Mental Health Law Manual

California Hospital

Mental Health

2019

MentalHealth_Manual_2019_TitlePg_ATP.indd 1 5/17/2019 1:09:20 PM

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September 2019

13th Edition

Mental Health Law

Manual

A handbook on laws governing mental health treatment

Ordering Information

For more information, visit CHA online at www.calhospital.org/publications

This publication is designed to produce accurate and authoritative information with regard to the subject matter covered.

It is sold with the understanding that CHA is not engaged in rendering legal service. If legal or other expert assistance is

required, the services of a competent professional person should be sought.

Thirteenth edition 2019.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means,

electronic, mechanical, photocopying, recording, or otherwise, without the prior written approval of:

California Hospital Association

ATTN: Publishing

1215 K Street, Suite 800

Sacramento, CA 95814

However, hospitals that are members of the California Hospital Association may use the model forms, signs and handouts

as templates in developing their own forms, signs and handouts.

It is the intent of CHA to strictly enforce this copyright.

Published by the California Hospital Association.

Printed in the United States of America.

Liz Mekjavich, Vice President, Publishing and Education

Lois J. Richardson, Esq., Vice President and Legal Counsel

Bob Mion, Director, Publishing and Marketing

Emily Stone, Publishing Manager

CHA Publications

Several helpful publications are available through CHA including:

• California Health Information

Privacy Manual

• California Hospital Compliance Manual

• California Hospital Survey Manual —

A Guide to the Licensing & Certification

Survey Process

• Consent Manual

• Discharge Planning for Homeless Patients

• EMTALA — A Guide to

Patient Anti-Dumping Laws

• Guide to Release of Patient Information

• Healthcare Workplace Violence Prevention

Hospital Financial Assistance Policies

and Community Benefit Laws

• Mental Health Law Manual

• Managing High Profile and Patient Care

Conflict Situations

• Minors and Health Care Law Manual

• Model Medical Staff Bylaws & Rules

• Record and Data Retention Schedule

• The Cal/OSHA Safe Patient Handling

Regulation

Plus numerous human resource and volunteer publications.

Preface

Welcome to the thirteenth edition of the Mental Health Law Manual — a handbook on laws

governing mental health treatment. The California Hospital Association has published this manual

to help health care professionals understand the laws governing mental health treatment as well

as the rights and protections of the patients they serve.

This manual is comprised of information taken from two other CHA publications: the Consent

Manual and the California Health Information Privacy Manual. It also contains a chapter on the

state and federal laws governing the use of seclusions and restraint. This edition reflects all state

and federal legislation, regulations, and judicial decisions through January 2019.

We are pleased to publish this manual as a service to our members and others. We hope you will

find it useful.

Lois J. Richardson, Esq.

Vice President and Legal Counsel

Editor, Mental Health Law Manual, Thirteenth Edition

California Hospital Association

(916) 552-7611

[email protected]

Information contained in the Mental Health Law Manual should not be construed as legal advice or used to resolve legal problems

by health care facilities or practitioners without consulting legal counsel. A health care facility may want to accept all or some of the

Mental Health Law Manual as part of its standard operating policy. If so, the hospital or health facility’s legal counsel and its board of

trustees should review such policies.

Quick Reference

INTRODUCTION

WHERE TO FIND LAWS REFERENCED IN THE MANUAL

LIST OF FORMS AND APPENDICES BY CHAPTER

CHAPTERS

Chapter 1

Overview of Mental Health Laws

Chapter 2

Principles of Consent for Mental Health Patients

Chapter 3

Voluntary Admission and Involuntary Detainment for Mental Health

Treatment

Chapter 4

Rights of Mental Health Patients

Chapter 5

Restraints and Seclusion

Chapter 6

Health Information Privacy Basics

Chapter 7

Reporting Assaults, Potentially Dangerous Patients and Firearms

Prohibitions

Chapter 8

Adverse Events and Incident Reports

Chapter 9

Payment for Medi-Cal Emergency and Post-Stabilization Mental

Health Services

LIST OF FORMS AND APPENDICES

INDEX

Introduction

Providing care to patients with mental health issues is complicated. Knowing what is in the best

interest of the patient — and what is legal — isn’t always easy.

Special protections are afforded to individuals with mental health issues who may be unable to

make rational decisions regarding their care. These individuals have the right to be treated by a

provider who protects their interests and preserves their basic rights.

Medical information about mental health treatment is particularly sensitive and therefore add

another layer of complexity to the treatment process. This information must be handled with the

utmost of care. At the same time, disclosure of information to patient advocacy groups, clinical

reviewers, county behavioral health directors and others is sometimes required. And, there are

unique reporting requirements for facilities and individuals that treat mental health patients.

Sorting through the maze of laws governing mental health treatment is particularly difficult

because there are multiple bodies of law. In this manual, all laws governing mental health

treatment and medical privacy are discussed — the Lanterman-Petris-Short (LPS) Act,

the Confidentiality of Medical Information Act (CMIA), the Health Insurance Portability and

Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health

(HITECH) Act, and other state and federal laws.

At the back of the manual you will find sample forms and appendices that can be adapted

to fit your specific operations. (These forms can also be found online for CHA members at

www.calhospital.org/free-resources, along with Spanish versions where available.)

All of the laws discussed in the Mental Health Law Manual

can be found on the Internet.

I. FEDERAL LAW

A federal statute is written by a United States Senator or

Representative. It is voted on by the United States Senate

and the House of Representatives, and then signed by the

President. A federal statute is referenced like this: 42 U.S.C.

Section 1395. “U.S.C.” stands for “United States Code.”

Federal statutes may be found at www.gpo.gov/fdsys or at

www.law.cornell.edu.

A federal regulation is written by a federal agency such

as the U.S. Department of Health and Human Services

or the U.S. Food and Drug Administration. The proposed

regulation is published in the Federal Register, along with

an explanation (called the “preamble”) of the regulation,

so that the general public and lobbyists may comment on

it. The federal agency must summarize and respond to

each comment it receives on the proposed regulation. The

agency may or may not make changes to the proposed

regulation based on the comments. The final regulation is

also published in the Federal Register. A federal regulation

is referenced like this: 42 C.F.R. Section 482.1 or 42 C.F.R.

Part 2. “C.F.R.” stands for “Code of Federal Regulations.”

Federal regulations may be found at www.gpo.gov/fdsys or

at www.ecfr.gov. The preamble, however, is only published

in the Federal Register and not in the Code of Federal

Regulations. The Federal Register may be found at www.

gpo.gov/fdsys or at www.federalregister.gov.

The Centers for Medicare & Medicaid Services (CMS)

publishes its Interpretive Guidelines on the internet. The

Interpretive Guidelines include information for surveyors

on how CMS interprets the Conditions of Participation,

and instructions for surveyors on how to assess hospitals’

compliance with the Conditions of Participation. They may

be found at www.cms.gov/Regulations-and-Guidance/

Guidance/Manuals/Internet-Only-Manuals-IOMs.html

(click on Publication 100-07, “State Operations Manual,

then “Appendices Table of Contents”). There are several

appendices that hospitals will find useful, for example, A

(hospitals), AA (psychiatric hospitals), V (EMTALA), and W

(critical access hospitals).

A federal law must be obeyed throughout the United

States, including in California, unless the federal law

expressly states otherwise. As a general rule, if a federal

law conflicts with a state law, the federal law prevails,

unless the federal law expressly states otherwise.

If there is no conflict, such as when one law is stricter

but they don’t actually conflict with each other, both laws

generally must be followed. For example, under the Health

Insurance Portability and Accountability Act of 1996

(HIPAA), the federal law states that providers must conform

to whichever provision of federal or state law provides

patients with greater privacy protection or gives them

greater access to their medical information.

II. STATE LAW

A state statute is written by a California Senator or

Assembly Member. It is voted on by the California Senate

and Assembly, and then signed by the Governor. A state

statute is referenced like this: Civil Code Section 56 or

Health and Safety Code Section 819. State statutes may

be found at www.leginfo.legislature.ca.gov. Proposed laws

(Assembly Bills and Senate Bills) may also be found at

this website.

A state regulation is written by a state agency such as the

California Department of Public Health or the California

Department of Managed Health Care. A short description

of the proposed regulation is published in the California

Regulatory Notice Register, more commonly called the

Z Register, so that the general public and lobbyists may

request a copy of the exact text of the proposed regulation

and comment on it. The state agency must summarize

and respond to each comment it receives on the proposed

regulation. The agency may or may not make changes to

Where to Find Laws Referenced

in the Manual

CHA Where to Find Laws Referenced in the Manual

the proposed regulation based on the comments. A notice

that the final regulation has been officially adopted is also

published in the Z Register. The Z Register may be found at

www.oal.ca.gov/notice_register.htm.

A state regulation is referenced like this: Title 22, C.C.R.,

Section 70707. “C.C.R.” stands for “California Code of

Regulations.” State regulations may be found at www.

calregs.com.

A state law must be obeyed in California only. As a general

rule, if a California law conflicts with a federal law, the

federal law prevails, unless the federal law expressly states

otherwise. (If there is no conflict, such as when one law is

stricter but they don’t actually conflict with each other, both

laws generally must be followed.)

2. PRINCIPLES OF CONSENT FOR MENTAL

HEALTH PATIENTS

1-1

Consent to Surgery or Special Procedure*

1-2

Informed Consent to Surgery or Special

Procedure*

2-1

Self-Sufﬁcient Minor Information

2-2

Caregiver’s Authorization Afﬁdavit

2-3

Authorization for Third Party to Consent to

Treatment of Minor Lacking Capacity to Consent

2-A Decision Makers for Medical Treatment of Adults

2-B Consent Requirements for Medical Treatment of

Minors*

2-D Health Care Decisions for Unrepresented Patients

2-E Considerations for Revising the Hospital’s Policy

and Procedure Regarding Decision Making for

Unrepresented Patients

4-7

Consent to Receive Antipsychotic Medications

8-1

Conditions of Admission

23-1

Consent for the HIV Test

3. VOLUNTARY ADMISSION AND

INVOLUNTARY DETAINMENT FOR MENTAL

HEALTH TREATMENT

12-1

Request for Voluntary Admission and Authorization

for Treatment

12-2 Statement of Professional Person Responsible for

Minor’s Admission

12-3

Notice to Minors

12-4 Certiﬁcation of Admitting Physician

12-5 Application for Involuntary Admission — Inebriates

12-6

Notice of Certiﬁcation for Intensive Treatment

12-7

Advisement of Rights — Involuntary Patient

12-8

Leave of Absence from Psychiatric Service

12-9

Request for Release From Involuntary Treatment

12-10

Notice of Certiﬁcation for Second Involuntary

14-Day Period for Intensive Treatment — Suicidal

Patient

12-11 Petition for Postcertiﬁcation Treatment of

Imminently Dangerous Person

12-12 Detention of Patient With Psychiatric Emergency in

a Nondesignated Health Facility

(Health and Safety Code Section 1799.111)

12-A Summary of Lanterman-Petris-Short Act’s

Provision for Involuntary Evaluation and Treatment

and Right of Review

4. RIGHTS OF MENTAL HEALTH PATIENTS

13-3

Aftercare Plan

5. RESTRAINTS AND SECLUSION

25-A Report of a Hospital Death Associated With

Restraint or Seclusion

6. HEALTH INFORMATION PRIVACY BASICS

16-1

Authorization for Use or Disclosure of Health

Information*

16-2

Request to Withhold Public Release of

Information

7. REPORTING ASSAULTS, POTENTIALLY

DANGEROUS PATIENTS AND FIREARMS

PROHIBITIONS

13-4 Notice to Law Enforcement Agency: Release of

Person From Hospital From Whom a Firearm or

Other Deadly Weapon Was Conﬁscated

13-5

Notice to Patient: Procedure for Return of

Conﬁscated Weapon(s)

19-2 Employee Acknowledgment of Child Abuse and

Neglect Reporting Obligations

19-4 Employee Acknowledgment of Elder and

Dependent Adult Abuse Reporting Obligations

19-A Table 19-A Assault and Abuse Reporting

Requirements

These documents are provided in English in the back of the manual. All forms can be found online for CHA members at

www.calhospital.org/free-resources, including Spanish versions, when available. “S” denotes that the form is provided in

English and Spanish.

List of Forms and Appendices by

Chapter

* Indicates forms that are new or revised in this edition.

CHA List of Forms and Appendices by Chapter

8. ADVERSE EVENTS AND INCIDENT

REPORTS

20-1 Adverse Event Report Form — Sample

21-1 Incident Report

21-2 Report to Attorney

9. PAYMENT FOR MEDI-CAL EMERGENCY AND

POST-STABILIZATION MENTAL HEALTH

SERVICES

MH 9-A Medical Necessity for MHP Coverage

MH 9-B Types of MCPs and MHPs

MH 9-C Pertinent DHCS Plan Letters

MH 9-D DHCS Chart: Medi-Cal Mental Health Services

MH 9-E Pertinent Legal Deﬁnitions of Emergency

Psychiatric Conditions

* Indicates forms that are new or revised in this edition.

Chapter 1 — Contents

1 Overview of Mental Health Laws

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION ....................................... 1.1

II. THE LANTERMAN-PETRIS-SHORT ACT:

INVOLUNTARY EVALUATION AND

PATIENT RIGHTS

..................................... 1.1

III. LAWS REGARDING RESTRAINT AND

SECLUSION ............................................. 1.1

IV. PATIENT ADVOCACY PROGRAMS ............. 1.1

V. PRIVACY RIGHTS OF MENTAL HEALTH

PATIENTS ................................................ 1.1

A. State Law .......................................................1.2

Mental Health Treatment Information

Protected by LPS

.............................................1.2

Mental Health Treatment Information

Not Protected by LPS

....................................... 1.3

Psychotherapist-Patient Privilege

......................1.3

HIV Test Results

................................................1.3

B. Federal Law ....................................................1.3

HIPAA ...............................................................1.3

Federally-Assisted Substance Use Disorder

Programs

..........................................................1.4

1 Overview of Mental Health Laws

1.1

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION

State and federal law recognize that every adult with

the capacity to make health care decisions has the

fundamental right of self-determination over his or her body

and property. A patient’s right to determine the course of

his or her own medical or mental health treatment may

be limited by the government in only the narrowest of

circumstances; for example, to protect the public health

(in the instance of communicable diseases), and to protect

vulnerable persons who may not be able to protect or care

for themselves. In many cases, the latter category includes

persons who may be seriously mentally ill.

Persons who are mentally ill may not recognize their

need for medical or mental health treatment. Indeed, the

very nature of their illness may cause them to resist the

treatment they desperately need.

State and federal laws seek to balance the conflicting

interests of seriously mentally ill persons. In limited

circumstances, the liberty of a person who may be a

danger to self or others or gravely disabled may be

curtailed while that person undergoes mental health

evaluation and/or treatment. Because our system of

government recognizes the seriousness of curtailing a

person’s liberty for even a short time, laws permitting

involuntary hospitalization include strong procedural and

substantive protections to ensure that these citizens do not

become the victims of abuse.

State and federal laws have also been enacted to provide

protections for mental health patients who have not been

involuntarily hospitalized, in recognition of the fact that even

less seriously mentally ill patients may not be completely

able to protect and advocate for themselves.

This manual describes the laws regulating mental health

evaluation and treatment, whether voluntarily or involuntarily

accessed by the patient. This manual also describes the

rights and responsibilities of health care providers who

evaluate and treat mental health patients.

II. THE LANTERMAN-PETRIS-SHORT ACT:

INVOLUNTARY EVALUATION AND PATIENT

RIGHTS

In California, the main law governing mental health

evaluation and treatment is the Lanterman-Petris-Short

(LPS) Act [Welfare and Institutions Code Section 5000

et seq.]. This law, enacted in 1967 (and amended many

times since then), sets forth the procedures that law

enforcement and health care providers must follow prior to

involuntarily detaining a person for mental health evaluation

and treatment. LPS also sets forth the rights of mental

health patients, whether voluntarily or involuntarily admitted,

and contains procedural requirements that must be

followed prior to providing specified types of treatment to

mental health patients. (See chapters 3 and 4 for detailed

information.)

III. LAWS REGARDING RESTRAINT AND

SECLUSION

Both state and federal law protect patients from the

inappropriate use of seclusion and restraint, and establish

requirements to be followed when the use of either

intervention is necessary. A complete discussion of these

requirements is found in chapter 5.

IV. PATIENT ADVOCACY PROGRAMS

Both state and federal law have appointed independent

parties to safeguard the rights of mental health patients.

The laws regarding patient advocates are found in

chapter 4.

V. PRIVACY RIGHTS OF MENTAL HEALTH

PATIENTS

Both the state and federal constitutions recognize the

privacy rights of all individuals. Due to the sensitive nature

of mental health information, many statutes and regulations

have been enacted to provide confidentiality protections.

A brief overview of these laws follows, with more detailed

information in chapter 6.

CHA Mental Health Law Manual 2019

1.2

©CALIFORNIA HOSPITAL ASSOCIATION

The privacy of a patient’s medical information, including the

use of such information and its disclosure to third parties,

is governed by both California and federal law. Specific

state protections for medical information are provided in the

Confidentiality of Medical Information Act (CMIA) [Civil Code

Section 56 et seq.] and, for specified mental health patients,

in LPS [Welfare and Institutions Code Section 5328 et seq.].

Both the CMIA and LPS govern the disclosure to third

parties of patient-identifiable information by hospitals and

other health care providers. These laws generally specify

that health care providers may not disclose information

relating to patients, their care and treatment, unless

the disclosure is specifically authorized by law or by the

patient. In addition, the federal Health Insurance Portability

and Accountability Act (HIPAA) of 1996 protects medical

information, including mental health information, held by

hospitals, physicians, health plans and others.

A. State Law

California law provides heightened protection to information

relating to mental health treatment delivered in institutional

and other specified outpatient settings under LPS. In

addition, the California legislature has seen fit to protect

mental health treatment information through the creation of

a psychotherapist-patient privilege instead of relying on the

physician-patient privilege that applies to routine medical

information but which has numerous exceptions.

MENTAL HEALTH TREATMENT INFORMATION

PROTECTED BY LPS

Since 1969, LPS [Welfare and Institutions Code sections

5328-5328.9] has provided strict confidentiality protection

to information and records obtained in the course of

providing services to:

1. Patients who are treated or evaluated under Welfare

and Institutions Code Sections 5150-5344. These

code sections include involuntary evaluation and

treatment in a designated facility for patients who are

a danger to self or others or gravely disabled. These

patients do not include patients who may be detained

involuntarily for up to 24 hours in a non-designated

hospital on an emergency basis (usually, but not

always, in the emergency department) under Health

and Safety Code Section 1799.111 (chapter 3 contains

a thorough description of all of these patients); and

2. Patients who are receiving voluntary or involuntary

mental health treatment in a:

a. State mental hospital;

b. County psychiatric ward, facility or hospital;

c. University of California psychiatric facility:

Langley Porter Psychiatric Institute and the

Neuropsychiatric Institute at UCLA. Other

University of California mental health services

providers should consult University of California

counsel regarding their status under LPS;

d. Federal hospital, psychiatric hospital or unit;

e. Private institution, hospital, clinic or sanitarium

which is conducted for, or that includes a

department or ward conducted for, the care and

treatment of persons who are mentally disordered;

f. Psychiatric health facility as described in Health

and Safety Code Section 1250.2;

g. Mental health rehabilitation center as defined in

Welfare and Institutions Code Section 5675;

h. Skilled nursing facility with a special treatment

program service unit for patients with chronic

psychiatric impairments (see Title 22, California

Code of Regulations, Sections 51335 and

72443-72475 regarding such special treatment

programs);

i. Community program funded by the

Bronzan-McCorquodale Act. Because it is often

difficult to determine which patients received

services funded under the Bronzan-McCorquodale

Act, each program and its legal counsel

should review any funds received under the

Bronzan-McCorquodale Act to determine

the applicability, if any, of those confidentiality

provisions as a result of such funding [Welfare and

Institutions Code Sections 5600-5778]; and

j. Community program specified in the Welfare and

Institutions Code Sections 4000-4390 and Welfare

and Institutions Code Sections 6000-6008.

LPS also protects information and records obtained

in the course of providing services to persons with

developmental disabilities. In some instances, overlapping

protection is provided to records of such individuals under

the Lanterman Developmental Disabilities Services Act

[Welfare and Institutions Code Sections 4514-4518], whose

provisions are substantially the same as the provisions

of LPS and apply only to persons with developmental

disabilities, primarily in settings other than private hospitals.

Although LPS became law in 1969, its confidentiality

provisions apply to records and information obtained in

the course of providing similar services to patients prior to

1969.

Chapter 1 — Overview of Mental Health Laws CHA

1.3

©CALIFORNIA HOSPITAL ASSOCIATION

More information about the LPS confidentiality protections

is found in chapter 6.

MENTAL HEALTH TREATMENT INFORMATION NOT

PROTECTED BY LPS

Absent some tie-in to one of the above described

programs, LPS does not apply to other mental health

patients or their records, even though those records

may describe mental health treatment similar to what is

protected under LPS. These records are instead subject

to the Confidentiality of Medical Information Act (CMIA)

(see chapter 6). For example, mental health services

provided to a voluntary patient in a private general acute

care hospital that has no psychiatric unit are subject to the

CMIA rather than LPS. Mental health services provided

to an involuntary patient in a private, non-designated

hospital emergency department are subject to the CMIA

rather than LPS. Mental health services provided by a

consulting psychotherapist to a medical patient (who is not

on a psychiatric hold) are subject to the CMIA rather than

LPS. Also, mental health services provided by a private

psychotherapist in the community are subject to the CMIA.

The information generated by these psychotherapists does

not fall under LPS.

More information about CMIA confidentiality protections is

found in chapter 6.

PSYCHOTHERAPIST-PATIENT PRIVILEGE

The psychotherapist-patient privilege applies to patients

covered by both LPS and CMIA. This privilege is relevant

to health care providers only when patient information is

requested for court proceedings, such as in response to a

subpoena or court order, or for a deposition or testimony

in court. Providers don’t need to consider this privilege

when using or disclosing information for treatment or

payment purposes.

Under the psychotherapist-patient privilege [Evidence Code

Section 1010 et seq.], a patient may refuse to disclose,

and prevent other persons (such as the psychotherapist)

from disclosing, the patient’s confidential communication

with a psychotherapist in the context of legal proceedings.

“Confidential communication” refers to information,

including information obtained by an examination of the

patient, transmitted between a patient and his or her

psychotherapist in the course of that relationship and

in confidence by a means which, so far as the patient

is aware, discloses the information to no third persons

other than those who are present to further the interest

of the patient in the consultation, or those to whom

disclosure is reasonably necessary for the transmission

of the information or the accomplishment of the purpose

for which the psychotherapist is consulted. Confidential

communication also includes a diagnosis made and the

advice given by the psychotherapist in the course of that

relationship. [Evidence Code Section 1012]

The term psychotherapist includes psychiatrists,

psychologists, licensed clinical social workers, school

psychologists, marriage and family therapists, professional

clinical counselors, psychological assistants, and various

interns and trainees for such categories. Interestingly,

the definition of psychotherapist also includes persons

authorized, or reasonably believed by the patient to be

authorized, to practice the professions listed above. Thus,

California law seeks to protect the confidentiality of mental

health information disclosed by patients so long as the

patient reasonably believes that the professional receiving

it is a psychotherapist, regardless of whether the person

actually is a psychotherapist or not.

HIV TEST RESULTS

AIDS became recognized as a specific disease in the

United States in 1981. Because of the stigma associated

with the disease then, the California legislature gave

HIV test results extra confidentiality protection in 1985.

These strict laws are still on the books. The confidentiality

protections afforded to HIV test results are discussed in

chapter 6.

B. Federal Law

HIPAA

The state laws described above are augmented by federal

privacy protections pursuant to HIPAA. HIPAA provides

federal protection to all medical information, including

mental health information, held by hospitals, physicians,

health plans and other “covered entities.” With the

exception of a narrow category relating to psychotherapy

notes, HIPAA does not distinguish between mental health

and other forms of medical information. State provisions

that are more stringent than HIPAA continue in effect; as a

result, many of the California protections specific to mental

health information continue to provide additional protection.

HIPAA calls for providers to conform to whichever federal or

state law provides patients with greater privacy protection

or with greater access to their own health information.

Specifically, providers must comply with whichever

provision of each law is more strict. Thus if HIPAA is

more stringent than California law, with the exception of

one provision, providers must comply with HIPAA and

CHA Mental Health Law Manual 2019

1.4

©CALIFORNIA HOSPITAL ASSOCIATION

the provision in state law that gives the individual greater

protection.

HIPAA contains patient privacy rights including the right to

a Notice of Privacy Practices, the right to access medical

information, the right to request amendments, and the

right to an accounting of disclosures, among others. These

rights are discussed in chapter 6.

HIPAA also restricts the use and disclosure of medical

information. These restrictions are described in chapter 6.

Psychotherapy Notes

HIPAA introduced the concept of “psychotherapy notes.”

There is no such concept in California law. “Psychotherapy

notes” means:

notes recorded (in any medium) by a health care provider

who is a mental health professional documenting or

analyzing the contents of conversation during a private

counseling session or a group, joint, or family counseling

session and that are separated from the rest of the

individual’s medical record. (emphasis added)

Most hospitals, skilled nursing facilities, and other

institutional providers will not have psychotherapy notes, as

defined in HIPAA, because the definition requires the notes

to be separate from the rest of the medical record.

The special provisions in HIPAA regarding the use and

disclosure of psychotherapy notes must be complied

with for all patient types in California — patients whose

records are covered by the CMIA, patients whose records

are covered by LPS, and patients receiving services in a

federally-assisted drug or alcohol abuse program.

More information about psychotherapy notes is found in

chapter 6.

FEDERALLY-ASSISTED SUBSTANCE USE DISORDER

PROGRAMS

The federal government has promulgated confidentiality

rules that apply to drug and alcohol abuse treatment

programs. These rules do not apply to all substance

abuse patients; they apply only to patients served by

“federally-assisted programs.” These rules are described in

detail in CHA’s California Health Information Privacy Manual,

available online at www.calhospital.org/privacy.

Chapter 2 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

2 Principles of Consent for Mental

Health Patients

I. INTRODUCTION ....................................... 2.1

II. WHY CONSENT IS NECESSARY ................ 2.1

A. The Patient’s Right to Consent to, or

Refuse, Medical Treatment

..........................2.1

Failure to Obtain Consent: Battery .....................2.1

Failure to Obtain Informed Consent:

Malpractice

.......................................................2.2

Informed Refusal

...............................................2.2

B. The Patient’s Right to Consent to

Hospital Services

...........................................2.2

III. WHEN CONSENT IS NECESSARY .............. 2.2

A. General Rule ..................................................2.2

B. Emergency Treatment Exception ................2.3

Statement of Principle .......................................2.3

Limitations

........................................................ 2.3

Recommended Procedure for Providing

Care Pursuant to the Emergency Medical

Treatment Exception

.........................................2.3

Immunity From Liability

......................................2.4

C. Other Circumstances in Which a

Physician is Not Required to Obtain

Informed Consent

..........................................2.4

Circumstances ..................................................2.4

Procedure

.........................................................2.5

D. Exceptions for Minors ...................................2.5

IV. INFORMED CONSENT .............................. 2.5

A. Elements of Informed Consent ....................2.5

B. Identifying Procedures That Require

Informed Consent

..........................................2.6

C. The Role of the Physician in Obtaining

Informed Consent ..........................................2.6

Process by Which Physician Informs Patient......2.6

Informed Consent Forms That Contain

Medical Information

..........................................2.7

Physician Documentation

..................................2.7

D. The Role of the Hospital in the

Informed Consent Process

...........................2.8

Verification That Informed Consent Has

Been Obtained

.................................................2.8

Obtaining Verification

........................................2.8

Recommended Procedure for Completing

the Hospital’s Form

........................................... 2.8

Procedure When Physician Uses Informed

Consent Forms That Contain Medical

Information

.......................................................2.9

E. Two-Doctor Consent .....................................2.9

F. Duration of Informed Consent ...................... 2.9

G. Patient Doubt or Confusion Concerning

Informed Consent ..........................................2.9

V. HOW CONSENT SHOULD BE OBTAINED .... 2.9

A. Capacity to Consent ....................................2.10

B. Consent Must Be Knowingly Made and

Freely Given

.................................................2.10

C. The Nature of Consent ................................2.10

D. Consent Evidenced in Writing ....................2.10

Recommended Forms ....................................2.10

Principles Guiding Completion of Forms

.......... 2.10

E. Securing Consent When

Communication Barriers Exist

...................2.11

VI. WHO MAY GIVE CONSENT: ADULTS ...... 2.12

A. Adults With Capacity to Make Health

Care Decisions

.............................................2.12

“Adult” Defined ...............................................2.12

“Capacity” Defined

..........................................2.12

Determination of Capacity

............................... 2.12

Documentation

...............................................2.13

Special Circumstances Involving Adults

With Capacity

.................................................2.13

B. Adults Who Have Appointed an

Agent or Surrogate

......................................2.14

Psychiatric Advance Directives ........................ 2.14

Chapter 2 — Contents

CHA Mental Health Law Manual 2019

©CALIFORNIA HOSPITAL ASSOCIATION

C. Adults Under Conservatorship ...................2.15

Caution: Type of Conservatorship .................... 2.15

LPS Conservatorship

......................................2.15

Probate Code Conservatorship

.......................2.15

D. Adults Lacking Capacity and Not

Under a Conservatorship

............................2.17

General Rule ...................................................2.17

Unrepresented Patients in Skilled Nursing

Facilities

.........................................................2.18

Unrepresented Patients in Acute Care

Facilities

..........................................................2.19

Court Order Authorizing Medical Treatment

.....2.20

Temporary or Permanent Conservatorship

.......2.22

Petition for Appointment of Public Guardian

....2.22

Family Members

.............................................2.22

E. Summary of Consent Requirements

Regarding Adults .........................................2.24

VII. WHO MAY GIVE CONSENT: MINORS ........ 2.24

A. Introduction..................................................2.24

B. The Evolution of the Rights of Minors .......2.24

C. Financial Responsibility for Treatment

of Minors

......................................................2.25

D. Privacy Rights of Minors ............................. 2.25

E. Minor’s Disagreement with Parent or

Other Legal Representative Regarding

Treatment

.....................................................2.25

Minor’s Age, Maturity, and Experience With

the Treatment in Question

..............................2.26

Disagreement Regarding the Treatment

Decision

........................................................2.26

F. Where Refusal of Treatment May

Cause Serious Harm to the Minor

..............2.26

Refusal for Religious Reasons .........................2.26

Court Intervention

...........................................2.27

VIII. MINORS LACKING LEGAL AUTHORITY

TO CONSENT ...................................... 2.27

A. Parental Consent for Treatment of

Minors

...........................................................2.27

Minors with Married Parents ............................2.27

Minors with Divorced Parents

..........................2.27

Minors with Stepparents

.................................2.28

Adopted Minors

.............................................. 2.28

Minors Born out of Wedlock

............................2.28

Minors with a Registered Domestic Partner

Parent(s)

......................................................... 2.28

Other Situations Involving Nonbiological

Parents or Multiple Parents

.............................2.29

B. Guardian Consent for Treatment of

Minors

...........................................................2.29

Nonsurgical Treatment ....................................2.29

Surgical Treatment

.......................................... 2.29

Limitations on a Guardian’s Consent

...............2.29

C. Third-Party Consent for Treatment of

Minors

...........................................................2.30

The Caregiver’s Authorization Affidavit .............2.30

Other Third-Party Consent

..............................2.30

D. Special Situations Involving Minors

Lacking Legal Authority to Consent

..........2.32

Minors Placed for Adoption .............................2.32

Children of Minor Parents

................................2.32

Minors Who Are Also Parents

..........................2.32

Minors Who Are Ill or Injured During School

Hours

.............................................................2.32

Nonabandoned Minors Whose Parents Are

Unavailable

..................................................... 2.32

Court Authorization: Minors 16 Years of Age

or Older

......................................................... 2.33

Abandoned Minors

.........................................2.33

Dependents and Wards of the Juvenile Court

.. 2.33

Minors in Custody of a Social Worker or

Probation Officer

.............................................2.34

Minors in Custody of Foster Parents

................2.34

Minors Who Are Suspected Victims of Child

Abuse

.............................................................2.35

Minors Receiving Medication Assisted

Treatment for Opioid Use Disorders

.................2.35

E. Minor’s Disagreement with Parent or

Other Legal Representative Regarding

Treatment

.....................................................2.36

Minor’s Age, Maturity, and Experience

With the Treatment in Question

......................2.36

Disagreement Regarding the Treatment

Decision

........................................................2.36

IX. MINORS WITH LEGAL AUTHORITY TO

CONSENT .............................................. 2.36

A. Introduction..................................................2.36

B. Capacity to Consent .................................... 2.37

C. Emancipation Pursuant to Court Order ..... 2.37

D. Self-Sufficient Minors .................................2.38

Definitions ...................................................... 2.38

Documentation

...............................................2.38

Notifying Parent/Guardian

...............................2.38

E. Minors on Active Duty with U.S. Armed

Forces ...........................................................2.38

F. Married or Previously Married Minors .......2.39

Chapter 2 — Contents

Chapter 2 — Principles of Consent for Mental Health Patients CHA

©CALIFORNIA HOSPITAL ASSOCIATION

FORMS & APPENDICES

1-1

Consent to Surgery or Special Procedure

1-2

Informed Consent to Surgery or Special Procedure

2-1

Self-Sufﬁcient Minor Information

2-2

Caregiver’s Authorization Afﬁdavit

2-3

Authorization for Third Party to Consent to

Treatment of Minor Lacking Capacity to Consent

2-A Consent Requirements for Medical Treatment

of Adults

2-B Consent Requirements for Medical Treatment

of Minors

2-D Health Care Decisions for Unrepresented Patients

2-E Considerations for Revising the Hospital’s

Policy & Procedure Regarding Decision Making

for Unrepresented Patients

4-7

Consent to Receive Antipsychotic Medications

8-1

Conditions of Admission

23-1

Consent for the HIV Test

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

“S” denotes that the form is provided in English and Spanish.

G. Minors in Need of Outpatient Mental

Health Treatment or Residential Shelter

Services

........................................................2.39

Definitions .......................................................2.39

Parental Involvement/Liability

..........................2.39

Privacy Implications

........................................2.40

Limitations

...................................................... 2.40

H. Minors with Drug- or Alcohol-Related

Problems ......................................................2.40

I. Minors Consenting to Other Procedures ..2.41

Minors Receiving Pregnancy or

Contraceptive Care

......................................... 2.41

Communicable Reportable Diseases

............... 2.41

Minor Rape Victims

.........................................2.41

Minor Victims of Sexual Assault

.......................2.41

Minor Victims of Intimate Partner Violence

.......2.42

J. Summary of Consent Requirements

Regarding Minors ........................................2.42

X. TREATMENTS THAT REQUIRE SPECIAL

CONSENT .............................................. 2.42

A. Background ..................................................2.42

B. Antipsychotic Medications .........................2.42

Voluntary Patients ........................................... 2.43

Involuntary Patients

.........................................2.44

Minors in Custody of the Juvenile

Court/Foster Children

......................................2.47

C. Psychosurgery .............................................2.47

Conditions Under Which Psychosurgery

May Be Performed

..........................................2.47

Documentation of Refusal of Psychosurgery

...2.49

Reports of Psychosurgery

...............................2.49

D. Convulsive Therapy and Insulin Coma

Treatment .....................................................2.49

Definitions .......................................................2.49

Involuntary Adult Patients

................................2.49

Voluntary Adult Patients

..................................2.51

Minors Under the Age of 12

............................2.52

Minors Between 12 and 16 Years of Age

.........2.52

Minors 16 and 17 Years of Age

.......................2.52

Committee Review of Treatment

......................2.52

Reports to Local Behavioral Health Director

....2.52

Excessive Use of Convulsive Treatment

........... 2.53

Local Regulation of Convulsive Treatment

Void

................................................................2.53

E. Mandatory Consultation — Outpatient

and Discharge Medications

........................2.53

Discharge Medications ....................................2.53

Outpatient Medications

................................... 2.53

Patient Declines or is Unavailable

....................2.54

Drug Substitutions

..........................................2.54

F. Telemedicine/Telehealth .............................2.54

Consent Required ........................................... 2.54

Additional Requirements for Medi-Cal

Patients

..........................................................2.54

Definitions

.......................................................2.54

G. Consent for HIV Testing ..............................2.55

Required Information .......................................2.55

Informed Consent

........................................... 2.55

Documenting Refusals

....................................2.56

Minors 12 and Older

.......................................2.56

Adults Lacking Capacity and Minors

Under 12

........................................................2.56

Foster Child/Dependent Child of the

Court/Infant in Temporary Custody

..................2.57

Deceased Patient

...........................................2.57

Occupational Exposures

.................................2.57

Criminal Defendants and Inmates of

Correctional Institutions

...................................2.57

Exceptions: When Informed Consent is

Not Required

..................................................2.58

Informing the Patient of Test Results

...............2.59

2 Principles of Consent for Mental

Health Patients

2.1

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION

State and federal laws grant patients certain rights.

Foremost among these is the right for a competent adult

to make his or her health care decisions. A patient does

not lose this right solely because he or she has been

diagnosed with a psychiatric disorder. (See “Required

Statement of California Law,” page4.3.) This chapter

discusses the basic principles of consent, including when

consent is necessary, the difference between “simple”

consent and informed consent, how consent may be

obtained, who may give consent and procedures that

require special consent. (See CHA’s Consent Manual for a

more detailed discussion of these topics with respect to

nonmental health patients.)

II. WHY CONSENT IS NECESSARY

Every competent adult has the fundamental right of

self-determination over his or her body and property.

Individuals who are unable to exercise their rights, such

as minors and incapacitated adults, have the right to

be represented by another person who will protect their

interests and preserve their basic rights. In some cases,

such as involuntary mental health treatment, the law

determines when and how a person will be treated rather

than requiring or permitting a surrogate decision maker to

do so. However, involuntarily hospitalized mental health

patients retain the right to consent to (or refuse) other types

of medical care, unless a judge orders otherwise.

A. The Patient’s Right to Consent to, or Refuse,

Medical Treatment

A person does not give up the right to control what is done

with his or her body and property when seeking care at a

hospital or from a doctor or therapist. Indeed, a physician

has both a legal and an ethical duty to obtain the patient’s

consent, or the consent of the patient’s legal representative,

to medical treatment.

Failure to obtain the proper consent to treatment in

accordance with applicable legal standards may result in

a charge of battery, professional negligence (malpractice),

and/or unprofessional conduct against the physician,

nurses or other health care providers, for even the simplest

of procedures.

If the nature of the treatment involved is complicated, such

that the average layperson would not understand it, or its

risks and benefits (for example, ECT), the recognition of

the patient’s right to self-determination may require that

“informed” consent be obtained. [Cobbs v. Grant, 8 Cal.3d

229 (1972)] The distinction between “simple” consent

and “informed” consent is described in IV.“Informed

Consent,” page2.5. In such a case, the physician must

explain the nature of the treatment, the risks, possible

complications, and expected benefits or effects of the

treatment, as well as the alternatives to the treatment and

their risks and benefits. The physician must also inform

the patient of any potentially conflicting interests he or

she may have, such as research or financial interests.

Informed consent is not required for the performance

of “simple and common” procedures, where the related

risks are commonly understood — for example, typical

outpatient psychotherapy.

FAILURE TO OBTAIN CONSENT: BATTERY

“Battery” is defined legally as an intentional touching of a

person in a harmful or offensive manner without his or her

consent. Consequently, a claim of battery may be made

against a physician or other health care provider who

performs a medical procedure on a patient without the

patient’s consent. A battery may also arise if the patient

consents to a particular procedure and the provider either

exceeds the scope of the consent or performs a different

procedure for which consent was not obtained. It is

important to note that no wrongful intent need be present;

a physician may sincerely intend to aid the patient, but still

be liable for committing a battery. A medical procedure may

be considered to be a “harmful touching” (a battery) even if

it is performed competently with no adverse outcome.

CHA Mental Health Law Manual 2019

2.2

©CALIFORNIA HOSPITAL ASSOCIATION

FAILURE TO OBTAIN INFORMED CONSENT:

MALPRACTICE

A patient’s right to decide whether or not to submit

to medical treatment establishes the physician’s

corresponding duty to inform the patient about the

recommended care so that the patient’s decision is

meaningful. The physician’s duty of disclosure arises from

the fiduciary quality of the physician-patient relationship,

which is based upon the patient’s dependence on the

physician’s specialized knowledge. [Cobbs v. Grant, supra,

at 242]

A physician who fails to adequately disclose the nature

of the procedure and its risks and alternatives may be

liable for negligence (malpractice). In Cobbs v. Grant, the

California Supreme Court established guidelines regarding

the physician’s duty of disclosure that are explained

at length in IV.“Informed Consent,” page2.5. If the

recommended treatment involves the performance of

a “complicated” procedure, a physician must explain the

nature of the treatment, the risks, possible complications,

and expected benefits or effects of the treatment, as well

as the alternatives to the treatment and their risks and

benefits. The physician must also inform the patient of any

potentially conflicting interests he or she may have, such

as research or financial interests. Informed consent is not

required for the performance of “simple and common”

procedures, where the related risks are commonly

understood. Examples of simple and common procedures

include routine blood tests or chest X-rays.

INFORMED REFUSAL

The California Supreme Court has specifically ruled

that the physician’s duty of disclosure includes the

responsibility to inform the patient of the risks of refusing to

undergo a simple and common procedure that has been

recommended [Truman v. Thomas, 27 Cal.3d 285 (1980)].

In the Truman case, the court held that the defendant

doctor breached his duty to his patient by failing to inform

her of the risks resulting from her failure to authorize and

undergo a Pap smear test. The court stated:

If a patient indicates that he or she is going to decline

a risk free test or treatment, then the doctor has

the additional duty of advising of all material risks of

which a reasonable person would want to be informed

before deciding not to undergo the procedure … If

the recommended test or treatment is itself risky,

the physician should always explain the potential

consequences of declining to follow the recommended

course of action. [Id. at 292]

Consequently, depending upon the type of procedure

involved, a physician may be liable for professional

negligence (malpractice) if he or she fails to obtain the

patient’s “informed refusal.”

B. The Patient’s Right to Consent to Hospital

Services

The patient’s personal and property rights may also be

affected by certain activities conducted by the hospital

and its personnel (as distinct from activities conducted by

the physician). Although a hospital is not subject to the

physician’s fiduciary duty to the patient and is not directly

responsible for obtaining the patient’s informed consent

to medical treatment, the hospital is responsible for the

care of its patients and for obtaining their consent, or the

consent of their legal representatives, to those hospital

activities which, without such consent, would impinge on

patients’ rights. Examples of hospital activities that require

consent (although not necessarily informed consent)

include routine blood tests, chest X-rays and nursing

services. Consent to these activities is included in the

model “Conditions of Admission” form (CHA Form 8-1).

A hospital’s failure to obtain a patient’s consent may raise

allegations of battery, false imprisonment, and possibly

other charges.

In summary, the patient’s consent to medical treatment and

hospital services is necessary because, as a general rule,

without such consent, the physician and the hospital have

no authority to subject the patient to medical treatment

or hospitalization and related services. One notable

exception to this general rule involves patients who are a

danger to themselves or others or gravely disabled. The

laws applicable to such persons are discussed in detail in

chapter 3.

III. WHEN CONSENT IS NECESSARY

The general rules for determining when consent is required

are presented below. Subsequent chapters address

the requirements that apply in specific situations. The

exceptions to the general rule are described below.

(See also chapter 3 regarding involuntary mental health

evaluation and treatment.)

A. General Rule

The hospital may not permit any treatment, without the

risk of liability, unless the patient, or a person legally

authorized to act on the patient’s behalf, has consented to

Chapter 2 — Principles of Consent for Mental Health Patients CHA

2.3

©CALIFORNIA HOSPITAL ASSOCIATION

the treatment. The consent may be simple or informed (see

B.“Identifying Procedures That Require Informed Consent,”

page2.6). The exceptions to this general rule are

described below. (See also chapter 3 regarding involuntary

mental health evaluation and treatment.)

B. Emergency Treatment Exception

STATEMENT OF PRINCIPLE

Treatment of a medical emergency may be provided without

consent where the provider reasonably believes that a

medical procedure should be undertaken immediately, and

that there is insufficient time to obtain the consent of the

patient or of a person authorized to consent for the patient.

The law implies consent in these circumstances on the

theory that if the patient were able, or if a qualified legal

representative were present, the consent would be given.

This exception applies to minors as well as to adult patients.

The location of the patient is not relevant to the

determination of whether the patient has a medical

emergency. A patient may be in the emergency department,

yet may not have a medical emergency that obviates the

necessity to obtain consent. Similarly, the patient may be

located in a medical/surgical unit or outpatient department

and develop a medical emergency that requires treatment

to be provided without consent.

California law defines a medical emergency for certain

purposes, such as the provision of immunity to physicians

who provide treatment in emergency situations, the

rendering of care to incompetent adults without court

authorization, and the rendering of care to minors in

custody of the juvenile court. According to these laws, a

medical emergency exists when:

1. Immediate services are required for the alleviation of

severe pain; or

2. Immediate diagnosis and treatment of unforeseeable

medical conditions are required, if such conditions

would lead to serious disability or death if not

immediately diagnosed and treated.

[Business and Professions Code Section 2397(c)(2) and

(3); Probate Code Section 3210(b); Welfare and Institutions

Code Sections 369(d)]

LIMITATIONS

It is important to note that only the emergency condition

may be treated. Treatment that exceeds the necessary

response to the emergency condition may not be rendered

without consent from someone authorized to consent to

treatment on a nonemergency basis.

As a general rule, if a patient or the patient’s legal

representative has validly exercised his or her right to

refuse particular medical treatment, the treatment may not

be provided. Since the emergency treatment exception is

based on the theory of implied consent, it does not apply

when a patient has validly refused medical treatment, and

the emergency arises from the fact that treatment was

not given. However, if the medical emergency is the result

of a condition or injury that is not specifically related to

the condition or injury for which the patient previously

refused treatment, the emergency treatment exception

generally applies.

