Fact Sheet Rights While in a Mental Health Facility

Fact Sheet Rights While in a Mental Health Facility

from Equip for Equality’s Legal Advocacy Program

EFE FACT SHEET – Mental Health

RIGHTS WHILE IN A MENTAL HEALTH FACILITY IN ILLINOIS

Statutory References: 405 ILCS 5/2-100, 5/2-102-105, 5/2-107, 5/2-200, 5/3-207, 5/3-900, 5/3-908, 5/3-910

People with disabilities who are recipients of mental health services do not lose all of their rights upon admission to a mental health facility. A person with a disability cannot be denied any rights, benefits, or privileges guaranteed by law, the Illinois State Constitution, or the Constitution of the United States solely because he or she is receiving mental health services. However, the rights of people in mental health facilities (including the mental health unit in a general hospital) can be limited.

Being admitted to a mental health facility does not automatically mean that a person with a disability has been determined to be legally incompetent. A court makes this decision in a separate hearing. When a person is determined by a court to be legally incompetent, a guardian is appointed to help that person make decisions and/or manage his or her property.

The Right to Adequate and Humane Care

People with disabilities who are recipients of mental health services have the right to be free from abuse and neglect. People with disabilities have the right to adequate and humane care in the least restrictive environment that is appropriate to their care and treatment.

The facility must develop an individual treatment plan for each person with a disability, which must be periodically reviewed. If feasible, the person with a disability has the right to participate in writing the plan and subsequent reviews. The person’s guardian, other legal representative, substitute decision maker, or any other person designated in writing has the absolute right to participate in preparing the treatment plan.

The Right to be Informed about Emergency Forced Medication, Restraint, and Seclusion

People with disabilities have the right to be informed of the circumstances under which the law permits the use of emergency forced medication, physical restraints, or seclusion. In general, these methods cannot be used unless the person with a disability is a threat to the health and safety of himself or herself or others. These methods cannot be used to punish or discipline a person with a disability as a means of convenience for the facility or staff. A person with a disability has the right to tell his or her therapist how he or she feels about forced medication, restraints, and seclusion, should they ever become necessary, and treatment preferences must be noted in the record.

People with disabilities have the right to request outside notification in the case of medication, seclusion, restraint, or the restriction of rights in any other way. The individual or organization’s name and contact information should be recorded in the person with a disability’s record. For example, “Patient X requests Equip for Equality, (800) 537-2632, be notified each time s/he is secluded or restrained.”

The Right to Notify Others of Location

Upon a person with disability’s request, facility staff must contact at least two people of the person with a disability’s choice and inform them of the person with a disability’s circumstances and how to contact him or her. This request is typically made upon admission but can be made later. People with disabilities may also request that certain individuals not be told of the admission.

The Right to Uncensored Communication

People with disabilities have the right to receive mail, phone calls, and visitors. The facility staff may not read a person’s mail, listen to his or her phone calls, or sit in on visits. In certain limited circumstances, the facility staff may restrict the right to communications, such as the time and location of visits and calls, or to protect a person from harassment or harm. People with disabilities have the right to see their attorneys at any time during normal business hours.

The Right to Keep Personal Property

People with disabilities have the right to have personal property items while in the facility. Unlawful items and those that may cause harm to others can be confiscated. Any lawful property the facility staff confiscates must be returned upon discharge.

People with disabilities should receive a written inventory of any property confiscated by the facility staff. The staff member who collected the property should sign the inventory list. People with disabilities should review the list at discharge to ensure that all legal property has been returned.

The Right to Have Money

People with disabilities without guardians are allowed to have money in the facility and use it in any way they want. Money deposited with the facility must be returned, with any interest it earned, at discharge. People with disabilities should request and be provided a signed receipt when depositing money at a facility. They may also deposit money at any financial institution while in a facility.

The Right to be Informed about Treatment (Informed Consent)

Informed consent means that before a person with a disability agrees to undergo or participate in a medical or surgical procedure, receive any medication or other treatment, or take part in an experimental study, he or she has been told and fully understands the risks and benefits of the treatment or procedure and any alternatives to it. This information must also be given to his or her guardian or substitute decision maker.

The Right to Refuse Treatment

People with disabilities have the right to refuse treatment, medication, any medical or surgical procedure (including electroconvulsive therapy or E.C.T.), or to participate in an experimental study, even if he or she previously gave consent to any of these. Guardians and substitute decision makers if authorized by a court or an Advance Directive, have the right to refuse treatment, medication, and these other procedures on behalf of a person with a disability. If a person with a disability refuses treatment or medication, the guardian cannot consent unless he or she receives a court order. A substitute decision maker can consent only if given the authority under an Advance Directive.

