MINORS

Chapter 16

A. Basic Background

Due process rights can be hard to come by for minors in California's mental health system. Their rights are not equal to those of adults, and vary according to the legal status of the minor. The law distinguishes between: 1) minors for whom purportedly "voluntary" mental health placements are sought and minors who are clearly not voluntary; 2) minors who are enmeshed in the juvenile court system (i.e. minors who are already juvenile court wards and dependents or those currently pending proceedings) and minors who are not involved with the juvenile court at all; 3) between minors placed in private vs. public facilities; and finally, 4) minors over and under the age of 14.

B. Representing A Child Client

"Constitutional rights do not mature and come into being magically only when one attains majority. Minors are protected by the Constitution."

"Persons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and by the Constitution and laws of the state of California..." Cal. Welf. & Inst. Code § 5325.1 A minor is a person under the age of 18 and a minor's status as a "person" for mental health purposes is included at Cal. Welf. & Inst. Code § 5500(b).

Thus, unless there is a specific statute providing differently, all the rights and procedures required by the law for adults also apply for children. Therefore minors retain all the rights set forth in Cal. Welf. & Inst. Code §§ 5325, 5325.1 and these rights "may not be waived by the person's parent, guardian, or conservator." Cal. Welf. & Inst. Code § 5325

When representing a child, an Advocate should not be diverted from being a true voice for the minor's expressed interest. The Advocate must meet confidentially with the minor, ascertain their wishes and vigorously Advocate to obtain the results desired by the minor. The minor must be the one to decide the forum of their representation after being carefully advised of the possible options and outcomes by the Advocate. Advocates should promote for the "articulated wishes" of their minor clients, regardless of whether Advocates personally concurs or not. The notion of "substituted judgment" should only come into play when it is unmistakably clear that the minor is unable to comprehend or assist in the proceedings in any manner, or perhaps is too young to adequately comprehend the proceedings. However, Advocates must always ascertain whether there is a logical reason for the minor's decision, even if it is one that perhaps adults would not understand or rely upon.

C. Legal Status Of Minors

1. Involuntary Commitment of a Minor (72 hour holds).

Minors can be held under the same legal procedure for involuntary treatment as adult.(see Chapter XV. Legal Status).

a. Inability to get consent from parent/guardian for treatment.

The inability to get consent from the minor's parent/guardian shall not preclude treatment of a minor held under the LPS Act. The treating facility must make "every effort" to "obtain the consent of the parent or legal guardian,"; however, inability to do so will not preclude holding and treatment of an involuntary minor. Cal. Welf. & Inst. Code § 5585.50

b. Minors cannot be confined with adults held under the LPS Act.

No minors under 16 years may be held with adults receiving psychiatric treatment. Cal. Welf. & Inst. Code § 5585.55 There is a statutory waiver provision for facilities who can show the requirement is a hardship. Cal. Welf. & Inst. Code § 5751.7. However, under no circumstances may a minor be put on the same treatment ward as an adult "in the custody of a jailer for a violent crime," an adult known registered sex offender or a person who has a "known history of or exhibited, inappropriate, sexual or other violent behavior which would present a threat to the physical safety of minors." Cal. Welf. & Inst. Code § 5751.7

c. Right to Writ

Minors have the same statutory right to a writ of habeas corpus hearing as adults under the LPS Act.

d. "Grave disability" is different for minors

The definition of "gravely disabled" is different for minors. Cal. Welf. & Inst. Code § 5585.25 defines it as: "a minor who, as a result of a mental disorder, is unable to use the elements of life which are essential to health, safety, and development, including food, clothing, and shelter, even though provided to the minor by others."

e. What is not proof of a mental disorder

Mental retardation, epilepsy, or any other developmental disability, alcoholism or other drug abuse or repeated antisocial behavior do not, by themselves, constitute a mental disorder. Cal. Welf. & Inst. Code § 5585.25 Further, a minor is not mentally disordered for the purposes of commitment just because s/he exhibits behaviors described in Cal. Welf. & Inst. Code §§ 601, 602 (i.e. is habitually disobedient or truant or because s/he has violated a law defined as a crime).