If evidence exists to indicate that the patient (or the

patient’s legal representative) would refuse the treatment —

such as a wallet card stating that the patient is a Jehovah’s

Witness and refuses blood products — legal counsel

should be consulted.

RECOMMENDED PROCEDURE FOR PROVIDING

CARE PURSUANT TO THE EMERGENCY MEDICAL

TREATMENT EXCEPTION

Determination of Existence and Nature of Emergency

The physician must initially determine whether the patient

has the capacity to give consent, since the emergency

exception applies only when consent cannot be given. In

addition, the scope of the emergency must be determined,

and any treatment provided must be limited to that

necessary to alleviate the severe pain, or to prevent the

patient’s severe disability or death. The treatment provided

may be a matter of first aid, temporary medical care in lieu

of surgery, or actual surgical procedures. However, only

the emergency medical condition may be treated under

this exception.

Consultation

There is no legal requirement that the physician consult a

second physician to confirm the existence of an emergency.

However, such consultation may be required by hospital

or medical staff policy, if desired. Otherwise, the treating

physician has discretion to determine if consultation is

advisable to confirm the existence of the emergency.

Otherwise Obtaining Consent

The possibility of obtaining consent from the patient, if he

or she is able to give consent (e.g., a conscious adult with

capacity), or another person legally capable of consenting,

CHA Mental Health Law Manual 2019

2.4

©CALIFORNIA HOSPITAL ASSOCIATION

should be assessed and weighed against the possibility

that a delay in treatment to obtain consent would result in

the patient’s severe disability, death or continuing severe

pain. If a delay in treatment for purposes of obtaining

consent would not jeopardize the condition of the patient,

treatment must be delayed and consent obtained pursuant

to the guidelines contained in this manual.

Documentation in the Medical Record

The physician should document his or her determination

that an emergency exists (e.g., “The immediate

treatment of the patient is necessary because ...”). The

physician does not sign a consent form on behalf of the

patient. Consent is implied by law from the existence of

the emergency.

If the physician has obtained a consultation, the consulting

physician should similarly document his or her findings and

opinion in the patient’s medical record.

IMMUNITY FROM LIABILITY

The emergency treatment exception has been recognized

in several statutes that provide immunity to a physician who

does not inform a patient and obtain his or her consent

to treatment under certain emergency circumstances.

Business and Professions Code Section 2397 provides

that a physician is not liable for civil damages for injury

or death caused in an emergency situation occurring in

his or her office or in a hospital on account of a failure to

inform a patient of the possible consequences of a medical

procedure where the failure to inform is caused by any of

the following:

1. The patient was unconscious.

2. The medical procedure was undertaken without

the consent of the patient because the physician

reasonably believed that a medical procedure should

be undertaken immediately and that there was

insufficient time to fully inform the patient.

3. A medical procedure was performed on a person

legally incapable of giving consent, and the physician

reasonably believed that a medical procedure should

be undertaken immediately and that there was

insufficient time to obtain the informed consent of a

person authorized to give such consent for the patient.

This law applies only to lawsuits for injuries arising because

of a physician’s failure to inform, not to actions for a

physician’s negligence in rendering or failing to render

treatment. Business and Professions Code Section 1627.7

provides similar protections for dentists.

In addition, Health and Safety Code Section 1317 provides

immunity from liability for an act or omission (which

includes the failure to obtain consent) that occurs while

a rescue team established by a licensed health facility or

government entity attempts to resuscitate a person who is

in immediate danger of death or serious injury or illness, if

the rescue team acts in good faith. This immunity extends

to the facility, its officers, staff, and employees.

C. Other Circumstances in Which a Physician is

Not Required to Obtain Informed Consent

CIRCUMSTANCES

In Cobbs v. Grant, the court noted two special

circumstances in which a physician is not required to

disclose all of the information that is required to obtain the

patient’s informed consent.

First, the court indicated that a physician need not disclose

the risks of the recommended treatment when the patient

has requested that he or she not be so informed.

Second, a physician is not required to disclose information

to the patient if such disclosure would seriously harm,

rather than benefit, the patient. In this regard, the

court explained:

A disclosure need not be made beyond that required

within the medical community when a doctor can

prove by a preponderance of the evidence [that the

doctor] relied upon facts which would demonstrate to

a reasonable [person that] the disclosure would have

so seriously upset the patient that the patient would

not have been able to dispassionately weigh the risks

of refusing to undergo the recommended treatment.

[Cobbs v. Grant, 8 Cal.3d at 245-246]

This second exception to the physician’s duty of disclosure

is commonly known as the “therapeutic privilege.”

Neither exception should be relied upon by the physician

unless it is extremely clear that the facts and circumstances

of the case justify invoking it. The court stated that these

two exceptions constitute situations in which a physician

who fails to make the disclosure required by law may

defend his or her actions, and specified that any such

defense “must be consistent with what has been termed

the ‘fiducial qualities’ of the physician-patient relationship.”

The physician’s decision to not disclose information will

be measured in terms of what “a reasonable person”

would have done, not what another physician would have

done. Also, the court’s discussion about the exceptions

generally referred to the disclosure of information about

the potential risks of the recommended procedure and did

Chapter 2 — Principles of Consent for Mental Health Patients CHA

2.5

©CALIFORNIA HOSPITAL ASSOCIATION

not specifically state that a physician may be justified in not

disclosing other information, such as that pertaining to the

diagnosis, the nature of the recommended treatment, its

expected benefits or effects, alternatives and any potentially

conflicting interests of the physician (such as research or

financial interests).

The use of these two exceptions should be very rare in

the case of adult patients who have the capacity to make

health care decisions. It is not clear that either exception

is available in the case of a patient who lacks the legal

authority to consent to his/her own care or the capacity

to make a health care decision. If the parent, guardian, or

other legal representative who ordinarily would make health

care decisions for a minor or patient who lacks capacity

requests not to be given certain information, or is not able

to emotionally handle the information, legal counsel should

be consulted. In such situations, it should be determined

whether a different decision maker would be appropriate.

PROCEDURE

If the physician determines that the patient specifically

asked to not receive information about the proposed

procedure or treatment, or that the “therapeutic privilege”

applies, the physician should fully document in the

patient’s medical record the facts that resulted in this

conclusion. The physician should also document what, if

any, information was disclosed to the patient. It may be

appropriate for the physician to discuss the information that

was not disclosed to the patient with the patient’s closest

available relative (if the patient consents to the release

of medical information to, and the involvement of, the

relative) and secure that person’s approval for proceeding

with the procedure in view of this full disclosure. The

physician should document in the patient’s medical record

the nature and results of any such consultation with the

patient’s family.

The hospital’s role is to verify, by checking the

documentation in the medical record, that the physician’s

failure to disclose information resulted from a determination

that one of the two exceptions applied. The hospital may

wish to refer such cases to hospital administration or risk

management for review prior to beginning the procedure.

D. Exceptions for Minors

Consent is not required in very limited situations involving

minors who are suspected victims of child abuse or

who become sick or injured at school. (See D.“Special

Situations Involving Minors Lacking Legal Authority to

Consent,” page2.32 for further information.)

IV. INFORMED CONSENT

A. Elements of Informed Consent

As discussed above, the California Supreme Court held in

Cobbs v. Grant, that a patient must give “informed consent”

prior to certain medical treatment. The court stated that

in order to give informed consent, the patient must be

informed of:

1. The nature of the procedure;

2. The risks, complications, and expected benefits or

effects of the procedure;

3. Any alternatives to the treatment and their risks

and benefits.

In addition, a later court held that the patient must also be

informed of any potentially conflicting interest the physician

may have (such as research or financial interests).

The Cobbs court explained that:

The scope of the physician’s communications to the

patient, then, must be measured by the patient’s need,

and that need is whatever information is material to

the decision. Thus the test for determining whether a

potential peril must be divulged is its materiality to the

patient’s decision. [Cobbs v. Grant, supra, 8 Cal.3d

229, 245]

In a subsequent case, the court clarified its definition of

“material information” as follows:

[T]hat which the physician knows or should know would

be regarded as significant by a reasonable person in the

patient’s position when deciding to accept or reject the

recommended procedure…To be material, a fact must

also be one that is not commonly appreciated. . . . If the

physician knows or should know of a patient’s unique

concern or lack of familiarity with medical procedures,

this may expand the scope of required disclosure.

[Truman v. Thomas, 27 Cal.3d 285, 291 (1980)]

The Centers for Medicare & Medicaid Services (CMS)

Conditions of Participation (CoP) Interpretive Guidelines

(Tag A-0466) state that material risks could include risks

with a high degree of likelihood but a low degree of severity,

as well as those with a very low degree of likelihood but

high degree of severity. The Interpretive Guidelines also

state that hospitals are free to delegate to the responsible

practitioner (the physician, podiatrist or dentist) who

uses the available clinical evidence as informed by the

practitioner’s professional judgment, the determination

of which material risks, benefits and alternatives will be

discussed with the patient. The Interpretive Guidelines can

be found at www.cms.gov/Regulations-and-Guidance/

Guidance/Manuals/Internet-Only-Manuals-IOMs.html,

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then Publication 100-07 State Operations Manual, then

“Appendices Table of Contents.” The State Operations

Manual has several appendices that apply to hospitals,

for example, A (hospitals), AA (psychiatric hospitals), V

(EMTALA), and W (critical access hospitals).

For some procedures and treatments, the California

legislature has passed laws requiring the physician to give

specified additional information. Some of these treatments

include electroconvulsive therapy, psychosurgery, and

antipsychotic medications. (See X.“Treatments That

Require Special Consent,” page2.42.)

A physician is not required to inform a patient about

treatment that cannot legally be administered in California

[Schiff v. Prados, 92 Cal.App.4th 692 (2001)]. A physician

must inform a patient about alternative treatments only

to the extent required for competent practice within the

medical community. [Vandi v. Permanente Medical Group,

7 Cal.App.4th 1064 (1992)] For example, a physician need

not discuss coffee enemas with patients.

In certain circumstances the patient’s physician is not

required to disclose all information that would otherwise be

required to be given to the patient to obtain the patient’s

informed consent. (See C.“Other Circumstances in Which

a Physician is Not Required to Obtain Informed Consent,”

page2.4.)

B. Identifying Procedures That Require Informed

Consent

“Informed” consent, as distinguished from “simple”

consent, is not required for all medical treatments. The

Cobbs court held that treatments or procedures that are

“complicated” require that informed consent (as described

above) be obtained. Procedures that are “simple and

common” do not require informed consent (although they

still require consent, usually obtained in the “Conditions

of Admission” form (CHA Form 8-1)). The court stated

that a physician is not expected to explain risks that are

commonly understood to be remote. The performance of

a blood count was cited as an example of a simple and

common procedure.

The determination of which procedures are “complicated”

and, therefore, require informed consent, is medical in

nature. It is the position of CMS that medical staff policies

should address which procedures and treatments require

written informed consent. (See Hospital Interpretive

Guidelines, Tag A-0466.) The medical staff bylaws

themselves would not seem to be the best place for this

information. The rules and regulations or a policy and

procedure would seem to be better choices. However it is

done, it should be appropriately documented and approved

by the medical staff executive committee. Procedures for

which the law specifically requires informed consent should

also be included (see X.“Treatments That Require Special

Consent,” page2.42). To determine whether a procedure

is “simple and common” or “complicated,” the medical

staff should consider whether the average layperson would

understand the nature of the procedure and its risks and

benefits.

C. The Role of the Physician in Obtaining

Informed Consent

It is the physician’s responsibility to determine the patient’s

capacity and to obtain informed consent. Generally, the

physician who performs the procedure is responsible

for obtaining the patient’s consent. If a nonphysician will

perform the procedure, then the ordering physician is

responsible for obtaining consent. If more than one doctor

is involved, they can determine together which one will

obtain consent, or hospital policy may determine which

physician will obtain consent. Hospital personnel should

not be involved in providing the information necessary to

secure the patient’s informed consent or responding to the

patient’s questions concerning the procedure. The duty

to provide this information and obtain informed consent

is the exclusive duty of the physician. Nurses and other

hospital personnel may provide general patient or family

education, however.

PROCESS BY WHICH PHYSICIAN INFORMS PATIENT

Physicians may use verbal discussion, written information,

audio and video recordings to give the patient the

information to the patient or legal representative necessary

to obtain informed consent.

The physician should also always give the patient a

personal explanation of the procedure or treatment, its

possible complications, risks and alternatives. This verbal

discussion gives the patient the opportunity (as required

by the legal doctrine of informed consent) to ask questions

about the information presented by the physician. A

patient’s consent given after a discussion with the physician

and the opportunity for inquiry is more likely to be truly

“informed.”

Written or Recorded Patient Information

Written handouts and audiovisual recordings may play

an important part in the informed consent process since

they give the patient the information in a form that may be

reviewed later. However, the use of the hospital’s name or

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the distribution of information by hospital personnel might

cause a patient to conclude that the hospital employs

the physician and/or is responsible for the physician’s

provision of medical services, including the physician’s

duty to provide the patient with information about the

procedure. Thus, any written information sheets, audio or

video recordings, etc. that contain medical information that

a physician is responsible for giving to a patient to obtain

informed consent should be designated as the physician’s

information. If the information contains the hospital’s

name, or hospital personnel are involved in distributing the

information, describing the procedure to the patient, or

responding to the patient’s questions about the procedure

or the information, this could suggest that the physician is

a hospital agent or otherwise confuse a patient regarding

the legal responsibility for obtaining informed consent. For

these reasons, involvement by the hospital or its staff is

discouraged.

If a hospital chooses to distribute such information or put

the hospital’s name on information sheets, etc., it should be

clearly noted that the form or information is being provided

by the hospital as a courtesy and that the patient should

review the information with his or her physician. It should

also clearly state that the physician is not the employee or

agent of the hospital (if that is the case).

INFORMED CONSENT FORMS THAT CONTAIN MEDICAL

INFORMATION

Some physicians prefer to give patients an “informed

consent” form that contains within it the medical

information the patient must be provided. This procedure

promotes complete disclosure and allows patients to

study the information. While such forms should not be

prepared or distributed by hospital personnel for the

reasons discussed above, forms may be used by hospitals

to verify and document that informed consent was given by

each patient.

A physician who prepares an informed consent form

that contains the medical information which must be

provided to the patient may use as a guide the “Informed

Consent to Surgery or Special Procedure” form (CHA

Form 1-2). The physician should include the name of the

procedure(s), nature of the treatment, its expected benefits

or effects, its possible risks and complications, and any

alternatives to the proposed treatment and their possible

risks and complications. The physician should also include

any potentially conflicting interests, such as research or

financial interests.

It is often not possible to include all information relevant

to a particular patient’s condition on a written form.

Accordingly, the form must either be supplemented through

verbal discussions with the patient and/or by written

additions containing the information. For example, the

risks of a treatment will differ depending upon whether the

patient is a young, healthy person; a pregnant woman; or

an elderly, brittle diabetic. A standardized list of risks may

be used, but must be supplemented with any additional

information pertinent to the particular patient.

Written forms are helpful only if they are understood by

the patient. Therefore, it is important that the medical

information included in the forms be written in clear,

simple, and easily understood terms. In addition, the forms

should clearly state that the patient should ask any and all

questions he or she may have concerning the proposed

treatment.

Also, some forms may ask patients to respond to

questions such as: “Have you been given all the

information you desire about the proposed treatment?”

or “Do you understand the nature of the proposed

treatment, its expected benefits and the possible risks

and complications?” However, if this type of question is

included in a consent form, the physician must verify it has

been answered affirmatively on the form; otherwise, the

patient will have established in the document that he or

she did not give informed consent. The format provided

in CHA Form 1-2 does not include such questions; rather,

it requires the patient to acknowledge receipt of the

relevant information.

PHYSICIAN DOCUMENTATION

It is recommended that the physician carefully document

in the hospital medical record that a discussion was held

with the patient and that informed consent was obtained.

This documentation can be accomplished in a variety of

ways — through a certification on the consent form itself

(see the certifications on the“Consent to Surgery or Special

Procedure” form (CHA Form 1-1)), through a progress

note in the patient’s record, through a note in the patient’s

history and physical, or through documentation provided

from the physician’s office (e.g., an informed consent

form signed by both the patient and the physician). The

physician should also place in the medical record a copy

of any written material provided to the patient. Any special

circumstances should also be documented.

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D. The Role of the Hospital in the Informed

Consent Process

VERIFICATION THAT INFORMED CONSENT HAS BEEN

OBTAINED

The hospital’s role in the consent process should be

limited to verifying that the physician obtained and properly

documented the patient’s informed consent before the

physician is permitted to perform the medical procedure.

The physician, not the hospital, has the duty to disclose all

information relevant to the patient’s decision and to obtain

the patient’s informed consent.

Obtaining informed consent involves the practice of

medicine, in which the hospital and its employees should

not intervene. Hospital employees are not licensed

or qualified to adequately explain the various types of

medical procedures to the patient, why the physician has

recommended a particular procedure over another, and

to respond to the patient’s potential questions. Only the

physician has both the technical medical knowledge and

the knowledge of the particular patient’s history and current

condition necessary to assure that an adequate disclosure

of information, including information about the risks of

treatment, has been given to the patient and that proper

responses have been given to the patient’s questions.

Although hospital personnel should not be responsible for

securing the patient’s informed consent (or for providing

the information required to secure the patient’s informed

consent), it is foreseeable that a patient may ask questions

of hospital employees who perform a procedure pursuant

to the doctor’s orders. Hospital personnel generally may

answer such questions. However, if it appears that the

patient has significant questions about the nature of the

procedure, its benefits or risks which indicate that the

patient may not have been given sufficient information

about the procedure or did not understand the information,

hospital personnel should contact the patient’s physician

to allow him or her to assure that the patient indeed gave

informed consent to the procedure.

OBTAINING VERIFICATION

The form “Consent to Surgery or Special Procedure” (CHA

Form 1-1) or a similar form should be used after informed

consent is given by the patient to the physician. This form

serves the dual purposes of:

1. Assuring that the physician obtained informed consent

from the patient for the contemplated procedure, and

2. Documenting that the patient is aware of the right

to give informed consent or refusal to the procedure

recommended by the physician.

By signing this form, the patient acknowledges that the

physician adequately explained the procedure to the

patient and gave the patient all the information he or she

desired. This form does not list the risks of the procedure

nor alternative therapies; thus, if this form is used by the

hospital, an additional form, prepared by the physician,

which lists the risks and alternatives (signed by the

patient and the physician) must also be included in the

medical record.

NOTE: The form itself is not informed consent; it is

evidence for both the hospital and the physician that

informed consent was obtained. The form is not a

substitute for the critical role of the attending physician in

the informed consent process.

RECOMMENDED PROCEDURE FOR COMPLETING THE

HOSPITAL’S FORM

The consent form should include the name of the patient,

and when appropriate, the patient’s legal representative.

Identification of the Procedure or Treatment

The medical terminology for the procedure and the type

of anesthesia to be used (if applicable) should be entered

into the space provided on the form. In addition, it is

recommended that a description of the procedure or

treatment in lay terminology be entered in the space along

with the medical terminology to provide a more meaningful

description of the procedure.

If lay terminology is used, there should be consistency

within an institution in describing such procedures. The

medical staff and nursing staff may want to establish

a glossary of lay terms corresponding to the medical

terminology for procedures performed in the facility.

Identification of the Practitioner(s)

In the Hospital Interpretive Guidelines, CMS states that

the consent form include the name of the practitioner

performing the procedure or administering the treatment.

The Guidelines also recommend, but do not require, that

the form state, if applicable, that:

1. Physicians other than the operating practitioner,

including but not limited to residents, will perform

important tasks related to the surgery, in accordance

with the hospital’s policies (and, in the case of

residents, based on their skill set and under the

supervision of the responsible practitioner); and

2. Qualified medical practitioners who are not physicians

will perform important parts of the surgery or

administration of anesthesia within their scope of

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practice, as determined under state law and regulation,

and for which they have been granted privileges by the

hospital. (See Hospital Interpretive Guidelines, Tags

A-0466 and A-0955.)

This supersedes CMS’ previous position that informed

consent forms must state the names of practitioners other

than the primary surgeon who will perform important

aspects of the surgical procedure.

Medical Information

The Hospital Interpretive Guidelines require that informed

consent forms include a statement that the procedure or

treatment, including the anticipated benefits, material risks,

and alternative therapies, was explained to the patient

or the patient’s legal representative. The Guidelines also

recommend, but do not require, that the form include

an indication or list of the material risks of the procedure

or treatment that were discussed with the patient or the

patient’s legal representative. (See Hospital Interpretive

Guidelines, Tag A-0466.) This reverses CMS’ previous

position that the form itself must include all information

about the procedure or treatment and its alternatives.

PROCEDURE WHEN PHYSICIAN USES INFORMED

CONSENT FORMS THAT CONTAIN MEDICAL

INFORMATION

Review and Approval of Forms

Before a form is relied upon by the hospital as evidence

that the physician secured the patient’s informed consent,

the hospital may wish to review it to see that it contains all

the information that must be provided to the patient.

When the physician uses an informed consent form that

contains medical information that has been approved by

the hospital and appropriate medical staff committees, the

hospital may verify that the patient gave informed consent

by relying on this form. The hospital should check the

original form signed by the patient to ensure it is complete

and that the patient or the patient’s legal representative

properly completed the document. The original consent

form should be placed in the patient’s medical record. The

patient should be given a copy of the consent form if this

has not already been done.

E. Two-Doctor Consent

A common misconception related to consent law is that

if two doctors agree that a patient would benefit from a

particular procedure or treatment, the two doctors may

consent on behalf of the patient. This is a myth.

There is no provision in California or federal law that permits

two doctors to consent on behalf of a patient. This is true

whether the patient has the capacity to make health care

decisions or not. The patient or a legal representative

must provide consent to medical treatment, except in

an emergency or as otherwise permitted by law. In an

emergency, patient consent is implied by law (see III.“When

Consent is Necessary,” page2.2).

F. Duration of Informed Consent

A patient’s consent to treatment remains effective until the

patient revokes it or until circumstances change so as to

materially affect the nature of, or the risks of, the procedure

and/or the alternatives to the procedure to which the

patient consented.

For example, if a patient has been admitted to a hospital

for a specific course of treatment, or a specific operation,

but in the course of studying the patient several days

elapse and the anticipated treatment or operation changes

considerably, the physician should obtain a new informed

consent. Similarly, if the patient’s condition changes or

new information is learned about the patient’s condition,

resulting in increased or different risks to the patient from

the contemplated procedure or treatment, a new consent

should be obtained.

G. Patient Doubt or Confusion Concerning

Informed Consent

If, when the verification of consent form is presented to the

patient, he or she voluntarily indicates doubt or confusion

about the procedure and consequently the question is

raised whether an informed consent was obtained, the

physician should be contacted immediately. The physician

should obtain the patient’s informed consent (again, if

necessary). Under no circumstances should an employee

of the hospital attempt to obtain the patient’s informed

consent in such a situation.

V. HOW CONSENT SHOULD BE OBTAINED

Obtaining informed consent is a communication process,

not a signature on a paper form. Getting patients to

sign consent forms does not mean they have read them

or that they understand them. While documentation is

important, and often required, the ultimate goal of patient

understanding must also be met.

All requirements regarding translation and interpreter

services must be followed (see E.“Securing Consent When

Communication Barriers Exist,” page2.11).

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A. Capacity to Consent

The patient or legal representative must be conscious and

have the capacity to understand the purpose and effect of

the decision to be made and the form to be signed. It is

the treating physician’s responsibility to determine whether

the patient has this capacity. (See ““Capacity” Defined,”

page2.12.)

B. Consent Must Be Knowingly Made and Freely

Given

To be effective, consent must be made knowingly and given

freely. Consent must not be obtained through the exercise

of duress or coercion.

C. The Nature of Consent

Consent may be express (oral or written statement) or

implied (for example, by voluntary submission to the

procedure or by the existence of a medical emergency).

Express consent should be obtained whenever possible.

D. Consent Evidenced in Writing

The “Conditions of Admission” form contains a clause

that documents the patient’s consent to noncomplicated

procedures such as routine blood tests, X-rays, nursing

and other services that may be performed during the

patient’s hospitalization, outpatient visit, or emergency

room treatment. (See CHA Form 8-1 “Conditions of

Admission.”)

In certain instances, particularly when the patient is

authorizing complicated medical treatment or refusing

recommended care, it is recommended that the patient’s

consent (or refusal) be evidenced in writing. If a dispute

arises as to whether consent was given, proof of consent is

more readily established when it is in writing.

California law requires that consent for some procedures

be documented in writing. These laws are discussed in

X.“Treatments That Require Special Consent,” page2.42.

In addition, Title 22, California Code of Regulations, Section

70223(d)(3) requires that, prior to nonemergency surgery,

the person responsible for administering anesthesia, or

the general surgeon if a general anesthetic will not be

administered, must ascertain that a written informed

consent form for the contemplated surgical procedure

is in the medical record. All necessary consent forms

must be made a part of the medical record. [Title 22,

California Code of Regulations, Sections 70749, 70527(d)

and 71549]

CMS requires each medical staff to review those

procedures that are performed at the facility and identify

which require informed consent. For those procedures

that are identified as requiring informed consent, written

verification that informed consent was given should be

obtained and placed in the patient’s medical record.

[Hospital Interpretive Guidelines, Tag A-0466] The CoP

Interpretive Guidelines state that a properly executed

informed consent form contains the signature of the patient

or the patient’s legal representative [Hospital Interpretive

Guidelines, Tag A-0466].

The Hospital Interpretive Guidelines state that a properly

executed informed consent form contains the signature of

the patient or the patient’s legal representative [Hospital

Interpretive Guidelines, Tag A-0466].

In addition, Title 22, California Code of Regulations, Section

70223(d)(3) requires that, prior to nonemergency surgery,

the person responsible for administering anesthesia, or

the general surgeon if a general anesthetic will not be

administered, must ascertain that a written informed

consent form for the contemplated surgical procedure

is in the medical record. Title 22, California Code of

Regulations, Sections 70749, 70527(d) and 71549 require

that all necessary consent forms be made a part of the

medical record.

RECOMMENDED FORMS

In order to provide written evidence of consent, various

forms have been developed for use by hospitals and

physicians. These forms are included and discussed in this

manual. In addition, as discussed in subsequent chapters,

several statutes and regulations require specific information

to be included in consent forms or require the use of

prescribed forms under certain circumstances. The forms

included in this manual fulfill these requirements.

PRINCIPLES GUIDING COMPLETION OF FORMS

Signature of Person Consenting

The hospital should accept the name given by the patient

unless there are legitimate business reasons to demand a

specific name or a name in a specific form (for example, the

name required by third-party payers).

When a person other than the patient signs a form, the

relationship to the patient (for example, parent, guardian,

conservator) should be noted below the signature, and

a brief statement included as to why the patient cannot

personally sign the form. Hospitals should consider asking

the patient to also sign when able, if the inability to sign

was due to a temporary condition.

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If the person who is required to sign is physically unable

to write his or her name, but has mental capacity to make

the decision, the person’s mark should be obtained. This

is done by the hospital representative first writing the

person’s name in full and then having the person place an

“X” beneath it. Two people should witness the signer place

his or her mark on the consent form, and they should sign

the consent form as witnesses.

Patient Declines to Sign Due to Religious Beliefs

Some patients may decline to sign forms on certain days

with religious significance. For example, the Orthodox

Jewish faith proscribes any writing on the Jewish Sabbath

(sundown Friday to sundown Saturday) and recognized

Jewish holidays. The wishes of such patients should

be respected.

In these instances it is important to remember that oral

consent to treatment is, in most cases, as valid as written

consent. Consent forms and acknowledging signatures

merely document consent. However, when a surgical

procedure is involved, California law requires that the

anesthesiologist or surgeon assure that the patient’s

medical record contains informed consent, in writing,

prior to commencing surgery [Title 22, California Code

of Regulations, Section 70223(d)]. When it is possible to

accept the patient’s oral consent, the informed consent

process is the same as when written consent is obtained.

In such cases, the patient should read the relevant

documents and acknowledge the information given.

The patient should then orally consent to or refuse the

recommended treatment. The oral consent should

be documented in the patient’s medical record and

appropriate written documentation obtained from the

patient later, with an appropriate explanation for the date

of the patient’s signature. The following note should be

entered and dated at an appropriate place on each form:

This patient read this document on this date, but

declined to sign it today for religious reasons. The

patient agreed to sign this document tomorrow or as

soon thereafter as his/her religious faith will allow.

This statement should be initialed by a second hospital

employee who witnessed the consent discussion.

Time and Date of Signature

The time and date on the form should be the time and

date the form is signed by the patient or the patient’s legal

representative, not the time and date of the procedure

or operation.

Witnesses

Consent forms need not be notarized. It is recommended

(but not required) that one hospital employee serve as

a witness to the signature by the patient. (However, an

advance health care directive requires two witnesses.)

Unless otherwise indicated, admitting personnel, registered

nurses, licensed vocational nurses, ward clerks, or other

hospital employees of similar responsibility may act as

witnesses to hospital forms. All witnesses should be

18 years of age or over.

Each witness should be present when the form is signed

by the patient or the patient’s legal representative. The

witness need not be present during the discussion between

the patient and the physician about the procedure — the

witness only needs to observe the patient signing the

document. The witness should indicate that he or she

witnessed the signing by placing his or her signature in the

designated space on the form.

Copies of Consent Forms

The original consent form should always be placed in the

patient’s medical record.

In certain circumstances the law requires that a copy of the

consent form be given to the patient. Such requirements

are discussed throughout this manual.

In addition, it is recommended, but not legally required,

that a copy of the facility’s “Conditions of Admission” (CHA

Form 8-1), or other similar document, and a copy of the

“Informed Consent to Surgery or Special Procedure” (CHA

Form 1-2) always be given to the patient.

A copy of any other form signed by the patient should be

given upon request.

E. Securing Consent When Communication

Barriers Exist

If a patient or his or her legal representative cannot

communicate with the physician because of language

or communication barriers, the physician, with the

hospital’s assistance, should arrange for an interpreter.

The interpreter’s responsibilities will include translating the

information regarding the recommended medical treatment

that the patient or the patient’s legal representative needs

to receive before deciding whether to give consent, as well

as instructions regarding medical care.

Similarly, vital documents, including consent forms,

presented by hospital staff to a patient must be written in a

language that the patient can understand or translated into

such a language.

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Both state and federal laws contain detailed requirements

regarding interpreter and translator services. (See CHA’s

Consent Manual, chapter 1, for further information.)

VI. WHO MAY GIVE CONSENT: ADULTS

An adult patient generally has the right to make his or her

own health care decisions. However, in some cases, a

patient’s physical or mental condition may render him

or her unable to consent to medical treatment, either

temporarily or permanently. If the patient lacks “capacity,”

someone else must consent to the treatment on his or her

behalf, except in emergency situations (see B.“Emergency

Treatment Exception,” page2.3).

For purposes of consent for medical treatment, an adult

patient may be in one of the following categories:

1. Adult with capacity.

2. Adult who has appointed an agent or surrogate to

make health care decisions (see chapter 3 of CHA’s

Consent Manual regarding agents and surrogates).

An agent or surrogate may be named in an advance

health care directive or other similar document;

surrogates may be appointed verbally by the patient.

3. Conservatee specifically adjudicated to lack the

capacity to make health care decisions.

4. Conservatee not specifically adjudicated to lack the

capacity to make health care decisions.

5. Adult lacking capacity without a conservator, agent, or

surrogate for health care decisions (whether the patient

temporarily or permanently lacks capacity).

The laws applicable to consent for inpatient mental health

admission and treatment for adults, both voluntary and

involuntary, are found in chapter 3. The laws regarding

involuntary outpatient mental health treatment for adults

are also described in chapter 3. There are no special

requirements regarding voluntary outpatient mental health

treatment. Many mental health patients have concurrent

medical conditions and may need medical treatment

requiring informed consent. This part of the manual

addresses those circumstances.

A. Adults With Capacity to Make Health Care

Decisions

An adult patient with capacity has the right to make

his or her own health care decisions [Probate Code

Section 4670]. This includes consenting to medical

treatment and refusing medical treatment, including

life-sustaining treatment.

“ADULT” DEFINED

For the purpose of making health care decisions, an “adult”

is a person who has reached the age of 18, or a minor who

has entered into a valid marriage or domestic partnership

(whether or not it was later terminated by divorce or death

of the spouse/partner), who is on active duty with the

armed forces of the United States of America, or who

has been declared emancipated pursuant to Family Code

Section 7122 et seq. [Family Code Section 7002]. (See

IX.“Minors with Legal Authority to Consent,” page2.36.)

“CAPACITY” DEFINED

A patient is presumed to have the capacity to make a

health care decision, to give or revoke an advance directive,

and to designate or disqualify a surrogate [Probate Code

Section 4657]. However, if there are indications that the

patient lacks the capacity to make health care decisions,

the primary physician should evaluate the patient.

“Capacity” means a person’s ability to understand the

nature and consequences of a decision and to make

and communicate a decision, and includes in the case

of proposed health care, the ability to understand its

significant benefits, risks, and alternatives [Probate Code

Section 4609; see also Probate Code Sections 812 and

813].

The primary physician usually makes the determination

that a patient lacks or has recovered capacity, or that

another condition exists that affects an individual health

care instruction or the authority of an agent or surrogate.

However, the patient may state in the advance directive

that someone else is required to make this determination.

[Probate Code Section 4658]

DETERMINATION OF CAPACITY

The primary physician should determine whether a

patient has the capacity to make health care decisions

[Probate Code Section 4658]. The “primary physician”

is the physician designated by the patient to have

primary responsibility for the patient’s health care, or, in

the absence of such a designation or if the designated

physician is not reasonably available or declines to act as

the primary physician, any physician who undertakes the

responsibility [Probate Code Section 4631]. A psychiatric

consult is not required, although it may be useful in unusual

situations, particularly when the patient has a serious

mental illness or another psychiatric or neurologic condition.

A physician determining a patient’s capacity to give

informed consent may wish to consider the same factors

a judge would be required to consider in the context of

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judicial determination of incapacity. A judge would evaluate

whether a patient is able to do all of the following:

1. Respond knowingly and intelligently to queries about

the proposed medical treatment.

2. Participate in the treatment decision by means of a

rational thought process.

3. Understand all of the following items of minimum

basic treatment information with respect to the

proposed treatment:

a. The nature and seriousness of the illness, disorder

or defect that the person has.

b. The nature of the medical treatment that is

being recommended by the person’s health

care providers.

c. The probable degree and duration of any benefits

and risks of any medical intervention that is

being recommended by the person’s health

care providers, and the consequences of lack

of treatment.

d. The nature, risks and benefits of any

reasonable alternatives.

A patient who has the capacity to give informed consent

to a proposed treatment also has the capacity to refuse

consent to that treatment. [Probate Code Section 813]

The mere fact that a patient has a mental health or

neurologic condition, or has recently taken prescription

or recreational drugs, does not determine whether

the patient has the requisite mental ability to make a

treatment decision. The physician must make an individual

assessment, which should be clearly documented.

A patient may lack capacity permanently (for example, a

patient with late-stage Alzheimer’s disease) or temporarily

(for example, a patient with a head injury or under the

influence of illegal drugs). The primary physician should

make the determination of capacity on a case-by-case

basis, reasonably close in time to the performance of the

procedure for which consent is sought.

Generally, it may be assumed that a patient presenting

himself or herself for treatment has the capacity to make

health care decisions unless there is evidence to the

contrary [Probate Code Sections 810 and 4657]. In the

case of mental health patients, it should be noted that

Welfare and Institutions Code Section 5331 provides that:

No person may be presumed to be incompetent

because he or she has been evaluated or treated for

a mental disorder or chronic alcoholism, regardless of

whether such evaluation or treatment was voluntarily or

involuntarily received.

Patients who have been diagnosed with a mental illness

may or may not have the capacity to give informed consent,

depending upon the degree to which their illness affects

their thought processes. The primary physician may make

this determination. A psychiatric consult is not required, but

may be useful.

DOCUMENTATION

A primary physician who determines that a patient lacks

(or has recovered) capacity must promptly record that

determination in the patient’s medical record. The physician

must communicate the determination to the patient, if

possible, and to any person then authorized to make health

care decisions for the patient. [Probate Code Section 4732]

SPECIAL CIRCUMSTANCES INVOLVING ADULTS WITH

CAPACITY

Married Patients

The patient has the right to consent to, or to refuse,

medical treatment. A patient’s spouse does not have

the legal authority to make health care decisions for the

patient simply because they are married. However, in some

circumstances a spouse may make health care decisions

on the basis of another legal relationship (for example, the

spouse is the patient’s conservator or agent appointed

pursuant to a power of attorney for health care) or on the

basis that the patient lacks capacity and the spouse is the

closest available relative.

Adults in Custody of Law Enforcement Officers

A person in the custody of law enforcement officers must

still consent to a nonemergency medical examination,

treatment, or operation before such procedures may be

performed. If the person in custody lacks the capacity

to make health care decisions, an appropriate legal

representative should be found, if possible. Although

law enforcement officers may not consent for the patient,

in narrowly defined circumstances law enforcement

officers may request limited medical examinations and

tests pursuant to their authority to make constitutionally

permissible searches. In addition, specific rules govern

drug and alcohol tests performed pursuant to Vehicle Code

Section 23612. (See CHA’s Consent Manual, chapter 9,

for more information regarding the hospital’s rights and

responsibilities with regard to patients in the custody of law

enforcement officers.)

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Developmentally Disabled Adults

A developmentally disabled adult should not be presumed

incompetent to make his or her medical treatment

decisions. If a developmentally disabled adult is determined

by his or her physician to be mentally incapable of

consenting to treatment, consent can be provided by the

patient’s agent or surrogate, conservator legally authorized

to consent to treatment, the closest available relative, or

by court order (see “Court Order Authorizing Medical

Treatment,” page2.20).

The director of a regional center (an agency that contracts

with the state to provide services to developmentally

disabled persons) or his or her designee may consent to

medical, dental and surgical treatment of a regional center

client in certain circumstances. The hospital should consult

its legal counsel in these cases. [Welfare and Institutions

Code Section 4655]

Potential Exposure of Public Safety Workers and

Medical Personnel to Communicable Diseases

There is a limited ability to test for the presence of

communicable diseases without the patient’s consent when

a public safety worker or medical personnel may have been

exposed. The specific procedures and legal requirements

for these exceptions are described in chapter 5 of CHA’s

Consent Manual.

B. Adults Who Have Appointed an Agent or

Surrogate

An adult having capacity may execute an advance health

care directive or similar document that contains a power

of attorney for health care. The power of attorney for

health care may authorize another person, called an agent,

to make health care decisions on behalf of the patient.

The power of attorney for health care may also include

directions concerning health care decisions for the patient.

[Probate Code Section 4671]

An adult may also designate another adult as a surrogate

to make health care decisions by personally informing

the primary physician (or another health care provider in

specified circumstances) [Probate Code Section 4711].

Generally, an agent or surrogate has the same authority as

a patient to make health care decisions. However, an agent

or surrogate may not consent to the following on behalf of

a patient:

1. Commitment to or placement in a mental health

treatment facility (see chapter 3).

2. Convulsive treatment (see D.“Convulsive Therapy and

Insulin Coma Treatment,” page2.49).

3. Psychosurgery (see C.“Psychosurgery,” page2.47).

4. Sterilization or abortion (see chapter 5 of CHA’s

Consent Manual).

A detailed discussion of the laws regarding the appointment

of an agent or surrogate is found in chapter 3 of CHA’s

Consent Manual.

PSYCHIATRIC ADVANCE DIRECTIVES

A psychiatric advance directive is an instrument that mental

health patients may use to document their preferences

regarding future mental health treatment, in preparation for

the possibility of losing capacity to give or withhold consent

to treatment in the future. The mental health advocacy

community advocates the use of such documents,

particularly with respect to involuntary treatment,

psychiatric medications, restraint and seclusion.

Neither California nor federal law recognizes a special

document called a “psychiatric advance directive.” The

California advance health care directive laws and statutory

form were created with end-of-life issues in mind, not

mental health matters. However, the law does not prohibit a

person who executes an advance health care directive from

including instructions regarding mental health treatment.

Whether such wishes are required to be followed by a

health care provider if the patient loses capacity depends

upon several factors, including:

1. Whether the patient would have the legal ability to

consent or withhold consent to the recommended

treatment if he or she were competent. For example,

a patient who is detained pursuant to Welfare

and Institutions Code Section 5150 et seq. is, by

law, unable to withhold consent to be evaluated

for a mental disorder and may not leave the facility.

Therefore, if such a patient has executed an advance

directive denying consent to such care, a hospital need

not comply with this instruction.

2. Whether the wishes stated in the advance directive are

medically ineffective or contrary to generally accepted

health standards. In such a case, the facility need

not comply with the patient’s instructions. However, a

provider that declines to comply must follow certain

procedures (see Probate Code Sections 4735 and

4736).

There are no statutes, regulations, or judicial decisions

regarding “psychiatric” advance directives in California.

However, California law does contain one reference to

advance directives in the context of mental health care.

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Health and Safety Code Section 1180.4(a) requires

psychiatric units of general acute care hospitals, acute

psychiatric hospitals, skilled nursing facilities, and other

specified facilities to conduct an assessment of each

patient prior to a placement decision or upon admission,

or as soon thereafter as possible. This assessment must

include, based on the information available at the time,

the patient’s advance directive regarding de-escalation

or the use of seclusion or behavioral restraints. This law

does not authorize “psychiatric advance directives,” nor

does it require a provider to comply with a patient’s stated

preferences. It merely requires the specified providers to

assess a patient’s advance directive, if any. (See chapter 5

regarding restraint and seclusion.)

A hospital should consult legal counsel if a situation arises

regarding a psychiatric advance directive. (See chapter 3

of CHA’s Consent Manual for a complete discussion of the

law regarding advance directives.)

C. Adults Under Conservatorship

An adult patient under a conservatorship may be able

to make health care decisions. The determination of

who may make health care decisions — the patient (the

conservatee) and/or the conservator — will depend on

whether or not the conservatee has been adjudicated

to lack the capacity to make health care decisions. The

letters of conservatorship should specify whether a patient

has been adjudicated to lack the capacity to make health

care decisions.

The hospital should obtain a copy of the certified letters

of conservatorship, review them carefully and place them

in the patient’s medical record. If the hospital has any

questions about the documents, legal counsel should

be consulted.

[Probate Code Sections 1880-1898 and 2353-2357]

CAUTION: TYPE OF CONSERVATORSHIP

A conservatorship under the Lanterman-Petris-Short Act

(LPS) (which is found in the Welfare and Institutions Code)

is different from a conservatorship under the Probate

Code. If a patient is under a conservatorship, hospitals

should review the conservatorship documents issued by

the court to determine the type of conservatorship and the

conservator’s scope of authority. A patient may be subject

to both an LPS conservatorship and a Probate Code

conservatorship; however, this is not common. Both types

of conservatorship are described below.

LPS CONSERVATORSHIP

An LPS conservatorship is meant for psychiatric patients.

The purpose of an LPS conservatorship is the provision

of individualized psychiatric treatment, supervision, and

placement for a patient who is gravely disabled as a result

of a mental disorder or impairment by chronic alcoholism.

An LPS conservator may authorize the admission of the

conservatee to a mental health facility. (A Probate Code

conservator may not authorize admission to a mental

health facility.)

An LPS conservator may consent to, or refuse, routine

medical treatment (other than psychiatric treatment) of

the conservatee only if the court order establishing the

conservatorship specifically states that the conservator

may consent to routine medical treatment unrelated

to remedying or preventing the recurrence of the

conservatee’s being gravely disabled. An LPS conservator

may not, however, consent for surgery. Surgery may be

performed on an LPS conservatee only if:

1. The conservatee consents;

2. The emergency exception applies (see B.“Emergency

Treatment Exception,” page2.3); or

3. The conservator petitions for and receives a court

order issued under Welfare and Institutions Code

Section 5358.3 authorizing the surgery. [Welfare and

Institutions Code Sections 5357, 5358 and 5358.2]

[Welfare and Institutions Code Section 5350 et seq.] (See

F.“Additional Treatment for Gravely Disabled Person (LPS

Conservatorship),” page3.31. More information about LPS

conservatorships is found in chapter 3.)

PROBATE CODE CONSERVATORSHIP

A conservatorship under the Probate Code is meant

to ensure that the conservatee’s basic needs for food,

clothing, shelter, money management, and health care are

met. Conservatees may be comatose, developmentally

disabled, or have dementia or other medical problems.

Some patients under a Probate Code conservatorship may

have the ability to make their own health care decisions,

while others may not — the letters of conservatorship will

state the authority of the conservator. A Probate Code

conservator may not authorize admission to a mental

health facility.

The remainder of this section of the manual describes the

law governing Probate Code conservatorships.

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Probate Code Conservatees Adjudicated to Lack

Capacity

A petition for a court order that the conservatee does not

have the capacity to make health care decisions may be

filed by the conservator, the conservatee, the spouse, the

registered domestic partner, a relative or a friend of the

conservatee [Probate Code Sections 1880 and 1891].

If the letters of conservatorship state that the patient lacks

the capacity to make health care decisions, then the

conservator has exclusive authority to do so. However, a

conservator may not consent in those situations discussed

under “Limitations on a Guardian’s Consent,” page2.29.

The conservator must make health care decisions for

the conservatee in good faith based on medical advice.

The decisions must be made in accordance with the

conservatee’s individual health care instructions, if any,

and other wishes to the extent known to the conservator.

Otherwise, the conservator must make the decision

in accordance with the conservator’s determination

of the conservatee’s best interest. In determining the

conservatee’s best interest, the conservator must consider

the conservatee’s personal values to the extent known

to the conservator. Provided these requirements are met,

treatment may be legally given even if the patient objects.

[Probate Code Section 2355(a)] Although the conservatee’s

consent need not be secured, the physician may wish

to explain to the conservatee the decision that has been

made for the patient, the nature of the procedure that

will be performed and any possible risks or discomforts

associated with the procedure (see Probate Code Section

4730).

