Chapter 3

A. Overview

Advocates provide both information and referral and complaint resolution services to clients. Information and referral involves a brief explanation of legal rights and available services. Complaint resolution is the services provided when a client alleges a violation of her/his rights. Complaint resolution can range from a simple phone call to a provider to multiple interviews, record reviews and written correspondence. Every effort should be made to resolve complaints at the lowest level.

B. Complaint Process

Any mental health client of a licensed health or community care facility who believes his/her right(s) have been abused, punitively withheld, or unreasonably denied may file a complaint with a local Patients’ Rights Advocate. When a complaint is received, whether written or oral, the Advocate shall, within two working days, take action to investigate and resolve it.

If the client expresses dissatisfaction with the action taken, the matter shall be referred, within five working days, to the local mental health director.

If the complaint cannot be satisfactorily resolved by the local mental health director within ten working days, it shall be referred to the Office of Patients' Rights, who shall be to make a decision in the case.

Appeal from the decision of the Patients’ Rights Specialist at the Office of Patients' Rights may be made to the Director of the State Department of Mental Health, or his designee (9 C.C.R. § 864).

C. Investigating

Investigation refers to the fact-gathering and evidence identification phase of the complaint resolution process.

Investigation is different from other kinds of advocacy. At this stage of the process, the Advocate must be objective. Although you may suspect a problem, it is especially important to be factual, thorough and flexible. Collect information now, develop positions and solutions later.

Although being a "sleuth" is a part of advocacy, there are a number of occasions where an investigation should be handled by or turned over to others who have greater access, authority and resources to conduct an appropriate investigation. Where a crime is suspected, the matter should be referred to law enforcement. Where licensing regulations have been violated, referral to licensing agencies in the form of a complaint (it can be anonymous) is appropriate. The Departments of Health Services and Social Services are required to investigate all complaint of care facilities. In the case of abuse or neglect, several options exist. The dependent adult abuse reporting law actually requires non-attorney supervised Patients’ Rights Advocates to report, although many Advocates have found limited effectiveness in the investigative and enforcement process. Serious abuse and neglect can be referred to Protection and Advocacy, Inc. for investigation or technical assistance in investigation.

Investigation usually includes interviews and document review. Interviews will usually start with the specific client and often include staff and witness interviews. Records to be reviewed include the patient's charts, facility policy and procedure, correspondence and memoranda relating to the issue, licensing or other reports. In determining who to interview and what records to review, the Advocate should be creative and open-minded to additional sources of information.

Advocates have authority to investigate problems if a client is unable or unavailable to register a complaint. "Section 5522 of the California Welfare and Institutions Code provides that Advocates "may conduct investigations if there is probable cause to believe that the rights of a past or present recipient have been, may have been or may be violated."

Once the investigation has been completed the Advocate must review the information. These steps will help you in this process:

1. Review information from interviews, documents, or other evidence for consistency.

2. Give special attention to information that indicates complex, unusual, irregular, suspicious events.

3. Distinguish facts from opinion, theory, or speculation.

4. Identify areas where information is corroborated, consistent, conflicting, or contradicted.

5. Follow up with sources to clarify or fill in gaps in information.

6. Develop a chronology of events based on information from interviews, documents, and other sources.

7. Identify consistent themes/patterns and remaining issues.

More complex investigations follow the same procedures - intake, investigation, interviews, findings and recommendations - except in a more comprehensive manner. An Advocate is very often presented with more cases than time allows so the need arises to not only decide whether there is a rights violation and whether there is enough information to pursue a case but also to prioritize those cases. The following questions may help in deciding these questions:

Was a right violated?

What is the nature of the problem? Is it related to your goals?

A pattern or single case?

What is the nature and degree of injury?

What is the number of clients affected?

What are the related issues?

What is the probability of success?

What is the potential impact?

What are the disadvantages to client, other clients, system?

What is the opportunity for getting more information to address other problems?

Are other resources available to assist the client?