f. Evaluation

The required evaluation is more extensive for minors. Cal. Welf. & Inst. Code § 5585.52 requires that "any minor detained" under the 72 hour hold provisions, "shall receive a clinical evaluation consisting of multidisciplinary professional analysis of the minor's medical, psychological, developmental, educational, social, financial, and legal conditions as may appear to constitute a problem. This evaluation shall include a psycho-social evaluation of the family or living environment, or both. Persons providing evaluation services shall be properly qualified professionals...in diagnosis and treatment of minors. Every effort shall be made to include the minor's parents or guardian in the clinical evaluation."

g. Treatment plan

If the evaluating doctor believes the minor needs further treatment, the doctor must write up a treatment plan that includes identification of the least restrictive placement to receive that treatment.

h. Least restrictive placement

When considering "least restrictive placement" in the mental health context for minors, particularly for minors inpatient confinement often does not appear to be appropriate. For minors, many of their underlying issues relate to a lack of or disruption in parenting, family life and nurturing. These needs cannot be fulfilled in an institution. Combined with the strong stigma that attaches by hospitalization and follows a child through every placement and school, and the pattern that has been shown to exist where placement of minors tends to escalate in restrictiveness, it appears that the least restrictive environment appropriate for minors is almost always a family-based community setting, not a psychiatric facility or residential treatment center.

i. Aftercare plan required for all involuntary minors

"A mentally ill minor, upon being considered for release from involuntary treatment, shall have an aftercare plan developed. The plan shall include education or training needs, provided these are necessary for the minor's well-being. Cal. Welf. & Inst. Code § 5585.57

2. 14 Day Certification

If the treating facility wants to certify a minor of any age, the minor gets exactly the same information rights and representation as adults are given, including an explanation of the purpose for the certification and the opportunity to file a writ. The facility has the burden of proof to show that the minor is still a danger to self or others or gravely disabled (as defined for minors) and is not willing or able to accept voluntary treatment on the advise of counsel/Advocate. If a minor is placed on a 14 day hold pursuant to Cal. Welf. & Inst. Code § 5250, the minor shall have a certification review hearing and be represented by the Patients’ Rights Advocate or an attorney.

3. Second 14 day certification for suicidal minors

As for adults, if the hospital seeks to hold the minor an additional 14 days because they believe there is an "imminent threat" that the minor will take their own life, then Cal. Welf. & Inst. Code § 5260 procedures must be followed.

4. Additional 180 day hold as a danger to others

As for adults, if the facility seeks to hold the minor as "dangerous to others," then the criteria in Cal. Welf. & Inst. Code § 5300 must be shown.

5. Conservatorship

The process is the same for minors as for adults, but Advocates must keep in mind the definition of "grave disability" and "mental disorder" for minors found in Cal. Welf. & Inst. Code § 5585.25. Additionally, "bizarre or eccentric behavior, even if it interferes with a person's normal intercourse with society, does not rise to a level warranting conservatorship except where such behavior renders the individual helpless to fend for themselves, or destroys their ability to meet those basic needs for survival." Conservatorship of Smith, 187 Cal. App. 3d 903, 232 Cal. Rptr. 277 (1986)

D. Minors Under the Jurisdiction of the Juvenile Court

This category includes wards of the court for being "habitually disobedient or truant" or for violating a law defined as a crime (Cal. Welf. & Inst. Code §§ 601, 602), and dependents of the court because their parents/guardians have been accused of abuse, neglect, or abandonment. (Cal. Welf. & Inst. Code § 300).

The juvenile court does not have the authority to commit minors except under the LPS Act.

1. Involuntary commitment of a ward or dependent (Cal. Welf. & Inst. Code § 5585.20).

Minor's Commitment Criteria (72 Hour Hold). Minors in the above three categories (wards, dependents, or dependent petition pending) can be held for a 72 hour evaluation pursuant only to Cal. Welf. & Inst. Code § 5585.20. The admission criteria are similar to those for adults-- they must be a 1) danger to themselves, 2) danger to others, or 3) gravely disabled as a result of a mental disability. Cal. Welf. & Inst. Code § 5585.20 specifically requires that any evaluations be done according to the provisions set forth there. This can be a significant protection if the court wants to send a child whose dependency petition is pending for a mental health "evaluation" under Cal. Welf. & Inst. Code § 357 or Cal. Welf. & Inst. Code § 635.1, a similar provision for minors whose ward petition is pending. When the court is in doubt as to whether a ward or dependent has a mental disorder, the court can order the minor be taken to an LPS designated facility for an evaluation. (See also Cal. Penal Code §§ 4011.6, 4011.8 re: treatment and evaluation of incarcerated juveniles).