Visitors, Phone Calls and Mail

A court may issue an order that grants a conservator the

power to enforce a conservatee’s right to receive visitors,

telephone calls, and personal mail. The law also allows

the court to issue an order directing a conservator to allow

specific visitors, telephone calls, and personal mail. The

conservator may be required to inform certain persons

of the patient’s death. This law was enacted to address

a situation in which a conservator (wife) refused to allow

the conservatee’s children from a prior marriage to visit

the conservatee (husband) in his home or anywhere else,

despite the conservatee’s desire to have them visit. This

law was not intended to be specific to hospital visitation,

and hospitals may continue to enforce their usual visitation

policy and reasonable visitation restrictions. [Probate

Code Sections 2351 and 2361] Hospitals should always

get a copy of conservatorship orders for conserved

patients and read them to fully understand the authority

of the conservator and any limitations. [Probate Code

Section 2351]

Prayer Healing

If, prior to the establishment of the conservatorship, the

conservatee was an adherent of a religion that calls for

reliance on prayer alone for healing, the law states that

the treatment authorized by the conservator must be

administered by an accredited practitioner of that religion

[Probate Code Section 2355(b)]. A hospital that has a

patient in this category should consult legal counsel to

determine the character of care, if any, that legally may

be provided.

Limitations on Consent by Conservator

Authorization must be obtained pursuant to the specific

statute indicated below if the treatment proposed involves

any of the following (the consent of the conservator is not

sufficient):

1. Placing a patient in a mental health treatment

facility against his or her will [Probate Code Section

2356(a)]. (See chapter 3 regarding establishing a

Lanterman-Petris-Short Act conservatorship and

involuntary detainment for mental health evaluation and

treatment.)

2. Prescribing or administering an experimental drug as

defined in Health and Safety Code Section 111515 et

seq. [Probate Code Section 2356(b)]. (See chapter 10

of CHA’s Consent Manual on the specific situations in

which a conservator may consent to the prescription or

administration of an experimental drug.)

3. Administering convulsive treatment as defined in

Welfare and Institutions Code Section 5325 [Probate

Code Section 2356(c)]. (See D.“Convulsive Therapy

and Insulin Coma Treatment,” page2.49 for more

information on conservator consent to convulsive

treatment.)

4. Sterilizing a minor [Probate Code Section 2356(d)].The

California Supreme Court’s decision in Conservatorship

of Valerie N., 40 Cal.3d 143 (1985), allows a

conservator to obtain a court order authorizing an adult

conservatee’s sterilization. Application should be made

pursuant to Probate Code Section 2357 and strict

criteria must be met.

Further, a conservator may not consent to treatment that

thwarts a valid and effective advance health care directive

and may not authorize the administration of an aid-in-dying

medication [Probate Code Section 2356(e)].

Conservatees with Dementia

Probate Code Section 2356.5 permits a conservator, with

a court order, to authorize the placement of a conservatee

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with a major neurocognitive disorder (dementia) in certain

secured perimeter residential care facilities for the elderly

operated pursuant to Health and Safety Code Section

1569.698, or a locked and secured nursing facility that

specializes in the care of people with major neurocognitive

disorders pursuant to Health and Safety Code Section

1569.691(c), and that has a care plan that meets the

requirements of Title 22, California Code of Regulations,

Section 87705. The court must find all of the following:

1. The conservatee has a major neurocognitive disorder,

as defined in the most recently published edition of the

“Diagnostic and Statistical Manual of Mental Disorders.”

2. The conservatee lacks capacity to give informed

consent to this placement and has at least one mental

function deficit pursuant to Probate Code Section

811(a) that significantly impairs the patient’s ability to

understand and appreciate the consequences of the

decision to be made.

3. The conservatee needs or will benefit from a restricted

and secure environment.

4. The proposed placement in a locked facility is the

least restrictive placement appropriate to the needs of

the patient.

The court order may also give the conservator the authority

to consent to the administration of medications appropriate

to the care of major neurocognitive disorders on behalf of

the conservatee, if the court makes findings similar to those

listed above.

If the patient is an adherent of a religion that calls for

reliance on prayer alone for healing, the treatment required

must be provided by an accredited practitioner of that

religion in lieu of administration of medications.

A conservatee may not be placed in a mental health

rehabilitation center or an institution for mental disease

under this law [Probate Code Section 2356.5(e)].

Probate Code Conservatees Not Adjudicated to Lack

Capacity

Consent by Conservatee. If the letters of conservatorship

are silent about the capacity of the patient to consent

to medical treatment, the conservatee may consent to

treatment if the physician finds the conservatee has the

capacity to give consent. The consent of the conservator is

not required, and is not sufficient, in this circumstance. The

conservatee must provide consent. [Probate Code Section

2354(a)]

However, the conservator may consent, even if the

conservatee objects to the treatment, if the conservator

has determined in good faith, on the basis of medical

advice, that there is an emergency and that treatment is

required for the alleviation of severe pain or that the medical

condition of the patient, if not immediately treated, will

lead to serious disability or death [Probate Code Section

2354(c)]. A conservator of a patient who has not been

adjudicated to lack capacity to give informed consent may

also give consent if a court has authorized the conservator

to do so [Probate Code Section 2354(b)].

If the physician has determined that the patient has

capacity to consent, a conservator who wishes to authorize

or prevent treatment that the conservatee has refused or

authorized must seek a court decision under Probate Code

Section 1880 that the patient lacks the capacity to give

informed consent (as discussed above). The conservator

also may seek a court order pursuant to Probate Code

Section 2357 that authorizes the conservator to give

consent for the specific medical treatment that is proposed.

If the physician is unwilling to rely on the consent of the

patient because the physician is uncertain of the patient’s

capacity, the physician may require the conservator to

consent also (see Law Revision Commission comment

to Probate Code Section 2354(a)). If the conservator

refuses to consent, the physician may seek a court order

authorizing the treatment under Probate Code Section

2357(i) (as discussed below).

Court Order Authorizing Treatment of Conservatee. A

conservator or other interested person may file a petition

for a court order authorizing the conservator to consent on

behalf of the conservatee for specified medical treatment.

The court may authorize the recommended medical

procedure pursuant to Probate Code Section 2357(i).

The hospital should obtain a copy of the court order, review

it carefully and place it in the patient’s medical record. The

only procedures that should be performed pursuant to the

court’s authorization are those that are specifically included

in the court order.

D. Adults Lacking Capacity and Not Under a

Conservatorship

GENERAL RULE

If a patient temporarily or permanently lacks capacity to

make health care decisions, and the emergency medical

situation exception does not apply (see B.“Emergency

Treatment Exception,” page2.3), medical treatment

should be withheld until:

1. The patient regains capacity;

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2. An agent appointed in an advance health care directive

or a surrogate is available and gives consent;

3. A court order is issued under Probate Code Section

3200 et seq. authorizing the treatment (as discussed

in “Court Order Authorizing Medical Treatment,”

page2.20);

4. A conservator who may make health care decisions is

appointed (as discussed in “Temporary or Permanent

Conservatorship,” page2.22, and “Petition for

Appointment of Public Guardian,” page2.22);

5. In the circumstances discussed in “Family Members,”

page2.22, the patient’s closest available relative gives

consent; or

6. Consent is obtained from an interdisciplinary team as

described in “Unrepresented Patients in Skilled Nursing

Facilities,” page2.18, or “Unrepresented Patients in

Acute Care Facilities,” page2.19.

UNREPRESENTED PATIENTS IN SKILLED NURSING

FACILITIES

Prior to 1992, if a patient in a skilled nursing or intermediate

care facility lacked capacity and had no family member who

was available and willing to make health care decisions,

no conservator, and no other person with legal authority

to make health care decisions on his or her behalf, the

facility was forced to seek court authorization for treatment

pursuant to Probate Code Section 3200 et seq. (see “Court

Order Authorizing Medical Treatment,” page2.20). Health

and Safety Code Section 1418.8, adopted in 1992 and

amended in 1994, allows the facility’s interdisciplinary

team (IDT) to authorize the initiation of medical intervention

ordered by the attending physician that requires informed

consent. The use of this process has recently been

questioned by a court (see “CANHR v. Chapman,”

page2.19).

This law creates a process for authorizing affirmative

care, not for authorizing the withholding or withdrawal

of life-sustaining treatment. The IDT process is triggered

“if the attending physician ... prescribes or orders a medical

intervention that requires that informed consent be

obtained ...” [Health and Safety Code Section 1418.8(a)].

The IDT process must be undertaken as follows:

1. The attending physician must determine, through direct

patient interview, review of the patient’s medical record,

and consultation with facility staff, family members and

friends, that the patient is unable to understand the

nature and consequences of the proposed treatment,

including its risks and benefits, or is unable to express

a preference regarding the treatment;

2. The attending physician must determine, through direct

patient interview, review of the patient’s medical record,

and consultation with facility staff, family members and

friends, that there is no person with legal authority to

make health care decisions for the patient (that is, no

agent appointed in a valid power of attorney for health

care, guardian, conservator, or next of kin);

3. Except in an emergency (see h. below), the facility

must conduct an IDT review of the medical intervention

prior to its administration. This review must include all

of the following:

a. A review of the physician’s assessment of the

patient’s condition.

b. The reason for the proposed use of the

medical intervention.

c. A discussion of the desires of the patient, where

known. To determine the desires of the patient,

the IDT must interview the patient, review the

patient’s medical records and consult with family

members or friends, if any have been identified.

d. The type of medical intervention to be used in the

patient’s care, including its probable frequency

and duration.

e. The probable impact on the patient’s

condition, with and without the use of the

medical intervention.

f. Reasonable alternative medical interventions

considered or utilized, and reasons for their

discontinuance or inappropriateness.

g. Evaluation by the IDT of the use of the

prescribed medical intervention at least quarterly

or upon a significant change in the patient’s

medical condition.

h. In the case of an emergency, after obtaining a

physician’s order as necessary, a skilled nursing

or intermediate care facility may administer a

medical intervention that requires informed

consent prior to convening an IDT review. If the

emergency results in the application of physical or

chemical restraints, the IDT must meet within one

week of the emergency for an evaluation of the

medical intervention.

4. The IDT must oversee the care of the patient utilizing

a team approach to assessment and care planning

and must include the patient’s attending physician, a

registered nurse with responsibility for the patient, and

other appropriate staff in disciplines as determined by

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the patient’s needs. A patient representative must be

included on the IDT, where practicable. The patient

representative may include a family member or friend

of the patient who is unable to take full responsibility for

the health care decisions of the patient, but has agreed

to serve on the IDT, or another person authorized by

state or federal law, such as the public guardian or

the ombudsman.

5. All determinations, and the bases therefore, must be

documented in the patient’s medical record and must

be made available to the patient’s representative for

review.

This interdisciplinary team process was upheld by the

California Court of Appeal in Rains v. Belshé, 32 Cal. App.

4th 157 (1995), as meeting constitutional standards for

the privacy and due process rights of the patient. The

court said the arduous requirements on the physician and

the facility, the inclusion of a patient representative on the

interdisciplinary team and the right of the patient, or the

patient’s representative, to judicial intervention, constituted

a fair process that balanced the privacy and due process

rights of the patient with the patient’s right to medically

necessary care. However, a later court has ruled in CANHR

v. Chapman (discussed below) that this process may be

unconstitutional. This decision has been appealed and is

not in effect at the time of publication of this manual (June

2019).

CANHR v. Chapman

The Alameda County Superior Court on Jan. 27, 2016,

held that Health and Safety Code Section 1418.8 is

unconstitutional because it doesn’t require SNFs to notify

the patient that:

1. He or she has been determined to be incapable of

making medical decisions,

2. There is no substitute decision maker available,

3. The nature of the prescribed medical intervention, and

4. How to seek review.

In addition, the court explicitly stated that interdisciplinary

team consent may not be used to approve the

administration of antipsychotic drugs or end-of-life

care, such as withholding or withdrawing life-sustaining

treatment. The court indicated that judicial review or an

independent physician review would be required for these

decisions. The decision in the case, California Advocates

for Nursing Home Reform (CANHR) v. Chapman, has been

appealed and is not in effect at the time of publication of

this manual (June 2019).

As a strict legal matter, Health and Safety Code Section

1418.8 applies only to SNFs and not acute care hospitals.

Acute care hospitals can expect to be affected, however, if

the court order becomes final, because SNFs may transfer

unrepresented patients who lack capacity to acute care

hospitals if they develop conditions that trigger the need for

an informed consent. SNFs may also decline to admit new

patients who lack capacity and a decision maker. Hospitals

may, therefore, see an increase in unrepresented patients.

In addition, many acute care hospitals have adopted

the California Medical Association/California Hospital

Association/Alliance of Catholic Hospitals model

policy on making decisions for unrepresented patients

(CHA Appendix 2-D), which is based on Health and Safety

Code Section 1418.8. Hospitals that use this policy should

consult legal counsel. They may wish to add appropriate

safeguards to address the Superior Court’s concerns,

or seek conservatorship for unrepresented patients or

court approval for prescribed care under Probate Code

Section 3200 et seq. (see “Court Order Authorizing

Medical Treatment,” page2.20). CHA has developed a

check list of safeguards to consider; see CHA Appendix

2-E, “Considerations for Revising the Hospital’s Policy &

Procedure Regarding Decision Making for Unrepresented

Patients.” In addition, CHA has revised CHA Appendix 2-D

to add appropriate safeguards.

UNREPRESENTED PATIENTS IN ACUTE CARE

FACILITIES

California law has no provisions for consent to treatment on

behalf of patients in general acute care hospitals who lack

the capacity to make health care decisions, and who have

no known family member or other legally authorized person

available and willing to make those decisions.

In such cases, a hospital may wish to contact the public

guardian or conservator in its geographic area, file a

petition seeking a private conservator, or obtain a court

order authorizing medical treatment. However, the

California legislature has recognized that, “[i]n the absence

of controversy, a court is normally not the proper forum in

which to make health care decisions, including decisions

regarding life-sustaining treatment” [Probate Code Section

4650(c)].

The California Hospital Association, California Medical

Association, and Alliance for Catholic Health Care have

developed a model policy for general acute care hospitals

regarding health care decisions for unrepresented patients.

This policy, “Health Care Decisions for Unrepresented

Patients,” is found at the end of this chapter as CHA

Appendix 2-D.

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Because there is no provision in California law for consent

for treatment for unrepresented patients, hospitals are

advised to consult legal counsel and risk management

regarding whether to adopt this policy, and if so, how to

implement it. Each hospital will need to carefully consider

which patients the policy will apply to, the circumstances

under which an independent physician consultation

will be sought, when to seek a court order authorizing

medical treatment, and when to seek the appointment of

a conservator. Hospitals using this policy, or considering

using this policy, should read the discussion under “CANHR

v. Chapman,” page2.19. These are difficult and important

decisions that each hospital will need to make.

COURT ORDER AUTHORIZING MEDICAL TREATMENT

Probate Code Sections 3200 to 3212 provide a procedure

for petitioning a court to:

1. Determine that a patient has the capacity to make a

health care decision; or

2. Determine that a patient lacks the capacity to make

a health care decision and to designate a person to

make a health care decision on behalf of the patient.

[Probate Code Section 3201]

For purposes of this law, a “health care decision” means

a decision regarding the patient’s health care, including:

1. Selection and discharge of health care providers and

institutions;

2. Approval or disapproval of diagnostic tests, surgical

procedures, and programs of medication; and

3. Directions to provide, withhold, or withdraw artificial

nutrition and hydration and all other forms of health

care, including cardiopulmonary resuscitation.

[Probate Code Section 3200(b)]

The law specifically states that it is not necessary to obtain

a court order in an emergency situations in which health

care is required for the alleviation of severe pain or the

patient’s condition, if not immediately diagnosed and

treated, will lead to serious disability or death [Probate

Code Section 3210(b)].

Persons Authorized to Petition for Court Order

A petition for a court order under this law may be filed by:

1. The patient.

2. The patient’s spouse.

3. A relative or friend of the patient or other interested

person, including the patient’s agent under a power of

attorney for health care.

4. The patient’s physician.

5. A person acting on behalf of the health care facility in

which the patient is located.

6. The public guardian or other county officer designated

by the board of supervisors of the county in which the

patient is located or resides or is temporarily living.

[Probate Code Section 3203]

Although the law allows the petition to be filed by a person

acting on behalf of the hospital, it is recommended that

the hospital not assume this responsibility except in

extraordinary situations. The recommended alternative is

to encourage another party authorized by the law to file

a petition.

Contents of the Petition

The petition must state all of the following, so far as is

known to the petitioner at the time the petition is filed:

1. The condition of the patient’s health that

requires treatment.

2. The recommended health care that is considered to be

medically appropriate.

3. The threat to the patient’s condition if authorization for

the recommended health care is delayed or denied by

the court.

4. The predictable or probable outcome of the

recommended health care.

5. The medically available alternatives, if any, to the

recommended health care.

6. The efforts made to obtain consent from the patient.

7. The name of the person to be designated to consent to

the recommended health care on behalf of the patient,

if the petition is filed by a person on behalf of a health

care facility.

8. The deficit(s) in the patient’s mental functions, as listed

in Probate Code Section 811(a), that are impaired,

and identification of a link between the deficit(s)

and the patient’s inability to respond knowingly and

intelligently to queries about the recommended health

care or inability to participate in a decision about the

recommended health care by means of a rational

thought process. The mental functions enumerated

in Probate Code Section 811(a) fall into the following

categories: alertness and attention; information

processing; thought processes; and ability to modulate

mood and affect.

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9. The names and addresses, so far as they are known to

the petitioner or proposed conservator, of the spouse

or domestic partner and the relatives of the proposed

conservatee within the second degree. If no spouse or

domestic partner or relatives within the second degree

are known to the petitioner, the names and addresses

of certain other persons must be listed [Probate Code

Section 1821(b)].

[Probate Code Section 3204]

This information may be included in the petition itself or in

an attached affidavit.

The mere diagnosis of a mental or physical disorder is not

sufficient in and of itself to support a determination that a

person is of unsound mind or lacks the capacity to consent

to medical treatment [Probate Code Section 811(d)].

Court Action on Petition

After the petition is filed, the court will determine whether

the patient is represented by legal counsel, whether it will

consider the petition in summary proceedings, and what, if

any, notice of the hearing must be given.

Legal Counsel. If the patient has not retained an attorney

and does not plan to do so, the court will appoint the

public defender or a private attorney to consult with and

represent the patient in the court proceedings [Probate

Code Section 3205].

Summary Proceedings. The petition may be submitted

for the determination of the court, without a hearing, upon

proper and sufficient medical declarations if the attorney for

the petitioner and the attorney for the patient so stipulate,

provided they also stipulate that there remains no issue

of fact to be determined. If, however, the parties do not

stipulate to summary proceedings, a hearing must take

place. [Probate Code Section 3207]

Notice of Hearing. If a hearing is required, notice of the

time and place of the hearing on the petition, and a copy of

the petition, must be:

1. Personally served on the patient, the patient’s attorney,

and the agent under the patient’s power of attorney for

health care, if any, and

2. Mailed to the patient’s spouse, if any, and the patient’s

relatives named in the petition.

The personal service and mail service must take place

not less than 15 days before the hearing. The court may

shorten or waive notice of the hearing for good cause. In

determining the period of notice to be required, the court

must take into account the existing medical facts and

circumstances and the desirability, where the condition

of the patient permits, of giving adequate notice to all

interested persons. [Probate Code Section 3206]

Circumstances in Which the Court May Issue an Order

Except in those situations discussed in “Limitations on

a Guardian’s Consent,” page2.29, the court may issue

an order authorizing the recommended health care for

the patient and designating a person to consent to the

recommended health care on behalf of the patient if it

determines from the evidence all of the following:

1. The existing or continuing condition of the patient’s

health requires the recommended health care.

2. There is a probability that the condition will become

life-endangering or result in a serious threat to the

physical or mental health of the patient, if untreated.

3. The patient is unable to consent to the recommended

health care.

[Probate Code Section 3208(a)]

The court may also order the withholding or withdrawal of

artificial nutrition and hydration and all other forms of health

care, and designate a person to give or withhold consent to

the recommended health care if the court determines that:

1. The recommended health care is in accordance with

the patient’s best interest, taking into consideration the

patient’s personal values to the extent known, and

2. The patient is unable to consent to the recommended

health care.

[Probate Code Section 3208(c)]

Limitations on Court Order

Authorization must be obtained under the specific law

indicated below if the treatment proposed involves any of

the following (the court order obtained pursuant to Probate

Code Section 3200 et seq. is not sufficient):

1. Placing a patient in a mental health treatment

facility against his or her will [Probate Code Section

3211(a)]. (See chapter 3 regarding establishing a

Lanterman-Petris-Short Act conservatorship and

involuntary detainment.)

2. Prescribing or administering an experimental drug as

defined in Health and Safety Code Section 111515 et

seq. [Probate Code Section 3211(b)]. (See chapter 7

of CHA’s Consent Manual on the specific situations in

which a conservator may consent to the prescription or

administration of an experimental drug.)

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3. Administering convulsive treatment as defined in

Welfare and Institutions Code Section 5325 [Probate

Code Section 3211(c)]. (See D.“Convulsive Therapy

and Insulin Coma Treatment,” page2.49 for more

information on conservator consent to convulsive

treatment.)

4. Sterilizing a patient [Probate Code Section

3211(d)]. The California Supreme Court’s decision in

Conservatorship of Valerie N., 40 Cal.3d 143 (1985),

allows a conservator to obtain a court order authorizing

an adult conservatee’s sterilization. Application should

be made pursuant to Probate Code Section 2357 and

strict criteria must be met.

Further, a court may not order treatment that thwarts a

valid and effective advance health care directive [Probate

Code Section 3211(e)].

Finding that Patient has Capacity to Consent

If the court finds that the patient has the capacity to

consent to the recommended health care, the court will so

state in its order [Probate Code Section 3208.5(a)].

If the court has determined that the patient has the

capacity to consent to the recommended health care, the

court must, if requested, determine whether the patient

has accepted or refused the recommended health care,

and whether the patient’s consent to the recommended

health care is an informed consent [Probate Code Section

3208.5(b)].

Where the court finds that the patient has the capacity

to consent to the recommended health care, but refuses

to do so, the court may not make an order authorizing

the treatment or designating a person to give consent to

the treatment. Furthermore, if an order has been made

authorizing the treatment and designating a person to give

consent, the order must be revoked if the court determines

that the patient has recovered the capacity to give

informed consent to the recommended course of medical

treatment. Until revoked or modified, the order is effective

authorization for the course of medical treatment [Probate

Code Section 3208.5(c)].

TEMPORARY OR PERMANENT CONSERVATORSHIP

Any interested party may request a temporary and/or

permanent conservatorship under Probate Code Section

1820. Although this often is the most desirable means of

resolving the situation, it may not be a viable alternative if:

1. The patient needs relatively expedited care that cannot

be postponed while the request for a conservatorship

is being processed; and/or

2. The patient may only temporarily lack capacity (e.g., as

a result of the patient’s immediate medical condition)

and therefore a conservatorship may not be warranted.

Once a petition for conservatorship is filed, a court

investigator must interview the proposed conservatee,

petitioners, proposed conservators, the proposed

conservatee’s spouse or registered domestic partner and

relatives. The investigator will prepare a written report

about the mental capacity of the proposed conservatee,

which will be made available to the proposed conservatee,

petitioners and relatives.

The conservatee has the right to have the matter tried

by jury, be represented by legal counsel, and have legal

counsel appointed by the court if unable to retain legal

counsel.

If a conservatorship is ordered, the court investigator will

interview the conservatee from time to time to determine if

continuation of the conservatorship is warranted.

PETITION FOR APPOINTMENT OF PUBLIC GUARDIAN

Any interested person may initiate a proceeding to have

the county public guardian appointed as the guardian or

conservator of a:

person domiciled in the county who appears to require

a guardian or conservator, if it appears that there is no

one else who is qualified and willing to act, and if that

appointment as guardian or conservator would be in the

best interests of the person.

In fact, the law requires the public guardian to apply for

appointment as guardian or conservator of the person,

the estate, or both, if there is an imminent threat to the

person’s health or safety or the person’s estate.

A hospital that is interested in having the public guardian

appointed as a patient’s guardian or conservator should

consult the public guardian’s office. [Probate Code

Section 2920]

FAMILY MEMBERS

Basis for Relying on Consent

In some circumstances, it may be necessary or desirable

to rely upon the consent given by family members of a

patient lacking capacity to make health care decisions.

The California Supreme Court has indicated that in some

cases it is appropriate for a relative to give consent. The

court said:

[I]f the patient is a minor or incompetent, the authority

to consent is transferred to the patient’s legal guardian

or closest available relative (emphasis added). [Cobbs v.

Grant, 8 Cal.3d 229, 244 (1972)]

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Also, a California appellate court, in Barber v. Superior

Court, 147 Cal.App.3d 1006 (1983), held that a hospital

and physicians properly relied upon the decisions regarding

discontinuance of medical treatment that were made by

a patient’s wife and children. The court explained that

California law does not state that only court-appointed

guardians or conservators have the authority to act on

behalf of another person, and that in the absence of such

a statement in the law, an incompetent patient’s immediate

family could make health care decisions for the patient.

The court cautioned, however, that such persons must

be guided first by the patient’s own desires and feelings,

to the extent they were expressed before the patient

became incompetent. If the patient’s desires were not

expressed or cannot be ascertained, the court stated that

surrogate decision makers must be guided by the patient’s

best interests.

The Barber decision adds an important element of

protection for health facilities that rely on the consent of

immediate family members. Accordingly, such reliance

may be considered a reasonable means of dealing with

situations in which an adult patient who does not have an

agent or a conservator is unable to consent to required

treatment. By obtaining the consent or concurrence of

concerned relatives, the risk of liability will be minimized.

Basis for Not Relying on Consent

The hospital should not rely on consent from family

members if any of the following circumstances are present:

1. The relative’s capacity to make health care decisions or

motives are questionable.

2. There is a substantial question as to whether the

patient, if he or she had the capacity to make health

care decisions, would consent to the procedure.

3. Another close relative objects to the medical procedure.

The facility should carefully consider the situation if the

medical procedure required has uncertain or minimal

expected benefits; will result in severe debilitation; and/or

involves a significant risk of a negative outcome, such as

paralysis. Also, if the relative’s refusal to consent appears

to be unreasonable, the refusal should not be relied upon.

In each of these situations, it is probably preferable to

rely upon the use of a Probate Code Section 3200 et seq.

petition. (See “Court Order Authorizing Medical Treatment,”

page2.20.) Legal counsel should be consulted.

Identifying an Appropriate Family Member to Consent

Once it is determined that it is appropriate to rely upon the

consent of a family member, it is necessary to determine

which family member is the most appropriate surrogate

decision maker. The California Medical Association and

the California Hospital Association have developed

guidelines to assist physicians and hospitals in identifying

an appropriate surrogate decision maker for a patient who

lacks capacity and who has no guardian, conservator

or agent appointed in a valid advance directive. These

guidelines are found in CHA’s Consent Manual, chapter 2.

If there is reason to suspect that the patient’s family

members are not acting in the best interests of the patient,

the use of a Probate Code Section 3200 et seq. petition

may be appropriate (see “Court Order Authorizing Medical

Treatment,” page2.20). Legal counsel should be consulted.

Registered Domestic Partners

California law states that a registered domestic partner

has the same authority to make a health care decision

for his or her incapacitated domestic partner as a spouse

would have to make a health care decision for his or her

incapacitated spouse [Family Code Section 297.5 and

Probate Code Section 4716].

The physician must make a determination that the patient

lacks capacity, prior to looking to the registered domestic

partner to provide consent (see ““Capacity” Defined,”

page2.12).

The law permitting persons to register as domestic

partners is found at Family Code Sections 297 and 297.1.

“Domestic partners” are “two adults who have chosen

to share one another’s lives in an intimate and committed

relationship of mutual caring.” The following requirements

must be met in order to register as domestic partners:

1. Neither person is married or a member of another

domestic partnership.

2. The two persons are not related by blood in a way that

would prevent them from being married to each other

in this state.

3. Both persons are at least 18 years of age. Persons

under 18 must obtain parental permission and/or a

court order.

4. Either of the following apply:

a. Both persons are members of the same sex.

b. One or both of the persons meet the eligibility

criteria under Title II of the Social Security Act

for old-age insurance benefits or Title XVI of the

Social Security Act for aged individuals. However,

persons of opposite sexes may not constitute a

domestic partnership unless one or both are over

62 years of age.

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5. Both persons are capable of consenting to the

domestic partnership.

The Secretary of State produces forms entitled “Declaration

of Domestic Partnership” and “Notice of Termination of

Domestic Partnership” to document the beginning and

ending of a domestic partnership. The forms must be

signed by each partner and also by a notary public. The

Secretary of State will register the partnership and return a

copy of the registered form to the domestic partners.

Hospitals are advised to develop and implement policies

regarding proof of marriage and proof of domestic

partnership equally. For example, if a hospital requires a

person to produce a marriage certificate to prove that he

is indeed the spouse of a patient, then the hospital should

require a person to produce a registered “Declaration of

Domestic Partnership” form to prove that he is indeed the

registered domestic partner of a patient.

Under California law, registered domestic partners have

the same rights and responsibilities as spouses. This may

include paying medical and hospital bills.

E. Summary of Consent Requirements Regarding

Adults

CHA has included a table at the end of this manual

titled “Consent Requirements for Medical Treatment of

Adults” (CHA Table 2-A) summarizing consent issues

regarding adults.

VII. WHO MAY GIVE CONSENT: MINORS

A. Introduction

Parents have a legal obligation to provide the necessities

of life for their minor children, including medical care [Penal

Code Section 270]. It is generally accepted that, until their

children reach 18 years of age, parents also have the right

to control that care.

Some exceptions to this general rule exist. Some

exceptions are based on the status of the minor

(emancipated, married, serving in the military, etc.). Other

exceptions are based upon the nature of the treatment

sought (pregnancy-related care, communicable disease,

mental health, etc.). This portion of the manual discusses

who may consent for treatment on behalf of minors.

Additional requirements for inpatient mental health

admissions and treatment for minors, both voluntary and

involuntary, are discussed in chapter 3.

The person who has the legal authority to consent for the

treatment of a minor also has the legal authority to refuse

the treatment. Thus, if a minor is legally authorized to

consent to treatment, the minor also has the legal authority

to refuse the treatment. The minor must also have the

capacity to make health care decisions (see B.“Capacity to

Consent,” page2.37). However, if a parent or other legal

representative refuses treatment for a minor and serious

harm to the minor may result, legal counsel should be

consulted. (See F.“Where Refusal of Treatment May Cause

Serious Harm to the Minor,” page2.26, for additional

information.)

“Minors” are all persons under 18 years of age [Family

Code Section 6500].

B. The Evolution of the Rights of Minors

Minors, because of their legal status, have generally been

recognized as lacking the legal capacity to give consent

for health care services. In recognition of the interests

of minors in health care decisions affecting them, and in

appreciation of their actual capacity to understand and

evaluate the nature of health care decisions confronting

them, state legislatures and courts have determined that

under specific circumstances, minors are to be treated as

adults for purposes of consenting to care.

The early court cases that laid the foundation for this

transformation found minors capable of providing consent

to medical treatment through the doctrine of the “mature

minor.” This doctrine provides that a minor may give

consent to medical care when the treating physician

finds that:

1. The minor is of sufficient age (typically 14 years of age

or over) to appreciate the risks and benefits of the

proposed treatment;

2. The minor understands the risks and benefits of the

treatment, and the consequences of the decision (i.e.,

the minor can give informed consent); and

3. The treatment will benefit the minor, not another person.

California has not adopted the mature minor doctrine.

However, in 1953, the California Legislature gave unmarried

pregnant minors the authority to consent to treatment

related to their reproductive care. In 1961, minors on active

duty in the armed services and those who were married,

divorced, or widowed were given the right to consent to

medical treatment. By 1970, the rights of minors were

broadened to include the ability to consent to treatment if

the minor is 15 years of age or over, living away from home

and managing his or her own finances.

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Whether a minor has the legal right to consent to medical

treatment independent of the minor’s parents will depend

on several factors. In California, the law permits a minor

to obtain medical treatment independent of parental

authorization when:

1. The minor has achieved a status of “emancipation” as

established by law;

2. The minor is seeking treatment for a statutorily

specified medical need; or

3. There is some other specialized situation recognized by

the law in which parental consent is not required.

These exceptions to the general rule requiring parental

consent are discussed in this manual.

C. Financial Responsibility for Treatment of

Minors

The person legally responsible for a minor (i.e., the minor’s

parent(s) or guardian) is generally responsible for the

minor’s financial obligations, including payment of medical

bills. However, Welfare and Institutions Code Section

14010 states that the parents of a minor are not financially

responsible for health care or related services to which the

minor may legally consent. There is a limited exception

to this general rule for emancipated minors living in the

home of the parent(s) (see C.“Emancipation Pursuant to

Court Order,” page2.37), or if the parents are participating

in counseling with the minor (see “Parental Involvement/

Liability,” page2.39).

Health care providers should establish a system to ensure

that they do not bill parents for services for which the

parents are not financially responsible, as this may be

considered a breach of the minor’s privacy rights (unless

the minor’s authorization is obtained). Medi-Cal has a

“minor consent” program (also known as “sensitive services”

program) that enrolls minors regardless of parental income

or assets, insurance status, or citizenship status. Parents

will not be contacted. This program covers health care

services for pregnancy, family planning, abortion, sexual

assault, sexually transmitted diseases, mental health

outpatient treatment (with some limitations), and substance

abuse treatment. [Title 22, California Code of Regulations,

Sections 50063.5, 50147.1, 50157, 50167 and 50195(d)]

It is acceptable to bill insurance companies, even if the

parent is the named subscriber on the policy; payers

are required to have a procedure in place to ensure the

minor’s confidentiality.

D. Privacy Rights of Minors

Under state and federal law, a minor has a privacy right

in health information resulting from services to which

the minor is authorized to consent. This is true even if,

as a practical matter, the minor’s parent actually gives

consent. For example, a parent may take his teenager to

a physician for treatment of a reportable communicable

disease. Even though the parent solicits and consents to

the services, privacy laws prevent the health care provider

from disclosing health information to the parent or guardian

without the minor’s authorization because, under state law,

the minor could have obtained those services independent

of the parent.

Both the Confidentiality of Medical Information Act and

HIPAA contain an exception to privacy requirements to

permit disclosure of limited information to a family member

if the information is directly relevant to the family member’s

involvement with the patient’s care. However, there are

limitations on this exception (see I.“Minor’s Medical

Records,” page6.12, and E.“Family and Friends: Patients

Covered by CMIA,” page6.7). In addition, this exception

does not apply to records and information covered by the

Lanterman-Petris-Short (LPS) Act or to substance abuse

information from federally-assisted substance use disorder

treatment programs (see chapter 6). The safest course of

action if a provider wishes to discuss outpatient mental

health treatment with a parent or guardian is to obtain

the minor’s written authorization for disclosure of health

information. [45 C.F.R. Sections 164.502(g) and 164.510(b);

Civil Code Sections 56.11(c) and 56.1007; Health and

Safety Code Sections 123110 and 123115; Welfare and

Institutions Code Section 5328]

Thus, in order to ensure HIPAA compliance and to avoid

privacy breaches, providers must also understand the

instances in which a minor has legal authority to consent

to treatment. (See chapter 6 for more information about

minors’ privacy rights.)

E. Minor’s Disagreement with Parent or Other

Legal Representative Regarding Treatment

Medical providers occasionally encounter situations in

which minors who do not have the legal authority to make

health care decisions indicate a desire to refuse treatment

that their parents or other legal representatives wish

them to have — or conversely, wish to have treatment

that their parents or other legal representatives decline.

Although minors are considered legally incompetent to

make decisions in many areas of medical care by virtue of

their age, nevertheless it is appropriate to discuss medical

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decisions with them in a manner appropriate to their age.

Ascertainment of the child’s preference for treatment was

specifically approved in the case In re Christopher I. (see

“Minors in Custody of the Juvenile Court/Foster Children,”

page2.47).

A minor’s refusal to participate in mental health treatment

presents special challenges for the therapist and may make

treatment unproductive. A therapist is not required to treat

a minor who is voluntarily admitted or who is an outpatient

if the minor declines to cooperate, even if the parent(s) are

insistent. Minors who are involuntarily admitted have a right

to treatment (see E.“Special Requirements for a Minor,”

page3.16).

Providers should proceed cautiously in situations where

the minor disagrees with the parents or other legal

representatives, particularly if the treatment or refusal

involves a significant risk of serious adverse consequences.

Providers faced with such situations may wish to consider

the following.

MINOR’S AGE, MATURITY, AND EXPERIENCE WITH

THE TREATMENT IN QUESTION

Remember that the law permits minors as young as 12

years of age to consent to certain treatments, including

outpatient mental health treatment (see G.“Minors in

Need of Outpatient Mental Health Treatment or Residential

Shelter Services,” page2.39). This suggests that minors

of that age may be in a position to appreciate the risks

and burdens of other treatments as well, and may have

reasonable grounds for wishing to consent to, or refuse,

such treatment.

DISAGREEMENT REGARDING THE TREATMENT

DECISION

The provider may be in a position to discuss the treatment

with the minor, clarify any confusion or misunderstanding,

and bring the matter into perspective. It may be helpful to

involve a social worker, psychologist, or other person with

a positive relationship with the minor to help resolve the

disagreement between the minor and the parents or other

legal representative.

If the provider is uncomfortable in providing treatment over

the minor’s objection, the provider may wish to reconsider

the clinical appropriateness of the treatment, or may

decline to participate in the case after taking appropriate

steps to transfer the care of the patient to another

health care provider. It may be appropriate to consult

legal counsel in such situations. Consultation with legal

counsel is strongly encouraged where refusal of care may

cause serious harm to the minor (see F.“Where Refusal

of Treatment May Cause Serious Harm to the Minor,”

page2.26).

F. Where Refusal of Treatment May Cause

Serious Harm to the Minor

At times a health care provider may encounter a situation in

which the parent, guardian, or other legal representative of

a minor declines medically necessary care, and the refusal

of that care may cause serious harm to the minor. In such

cases, legal counsel should be consulted immediately.

A parent or other legal representative may not decline

treatment where such refusal may cause serious physical

harm or illness to the minor; judicial intervention should

be sought. This portion of the manual provides a very

brief description of basic legal principles regarding such

situations, but it is emphasized that legal counsel should

always be sought in these cases.

If a minor, as a result of a mental disorder, is a danger

to self or others or gravely disabled, the minor may be

involuntarily detained for mental health evaluation and

treatment even if the parent(s) will not authorize voluntary

treatment [Welfare and Institutions Code Section 5585.53].

(See E.“Special Requirements for a Minor,” page3.16.)

REFUSAL FOR RELIGIOUS REASONS

Two of the more common situations involving refusal of care

for religious reasons involve Jehovah’s Witnesses, who

may decline blood products, and Christian Scientists, who

may decline traditional medical care in favor of treatment by

spiritual means. (See CHA’s Consent Manual, chapter 6, for

further information about refusal of blood products.)

California law explicitly permits a parent to provide a minor

with “treatment by spiritual means through prayer alone in

accordance with the tenets and practices of a recognized

church or religious denomination, by a duly accredited

practitioner thereof” [Penal Code Section 270]. (See also

Welfare and Institutions Code Sections 300, 5006, 7104

and 16509.1.) However, provision of prayer alone to a

minor child is permitted only insofar as the child is not

threatened with serious physical harm or illness [Walker

v. Superior Court, 253 Cal.Rptr. 1, 47 Cal.3d 112 (1988),

rehearing denied, cert.den.109 S.Ct. 3186, 491 U.S. 905].

If the refusal of treatment may cause serious harm to the

minor, California courts may order life-saving medical

treatment despite the parents’ refusal to consent to such

treatment on religious grounds. The Walker court stated

that “parents have no right to free exercise of religion at

the price of a child’s life…” The threatened harm does not

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need to rise to the level of death for the courts to intervene.

Health care providers should seek court intervention

in such cases, rather than attempting to balance the

competing interests involved and making the decision

themselves whether to treat a minor over the parent’s (or

other legal representative’s) objection.

Thus, the state may intervene in the parent-child

relationship to protect the child.

COURT INTERVENTION

Welfare and Institutions Code Section 300 delineates the

circumstances under which a child can be declared a

dependent of the court. Any child who comes within the

following description is within the jurisdiction of the juvenile

court and may be declared a dependent child of the court:

The child has suffered, or there is a substantial risk that

the child will suffer, serious physical harm or illness, as

a result of the failure or inability of his or her parent or

guardian to … provide the child with adequate food,

clothing, shelter, or medical treatment … Whenever

it is alleged that a child comes within the jurisdiction

of the court on the basis of the parent’s or guardian’s

willful failure to provide adequate medical treatment or

specific decision to provide spiritual treatment through

prayer, the court shall give deference to the parent’s or

guardian’s medical treatment, nontreatment, or spiritual

treatment through prayer alone in accordance with the

tenets and practices of a recognized church or religious

denomination, by an accredited practitioner thereof,

and shall not assume jurisdiction unless necessary to

protect the child from suffering serious physical harm

or illness. In making its determination, the court shall

consider (1) the nature of the treatment proposed by the

parent or guardian, (2) the risks to the child posed by

the course of treatment or nontreatment proposed by

the parent or guardian, (3) the risk, if any, of the course

of treatment being proposed by the petitioning agency,

and (4) the likely success of the courses of treatment or

nontreatment proposed by the parent or guardian and

agency. The child shall continue to be a dependent child

pursuant to this subdivision only so long as is necessary

to protect the child from risk of suffering serious physical

harm or illness. [Welfare and Institutions Code Section

300(b)]

In many counties, particular agencies provide assistance

in securing the court’s authorization to treat a minor

when the parents have refused to consent (e.g., Child

Protective Services). Such agencies are usually a part of

the county’s juvenile court services or department of social

services. Also, assistance for securing court authorization

for juveniles on probation may often be secured from the

county’s probation department.

VIII. MINORS LACKING LEGAL AUTHORITY TO

CONSENT

By statutory definition, a person under the age of 18

is unable to consent to medical treatment except as

otherwise allowed by law (see IX.“Minors with Legal

Authority to Consent,” page2.36). When a minor needs

medical treatment, health care providers usually must look

to a parent, guardian or other person to consent.

However, as with adults, consent to treatment may be

presumed in medical emergencies, i.e., where a minor

requires immediate care for alleviation of severe pain or

immediate diagnosis and treatment of unforeseeable

medical conditions which, if not immediately diagnosed and

treated, would lead to serious disability or death [Business

and Professions Code Section 2397(c)(2) and (3)]. (See

B.“Emergency Treatment Exception,” page2.3, for more

information.)

A. Parental Consent for Treatment of Minors

MINORS WITH MARRIED PARENTS

In the absence of evidence of a disagreement between the

parents of a minor, either parent has the legal authority to

consent [Family Code Section 6903]. Where one parent

consents to treatment but the other parent is opposed,

treatment should not be provided until the conflict

is resolved.

MINORS WITH DIVORCED PARENTS

If both parents agree on the proposed treatment of the

minor, the health care provider should have both parents

sign the applicable consent forms.

If a disagreement exists about the treatment of a minor with

divorced parents, a copy of the custody order should be

obtained to determine which parent has the authority to

make health care decisions for the child. The copy of the

court order should be placed in the minor’s medical record.

If one parent has sole legal custody, then that parent has

the right and responsibility to make health care decisions

for the child [Family Code Sections 3006 and 6903].

Where, as is often the case, the parents have joint legal

custody, either parent has the right and responsibility to

make health care decisions for the child unless the court

has specified, in its custody order, that the consent of both

parents is required [Family Code Sections 3003, 3083 and

6903].

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If the parents having joint legal custody disagree regarding

treatment of the minor, they should be instructed to

obtain a court order resolving the dispute before medical

treatment is provided, if the procedure can be delayed

without jeopardizing the minor’s health. If the delay might

harm the minor, the physician and hospital may decide

that treatment should be provided, notwithstanding one

parent’s objection. The rationale for such a decision should

be carefully documented in the minor’s medical record.

Providers should consult with legal counsel regarding

individual cases, as appropriate.

Access to a minor’s medical records and information, to

which the parent is otherwise entitled, may not be denied

to a parent solely because that parent is not the minor’s

custodial parent [Family Code Section 3025]. (See In re

Daniel C. H., 220 Cal. App.3d 814 (1990).) However, other

reasons may apply to deny a non-custodial parent access

to the record (for example, the minor may consent to his or

her own care and denies the parent access to the related

information, or the parent has abused the child, etc.).

MINORS WITH STEPPARENTS

A stepparent who has not legally adopted a minor does not

have the authority to consent to treatment on the minor’s

behalf without written authorization from the natural parent

or guardian or a valid Caregiver’s Authorization Affidavit

(see C.“Third-Party Consent for Treatment of Minors,”

page2.30).

ADOPTED MINORS

Where a minor has been legally adopted (by order of the

court), the adoptive parents have the same right to consent

to medical care on behalf of the minor as would birth

parents [Family Code Section 8616]. The birth parents have

no rights or responsibilities for the child after adoption and

thus may not consent to, or object to, medical treatment for

the minor [Family Code Section 8617]. (See also “Minors

Placed for Adoption,” page2.32.)

MINORS BORN OUT OF WEDLOCK

The mother has the legal authority to consent to medical

treatment for a minor born out of wedlock.

The father also has the legal authority to consent to medical

treatment for the minor. However, where there is reason to

doubt the status of someone claiming to be a child’s father,

the provider should require a copy of a birth certificate or

court judgment or order determining the existence of the

father-child relationship before accepting the consent of the

alleged father (see California Uniform Parentage Act, Family

Code Section 7600 et seq.).

Where one parent consents to treatment but the other

parent is opposed, treatment should not be provided until

the conflict is resolved, if the procedure can be delayed

without jeopardizing the child’s health. If the delay might

harm the child, the physician and hospital may decide that

treatment should be provided, notwithstanding one parent’s

objection. The rationale for such a decision should be

carefully documented in the minor’s medical record. Legal

counsel should be consulted in such cases.

MINORS WITH A REGISTERED DOMESTIC PARTNER

PARENT(S)

California permits adults to register as domestic

partners [Family Code Section 297] (see “Registered

Domestic Partners,” page2.23, for information about

the requirements for registration as domestic partners).