D. Interviewing

Interviewing includes the initial intake process with the client as well as follow-up interviews with staff, witnesses and the client.

Two important rules for an Advocate to follow are to ask the right questions and to listen to what the speaker is saying. Another important rule is to ask follow-up questions: "What did you mean when you said______?" "How do you explain_______?" Your goal is to get information to assist your client, listen carefully and patiently but don’t be afraid to use questions to redirect the interview back to the subject being discussed.

Taping an interview is ideal, but may be rejected by or inhibit the speaker. Always ask if you can tape first. Take very good notes and include as many important quotations as you can. An ideal situation (but rarely available) is two Advocates at an interview. This allows for one note-taker while the other concentrates on asking questions; both can think about how to rephrase or follow up on questions.

Interviews are usually informal, but should be planned to maximize the limited time available in the interview. This means drafting a set of questions to follow and thinking out how and when to raise delicate issues. It also means having a sense of what your interview subject actually knows and how to tailor the questions to get at the information. Different types of personnel all offer different information. The perspective will often vary between professionals and auxiliary staff as well.

E. Writing

Writing, whether in the form of correspondence, memoranda or formal complaints, is a very effective way to convey information and initiate a resolution process. Writing can be used to record concerns, document and clarify facts, reference legal requirements and clinical standards, set forth a position, confirm an understanding, disseminate information, create a record, give notice, request relief, and prompt a written response.

In most writings involving resolution of specific complaints, you should include both factual presentations and legal analysis. The specific facts giving rise to the complaint, including name of the client, clear chronology of events and evidence confirming the events, should be stated clearly and without exaggeration or emotion. The history and context of the issue, together with a statement of the actual implications of the issue to the clients are also valuable elements to include. Cite applicable statutes, regulations, case law and policy documents. End with specific requests, including a written response, investigation into the action and events complained about, meeting to discuss resolution, changes in policy or practices, copies of documents, financial or other compensation or a written apology, if appropriate.

A basic requirement in writing effective documents is to develop constructive suggestions for change. By failing to propose answers, the advocate is leaving it to the facility to devise a solution. Being constructive means the advocate has more control over the resolution to the problem he/she has identified. By offering prescriptions for change, the advocate is also more credible, showing good faith in his/her willingness to solve problems.

Your writing should be tailored to the particular audience you wish to address, with special attention to the tone and scope of your letter or document. For a further discussion of customizing your writing, see appendices # ____.

F. Negotiation

Negotiation is a mutually agreed upon resolution of a problem. You begin with a well developed and documented issue as a foundation for negotiation. Although the Advocate has laws and regulations to work with, when a problem arises, his or her negotiating skills in presenting and resolving the problem are even more important.

Be calm and polite. Many mental health professionals and administrators place a high premium on a calm attitude, deference and poise. Don't give them reason to become distracted, defensive and uncooperative. Try not to be upset by rudeness or hostility--take it as an additional challenge.

Be firm and persistent. Negotiation is a trying task. The winner is often the party with the stamina to stick to a position. If you have a good position, don't back down easily or early. Don't hesitate to insist on a full hearing, to give your complete argument and to keep going back to press your point. If you are presenting a legal point bring copies of the law or statute you are citing.

Ask for explanations. Don't accept conclusory statements of authority or fact. People tend to assume that the way things are done is the right way, the only way. Ask why, why not, how they know, where is the rule, what is the reason. Urge the administrator to contact legal counsel or others who may have more information.

Work your way up. If you don't get what you want, be prepared to appeal to a higher authority. If the administrator is sympathetic, enlist his aid and advice. If he is not sympathetic, indicate your determination and conviction, politely but firmly.

Get it in writing. When concessions are made, ask for a confirming letter and send one yourself. It's also often a good idea to get it in writing when the administrator takes a bad position. Putting it in writing may make him reconsider. Having a written record makes it easier to challenge the position later. Never assume something will happen because the administrator has promised it will happen.

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