AUTHORITY OF ADVOCATES

Chapter 10

A. Access

Patients’ Rights Advocates are authorized to act by state law (Cal. Welf. & Inst. Code § 5520). Advocates may enter facilities to respond to and investigate client complaints and to monitor for compliance with patients' rights.

Access to a facility, its clients, and its records is the most valuable power of an advocate. Access includes the formal statutory and bureaucratically-authorized access.

Statutorily, the advocate has the following authority:

1. Clients:

Clients have a statutory right "to see and receive the services of a patient advocate who has no direct or indirect clinical or administrative responsibility for the person receiving mental health services." (Cal. Welf. & Inst. Code § 5325(h)).

Furthermore, a client, no matter what his or her legal status, is considered competent to enter into an agreement with a Patients’ Rights Advocate for provision of services unless a court has specifically found that the client is incompetent to enter into an agreement with the advocate and a guardian ad litem is appointed for such purpose (Cal. Welf. & Inst. Code § 5523). The client can revoke the agreement with the advocate at any time, orally or in writing (Cal. Welf. & Inst. Code § 5523(c). The patient can also refuse to see the advocate or terminate a visit at any time (Cal. Welf. & Inst. Code § 5530(d)).

The advocate is entitled by statute to visit a client or other recipient of services "at all times necessary to investigate or resolve specific complaints." (Cal. Welf. & Inst. Code § 5530(a)). For any other purposes (monitoring, training and general provision of rights information), the advocate is entitled to access during normal working and visiting hours.

2. Facilities

Advocates have access to all clients and other recipients of mental health services in any mental health facility or services (Cal. Welf. & Inst. Code § 5530). The advocate is entitled to "reasonable" and "available" private space in which to meet with the client (Cal. Welf. & Inst. Code § 5530(c)).

The Patients’ Rights Advocate's primary access authority for monitoring purposes is provided by statute. Cal. Welf. & Inst. Code § 5520 details the responsibilities of the patients' rights advocate and provides:

Each local mental health director shall appoint, or contract for the services of, one or more county Patients’ Rights Advocate. The duties of these advocates shall include but not be limited to, the following:...to monitor mental health facilities, services and programs for compliance with statutory and regulatory patients' rights provisions....

3. Records/Information

In general, Patients Rights Advocates must obtain client consent before inspecting or copying confidential client information except for the purpose of monitoring mental health facilities, services and programs for compliance with patients’ rights law. (Cal. Welf. & Inst. Code §§ 5520(b), 5545)

Patients’ Rights Advocates have the right to inspect or copy any records or other material not subject to confidentiality under Cal. Welf. & Inst. Code § 5328 or other provision of law, in the possession of any mental health program, service, or facility, relating to an investigation on behalf of a client or which indicate compliance or lack of compliance with laws and regulations governing patients’ rights. (Cal. Welf. & Inst. Code § 5542)

Patients’ Rights Advocates may gain access to confidential client information and records if the client or guardian ad litem has given a knowing and voluntary authorization. The client or guardian ad litem, whoever entered into the agreement, may revoke such authorization at any time. (Cal. Welf. & Inst. Code § 5541(a)).

Additionally, both conservatees and minor clients may consent to have the Patients’ Rights Advocate inspect or copy records and provide patients’ rights services without their conservator, parent or guardian’s consent unless the court has found them incompetent to enter into such an agreement. In which case, the court will appoint a guardian ad litem for such purposes. (Cal. Welf. & Inst. Code §§ 5523(a), 5530, 5541(b))

Patients’ Rights Advocates are authorized to enter mental health facilities, programs or services, interview patients and staff and inspect patient records, in the course of routine monitoring or audits for compliance with statutory and regulatory patients’ rights provisions. (Cal. Welf. & Inst. Code §§ 5520(b), 5545).

In addition to their statutory authority, many advocates contract with their local mental health directors for other specified duties. The advocacy contract may list the duties of the advocate, tracking the language of Cal. Welf. & Inst. Code § 5520, above, authorizing monitoring, training and technical assistance.

Furthermore, the contract may designate the advocate as the local mental health director's representative in matters pertaining to patients' rights, giving the advocate all rights of access provided to the director. Cal. Welf. & Inst. Code § 5326.1 explicitly provides access to the director and her designee to all information pertaining to denials of rights, including consent forms, required documentation for convulsive treatment, seclusion and restraint, physician's orders, nursing notes and involuntary detention papers. This designation may also be accomplished outside of the contract process, confirmed by letter or memorandum. An advocate should cite both their statutory and their contractual authority in addressing issues of access.

B. Sanctions for Interference With Advocates/Retaliation Against Patients and Staff

The law specifies that no person shall knowingly obstruct any Patients’ Rights Advocate in the performance of their duties. Knowing obstruction of any Patients’ Rights Advocate in the performance of their duties may subject the individual or facility to a civil penalty of $100 to $1,000. (Cal. Welf. & Inst. Code § 5550(b), (e)).

The law provides that no facility shall discriminate or retaliate in any manner against a patient or employee on the basis that such patient or employee has initiated or participated in filing a complaint, providing information or participation in an investigation. Any discriminatory treatment of a patient, who, or upon whose behalf, a complaint has been submitted to a Patients’ Rights Advocate within 120 days of the filing of the complaint shall raise a rebuttable presumption that such action was taken by the facility in retaliation for the filing of the complaint. (Cal. Welf. & Inst. Code § 5550(c)).

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