and professionals for their paternalistic attitude, psychiatrists for inability to accurately predict behavior, legislatures for setting improper priorities and the public for intentionally ignoring persons with mental illness. One southern state was said to have placed a greater priority on Civil War monuments and the protection of bird species. During this period several significant court decisions were rendered addressing commitment and treatment issues. As a result most states passed comprehensive measures to protect individual rights during the commitment process and during hospitalization.
It is involuntary commitment rather than voluntary that is most closely scrutinized since the individual is unwillingly deprived of his liberty. The constitution requires that a compelling interest must be shown by the state when any citizen is deprived a fundamental right, involuntary commitment of persons with mental illness is normally justified on two grounds. The first is the responsibility to those who are incapable of caring for themselves or making a decision that they are in need of treatment. The second is that due to mental illness an individual may be dangerous to himself or society.
To constitutionally deprive an individual of his liberty due process requires that the commitment process must include strict procedural safeguards. Prior to January, 1975, the South Carolina Mental Health code did not provide such strict procedural safeguards. For instance, there was no right to a hearing for judicial determination of mental illness and there was no right to request a re-examination. Mental health officials in South Carolina realized inadequacies in the law as far back as the late 1960S. After litigation in other states setting minimal constitutional standards, it became more apparent that unless changes were made, the courts would not hesitate to intervene. On February 11, 1972 an action (Alexander v. Hall) was filed in federal court in South Carolina challenging both the commitment statutes as well as hospital conditions. As a result legislation was passed on July 9, 1974, and went into effect January 5, 1975.
The South Carolina law provided that a commitment action be filed in the probate court accompanied by a certification by a licensed physician, the proposed patient must be given appropriate notification. The notice must state that there is a right to have an attorney and specifically, state the time, date and place a hearing will take place. A hearing must be held at which time it is decided whether the individual has a mental illness, and if he needs treatment or is dangerous to himself or others. This decision must be based on clear and convincing evidence including examination by two court appointed examiners. The individual also has a right to request an independent examiner and an appeal may be taken from the decision of the Probate Court.
In the past after commitment to a hospital the patient was usually neglected. With no public interest and little financial support and an increasing population, public mental institutions were often without adequate means to provide proper care and treatment. With this greater public awareness toward individual rights in addition to court decisions, there was a growing concern for the in-hospital life of mental patients. At the same time commitment statutes were revised, most state legislatures including the South Carolina General Assembly also added laws guaranteeing certain patient rights and privileges while hospitalized.
In 1975 the Department created an Ombudsman type position. The responsibilities of the position were in part to review patient rights issues within the Department. A task force was thereafter appointed to develop patient rights standards and a procedure for review of patient rights issues. During the course of deliberation by this task force it became evident there was a lack of knowledge nationwide about patient rights issues within mental health agencies. Consequently in 1978 the Department of Mental Health sponsored one of the first conferences on Patient Rights. The conference was attended by representatives from 24 states and many federal agencies. This conference served as a stimulus for further development of internal patient rights in the Department as well as in other states. A Patient Rights Manual and a procedure to review patient rights issues was adopted by the Department in 1980. The enforcement of these procedures was primarily dependent upon existing staff.
In 1980 after hearing extensive testimony about institutional conditions, Congress passed the Civil Rights and Institutionalized Persons Act. This act authorizes the U.S. Justice Department to initiate actions for redress of right deprivation for institutionalized persons. It was under this act that in 1983 the Justice Department intervened into conditions at South Carolina State Hospital. Also, in 1983 the Legislative Audit Council released a somewhat adverse report about the Departments operations. During this period mental health agencies nationwide were beginning to establish internal patient rights programs. As a result of such actions the Mental Health Commission became interested in establishing an advocacy office which would be separate and independent of any other office. The advocacy office would have responsibility for patients rights and advocacy matters only. Funding was allocated and an advocacy office was started in late 1985. In 1986 the Department established a central quality assurance division and the advocacy office became part of that division which is now the division of quality improvement/advocacy.
Congress passed the Protection & Advocacy for Mentally Ill Individuals Act of 1986 which created a protection and advocacy system for persons with mental illnesses similar to the system already in place for persons with developmental disabilities. The advocacy agencies established under this act are required to be external to the service delivery system and are required in each state.
By the late 1980s nearly all state mental health programs considered internal advocacy offices to be a necessary service to be provided as did various licensing, certifying and accreditation organizations. The Joint Commission on Accreditation of Health Care Organizations now emphasis patient rights and ethics areas and mandate there be in place a system for addressing patient complaints and informing patients about their rights as do various federal certifying regulations. Also the Federal Vocational Rehabilitations Act of 1983 and the Americans With Disabilities Act requires agencies establish grievance mechanisms to address grievances under these acts. In 1990 the South Carolina law on patient rights was revised providing more scope and detail to the rights of patients in Department of Mental Health programs and to require a procedure for addressing patient complaints.
SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH
INFORMATION ABOUT THE REVIEW OF ADVOCACY AND PATIENT RIGHT ISSUES
1. A review of an advocacy or patient rights issue is started by completion of a form called a "Request for Review."
2. The form is given to or sent to the advocate at your facility or center. Your advocates name, telephone number and address is:
3. The advocate conducts a review, completes a report and sends you a copy of the result.
4. Hopefully you will be satisfied with the result. But if you are not then you should contact the advocate and request a review by the facility or center director. There is another form to be completed to request this review.
5. The director conducts a review, completes a report and sends you a copy of the result.
6. Again hopefully you will be satisfied. If you are not you should contact the Client Advocacy office at the Department of Mental Health, telephone number 803-734-7740.
7. The Client Advocacy office will again conduct a review and attempt to resolve your concerns with local or agency officials.
8. When you remain dissatisfied with the Client Advocacy offices review you may request a review by the State Director of Mental Health.
9. The State Director will conduct a review and make a decision.
10. The State Directors decision will be the final step in the review process.
1. Abuse & Neglect
2. Admission & Discharge
3. Information & Advocacy
4. Physical Environment
5. Inpatient Rights
6. Personal Property & Money
7. Confidentiality & Consent
9. Other Rights Issues