State law gives registered domestic partners (or former or

surviving registered domestic partners) the same rights

and obligations as are granted spouses in a marriage. This

includes the rights and obligations of registered domestic

partners with respect to a child of their partner. [Family

Code Section 297.5]

However, becoming the spouse of a parent is not the

same as becoming a parent, even for legally married

heterosexual couples. For example, as noted above,

even though a stepmother is legally married to a minor’s

natural father, the stepmother does not have the authority

to consent to treatment on the minor’s behalf without

written authorization from the father or mother, or a valid

Caregiver’s Authorization Affidavit.

These same rules apply to registered domestic partners. In

order for the registered domestic partner of a child’s parent

to consent for medical care for that child, the domestic

partner must do one of the following:

1. The registered domestic partner must have legally

adopted the child;

2. The registered domestic partner must provide a signed

third-party authorization form giving him or her the

ability to consent to medical care for the child (see

“Other Third-Party Consent,” page2.30); or

3. The registered domestic partner must complete a valid

Caregiver’s Authorization Affidavit (see “The Caregiver’s

Authorization Affidavit,” page2.30).

Given the variety of relationships that can arise, if questions

arise, or there is reason to doubt the status of someone

claiming to be a child’s parent, the provider may rely on

the birth certificate or custody order to determine who may

legally provide consent. If a registered domestic partner

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is not named on the birth certificate or custody order,

the registered domestic partner should be treated as a

stepparent.

OTHER SITUATIONS INVOLVING NONBIOLOGICAL

PARENTS OR MULTIPLE PARENTS

The courts are continuing to address a variety of situations

in which men and women not biologically related to a

child are being recognized as having parental rights and

obligations, even in the absence of marriage or a registered

domestic partnership. Several cases involving female

same sex couples were decided in 2005. (See Elisa B. v.

Superior Court, 37 Cal.4th 108 (2005) (woman held to have

parental support obligations for children born to former

partner during time that the women were in a committed

relationship); K.M. v. E.G., 37 Cal.4th 130 (2005) (woman

who donated ovum to birth mother and helped raised

children acknowledged to have parental rights following

their separation).) These situations may present challenges

where medical decision making for children is involved.

One difficulty in such instances is that an individual’s legal

relationship to a child may be contested and require judicial

intervention to determine. Hospitals should consult their

legal counsel should they have reason to question the

authority of purported decision makers.

A court may declare that a child has more than two parents

[Family Code Sections 3040 and 7612]. Each parent

should be treated as a natural parent, unless a court order

says otherwise.

B. Guardian Consent for Treatment of Minors

If a guardian has been appointed for a minor, the ability of

the guardian to consent to medical treatment for the minor

depends on the specific authority granted by the court and

the type of treatment.

A copy of the official certified letters of guardianship should

be obtained and placed in the minor’s medical record

before proceeding with treatment. The official letters of

guardianship should be reviewed to determine the scope

of the guardian’s legal authority to consent to medical

treatment and that, if any, of the parents. If a conflict arises

between the guardian and the parent(s), legal counsel

should be contacted.

Except as otherwise specified in the letters of guardianship,

the guardian may consent to medical treatment of the

minor as follows.

NONSURGICAL TREATMENT

The guardian has the same rights as a parent to consent to

nonsurgical treatment for the minor [Probate Code Section

2353(a)].

SURGICAL TREATMENT

The guardian’s consent is necessary for surgical treatment.

However, if the minor is 14 years of age or older, surgery

may not be performed upon the minor without:

1. The consent of both the minor and the guardian; or

2. A court order obtained by the guardian; or

3. The consent of the guardian alone provided that the

guardian determines in good faith, based on medical

advice, that the case involves an emergency in which

the minor faces loss of life or serious bodily injury if

the surgery is not performed. In this situation, there

is immunity from liability for an allegation of lack

of consent.

[Probate Code Section 2353(b) and (c)]

LIMITATIONS ON A GUARDIAN’S CONSENT

The guardian’s consent for certain types of treatment for

the minor is insufficient or must meet additional specific

requirements if the treatment involves:

1. Placing the patient in a mental health treatment

facility [Probate Code Section 2356(a)]. A guardian

may admit a ward to a private psychiatric facility

pursuant to Welfare and Institutions Code Section

6002.15 or to a state hospital pursuant to Welfare

and Institutions Code Section 6000. (See chapter

3 about the admission of minors to psychiatric

facilities, establishing Lanterman-Petris-Short Act

conservatorships, and involuntary detainment.)

2. Prescribing or administering an experimental drug as

defined in Health and Safety Code Section 111515 et

seq. [Probate Code Section 2356(b)]. (See chapter 10

of CHA’s Consent Manual on the specific situations in

which a guardian may consent to the prescription or

administration of an experimental drug.)

3. Administering convulsive treatment as defined in

Welfare and Institutions Code Section 5325 [Probate

Code Section 2356(c)]. (See X.“Treatments That

Require Special Consent,” page2.42, on the protocol

for and restrictions on a guardian’s consent for

administration of convulsive treatment.)

4. Sterilization of the patient [Probate Code Section

2356(d)]. This prohibition applies only to elective

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sterilizations (i.e., procedures performed primarily for

the purpose of rendering the patient sterile), but not

to treatment that is not for the purpose of, but results

in, sterility (i.e., secondary sterilization). (See chapter

5 of CHA’s Consent Manual regarding the prohibition

against elective sterilization of a minor.)

5. Psychosurgery. Under no circumstances may

psychosurgery be performed on a minor [Welfare and

Institutions Code Section 5326.6].

6. Administering aid-in-dying medication. Only a mentally

competent adult may request and self-administer

an aid-in-dying medication [Health and Safety Code

Section 443.2].

C. Third-Party Consent for Treatment of Minors

Children are often under the supervision of a person other

than their parents or guardians for a major part of the day.

Apart from the time minors spend in school, care for minors

is often left in the hands of a babysitter, relative, neighbor,

camp counselor, sports coach, preschool teacher or day

care provider. (See “Minors Who Are Ill or Injured During

School Hours,” page2.32, about medical treatment of a

minor’s injury or illness at school.) These persons are “third

parties” within the context of health care law.

In specified circumstances, a third party (not the minor

and not the parent/guardian) may consent to medical

treatment on behalf of a minor. These circumstances are

discussed below.

THE CAREGIVER’S AUTHORIZATION AFFIDAVIT

A nonparent adult relative with whom a minor is living may

authorize medical and dental care (for which the minor

lacks authority to consent) for the minor by completing

and signing a “Caregiver’s Authorization Affidavit” (CHA

Form 2-2; form also found at ). The relative has the same

rights to authorize medical care as does a guardian (see

B.“Guardian Consent for Treatment of Minors,” page2.29).

It should be noted that this authority is not as extensive as

a parent’s authority when the treatment involved is surgical.

The law specifies that the relative may authorize mental

health treatment, except for involuntary commitment,

experimental treatment and convulsive treatment.

All of the following must apply for the authorization to

be valid:

1. The minor must be living with the adult family member.

“Living with” is not defined in the law, but presumably

would not include a minor who is temporarily visiting

an adult relative.

2. The adult must be a “qualified relative,” which is

defined in the law as a spouse, parent, stepparent,

brother, sister, stepbrother, stepsister, half-brother,

half-sister, uncle, aunt, niece, nephew, first cousin, or

any person denoted by the prefix “grand” or “great,”

or the spouse of any of the persons specified in this

definition, even after the marriage has been terminated

by death or divorce.

3. The adult must advise the parent(s) of the proposed

medical treatment and have received no objection

thereto, or the adult must be unable to contact

the parents.

4. The adult must complete a “Caregiver’s Authorization

Affidavit” (CHA Form 2-2 or similar form) in which he or

she attests that the elements outlined above are true

and correct.

The affidavit becomes invalid when the health care provider

learns that the minor no longer lives with the caregiver.

However, affidavits printed before Jan. 1, 2005, contain

the statement, “This affidavit is valid for only one year after

the date on which it is executed.” If a hospital is presented

with an affidavit containing this statement, and the one-year

time period has expired, the hospital should request that

the caregiver complete a new affidavit.

Health care providers who treat minors in good faith

reliance on the signed affidavit of a qualified relative are not

subject to criminal or civil liability or subject to professional

disciplinary action for such reliance if the applicable

portions of the affidavit are completed. Health care

providers have no obligation to make any further inquiry

or investigation.

Providers should be careful to require that the affidavit is

completed in its entirety, and that an attempt has been

made to reach the minor’s parents, prior to care being

delivered to the minor.

OTHER THIRD-PARTY CONSENT

Family Code Section 6910 permits a parent, guardian

or relative caregiver under the Caregiver’s Authorization

Affidavit to authorize someone else to consent to medical

or dental care for the minor. For purposes of this law, the

following definitions apply.

“Dental care” means X-ray examination, anesthetic, dental

or surgical diagnosis or treatment, and hospital care by a

dentist licensed under the Dental Practice Act [Family Code

Section 6901].

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“Medical care” means X-ray examination, anesthetic,

medical or surgical diagnosis or treatment, and hospital

care under the general or special supervision and upon the

advice of or to be rendered by a physician and surgeon

licensed under the Medical Practice Act [Family Code

Section 6902].

“Parent or guardian” means either parent if both parents

have legal custody, or the parent or person having legal

custody, or the guardian, of a minor [Family Code Section

6903].

This procedure should be used only when the minor is not

legally authorized to consent to his or her own treatment

and when the minor’s parents, guardians or caregiver under

the Caregiver’s Authorization Affidavit, are not available.

CHA has developed a form, “Authorization for Third-Party

Consent to Treatment of Minor Lacking Capacity to

Consent” (CHA Form 2-3) for parents to complete when

they wish to authorize another person to consent for health

care for their child.

The “Authorization for Third Party to Consent to

Treatment of Minor Lacking Capacity to Consent” (CHA

Form 2-3) also authorizes the hospital to surrender the

physical custody of a minor to the authorized agent(s)

of the parent(s) upon completion of treatment. Such an

authorization is required before the hospital may surrender

the physical custody of a minor who is not authorized to

give consent and who is under the age of 16 to someone

other than the minor’s parent, guardian, or caregiver

pursuant to the caregiver’s authorization affidavit. In

addition, the law requires the hospital to report such

releases [Health and Safety Code Section 1283].

Content and Form of Authorization

Written Authorization. The authorization must be in

writing. It may be prepared by a parent who has legal

custody or another person who has legal custody (e.g.,

guardian). There is no requirement that the authorization be

completed in the presence of hospital personnel or that it

be dated.

Authorized Third Person. The designated third person

may be any adult into whose care the minor has

been entrusted.

It is permissible to identify the authorized adult person

by title and employer rather than by name (e.g., Athletic

Coach, John F. Kennedy High School, Sacramento). The

treating health care provider should not be authorized as

a third party to consent to the treatment of a minor. (See

“Authorizing the Provider as the Third Party” below.)

Preference for CHA Form. The form “Authorization for

Third Party to Consent to Treatment of Minor Lacking

Capacity to Consent” (CHA Form 2-3) has been developed

to comply with Family Code Section 6910. While it is the

preferred authorization in content and form, a comparable

authorization signed by the parent(s) or guardian can

be used.

Recommended Procedure

Where an adult who is not the parent or guardian seeks

care for a minor with injury or illness which is not an

emergency, the provider should request a copy of the

parent’s authorization and include it in the minor’s medical

record. Even where third party authorization is provided,

it is prudent to attempt to contact the parent to confirm

consent, and to inform the parent of the status of the minor.

If the adult does not have a written authorization and

emergency care is not necessary, the provider should

contact the parent(s) or guardian to obtain consent for

treatment. If it is not possible to contact the parent(s)

or guardian, the provider should apply first aid, where

necessary, and consult with the adult regarding the

necessary steps to be taken for further care.

Neighbors, Sitters and Other Noninstitutional Child

Care Custodians

It is advisable that parents provide neighbors, adult

babysitters and others to whom they entrust their children,

a written authorization for consent to treatment along

with a list of emergency phone numbers. When such an

authorization is presented to a health care provider, an

attempt should be made to contact and confer with the

parents or other responsible person regarding the situation;

however, the minor would still be able to get medically

necessary care pursuant to the authorization.

When no authorization is provided and emergency care

is not necessary, the provider must contact the parent(s)

or guardian to obtain consent prior to treatment. If it is

not possible to contact the parent(s) or guardian, the

provider should apply first aid, if necessary, and consult

with the adult regarding the necessary steps to be taken for

further care.

Authorizing the Provider as the Third Party

Except for special circumstances addressed in the law

(e.g., interdisciplinary teams in long-term care facilities),

the treating health care provider should not be authorized

as a third party to consent to treatment of a minor. The

treating physician should discuss the situation and

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proposed treatment with another person who is authorized

to consent.

Health care providers can best serve their communities by:

1. Educating parents in their service area about the

need to provide written authorizations for specified

third parties to give consent for medical treatment for

their children;

2. Developing model forms for parents to use that meet

the legal requirement for authorization to consent to

treatment of a minor; and

3. Providing local parents with the opportunity to keep a

record of information about their child’s basic health

history, medications, and emergency contacts at

the facility.

D. Special Situations Involving Minors Lacking

Legal Authority to Consent

MINORS PLACED FOR ADOPTION

Where an adoption agency has obtained a relinquishment

from the birth parent but the minor has not yet been legally

adopted, the adoption agency may consent to medically

necessary treatment.

Where the birth parents have not yet formally relinquished

the child for adoption, a continuing consent for

medical treatment should be obtained from the birth

parents. This may be done by completing the “Health

Facility Minor Release Report” (California Department

of Social Services form AD-22). This form may be

downloaded at www.dss.cahwnet.gov/cdssweb/entres/

forms/english/ad22.pdf.

CHILDREN OF MINOR PARENTS

The law requiring parental consent to treat minors makes

no distinction based on the age of the parent [Uniform

Parentage Act, Family Code Section 7600 et seq.]. Thus,

a minor parent may validly consent to medical or surgical

treatment for his or her child. However, the minor parent

must demonstrate the ability to understand the nature of

the treatment, its risks and benefits, and any alternatives

to the treatment, as with any situation requiring informed

consent (see B.“Capacity to Consent,” page2.37).

Therefore, a provider may determine that a minor parent

does not have the requisite maturity to make health care

decisions for his or her child. Typically, the minor parent will

authorize the grandparent to make health care decisions

on behalf of the child. However, where there is conflict

between the minor parent and other responsible adults, the

provider should seek legal advice.

In order to assure financial responsibility if the minor parent

is not emancipated or self-sufficient, the signature of some

responsible adult, such as the mother’s parents, also

should be obtained on the “Conditions of Admission” form

(CHA Form 8-1).

MINORS WHO ARE ALSO PARENTS

Since parenthood is not an emancipating event, an

unmarried minor parent who is living with his or her

parents or other responsible adult is not authorized under

the law to consent to his or her own medical treatment.

Thus, although it does not seem logical, a 14-year-old girl

living with her parents may not legally consent to her own

medical treatment (with those exceptions that apply to all

minors), but she may legally consent to medical treatment

for her baby.

MINORS WHO ARE ILL OR INJURED DURING SCHOOL

HOURS

When a minor is ill or injured during regular school hours,

reasonable medical treatment may be provided without

parental consent if the minor’s parent(s) or guardian cannot

be reached. This does not apply if the parent(s) or guardian

has filed with the school district a written objection to any

medical treatment other than first aid. [Education Code

Section49407] Treatment is limited to medical treatment

that is “reasonable” under the circumstances. This does not

include procedures involving significant risk or invasiveness.

The law provides immunity from liability to a school district,

officer of a school district, school principal, physician or

hospital treating any child in any school in any district. It

is not clear whether this law also applies when minors

attending private schools are treated.

Before relying on this law, however, a provider should

attempt to contact parents and determine whether a

written objection has been filed with the school (or the

school district). Schools typically have on file the name

and telephone number of a student’s parent or guardian

authorized to consent to medical treatment for the student.

NONABANDONED MINORS WHOSE PARENTS ARE

UNAVAILABLE

A minor may have parents who are unavailable. This

situation usually arises when the parents are incarcerated

or on a trip, or when the minor is away from home or in

the care or custody of law enforcement agencies, a camp,

sitter, foster home, foster parents pending adoption, and

the like.

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In such cases, the parents, guardian, or a legally authorized

caregiver may authorize a third party to consent to medical

treatment of the minor (see C.“Third-Party Consent for

Treatment of Minors,” page2.30). The third party must be

an adult, and the authorization must be in writing. [Family

Code Section 6910]

Also, as discussed below, Family Code Section 6911

provides that a superior court, upon a petition to the court

by a minor, may summarily grant consent if the parents of

a minor who is 16 years of age or older are unavailable to

provide consent.

COURT AUTHORIZATION: MINORS 16 YEARS OF AGE

OR OLDER

If the parents or guardian of a minor 16 years of age or

older are unavailable to consent to medical treatment that

requires their consent, a superior court may summarily

grant consent upon an application of the minor. The minor

must be a California resident. [Family Code Section 6911]

A copy of the court order should be obtained and placed in

the patient’s medical record before treatment is furnished

pursuant to the order. No fee is charged by the court for

proceedings under this law.

ABANDONED MINORS

It must first be established that the minor has been

abandoned or deserted by the parents. If so, the local

juvenile court or probation department should be contacted

for assistance.

Family Code Section 6911, regarding consent by the

superior court (discussed above), also applies under

these circumstances.

DEPENDENTS AND WARDS OF THE JUVENILE COURT

Under certain circumstances, a minor may be

adjudged either:

1. A dependent child of the juvenile court under Welfare

and Institutions Code Section 300 (a child in danger of

abuse or neglect); or

2. A ward of the juvenile court under Welfare and

Institutions Code Sections 601 (a disobedient or truant

child) or 602 (a child who has committed a crime).

After adjudication, parents are allowed to consent to health

care for the child, unless the court takes away that right.

A copy of the court order should be obtained, reviewed

carefully, and placed in the child’s medical record before

treatment is furnished. In addition, the court may authorize

medical treatment for the child. [Welfare and Institutions

Code Sections 362 (dependent) and 727 (ward)]

Even before a final adjudication is made, the court may

order medical treatment for a minor who is the subject of

a petition for dependent child or ward status if the parent/

guardian or other person who is authorized to consent is

unwilling or unable to consent to treatment and a written

recommendation for treatment has been obtained from a

physician [Welfare and Institutions Code Sections 369(b)

and 739(b)].

Psychotropic Medications

If a child is in the custody of the juvenile court (whether

as a dependent child or a ward) and the child has been

removed from the physical custody of the parent, only a

juvenile court judicial officer has the authority to order the

administration of psychotropic medications for the child.

However, the juvenile court may issue an order delegating

this authority to a parent upon finding that the parent poses

no danger to the child and has the capacity to authorize

the administration of psychotropic medications.

Court authorization for the administration of psychotropic

medication is based on:

1. The child’s overall mental health assessment and

treatment plan,

2. The rationale for the proposed medication (provided in

the context of past and current treatment efforts),

3. Other pharmacological and nonpharmacological

treatments that have been used and the child’s

response to those treatments,

4. A discussion of symptoms not alleviated or ameliorated

by other current or past treatment efforts, and

5. An explanation of how the psychotropic medication

being prescribed is expected to improve the child’s

symptoms.

The court and various state agencies have developed

policies and procedures and forms to implement this

requirement. The process includes periodic oversight by

the court of orders for psychotropic medications, facilitated

by the county social worker, public health nurse, or

other appropriate county staff. This oversight process is

conducted in conjunction with other regularly scheduled

court hearings and reports provided to the court by the

county child welfare agency. The forms to implement this

law are found at www.courts.ca.gov/forms.htm. (See

form JV-217-INFO, for information about the various

Judicial Council forms regarding consent for psychotropic

medications.)

For the purposes of this law, “psychotropic medications”

means medications administered for the purpose of

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affecting the central nervous system to treat psychiatric

disorders or illnesses. These medications include, but are

not limited to, anxiolytic agents, antidepressants, mood

stabilizers, antipsychotic medications, anti-Parkinson

agents, hypnotics, medications for dementia, and

psychostimulants. [Welfare and Institutions Code Section

369.5 and 739.5]. (See B.“Antipsychotic Medications,”

page2.42, regarding consent to antipsychotic

medications.)

A copy of the applicable court order, if any, should be

obtained and placed in the medical record.

MINORS IN CUSTODY OF A SOCIAL WORKER OR

PROBATION OFFICER

Absent special circumstances, social workers and

probation officers do not have the authority to consent to

treatment for minors in their custody. The parents retain

this right. Exceptions to this general rule are described

below. In addition to the exceptions in the law described

below, the juvenile court may order that the social worker or

probation officer be given the power to authorize medical

treatment if the parent or guardian is unwilling or unable to

do so [Welfare and Institutions Code Sections 369(c) and

739(c)]. Many courts have issued “standing orders” that

give social workers and probation officers in the court’s

jurisdiction the right to consent for specified medical

treatment. Hospitals should consult their county juvenile

court for information.

Minor in Temporary Custody

If a minor is in temporary custody, a social worker or

probation officer may, upon recommendation of the

attending physician, authorize necessary medical treatment

if he or she first notifies the parent or guardian. If the parent

or guardian objects, treatment can be provided only upon

order of the court. [Welfare and Institutions Code Sections

369(a) and 739(a)]

Minor in Custody of Probation Officer

If the court has ordered the custody of a minor to be

under the supervision of a probation officer, the officer may

place the minor in the home of a relative. In that case, the

court may authorize the relative to consent for the minor’s

medical, surgical and dental care. [Welfare and Institutions

Code Section 727(a)(1)]

Providers who are caring for these minors must request a

copy of either the parent’s consent or an order from the

court authorizing treatment or specifying that the probation

officer or relative may consent on behalf of the minor.

Emergency

In an emergency situation, emergency medical, surgical

or dental treatment may be provided by a physician or

dentist, as appropriate, without a court order and upon

authorization of a social worker or probation officer. The

consent of a parent, guardian or other legally-authorized

person is not required, but reasonable efforts must be

made by the social worker or probation officer to obtain

such consent or at least to notify the parent(s) or guardian

prior to authorizing the treatment. [Welfare and Institutions

Code Sections 369(d) and 739(d)]

Minor Has Authority to Consent

For those treatments for which a minor can legally

provide his or her own consent, no court order or other

authorization is necessary.

MINORS IN CUSTODY OF FOSTER PARENTS

A child may become a “dependent child of the juvenile

court” (often referred to as a “foster child”) when the parent

is not properly caring for the child. This usually happens

after a complaint to a local child protective services agency

is investigated by a social worker. After investigating, the

social worker will do one of the following:

1. Not take any action, if there is no evidence of abuse or

neglect that requires court involvement.

2. Offer the parent services to help him or her learn how

to parent the child more safely.

3. Leave the child in the parent’s care and file a petition

with the court that asks to the court to open a case to

protect the child.

4. Take custody of the child from the parent and file a

petition with the court that asks the court to open a

case to protect the child. The social worker must file

the petition within two court days of removing the child.

The social worker may place the child with the other

parent (if they are separated), with a relative, or in a

foster home.

The parents retain the legal authority to consent to health

care on behalf of the child, unless a court order says

otherwise. In addition, foster parents may provide consent

in some circumstances.

A foster parent’s right to consent to treatment for a minor

depends upon whether the child has been placed with the

foster parent:

1. By court order or with the consent of the child’s legal

custodians; or

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2. On a temporary basis before a detention hearing has

been held.

Licensed foster care providers may consent to “ordinary”

medical and dental treatment for a minor placed with them

pursuant to a court order or with the voluntary consent

of the parent or guardian. “Ordinary” medical and dental

treatment includes, but is not limited to, immunizations,

physical examinations and X-rays [Health and Safety Code

Section 1530.6].

Foster parents who have custody of a child on only a

temporary basis prior to a detention hearing and court

ordered placement do not have this same authority.

Therefore, they do not have the right to consent to medical

treatment for the child under that law.

However, providers should look to the local juvenile court

for guidance in such situations. Many courts have issued

“standing orders” that give all foster parents in the court’s

jurisdiction the right to consent for specified medical

treatment. Hospitals should consult their county juvenile

court for information.

Written evidence of the foster parent’s authority (e.g., a

copy of a court order or the consent of the child’s parent

or guardian) should be obtained and placed in the child’s

medical record before proceeding with treatment. The

provider should consult legal counsel if questions arise

about consent for minors in the custody of foster parents.

MINORS WHO ARE SUSPECTED VICTIMS OF CHILD

ABUSE

Special Law for X-Rays

Health care providers are required to report suspected

cases of child abuse and neglect to law enforcement

officers. Chapter 11 contains detailed information about

child abuse reporting requirements as well as consent

for examination and treatment of suspected child

abuse victims.

A physician or dentist (or their agents at their direction)

may take skeletal X-rays of a child without the consent of

the child’s parent or guardian, but only for the purpose

of diagnosing the case as one of possible child abuse or

neglect and determining the extent of the abuse or neglect

[Penal Code Section 11171.2].

Additionally, if a peace officer in the course of investigation

of child abuse or neglect has reasonable cause to believe

that the child has been physically abused, the officer may

apply to a magistrate for an order directing that the child

be X-rayed without parental consent [Penal Code Section

11171.5]. X-rays performed pursuant to such an order must

be performed by a physician or dentist or their agents.

Reimbursement by the county for administrative costs of

these X-rays will not exceed 5 percent of the cost of the

X-rays.

Other Treatment

If further treatment beyond X-rays is necessary and the

parents object, the hospital should consult legal counsel. It

may be appropriate to seek a petition to declare the minor

a dependent child of the juvenile court under Welfare and

Institutions Code Section 300 for the purposes of assuring

that he or she receives the proper medical care.

If the minor has been raped or sexually assaulted, the minor

may give consent to medical treatment (see “Minor Victims

of Sexual Assault,” page2.41, and “Minor Rape Victims,”

page2.41).

MINORS RECEIVING MEDICATION ASSISTED

TREATMENT FOR OPIOID USE DISORDERS

An opioid treatment program (OTP) must be certified by

the U.S. Substance Abuse and Mental Health Services

Administration (SAMHSA) to dispense opioid drugs to treat

opioid use disorder. In addition, a practitioner who intends

to dispense opioid drugs to treat opioid use disorder must

first obtain from SAMHSA a certification that he or she is

qualified and will comply with SAMHSA rules.

An OTP must ensure that patients are admitted to

maintenance treatment by qualified personnel who have

determined, using accepted medical criteria such as those

listed in the Diagnostic and Statistical Manual for Mental

Disorders, that the person is currently addicted to an

opioid drug, and that the person became addicted at least

one year before admission for treatment. In addition, a

program physician shall ensure that each patient voluntarily

chooses maintenance treatment and that all relevant facts

concerning the use of the opioid drug are clearly and

adequately explained to the patient, and that each patient

provides informed written consent to treatment.

A person under 18 years of age is required to have had

two documented unsuccessful attempts at short-term

detoxification or drug-free treatment within a 12-month

period to be eligible for maintenance treatment. No person

under 18 years of age may be admitted to maintenance

treatment unless a parent, legal guardian, or responsible

adult designated by state law consents in writing to

such treatment.

“Maintenance treatment” means the dispensing of an

opioid agonist treatment medication at stable dosage levels

for a period in excess of 21 days in the treatment of an

individual for opioid use disorder.

[42 C.F.R. Sections 8.2, 8.11 and 8.12]

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E. Minor’s Disagreement with Parent or Other

Legal Representative Regarding Treatment

Medical providers occasionally encounter situations in

which minors who do not have the legal authority to make

health care decisions indicate a desire to refuse treatment

that their parents or other legal representatives wish

them to have — or conversely, wish to have treatment

that their parents or other legal representatives decline.

Although minors are considered legally incompetent to

make decisions in many areas of medical care by virtue of

their age, nevertheless it is appropriate to discuss medical

decisions with them in a manner appropriate to their age.

Ascertainment of the child’s preference for treatment was

specifically approved in the case In re Christopher I. (see

“Dependents and Wards of the Juvenile Court,” page2.33).

A minor’s refusal to participate in mental health treatment

presents special challenges for the therapist and may make

treatment unproductive. A therapist is not required to treat

a minor who is voluntarily admitted or who is an outpatient

if the minor declines to cooperate, even if the parent(s) are

insistent. Minors who are involuntarily admitted have a right

to treatment (see D.“Special Situations Involving Minors

Lacking Legal Authority to Consent,” page2.32).

Providers should proceed cautiously in situations where

the minor disagrees with the parents or other legal

representatives, particularly if the treatment or refusal

involves a significant risk of serious adverse consequences.

Providers faced with such situations may wish to consider

the following.

MINOR’S AGE, MATURITY, AND EXPERIENCE WITH

THE TREATMENT IN QUESTION

Remember that the law permits minors as young as

12 years of age to consent to certain treatments. This

suggests that minors of that age may be in a position to

appreciate the risks and burdens of other treatments as

well, and may have reasonable grounds for wishing to

consent to, or refuse, such treatment.

DISAGREEMENT REGARDING THE TREATMENT

DECISION

The provider may be in a position to discuss the treatment

with the minor, clarify any confusion or misunderstanding,

and bring the matter into perspective. It may be helpful to

involve a social worker, psychologist, or other person with

a positive relationship with the minor to help resolve the

disagreement between the minor and the parents or other

legal representative.

If the provider is uncomfortable in providing treatment over

the minor’s objection, the provider may wish to reconsider

the clinical appropriateness of the treatment, or may

decline to participate in the case after taking appropriate

steps to transfer the care of the patient to another health

care provider. It may be appropriate to consult legal

counsel in such situations. Consultation with legal counsel

is strongly encouraged where refusal of care may cause

serious harm to the minor.

IX. MINORS WITH LEGAL AUTHORITY TO

CONSENT

A. Introduction

The California Legislature has enacted a series of laws,

discussed below, authorizing particular categories of

minors to consent to various medical services. Many of

these laws also include provisions relating to parental

notice and payment for the minor’s medical care. Minors

may be legally authorized to consent to their own medical

care in two different ways:

1. Because of their quasi-adult status (emancipated,

self-sufficient, on active duty in the military, or

married/previously married), or

2. Because of the type of treatment they are seeking

(pregnancy or contraceptive care, communicable

reportable disease, rape or sexual assault treatment,

etc.).

This section of the manual describes those circumstances.

Welfare and Institutions Code Section 14010 states that the

parents of a minor are not financially responsible for health

care or related services to which the minor may legally give

consent. (See C.“Financial Responsibility for Treatment of

Minors,” page2.25, for further information.)

Under state and federal law, a minor has a privacy right

in health information resulting from services to which

the minor is authorized to consent. This is true even

if, as a practical matter, the minor’s parent or guardian

actually gives consent. Thus, in order to ensure HIPAA

compliance and to avoid privacy breaches, providers must

also understand the instances in which a minor has legal

authority to consent to treatment. (See D.“Privacy Rights of

Minors,” page2.25, for additional information.)

A minor who would otherwise have the legal authority to

consent to medical treatment may not do so if he or she

does not understand the nature and consequences of

the proposed health care, including its significant benefits,

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risks, and alternatives (see B.“Capacity to Consent”

below). Legal counsel should be consulted if doubt

exists about whether a particular minor may consent to

medical treatment.

B. Capacity to Consent

Even where the law specifies that a minor is legally

authorized to consent to his or her own care, the doctrine

of informed consent requires that a determination be made

that, in fact, the minor has the capacity to make health

care decisions. California law defines capacity for adults in

the context of advance health care directives. “Capacity”

means that the person has the ability to understand the

nature and consequences of a decision and to make

and communicate a decision, and includes, in the case

of proposed health care, the ability to understand its

significant benefits, risks and alternatives [Probate Code

Section 4609]. The primary physician determines the

patient’s capacity to make health care decisions [Probate

Code Sections 4657 and 4658].

“Primary physician” means a physician designated by a

patient or the patient’s agent, conservator, or surrogate, to

have primary responsibility for the patient’s health care or, in

the absence of a designation or if the designated physician

is not reasonably available or declines to act as primary

physician, a physician who undertakes the responsibility

[Probate Code Section 4631].

There is no specific statute defining capacity for a

minor. Providers should consult the adult standard as a

guideline (see “Determination of Capacity,” page2.12). In

addition, providers may look to the mature minor doctrine,

applicable in other states (not in California), that suggests

that a minor who has reached a certain age (typically

14), and demonstrates an understanding of the risks and

benefits of a medical treatment, does not need parental

consent for such treatment, regardless of the minor’s

legal status. Under the mature minor doctrine, some key

considerations when working with minors who are seeking

treatment without the consent of a parent or other legal

representative are:

1. Does the minor understand the nature of the treatment,

its risks, benefits, and alternatives?

2. Does the minor appreciate the potential consequences

of the treatment and of foregoing treatment?

3. Can the minor make a reasoned decision based on the

information provided?

4. Is the proposed treatment for the benefit of the minor,

and not for the benefit of another person?

5. Is the proposed treatment medically necessary?

6. Does the treatment, or its consequences, involve

complex, high-risk medical care?

(See B.“The Evolution of the Rights of Minors,” page2.24,

for more information about the mature minor doctrine.)

If the minor has the legal authority to consent to his or her

own health care, the provider should take extra care to

explain, in terms that are understandable to the minor, the

elements necessary to making an informed decision about

the proposed treatment (see A.“Elements of Informed

Consent,” page2.5).

If a minor lacks the capacity to provide informed consent

to treatment which the law otherwise would allow, the

health care provider does not necessarily have the

authority or responsibility to contact the minor’s parents.

Communications with the minor, as with any adult patient,

are generally confidential and subject to medical privacy

laws. In such circumstances the health care provider

should attempt to obtain the agreement of the minor to

contact the parent or guardian. Legal counsel should be

consulted if the minor refuses and may forego necessary

medical care.

If a parent or other legal representative is providing

consent on behalf of a patient who lacks the capacity to

make a health care decision, the parent or other legal

representative must have the capacity to make health care

decisions.

C. Emancipation Pursuant to Court Order

A minor 14 years of age or older may petition the court

for emancipation. If the court grants the request, the

Department of Motor Vehicles will issue an identification

card that states that the minor is emancipated. The

provider should obtain a copy of the identification card and

place it in the patient’s medical record. A person who, in

good faith, examines a minor’s identification card and relies

on a minor’s representation that he/she is emancipated, will

be protected under the law [Family Code Sections 7120,

7140 and 7141].

An emancipated minor may consent to his or her own

medical, dental or psychiatric care without parental

consent, knowledge, or liability [Family Code Sections 7002

and 7050(e)(1)].

However, the parents of an emancipated minor who is

living in the home of the parent(s) may be responsible

for the minor’s medical expenses, with the exception of

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services described in Family Code Sections 6924 through

6929 (see CHA Appendix 2-B, “Consent Requirements

for Medical Treatment of Minors,” for a description of what

these services are) [Welfare and Institutions Code Section

14010(b)]. Hospitals should be aware of the privacy rights

of such minors and obtain the minor’s consent prior to

sending the parents a bill (see C.“Financial Responsibility

for Treatment of Minors,” page2.25).

If the minor does not have an identification card, the

facility should determine if he or she is self sufficient under

Family Code Section 6922 (see D.“Self-Sufficient Minors,”

page2.38) and, therefore, capable of granting a valid

consent under that law.

D. Self-Sufficient Minors

A self-sufficient minor is legally authorized to consent

to medical or dental care without parental or guardian

consent, knowledge, or financial liability. To be considered a

self-sufficient minor, the minor must:

1. Be 15 years of age or older;

2. Be living separate and apart from his or her parent(s)

or legal guardian, whether with or without the consent

or acquiescence of his or her parent(s) or legal

guardian. The duration of the separate residence is

irrelevant; and

3. Be managing his or her financial affairs, regardless of

the source of income.

[Family Code Section 6922]

A health care provider should make a good faith attempt to

determine whether the above requirements are met. While

a provider may be able to verify the minor’s age (e.g., by

reference to a driver’s license, school identification card, or

birth certificate), the other requirements are more difficult

to verify. A health care provider may ask questions to help

determine whether the minor is living separate and apart

from his parents or is managing his or her financial affairs,

but it may be difficult to verify the truthfulness of the minor’s

answers. Furthermore, the law provides no guidance

whatsoever to making those determinations. For example,

the law does not specify that the minor must have a job or

a bank account to be considered self-sufficient — or that

if the minor has a job or bank account, this demonstrates

that he or she is self-sufficient. Providers are advised to

make a good faith effort to determine whether the minor

meets the requirements listed above, and document the

information obtained from the minor thoroughly.

DEFINITIONS

“Medical care” means “X-ray examination, anesthetic,

medical or surgical diagnosis or treatment, and hospital

care” under the supervision and upon the advice of a

licensed physician [Family Code Section 6902].

“Dental care” means “X-ray examination, anesthetic, dental

or surgical diagnosis or treatment, and hospital care” by a

licensed dentist [Family Code Section 6901].

Psychiatric care is not explicitly included within the

definition of “medical care” to which a self-sufficient minor

may consent. Because the definition of health care to which

an emancipated minor may consent explicitly discusses

psychiatric care, and because there is a statute that

explicitly discusses minor consent to outpatient psychiatric

care, an argument may be made that a self-sufficient minor

may not consent to psychiatric care pursuant to Family

Code Section 6922. A health care facility should consult its

own legal counsel regarding the advisability of permitting a

self-sufficient minor to consent to his or her own inpatient

psychiatric care (or outpatient care if the requirements

of Family Code Section 6924 or Health and Safety Code

Section 124260 do not apply). (See G.“Minors in Need of

Outpatient Mental Health Treatment or Residential Shelter

Services,” page2.39, regarding consent by minors to

outpatient mental health treatment.)

DOCUMENTATION

The minor should affirm that the above conditions are

met and complete the “Self-Sufficient Minor Information”

(CHA Form 2-1). In the absence of evidence to the

contrary, the hospital may reasonably believe that the

affirmations made in CHA Form 2-1 are correct without

independent verification.

NOTIFYING PARENT/GUARDIAN

The treating physician may inform a self-sufficient minor’s

parent(s) or guardian of the treatment given or needed with

or without the minor’s consent, if the minor has told the

physician where the parents or guardian may be contacted.

[Family Code Section 6922(c)] However, this authority

should be exercised with caution and with due respect for

the minor’s privacy rights.

E. Minors on Active Duty with U.S. Armed Forces

A minor, regardless of age, while serving on active duty with

any branch of the U.S. armed services is emancipated and

may consent to medical, dental, or psychiatric care without

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parental consent, knowledge, or liability [Family Code

Sections 7002 and 7050(e)(1)]. The hospital may wish to

photocopy the patient’s active duty military identification

card and include it in the medical record.

F. Married or Previously Married Minors

A minor who has entered into a valid marriage or domestic

partnership, whether or not it was later terminated by

dissolution (divorce) or death of the spouse or partner,

is emancipated and may consent to medical, dental or

psychiatric care without parental consent, knowledge, or

liability [Family Code Sections 7002 and 7050(e)(1)].

The provider may wish to require a person under 18 years

of age who claims that he or she is or was married or in a

domestic partnership to present a copy of the marriage or

domestic partnership certificate.

California does not recognize so-called “common

law” marriages.

G. Minors in Need of Outpatient Mental Health

Treatment or Residential Shelter Services

A minor 12 years of age or older may consent to mental

health treatment or counseling on an outpatient basis or to

residential shelter services if:

1. He or she is, in the opinion of the attending

professional person, mature enough to participate

intelligently in the outpatient services or residential

shelter services; and

2. The minor would present a danger of serious physical

or mental harm to self or to others without the mental

health treatment or counseling or residential shelter

services, or the minor is the alleged victim of incest

or child abuse. This requirement need not be met

with respect to mental health treatment or counseling

services (it still applies to residential shelter services);

however, Medi-Cal may not cover these services

unless this requirement is met. (See C.“Financial

Responsibility for Treatment of Minors,” page2.25.)

[Family Code Section 6924; Health and Safety Code

Section 124260]

However, this law does not allow minors to consent to

convulsive therapy, psychosurgery or psychotropic drugs.

Psychotropic drugs include antidepressants, antianxiety

medications, antipsychotics, and other medications

commonly prescribed for mental health patients.

DEFINITIONS

“Mental health treatment or counseling services” means

the provision of such services on an outpatient basis by any

of the following:

1. A governmental agency.

2. A person or agency having a contract with a

governmental agency to provide the services.

3. An agency that receives funding from community

united funds.

4. A runaway house or crisis resolution center.

5. A professional person (as defined below).

A “professional person” includes a psychiatrist, clinical

psychologist, marriage and family therapist, licensed

educational psychologist, credentialed school psychologist,

licensed professional clinical counselor, licensed clinical

social worker, and others [Family Code Section 6924(a)

(2); Health and Safety Code Section 124260(a)(2); Title 9,

California Code of Regulations, Sections 622-626].

“Residential shelter services” means the provision of

residential and other support services to minors on a

temporary or emergency basis in a facility that services

only minors by a governmental agency, a person or agency

having a contract with a governmental agency to provide

these services, an agency that receives funding from

community funds, or a licensed community care facility

or crisis resolution center. Residential shelter services

also include other support services on a temporary or

emergency basis by a professional person.

PARENTAL INVOLVEMENT/LIABILITY

The consent of the parent(s) or guardian for mental health

treatment or counseling is not necessary and they will

not be liable for payment for the minor’s care unless they

participate, and then only for the services rendered with

such participation. The minor’s parent(s) or guardian must

be given the opportunity to participate in the treatment or

counseling unless the professional person who is providing

the treatment or counseling deems it inappropriate. The

professional person must consult with the minor prior to

making this determination. (This law does not require the

professional to cease treating a minor if the parents are

contacted but refuse to participate in and/or object to

the minor’s receiving such treatment.) The professional

responsible for treating the minor must document in the

patient’s record whether and when he or she attempted to

contact the minor’s parent(s) or guardian, whether or not

they were contacted, or the reason why it would not be

appropriate to contact the parent(s) or guardian.

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A professional person offering residential shelter services,

whether as an individual or as a representative of an entity,

must make his or her best efforts to notify the parent or

guardian of the provision of services. The minor’s parents

or guardian are not liable for payment for residential

shelter services unless they consent to the provision of

those services.

PRIVACY IMPLICATIONS

Under state and federal law, a minor has a privacy right

in health information resulting from services to which the

minor is authorized to consent. This is true even if, as a

practical matter, the minor’s parent or guardian actually

gives consent. Thus, a parent may take his adolescent

child to a private therapist for treatment of an eating

disorder. Even though the parent or guardian solicits

and consents to the services, privacy laws prevent the

therapist from disclosing health information to the parent

or guardian (without the minor’s authorization) because,

under state law, the minor could have obtained those

services independent of the parent or guardian, and the

minor has not requested that the parent or guardian be

treated as the minor’s personal representative under

the Health Insurance Portability and Accountability Act

(HIPAA). Both the Confidentiality of Medical Information Act

and HIPAA contain an exception to privacy requirements to

permit disclosure of limited information to a family member

if the information is directly relevant to the family member’s

involvement with the patient’s care. However, there are

limitations on this exception (see I.“Minor’s Medical

Records,” page6.12, and E.“Family and Friends: Patients

Covered by CMIA,” page6.7). In addition, this exception

does not apply to records and information covered by

the Lanterman-Petris-Short Act. [45 C.F.R. Sections

164.502(g) and 164.510(b); Civil Code Sections 56.11(c) and

56.1007; Health and Safety Code Sections 123110 and

123115; Welfare and Institutions Code Section 5328]

LIMITATIONS

This law does not authorize a minor to receive convulsive

therapy, psychosurgery, or psychotropic drugs without

the consent of his parent(s) or guardian according to the

appropriate legal requirements. (See X.“Treatments That

Require Special Consent,” page2.42.)

H. Minors with Drug- or Alcohol-Related

Problems

A minor 12 years of age or older may consent to medical

care and counseling relating to the diagnosis and treatment

of a drug- or alcohol-related problem. “Counseling” is

defined, for the purposes of this law, as the provision of

counseling services by a provider under a contract with

the state or a county to provide alcohol or drug abuse

counseling services. “Medical care” is defined, for the

purposes of this law, as X-ray examination, anesthetic,

medical or surgical diagnosis or treatment, as well as

hospital care under the supervision of a physician. [Family

Code Sections 6902 and 6929]

The consent of the minor’s parent(s) or guardian is not

necessary and they will not be liable for payment of

the minor’s care unless they participate in a counseling

program related to such treatment. The minor’s parent(s)

or guardian must be given the opportunity to participate

in the treatment or counseling unless the professional

who is providing the treatment or counseling deems it

inappropriate. (This law does not require the professional

to cease treating the minor if the parents are contacted but

refuse to participate and/or object to the minor’s receiving

such treatment.) The professional responsible for treating

the minor must document whether and when he or she

tried to contact the minor’s parent(s) or guardian, whether

or not they were contacted, or the reason why it would not

be appropriate to contact the parents or guardian.

“Professional person” means a physician and surgeon,

registered nurse, psychologist, clinical social worker,

marriage and family therapist, marriage and family

therapist registered intern (when appropriately employed

and supervised pursuant to Business and Professions

Code Section 4980.43), psychological assistant (when

appropriately employed and supervised pursuant to

Business and Professions Code Section 2913), associate

clinical social worker (when appropriately employed

and supervised pursuant to Business and Professions

Code Section 4996.18), or associate professional clinical

counselor (when appropriately employed and supervised

pursuant to Business and Professions Code Section

4999.42).

The law explicitly states that a parent or guardian has the

right to seek medical care and counseling for the drug-

or alcohol-related problem of a minor, even if the minor

does not consent to the medical care and counseling

[Family Code Section 6929(f)]. However, if a provider is

uncomfortable treating a minor without his or her consent,

the provider need not do so.

This law does not authorize a minor to receive replacement

narcotic abuse treatment (such as methadone,

levo-alpha-acetylmethadol (LAAM) or buprenorphine

products) without the consent of his or her parent(s) or

guardian [Family Code Section 6929(e)].

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The law explicitly states that where the parent or guardian

has sought medical care and counseling for a drug- or

alcohol-related problem, and the minor receives the care

sought, the physician must disclose medical information

regarding such care to the minor’s parents or guardian

upon their request, even where the minor objects [Family

Code Section 6929(g)]. (However, where the care is

provided in a federally-assisted substance use disorder

program, federal law requires the minor’s consent prior

to release of any patient information.) There is no liability

for such disclosure. This law does not explicitly permit a

hospital or practitioner other than a physician to disclose

information in such circumstances; therefore, it is

recommended that requests for information from a minor’s

parents or guardian be directed to the minor’s physician.