In the 1975 case In re Michael E., 15 Cal. App. 3d 183, 538 P.2d 231, 123 Cal. Rptr. 103 (1975) the California Supreme Court determined that a ward of the court could not be signed in as a "voluntary" patient to the state hospital by either the juvenile court, or by a probation officer acting under its direction. The court held that the minor was entitled to LPS due process protections prior to such a commitment. In another case, In re Michael D., 70 Cal. App. 3d 522, 140 Cal. Rptr. 103 (1977), the Court of Appeal followed In re Michael E. ruling that the court could not circumvent the minor's right to LPS protections by appointing a guardian. Although the facts in each of these cases involved commitment to a state hospital, both courts focused upon the lack of authority of the juvenile court to substitute consent for treatment for minors under its jurisdiction. Thus, the principles underlying these cases clearly apply to commitment in private facilities as well.

2. Voluntary Commitment of a Minor.

Cal. Welf. & Inst. Code § 6552 is the provision for minor wards or dependents (Cal. Welf. & Inst. Code §§ 300, 600) who want or are thought to need either inpatient or outpatient mental health services. The public defender of the county must make the application on behalf of the minors. In some counties, the local rules of court allow for the Patients’ Rights Advocate to complete the application with the minor if the minor’s attorney is unavailable.

a. Standard of Review

The minor's request for voluntary treatment, either inpatient or outpatient, will be granted "if the court is satisfied...that the minor suffers from a mental disorder which may reasonably be expected to be cured or ameliorated by a course of treatment offered by the hospital, facility or program in which the minor wishes to be placed." Additionally, the court should insure that efforts have been made to explain the probable nature and duration of treatment and that the minor actually wants treatment. The Advocate can offer technical assistance and placement suggestions to the public defender.

b. Revocation of Consent

A minor may revoke the application for voluntary treatment at any time. The process for revocation of minor's application is:

  • the minor notifies the facility or attorney/Advocate that s/he no longer agrees to accept treatment at the facility voluntarily.

  • the facility or attorney/Advocate must immediately notify the court.

  • the court must calendar a special hearing and notify all counsel and parties.

  • After the hearing, the minor must be released to the court unless the minor is placed on an LPS hold.

E. Minors in Care and Control of their Parents

1. "Voluntarily Per Parent" Treatment in Private Facilities

(Cal. Welf. & Inst. Code § 6002.10).

Criteria: 1)the minor is not emancipated and is between 14 and 17 years old. Apparently, children under 14 years can be admitted but only those 14 and older have the statutory right to the review hearing described below; 2) minors may not also be committed under LPS provisions Cal. Welf. & Inst. Code § 5585.50; 3) minor is not voluntary under Cal. Welf. & Inst. Code § 6552; 4) minor is not a ward or dependent of the court; 5) the minor has a mental disorder.

Definition of mental disorder. Resistance to treatment may not be used as evidence that the minor has a mental disorder. Nor can behaviors described in Cal. Welf. & Inst. Code §§ 601, 602, i.e. habitually disobedient or truant or having violated criminal laws, be the sole basis for admittance. Nor can alcoholism, other drug abuse, or repeated antisocial behavior. Cal. Welf. & Inst. Code § 5585.25

Notice to Patients’ Rights Advocate. The private facility must notify the Patients’ Rights Advocate within one day that a minor has been admitted. Cal. Welf. & Inst. Code § 6002.15(2)

Admission information must be given to minor and parents. Prior to accepting written authorization for treatment, the parent/guardian must be given orally and in writing, a full explanation of the treatment philosophy followed, including the use of restraint and seclusion, medication and how involved the parent/guardian can expect to be in the treatment process. Restraint and seclusion laws apply equally to children and adults; therefore, parents/guardians cannot waive any of those precautions.

Minors must be informed in writing about their right to an Independent Clinical Review (ICR) and given a copy of the Department of Mental Health rights of minors booklet.

a. Right to an Independent Clinical Review (Cal. Welf. & Inst. Code § 6002.30).

SB 595 provides for a post-admission ICR at the facility, conducted by a psychiatrist selected by the facility who may or may not have staff privileges at the hospital which is treating the minor. Prior to the ICR, the psychiatrist-reviewer must interview the minor, review clinical information, including past treatment and future treatment plans, and consult with the treating physician to review alternative options.