Exceptions to the Right to Refuse Treatment

• Emergency

Short acting medication can be administered over the person with a disability’s objection if the facility believes that the person is likely to cause immediate serious harm to himself or herself or others. The circumstances leading to the order for medication must be documented in the person’s chart. The order expires after 24 hours unless it is re-determined by a physician that the need for medication continues. Emergency medication may only be administered for a total of 72 hours (not including Saturdays, Sundays, and holidays) unless the facility files a petition in court for a hearing to obtain authority to use long acting medications or electroconvulsive therapy (E.C.T.).

• Court Order

Anyone over 18 can file a petition for a hearing to get a court order for a person to receive involuntary treatment or medication, including E.C.T. Typically, the person’s psychiatrist or the facility in which the person is located files this petition. Certain standards must be met before the court will order involuntary treatment, medication, or E.C.T.

The Right to Petition for Discharge

Any person receiving mental health care services under court order (involuntary admission) or any person on his or her behalf may file a petition for discharge.

The petition must include:

• The name of the person with a disability;
• The underlying circumstances and date of the involuntary commitment order;
• A request for discharge from the order; and
• The reasons for the request for discharge.

Upon the filing of a petition for discharge, the court must set the matter for a hearing to be held within 5 days, excluding Saturdays, Sundays, and holidays. If the court finds that the person with a disability is no longer subject to involuntary admission, the court must enter an order and discharge the person. If the court determines that the person continues to meet the standard for involuntary admission, the court may continue or modify its original order.

Discharge by the Facility and The Right to Object to Discharge

In general, the facility director may at any time discharge a person with a disability who is clinically suitable for discharge. (The law puts certain restrictions on the discharge of an involuntarily admitted patient. (See: Section 9-302 of the Illinois Mental Health Code, 405 ILCS 5/3-902).

The director of a State operated facility, if possible, must give 7 days notice of his or her intent to discharge a person with a disability. The person to be discharged may object by filing a written objection with the facility director before the scheduled discharge date. Within 7 days of receiving an objection, the director must schedule a hearing before the facility’s utilization review committee; the person cannot be discharged during that time. The person with a disability is entitled to representation at the hearing, where the Department of Human Services must demonstrate by substantial evidence that the person meets the standards for discharge. Those standards are as follows:

• The person with a disability is clinically suitable for discharge and not in need of hospitalization, and
• is able to live independently in the community; andeither
• requires further oversight and supervisory care for which arrangements have been made with responsible relatives or a supervised residential program approved by the Department of Human Services (DHS); or
• requires further personal care or general oversight (as defined in the Nursing Home Care Act) for which placement arrangements have been made with a suitable family home or other licensed facility approved by DHS.

At the conclusion of the hearing, the utilization review committee will decide if the person with a disability is to be discharged or remain at the facility; it can also recommend transfer to a more appropriate facility.

Transfer to Another Facility or Program

A person with a disability who has been involuntarily committed by court order may file a petition in court to be transferred to a different facility, to a program of alternative treatment, or to the care and custody of another person. However, at any hearing held on the petition, the court cannot order a transfer between state facilities.

A state facility itself may request the transfer of a person with a disability to another state facility or treatment program. The person to be transferred must be given at least 14 days notice unless, due to an emergency, his or her mental or physical health or that of others is in immediate danger, and appropriate care is not available where the person is located. In such a case, the notice must be given as soon as possible, but not more than 48 hours, after the transfer.

The person with a disability has the right to object to transfer, either prior to transfer or within 14 days after an emergency transfer. Within 7 days after receiving written objection, the facility director must hold the same type of hearing as in a case of contested discharge. To prevail at this hearing, DHS must demonstrate by substantial evidence to the utilization review committee that transfer is clinically advisable and consistent with the person with a disability’s treatment needs.

For transfer to a much more physically restrictive facility, DHS must also show that transfer is required for the person with disability’s safety or the safety of others.

NOTE: Smoking IS NOT a Right

Smoking is not considered a right. Some facilities are totally smoke free, which means there is no smoking anywhere in the building or the grounds. Other facilities place restrictions on smoking such as when and where people may smoke. A person who smokes may request treatment, such as a nicotine patch or chewing gum, in order to stop smoking while in a facility.

DO YOU HAVE A QUESTION?
Contact Equip for Equality (all services are free of charge):
800.537.2532 (voice) or 800.610.2779 (TTY)


This resource material is intended as a guide for people with disabilities. Nothing written here shall be understood to be legal advice. For specific legal advice, an attorney should be consulted.
Equip for Equality, an independent nonprofit organization, is the Illinois state Protection & Advocacy System whose mission is to advance the human and civil rights of children and adults with disabilities.
This publication was made possible by a grant from the Center for Mental Health Services. The contents of this publication are the sole responsibility of the authors and do not represent the official views of the Center for Mental Health Services.
©Equip for Equality, 2005Revised: 03/23/2006

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