Health and Safety Code Section 1607.5 permits a minor 17

years of age or older to consent to blood donation. A minor

between the ages of 15 and 17 may consent to blood

donation, but the blood bank may accept such donation

only with the written consent of the minor’s parent(s) or

guardian and the written authorization of a physician.

A minor who is at least 15 years of age may make an

anatomical gift with the written consent of a parent or

guardian [Health and Safety Code Section 7150.15].

I. Minors Consenting to Other Procedures

MINORS RECEIVING PREGNANCY OR CONTRACEPTIVE

CARE

A minor, regardless of age or marital status, may consent

to hospital, medical, or surgical care related to treatment

or prevention of pregnancy [Family Code Section 6925].

While the law does not specify the medical treatments that

come within this authorization, it is generally assumed that

contraceptive care (including emergency contraceptive

drugs), abortion, pelvic exams, pregnancy testing, and

prenatal care are medical procedures related to treatment

or prevention of pregnancy. However, this law does not

apply to sterilization procedures.

COMMUNICABLE REPORTABLE DISEASES

When a minor 12 years of age or older may have come into

contact with an infectious, contagious, or communicable

disease that must be reported to the local health officer, or

a related sexually transmitted disease, the minor is able

to consent to medical care related to the diagnosis or

treatment of the disease [Family Code Section 6926]. (See

Title 17, California Code of Regulations, Section 2500(j),

for a list of reportable diseases.) This provision of law

authorizes minors to consent to HIV tests (see “Minors 12

and Older,” page2.56).

In addition, a minor who is 12 years of age or older may

consent to medical care related to the prevention of a

sexually transmitted disease. This provision authorizes

minors to consent to, or refuse to consent to, the

HPV vaccine.

MINOR RAPE VICTIMS

A minor 12 years of age or older who has allegedly been

raped may consent to the furnishing of hospital, medical,

and surgical care related to the diagnosis or treatment of

such condition. This includes access to the “morning after”

pill [Brownfield v. Daniel Freeman Marina Hospital, 208

Cal.App.3d 405(1989)]. The minor may also consent to

the collection of evidence with regard to the alleged rape.

The consent of the minor’s parent(s) or guardian is not

necessary. [Family Code Section 6927; Title 11, California

Code of Regulations, Section 925]

A minor who has been raped has also been sexually

assaulted, according to the legal definitions. It is unclear

why California law contains two different laws pertaining

to these victims (Family Code Sections 6927 and 6928,

which is discussed below). The only difference in the two

laws is that Family Code Section 6928 (regarding sexual

assault) requires the professional person providing medical

treatment to a minor victim of sexual assault to try to

contact the minor’s parent/guardian (unless the treating

professional person reasonably believes the parent/

guardian was the perpetrator). CHA recommends that the

treating professional talk to the minor sexual assault victim

about contacting the parent, and then contact the parent

unless the minor voices significant concern. This discussion

and the outcome should be documented.

NOTE: Providers are required to report cases of alleged

or suspected rape or sexual assault of a minor to local law

enforcement (see chapter 7).

MINOR VICTIMS OF SEXUAL ASSAULT

A minor who has allegedly been sexually assaulted

may consent to the furnishing of hospital, medical, and

surgical care related to the diagnosis and treatment of

such condition. Sexual assault includes, but is not limited

to, rape, sodomy, or oral copulation. The minor may also

consent to collection of medical evidence with regard to the

alleged sexual assault. The consent of the minor’s parent(s)

or guardian is not necessary. [Family Code Section 6928;

Title 11, California Code of Regulations, Section 925]

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The professional person providing the medical treatment

must attempt to contact the minor’s parent(s) or guardian

and note the date and time of such contact or, if

unsuccessful, when contact was attempted. However,

the professional person need not make this contact if he

or she reasonably believes that the parent(s) or guardian

committed the sexual assault on the minor. [Family Code

Section 6928; Title 11, California Code of Regulations,

Section 925]

NOTE: Providers are required to report cases of alleged

or suspected rape or sexual assault of a minor to local law

enforcement (see chapter 7).

MINOR VICTIMS OF INTIMATE PARTNER VIOLENCE

A minor 12 years of age or older and who states he or

she was injured as a result of intimate partner violence

may consent to medical care related to the diagnosis or

treatment of the injury as well as the collection of evidence.

“Intimate partner violence” means an intentional or

reckless infliction of bodily harm perpetrated by a person

with whom the minor has or has had a sexual, dating, or

spousal relationship.

The law states that if a report is made under Penal Code

Section 11160 (see III.“Reporting Injuries by Firearm or

Assaultive or Abusive Conduct (“Suspicious Injuries”),”

page7.3), the provider must:

1. Inform the minor that the report will be made, and

2. Attempt to contact the minor’s parent or guardian and

inform them of the report. The provider must document

in the minor’s medical record the date and time of the

attempt to contact the parent or guardian, and whether

the attempt was successful or unsuccessful. However,

this paragraph does not apply if the provider believes

the minor’s parent or guardian committed the intimate

partner violence.

The law does not say whether the above steps must be

taken if a child abuse report is made. (See chapter 7 for

detailed information about suspicious injury and child

abuse reports.)

[Family Code Section 6930]

NOTE: If the minor is allegedly a victim of rape or sexual

assault, the provider should follow the laws described

under “Minor Rape Victims,” page2.41 or “Minor Victims

of Sexual Assault,” page2.41, instead of this law. This

law likely applies to physical violence that is not sexual

in nature.

J. Summary of Consent Requirements Regarding

Minors

CHA has included a table at the end of this manual

titled “Consent Requirements for Medical Treatment of

Minors” (CHA Table 2-B) summarizing consent issues

regarding minors.

X. TREATMENTS THAT REQUIRE SPECIAL

CONSENT

A. Background

As discussed in II.“Why Consent is Necessary,” page2.1,

California law imposes a duty on physicians to obtain

the patient’s informed consent for a complex procedure.

[Cobbs v. Grant, 8 Cal.3d 229 (1972)] To enable a patient

to make an informed decision about whether to consent to

a procedure, the law requires the physician to explain to the

patient the nature of the proposed treatment; its expected

benefits and effects; its possible risks and complications;

any alternative forms of treatment; their benefits, risks and

complications; and any potentially conflicting interests

(such as research or financial interests) the physician

may have.

The physician generally has discretion to determine the

types of information to provide a patient. However, the

California Legislature, regulatory agencies, and the

courts have imposed special requirements with respect

to the information to be given to a patient in several

circumstances. This chapter details those requirements that

may affect mental health facilities. A complete list of these

circumstances (for example, hysterectomy, sterilization,

reuse of hemodialysis filters, etc.) may be found in chapter

4 of CHA’s Consent Manual.

B. Antipsychotic Medications

This section of the manual describes the laws related to

consent for antipsychotic medications given to mental

health patients, both voluntary and involuntary, in acute

psychiatric hospitals and in psychiatric units of general

acute care hospitals. Skilled nursing facility residents and

inmates in county jails and state prisons are protected by

different laws (see Health and Safety Code Section 1418.9;

Penal Code Sections 2602 and 2603; Title 22, California

Code of Regulations, Sections 72082, 72092 and 72828).

Specific procedures must be followed with respect to

the administration of antipsychotic medications to both

voluntary and involuntary patients. This section describes

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these requirements. If a use of an antipsychotic medication

falls within the definition of a drug used as a restraint, the

requirements that apply to the use of restraints should also

be followed (see chapter 5).

“Antipsychotic medication” is defined as any drug

customarily used for the treatment of symptoms of

psychoses and other severe mental and emotional

disorders [Welfare and Institutions Code Section 5008(l);

Title 9, California Code of Regulations, Section 856].

VOLUNTARY PATIENTS

Who May Refuse Antipsychotic Medications

Every person admitted as a voluntary patient to a facility

for psychiatric evaluation or treatment has the right to

refuse the administration of antipsychotic medications.

This includes state and county hospitals, private acute

psychiatric hospitals, skilled nursing facilities, and general

acute care hospitals that provide psychiatric services.

However, for this purpose, a voluntary patient does

not include:

1. Voluntary minor patients, unless the minor is otherwise

authorized by law to seek and consent to treatment for

mental illness; or

2. Conservatees (defined in Welfare and Institutions

Code Section 5350 et seq.) whose conservators have

been given the right to require their conservatees to

receive treatment related specifically to remedying or

preventing the recurrence of the conservatees’ being

gravely disabled.

[Title 9, California Code of Regulations, Section 850]

The right to consent to, or to refuse, antipsychotic

medications on behalf of a voluntary minor patient who is

not authorized by law to consent to his or her own mental

health treatment devolves to the parent, guardian, or other

legal representative.

Although not specifically required by law, it is recommended

that the procedures described below for obtaining and

documenting informed consent for the administration of

antipsychotic medications to voluntary patients be followed

to obtain such consent from a parent or guardian of a

voluntary minor patient who is not authorized by law to

consent to the treatment, and from a conservator who has

the right to require the conservatee to receive the treatment.

Informed Consent of Voluntary Patient Generally

Required

A voluntary patient may be treated with antipsychotic

medications only after being informed of the right to

accept or refuse the medications and consenting to the

administration of the medications [Title 9, California Code

of Regulations, Section 851].

Although not specifically required by law, it is recommended

that the procedures described below for obtaining and

documenting informed consent for the administration of

antipsychotic medications to voluntary patients be followed

to obtain such consent from a parent or guardian of a

voluntary minor patient who is not authorized by law to

consent to the treatment, and from a conservator who has

the right to require the conservatee to receive the treatment.

To make an informed decision, the patient must be

provided sufficient information by the physician who

prescribes the medications. The information must include

the following and should be presented in the patient’s

native language, if possible:

1. The nature of the patient’s mental condition.

2. The reason for taking the medication, including the

likelihood of the patient’s improving or not improving

without the medication.

3. A statement that the patient may withdraw his or her

consent at any time. The patient should be advised

that he or she may withdraw the consent by stating

such intention to any member of the treating staff.

4. The reasonable alternative treatments available, if any.

5. The name and type of medication, range of frequency

of administration, range of dosage amount (including

the use of PRN orders), method of administration (oral

or injection) and duration of taking the medications.

6. The probable side effects of the medication that are

known to commonly occur and any particular side

effects likely to occur to the particular patient.

7. The possible additional side effects that may occur

in patients taking the medication longer than three

months. If applicable, the patient must be advised

that side effects may include persistent involuntary

movement of the face or mouth and might also include

similar movement of the hands and feet, and that

these symptoms of tardive dyskinesia are potentially

irreversible and may appear after the medication has

been discontinued.

8. The right to refuse the medication.

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CHA has developed a form, “Consent to Receive

Antipsychotic Medications” (CHA Form 4-7), that may be

used to provide this information to the patient.

Documentation Requirements

The facility must maintain a written record of each voluntary

patient’s decision to consent to receive antipsychotic

medications. The written record must be a written consent

form signed by the patient indicating that each item

listed above has been discussed with the patient by the

prescribing physician. “Consent to Receive Antipsychotic

Medications” (CHA Form 4-7) complies with the applicable

regulations.

If a voluntary patient has been shown but does not wish

to sign the written consent form, it is sufficient for the

physician to place the unsigned form in the patient’s

medical record that is maintained by the facility, together

with a note indicating that while the patient understands

the nature and effect of antipsychotic medications and

consents to these, the patient does not wish to sign a

written consent form. Space has been provided on the

“Consent to Receive Antipsychotic Medications” form

for such a note. [Title 9, California Code of Regulations,

Section 852]

Exception for Emergency Situations

A physician may administer antipsychotic medications

without consent, if it is impracticable to obtain patient

consent, in emergency situations where:

1. There is a sudden marked change in the patient’s

condition which necessitates immediate action in order

to preserve the life of the patient or others, or

2. To prevent serious bodily harm to the patient or others.

If antipsychotic medication is administered during an

emergency, the medication should be only that which is

required to treat the emergency condition and must be

provided in ways that are least restrictive of the personal

liberty of the patient. [Title 9, California Code of Regulations,

Section 853]

Withdrawal of Consent

A voluntary patient may withdraw consent to the

administration of antipsychotic medications at any time by

stating such intention to any member of the treatment staff

[Title 9, California Code of Regulations, Section 854].

Consequence of Refusal to Consent

The refusal of the patient to consent to the administration

of antipsychotic medications does not, in itself, constitute

sufficient grounds for initiating an involuntary commitment

[Title 9, California Code of Regulations, Section 855].

Guidelines developed by the former California Department

of Mental Health indicate that physicians must exercise

professional judgment to determine which methods of

treatment are available and best suited for individual

patients. If a voluntary patient refuses to consent to

antipsychotic medications, the prescribing physician

might consider:

1. Negotiating with the patient regarding the use of

antipsychotic medications; or

2. Using an alternative method of treatment; or

3. Discharging the person if no other form of treatment is

suitable or available.

If none of the above is a viable alternative, and if (and

only if) the patient meets the requirements for involuntary

detention, then the patient may be involuntarily detained in

an appropriate facility. (See chapter 3 regarding involuntary

detention.)

Violation Reports and Available Remedies

All alleged or suspected violations of the rights of patients

as listed in the law must be reported to the county patients’

rights advocate or, for state hospital patients, to the state

hospital patients’ rights advocate, who must report all

complaints to the director of the California Department

of State Hospitals. The director must take appropriate

action which, depending on the nature of the complaint,

could include:

1. Referral for disciplinary action to the facility governing

body for review and monitoring.

2. Referral to the Medical Board of California regarding a

review of the individual practitioner’s license.

3. Referral for review of the facility license.

4. Compelling negotiations to ensure compliance with

these regulations, withholding part or all of state

mental health funds or taking appropriate court action.

The individual patient may also seek any other remedies

that are available under the law. [Title 9, California Code of

Regulations, Section 857]

INVOLUNTARY PATIENTS

In a 1988 lawsuit, Riese v. St. Mary’s Hospital and Medical

Center, 209 Cal.App.3d 1303 (1987, modified 1988), the

California Supreme Court held that involuntary patients

must not be given antipsychotic medications without their

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informed consent unless there is an emergency or a court

has determined that the patient is incompetent to make

an informed decision concerning medication. In 1991 the

California Legislature enacted a law which slightly modified

the Riese holding, allowing involuntary patients to be given

antipsychotic medications without their informed consent in

certain situations:

1. If they do not refuse the medication following

disclosure of the pertinent information

discussed below;

2. In an emergency; or

3. If a court has determined that the patient

lacks capacity to make an informed decision

concerning medication.

[Welfare and Institutions Code Section 5332]

This statutory scheme applies to patients detained under

Welfare and Institutions Code Sections 5150 (72-hour

hold), 5250 (14-day hold), 5260 (additional 14-day hold for

persons imminently suicidal), or 5270.15 (additional 30-day

hold for persons gravely disabled) [Welfare and Institutions

Code Section 5325.2]. When a patient is detained under

one of these laws, the agency or facility providing the

treatment must obtain the patient’s medication history if

possible [Welfare and Institutions Code Section 5332(d)].

Requirements for Administering Antipsychotic

Medication

Antipsychotic medications may be given to involuntary

psychiatric patients only if one of the following conditions is

met:

1. The patient has given informed consent;

2. The patient has been given the information discussed

below and he or she has not refused the medication;

3. An emergency condition exists; or

4. A court order of incapacity has been issued.

(See below for further explanation of each condition.)

Patient Gives Informed Consent

Informed consent requires that a full explanation of the

proposed course of treatment be given to the patient. This

includes discussing the elements described in “Informed

Consent Forms That Contain Medical Information,”

page2.7.

If the patient agrees with the administration of the

medication, he or she should sign a form indicating that

the patient has received the information desired from

a physician and has consented to the medication. The

“Consent to Receive Antipsychotic Medications” form (CHA

Form 4-7) has been developed for this purpose. The signed

form should be placed in the medical record and a copy

given to the patient.

As with any consent to medical treatment, the patient is

free to withdraw consent at any time during the course

of treatment.

The Patient is Given the Necessary Information and

Does Not Refuse the Medication

Antipsychotic medication may be administered to an

involuntary patient if the patient is given the information

discussed in “Informed Consent of Voluntary Patient

Generally Required,” page2.43, and does not refuse

the medication, even if the patient does not expressly

agree to the administration of the medication [Welfare and

Institutions Code Section 5332(a)]. The patient should sign

a form indicating that he or she has received the necessary

information. The “Consent to Receive Antipsychotic

Medications” form (CHA Form 4-7) may be used for this

purpose.

If the patient does not refuse the medication, but does not

wish to sign the form, a note to this effect should be written

on the form or in the medical record and signed by the

person who gives the patient the necessary information. If

the form is used, it should be placed in the medical record

and a copy given to the patient.

The patient may later refuse the administration of

antipsychotic medication, in which case no medication may

be administered unless an emergency exists or an order of

incapacity is issued by a judge.

Exception for Emergency Situations

Antipsychotic medication may be administered to an

involuntary patient despite the patient’s objection if an

emergency exists. An emergency is defined for this

purpose as a situation in which action to impose treatment

over the person’s objection is immediately necessary for

the preservation of life or the prevention of serious bodily

harm to the patient or others, and it is impracticable to first

obtain consent. It is not necessary for harm to take place

or become unavoidable prior to treatment. [Welfare and

Institutions Code Section 5008(m)]

The emergency exception justifies administration of

antipsychotic medications over the patient’s objection

only so long as the emergency condition exists. Once the

condition is stabilized, the patient’s informed consent (or

lack of refusal after the necessary information is given) is

again required. In addition, the medication administered

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in emergencies must be only that required to treat the

emergency condition and must be provided in the manner

least restrictive to the personal liberty of the patient

[Welfare and Institutions Code Section 5332(e)].

Judicial Determination of Incapacity

Antipsychotic medication may be administered over the

patient’s objection in nonemergency situations only if:

1. The treatment staff has determined that treatment

alternatives to involuntary medication are unlikely to

meet the needs of the patient, and

2. A judicial determination of incapacity to refuse the

treatment has been made after a hearing.

[Welfare and Institutions Code Section 5332(b)]

Scope of Hearing. The purpose of the hearing is for the

judge or hearing officer to determine whether the patient

has the capacity to make an informed decision regarding

the proposed treatment. The purpose of the hearing is

not for the judge or hearing officer to decide medical

questions such as whether the patient needs antipsychotic

medication. This issue, if discussed in the hearing, is

pertinent only to help the judge or hearing officer decide if

the patient’s thought processes related to making decisions

regarding treatment are rational or not.

Procedure for Initiating Hearing. If a hospital wishes

to administer antipsychotic medication to an involuntary

patient over the patient’s objection in nonemergency

situations, the hospital must file a petition for a capacity

hearing with the superior court [Welfare and Institutions

Code Section 5333(b)]. The director of the treatment facility

or a designee must:

1. Deliver a copy of the notice of the filing of the petition

along with a copy of the petition to the patient and the

patient’s advocate or counsel;

2. Inform the patient of his or her legal right to a capacity

hearing; and

3. Inform the patient of his or her right to the assistance

of the patients’ rights advocate or an attorney to

prepare for the hearing and to answer any questions

or concerns [Welfare and Institutions Code Sections

5333(c) and 5334(a)].

Treatment facilities, in conjunction with their medical staffs,

must develop internal procedures for facilitating the filing

of petitions for capacity hearings [Welfare and Institutions

Code Section 5332(c)].

The Hearing. A patients’ rights advocate or attorney will

meet with the patient to discuss the capacity hearing

process as soon after the filing of the petition as is

practicable. The patients’ rights advocate or attorney will

assist the patient in preparing for the capacity hearing and

will answer questions or otherwise assist the patient as

appropriate [Welfare and Institutions Code Section 5333(d)].

Capacity hearings must be held within 24 hours of the

filing of the petition whenever possible. If any party needs

additional time to prepare for the hearing, the hearing will

be postponed for 24 hours. In case of hardship, hearings

may also be postponed for an additional 24 hours,

pursuant to local policy developed by the county mental

health director and the presiding judge of the superior court.

In no event may hearings be delayed beyond 72 hours

of the filing of the petition. [Welfare and Institutions Code

Section 5334(a)]

Capacity hearings must be held in an appropriate location

in the facility where the patient is receiving treatment,

and must be held in a manner compatible with, and the

least disruptive of, the treatment [Welfare and Institutions

Code Section 5334(b)]. Hearings will be conducted by a

superior court judge, a court-appointed commissioner or

referee, or a court-appointed hearing officer [Welfare and

Institutions Code Section 5334(c)]. The patient will be

given oral notification of the determination of the judge or

hearing officer at the conclusion of the hearing. As soon

thereafter as is practicable, the patient, his or her advocate

or attorney, and the director of the facility will be given

written notification of the determination, which will include

a statement of the evidence relied upon and the reasons

for the determination [Welfare and Institutions Code Section

5334(d)]. A copy of the determination will be submitted to

the superior court.

Appeal of the Determination. The patient may appeal the

determination to the superior court or the court of appeal.

However, antipsychotic medication may be administered to

the patient pending appeal. [Welfare and Institutions Code

Section 5334(e)(1) and (3)]

The hospital may request the district attorney or county

counsel in the county in which the person is receiving

treatment to appeal the determination to the superior court

or the court of appeal, on behalf of the state [Welfare and

Institutions Code Section 5334(e)(2)].

Duration of Judicial Determination of Incapacity. A

judicial determination of a patient’s incapacity to refuse

treatment with antipsychotic medication remains in effect

only for the duration of the detention period described in

Welfare and Institutions Code 5150 or 5250, or both, or

until capacity has been restored according to standards

developed by the treatment facility in conjunction with

its medical staff, or by court determination, whichever is

sooner [Welfare and Institutions Code Section 5336].

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(See “Notice of Effects of Medication,” page3.11, if

medications will be given to a person detained under

Welfare and Institutions Code Section 5150.)

MINORS IN CUSTODY OF THE JUVENILE COURT/

FOSTER CHILDREN

If a child is in the custody of the juvenile court and the

child has been removed from the physical custody of the

parent, only a juvenile court judicial officer has the authority

to order the administration of psychotropic medications for

the child. The juvenile court may issue an order delegating

this authority to a parent upon finding that the parent

poses no danger to the child and has the capacity to

authorize the administration of psychotropic medications.

(See “Psychotropic Medications,” page2.33, for more

information about the administration of psychotropic

medications to a child in the custody of the juvenile court.)

C. Psychosurgery

“Psychosurgery” is defined as any of those operations

referred to as lobotomy, psychiatric surgery, behavioral

surgery and all other forms of brain surgery if the surgery is

performed for the purpose of any of the following:

1. Modification, alteration, or control of thoughts, feelings,

actions or behavior rather than the treatment of a

known and diagnosed physical disease of the brain;

2. Modification or alteration of normal brain function,

brain tissue or brain cells in order to modify, alter or

control thoughts, feelings, actions or behavior; or

3. Treatment of abnormal brain function, brain tissue or

brain cells in order to modify, alter or control thoughts,

feelings, actions or behavior when the abnormality is

not an established cause for those thoughts, feelings,

actions or behavior.

Psychosurgery does not include surgery for relief of pain

caused by physical disease elsewhere in the body.

Psychosurgery also does not include prefrontal sonic

treatment where there is no destruction of brain tissue.

However, all requirements pertaining to psychosurgery

must be followed when prefrontal sonic treatment is

administered and there exists any possibility there will

be destruction of brain cells or brain tissue. [Welfare and

Institutions Code Section 5325(g); Title 9, California Code

of Regulations, Sections 836 and 837] (See D.“Convulsive

Therapy and Insulin Coma Treatment,” page2.49, for

definitions as well as other requirements regarding

prefrontal sonic treatment.)

CONDITIONS UNDER WHICH PSYCHOSURGERY MAY

BE PERFORMED

Welfare and Institutions Code Section 5326.6 governs

the performance of psychosurgery. In order to perform

psychosurgery on a patient, whether admitted to a facility

as a voluntary or involuntary patient, wherever administered,

the following conditions must be met.

Age of Patient

The patient must be over 18 years of age. Under no

circumstances may psychosurgery be performed on a

person under 18 years of age [Title 9, California Code of

Regulations, Section 845].

Informed Consent

The patient must give a valid, written informed consent

[Welfare and Institutions Code Section 5326.6(a)]. For

these purposes, “written informed consent” means

that a person knowingly and intelligently, without duress

or coercion, clearly and explicitly gives written consent to

the treating physician for the proposed therapy. Welfare

and Institutions Code Sections 5326.2, 5326.3, 5326.4

and 5326.5, discussed below, state the requirements for

obtaining and documenting a valid informed consent.

Required Information. To create the basis for a voluntary

informed consent, the following information must be given

to the patient in a clear and explicit manner:

1. The reason for the treatment; that is, the nature and

seriousness of the patient’s illness, disorder or defect.

2. The nature of the procedures to be used in the

proposed treatment, including its probable frequency

and duration.

3. The probable degree and duration (temporary or

permanent) of improvement or remission expected with

and without the treatment.

4. The nature, degree, duration and probability of the

side effects and significant risks, commonly known by

the medical profession, of the treatment, including its

associated therapeutic modalities, especially noting

the degree and duration of memory loss (including its

irreversibility) and how and to what extent side effects

may be controlled, if at all.

5. That there exists a division of opinion as to the efficacy

of the proposed treatment, why and how it works, and

its commonly known risks and side effects.

6. The reasonable alternative treatments.

7. Why the physician recommends this

particular treatment.

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8. That the patient has the right to accept or refuse the

proposed treatment, and that, if consent is given, the

patient has the right to revoke the consent for any

reason, and at any time prior to or between treatments.

Waiting Period Required. The patient may be asked to

give his or her written informed consent only after 24 hours

have elapsed from the time the required information above

has been given to the patient [Welfare and Institutions

Code Section 5326.5(e)].

Consent Form. The law states that the California

Departments of Health Care Services and State Hospitals

must promulgate a standard written consent form setting

forth clearly and in detail the matters listed in Welfare

and Institutions Code Section 5326.2 (see “Required

Information,” page 2.55) and any further information with

respect to each item as deemed generally appropriate

to all patients [Welfare and Institutions Code Section

5326.3]. However, the forms presently available from the

departments are for use by state hospitals only. Until a

form is promulgated by the department for use by other

hospitals, each hospital should prepare a written consent

form in accordance with the requirements in Welfare and

Institutions Code Sections 5326.2, 5326.3, 5326.4 and

5326.5. It is also advisable for each hospital to contact its

local mental health agency to determine whether a form

has been developed for use by local facilities.

The treating physician must use the standard written

consent form, and must also supplement it in writing

with those details that pertain to the particular patient

being treated.

Presentation of “Supplemented” Consent Form and

Oral Explanation to Patient. The treating physician must

present to the patient the supplemented consent form and

orally give a clear and detailed explanation to the patient of

all of the above required information.

Signature of Patient and Witness. After the required

waiting period, the treating physician must obtain the dated

signature of the patient and a witness on the supplemented

consent form.

Documentation Requirements. The fact of the execution

of the written consent form and of the oral explanation

must be entered into the patient’s medical record along

with a copy of the consent form itself. The consent form

must be made available to the patient and to his or her

attorney, guardian, conservator and, if the patient consents,

to a responsible relative of the patient’s choosing.

Consent Process Devoid of Duress or Coercion. The

physician may urge the proposed treatment as the best

one, but may not use, in an effort to gain consent, any

reward or threat, express or implied, nor any other form

of inducement or coercion, including, but not limited to,

placing the patient in a more restricted setting, transfer

of the patient to another facility or loss of the patient’s

privileges. A patient may not be denied any benefits for

refusing treatment.

Patient Capacity to Consent. A person is deemed to

have the capacity to consent or to refuse consent if it

is determined that the person has actually understood

and can knowingly and intelligently act upon the

information specified in “Required Information,” page

2.55. Understanding of the potential benefits and risks

of the proposed treatment or surgery is the primary factor

in determining the capacity to consent or to refuse. A

person must not be deemed to lack capacity to consent

or refuse consent solely by virtue of a psychiatric or

medical diagnosis [Title 9, California Code of Regulations,

Section 840].

Discretionary Involvement of Responsible Relative

A responsible relative of the patient’s choosing (with the

patient’s consent) and the guardian or conservator, if there

is one, must read the consent form and must be given

the information discussed in “Required Information,” page

2.55 by the treating physician. If the patient does not wish

to inform a relative, or if the chosen relative is unavailable

(and the patient either does not wish to designate another

relative or that relative is also unavailable), this requirement

may be dispensed with.

A “responsible relative” for these purposes includes the

spouse, parent, adult child, or adult brother or sister of

the patient.

Documentation by Physician of Reasons for Procedure

The attending physician must enter adequate

documentation in the patient’s medical record of the

reasons for the procedure, that all other appropriate

treatment modalities have been exhausted, and that

this mode of treatment is definitely indicated and is the

least drastic alternative available for the treatment of the

patient at this time. This statement must be signed by the

attending and treating physician(s).

Consultation

Three physicians, one appointed by the facility and two

appointed by the local mental health director, two of whom

must be board certified or board-eligible psychiatrists

or neurosurgeons, must personally examine the patient

and unanimously agree with the attending physician’s

determinations and agree that the patient has the capacity

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to give informed consent. This agreement must be

documented in the patient’s medical record and signed

by each physician. [Welfare and Institutions Code Section

5326.6]

Time Delay Between Written Informed Consent and

Surgery

In no case may psychosurgery be performed less than

72 hours following the time the patient gave written consent

[Welfare and Institutions Code Section 5326.6(d)].

Effect of Consent on Right to Refuse Treatment

The giving of consent may not be construed as a waiver of

the right to refuse treatment at a future time. Consent may

be withdrawn at any time, orally or in writing, and must be

given immediate effect.

DOCUMENTATION OF REFUSAL OF PSYCHOSURGERY

If a patient is deemed by the physician to have the

capacity to give informed consent, but refuses to do so,

the physician must indicate in the medical record that

the treatment was refused despite the physician’s advice,

and that he or she explained to the patient the patient’s

responsibility for any untoward consequence of the

refusal. However, this explanation must not be made in a

manner that constitutes duress or coercion. The patient

must not be subject to any loss of privileges due to a

refusal to consent. [Title 9, California Code of Regulations,

Section 841]

REPORTS OF PSYCHOSURGERY

A doctor or facility that administers psychosurgery must

report quarterly to the local behavioral health director,

who is required to transmit a copy of the report to the

director of mental health. The report must include the

number of persons who received psychosurgery, wherever

administered, in the following categories:

1. Involuntary patients who gave informed consent.

2. Voluntary patients who gave informed consent.

(Patients incapable of giving consent must not undergo

psychosurgery.)

The report must also include psychiatric diagnosis, type of

psychosurgery performed, date surgery performed, and

complications that arose during or after the psychosurgery.

A facility that considers psychosurgery a part of its

treatment program must file a quarterly report, regardless

of whether any of these treatment methods were used

during the quarter. [Welfare and Institutions Code Section

5326.15; Title 9, California Code of Regulations, Section

838.1]

D. Convulsive Therapy and Insulin Coma

Treatment

State law sets forth various requirements, discussed below,

to be met prior to initiation of convulsive therapy or insulin

coma treatment on a patient.

All requirements pertaining to the administration of

convulsive treatment must be followed when insulin

coma treatment is administered, or when prefrontal

sonic treatment is administered that involves only direct

stimulation of brain cells or brain tissue. All requirements

pertaining to psychosurgery must be followed when

prefrontal sonic treatment is administered and there exists

any possibility there will be destruction of brain cells or

brain tissue (see C.“Psychosurgery,” page2.47).

DEFINITIONS

“Convulsive treatment” is the planned induction of a

seizure through electrical or chemical means for therapeutic

purposes. When more than one seizure is induced in a

single treatment session, each seizure shall be considered

a separate treatment for record keeping and reporting

purposes.

“Insulin coma treatment” consists of producing a coma for

therapeutic purposes, with or without convulsions, through

the intramuscular administration of insulin.

“Prefrontal sonic treatment” is the direct stimulation

and/or destruction of brain cells or brain tissue by

ultrasound for therapeutic purposes.

[Title 9, California Code of Regulations, Sections 836

and 837]

INVOLUNTARY ADULT PATIENTS

Before convulsive treatment or insulin coma treatment is

administered to an involuntary adult patient, the conditions

described in this section of the manual must be met.

Involuntary patients include the following:

1. Persons involuntarily detained for 72-hour evaluation

and treatment under Welfare and Institutions Code

Section 5150;

2. Persons certified for intensive treatment under Welfare

and Institutions Code Section 5250;

3. Persons certified for additional intensive treatment

as suicidal under Welfare and Institutions Code

Section 5260;

4. Persons post-certified as a demonstrated danger of

substantial physical harm to others under Welfare and

Institutions Code Section 5300;

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5. Persons under temporary or permanent

conservatorship or guardianship;

6. Persons who have been judicially committed, as

defined under Welfare and Institutions Code

Section 5008.1 (mentally disordered sex offenders;

developmentally disabled persons admitted to a state

hospital due to dangerousness; or other persons

committed to the State Department of State Hospitals).

If these provisions conflict with regulations dealing

with the developmentally disabled promulgated under

Chapter 1 (commencing with Section 4500) of the

Welfare and Institutions Code, the latter statute and

regulations shall control.

[Title 9, California Code of Regulations, Section 836.1]

Documentation of Reasons for Treatment

The attending or treating physician must enter adequate

documentation in the patient’s medical record of the

reasons for the procedure, that all reasonable treatment

modalities have been carefully considered, and that the

treatment is definitely indicated and is the least drastic

alternative available for this patient at this time. This

statement in the medical record must be signed by the

attending and treating physician(s).

Committee Review of Treatment

A review of the patient’s medical record must be conducted

by a committee of two physicians, at least one of whom

must have personally examined the patient.

One physician must be appointed by the facility and one

must be appointed by the local mental health director. Both

must be board-certified or board-eligible psychiatrists or

neurologists. This review committee must unanimously

agree with the treating physician’s determinations

entered in the medical record. This agreement must be

documented in the patient’s medical record and signed by

both physicians. [Welfare and Institutions Code Section

5326.7]

The physicians who serve on review committees must not

be personally involved in the treatment of the patient whose

case they are reviewing [Welfare and Institutions Code

Section 5326.55].

Discretionary Involvement of Responsible Relative

A responsible relative of the patient’s choosing and the

patient’s guardian or conservator, if there is one, must

be given the oral explanation by the attending physician

of the information required by Welfare and Institutions

Code Section 5326.2, which is discussed in “Required

Information,” page 2.55. If the patient does not wish to

inform a relative, or if the chosen relative is unavailable

and the patient either does not wish to designate another

relative or that relative is also unavailable, this requirement

may be dispensed with.

A “responsible relative” for these purposes, includes the

spouse, parent, adult child, or adult brother or sister of the

patient [Welfare and Institutions Code Section 5326.6(d)].

Basic Requirements of Informed Consent

The patient must give a valid written informed consent

[Welfare and Institutions Code Section 5326.7(d)]. For

these purposes, a “written informed consent” means

that a person knowingly and intelligently, without duress or

coercion, clearly and explicitly gives written consent to the

treating physician for the proposed therapy. Welfare and

Institutions Code Sections 5326.2, 5326.3, 5326.4 and

5326.5, discussed in “Informed Consent,” page2.47, state

the requirements for obtaining and documenting a valid

informed consent.

Consent Form

For purposes of obtaining written informed consent to

electroconvulsive treatment, the law requires the treating

physician to use the consent form developed by the state

[Title 9, California Code of Regulations, Section 839]. The

form, DHCS 1800/MH 300, may be found at www.dhcs.

ca.gov/formsandpubs/forms/pages/mental_health-forms.

aspx. The treating physician must use the standard written

consent form, and must also supplement it in writing

with those details that pertain to the particular patient

being treated.

Patient Capacity to Consent. A patient has the capacity

to consent or to refuse to consent if he or she has actually

understood and can knowingly and intelligently act upon

the information required to be given to the patient by

the physician. Understanding of the potential benefits

and risks of the proposed treatment is the primary factor

in determining capacity to consent or refuse consent.

A person does not lack capacity solely by virtue of a

psychiatric or medical diagnosis. [Title 9, California Code of

Regulations, Section 840]

Waiting Period Required

The patient may be asked to give his or her written

informed consent only after 24 hours have elapsed from

the time the required information above has been given

to the patient. [Welfare and Institutions Code Section

5326.5(e)]

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Presentation of “Supplemented” Consent Form and

Oral Explanation to Patient

The treating physician must present to the patient the

supplemented consent form and orally give a clear and

detailed explanation to the patient of all of the above

required information.

Additional Informed Consent Requirements

Duration of Written Informed Consent. The written

informed consent must be given for a specified maximum

number of treatments over a specified maximum period of

time that may not exceed 30 days. It is revocable at any

time before or between treatments and any withdrawal

of consent, which may be given orally or in writing, must

be given immediate effect. If the patient subsequently

changes his or her mind, a new consent must be obtained.

A renewed written informed consent must be given for any

additional treatments in number or in time, not to exceed

30 days.

Agreement on Capacity to Consent

Review by Patient’s Attorney or Public Defender. The

patient’s attorney, or if none, a public defender appointed

by the court, must agree with the attending physician

that the patient has the capacity to give written informed

consent and actually gave such consent. The attorney must

make an independent judgment of capacity [Welfare and

Institutions Code Section 5326.7(e); Title 9, California Code

of Regulations, Section 840(c)].

Court Review if Capacity Disputed. If either the attending

physician or the attorney believes that the patient does

not have the capacity to give written informed consent,

then a petition must be filed in superior court to determine

the patient’s capacity to give written informed consent.

The court will hold an evidentiary hearing after giving

appropriate notice to the patient, and within three days

after the petition is filed. At the hearing the patient must

be present and represented by legal counsel. If the court

deems the attorney to have a conflict of interest, the

attorney may not represent the patient in this proceeding.

Consent by Other than Patient. If the court determines

that the patient does not have the capacity to give written

informed consent, then treatment may be performed

if written informed consent (as defined in Welfare and

Institutions Code Sections 5326.2 and 5326.5) is given by

the responsible relative chosen by the patient, if any, or the

patient’s conservator or guardian.

Claim of Regained Competency

At any time during the course of treatment of a person who

has been deemed incompetent, that person has the right

to claim regained competency. Should he or she do so, the

person’s competency must be reevaluated according to

“Agreement on Capacity to Consent,” page2.51.

Documentation of Refusal of Convulsive Treatment

No convulsive treatment or insulin coma treatment may be

performed if the patient, whether admitted to the facility

as a voluntary or involuntary patient, is deemed to be

able to give informed consent and refuses to do so. The

physician must indicate in the medical record that the

treatment was refused despite the physician’s advice and

that the physician has explained to the patient the patient’s

responsibility for any untoward consequences of his or her

refusal. However, this explanation must not be made in a

manner that constitutes duress or coercion. The patient

must not be subject to any loss of privileges due to a

refusal to consent [Welfare and Institutions Code Section

5326.85; Title 9, California Code of Regulations, Section

841].

VOLUNTARY ADULT PATIENTS

Before convulsive treatment or insulin coma treatment

may be performed on voluntary patients, including but not

limited to those voluntarily admitted to a facility or receiving

the treatment in a physician’s office, a clinic, or a private

home, the following conditions must be met.

Patient Has Capacity to Consent

If the patient has the capacity to consent to the treatment,

the following steps must be taken.

Documentation of Treatment Reasons, Oral Explanation,

Written Informed Consent. As discussed in “Involuntary

Adult Patients,” page2.49, there must be documentation

of reasons for treatment, the discretionary oral explanation

to a responsible relative chosen by the patient, if any, and

written informed consent.

Verification of Capacity to Consent. A board-certified

or board-eligible psychiatrist or neurologist other than

the patient’s attending or treating physician must have

examined the patient and verified that the patient has the

capacity to give and has given written informed consent.

This verification must be documented in the patient’s

medical record and signed by the treating physician.

[Welfare and Institutions Code Section 5326.75]

Patient Lacks Capacity to Consent

If the required verification of capacity to consent is not

obtained, then all of the requirements for treatment for

involuntary adult patients must be met, as discussed in

“Involuntary Adult Patients,” page2.49.

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MINORS UNDER THE AGE OF 12

Under no circumstances may convulsive treatment or

insulin coma treatment be performed on a minor under

the age of 12 years [Welfare and Institutions Code Section

5326.8]. Under no circumstances may prefrontal sonic

treatment be performed on a person under 18 years of age

[Title 9, California Code of Regulations, Section 845(a)].

MINORS BETWEEN 12 AND 16 YEARS OF AGE

Before convulsive treatment or insulin coma treatment may

be administered to a minor who is 12 years of age to under

16 years of age, the following conditions must be met

[Welfare and Institutions Code Section 5326.8]. However,

under no circumstances may prefrontal sonic treatment

be performed on a person under 18 years of age [Title 9,

California Code of Regulations, Section 845(a)].

Emergency Situation

It is an emergency situation and the treatment is deemed a

lifesaving treatment.

Emergency Certified by Review Committee

The fact of the emergency and the need for and

appropriateness of the treatment are certified unanimously

by a review board of three board-eligible or board-certified

child psychiatrists appointed by the local mental

health director.

Physicians who serve on a review committee must not be

personally involved in the treatment of the patient whose

case they are reviewing [Welfare and Institutions Code

Section 5326.55].

Compliance with Other Laws

The requirements set forth under “Involuntary Adult

Patients,” page2.49, must be followed. Unless the minor

is emancipated, the custodial parents or the person/agency

with legal custody is considered the guardian for purposes

of granting or withholding consent for convulsive therapy.

[Title 9, California Code of Regulations, Section 845]

Documentation

The treatment must be thoroughly documented and

reported immediately to the director of the Department of

Health Care Services.

MINORS 16 AND 17 YEARS OF AGE

A minor aged 16 or 17 years of age must be treated as

an adult for purposes of consent to convulsive therapy or

insulin coma treatment. (See “Involuntary Adult Patients,”

page2.49, for the requirements that apply to minors 16

and 17 years of age who are involuntary patients or who

lack verification of capacity to provide informed consent.

See “Voluntary Adult Patients,” page2.51, for the

requirements that apply to voluntarily admitted minors 16

and 17 years of age.)

An unemancipated minor’s parent(s) or the person/agency

with legal custody is considered the guardian for purposes

of granting or withholding consent. [Welfare and Institutions

Code Sections 5326.7 and 5326.8; Title 9, California Code

of Regulations, Section 845]

However, under no circumstances may prefrontal sonic

treatment be performed on a person under 18 years of age

[Title 9, California Code of Regulations, Section 845(a)].

COMMITTEE REVIEW OF TREATMENT

Facilities in which convulsive treatment or insulin coma

treatment is performed on voluntary or involuntary persons

must designate a qualified committee to review all of

these treatments and to verify their appropriateness and

need. (See Title 9, California Code of Regulations, Section

847 regarding posttreatment review committees.) The

local mental health director is required to establish a

review committee for convulsive treatments administered

anywhere other than in a facility (as defined in Health and

Safety Code Section 1250) in which psychiatric evaluation

or treatment is offered. Records of these committees will

be available in the same manner as are the records of

other hospital utilization and audit committees, and may

be subject to other regulations. Persons serving on these

review committees will enjoy the same immunities as

other persons serving on utilization, peer review, and audit

committees of health care facilities. [Welfare and Institutions

Code Section 5326.91]

REPORTS TO LOCAL BEHAVIORAL HEALTH DIRECTOR

A physician or facility that administers convulsive

treatments must report quarterly to the local behavioral

health director, who is required to transmit a copy of

the report to the director of mental health. The report

must include the number of persons who received

such treatments, wherever administered, in each of the

following categories:

1. Involuntary patients who gave informed consent.

2. Involuntary patients who were deemed incapable

of giving informed consent and received convulsive

treatment against their will.

3. Voluntary patients who gave informed consent.

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4. Voluntary patients deemed incapable of giving consent.

A facility that considers convulsive treatment a part of its

treatment program must file a quarterly report, regardless of

whether any of these treatment methods were used during

the quarter [Welfare and Institutions Code Section 5326.15;

Title 9, California Code of Regulations, Section 838]

The reports must be made on a form (MH 309) issued by

the state, available at www.dhcs.ca.gov/formsandpubs/

forms/pages/mental_health-forms.aspx.

EXCESSIVE USE OF CONVULSIVE TREATMENT

The director of the Department of State Hospitals defines

the excessive use of convulsive treatment as more than 15

treatments given to a patient within a 30-day period or a

total of more than 30 treatments given within a one-year

period [Welfare and Institutions Code Section 5326.95;

Title 9, California Code of Regulations, Section 849].

If additional convulsive treatments are indicated in the

judgment of the attending physician, prior approval must

be obtained from the review committee of the facility or

county (see “Involuntary Adult Patients,” page2.49).

LOCAL REGULATION OF CONVULSIVE TREATMENT

VOID

Administration of convulsive treatment is regulated by

numerous state statutes. As such, attempts by local

ordinances to prohibit convulsive treatment have been

found to be preempted by state law and thus are void

[Northern California Psychiatric Society v. City of Berkeley,

178 Cal.App.3d 90 (1986)]. (See also Business and

Professions Code Section 460, which limits the authority of

local governments to regulate health professionals.)

E. Mandatory Consultation — Outpatient and

Discharge Medications

DISCHARGE MEDICATIONS

California law requires that hospitals establish and

implement a written policy to ensure that each patient

receiving discharge medications receives information

regarding each medication. The written policy must be

developed in collaboration with a physician, a pharmacist

and a registered nurse, and approved by the medical staff.

The information given must include directions regarding the

use and storage of each medication, the precautions and

relevant warnings (including any potential impairment of the

ability to operate a vehicle or vessel), and the importance of

compliance with directions. The information must be given

by a pharmacist or registered nurse, unless it has already

been provided by a patient’s prescriber [Business and

Professions Code Section 4074, Health and Safety Code

Section 1262.5(e)].

(See IV.“Aftercare Plan,” page4.6 regarding the required

provision of a written aftercare plan to mental health

patients upon discharge.)