"Independent clinical reviewer" means that the psychiatrist shall have no financial relationship with the family or the treating physician. The county mental health director must approve the list of independent reviewers at least annually. (Cal. Welf. & Inst. Code § 6002.25).

The ICR is not automatic, but is available to minors who request it, and is available only within the first ten days of admission. The facility does have the obligation to inform the minor of the right to the ICR in writing. No party in the proceeding has the right to counsel, but the Patients’ Rights Advocate is required to provide assistance to the minor at the review.

b. Standard of Review at the ICR.

The standard of review at the ICR is 1) whether the minor continues to have a mental disorder; 2) whether further inpatient treatment is reasonably likely to be beneficial to the minor's mental disorder 3) or whether the placement in the facility represents the least restrictive, most appropriate available setting, within the constraints of reasonably available services, resources, and financial support, in which to treat the minor. (Cal. Welf. & Inst. Code § 6002.30(c)).

If the answer to any of these questions is "no" then the minor must be released. The decision of the reviewing psychiatrist is binding and not appealable. If the decision is to release the minor, the minor must be released that same day.

c. Review Procedures.

1) If the minor requests the ICR then the Advocate must be notified no later than one

working day after the request. Only the minor can waive the right to this hearing. Once a request is made, the minor can change his or her mind anytime; 2) The ICR must be held within five days of the request; 3) The minor has the right to be assisted by the Advocate and to question those recommending inpatient treatment. However, if the minor does not want to attend then the Advocate can represent the minor in his or her absence; 4)The review should be in an informal but private setting. The review can be limited to the minor, the parent/guardian, the Advocate, a representative of the facility, and the psychiatrist conducting the review; 5)An interpreter must be provided if any participant requires one; 6) The reviewing psychiatrist is responsible for keeping a record of the hearing.

d. Right to Writ.

The statutes governing minors in this category do not specifically give minors the right to a habeas corpus writ hearing. However, the right is made clear by the historical language. The statutes "do not preclude the right to review of inpatient treatment through the exercise of other legal remedies available to minors, including, but not limited to, a writ of habeas corpus." Many Superior Court Local Rules specifically provide minors with this right. (Note: The most recent judicial council writ form has an "Other" box where the form asks what law the person is being held under." Minors in this category should use that box and write Cal. Welf. & Inst. Code § 6002).

2. "Voluntary Per Parent" Treatment of Minors in Public Facilities ("Roger S.").

a. Background/Minors right to pre-commitment ( "Roger S.") hearing.

Minors admitted to public psychiatric facilities, like minors admitted to private psychiatric facilities, are not entitled to the protections of the LPS Act. Further, minors under the age of 14 years are not entitled by statute to the pre-commitment hearing described below.

In re Roger S., 19 Cal. 3d 921 (1977), the California Supreme Court held that though a minor's personal liberty interest is less comprehensive than that of an adult, a minor does possess due process rights which cannot be waived by a parent or guardian before being committed to a state hospital. The minor is not entitled to full LPS protections, but is entitled to a pre-admission hearing on the issue of whether inpatient hospitalization is appropriate. The court did not require that the hearing be judicial but did establish the right to counsel, the right to present evidence, and the right to cross-examine.

Although the facts of Roger S. involved commitment to a state hospital, the rationale applies to any state controlled facility. It is the policy of the Department of Mental Health to apply Roger S. principles to county-operated and county-contracted facilities.

b. Standard of Review at Roger S. hearing.

Most Superior Court Local Rules require that all of the following criteria be met, by a "preponderance of evidence," in order to hospitalize a minor under the Roger S. case: 1) whether the minor has a mental disorder; 2) whether the minor requires twenty-four hour treatment in a locked facility; 3) whether the hospital represents the least restrictive and most appropriate setting to fulfill the objectives of treatment; 4) whether hospitalization is reasonably expected to ameliorate the mental condition; and 5) whether the facility is in the minor’s home community, and if not, that the benefits of treatment out way the detriment of removal from that home community. If the answer to any of the above is negative, then the minor should not be committed.

The purpose of these pre-commitment hearings is to assure that admission is justified before the minor has been significantly deprived of their liberty interests. However, in reality most of these hearings are post admission because a minor is usually brought in under the 72 hour hold criteria and then "transferred" to voluntary per parent status.

c. Hearing procedures.

1) The minor must be given notice and information about the hearing; 2) The hearing must be before a judge or an administrative officer of the court; 3) The minor has a right to counsel. (One appellate district court has interpreted "counsel" to mean an attorney. In re Antoine C., 186 Cal. App. 3d 424, 230 Cal. Rptr. 738 (1986). However, in at least one county, Advocates are successfully conducting these hearings.); 4) The minor has a right to appear and present evidence on their own behalf; 5) The minor must have the opportunity to confront and cross-examine witnesses brought against them. Only the minor can waive these rights after being given notice of them.

d. Pre-commitment Hearings for Minors under 14 years.

The law is silent regarding the rights of children under 14 to a pre-commitment hearing. This lack of protection is premised on the idea that children that age are not intelligent or mature enough to assert their own rights. Therefore, should the facts of any particular situation refute that presumption, then the right to a pre-commitment hearing should be asserted.

F. Minors' Right to Outpatient Treatment

1. Mental Health Treatment or Counseling

(Cal. Fam. Code § 6924).

Cal. Fam. Code § 6924(b) and Cal. Civ. Code § 25.9 allow a minor age 12 or over to consent to outpatient treatment without the concurrence of parent or guardian if: 1) the professional in charge believes the minor is mature enough to participate intelligently; and 2) the minor would present a danger of serious physical or mental harm to self or others without the treatment or residential services. Alternatively, if the minor is an alleged victim of incest or child abuse.

Outpatient services must be provided by a governmental agency or a government contractor or by a runaway crisis center.

The provider has the discretion to include the parent/guardian in treatment. However, in some instances, payment for services to the minor by the parent/guardian and/or participation of the parent/guardian in treatment may affect the confidentiality of the minor/physician relationship.

2. Minor's consent to other kinds of medical care (Cal. Fam. Code § 6924).

A minor can consent to the following types of medical care:

a. prevention or treatment of pregnancy, with the exception of sterilization and abortion unless the minor seeks authorization from the court;

b. treatment for sexually transmitted or infectious diseases that must be reported;

c. diagnosis and treatment related to an alleged rape (minors 12 years and older);

d. diagnosis and treatment for alleged sexual assault;

e. treatment related to drug or alcohol abuse with the exception of methadone treatment (minors 12 years and older).

G. Other Important Considerations

1. Right to refuse psychotropic medications.

The Riese decision, (finding that people held involuntarily are presumed to have the capacity to consent or refuse unless specifically found not to have the capacity), makes no distinction between adults and minors--it gives the presumption to all persons. Advocates should argue that all involuntarily confined minors (and even all voluntary minors over the age of 14) are entitled to undergo medication only by informed consent or by judicial order, as has been endorsed by the court for adult patients. At least one County has convinced the juvenile court that minors held under the LPS are entitled to capacity hearings.

2. Restraint and seclusion of minors in public and private facilities.

The same protections and procedures that apply to adults also apply to minors. to be written

3. Consent to convulsive (ECT) treatment.

The laws apply differently to minors depending on their age and voluntary status. See Cal. Welf. & Inst. Code § 5326.7 et seq., and 9 C.C.R. § 845. Electro-convulsive treatment may not be performed on any minor under the age of twelve. Minors age twelve to sixteen may be provided with ECT only in a life-threatening emergency.

4. Minors have the same patients' rights as adults.

Minors in any of the above categories must be advised of their rights and of their right to contact a Patients’ Rights Advocate (Cal. Welf. & Inst. Code § 5325.1). These rights may only be denied for good cause. Parents/guardians may not waive them for any reason. (Cal. Welf. & Inst. Code §§ 5150 et seq., 5325, 5585, 6006.)

5. Medi-Cal for youth.

Minors can get their own Medi-Cal card and use it to pay for services minors can consent to independently. This can also include after-care treatment. This is commonly referred to as "minor consent Medi-Cal."

6. Legally emancipated minors.

They cannot be 'voluntarily' admitted by parent/guardian and are treated as adults. (Cal. Welf. & Inst. Code § 5585.59.) Emancipated minors include: those under 18 who are on active military duty; those who have been married, even if they later divorced; or "Court Declared Emancipated": minors, 14 or older, who live apart from parents/guardians with their consent and are managing their own financial affairs and their income is not derived from criminal activities.(Cal. Fam. Code § 7000 et seq.). "Self-sufficient Minors" may consent to medical treatment if 15 or older, living apart from parents with or without consent, and managing his/her own financial affairs, regardless of the source of those funds.(Cal. Fam. Code § 6922).