OUTPATIENT MEDICATIONS

Pharmacists must provide oral consultation to

outpatients (or their legal representatives) under the

following conditions:

1. Whenever a prescription drug has not previously been

dispensed to a patient;

2. Whenever a prescription drug not previously dispensed

to a patient in the same dosage form, strength or

with the same written directions is dispensed by

the pharmacy;

3. Upon request of the patient; and

4. Whenever the pharmacist deems it warranted in the

exercise of his or her professional judgment.

The oral consultation must include, at least:

1. Directions for use and storage and the importance of

compliance with directions; and

2. Precautions and relevant warnings, including common

severe side or adverse effects or interactions that may

be encountered.

[Title 16, California Code of Regulations, Section 1707.2]

In addition, whenever a pharmacist deems it warranted

in the exercise of his or her professional judgment, oral

consultation must also include:

1. The name and description of the medication;

2. The route of administration, dosage form, dosage and

duration of drug therapy;

3. Any special directions for use and storage;

4. Precautions for preparation and administration by

the patient, including techniques for self-monitoring

drug therapy;

5. Prescription refill information;

6. Therapeutic contra-indications, avoidance of common

severe side or adverse effects or known interactions,

including serious potential interactions with known

nonprescription medications and therapeutic

contra-indications and the action required if such

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side or adverse effects or interactions or therapeutic

contra-indications are present or occur; and

7. Action to be taken in the event of a missed dose.

In addition, Business and Professions Code Section 4074

requires a pharmacist to inform a patient orally or in writing

of the harmful effects of a prescription drug if:

1. It poses substantial risk to the patient when taken in

combination with alcohol or the drug may impair the

patient’s ability to drive a motor vehicle; and

2. The Board of Pharmacy has determined that the

prescribed drug requires this warning.

If the pharmacist determines that a drug may impair a

patient’s ability to operate a vehicle or vessel, a written

warning label must be affixed to the drug container.

PATIENT DECLINES OR IS UNAVAILABLE

A pharmacist is not required to provide oral consultation

when a patient or the patient’s agent refuses

such consultation.

When the patient or agent is not present (i.e., the

medication is shipped or delivered to the patient), the

pharmacy must ensure that the patient receives written

notice of his or her right to request consultation and a

phone number from which the patient may obtain oral

consultation from a pharmacist who has ready access to

the patient’s record.

Documentation

It is recommended that the pharmacist document

any consultation provided to the patient (or agent)

or, if applicable, a refusal by the patient (or agent) of

offered consultation.

DRUG SUBSTITUTIONS

A pharmacist may make certain drug substitutions such

as dispensing a generic drug in place of a brand-name

drug. In such cases, the patient must be informed of the

substitution [Business and Professions Code Sections

4052.5(e) and 4073(e)].

F. Telemedicine/Telehealth

CONSENT REQUIRED

California law requires that, prior to delivery of health care

via telehealth, the health care provider initiating the use of

telehealth must:

1. Inform the patient about the use of telehealth;

2. Obtain verbal or written consent from the patient for

this use; and

3. Document the consent.

This law does not apply to a patient under the jurisdiction

of the Department of Corrections and Rehabilitation or any

other correctional facility.

CHA Form 8-1, “Conditions of Admission,” includes a

statement that the patient consents to telehealth services.

(See CHA Form 8-1, “Conditions of Admission.”)

ADDITIONAL REQUIREMENTS FOR MEDI-CAL

PATIENTS

A Medi-Cal patient receiving teleophthalmology,

teledermatology or teledentistry by store and forward must

be notified of the right to receive interactive communication

with the distant specialist physician, optometrist or dentist.

If requested, communication with the distant specialist

physician, optometrist or dentist must occur either at

the time of the consultation, or within 30 days of the

patient’s notification of the results of the consultation. If

the reviewing optometrist identifies a disease or condition

requiring consultation or referral pursuant to Business

and Professions Code Section 3041, that consultation

or referral must be with an ophthalmologist or other

appropriate physician and surgeon.

DEFINITIONS

“Asynchronous store and forward” means the

transmission of a patient’s medical information from an

originating site to the health care provider at a distant site

without the presence of the patient.

“Distant site” means a site where a health care provider

who provides health care services is located while providing

these services via a telecommunications system.

“Health care provider” means a person who is licensed

under Division 2 of the Business and Professions Code.

This includes almost every type of licensed health care

provider that exists in California, such as physicians, nurses,

psychologists, marriage and family therapists, physician

assistants, dentists, chiropractors, massage therapists, and

veterinarians.

“Originating site” means a site where a patient is located

at the time health care services are provided via a

telecommunications system or where the asynchronous

store and forward service originates.

Chapter 2 — Principles of Consent for Mental Health Patients CHA

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©CALIFORNIA HOSPITAL ASSOCIATION

“Synchronous interaction” means a real-time interaction

between a patient and a health care provider located at a

distant site.

“Telehealth” means the mode of delivering health

care services and public health via information and

communication technologies to facilitate the diagnosis,

consultation, treatment, education, care management, and

self-management of a patient’s health care while the patient

is at the originating site and the health care provider is at a

distant site. Telehealth includes synchronous interactions

and asynchronous store and forward transfers.

“Teleophthalmology,” “teledermatology and teledentistry

by store and forward” means an asynchronous

transmission of medical or dental information for review

at a later time by an ophthalmologist, dermatologist,

optometrist, or a dentist, where the professional at the

distant site reviews the information without the patient

being present in real time.

[Business and Professions Code Section 2290.5; Welfare

and Institutions Code Section 14132.725]

G. Consent for HIV Testing

California law establishes special requirements for

consent to HIV tests and the disclosure of HIV test results.

“HIV test” is defined as any clinical test, laboratory or

otherwise, used to identify HIV, a component of HIV, or

antibodies or antigens to HIV [Health and Safety Code

Section 120775(c)]. California law also has very strict laws

governing the confidentiality of HIV test results.

Providers should remember that a positive result to an

HIV test must be reported to the local health officer (see

chapter 18).

REQUIRED INFORMATION

Prior to ordering an HIV test, a “medical care

provider” must:

1. Inform the patient that the test is planned,

2. Provide information about the test to the patient,

3. Inform the patient that there are numerous treatment

options available for a person who tests positive for

HIV and that a person who tests negative for HIV

should continue to be routinely tested, and

4. Advise the patient that he or she has the right to

decline the test.

[Health and Safety Code Section 120990(a)]

There are additional disclosure requirements if the patient

is pregnant (see CHA’s Consent Manual, chapter 13). The

disclosure requirements do not apply to a clinical laboratory

[Health and Safety Code Section 120990(i)].

NOTE: The term “medical care provider” is not defined

in this law but is defined elsewhere to mean a health care

professional licensed under Division 2 of the Business and

Professions Code (e.g., physicians, dentists, nurses and

other individual professionals) [Health and Safety Code

Section 109278(b)].

Exception

The disclosure requirement above does not apply when a

patient independently requests an HIV test from a medical

care provider [Health and Safety Code Section 120990(b)].

If the patient independently requests the test, the provider

should document that fact in the medical record. It is not

clear what “independently requesting” an HIV test means.

The sponsors of this language in the law meant it to mean

patients who proactively request an HIV test from their

physician, rather than the physician recommending to the

patient that the test be run.

Alternatively, a provider may wish to give the disclosures to

all patients, whether the provider suggested the test or the

patient requested it. CHA has developed the form “Consent

for the HIV Test” (CHA Form 23-1) that includes the

information that must be disclosed to patients. The provider

may give this form to all patients who undergo HIV testing

(regardless of who initially suggested the test), and put a

copy of the signed form in the patient’s medical record to

fulfill the documentation requirements.

INFORMED CONSENT

The law states that, except for tests ordered in connection

with the required disclosures described above, no person

shall “administer” an HIV test unless the patient or his

or her parent, guardian, conservator, or other person

authorized to make health care decisions for the patient

has provided informed consent to the test. It is not clear

what this provision means. The sponsors of this language

in the law said that they meant it to apply in cases where

a person who was not a health care provider was taking

the sample from the patient to test using a home test kit or

to send to a mail-order lab for HIV testing. They intended

the law to prohibit this without the test subject’s informed

consent. However, it may also apply to instances where the

patient lacks capacity to make his or her own health care

decisions, and consent is provided by a legal representative.

In these cases, The patient or the patient’s legal

representative may provide consent orally or in writing.

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©CALIFORNIA HOSPITAL ASSOCIATION

The person “administering” the HIV test must maintain

documentation of consent in the patient’s medical

record. This may be accomplished by having the patient

or legal representative sign a consent form or by having

the ordering practitioner make a note in the medical

record. (See below for information on who may be a legal

representative of a patient for purposes of consenting to an

HIV test.) [Health and Safety Code Section 120990(c)]

CHA has developed the form “Consent for the HIV Test”

(CHA Form 23-1) to include the information that must

be disclosed to patients. (This form should be used only

when the test is performed for purposes other than testing

donated blood since a different form is required to be used

by blood banks and plasma centers.)

Since this consent form contains medical information,

it should be reviewed by an appropriate medical staff

committee or designated physician prior to use in

the hospital.

DOCUMENTING REFUSALS

If a patient declines an HIV test, the medical care provider

must note that fact in the patient’s medical record [Health

and Safety Code Section 120990(a)].

MINORS 12 AND OLDER

A minor 12 years of age or older who may have come

into contact with a communicable disease may consent

to medical care related to the diagnosis or treatment of

the disease, if it is a disease that is required by law to be

reported to the local health officer, or for a related sexually

transmitted disease as determined by CDPH. Both AIDS

and HIV infection are required by law to be reported

[Family Code Section 6926; Health and Safety Code

Sections 120250 and 121022; Title 17, California Code of

Regulations, Sections 2500 and 2641.30-2643.20].

The California Office of AIDS has taken the position, in

connection with its operation of alternative testing sites,

that Family Code Section 6926 gives a minor 12 years

of age or older the legal capacity to consent to the HIV

test. Taken together, these authorities suggest that minors

age 12 or older have the legal authority to consent to the

HIV test.

Care must be taken when applying this principle in

particular situations. It is important to determine that a

minor consenting to the HIV test is competent to give

his or her consent — i.e., that the minor is sufficiently

knowledgeable and mature to appreciate the nature and

consequences of his or her decision (see B.“Capacity

to Consent,” page2.37). Given these concerns, except

in those instances in which the minor has indicated that

privacy is a primary concern and it is clear that the minor

has an appreciation of AIDS and of the HIV test, the health

care provider may wish to recommend that a parent or

guardian be involved in the decision whether to consent

to the HIV test. At the same time, when a minor 12 years

or older initiates the test request, indicates his or her

preference not to involve a parent or guardian, and shows

appreciation of the issues involved, the minor is entitled to

consent to the test. Conversely, if a minor age 12 or older

refuses the HIV test, that refusal should be respected even

if the parent or guardian wants the minor to be tested, if the

minor appreciates the issues and consequences.

The minor’s parents or guardian are not liable for payment

for the HIV testing or treatment [Family Code Section

6926(c)]. Providers should establish procedures to ensure

that parents do not receive a bill for this service, unless

authorized by the minor in writing. The law does not

specify who is responsible for payment. (See C.“Financial

Responsibility for Treatment of Minors,” page2.25.)

ADULTS LACKING CAPACITY AND MINORS UNDER 12

The law is clear that a minor is not authorized to consent to

an HIV test if he or she is under 12 years of age [Health and

Safety Code Section 121020(a)].

When an individual is under 12 years of age or, as a result

of his or her mental or physical condition, or lack of maturity,

lacks the capacity to consent to the HIV test and the test

is necessary to render appropriate care or to practice

preventative measures, written consent may be obtained

from persons lawfully authorized to make health care

decisions for the individual [Health and Safety Code Section

121020(a)(1)]. This includes agents appointed in a power

of attorney for health care (unless the power of attorney

for health care expressly denies the agent the right to

consent to an HIV test), parents of minors (see “Minors 12

and Older,” page2.56), and conservators and guardians

who have been authorized by the court to make health

care decisions for the patient. Where appropriate, this may

also include an adult patient’s closest available relative

(see “Family Members,” page2.22, for a discussion of

the basis for relying upon consent from a patient’s closest

available relative)

. CHA Form 23-1, “Consent for the HIV

Test” may be used to document consent. The patient’s lack

of capacity and the necessity for the test result should be

documented in the medical record.

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FOSTER CHILD/DEPENDENT CHILD OF THE COURT/

INFANT IN TEMPORARY CUSTODY

A parent of a child who is a dependent of the juvenile

court (foster child) continues to have the legal authority to

consent to HIV testing, if the child is under 12 years of age.

In addition, a court or social worker may be able to consent,

as described below.

If the subject of the HIV test is a minor adjudged to be a

dependent child of the court (foster child) under Welfare

and Institutions Code Section 360, written consent for

the test may be obtained from the court pursuant to its

authority under Welfare and Institutions Code Sections 362

or 369. The hospital should obtain a copy of the court’s

order in these cases.

If the subject of an HIV test is an infant who is less than 12

months of age who has been taken into temporary custody

under Welfare and Institutions Code Section 305 et seq.

or who has been, or has a petition filed with the court to

be, adjudged a dependent child of the court under Welfare

and Institutions Code Section 360, the social worker may

provide written consent for an HIV test to be performed

when the infant is receiving medical care pursuant to

Welfare and Institutions Code Section 369, if all of the

following have occurred:

1. The attending physician determines that HIV testing is

necessary to render appropriate care to the infant and

documents that determination. When deciding whether

HIV testing is necessary, the physician must consider

appropriate factors, either known to the attending

physician or provided to the attending physician by

the social worker, including, but not limited to, whether

the infant has a parent with a history of behavior that

places the parent at an increased risk of exposure to

HIV, or whether the infant is a victim of sexual abuse,

which has placed the child at risk of exposure to HIV.

2. The social worker provides known information

concerning the infant’s possible risk factors regarding

exposure to HIV to the attending physician.

3. The social worker has made reasonable efforts to

contact the parent or guardian but was unable to do

so, and the social worker has documented his or her

efforts to contact that person.

The attending physician and the social worker must

comply with all state and federal confidentiality laws to

protect the privacy interests of both the infant and the

biological mother.

If an infant tests positive for HIV in a test performed under

this law, the social worker must provide the physician any

available contact information for the biological mother

for purposes of reporting the HIV infection to the local

health officer.

If an infant tests positive for HIV in a test performed under

this law, and the physician determines that immediate HIV

medical care is necessary to render appropriate care to

that infant, the provision of HIV medical care is considered

emergency medical care under Welfare and Institutions

Code Section 369(d). In such cases, care may be provided

without a court order and upon the authorization of the

social worker.

DECEASED PATIENT

The law does not directly authorize anyone to consent to

the testing of a cadaver except in the context of an autopsy,

organ donation, scientific investigation or in case of an

occupational exposure. If the need for an HIV test outside

of these circumstances arises, the hospital should consult

its legal counsel. [Health and Safety Code Sections 120990

and 121020(b)]

OCCUPATIONAL EXPOSURES

Testing may in some instances be performed even without

the patient’s consent where there has been a significant

exposure of health care personnel to potentially infectious

materials. (See CHA’s Consent Manual, chapter 5, for the

procedure for testing under these circumstances.)

CRIMINAL DEFENDANTS AND INMATES OF

CORRECTIONAL INSTITUTIONS

The law allows involuntary testing of criminal defendants

and inmates of correctional institutions in the

following instances:

1. Every person, including a juvenile, who is convicted

of certain sexual offenses shall be ordered by the

court to submit to a blood or oral mucosal transudate

saliva test for evidence of antibodies to the probable

causative agent of AIDS within 180 days of the date of

conviction [Penal Code Section 1202.1]. A hospital that

performs an HIV test pursuant to a court order under

Penal Code Section 1202.1 must disclose the results

of the test to the clerk of the court ordering the test.

The court will then disclose the results to the California

Department of Justice and the local health officer. The

local health officer will then disclose the results to

the test subject and, where requested, to the victim,

but only after professional counseling is provided,

as appropriate.

2. Defendants (including minors) charged with certain

crimes involving sexual offenses and certain other

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©CALIFORNIA HOSPITAL ASSOCIATION

arrestees are subject to testing for HIV, AIDS-related

conditions and other communicable diseases

pursuant to court order if a peace officer, custodial

officer, firefighter, emergency medical personnel or

specified nonsworn employees of law enforcement

agencies have been exposed to a defendant’s or

arrestee’s blood or bodily fluids [Health and Safety

Code Sections 121050-121065]. A forensic scientist

or employee who is exposed may also petition a court

for an order for testing. Prior to the filing of a petition

for court-ordered testing, a health care provider must

attempt to obtain the voluntary informed consent of

the arrestee (or the authorized legal representative) to

perform a test for HIV, hepatitis B, and hepatitis C. The

voluntary informed consent must be in writing. CHA

Form 23-1, “Consent for the HIV Test,” may be used to

comply with this requirement. If the arrestee declines to

consent, the peace officer, custodial officer, firefighter,

emergency medical personnel or nonsworn employee

of a law enforcement agency petitioning the court

must obtain a written certification by a health care

professional that an exposure, including the nature and

extent of the exposure, has occurred.

Testing must be performed on specimens of blood

withdrawn from the defendant in a medically approved

manner. Only a physician, registered nurse, licensed

vocational nurse, licensed medical technician or

licensed phlebotomist may withdraw blood for these

purposes. The court’s order should specify the tests

to be performed and designate the persons to whom

disclosure of the results may be made. The test results

must be sent to the designated recipients with the

following disclaimer:

The tests were conducted in a medically approved

manner. Persons receiving this test result should

continue to monitor their own health and should consult

a physician as appropriate. Recipients of these test

results are subject to existing confidentiality protections

for any identifying information about HIV, hepatitis B, or

hepatitis C test results. Medical information regarding

the HIV, hepatitis B, or hepatitis C status of the source

patient shall be kept confidential and may not be further

disclosed, except as otherwise authorized by law.

The peace officer, custodial officer, firefighter,

emergency medical personnel or nonsworn employee

of a law enforcement agency who was exposed

must also be informed of the penalties for unlawful

disclosure of medical information about the defendant/

arrestee pursuant to Health and Safety Code Section

120980. In some cases, the subject of the HIV test

must be asked if he or she wishes to know the results,

and must sign a form if he or she does not wish to be

informed [Health and Safety Code Section 121056(c)

(2) and 121060(c)(2)]. An arrestee’s refusal to sign the

form is deemed to be a refusal to be informed of the

test results.

3. Adults or minors charged with any crime are subject

to testing when, at the request of a victim of the crime,

a court finds that there is probable cause to believe

that the accused committed the crime and that blood,

semen or other bodily fluid capable of transmitting HIV

has been transferred from the accused to the victim.

Testing in such cases may be performed only by the

local health officer as specified in a search warrant

issued by the court. [Penal Code Section 1524.1]

4. Inmates of correctional institutions and other persons

in custody or on probation or parole are subject

to testing for hepatitis B and C and HIV under

circumstances where there is a significant risk that HIV

was transmitted. The test may be ordered by the chief

medical officer of a correctional institution (subject to

review by the superior court). [Penal Code Sections

7500-7554]

EXCEPTIONS: WHEN INFORMED CONSENT IS NOT

REQUIRED

The law clearly allows testing without the patient’s informed

consent in the following cases:

1. A test performed at an alternative testing site. (The

individual’s consent is still required, but to preserve that

person’s anonymity, no consent form need be signed.)

2. Testing performed to determine the suitability of organs

or tissue donated pursuant to the Uniform Anatomical

Gift Act (see Health and Safety Code Section 7150.65).

3. A test ordered by a medical examiner or other

physician on a cadaver when an autopsy is performed.

4. Testing performed as part of a scientific investigation

conducted either by medical researchers operating

under institutional review board approval or by CDPH

under a protocol for unlinked testing. The testing must

be anonymous with the individual’s name and other

identifying information removed so the test results will

not be linked to a particular individual in the study.

5. Where a health care worker has been exposed to the

potentially infectious materials of a patient, provided

that strict procedures for attempting to obtain consent

and testing are followed. These procedures are

described in CHA’s Consent Manual, chapter 5.

[Health and Safety Code Section 120990]

Chapter 2 — Principles of Consent for Mental Health Patients CHA

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©CALIFORNIA HOSPITAL ASSOCIATION

INFORMING THE PATIENT OF TEST RESULTS

The provider who administers or orders the test must

ensure that the patient receives timely information and

counseling, as appropriate, to explain the test results and

the implications for the patient’s health.

If the patient tests positive for HIV infection, the provider

must inform the patient that there are numerous treatment

options available and identify follow-up testing and care

that may be recommended, including contact information

for medical and psychological services. In addition, the

provider must warn the patient about the dangers of

contagion and counsel the patient about precautionary

measures to prevent the spread of the disease to others

[Reisner v. Regents of the University of California, 31 Cal.

App.4th 1195 (1995)].

If the patient tests negative for HIV infection and is known

to be at high risk for HIV infection, the provider must:

1. Advise the patient of the need for periodic retesting,

2. Explain the limitations of current testing technology

and the current window period for verification of

results, and

3. Provide information about methods that prevent or

reduce the risk of contracting HIV, including, but not

limited to, preexposure prophylaxis and postexposure

prophylaxis, consistent with guidance of the Centers

for Disease Control and Prevention.

The provider may offer prevention counseling or a referral to

prevention counseling.

Chapter 3 — Contents

3 Voluntary Admission and Involuntary

Detainment for Mental Health

Treatment

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION ....................................... 3.1

A. Background ....................................................3.1

B. Patient Privacy Considerations ....................3.1

II. ADMISSION AND TREATMENT OF

VOLUNTARY PATIENTS

............................. 3.2

A. Voluntary Admission of Adult Patients ........3.2

Authority to Request Voluntary Admission .........3.2

Caution: Type of Conservatorship

......................3.3

Written Application for Voluntary Admission

....... 3.3

Search of the Patient, Possessions and Room

..3.3

Other Admission Forms

....................................3.4

Right to Leave the Hospital

...............................3.4

B. Voluntary Admission of Minors to

Private Facilities

............................................3.4

Minors Affected ................................................3.4

Required Procedures at Admission

...................3.5

Independent Clinical Review

..............................3.5

C. Voluntary Admission of Minors to

State and County Facilities

...........................3.7

III. ADMISSION AND TREATMENT OF

INVOLUNTARY PATIENTS.......................... 3.7

A. Definitions ......................................................3.7

B. Facility Designation .......................................3.9

C. Interactions With Peace Officers .................3.9

IV. INVOLUNTARY DETENTION OF THE

PATIENT ON A 72-HOUR HOLD

................. 3.9

A. Patients With a Mental Health Disorder ......3.9

Conditions for Detention ...................................3.9

Written Application Required

............................. 3.9

Notice by Person Taking Patient Into

Custody

..........................................................3.10

Notice by Facility Admission Staff

....................3.10

Assessment

...................................................3.11

Notice of Effects of Medication

........................3.11

Services Provided

........................................... 3.11

Period of Detention

......................................... 3.11

Termination of Detention

.................................3.12

Notification of Release to County Behavioral

Health Director and Peace Officer

...................3.12

Immunity From Liability

....................................3.13

Responsibility for Property of Person Taken

Into Custody

................................................... 3.13

B. Patient Impaired by Inebriation ..................3.13

Conditions for Detention .................................3.13

Written Application Required

........................... 3.13

Recommended Form for Written Application

...3.14

Right to Make Two Telephone Calls

................. 3.14

Release Upon Request

...................................3.14

Services Provided

........................................... 3.14

Period of Detention

......................................... 3.14

Termination of Detention

.................................3.14

Immunity From Liability

....................................3.15

C. Patient Impaired by Use of Controlled

Substances ..................................................3.15

D. Other Admission Forms ..............................3.15

E. Special Requirements for a Minor .............3.16

Gravely Disabled Minor ...................................3.16

Requirements for Commitment

.......................3.16

V. CONTINUED TREATMENT OF AN

INVOLUNTARY PATIENT

......................... 3.17

A. Detention for 14-Day Intensive

Treatment

.....................................................3.17

Conditions for Certification ............................. 3.17

Signatures on Certification Notice

...................3.17

Required Form of Certification Notice

.............. 3.17

Delivery of Copies of the Certification Notice

...3.17

Advisement of Rights to Patient

......................3.18

Maximum Period of Detention

.........................3.18

Termination of Certification

............................. 3.18

Damages for Excessive Detention

...................3.19

Facility Preference

...........................................3.19

Temporary Release

.........................................3.19

Immunity From Liability

....................................3.19

Notification of Release to County Behavioral

Health Director and Peace Officer

...................3.19

Chapter 3 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

CHA Mental Health Law Manual 2019

B. Review of Commitment for 14 Additional

Days of Intensive Treatment ......................3.20

Certification Review Hearings ..........................3.20

Judicial Review Pursuant to a Writ of

Habeas Corpus

..............................................3.22

Patient’s Right to Deny Release of

Information

.....................................................3.23

C. Additional Intensive Treatment for

Suicidal Patient

............................................3.23

Conditions for Confinement ............................3.23

Completion of a Second Notice of

Certification

....................................................3.23

Required Form of Second Notice of

Certification

....................................................3.23

Delivery of Copies of Second Notice of

Certification

...................................................3.24

Advisement of Rights to Patient

......................3.24

Review of Intensive Treatment

......................... 3.24

Termination of Certification for Additional

Intensive Treatment for Suicidal Patient

...........3.24

Damages for Excessive Detention

...................3.24

Facility Preference

...........................................3.25

Temporary Release

.........................................3.25

Immunity From Liability

....................................3.25

D. Additional Intensive Treatment for

Gravely Disabled Person

.............................3.25

Optional Additional 30-Day Period of

Intensive Treatment

.........................................3.25

Conditions for Confinement

.............................3.25

Notice Required

..............................................3.26

Required Form of Second Notice of

Certification

....................................................3.26

Delivery of Copies of Second Notice of

Certification

...................................................3.26

Judicial Review of Intensive Treatment

.............3.26

Damages for Excessive Detention

...................3.27

Facility Preference

...........................................3.27

Immunity From Liability

....................................3.27

Temporary Release

.........................................3.27

Evaluation of Need for Temporary

Conservatorship

.............................................3.28

E. Additional Confinement for a

Person Dangerous to Others

(Post-Certification Procedures)

.................3.28

Grounds for Additional Confinement ................3.28

Petition by Professional Person

.......................3.28

Court Proceedings

..........................................3.29

Termination of Additional Intensive Treatment

and Placement on Outpatient Status

............... 3.29

Immunity From Liability

....................................3.30

F. Additional Treatment for Gravely

Disabled Person (LPS Conservatorship)

...3.31

Conservatorship Recommendation .................3.31

Investigator Action

..........................................3.31

Court Hearing

................................................. 3.31

Conservatorship Established

........................... 3.31

Expiration of Conservatorship

.........................3.32

VI. DETENTION OF PATIENT IN A

NONDESIGNATED FACILITY

.................... 3.32

A. Immunity for Detaining Patient ..................3.32

B. Immunity for Actions of Patient After

Release

.........................................................3.32

C. Hospitals Covered by This Law .................. 3.33

D. Relationship to Other Laws ........................3.33

E. Credit for Time Detained ............................3.33

VII. COURT-ORDERED EVALUATION OF

PERSONS WHO MAY HAVE A MENTAL

HEALTH DISORDER

................................ 3.33

VIII. REPORTING PATIENT ESCAPE,

DISAPPEARANCE, RELEASE OR

TRANSFER ........................................... 3.33

IX. INVOLUNTARY OUTPATIENT

TREATMENT

.......................................... 3.33

A. Contents of Petition ....................................3.33

B. Who May Initiate a Petition ......................... 3.34

C. Procedure .....................................................3.34

FORMS & APPENDICES

12-1

Request for Voluntary Admission and Authorization

for Treatment

12-2 Statement of Professional Person Responsible for

Minor’s Admission

12-3

Notice to Minors

12-4 Certiﬁcation of Admitting Physician

12-5 Application for Involuntary Admission — Inebriates

12-6

Notice of Certiﬁcation for Intensive Treatment

12-7

Advisement of Rights — Involuntary Patient

12-8

Leave of Absence from Psychiatric Service

12-9

Request for Release From Involuntary Treatment

12-10

Notice of Certiﬁcation for Second Involuntary

14-Day Period for Intensive Treatment —

Suicidal Patient

12-11 Petition for Postcertiﬁcation Treatment of Imminently

Dangerous Person

12-12 Detention of Patient With Psychiatric Emergency in

a Nondesignated Health Facility (Health and Safety

Code Section 1799.111)

12-A Summary of Lanterman-Petris-Short Act’s Provision

for Involuntary Evaluation and Treatment and Right

of Review

3 Voluntary Admission and Involuntary

Detainment for Mental Health

Treatment

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I. INTRODUCTION

A. Background

This chapter discusses the rights and procedural

protections that California law gives to persons who

are voluntarily or involuntarily detained for mental

health services, including evaluation and treatment of a

mental health disorder, inebriation or drug use. These

rights and protections are set forth primarily in the

Lanterman-Petris-Short (LPS) Act [Welfare and Institutions

Code Section 5000 et seq.].

Patients who are a danger to self or others or gravely

disabled may be evaluated and treated on an involuntary

basis under two different sets of laws:

1. Welfare and Institutions Code Section 5150 et seq.,

which allows a patient to be held in a facility that is

designated for these purposes by the county and

approved by the California Department of Health

Care Services. Patients may be detained for up to 72

hours (longer if specified criteria are met). Designated

facilities may be general acute care hospitals or acute

psychiatric hospitals. Patients treated under this set of

laws are given the special rights described in chapter

16, and are protected by strict confidentiality laws in

the Welfare and Institutions Code, described in CHA’s

California Health Information Privacy Manual. (For

more information about detaining these patients, see

III.“Admission and Treatment of Involuntary Patients,”

page3.7.)

2. Health and Safety Code Section 1799.111, which

allows a patient to be held in a non-designated facility

for up to 24 hours while the facility tries to find an

appropriate placement for the patient in a facility that

provides mental health services. Non-designated

facilities are general acute care hospitals, and usually

do not have a psychiatric unit. Patients treated under

this law are not given the special rights described in

chapter 16, and are protected by the confidentiality

laws in the Confidentiality of Medical Information Act.

(For more information about detaining these patients,

see VI.“Detention of Patient in a Nondesignated

Facility,” page3.32.)

B. Patient Privacy Considerations

This chapter describes several instances in which California

law requires the disclosure of protected health information

(PHI) to patients’ rights advocates, independent clinical

reviewers, certification review hearing officers, county

behavioral health directors and others.

The federal privacy regulations issued under the Health

Insurance Portability and Accountability Act (HIPAA) of

1996 permit health care providers to disclose PHI to the

persons or entities listed above under several provisions:

1. For purposes of health care oversight [45 C.F.R.

Section 164.512(d)(1)(iv)]. The California Department of

Public Health (CDPH) is one example of a health care

oversight agency. A health care oversight agency also

includes a person or entity acting under a contract

(or other grant of authority) from a government entity

(including a county) to enforce civil rights laws [45

C.F.R. Section 164.501]. Although the HIPAA rules

are not completely clear on this point, if a particular

disclosure of information is required to be made by

California law (or a federal law) to a county patient’s

rights advocate, an independent clinical reviewer

approved by a county, or a certification review hearing

officer approved by the county for the purpose of

determining whether a patient’s civil rights are being

properly protected (rather than the patient being

hospitalized illegally), the disclosure is likely permissible

under the HIPAA provisions for health care oversight.

Alternatively, the disclosure may be permissible under

the HIPAA provision for disclosures “required by law”

[45 C.F.R. Section 164.512(a)].

2. For law enforcement purposes. These uses/

disclosures have certain requirements that must be

met prior to disclosure, as described in this chapter

and chapters 6 and 7.

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3. For judicial and administrative proceedings. These

uses/disclosures have certain requirements that must

be met prior to disclosure. When disclosure of PHI

is made for purposes of judicial or administrative

proceedings (such as a writ of habeas corpus), a

hospital should consult legal counsel regarding the

advisability of filing documents with the court under

seal and/or obtaining a protective order.

4. To prevent or lessen a serious and imminent threat

to the health or safety of the patient or the public

[45 C.F.R. Section 164.512(j)]. (See IX.“Potentially

Dangerous Patients: Duty to Warn Potential Victims

and Notify Law Enforcement,” page7.33.)

Given the high sensitivity of mental health information,

a hospital should consult legal counsel if a question

arises as to whether it is permissible to disclose PHI in a

particular instance.

II. ADMISSION AND TREATMENT OF

VOLUNTARY PATIENTS

A. Voluntary Admission of Adult Patients

Adults, including persons under conservatorship, may

be voluntarily admitted for treatment of mental disorders,

alcoholism or drug abuse.

AUTHORITY TO REQUEST VOLUNTARY ADMISSION

The patient or, if applicable, the patient’s conservator, may

request admission. Welfare and Institutions Code Section

5350 provides for the appointment of a conservator of the

estate, or of the person and the estate, for a person who

is gravely disabled as a result of a mental health disorder

or impairment by chronic alcoholism. Conservatorship

proceedings are discussed under F.“Additional Treatment

for Gravely Disabled Person (LPS Conservatorship),”

page3.31.

The conservator has the right, if specified in the court order,

to place his or her conservatee in a medical, psychiatric,

nursing, or other state-licensed facility, or a state hospital,

county hospital, hospital operated by the Regents of the

University of California, a U.S. government hospital, or other

nonmedical facility approved by the California Department

of Social Services (DSS) or an agency accredited by the

California Department of Health Care Services (DHCS), or,

in the case of chronic alcoholism, in a county alcoholic

treatment center [Welfare and Institutions Code Section

5358].

An agent designated in an advance health care directive

may not authorize voluntary or involuntary admission of a

patient to a mental health facility [Probate Code Section

4652]. (See chapter 2 for information about advance

directives.)

The law recognizes two types of “gravely disabled”

conservatees. Each type is subject to different placement

parameters, as described below.

Unable to Provide for Basic Needs

Welfare and Institutions Code Section 5008(h)(1)(A) defines

“grave disability” as a condition in which a person, as a

result of a mental health disorder, is unable to provide for

his or her basic personal needs for food, clothing, or shelter.

For a conservatee who is gravely disabled under this

definition, the conservator must place the patient in the

least restrictive alternative placement as designated by

the court. The conservator may transfer the patient to a

less restrictive placement without a further court hearing or

court order.

Mentally Incompetent to Stand Trial

Welfare and Institutions Code Section 5008(h)(1)(B) defines

“grave disability” as a condition in which a person has

been found mentally incompetent under Penal Code

Section 1370 (mentally incompetent to stand trial) and all of

the following facts exist:

1. The complaint, indictment or information pending

against the person at the time of commitment charges

a felony involving death, great bodily harm, or a serious

threat to the physical well-being of another person, and

the indictment or information has not been dismissed.

2. There has been a finding of probable cause on a

complaint pursuant to Penal Code Section 1368.1(a)(2)

(which relates to a felony involving death, great bodily

harm, or a serious threat to the physical well-being of

another person), a preliminary examination pursuant to

Penal Code Section 859b (this is a particular type of

hearing), or a grand jury indictment, and the complaint,

indictment, or information has not been dismissed.

3. As a result of a mental health disorder, the person is

unable to understand the nature and purpose of the

proceedings against him or her and to assist counsel in

the conduct of his or her defense in a rational manner.

4. The person represents a substantial danger of physical

harm to others by reason of a mental disease, defect,

or disorder.

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For a conservatee who is gravely disabled under this

definition, the conservator must place the patient in a

placement that achieves the purposes of treatment of the

conservatee and protection of the public. The conservator

may not transfer the patient without written notice to

the court.

CAUTION: TYPE OF CONSERVATORSHIP

A conservatorship under LPS (which is found in the

Welfare and Institutions Code) is different from a

conservatorship under the Probate Code. If a patient is

under a conservatorship, hospitals should obtain and

carefully review the conservatorship documents issued by

the court to determine the type of conservatorship and the

conservator’s scope of authority. A patient may be subject

to both an LPS conservatorship and a Probate Code

conservatorship; however, this is not common.

LPS Conservatorship

An LPS conservatorship is meant for psychiatric patients.

The purpose of an LPS conservatorship is the provision

of individualized psychiatric treatment, supervision, and

placement for a patient who is gravely disabled as a result

of a mental health disorder or impairment by chronic

alcoholism. An LPS conservator may authorize the

admission of the conservatee to a mental health facility.

An LPS conservator may consent to, or refuse, routine

medical treatment (other than psychiatric treatment) only if

the court order establishing the conservatorship specifically

provides this authority. An LPS conservator usually

may not consent for surgery or other complex medical

procedures without an additional, specific court order.

(See F.“Additional Treatment for Gravely Disabled Person

(LPS Conservatorship),” page3.31, for more information

about LPS conservatorships. See C.“Adults Under

Conservatorship,” page2.15, for more information about

an LPS conservator’s authority to consent to, or refuse,

nonpsychiatric medical treatment.)

Probate Code Conservatorship

A conservatorship under the Probate Code is meant

to ensure that the conservatee’s basic needs for food,

clothing, shelter, money management, and health care are

met. Conservatees may be comatose, developmentally

disabled, or have dementia or other medical problems.

Some patients under a Probate Code conservatorship may

have the ability to make their own health care decisions,

while others may not — the letters of conservatorship will

state the authority of the conservator. A Probate Code

conservator may not authorize admission to a mental

health facility. (See C.“Adults Under Conservatorship,”

page2.15, for more information about Probate Code

conservatorships.)

WRITTEN APPLICATION FOR VOLUNTARY ADMISSION

A patient should be voluntarily admitted only if the “Request

for Voluntary Admission and Authorization for Treatment”

form (CHA Form 12-1) or a similar form is completed.

Completion by Physician

The attending physician should certify that the voluntary

patient is mentally competent to understand the nature

of his or her admission and the treatment to be rendered.

The certification should be executed upon admission or

as soon as possible thereafter [Welfare and Institutions

Code Section 6002]. A certification form is included in

the “Request for Voluntary Admission and Authorization for

Treatment” form (CHA Form 12-1).

Copies

One copy of the written application should be made. The

original should be placed in the patient’s medical record;

the copy should be given to the patient or the person

who made the written request for admission on behalf of

the patient.

SEARCH OF THE PATIENT, POSSESSIONS AND ROOM

The “Request for Voluntary Admission and Authorization for

Treatment” form (CHA Form 12-1) notifies the patient that

hospital employees will inventory the patient’s possessions

and remove items that may create a danger to the patient,

other patients, visitors or hospital staff.

As a reminder, mental health patients have the right

to keep and use personal possessions and to have

access to individual storage space for private use. Of

course, this does not mean that patients have the right

to keep potentially dangerous items. However, under

some circumstances a search and/or removal of patient

possessions may constitute a denial of rights, which is

permissible but must be documented. (See II.“Patient

Rights Under State Law,” page4.1, for detailed

information about patient rights and the requirements to be

followed when denying a right.) The hospital should consult

its legal counsel regarding the development of policies and

procedures regarding searches. (See also V.“Searching

Patients and Their Belongings,” page6.13.)

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OTHER ADMISSION FORMS

At the time of admission, the signature of the patient

or the patient’s legal representative on the “Conditions

of Admission” (CHA Form 8-1) and other admission

documents should also be obtained. If the patient lacks

capacity to agree or refuses to agree to admission

documents, the facility should attempt to obtain the

patient’s signature once he or she has regained capacity or

is willing to sign.

RIGHT TO LEAVE THE HOSPITAL

A voluntary adult patient may leave the hospital, clinic, or

institution at any time by giving notice to any member of

the hospital staff of the patient’s desire to leave and by

completing usual discharge procedures. A conservatee

may leave in a like manner if notice is given by the

patient’s conservator.

B. Voluntary Admission of Minors to Private

Facilities

As a general rule, a parent may consent to a minor’s

admission for inpatient mental health treatment, subject

to the limitations described below. There are special

requirements that apply to certain treatments a minor might

receive (e.g., antipsychotic medications and convulsive

therapy), which are discussed in X.“Treatments That

Require Special Consent,” page2.42.

California law specifies procedures and requirements for

the voluntary admission to private acute psychiatric facilities

of minors age 14 and older. State and county hospitals are

not required to follow these procedures and requirements

[Welfare and Institutions Code Sections 6002.10-6002.40].

“Voluntary admission” means, for a minor patient, that

the parent, guardian or other legal representative wants

the minor to be admitted to the hospital. It does not

necessarily mean that the minor agrees or acquiesces

to the hospitalization. (See VII.“Who May Give Consent:

Minors,” page2.24, regarding who may be considered a

legal representative of a minor.)

MINORS AFFECTED

The admission procedures apply to a minor between 14

and 18 years of age admitted to a private mental health

facility and whose admitting diagnosis or condition is

either a mental health disorder only or a mental health

disorder and a substance use disorder. Admission based

on substance use disorder alone is not covered by these

procedures. Additionally, the law applies only when the

costs of treatment are paid or reimbursed by a private

insurer or private health plan or Medi-Cal, not when the

parent personally pays for the service.

Mental Health Disorder

Although resistance to treatment may be a product of a

mental health disorder, the resistance does not, in itself,

imply the presence of a mental health disorder or constitute

evidence that the minor meets admission criteria. A minor

must not be considered to have a mental health disorder

solely for exhibiting behaviors specified under Welfare and

Institutions Code Section 601 (refusal to obey parents,

violation of curfew, or truancy) or 602 (commission of a

crime).

Exclusions

The admission procedures do not apply to the

following minors:

1. Minors under 14 years of age.

2. Minors who are legally emancipated. Minors who are

legally emancipated cannot be voluntarily admitted

by a parent or guardian. They should be treated as

voluntary or involuntary adults.

3. Minors who are detained involuntarily on a 72-hour

hold as gravely disabled or as a danger to self or

others under the Lanterman-Petris-Short Act, Welfare

and Institutions Code Sections 5585.50 and 5585.53.

(These procedures would apply, however, at the time

of a change to voluntary status of a minor who was

initially admitted on a 72-hour hold if the other criteria

are met.)

4. Minors who are voluntarily committed as wards of the

juvenile court under Welfare and Institutions Code

Section 6552 (see below).

5. Minors who have been declared dependents of the

juvenile court under Welfare and Institutions Code

Section 300 (abuse, neglect or abandonment) or

wards of the court under Welfare and Institutions Code

Section 602 (commission of a crime).

Wards and dependents of the juvenile court may, with

the advice of counsel, voluntarily request inpatient mental

health services [Welfare and Institutions Code Section

6552]. The juvenile court must authorize the minor to

request these services first. The juvenile court may

authorize the minor to request mental health services if the

court is satisfied from the evidence that:

1. The minor suffers from a mental health disorder

which may reasonably be expected to be cured or

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ameliorated by a course of treatment offered by the

hospital, facility or program in which the minor wishes

to be placed; and

2. There is no other available hospital, facility or program

that might better serve the minor’s medical needs and

best interest.

The juvenile court may issue an order to the minor and to

the person in charge of the hospital, facility or program

ordering that the minor be returned to the juvenile court if

the minor tries to leave before being discharged.

REQUIRED PROCEDURES AT ADMISSION

The facility must see that the following requirements

are met:

1. Prior to accepting the written authorization for

treatment, a facility representative must give a full

explanation of the facility’s treatment philosophy to

the parent, guardian or other person entitled to the

minor’s custody. This explanation must be given orally

and in writing, and must include, where applicable,

the use of seclusion, restraints, medication, and the

degree of involvement of family members in the minor’s

treatment. This must be documented in the minor’s

medical record. The “Statement of Professional Person

Responsible for Minor’s Admission” form (CHA Form

12-2) may be used to document the oral discussion.

Each facility should prepare a written document to

be given to the minor or the minor’s representative.

The admitting parent’s or guardian’s signature on the

“Conditions of Admission” (CHA Form 8-1) and other

admission documents should also be obtained.

2. As part of the admission process, the professional

responsible for the minor’s admission must affirm in

writing that the minor meets the following required

admission criteria:

a. That the minor has a mental health disorder,

or a mental health disorder and a substance

use disorder.

b. That inpatient treatment in the facility is reasonably

likely to be beneficial to the minor’s mental

health disorder.

c. That inpatient treatment in the facility is the least

restrictive, most appropriate available setting in

which to treat the minor, within the constraints of

reasonably available services, facilities, resources,

and financial support.

The “Statement of Professional Person Responsible

for Minor’s Admission” form (CHA Form 12-2) may be

used for this purpose.

3. Upon admission, the facility is required to do

the following:

a. Notify the minor in writing of the availability of an

independent clinical review of further inpatient

treatment. This notice must be witnessed and

signed by a facility representative.

b. Within one working day, notify the county patients’

rights advocate of the minor’s admission.

c. Provide each minor with a booklet prepared by

DHCS outlining the rights of minors in mental

health facilities. The booklet must include the

telephone number of the local advocate and the

hours that the advocate may be reached.

The “Notice to Minors” (CHA Form 12-3) may be used to

provide the written notice to the minor of the availability

of the independent clinical review and to document the

minor’s receipt of the minor’s rights booklet.

INDEPENDENT CLINICAL REVIEW

The following guidelines apply to the independent

clinical review.

Timing

The minor may request an independent clinical review up to

10 days after admission. The review must take place within

five days of the request. The minor may rescind the request

at any time.

Notification and Participation of Patients’ Rights

Advocate

If the minor requests a review, the facility must notify the

patients’ rights advocate of this within one working day of

the request. The advocate must provide information and

assistance to the minor in a manner least disruptive to

patient care in the facility.

Selection of the Person Who Conducts the Hearing

The independent clinical review must be conducted by a

licensed psychiatrist with training and experience in treating

adolescent psychiatric patients. This reviewer must be

a neutral party to the review, having no direct financial

relationship with the treating clinician nor a personal or

financial relationship with the minor’s parents or guardian.

The reviewer must be assigned, on a rotating basis, from

a list prepared by the facility and approved by the county

behavioral health director (see Welfare and Institutions

Code Section 6002.25 about the annual submission and

approval process). The reviewer may be an active member

of the medical staff of the facility so long as he or she has

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no direct financial relationship with the facility (including,

but not limited to, an employment or other contractual

arrangement with the facility) except for compensation

received for the service of providing clinical reviews.