H. Access To Records

1. By the minor.

a. Medical care records.

A minor is entitled to inspect "patient records pertaining only to health care of a type for which the minor is lawfully authorized to consent." See Section C(2) above for a list. (Cal. Health & Safety Code § 123110(a)) Significantly, the parent or guardian is NOT entitled to inspect these records without the express authorization of the minor. (Cal. Health & Safety Code § 123115(a)(1)). This is to encourage minors to seek medical and mental health care without fear of their parents/guardians finding out.

It is important to keep this protection in mind because children often talk about these issues in the course of mental health treatment and therefore it can and should, absent the minor's permission, be excised from any records the parent/guardian requests.

b. Mental health records.

A minor patient can request their own mental health records but if "a health care provider determines there is a substantial risk of significant adverse or detrimental consequences to a patient in seeing or receiving a copy of mental health records requested by the patient," then the facility can refuse to show or give the records to the minor.(See Cal. Health & Safety Code § 123115(b)). Presumably, this applies to outpatient mental health care the minor has the right to consent to independently under California Family Code section 6924.

If inspection is refused then the health care provider has to document the request and the specific reasons for refusal. However, the provider must tell the minor that the provider is required to permit inspection by a licensed physician or psychologist if the minor patient requests that in writing. (See Cal. Health & Safety § 123115(b)(3)).

2. By the parent or guardian.

Medical care records. See 1(a) above concerning excising information about medical treatment received pursuant to independent consent from the mental health records.

Mental health care records. The parent/guardian of a minor may request the minors records. However, inspection is not automatic. If "the health care provider determines that access to the patient records requested by the representative would have a detrimental effect on the providers professional relationship with the minor patient or the minor's physical safety or psychological well being, then the parent may be denied access by the health care provider." (See Cal. Health & Safety Code § 123115(a)(2)).

3. By the Advocate

A minor in any category is guaranteed, under Cal. Welf. & Inst. Code § 5325, the right to receive the services of an Patients’ Rights Advocate. The general rule is that "a recipient of mental health services is presumed competent for the purpose of entering into an agreement with" Advocates for services "unless found by the court to be incompetent to enter into" such an agreement.

Therefore, any client, i.e. any person, including minors, who is receiving mental health services, can authorize an Advocate to inspect their records.

The facility may remove information given in confidence by the minor's family.

(DMH Memorandum 1986)

4. Disclosure of minors records to others

"If the recipient of services is a minor, ward, or conservatee," then his/her parent, guardian, guardian ad litem or conservator can designate persons to receive the records. However, nothing in the statute compels "a physician, psychologist, social worker, nurse, attorney or other professional person to reveal information which has been given to him or her in confidence by members of the patients family."

Here again, where records are a result of treatment that the minor can consent to independently they can only be disclosed to others with the permission of the minor.

I. Facilities For Minors

1. Residential Treatment Centers (RTC)/Group Homes (22 CCR § 84000, et. seq.)

RTC’s or group homes are 24 hour residential facilities which provide care and supervision to seven or more children and/or adolescents in a structured environment which is non-secured. They are "community care facilities" licensed by the Department of Social Services (DSS).

a. Personal Rights of Residents

The rights of minors in residential care facilities are governed by 22 CCR §§ 80072 and 84072. While some of these rights are the same as those enumerated in WIC 5325, others are more diluted or qualified then those rights which minors in a acute psychiatric hospital have a right to. While patients’ rights advocates have access to clients receiving mental health services in those facilities, DSS-Community Care Licensing (CCL) is the agency which is responsible for monitoring and investigating residents’ complaints.

b. Discipline and Use of Seclusion and/or Restraints

A facility cannot initiate forms of discipline which violate the minor’s personal rights refereed to above. Acceptable forms of discipline which a facility may utilize are listed in 22 CCR § 84072.1. A facility must maintain and implement written policies and procedures governing this practice. While use of locked seclusion and/or restraint are not allowed by the regulations, a licensee may request (and obtain) a "waiver" from DSS -CCL to utilize certain types of restraint which are approved by the licensing agency. Advocates should obtain a copy of the facility’s policies and procedures, as well as, any waivers which the facility has obtained from DSS-CCL when investigating a complaint regarding the appropriateness of a particular use of discipline and/or restraint. 22 CCR 80072(a)(7) & (8).