Setting

The review must take place at the facility in a location that

assures privacy and is compatible with, and least disruptive

to, the treatment being provided to the minor. The review

must be held in an informal setting to minimize the anxiety

of the minor and his or her parents and to promote

communication and cooperation among those involved.

Closed Review

The review must be closed to all but the minor, the parents

or legal guardian, a facility representative, the minor’s

advocate, the reviewer, and the person who presents

information in favor of, or in opposition to, the inpatient

treatment. The reviewer has discretion to limit the number

of participants.

Legal Representation

No party may have legal representation in the

review process.

Interpreters

If a party to the review does not comprehend the language

used at the review, the reviewer is responsible for retaining

an interpreter.

Record of the Review

The reviewer must keep a record of the proceeding.

Participation by Minor

The minor has the right to be present, to be assisted by

the patients’ rights advocate, and to question persons

recommending inpatient treatment. The reviewer must be

informed if the minor has received medication while an

inpatient and of the probable effects of the medication. If

the minor is unwilling to attend, the review must be held

without the minor, with the advocate representing the minor.

Information Considered

All reasonably available clinical data relevant to establishing

whether the minor meets the admission criteria must be

considered by the reviewer. The reviewer must privately

interview the minor and must consult the treating clinician

to review alternative treatment options. The person who

presents the clinical information in favor of inpatient

treatment must inform the person who conducts the

interview of the proposed treatment plan for the minor

and, if known, whether the minor has had any previous

independent clinical reviews at any facility, and the

results thereof.

Standard of Review

The standard of review must be:

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 health

disorder; and

3. Whether placement in the facility represents the

least restrictive, most appropriate available setting

in which to treat the minor, within the constraints of

reasonably available services, facilities, resources, and

financial support.

Decision

The reviewer must render a binding decision after

considering all of the clinical information.

If the reviewer determines that further inpatient treatment

is reasonably likely to be beneficial to the minor’s mental

health disorder and that placement in the facility is the least

restrictive, most appropriate available setting in which to

treat the minor, the minor’s inpatient treatment must be

authorized. This determination terminates upon the minor’s

discharge from the facility.

If the reviewer determines that further inpatient treatment

is not reasonably likely to be beneficial to the minor’s

mental health disorder or is not the least restrictive, most

appropriate available setting, the minor must be released

from the facility to a custodial parent or guardian on the

same day the determination is made.

Immunity From Liability

If the minor is released pursuant to the reviewer’s

determination, neither the attending psychiatrist, any

licensed health professional providing treatment to the

minor in the facility, the psychiatrist who releases the

minor, nor the facility in which the minor was admitted or

treated shall be civilly or criminally liable for any conduct

of the released minor (or the conduct of a parent, legal

guardian, or other persons entitled to custody of the

minor). There is an exception to this immunity only to the

extent that a person defined as a psychotherapist under

Evidence Code Section 1010 has a duty to warn if the

patient communicated to the psychotherapist a serious

threat of physical violence against a reasonably identifiable

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victim or victims. (See A.“Duty to Warn Potential Victims,”

page7.33, and B.“Duty to Notify Law Enforcement

Agency,” page7.33, for information about these duties.)

Costs

If a private insurer, certified medical plan or private health

care service plan is financially responsible for the costs of

medically necessary mental health services provided to a

minor, then the costs of the clinical review (including the

costs of the patients’ rights advocate and the interpreter, if

any) must be borne by the insurer, certified medical plan or

health plan. For Medi-Cal patients, the costs of the review

must be borne by the county.

Annual Reports

Mental health facilities must prepare and submit annually to

DHCS information including, but not limited to:

1. The number of minors admitted by diagnosis, length of

stay, and source of payment; and

2. The number of requests for an independent clinical

review by diagnosis, source of payment, and outcome

of the independent clinical review.

The California Department of Public Health is required to

monitor compliance with this reporting requirement during

surveys. [Welfare and Institutions Code Section 6002.40(c)]

C. Voluntary Admission of Minors to State and

County Facilities

State and county facilities are excluded from the notice

and review requirements described above. However, in the

case In re Roger S., 19 Cal.3d 921 (1977), the California

Supreme Court held that a parent or guardian may not

admit a minor 14 years of age or older to a state hospital

without a pre-admission hearing to determine whether

the minor is mentally ill. In addition, the U.S. Supreme

Court ruled that postadmission independent review is also

required [Parham v. J.R., 442 U.S. 584 (1979)]. These

rulings do not apply to minors under 14 years of age or to

private facilities (see B.“Voluntary Admission of Minors to

Private Facilities,” page3.4).

“Voluntary admission” means, for a minor patient, that

the parent, guardian or other legal representative wants

the minor to be admitted to the hospital. It does not

necessarily mean that the minor agrees or acquiesces to

the hospitalization.

III. ADMISSION AND TREATMENT OF

INVOLUNTARY PATIENTS

The Lanterman-Petris-Short (LPS) Act establishes

procedural requirements under which persons dangerous

to themselves or others or gravely disabled as a result of a

mental health disorder, inebriation, or the use of narcotics

or restricted dangerous drugs may be involuntarily

detained for specified periods for evaluation and treatment,

which include:

1. An initial 72-hour hold for evaluation and treatment;

2. An additional 14-day intensive treatment period

(see A.“Detention for 14-Day Intensive Treatment,”

page3.17); and

3. An additional 30-day period of intensive treatment

after the 14-day period of treatment (where the county

board of supervisors authorizes such a procedure) (see

D.“Additional Intensive Treatment for Gravely Disabled

Person,” page3.25); and

4. Further confinement depending on the

person’s condition:

a. A second 14-day intensive treatment period

for persons who are imminently suicidal (see

C.“Additional Intensive Treatment for Suicidal

Patient,” page3.23);

b. An additional 180-day confinement for persons

who present a demonstrated danger of substantial

physical harm to others (see E.“Additional

Confinement for a Person Dangerous to Others

(Post-Certification Procedures),” page3.28); or

c. Confinement pursuant to a conservatorship

for persons who are gravely disabled (see

D.“Additional Intensive Treatment for Gravely

Disabled Person,” page3.25).

A chart that may be useful in understanding LPS, entitled

“Summary of the Lanterman-Petris-Short Act’s Provision for

Involuntary Evaluation and Treatment and Right of Review”

(CHA Table 12-A), is included in the back of this manual.

A. Definitions

“Assessment” means the determination of whether

a person shall be evaluated and treated pursuant to

Welfare and Institutions Code Section 5150 [Welfare and

Institutions Code Section 5150.4].

“Attending staff” is defined as a person who has

responsibility for the care and treatment of the patient, as

designated by the local mental health director, and who

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is on the staff of a designated facility [Title 9, California

Code of Regulations, Section 823]. “A member of the

attending staff who is authorized to admit a person to

a designated facility” is defined as a physician who is on

the psychiatric attending staff of either a public or private

designated facility to which the patient will be admitted.

“Crisis intervention” consists of an interview or series

of interviews within a brief period of time, conducted by

qualified professionals, and designed to alleviate personal

or family situations that present a serious and imminent

threat to the health or stability of the person or the family.

The interview or interviews may be conducted in the home

of the person or family, or on an inpatient or outpatient

basis with therapy or other services, as appropriate. The

interview or interviews may include family members,

significant support persons, providers, or other entities or

individuals, as appropriate and as authorized by law. Crisis

intervention may, as appropriate, include suicide prevention,

psychiatric, welfare, psychological, legal, or other social

services. [Welfare and Institutions Code Section 5008(e)]

“Evaluation” consists of multidisciplinary professional

analyses of a person’s medical, psychological, educational,

social, financial, and legal conditions as may appear to

constitute a problem. Persons providing evaluation services

must be properly qualified professionals and may be

full-time, part-time, or contract employees of an agency

providing face-to-face evaluation services, including

telehealth. [Welfare and Institutions Code Section 5008(a)]

“Gravely disabled” means either of the following:

1. A condition in which a person, as a result of a mental

health disorder or, in some cases, chronic alcoholism,

is unable to provide for his or her basic personal needs

for food, clothing or shelter [Welfare and Institutions

Code Section 5008(h)(1)(A)]; or

2. A condition in which a person has been found mentally

incompetent under Penal Code Section 1370 (mentally

incompetent to stand trial) and all of the following

facts exist:

a. The complaint, indictment or information pending

against the person at the time of commitment

charges a felony involving death, great bodily harm,

or a serious threat to the physical well-being of

another person, and the indictment or information

has not been dismissed.

b. There has been a finding of probable cause on

a complaint pursuant to Penal Code Section

1368.1(a)(2) (which relates to a felony involving

death, great bodily harm, or a serious threat to

the physical well-being of another person), a

preliminary examination pursuant to Penal Code

Section 859b (this is a particular type of hearing),

or a grand jury indictment, and the complaint,

indictment, or information has not been dismissed.

c. As a result of a mental health disorder, the person

is unable to understand the nature and purpose of

the proceedings taken against him or her and to

assist counsel in the conduct of his or her defense

in a rational manner.

d. The person represents a substantial danger of

physical harm to others by reason of a mental

disease, defect, or disorder.

[Welfare and Institutions Code Section 5008 (h)(1)(B)]

The term “gravely disabled” does not include persons with

intellectual disabilities by reason of that disability alone.

[Welfare and Institutions Code Section 5008(h)].

Notwithstanding Welfare and Institutions Code Section

5008(h), a person is not gravely disabled if that person

can survive safely without involuntary detention with the

help of responsible family, friends, or others who are willing

and able to help provide for the person’s basic personal

needs for food, clothing, or shelter. However, unless

family, friends, or others specifically indicate in writing their

willingness and ability to help, they must not be considered

willing or able to provide this help [Welfare and Institutions

Code Sections 5250(d) and 5350(e)]. This exception

does not apply to patients who are considered gravely

disabled under Welfare and Institutions Code Section

5008(h)(1)(B) (mentally incompetent to stand trial).

“Gravely disabled minor” is a minor who, as a result of

a mental health disorder, is unable to use the elements of

life that are essential to health, safety, and development,

including food, clothing, and shelter, even though provided

to the minor by others. Intellectual disability or other

developmental disabilities, epilepsy, alcoholism, other

drug abuse, or repeated antisocial behavior do not, by

themselves, constitute a mental health disorder. [Welfare

and Institutions Code Section 5585.25]

”Professional person in charge of a facility” means a

psychiatrist, psychologist, social worker, marriage and

family therapist, or registered nurse with a master’s degree

in psychiatric or public health nursing who is designated by

the governing board of the facility or person having control

of the facility as the professional person clinically in charge

of the facility for purposes of LPS. The designation must be

in writing. [Title 9, California Code of Regulations, Sections

623-627 and 822]

“Mental health disorder” is a term that is not defined in

the law. According to the California Attorney General, the

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reference to “mental disorder” (or “mental health disorder,”

the term used as of Jan. 2014) in Welfare and Institutions

Code Section 5150 draws no distinction between disorders

of inorganic or organic origin and therefore includes,

together with inorganic mental disorders, Alzheimer’s

disease, brain injuries and other organic brain disorders [72

Ops.Cal.Atty.Gen. 41 (1989)].

B. Facility Designation

Involuntary treatment and evaluation must take place only

in a facility that is designated for such purposes by the

county and approved by DHCS. These facilities are called

“designated facilities.”

C. Interactions With Peace Officers

Mental health professionals may not interfere with peace

officers who are transporting a person to a designated

facility for assessment under Welfare and Institutions Code

Section 5150. These laws were passed to prevent mental

health personnel from refusing to take a patient and telling

law enforcement officers to take the patient to jail instead,

and to prevent mental health personnel from unreasonably

detaining law enforcement officers. [Welfare and Institutions

Code Sections 5150.1 and 5150.2]

Welfare and Institutions Code Section 5150.1 provides:

No peace officer seeking to transport, or having

transported, a person to a designated facility for

assessment under Welfare and Institutions Code Section

5150, may be instructed by mental health personnel to

take the person to, or keep the person at, a jail solely

because of the unavailability of an acute bed, nor may

the peace officer be forbidden to transport the person

directly to the designated facility. No mental health

employee from any county, state, city, or any private

agency providing Short-Doyle psychiatric emergency

services may interfere with a peace officer performing

duties under Welfare and Institutions Code Section

5150 by preventing the peace officer from entering a

designated facility with the person to be assessed, nor

may any employee of such an agency require the peace

officer to remove the person without assessment as a

condition of allowing the peace officer to depart.

Welfare and Institutions Code Section 5150.2 provides:

In each county whenever a peace officer has transported

a person to a designated facility for assessment under

Welfare and Institutions Code Section 5150, that officer

shall be detained no longer than the time necessary

to complete documentation of the factual basis of the

detention under Welfare and Institutions Code Section

5150 and a safe and orderly transfer of physical custody

of the person. The documentation must include detailed

information regarding the factual circumstances and

observations constituting probable cause for the peace

officer to believe that the individual required psychiatric

evaluation under the standards of Welfare and

Institutions Code Section 5150.

Each county must establish disposition procedures

and guidelines with local law enforcement agencies

as necessary to relate to persons not admitted for

evaluation and treatment and who decline alternative

mental health services and to relate to the safe and

orderly transfer of physical custody of persons under

Welfare and Institutions Code Section 5150, including

those who have a criminal detention pending.

IV. INVOLUNTARY DETENTION OF THE PATIENT

ON A 72-HOUR HOLD

A. Patients With a Mental Health Disorder

CONDITIONS FOR DETENTION

Welfare and Institutions Code Section 5150 states that

when a person, as a result of a mental health disorder,

is a danger to self or others or is gravely disabled, any

of the following persons may, upon probable cause,

take the person into custody and place the person in a

designated facility:

1. A peace officer (including park peace officers and

regional park peace officers);

2. A professional person in charge of a designated

facility; or

3. A member of the attending staff of a designated facility

who is authorized to admit a patient involuntarily; or

4. Any other professional person designated by

the county.

The person may be taken into custody for up to 72 hours

for assessment, evaluation, and crisis intervention, or

placement for evaluation and treatment in a designated

facility. (If the patient is a minor, see E.“Special

Requirements for a Minor,” page3.16.) At a minimum,

assessment and evaluation must be conducted and

provided on an ongoing basis. Crisis intervention may be

provided concurrently with assessment, evaluation, or

other services.

WRITTEN APPLICATION REQUIRED

The receiving/admitting facility must receive a written

application stating:

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1. The circumstances under which the person’s condition

was called to the attention of the peace officer,

professional person in charge of the facility, member of

the attending staff, or professional person designated

by the county.

2. That the officer, member of the attending staff, or

professional person has probable cause to believe that

the person is, as a result of a mental health disorder, a

danger to self or others or gravely disabled.

3. Whether the historical course of the person’s mental

disorder was considered in this determination (see

below).

A state law has been enacted, effective Jan. 1, 2019, to

clarify that a copy of the application must be treated as the

original. Formerly, some ambulance companies and other

entities were declining to provide services to involuntary

patients without having the original document.

When determining if probable cause exists to detain a

person under Welfare and Institutions Section 5150, all

available relevant information about the historical course of

the person’s mental disorder must be considered if it has a

reasonable bearing on the determination as to whether the

person is a danger to self or others or is gravely disabled.

This includes evidence presented by a person who has

provided or is providing mental health or related support

services and evidence presented by family members.

[Welfare and Institutions Code Section 5150.05]

If the probable cause is based on the statement of

someone else, that person may be held liable in a civil

action for intentionally giving a statement which he or she

knows is false.

Recommended Form

In order to comply with the requirements of Welfare and

Institutions Code Section 5150 for a written application,

it is recommended that the DHCS 1801/DMH MH

302, “Application for Assessment, Evaluation, and Crisis

Intervention or Placement for Evaluation and Treatment,”

be used. This form may be found at www.dhcs.ca.gov/

formsandpubs/forms/pages/mental_health-forms.aspx.

CHA recommends supplementing the state form with the

“Certificate of Admitting Physician” (CHA Form 12-4).

NOTICE BY PERSON TAKING PATIENT INTO CUSTODY

When a person is taken into custody under Welfare and

Institutions Code Section 5150, the person who makes

the detention must provide the following information orally

in a language or modality accessible to the person. If

the person cannot understand an oral advisement, the

information must be provided in writing. This information

is included in the DHCS 1801/DMH MH 302 form. The

information should be substantially in the following form:

My name is

I am a

(peace officer, mental health professional, etc.)

with

(name of agency). You are not under criminal arrest,

but I am taking you for an examination by mental

health professionals at

(name of facility). You will be told your rights by the

mental health staff.

If the person is taken into custody at his or her residence,

the person must also be told the following information in

substantially the following form:

You may bring a few personal items with you, which

I will have to approve. Please inform me if you need

assistance turning off any appliances or water. You

may make a phone call and leave a note to tell your

friends or family where you have been taken.

The designated facility must keep a record of this

advisement in the patient’s medical record that includes:

1. The name of the person detained for evaluation.

2. The name and position of the peace officer or mental

health professional taking the person into custody.

3. The date the advisement was completed.

4. Whether the advisement was completed.

5. The language or modality used to give the advisement.

6. If the advisement was not completed, a statement of

good cause for not completing the advisement. (See

F.“Denial of Patient Rights,” page4.4, regarding the

requirements for denial of a mental health patient’s

rights.)

NOTICE BY FACILITY ADMISSION STAFF

The admission staff of the designated facility is required to

give each person admitted under Welfare and Institutions

Code Section 5150 specified information about the

involuntary detention, both orally and in writing, in a

language or modality accessible to the person. The

written information must be in English and the language

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that is the person’s primary means of communication.

Accommodations for other disabilities that may affect

communications must also be provided. [Welfare and

Institutions Code Section 5150(i)] DHCS has developed a

form, DHCS 1802, “Involuntary Patient Advisement,” that

hospitals may use. The form is found at www.dhcs.ca.gov/

formsandpubs/forms/pages/mental_health-forms.aspx.

A record of this advisement must be kept in the patient’s

medical record and must include the following:

1. The name of the person performing the advisement.

2. The date of the advisement.

3. Whether the advisement was completed.

4. The language or modality used to communicate

the advisement.

5. If the advisement was not completed, a statement

of good cause (see F.“Denial of Patient Rights,”

page4.4, regarding the requirements for denial of a

mental health patient’s rights).

ASSESSMENT

The professional person in charge of a designated facility,

member of the attending staff, or professional person

designated by the county must assess the patient to

determine whether he or she can be properly served

without being detained [Welfare and Institutions Code

Section 5150(c)]. Prior to admitting a patient to a facility for

a treatment and evaluation under Welfare and Institutions

Code Section 5150, the professional person in charge

of the facility, or a designee, must assess the patient in

person to determine the appropriateness of the involuntary

detention [Welfare and Institutions Code Section 5151].

If the patient cannot be properly served without being

detained, the admitting facility must require an application

in writing (see “Written Application Required,” page3.9).

When a patient is evaluated by a professional person in

charge of a designated facility, member of the attending

staff, or professional person designated by the county and

is found to need mental health services, but is not admitted

to the facility, all available alternative services provided

under Welfare and Institutions Code Section 5150(c)

must be offered as determined by the county behavioral

health director. These services include evaluation, crisis

intervention, or other inpatient or outpatient services

provided on a voluntary basis.

When a patient is subject to detention under Welfare and

Institutions Code Section 5150, the treating facility must

obtain the patient’s medication history, if possible [Welfare

and Institutions Code Section 5332].

NOTICE OF EFFECTS OF MEDICATION

A patient detained for evaluation and treatment who

receives medications as a result of mental illness must be

given, as soon as possible after detention, written and oral

information about the probable effects and possible side

effects of the medication [Welfare and Institutions Code

Section 5152(c)].

The following information must be given orally to

the patient:

1. The nature of the mental illness or behavior that is the

reason the medication is being given or recommended.

2. The likelihood of improving or not improving without

the medication.

3. Reasonable alternative treatments available.

4. The name, type, frequency, amount, and method of

dispensing the medication, and the probable length of

time the medication will be taken.

The fact that the information has or has not been given

must be indicated in the patient’s medical record. If the

information has not been given, the facility must document

in the patient’s medical record the justification for not

providing the information.

(See also B.“Antipsychotic Medications,” page2.42, for

additional legal requirements if antipsychotic medications

will be administered.)

SERVICES PROVIDED

Each patient admitted to a facility for a 72-hour treatment

and evaluation period must receive an evaluation as soon

as possible after admission, and must receive the treatment

and care the condition requires for the full period that he or

she is held [Welfare and Institutions Code Section 5152].

PERIOD OF DETENTION

If a designated facility admits a patient, it may detain him or

her for evaluation and treatment for a period not to exceed

72 hours, including Saturdays, Sundays and holidays. If

evaluation and treatment services are not available on

Saturdays, Sundays and holidays, and if DHCS certifies

that evaluation and treatment services cannot reasonably

be made available on those days, they are not counted

in the 72 hours. The certification by DHCS is subject to

renewal every two years. [Welfare and Institutions Code

Section 5151]

The 72 hours is counted from the time the person is

admitted to the facility responsible for the evaluation and

treatment. The time of admission runs from the time the

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person is first detained in the facility and is not dependent

upon completion of admissions procedures or paperwork.

The time is not extended by a preadmission evaluation

period at the facility.

The 72 hours does not include time spent transporting the

patient to the treatment and evaluation facility by peace

officers or other persons designated to take a person into

custody under Welfare and Institutions Code Section 5150.

TERMINATION OF DETENTION

If the professional person in charge of the designated

facility, member of the attending staff, or professional

person designated by the county, determines that

an individual may be properly served without being

involuntarily detained, then evaluation, crisis intervention,

or other inpatient or outpatient services must be provided

on a voluntary basis. This authority shall not be interpreted

to prevent a peace officer from delivering individuals to a

designated facility for assessment. [Welfare and Institutions

Code Section 5150(c)]

If detained, the patient may be released before 72 hours

have elapsed only if the psychiatrist directly responsible

for the person’s treatment believes, as a result of his or her

personal observations, that the person no longer requires

evaluation or treatment. However, in those situations in

which both a psychiatrist and psychologist have personally

evaluated or examined a person on a 72-hour hold and

there is a collaborative treatment relationship between

the psychiatrist and psychologist, either the psychiatrist

or psychologist may authorize the release of the person,

but only after they have consulted with one another. In the

event of a clinical or professional disagreement regarding

the early release, the hold must be maintained unless the

facility’s medical director overrules the decision of the

psychiatrist or psychologist opposing the release. Both

the psychiatrist and psychologist must enter their findings,

concerns, or objections in the patient’s medical record.

If any other professional who is authorized to release the

person believes the person should be released before

72 hours have elapsed, and the psychiatrist directly

responsible for the person’s treatment objects, the matter

must be referred to the medical director of the facility for

the final decision. However, if the medical director is not

a psychiatrist, he or she must appoint a designee who

is a psychiatrist to make these decisions. If the matter is

referred, the person must be released before 72 hours

have elapsed only if the psychiatrist who makes the

final decision believes, as a result of his or her personal

observations, that the person no longer requires evaluation

or treatment. [Welfare and Institutions Code Section 5152]

A psychologist may not order an early release without

potential liability [Ford v. Norton, 89 Cal. App. 4th 974

(2001)], except in the narrow instance outlined in the

previous paragraph.

A patient who has been detained for evaluation and

treatment must be released at the end of the 72-hour

period unless any of the following applies:

1. The patient is referred for further care and treatment on

a voluntary basis;

2. The patient has been certified for intensive treatment

(see A.“Detention for 14-Day Intensive Treatment,”

page3.17); or

3. A conservator or temporary conservator has been

appointed for the patient under Welfare and Institutions

Code Section 5350 et seq. (see F.“Additional

Treatment for Gravely Disabled Person (LPS

Conservatorship),” page3.31).

[Welfare and Institutions Code Section 5152(b)]

NOTIFICATION OF RELEASE TO COUNTY BEHAVIORAL

HEALTH DIRECTOR AND PEACE OFFICER

The professional person in charge of a designated facility

(or designee) must notify the county behavioral health

director (or designee) and the peace officer who placed the

5150 hold (or a person designated by the law enforcement

agency that employs the peace officer) of the patient’s

release if both of the following conditions apply:

1. The peace officer requested notification at the time of

application, and

2. The peace officer certified in writing that the person

was referred to the facility under circumstances that

support the filing of criminal charges.

The only information that may be released is the person’s

name, address, date of admission for the 72-hour

evaluation period, and the date of release [Welfare and

Institutions Code Section 5152.1; 45 C.F.R. Section

164.512(a) and (f)].

The hospital should examine the paperwork completed by

the law enforcement officer to determine if notification upon

release is required.

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IMMUNITY FROM LIABILITY

Provided they have complied with the provisions of

applicable law discussed above, the following persons

are not civilly or criminally liable for any action by a patient

released at or before the end of the 72 hours:

1. The professional in charge of the designated facility, or

a designee;

2. The medical director of the facility, or a designee,

described in Welfare and Institutions Code Section

5152;

3. The psychiatrist directly responsible for the person’s

treatment;

4. The psychologist; and

5. The peace officer responsible for the detention of the

person.

[Welfare and Institutions Code Section 5154]

RESPONSIBILITY FOR PROPERTY OF PERSON TAKEN

INTO CUSTODY

Responsibility Defined

When a patient is taken into custody for evaluation, or

within a reasonable time thereafter, the person who takes

the patient into custody must take reasonable precautions

to preserve and safeguard the personal property in the

possession of, or on the premises occupied by, the patient.

The person taking the patient into custody must give

the court a report that generally describes the patient’s

property and its disposition (unless a responsible relative,

guardian or conservator is in possession of the patient’s

personal property). The language outlined below may be

used for this report. If a responsible relative, guardian, or

conservator of the patient has possession of the property,

the report must include only the name of the relative,

guardian, or conservator and the location of the property. In

such a case, the person who took the patient into custody

is no longer responsible for the property once the report

is completed.

For these purposes, “responsible relative” includes the

spouse, parent, adult child, domestic partner, grandparent,

grandchild, or adult brother or sister of the person.

[Welfare and Institutions Code Section 5150(f)]

Reporting Requirement

The required report of a patient’s property made by

the person taking the patient into custody should be

substantially in the following form:

I hereby report to the Superior Court for the County

that the

personal property of the person apprehended,

described generally as

was preserved and safeguarded by

(insert name of person taking the patient into custody,

responsible relative, guardian or conservator)

. The property is

now located at

Date:

, 20

Signature:

Title:

[Welfare and Institutions Code Section 5211]

B. Patient Impaired by Inebriation

CONDITIONS FOR DETENTION

When a person is a danger to self or others or gravely

disabled as a result of inebriation, a peace officer, member

of the attending staff of a designated facility who is

authorized to place a hold, or a person designated by the

county may, upon reasonable cause, place the person in

a facility designated by the county and approved by the

California Department of Alcohol and Drug Programs as a

facility for 72-hour treatment and evaluation of inebriates

[Welfare and Institutions Code Section 5170]. A list of

these facilities may be found at https://data.chhs.ca.gov/

dataset/dhcs-licensed-residential-facilities-and-or-certifie

d-alcohol-and-drug-programs/resource/1cbf39c4-0674-

4dce-8f6f-4ff24eb8074e. (As of July 1, 2013, the California

Department of Alcohol and Drug Programs became part of

the California Department of Health Care Services.)

If, in the judgment of the admitting staff, the inebriate can

be properly served without being detained, he or she must

be treated on a voluntary basis [Title 9, California Code of

Regulations, Section 9448]. Welfare and Institutions Code

Section 5172.1 permits a person who is a danger to self

or others or gravely disabled as a result of inebriation, to

voluntarily apply for admission to a 72-hour evaluation and

detoxification treatment facility.

WRITTEN APPLICATION REQUIRED

The designated facility must obtain an application in writing

that states the circumstances under which the person’s

condition was called to the attention of the officer, member

of the attending staff, or a designee. It must state that

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the officer, member of the attending staff, or designee

believes as a result of his or her personal observations

that the person is, as a result of inebriation, a danger to

self or others or gravely disabled, or has violated Penal

Code Section 647(f), which makes it a misdemeanor to be

in public under the influence of alcohol or other specified

substances and thus unable to exercise care for one’s

own safety or the safety of others. [Welfare and Institutions

Code Section 5170.3]

RECOMMENDED FORM FOR WRITTEN APPLICATION

It is recommended that in meeting the requirement for a

written application that the “Application for Involuntary

Admission — Inebriates” form (CHA Form 12-5) be used.

RIGHT TO MAKE TWO TELEPHONE CALLS

Immediately after being taken to a designated facility, a

person has the right to make, at his or her own expense,

at least two completed telephone calls (except where

physically impossible). The person must be allowed to

make these calls within three hours of detention. If the

person placed in the evaluation facility does not have

money to make these calls, he or she must be allowed

to make at least two completed local toll-free or collect

telephone calls at no charge. [Welfare and Institutions Code

Section 5170.5]

RELEASE UPON REQUEST

A person who requests to be released from the facility

before 72 hours have elapsed may be released only if the

psychiatrist directly responsible for the person’s treatment

believes, as a result of his or her personal observations,

that the person is not a danger to self or others. If any

other professional who is authorized to release the person

believes the person should be released before 72 hours

have elapsed, and the psychiatrist directly responsible

for the person’s treatment objects, the matter should

be referred to the medical director of the facility for the

final decision. However, if the medical director is not a

psychiatrist, he or she must appoint a designee who is

a psychiatrist to make these decisions. If the matter is

referred, the person may be released before 72 hours have

elapsed only if the psychiatrist who makes the final decision

believes, as a result of his or her personal observations,

that the person is not a danger to self or others. A

psychologist may not order an early release without

potential liability [Ford v. Norton, 89 Cal. App. 4th 974

(2001)]. (If the person is determined to be gravely disabled

as a result of a mental disorder, it may be appropriate to

detain him or her under the provisions for treatment of

mental health disorders.) [Welfare and Institutions Code

Section 5170.7]

NOTE: The law that permits a psychologist, under certain

circumstances, to release a patient before the end of his

or her hold does not apply to patients who are detained

because they are a danger to self or others or gravely

disabled as a result of inebriation.

SERVICES PROVIDED

Each person admitted to a facility for 72-hour treatment

and evaluation must receive an evaluation as soon after

admission as possible and must receive the treatment and

care his or her condition requires for the full period that he

or she is held [Welfare and Institutions Code Section 5172].

PERIOD OF DETENTION

If the facility for 72-hour treatment and evaluation of

inebriates admits the person, it may detain him or her

for evaluation and detoxification treatment, and such

other treatment as may be indicated, for a period not to

exceed 72 hours. Saturdays, Sundays, and holidays must

be included for the purpose of calculating the 72-hour

period. However, a person may voluntarily remain in the

facility for more than 72 hours if the professional in charge

of the facility determines that the person needs and may

benefit from further treatment. However, a person who is

involuntarily detained in the facility has priority for available

treatment and care over a person who has voluntarily

remained in a facility for more than 72 hours. [Welfare and

Institutions Code Section 5171]

TERMINATION OF DETENTION

If, in the judgment of the professional in charge of the

facility that provides the evaluation and treatment, the

person may be properly served without being detained,

then evaluation, detoxification or other treatment, crisis

intervention, or other inpatient or outpatient services must

be provided on a voluntary basis [Welfare and Institutions

Code Section 5171].

If detained, the person may be released before 72 hours

have elapsed only if the psychiatrist directly responsible

for the person’s treatment believes, as a result of his must

her personal observations, that the person no longer

requires evaluation or treatment. If any other professional

who is authorized to release the person believes the

person should be released before 72 hours have elapsed,

and the psychiatrist directly responsible for the person’s

treatment objects, the matter should be referred to

the medical director of the facility for the final decision.

However, if the medical director is not a psychiatrist, he

or she must appoint a designee who is a psychiatrist to

make these decisions. If the matter is referred, the person

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may be released before 72 hours have elapsed only if the

psychiatrist who makes the final decision believes, as a

result of his or her personal observations, that the person

no longer requires evaluation or treatment. A psychologist

may not order an early release without potential liability

[Ford v. Norton, 89 Cal. App. 4th 974 (2001)].

NOTE: The law that permits a psychologist, under certain

circumstances, to release a patient before the end of his

or her hold does not apply to patients who are detained

because they are a danger to self or others or gravely

disabled as a result of inebriation.

The patient who has been detained for evaluation and

treatment must be released at the end of the 72-hour

detention period unless any of the following applies:

1. The patient is referred for further treatment on a

voluntary basis.

2. The patient is certified for intensive treatment on

the basis that, as a result of impairment by chronic

alcoholism, he or she is a danger to self or others

or gravely disabled (see A.“Detention for 14-Day

Intensive Treatment,” page3.17).

3. A conservator or temporary conservator has been

appointed for the patient under Welfare and Institutions

Code Section 5350 et seq. (see F.“Additional

Treatment for Gravely Disabled Person (LPS

Conservatorship),” page3.31).

[Welfare and Institutions Code Section 5172]

IMMUNITY FROM LIABILITY

Provided they have complied with the provisions of Welfare

and Institutions Code Sections 5170-5176, which are

discussed above, the following persons are not civilly or

criminally liable for any action by a patient released at or

before the end of the 72 hours:

1. The professional in charge of the designated facility, or

a designee;

2. The medical director of the facility, or a designee,

described in Welfare and Institutions Code Sections

5170.7 and 5172;

3. The psychiatrist directly responsible for the person’s

treatment; and

4. The peace officer responsible for the detention of the

person.

[Welfare and Institutions Code Section 5173]

NOTE: The law that permits a psychologist, under certain

circumstances, to release a patient before the end of his

or her hold does not apply to patients who are detained

because they are a danger to self or others or gravely

disabled as a result of inebriation. Thus, there is no

immunity for a psychologist who releases such a patient.

C. Patient Impaired by Use of Controlled

Substances

If a person is a danger to self or others or gravely disabled

as a result of the use of controlled substances (the

narcotics or restricted dangerous drugs referred to in

Health and Safety Code Section 11000 et seq.), he or

she is subject to the following provisions that apply to the

involuntary detention of a person who is a danger to self or

others or gravely disabled as a result of other causes:

1. An initial 72-hour hold for evaluation and treatment

under Welfare and Institutions Code Section 5150 et

seq. (see A.“Patients With a Mental Health Disorder,”

page3.9).

2. An additional 14-day intensive treatment period under

Welfare and Institutions Code Section 5250 et seq.

(see A.“Detention for 14-Day Intensive Treatment,”

page3.17).

3. Procedures for review of continued confinement, as

provided in Welfare and Institutions Code Section

5275 et seq. (see B.“Review of Commitment for 14

Additional Days of Intensive Treatment,” page3.20).

4. Provisions for court-ordered evaluation of persons with

mental health disorders under Welfare and Institutions

Code Section 5200 et seq. (see VII.“Court-Ordered

Evaluation of Persons Who May Have a Mental Health

Disorder,” page3.33).

5. Protections of legal and civil rights of persons who

are involuntarily detained, as described in Welfare and

Institutions Code Section 5325 et seq. (see II.“Patient

Rights Under State Law,” page4.1).

Any custody, evaluation, treatment, or any other procedure

initiated under these provisions must be related to the

person’s use of controlled substances.

[Welfare and Institutions Code Section 5343]

D. Other Admission Forms

At the time of admission, the signature of the patient

or the patient’s legal representative on the “Conditions

of Admission” (CHA Form 8-1) and other admission

documents should also be obtained. If the patient lacks

capacity to agree or refuses to agree to admission

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documents, the facility should attempt to obtain the

patient’s signature once he or she has regained capacity or

is willing to sign.

E. Special Requirements for a Minor

As with adults, the state has the power to detain a minor

involuntarily if it appears that the minor, as a result of a

mental health disorder, is a danger to self or others or

gravely disabled.

The Children’s Civil Commitment and Mental Health

Treatment Act of 1988 (CCCMHTA), Welfare and Institutions

Code Sections 5585-5585.9, applies to the initial 72 hours

of mental health treatment and evaluation provided to a

minor who, as a result of a mental disorder, is a danger to

self or others or gravely disabled. To the extent that the

CCCMHTA conflicts with any other provisions of law that

relate to 72-hour holds, the CCCMHTA prevails. Evaluation

and treatment of a minor beyond the initial 72-hour period

must comply with the provisions of LPS.

The CCCMHTA applies to minors under 18 years of

age [Family Code Section 6500]. It does not apply to

emancipated minors who are regarded as adults for the

purpose of consenting to medical, dental or psychiatric

care without parental consent, knowledge or liability [Family

Code Section 7050(c)(1); Welfare and Institutions Code

Section 5585.59].

While minors 12 years of age or older are authorized to

consent to outpatient mental health care under Family

Code Section 6924 and Health and Safety Code Section

124260, they are not authorized to consent to inpatient

mental health treatment. (See G.“Minors in Need of

Outpatient Mental Health Treatment or Residential Shelter

Services,” page2.39, for further information about minor

consent to outpatient mental health treatment.)

GRAVELY DISABLED MINOR

“Gravely disabled minor” means a minor who, as a result

of a mental disorder, is unable to use the elements of

life that are essential to health, safety, and development,

including food, clothing, or shelter, even though provided

to the minor by others. Intellectual disability or other

developmental disabilities, epilepsy, alcoholism, other

drug abuse, or repeated antisocial behavior do not, by

themselves, constitute a mental disorder. [Welfare and

Institutions Code Section 5585.25]

REQUIREMENTS FOR COMMITMENT

A minor may be committed involuntarily for 72 hours where:

1. There is probable cause to believe that the minor, as a

result of a mental health disorder, is a danger to self or

others or gravely disabled.

2. Authorization for voluntary treatment by a parent,

guardian or other legal representative is not available.

3. The minor is taken into custody, upon probable cause,

by a peace officer, member of the attending staff

of a designated facility or other professional person

designated by the county. This person must make a

written application to the facility for detention of the

minor stating the circumstances under which the

minor’s condition was called to the attention of the

peace officer or other person, and stating that the

requirements in paragraphs 1 and 2, above, are met.

[Welfare and Institutions Code Section 5585.50]

4. The facility must make every effort to notify the minor’s

parent or legal guardian as soon as possible.

5. Placement is at a facility designated by the county and

approved by DHCS as a facility for 72-hour evaluation

and treatment.

Each county is required to assure that minors under

the age of 16 years are not held with adults receiving

psychiatric treatment under the provisions of LPS,

unless the health facility has specific separate housing

arrangements, treatment staff, and treatment programs

designed to serve children or adolescents. The

director of DSS may provide waivers to counties if this

policy creates undue hardship due to inadequate or

unavailable alternative resources.

However, no minor may be admitted for psychiatric

treatment into the same treatment ward as an adult

who is in the custody of a jailor for a violent crime, is a

known registered sex offender, or has a known history

of, or exhibits inappropriate, sexual, or other violent

behavior which would present a threat to the physical

safety of minors.

6. A detained minor must receive a clinical evaluation

conducted by professionals qualified in the diagnosis

and treatment of minors. The evaluation must consist

of multidisciplinary professional analyses of the minor’s

medical, psychological, developmental, educational,

social, financial, and legal conditions as may appear

to constitute a problem. This evaluation must include

a psychosocial evaluation of the family or living

environment, or both. Every effort must be made to

involve the minor’s parent or legal guardian in the

clinical evaluation.

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7. If, in the opinion of the professional who conducts the

evaluation, the minor will require additional treatment,

a treatment plan must be prepared that identifies the

least restrictive placement alternative in which the

minor can receive the necessary treatment. The family,

guardian or caretaker and the minor must be consulted

and informed of the basic recommendation for further

treatment and placement. Every effort must be made

to obtain the consent of the minor’s parent or guardian

prior to treatment and placement, but inability to obtain

this consent does not preclude involuntary treatment,

provided this treatment complies with the provisions

of LPS.

8. The minor must be given an aftercare plan upon

discharge. (See IV.“Aftercare Plan,” page4.6.)

V. CONTINUED TREATMENT OF AN

INVOLUNTARY PATIENT

A. Detention for 14-Day Intensive Treatment

CONDITIONS FOR CERTIFICATION

If a person is detained as mentally disordered or as

impaired by inebriation or use of narcotics or restricted

dangerous drugs for 72 hours under the conditions

discussed under IV.“Involuntary Detention of the Patient

on a 72-Hour Hold,” page3.9, or by reason of a

court-ordered evaluation [Welfare and Institutions Code

Section 5200 et seq. and Section 5225 et seq.], the person

may be certified for not more than 14 days of involuntary

intensive treatment under the following conditions:

1. The professional staff of the agency or facility that

provides evaluation services has analyzed the

person’s condition and found the person is, as a

result of a mental health disorder or impairment by

chronic alcoholism, a danger to self or others or

gravely disabled.

2. The person has been advised of, but has not accepted,

voluntary treatment.

3. The facility is equipped and staffed to provide intensive

treatment, is designated by the county to provide

intensive treatment, and agrees to admit the person.

[Welfare and Institutions Code Section 5250]

The facility must obtain the patient’s medication history, if

possible [Welfare and Institutions Code Section 5332].

SIGNATURES ON CERTIFICATION NOTICE

For a person to be certified as described above, the

certification notice must be signed by two people.

The first person must be the professional, or a designee,

in charge of the agency or facility that provides

evaluation services. A designee of the professional must

be a physician or a licensed psychologist who has a

doctoral degree in psychology and at least five years of

postgraduate experience in the diagnosis and treatment of

emotional and mental disorders.

The second person must be a physician or psychologist

who participated in the evaluation. If possible, the

physician should be a board-certified psychiatrist. The

psychologist must be licensed and have at least five years

of postgraduate experience in the diagnosis and treatment

of emotional and mental disorders.

If the professional in charge, or the designee, is the

physician who performed the medical evaluation or a

psychologist, the second person to sign may be another

physician or psychologist unless one is not available, in

which case a social worker, marriage and family therapist,

professional clinical counselor, or registered nurse who

participated in the evaluation must sign the notice. [Welfare

and Institutions Code Section 5251]

REQUIRED FORM OF CERTIFICATION NOTICE

The “Notice of Certification for Intensive Treatment”

(CHA Form 12-6) complies with the requirements of Welfare

and Institutions Code Section 5252. It is recommended

that this form be used for these notification purposes.

DELIVERY OF COPIES OF THE CERTIFICATION NOTICE

A copy of the certification notice must be personally

delivered to the patient. A copy must also be sent to the

patient’s attorney or the attorney or advocate designated to

represent the patient in the certification review hearing.

The patient must be asked to designate another person

to receive a copy of the certification notice. If the patient

is incapable of making such a designation at the time

of certification, he or she must be asked to designate a

person as soon as he or she is capable.

A copy of the certification notice must be submitted to the

superior court with a copy of the decision that results from

the certification review hearing. [Welfare and Institutions

Code Section 5253]

A hospital that certifies patients should consult legal

counsel regarding the advisability of filing documents with

the court under seal and/or obtaining a protective order

(see HIPAA provision at 45 C.F.R. Section 164.512(e)).

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ADVISEMENT OF RIGHTS TO PATIENT

The person who delivers the copy of the certification notice

to the patient must, at the time of delivery, inform him or

her of the right to have either a certification review hearing

within four days or review by a court pursuant to a writ

of habeas corpus to determine whether probable cause

exists to detain him or her for intensive treatment related to

the mental disorder or impairment by chronic alcoholism.

The patient must be informed of his or her rights with

respect to the certification review hearing, including the

right to the assistance of another person to prepare for the

hearing and/or to answer other questions and concerns

about the involuntary commitment. Also, the patient must

receive an explanation about what judicial review by

habeas corpus entails and be informed of his or her right

to counsel at these hearings, including counsel appointed

by the court under Welfare and Institutions Code Section

5276. [Welfare and Institutions Code Sections 5254 and

5254.1] The processes for certification review hearings and

judicial review by writ of habeas corpus are described in

“Certification Review Hearings,” page3.20, and “Judicial

Review Pursuant to a Writ of Habeas Corpus,” page3.22.

Documentation of Notice to Patient

It is recommended that the person who delivers a copy of

the certification notice and advises the patient of his or her

rights complete the “Advisement of Rights — Involuntary

Patient” form (CHA Form 12-7). This form provides

documentation that the requirements of delivery of copies

of the certification notice as specified in Welfare and

Institutions Code Section 5253 (see “Delivery of Copies of

the Certification Notice,” page3.17), and advisement of

the right to review as specified in Welfare and Institutions

Code Sections 5254 and 5254.1 (see “Advisement of

Rights to Patient,” page3.18) have been met. The form

should be placed in the patient’s medical record.

MAXIMUM PERIOD OF DETENTION

After an involuntary commitment is initiated, the total period

of detention, including intervening periods of voluntary

treatment, must not exceed the total maximum period

during which the person could have been detained if the

person had been detained continuously on an involuntary

basis from the time of the initial involuntary commitment.

Thus, if a patient is admitted as a voluntary patient and

subsequently detained on an involuntary basis, the

maximum period of time is counted from the first date

of involuntary commitment rather than from the date

the patient was admitted to the hospital. [Welfare and

Institutions Code Section 5258]

After the maximum period of involuntary treatment has

passed, the patient may receive further treatment if he

or she:

1. Agrees to remain voluntarily after the time limit has

passed;

2. Is suicidal or is certified for additional intensive

treatment (see “Conditions for Confinement,”

page3.23);

3. Is a danger to others or is certified for 180 days

post-certification treatment (see E.“Additional

Confinement for a Person Dangerous to Others

(Post-Certification Procedures),” page3.28); or

4. Is gravely disabled and a conservatorship is initiated

(see F.“Additional Treatment for Gravely Disabled

Person (LPS Conservatorship),” page3.31).

After consulting with legal counsel, the facility should adopt

a policy regarding procedures to be followed when the total

period of detention exceeds the maximum time periods

allowed for treatment of a patient who is a danger to self or

others or is gravely disabled.

TERMINATION OF CERTIFICATION

Certification may last for no more than 14 days, and may

terminate earlier only if the psychiatrist directly responsible

for the patient’s treatment believes, as a result of his or

her personal observations, that the patient no longer is,

as a result of a mental disorder or impairment by chronic

alcoholism, a danger to self or others or gravely disabled

[Welfare and Institutions Code Section 5257].