2. Community Treatment Facility (CTF)

CTF’s are secured residential facilities which are governed by WIC § 4094 et. seq. and by 9 CCR § 1900 et. seq. and are programs for seriously emotionally disturbed minors and wards or dependents of the juvenile court. CTF’s are licensed by the Department of Social Services and certified by the Department of Mental Health (DMH). The facility shall be defined as "secure" if residents are not permitted to leave the premises of their own volition. WIC 4094.5(b). DMH shall limit the total number of beds to no more than 400 beds, statewide. The number of secure and non-secure beds that a facility maintains can only be modified with the approval of both DMH and DSS. WIC 4094.7(a).

a. Criteria For Admission

Only minors certified by an appropriate mental health professional as "seriously emotionally disturbed", as defined in WIC 5600.3(a)(2), for whom less restrictive mental health interventions have been tried, as documented in the case plan, or who are placed in an acute psychiatric hospital or state hospital, or out of state facility can be placed in a CTF. WIC 4094.5(a). The minor shall be determined, by a county interagency placement committee, to be in need of the level of care provided by a CTF. WIC 4094.5(c)(1). The minor must be considered, clinically, to require a period of containment to participate in and benefit from mental health treatment. The proposed treatment program at the CTF must be reasonably expected to improve the minor’s mental disorder. (See also 9 CCR § 1923(b),(c) & (d) which specify the admission criteria in greater detail.)

Minors who are admitted to a CTF must be either (a) under the jurisdiction of the juvenile court who have made a voluntary application for mental health services pursuant to WIC 6552, or (b) minors admitted with the informed consent of a parent, guardian, conservator or other person having custody of the minor.

b. Due Process Rights

Any minor admitted to a CTF shall have the same rights afforded to minors admitted to a state hospital or county acute psychiatric hospital pursuant to the "Roger S." procedures. (See Section D2 above). Minors who are wards or dependents of the of the court shall be afforded due process pursuant to WIC 6552 and may not be admitted involuntarily except in accordance with the LPS Act. (See Section C2 above). (Note: Minors under the juvenile court’s jurisdiction cannot be admitted to a CTF by court order or by consent of the minor’s parent or guardian, probation officer or social worker.) The specific pre-admission due process procedures are listed in the regulations at 9 CCR §1923(b). All minors have a right to a writ of habeas corpus pursuant to WIC 4094.6. (See 9 CCR § 1926 for specific requirements related to such a request by a minor.)

c. Patients’ Rights

The patients’ rights provision contained in WIC 5325, 5325.1, 5325.2 and 5326 shall be available to any minor admitted to a CTF. Every minor placed in the facility shall have a right to a hearing by writ of habeas corpus, within two judicial days of filing a petition within the superior court of the county in which the facility is located. WIC § 4094.6. In addition to the rights enumerated above, any minor has a right to participate in daily outdoor activities. 9 CCR § 1931. Every minor admitted must be personally informed of their rights in writing or by other means if unable to read or understand the information provided; such notification must be noted in the minor’s facility record within 24 hours of admission. All wards and common living areas must post a list of the rights stated above. 9 CCR § 1932. Any complaint regarding a denial of rights which is received by a county patients’ rights advocate must be investigated within two (2) working days. 9 CCR § 1933(b).

Any denial of rights must comply with "good cause" requirements and documentation of such a denial of a right, including specific information, must be noted in the minor’s facility record immediately following the denial; a right must be restored when good cause for the denial no longer exists. (See 9 CCR §§ 1934, 1935, 1936 & 1937.)

d. Medication Consent

The CTF must obtain written informed consent for psychotropic medications from each minor, as well as the legal guardian, conservator or judge, pursuant to 9 CCR § 851. The prescribing physician must examine each minor prior to prescribing any medication and the treating physician must conduct a written medication review at least every 30 days. No blanket consent for medication shall be allowed by the facility’s protocol. 9 CCR § 1928 (a)(3)(A).

e. Seclusion & Restraint

The regulations governing the use of seclusion and restraint are almost identical to those governing acute psychiatric facilities. Seclusion and/or restraint orders must be limited to two (2) hours for minors 9 to 17, one (1) hour for minors under 9, and four (4) hours for anyone 18 to 21. 9 CCR 1929 (d)(2)(C). Seclusion is defined as any isolation of a minor in any room or part of the facility in which the minor is prevented from leaving for any period of time, thus limiting their movement, activities and contact with the other minors. 9 CCR 1929 § (d)(5)(A).

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