However, in those situations in which both a psychiatrist

and psychologist have personally evaluated or examined

a person who is undergoing intensive treatment and there

is a collaborative treatment relationship between the

psychiatrist and psychologist, either the psychiatrist or

psychologist may authorize the release of the person, but

only after they have consulted with one another. In the

event of a clinical or professional disagreement regarding

the early release, the person may not be released unless

the facility’s medical director overrules the decision of the

psychiatrist or psychologist opposing the release. Both

the psychiatrist and psychologist must enter their findings,

concerns or objections into the patient’s medical record.

If any other professional who is authorized to release the

person believes the person should be released during the

14-day additional treatment period, and the psychiatrist

directly responsible for the person’s treatment objects,

the matter is to be referred to the medical director of the

facility for the final decision. If the medical director is not

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a psychiatrist, he or she must appoint a designee who

is a psychiatrist to make these decisions. If the matter is

referred, the person must be released during the 14-day

additional treatment period only if the psychiatrist who

makes the final decision believes, as a result of his or

her personal observations, that the person certified no

longer is, as a result of mental disorder or impairment by

chronic alcoholism, a danger to self or others or gravely

disabled. A psychologist may not order an early release

without potential liability [Ford v. Norton, 89 Cal. App. 4th

974 (2001)] except in the narrow instance outlined in the

previous paragraph. The person may remain at the facility

on a voluntary basis, and the facility may provide the

person with appropriate referral information concerning

mental health services.

A person who has been certified for 14 days of intensive

treatment and to whom Welfare and Institutions Code

Section 5226.1 (which involves court-ordered evaluation

for persons impaired by chronic alcoholism or drug abuse)

does not apply, or with respect to whom the criminal

charge has been dismissed under Welfare and Institutions

Code Section 5226.1, must be released at the end of the

14 days unless any of the following applies:

1. The patient agrees to receive further treatment on a

voluntary basis.

2. A temporary conservator has been appointed for the

patient [Welfare and Institutions Code Section 5350 et

seq.].

3. The patient is suicidal and is certified for additional

intensive treatment [Welfare and Institutions Code

Section 5260 et seq.]. (See C.“Additional Intensive

Treatment for Suicidal Patient,” page3.23.)

4. The patient is dangerous to others and

post-certification procedures are initiated [Welfare and

Institutions Code Section 5300 et seq.].

5. The patient is certified for an additional 30 days of

intensive treatment for grave disability [Welfare and

Institutions Code Section 5270.10 et seq.].

DAMAGES FOR EXCESSIVE DETENTION

An individual who is knowingly and willfully responsible for

detaining a person for more than 14 days in violation of the

law is liable to that person in civil damages. [Welfare and

Institutions Code Section 5259.1]

FACILITY PREFERENCE

Whenever a county designates two or more facilities to

provide intensive treatment and the patient or patient’s

family, conservator, or guardian expresses a preference for

one of the facilities, the professional person who certifies

the patient must attempt, if administratively possible, to

comply with the preference [Welfare and Institutions Code

Section 5259.2].

TEMPORARY RELEASE

The professional in charge of an intensive treatment facility,

or a designee, may permit a person certified for intensive

treatment to leave the facility for short periods during the

person’s involuntary intensive treatment. The permission

should be in writing and documented in the patient’s record

[Welfare and Institutions Code Section 5259]. The “Leave of

Absence from Psychiatric Service” form (CHA Form 12-8) is

suggested for use by the hospital.

IMMUNITY FROM LIABILITY

Provided they have complied with the provisions of Welfare

and Institutions Code Sections 5250-5259.3, which are

discussed above, the following persons are not civilly or

criminally liable for any action by a person released at or

before the end of the 14 days:

1. The professional in charge of the facility that provides

intensive treatment, or a designee;

2. The professional person designated by the county;

3. The medical director of the facility, or a designee

described in Welfare and Institutions Code

Section 5257;

4. The psychiatrist directly responsible for the person’s

treatment; and

5. The psychologist.

[Welfare and Institutions Code Section 5259.3]

NOTIFICATION OF RELEASE TO COUNTY BEHAVIORAL

HEALTH DIRECTOR AND PEACE OFFICER

The professional person in charge of a facility that provides

14-day intensive treatment pursuant to Welfare and

Institutions Code Section 5250 or 5270.15, or a designee,

must notify the county behavioral health director, or a

designee, and the peace officer who made the original

application for a 72-hour hold, or a person designated by

the law enforcement agency that employs the peace officer,

when a patient admitted for involuntary treatment has been

released unconditionally if:

1. The peace officer requested notification at the time the

application for the 72-hour evaluation was made; and

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2. The peace officer certified in writing that the person

was referred to the facility under circumstances that

would support the filing of criminal charges.

The only information that may be released is the person’s

name, address, date of admission for the 72-hour

evaluation period, date of certification for intensive

treatment, and the date of release. [Welfare and Institutions

Code Section 5250.1; 45 C.F.R. Section 164.512(a) and (f)].

The hospital should examine the paperwork completed by

the law enforcement officer to determine if notification upon

release is required.

B. Review of Commitment for 14 Additional Days

of Intensive Treatment

Each patient who is certified for 14 days of involuntary

treatment because he or she is a danger to self or others

or gravely disabled has the right to a “certification review

hearing,” unless he or she has requested judicial review

by a writ of habeas corpus. A patient who requests a

writ of habeas corpus review does not have the right to a

certification review hearing unless he or she withdraws the

request for judicial review before it occurs. In such cases,

the patient is entitled to a certification review hearing within

four days of the withdrawal of the request for writ of habeas

corpus review.

The certification review hearing and writ of habeas corpus

review procedures are designed to assure that the

commitment of all patients beyond 72 hours is reviewed

to determine whether probable cause exists to continue

the involuntary confinement. These procedures provide the

mandatory hearings which the federal Ninth Circuit Court of

Appeals, in Doe v. Gallinot, 657 F.2d 1017 (9th Cir. 1981),

held were necessary to meet constitutional requirements.

A patient should not be certified for involuntary treatment

and subsequently released before a writ of habeas corpus

hearing or certification review hearing has been held

except in those rare situations when the patient’s condition

changes before the hearing is held.

As described in “Advisement of Rights to Patient,”

page3.18, at the time a patient is certified for 14 days of

intensive treatment, the patient must be informed that he or

she is entitled to:

1. A certification review hearing to determine whether

or not probable cause exists to detain him or her for

intensive treatment related to a mental disorder or

chronic alcoholism; or

2. Judicial review of the involuntary commitment pursuant

to a writ of habeas corpus.

The procedures for these reviews are discussed below.

CERTIFICATION REVIEW HEARINGS

County Plans

Although the law outlines the general procedures that must

be used for certification review hearings, each county

is required to describe, in its Short-Doyle county plan,

the specific procedures it will use for certification review

hearings. Each county’s plan must address the issues of

how the patient’s representatives and hearing officers will

be selected and trained, how these persons will be notified,

and who will be responsible for the costs associated with

the hearings. The plan also must identify the individuals

who will represent treatment facilities at certification

review hearings, and the schedule for these hearings at

each facility (see Welfare and Institutions Code Sections

5255-5256.8).

If the county has not adopted procedures for certification

review hearings, treatment facilities will not be able to fully

comply with the law. However, interim procedures should

be instituted to assure that patients who are involuntarily

detained for 14 days of intensive treatment are given their

right of review. In this regard, the best interim procedure

is to request judicial review by a writ of habeas corpus.

However, if the patient refuses to request this review and

the courts in the county in which the facility is located

will not conduct such review in the absence of a patient

request, the facility may be required either to release

the patient after the 72-hour intensive evaluation and

treatment period or to continue the involuntary detention

without complying with the review procedures. In such

cases, the facility should consult its legal counsel regarding

appropriate procedures.

Certification Review Hearing Procedures

The procedure for the certification review hearings is

as follows.

Meeting Between the Patient and His or Her

Representative. As soon after the certification as

practicable, an attorney or patient advocate who will

advise and represent the patient is required to meet with

the certified patient and discuss the commitment process,

assist the patient in preparing for the certification review

hearing, answer the patient’s questions, and otherwise

assist the patient as appropriate. Each county must

designate persons who will act as patient representatives

and adopt procedures for informing these persons when

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a certification is initiated. In this regard, although the law

does not explicitly designate responsibility for paying for the

services of such a representative, it is the opinion of CHA’s

legal counsel (pending judicial or other clarification of this

ambiguity) that the county, rather than the patient or the

facility, is responsible for these costs.

Timing. The certification review hearing must be held within

four days of the date on which the person is certified for

a period of intensive treatment unless the patient, or his

or her attorney or advocate, requests postponement of

the hearing. Hearings may be postponed for 48 hours. A

hearing in a county with a population of 100,000 or less

may be postponed by the facility or the patient until the

next regularly scheduled hearing date.

If a patient is involuntarily detained for 72 hours but not

placed on a 14-day hold until some later date, the facility

may not be able to comply with the time limit. In these

cases the hearing should be held as soon as possible

and, to the extent feasible, on or before the eighth day of

involuntary treatment.

Location. The certification review hearing must be held in

a location that is compatible with and the least disruptive

of the treatment program. If the hearing is conducted

by a “certification review hearing officer” rather than a

court-appointed commissioner or referee (see below), the

hearing should be held at an appropriate place at the

facility where the certified patient is receiving treatment.

Certification Review Hearing Officer. The certification

review hearing must be conducted by a court-appointed

commissioner or referee or a “certification review hearing

officer.” Each county is responsible for determining who

will conduct the hearings and, if certification review

hearing officers will be used, the county’s board of

supervisors must appoint a panel (composed of the local

behavioral health director, the county public defender,

and the county counsel or district attorney) which will

approve (by unanimous vote) a list of persons who may

act as certification review hearing officers. Persons

eligible to serve as certification review hearing officers

include state-qualified administrative law hearing officers,

physicians, lawyers, and certified law students. In addition,

licensed psychologists, registered nurses, licensed

marriage and family therapists or licensed clinical social

workers who have had a minimum of five years’ experience

in mental health may act as certification review hearing

officers. However, no employee of the county mental health

program or of a facility designated to provide involuntary

treatment may serve as a certification review hearing officer.

Although the law does not specify the party responsible for

paying for the services of the certification review hearing

officer, it is the opinion of CHA’s legal counsel (pending

judicial or other clarification of this ambiguity) that the

county, rather than the patient or the facility, is responsible

for these costs.

Presentation of Evidence. At the hearing, a person who is

designated by the director of the facility in which the patient

is being treated must present evidence in support of the

certification decision. The hearing is informal in nature and

the judicial rules of procedure and evidence do not apply. It

is, however, important for the person presenting evidence

in support of the certification (who should be the patient’s

physician or a mental health professional who is familiar

with the patient’s condition) to be prepared to present facts

and information in support of the determination that the

patient is a danger to self or others or gravely disabled.

The district attorney or county counsel also may present

evidence at the certification review hearing.

Patient’s Rights at the Certification Review Hearing.

The certified patient has the following rights at the

certification review hearing:

1. To be present unless the patient, with his or her

representative’s assistance, has specifically waived

this right;

2. To be assisted by an attorney or advocate;

3. To present evidence on his or her behalf;

4. To question persons presenting evidence in support of

the certification decision;

5. To make reasonable requests for the attendance

of facility employees who have knowledge of, or

participated in, the certification decision; and

6. To have the persons conducting the hearing informed

whether the patient received medication within the

past 24 hours (or a longer period as the hearing officer

may determine), and, if so, the probable effects of

the medication.

Decision. The hearing officer is required to decide whether

a patient should be involuntarily detained. At the conclusion

of the hearing, the patient must be orally notified of the

decision. In addition, the hearing officer must provide a

written decision that identifies the evidence relied upon

and the reasons for the decision, to the patient’s attorney

or advocate and to the facility director. The patient’s

representative is responsible for notifying the patient of the

decision and of his or her right to a judicial review of the

commitment by a writ of habeas corpus proceeding.

A copy of the decision and of the 14-day certification form

must also be submitted to the superior court for the county

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in which the facility is located. The hospital should assure

that the hearing officer does so.

Post-Decision Options. If the hearing officer decides that

there is not probable cause to believe that the patient is

a danger to self or others or gravely disabled, the patient

may not be detained for involuntary treatment and the

facility must release him or her. However, in such cases,

the patient may choose to remain for treatment on a

voluntary basis. Also, the facility is allowed to give the

patient appropriate referral information concerning mental

health services.

If the hearing officer concludes that as a result of a mental

disorder or impairment by chronic alcoholism the patient is

a danger to self or others or gravely disabled, the patient

may be held for the 14-day certification period subject

to his or her right to judicial review by writ of habeas

corpus. If, however, during the 14-day period, the person

who certified the patient determines that the patient is no

longer a danger to self or others or gravely disabled, the

involuntary commitment must end and the person must be

released (unless the patient accepts continuing treatment

on a voluntary basis).

At the end of the 14-day involuntary treatment period,

a patient who remains dangerous to self or others or

gravely disabled may be detained for additional involuntary

treatment in accordance with the procedures applicable to

the certification for:

1. 14 additional days of involuntary treatment for suicidal

patients (see C.“Additional Intensive Treatment for

Suicidal Patient,” page3.23);

2. 30 days for gravely disabled patients (see

D.“Additional Intensive Treatment for Gravely Disabled

Person,” page3.25);

3. 180 days for patients who are dangerous to others (see

E.“Additional Confinement for a Person Dangerous to

Others (Post-Certification Procedures),” page3.28); or

4. A temporary or permanent conservatorship for gravely

disabled patients (see F.“Additional Treatment for

Gravely Disabled Person (LPS Conservatorship),”

page3.31).

JUDICIAL REVIEW PURSUANT TO A WRIT OF HABEAS

CORPUS

Patient Request for Court Hearing or Release Triggers

Judicial Review Process

Every person detained by certification for intensive

treatment has the right to a hearing pursuant to a writ of

habeas corpus for his or her release after he or she, or any

person acting on his or her behalf, has made a request for

release to:

1. The person who delivers the copy of the certification

notice at the time of delivery;

2. A member of the treatment staff of the facility that

provides intensive treatment, at any time during the

14 days of intensive treatment; or

3. The attorney or advocate who represented him or

her at a certification review hearing at which it was

concluded that probable cause existed to detain the

patient for 14 days of involuntary treatment.

A person who delivers a copy of the certification notice

or a member of the treatment staff to whom a request for

release is made must promptly provide the patient or other

person making the request with a copy of a form described

in Welfare and Institutions Code Section 5275 for his or

her signature or mark. The “Request for Release from

Involuntary Treatment” form (CHA Form 12-9) has been

developed to comply with this requirement.

The person who delivers the copy of the certification notice

or the member of the treatment staff, as the case may be,

must:

1. Fill in his or her own name and the date,

2. If the patient signs by mark, fill in the patient’s

name and

3. Deliver the completed copy to the professional in

charge of the intensive treatment facility, or a designee.

As soon as possible, the professional in charge of the

facility or designee must inform the superior court for

the county in which the facility is located of the request

for release.

A person who intentionally violates this requirement is guilty

of a misdemeanor.

Effect of Judicial Review

Judicial review is provided by the superior court for the

county in which the facility that provides the intensive

treatment is located or in the county in which the 72-hour

evaluation was conducted if the patient, or a person acting

on the patient’s behalf, informs the professional staff of

the evaluation facility in writing that judicial review will

be sought.

No patient may be transferred from the county that

provides evaluation services to a different county for

intensive treatment if the staff of the evaluation facility has

been informed in writing that a judicial review will be sought,

until the completion of the judicial review.

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The patient must be informed of the right to counsel by

the member of the treatment staff and by the court. If the

patient so elects, the court must immediately appoint the

public defender or another attorney to assist the patient to

prepare a petition for a writ of habeas corpus and, if he or

she so elects, to represent the patient in the proceedings.

The patient is required to pay the costs of legal advice

if able.

The court must either release the patient or order an

evidentiary hearing to be held within two judicial days

after the petition is filed. The patient must be released

immediately if the court finds that:

1. The patient is not, as a result of a mental disorder or

impairment by chronic alcoholism, a danger to self or

others or gravely disabled;

2. The patient had not been advised of, or had accepted,

voluntary treatment; or

3. The facility that provides intensive treatment is

not designated by the county to provide intensive

treatment.

[Welfare and Institutions Code Section 5276]

PATIENT’S RIGHT TO DENY RELEASE OF

INFORMATION

The patient must be advised by the treating facility that

he or she has the right to request that no person be told

the time and place of the certification hearing or of the

subsequent judicial review. [Welfare and Institutions Code

Sections 5256.4(c) and 5276]

C. Additional Intensive Treatment for Suicidal

Patient

CONDITIONS FOR CONFINEMENT

At the expiration of the initial 14-day period of intensive

treatment a person who, as a result of a mental disorder or

impairment by chronic alcoholism, threatened or attempted

to take his or her life during the 14-day period or the

72-hour evaluation period, or was detained for evaluation

and treatment because he or she threatened or attempted

to take his or her life and who continues to present an

imminent threat of taking his or her life, may be confined

for further intensive treatment for an additional period

not to exceed 14 days. [Welfare and Institutions Code

Section 5260]

The additional period of intensive treatment may occur only

if the following conditions have been met:

1. The professional staff of the agency or the facility that

provides intensive treatment services has analyzed the

person’s condition and found that the person presents

an imminent threat of taking his or her life.

2. The person has been advised of, but has not accepted,

voluntary treatment.

3. The facility is equipped and staffed to provide intensive

treatment, is designated by the county to provide

intensive treatment, and agrees to admit the person.

4. The person has, as a result of a mental disorder or

impairment by chronic alcoholism, threatened or

attempted to take his or her life during the 14-day

period of intensive treatment or the 72-hour evaluation

period, or was detained for evaluation and treatment

because of threats or attempts to take his or her life.

The facility must obtain the patient’s medication history, if

possible [Welfare and Institutions Code Section 5332].

COMPLETION OF A SECOND NOTICE OF

CERTIFICATION

For a person to be certified for an additional period of

intensive treatment, a second notice of certification must

be completed and signed by:

1. The professional in charge of the facility providing the

first 14 days of intensive treatment to the person; and

2. By a physician who is, whenever possible, a

board-qualified psychiatrist, or a licensed psychologist

who has a doctoral degree in psychology and at least

five years of postgraduate experience in the diagnosis

and treatment of emotional and mental disorders.

The physician or psychologist who signs must have

participated in the analysis of the patient’s condition

and determined that the conditions referred above

were met. [Welfare and Institutions Code Section 5261]

If the professional in charge is the physician who performed

the medical evaluation, or a psychologist, the second

person to sign may be another physician or psychologist

unless one is not available, in which case a social worker,

marriage and family therapist, professional clinical

counselor, or registered nurse who participated in the

evaluation may sign the notice of certification.

REQUIRED FORM OF SECOND NOTICE OF

CERTIFICATION

The “Notice of Certification to Second Involuntary

14-Day Period for Intensive Treatment — Suicidal

Patient” form (CHA Form 12-10) complies with the

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requirements of Welfare and Institutions Code Section

5262. It is recommended that this form be used for these

notification purposes.

DELIVERY OF COPIES OF SECOND NOTICE OF

CERTIFICATION

Copies of the second notice of certification of imminently

suicidal patients must be filed with the court, and must

be given to the patient, the patient’s attorney, the district

attorney, the public defender, if any, and the facility that

provides intensive treatment. Also, the patient must be

asked to designate a person to receive a copy of the

certification notice. If the patient is unable to make such

a designation at the time he or she is certified, the patient

must be asked to do so as soon as he or she becomes

capable. [Welfare and Institutions Code Section 5263]

A hospital that certifies patients should consult legal

counsel regarding the advisability of filing documents with

the court under seal and/or obtaining a protective order

(see HIPAA provision at 45 C.F.R. Section 164.512(e)).

ADVISEMENT OF RIGHTS TO PATIENT

Upon delivery of the second notice of certification to the

patient, the patient should be informed of his or her right

to a certification review or to judicial review pursuant to a

writ of habeas corpus and be given other information as

discussed under “Advisement of Rights to Patient,” page.

[Welfare and Institutions Code Sections 5254 and 5254.1]

REVIEW OF INTENSIVE TREATMENT

The procedures for review pursuant to a request for

release made by a patient detained by certification for a

second 14-day intensive treatment period are the same

as the review procedures of an initial 14-day commitment,

discussed under B.“Review of Commitment for 14

Additional Days of Intensive Treatment,” page3.20.

TERMINATION OF CERTIFICATION FOR ADDITIONAL

INTENSIVE TREATMENT FOR SUICIDAL PATIENT

A certification for additional treatment for an imminently

suicidal person must be for no more than 14 days of

intensive treatment, and must terminate only when the

psychiatrist directly responsible for the person’s treatment

believes, as a result of his or her personal observations,

that the individual has improved sufficiently to leave, or is

prepared to accept voluntary treatment in the facility that

provides intensive treatment or in another facility.

However, in those situations in which both a psychiatrist

and psychologist have personally evaluated or examined

a person who is undergoing intensive treatment and there

is a collaborative treatment relationship between the

psychiatrist and psychologist, either the psychiatrist or

psychologist may authorize the release of the person, but

only after they have consulted with one another. In the

event of a clinical or professional disagreement regarding

the early release, the person may not be released unless

the facility’s medical director overrules the decision of the

psychiatrist or psychologist opposing the release. Both

the psychiatrist and psychologist must enter their findings,

concerns or objections in to the patient’s medical record.

If any other professional who is authorized to release the

person believes the person should be released before

14 days have elapsed, and the psychiatrist directly

responsible for the person’s treatment objects, the matter

must be referred to the medical director of the facility for

the final decision. However, if the medical director is not

a psychiatrist, he or she must appoint a designee who

is a psychiatrist to make these decisions. If the matter is

referred, the person may be released before 14 days have

elapsed only if the psychiatrist believes, as a result of his or

her personal observations, that the individual has improved

sufficiently to leave, or is prepared to accept voluntary

treatment in the facility that provides intensive treatment or

in another facility. [Welfare and Institutions Code Section

5264] A psychologist may not order an early release

without potential liability [Ford v. Norton, 89 Cal. App. 4th

974 (2001)] except in the narrow instance outlined in the

previous paragraph.

A person who has been certified for 14 days of intensive

treatment and to whom Welfare and Institutions Code

Section 5226.1 (which involves court-ordered evaluation

for persons impaired by chronic alcoholism or drug abuse)

does not apply, or with respect to whom the criminal

charge has been dismissed under Welfare and Institutions

Code Section 5226.1, must be released at the end of the

14 days unless any of the following applies:

1. The patient agrees to receive further treatment on a

voluntary basis.

2. The patient is recommended for conservatorship under

Welfare and Institutions Code Section 5350 et seq.

3. The patient is dangerous to others [Welfare and

Institutions Code Section 5300 et seq.].

DAMAGES FOR EXCESSIVE DETENTION

An individual who is knowingly and willfully responsible for

detaining a person for more than 14 days in violation of the

law is liable to that person in civil damages [Welfare and

Institutions Code Section 5265].

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FACILITY PREFERENCE

Whenever a county designates two or more facilities to

provide intensive treatment and the patient or patient’s

family, conservator, or guardian expresses a preference for

one of the facilities, the professional person who certifies

the patient must attempt, if administratively possible, to

comply with the preference [Welfare and Institutions Code

Section 5266].

TEMPORARY RELEASE

The professional in charge of an intensive treatment facility,

or a designee, may permit a person certified for intensive

treatment to leave the facility for short periods during the

person’s involuntary intensive treatment. The permission

should be in writing and documented in the patient’s record.

The “Leave of Absence from Psychiatric Service” form (CHA

Form 12-8) is suggested for use by the hospital [Welfare

and Institutions Code Section 5268].

IMMUNITY FROM LIABILITY

Provided they have complied with Welfare and Institutions

Code Sections 5260-5268, which are discussed above,

the following persons are not civilly or criminally liable for

any action by a person released at or before the end of the

14 days:

1. The professional person in charge of the facility that

provides intensive treatment, or a designee;

2. The medical director of the facility, or a designee

described in Welfare and Institutions Code Section

5264;

3. The psychiatrist directly responsible for the person’s

treatment; and

4. The psychologist.

[Welfare and Institutions Code Section 5267]

D. Additional Intensive Treatment for Gravely

Disabled Person

OPTIONAL ADDITIONAL 30-DAY PERIOD OF INTENSIVE

TREATMENT

Counties have the option to adopt procedures that allow

an additional 30 days of intensive treatment upon the

completion of the 14-day period of intensive treatment

under Welfare and Institutions Code Section 5250. These

provisions [Welfare and Institutions Code Section 5270.10

et seq.] are effective only in the counties in which the

county board of supervisors, by resolution, authorizes the

procedures after assuring that implementation of these

procedures will not result in reduction of current mental

health services. At least 17 counties have adopted 30-day

extensions, including Los Angeles, Orange, Sacramento,

and San Diego. DHCS is charged with ensuring the

maintenance of current service levels through its review and

approval of county Short-Doyle plans.

The provision of an additional intensive treatment period for

gravely disabled persons is intended to reduce the number

of petitions for temporary conservatorship that are filed

on behalf of gravely disabled persons simply to obtain an

additional period of treatment and without the belief that a

conservator is actually needed and without the intention to

go to trial on the petition.

CONDITIONS FOR CONFINEMENT

At the expiration of the initial 14-day period of intensive

treatment under Welfare and Institutions Code Section

5250, a person may be certified for an additional period

of no more than 30 days of intensive treatment only if the

following conditions are met:

1. The professional staff of the agency or facility that

treats the person has found that the person remains

gravely disabled as a result of a mental health disorder

or impairment by chronic alcoholism; and

2. The person remains unwilling or unable to accept

treatment voluntarily.

The facility must make reasonable attempts to notify

family members or others designated by the patient at

least 36 hours prior to the certification review hearing.

The notification must include the time and place of the

certification hearing. However, the facility must first advise

the patient that he or she has the right to request that

this information not be provided. If the patient prohibits

the facility from notifying family or others, this should

be documented.

[Welfare and Institutions Code Section 5270.15]

As mentioned above, a precondition for the additional

30-day period of intensive treatment is the adoption of

Welfare and Institutions Code Section 5270.10 et seq. by

the county board of supervisors.

A person certified for an additional 30 days must be

provided with notice as discussed below and with a

certification review hearing (see “Certification Review

Hearings,” page3.20) unless a judicial review is requested

(see “Judicial Review Pursuant to a Writ of Habeas Corpus,”

page3.22).

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The facility must obtain the patient’s medication history, if

possible [Welfare and Institutions Code Section 5332].

The professional staff that provides intensive treatment

must analyze and evaluate the patient’s condition at

intervals not to exceed 10 days to determine whether

the patient continues to meet the certification criteria.

Termination of the certification period prior to the 30th

day must be made only when the psychiatrist directly

responsible for the person’s treatment believes, as a result

of his or her personal observations, that the individual has

improved sufficiently to leave, or is prepared to accept

voluntary treatment in the facility that provides intensive

treatment or in another facility.

However, in those situations in which both a psychiatrist

and psychologist have personally evaluated or examined

a person who is undergoing intensive treatment and there

is a collaborative treatment relationship between the

psychiatrist and psychologist, either the psychiatrist or

psychologist may authorize the release of the person, but

only after they have consulted with one another. In the

event of a clinical or professional disagreement regarding

the early release, the person may not be released unless

the facility’s medical director overrules the decision of the

psychiatrist or psychologist opposing the release. Both

the psychiatrist and psychologist must enter their findings,

concerns or objections into the patient’s medical record.

If any other professional who is authorized to release the

person believes the person should be released before

30 days have elapsed, and the psychiatrist directly

responsible for the person’s treatment objects, the matter

must be referred to the medical director of the facility for

the final decision. However, if the medical director is not

a psychiatrist, he or she must appoint a designee who

is a psychiatrist to make these decisions. If the matter is

referred, the person may be released before 30 days have

elapsed only if the psychiatrist believes, as a result of his or

her personal observations, that the individual has improved

sufficiently to leave, or is prepared to accept voluntary

treatment in the facility that provides intensive treatment or

in another facility. [Welfare and Institutions Code Section

5270.35] A psychologist may not order an early release

without potential liability [Ford v. Norton, 89 Cal. App. 4th

974 (2001)] except in the narrow instance outlined in the

previous paragraph.

NOTICE REQUIRED

For a person to be certified for an additional period of

intensive treatment, a second notice of certification must

be completed and signed by:

1. The professional in charge of the facility providing

intensive treatment to the person; and

2. A physician who is, whenever possible, a

board-qualified psychiatrist, or a licensed psychologist

who has a doctoral degree in psychology and at least

five years of postgraduate experience in the diagnosis

and treatment of emotional and mental disorders.

The physician or psychologist who signs must have

participated in the evaluation of the patient’s condition

and determined that the conditions referred to above

were met. [Welfare and Institutions Code Section

5270.20]

If the professional in charge of the facility is the physician

who performed the medical evaluation, or a psychologist,

the second person to sign may be another physician or

psychologist unless one is not available, in which case a

social worker, marriage and family therapist, professional

clinical counselor, or registered nurse who participated in

the evaluation must sign the notice of certification.

REQUIRED FORM OF SECOND NOTICE OF

CERTIFICATION

The “Notice of Certification for Intensive Treatment” form

(CHA Form 12-6) is required for all involuntary intensive

treatment under this law. The form is the same as that

for Welfare and Institutions Code Section 5252. It is

recommended that this form be used for these notification

purposes [Welfare and Institutions Code Section 5250.25].

DELIVERY OF COPIES OF SECOND NOTICE OF

CERTIFICATION

Copies of the second notice of certification of a gravely

disabled person for an additional 30-day period of intensive

treatment must be filed with the court and personally

delivered to the patient. In addition, a copy must be sent

to the patient’s attorney, the district attorney, the public

defender, if any, and the facility that provides the intensive

treatment. Also, the patient must be asked to designate a

person to receive a copy of the certification notice. If the

patient is unable to make such a designation at the time

he or she is certified, the patient must be given another

opportunity to do so as soon as he or she is able. [Welfare

and Institutions Code Section 5270.30]

A hospital that certifies patients should consult legal

counsel regarding the advisability of filing documents with

the court under seal and/or obtaining a protective order

(see HIPAA provision at 45 C.F.R. Section 164.512(e)).

JUDICIAL REVIEW OF INTENSIVE TREATMENT

The procedures for judicial review pursuant to a request

for release made by a patient detained for certification

for a 30-day intensive treatment period are the same as

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the procedures for judicial review for an initial 14-day

commitment, discussed under “Judicial Review Pursuant to

a Writ of Habeas Corpus,” page.

A certification for additional treatment for a gravely disabled

person must be for no more than 30 days of intensive

treatment, or until the psychiatrist directly responsible for

the patient’s treatment believes, as a result of his or her

personal observations, that the individual has improved

sufficiently to leave, or is prepared to accept voluntary

treatment in the facility that provides the intensive treatment

or in another facility.

However, in those situations in which both a psychiatrist

and psychologist have personally evaluated or examined

a person who is undergoing intensive treatment and there

is a collaborative treatment relationship between the

psychiatrist and psychologist, either the psychiatrist or

psychologist may authorize the release of the person, but

only after they have consulted with one another. In the

event of a clinical or professional disagreement regarding

the early release, the person may not be released unless

the facility’s medical director overrules the decision of the

psychiatrist or psychologist opposing the release. Both

the psychiatrist and psychologist must enter their findings,

concerns or objections into the patient’s medical record.

If any other professional who is authorized to release the

person believes the person should be released before

30 days have elapsed, and the psychiatrist directly

responsible for the person’s treatment objects, the matter

must be referred to the medical director of the facility for

the final decision. However, if the medical director is not

a psychiatrist, he or she must appoint a psychiatrist to

make the final decision. If the matter is referred, the person

must be released before 30 days have elapsed only if the

psychiatrist believes, as a result of his or her personal

observations, that the individual has improved sufficiently

to leave, or is prepared to accept voluntary treatment

in the facility that provides the intensive treatment or in

another facility. [Welfare and Institutions Code Section

5270.35] A psychologist may not order an early release

without potential liability [Ford v. Norton, 89 Cal. App. 4th

974 (2001)] except in the narrow instance outlined in the

previous paragraph.

A person who has been certified for 30 days of intensive

treatment must be released at the end of 30 days unless

any of the following applies:

1. The patient agrees to receive further treatment on a

voluntary basis.

2. The patient is recommended for conservatorship

pursuant to Welfare and Institutions Code Section

5350 et seq.

3. The patient is dangerous to others (see Welfare and

Institutions Code Section 5300 et seq.).

DAMAGES FOR EXCESSIVE DETENTION

An individual who is knowingly and willfully responsible

for detaining a person for more than 30 days in violation

of the provisions described under D.“Additional Intensive

Treatment for Gravely Disabled Person,” page, is liable to

that person in civil damages [Welfare and Institutions Code

Section 5270.40].

FACILITY PREFERENCE

Whenever a county designates two or more facilities to

provide intensive treatment and the patient or patient’s

family, conservator, or guardian expresses a preference for

one of the facilities, the professional person who certifies

the patient must attempt, if administratively possible, to

comply with the preference. [Welfare and Institutions Code

Section 5270.43]

IMMUNITY FROM LIABILITY

Provided they have complied with the provisions of

Welfare and Institutions Code Section 5270.35, which are

discussed above, the professional in charge of the facility

that provides intensive treatment, a designee, and the

professional directly responsible for the person’s treatment

are not civilly or criminally liable for any action by a person

released before or at the end of the 30-day intensive

treatment period [Welfare and Institutions Code Section

5270.50].

NOTE: The law permits a psychologist, under certain

circumstances, to release a patient who is undergoing

intensive treatment before the end of his or her hold.

However, the immunity statute was not amended in a

corresponding manner to provide immunity for these

psychologists. This may have been a drafting error.

TEMPORARY RELEASE

The professional in charge of an intensive treatment facility,

or a designee, may permit a person certified for 30 days

of intensive treatment to leave the facility for short periods

during the person’s intensive treatment [Welfare and

Institutions Code Section 5270.65]. The permission should

be in writing and documented in the patient’s record. The

“Leave of Absence from Psychiatric Service” form (CHA

Form 12-8) is suggested for use by the hospital.

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EVALUATION OF NEED FOR TEMPORARY

CONSERVATORSHIP

Whenever it appears that a gravely disabled person may

need to be detained beyond the initial 14-day period of

intensive treatment, the professional in charge of the facility

must have the person’s condition evaluated to determine

whether it is likely that the person will need an appointment

of a conservator. This evaluation process should be

initiated before the end of the 14-day period of intensive

treatment and prior to proceeding with an additional

30-day certification. If it appears that, with up to 30 days

of additional treatment, the person is likely to improve so

that a conservator will not be needed, the person may

be certified for the additional 30-day period of treatment.

[Welfare and Institutions Code Section 5270.55]

If no conservatorship referral is made during the 14-day

period and during the 30-day certification it appears

that the person is likely to require the appointment of a

conservator, the conservatorship referral procedure should

be made to allow sufficient time for conservatorship

investigation and other related procedures. The

conservatorship hearing must be held by the 30th day of

the certification. In addition, if a temporary conservatorship

is obtained, it is deemed to run concurrently and not

consecutively with the 30-day certification period.

The maximum involuntary detention period for a gravely

disabled person under Welfare and Institutions Code

Sections 5150, 5250 and 5270.15 is 47 days.

E. Additional Confinement for a Person

Dangerous to Others (Post-Certification

Procedures)

GROUNDS FOR ADDITIONAL CONFINEMENT

At the expiration of the 14-day period of intensive treatment

or an additional 14-day period of intensive treatment for an

imminently suicidal patient, a person may be confined for

further treatment for an additional period, not to exceed

180 days, if the patient is dangerous to others. A person is

dangerous to others only if he or she has:

1. Attempted, inflicted or made a serious threat of

substantial physical harm upon another person after

having been taken into custody, and while in custody,

for evaluation and treatment and, as a result of a

mental disorder, the patient presents a demonstrated

danger of inflicting substantial physical harm upon

others; or

2. Attempted or inflicted physical harm upon another

person, which resulted in the patient’s being taken

into custody and, as a result of a mental disorder, the

patient presents a demonstrated danger of inflicting

substantial physical harm upon others; or

3. Made a serious threat of substantial physical harm

upon another person within seven days before the

patient was taken into custody, which at least in part

resulted in the patient’s being taken into custody,

and presents, as a result of a mental disorder, a

demonstrated danger of inflicting substantial physical

harm upon others.

[Welfare and Institutions Code Section 5300]

The determination that a patient presents a “demonstrated

danger” of substantial physical harm to another may be

based on an assessment of the patient’s present mental

condition, including consideration of past behavior of

the patient within six years prior to the time the patient

attempted, inflicted, or threatened physical harm to another,

and other relevant evidence.

Facilities that commit patients under these provisions

have affirmative obligations to provide treatment for the

underlying causes of the patient’s mental disorders. It is not

necessary, however, to find that the patient is amenable

to treatment, that the treatment will be successful or

potentially successful, or that the patient recognizes

his or her problem and will willingly participate in the

treatment program. Instead, it is only necessary to reach

the determinations described above and make a treatment

program available.

For purposes of this law, the term “custody” means

involuntary detention under LPS uninterrupted by a period

of unconditional release (i.e., a release in which the patient

was not required to return) from a facility that provides

involuntary care and treatment.

PETITION BY PROFESSIONAL PERSON

Responsibility

At any time during the initial 14-day intensive treatment

period, the professional in charge of the facility, or a

designee, may ask the public officer required by Welfare

and Institutions Code Section 5114 (i.e., the county’s

district attorney or county counsel) to petition the superior

court in the county in which the facility providing the

treatment is located to present evidence in support of an

order requiring the patient to undergo an additional period

of treatment on the grounds described in paragraphs 1-3

above. The petition must summarize the facts that support

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the contention that the patient is dangerous and be

supported by affidavits that describe the behavior in detail.

Copies of the petition for post-certification treatment and

the supporting affidavits must be served on the patient

on the same day they are filed with the clerk of the

superior court.

A hospital that files a petition with the court should consult

legal counsel regarding the advisability of filing documents

with the court under seal and/or obtaining a protective

order (see HIPAA provision at 45 C.F.R. Section 164.512(e)).

Recommended Form of Petition

Welfare and Institutions Code Section 5301 establishes

the form of the petition. The “Petition for Post-certification

Treatment of Imminently Dangerous Person” form (CHA

Form 12-11) complies with this law and it is recommended

that it be used for these purposes. The petition should be

properly captioned for filing with the superior court.

COURT PROCEEDINGS

A court-conducted hearing or a jury trial, if the patient so

requests, must be held to determine whether one or more

of the grounds for additional confinement is present.

Patient’s Right to Counsel and to a Jury Trial

At the time a petition for post-certification treatment is filed,

the court is required to advise the patient of his or her right

to be represented by an attorney and of his or her right to

a jury trial. The court must assist in finding an attorney, or,

if need be, appoint an attorney if the patient is unable to

obtain counsel. If the patient is financially unable to provide

his or her own attorney, the court must appoint the public

defender or another attorney to represent the patient. The

attorney must advise the patient of his or her rights in

relation to the proceeding and represent him or her before

the court. (See Welfare and Institutions Code Sections

5302 and 5303.)

Time Requirements for Proceedings

The hearing on the petition for post-certification treatment

must be held within four judicial days of the filing of

the petition.

At the time of the hearing, if the patient requests a jury

trial, the trial must commence within 10 judicial days of the

filing of the petition unless the patient’s attorney requests

a delay (continuance), which may be for a maximum of 10

additional judicial days.

The patient must be released if no decision has been made

within 30 days after the petition is filed. Otherwise, until

a final decision on the merits is made by the trial court,

the patient must continue to be treated in the intensive

treatment facility until released by order of the superior

court that has jurisdiction over the action, or unless the

petition for post-certification treatment is withdrawn

[Welfare and Institutions Code Section 5303].

Required Presence of Professional at the Hearing or

Jury Trial

The judge may appoint a psychiatrist or psychologist with

forensic skills to examine the patient and testify at the

hearing or jury trial about the patient’s mental condition

and the threat of substantial physical harm that the patient

presents. Neither the professional, nor designee, who

petitioned for the additional period of treatment, nor the

physicians who provide intensive treatment are required

to be present at the hearing or jury trial unless the patient

subpoenas them.

If a psychiatrist or psychologist with forensic skills is not

appointed, the patient, upon advice of counsel, may

waive the presence at the hearing or at the jury trial of

the professional, or designee, who petitioned for the

additional period of treatment and the physician who

provides intensive treatment. In the event of a waiver,

the professional, designee, or other physicians are not

required to be present at the hearing if it is stipulated that

the certification, supporting affidavit(s), and records of the

physicians concerning the mental condition of the person

named in the petition will be received in evidence. [Welfare

and Institutions Code Section 5303.1]

Findings Required for 180-Day Additional Confinement

If the court or the jury finds that a patient is dangerous

to others pursuant to one of the three criteria listed in

“Grounds for Additional Confinement,” page3.28, the

court will remand the patient to the custody of DSH or to a

facility designated by the county of residence for a further

period of intensive treatment not to exceed 180 days from

the date of judgment. The county from which the patient is

remanded must bear any transportation costs incurred in

placing the patient in the appropriate facility. [Welfare and

Institutions Code Section 5304]

TERMINATION OF ADDITIONAL INTENSIVE TREATMENT

AND PLACEMENT ON OUTPATIENT STATUS

The patient must be released from involuntary treatment

at the expiration of 180 days unless the district attorney

or county counsel files a new petition for post-certification

treatment, and the patient has attempted, inflicted or made

a serious threat of substantial physical harm upon another

during the post-certification treatment, and he or she, by

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©CALIFORNIA HOSPITAL ASSOCIATION

reason of mental health disorder, presents a demonstrated

danger of inflicting substantial physical harm on others.

The new petition for post-certification treatment must

be filed in the superior court where the original petition

for post-certification treatment was filed. [Welfare and

Institutions Code Section 5304]

A patient may be placed on outpatient status prior to the

expiration of the 180-day period if:

1. The superintendent or professional in charge of the

licensed facility determines that the patient will no

longer be a danger to the health and safety of others

while on outpatient status and will benefit from

outpatient status;

2. The county behavioral health director agrees with

this determination, identifies an appropriate program,

assumes responsibility for supervising the patient on

outpatient status, and submits reports periodically to

the court; and

3. The district attorney or county counsel, the patient’s

attorney, the court, and the county behavioral health

director are given notice of the proposed transfer of

the patient to outpatient status and do not request a

hearing within five days or, if a hearing was requested,

the court approves the transfer after the hearing.

[Welfare and Institutions Code Section 5305]

A patient whose transfer to outpatient status is approved

may remain on outpatient status for the remaining portion

of the 180-day period unless the county behavioral health

director believes the patient again requires inpatient

treatment. A court hearing is required to determine whether

the patient’s outpatient status should be revoked, but the

county behavioral health director may immediately confine

the patient in a hospital pending the court’s decision if the

director believes that delay in hospitalization would pose a

demonstrated danger of harm to the person or to another

(see Welfare and Institutions Code Sections 5306.5, 5307

and 5308 regarding requirements relating to patients on

outpatient status).

Alternatively, the patient may be released from all

treatment prior to the expiration of the 180-day period

if the psychiatrist directly responsible for the person’s

treatment believes, as a result of his or her personal

observations, that the person being involuntary treated no

longer constitutes a demonstrated danger of substantial

physical harm to others. If any other professional who is

authorized to release the person believes the person should

be released prior to the expiration of the commitment

period, and the psychiatrist directly responsible for the

person’s treatment objects, the matter must be referred

to the medical director of the facility for the final decision.

However, if the medical director is not a psychiatrist, he

or she must appoint a designee who is a psychiatrist

to make the final decision. If the matter is referred, the

person must be released prior to the expiration of the

commitment period only if the psychiatrist believes, as

a result of his or her personal observations, that the

individual being involuntarily treated no longer constitutes

a demonstrated danger of substantial physical harm to

others. A psychologist may not order an early release

without potential liability [Ford v. Norton, 89 Cal. App. 4th

974 (2001)].

NOTE: The law that permits a psychologist, under certain

circumstances, to release a patient before the end of

the hold does not apply to patients who are detained for

additional intensive treatment.

The patient may be released five days after notice is given

to the district attorney or county counsel, the patient’s

attorney, the court and the county behavioral health director,

unless one of these parties requests a hearing. If a hearing

is requested, the patient may not be released unless the

court approves the release after the hearing. [Welfare and

Institutions Code Section 5309]

IMMUNITY FROM LIABILITY

Provided they have complied with the provisions of Welfare

and Institutions Code Sections 5300-5309, which are

discussed above, the following persons are not civilly or

criminally liable for any action by a person released at or

before the end of a 90-day period:

1. The superintendent;

2. The professional in charge of the hospital that provides

the involuntary treatment, or a designee;

3. The medical director of the facility, or a designee,

described in Welfare and Institutions Code Section

5309(a); and

4. The psychiatrist directly responsible for the person’s

treatment.

[Welfare and Institutions Code Section 5306]

NOTE: The law that permits a psychologist, under certain

circumstances, to release a patient before the end of his

or her hold does not apply to patients who are detained for

additional intensive treatment. Thus, there is no immunity

for a psychologist who releases such a patient.

Chapter 3 — Voluntary Admission and Involuntary Detainment for Mental Health Treatment CHA

3.31

©CALIFORNIA HOSPITAL ASSOCIATION

F. Additional Treatment for Gravely Disabled

Person (LPS Conservatorship)

This portion of the manual is designed to present only

a basic overview of the process for establishing a

conservatorship under LPS. The facility should consult with

the officials responsible for conservatorship investigations

and with legal counsel before adopting policies for or

initiating conservatorship. [Welfare and Institutions Code

Section 5350 et seq.]

A discussion of the differences between an LPS

conservatorship and a Probate Code conservatorship

is found under “Caution: Type of Conservatorship,”

page3.3.

CONSERVATORSHIP RECOMMENDATION

When the professional in charge of an agency that

provides comprehensive evaluation or a facility that

provides intensive treatment determines that a patient is

gravely disabled as a result of a mental health disorder

or impairment by chronic alcoholism and the person is

unwilling to accept or incapable of accepting treatment

voluntarily, the professional may recommend that a

conservatorship be established. This recommendation

must be made to the officer that provides conservatorship

investigation for the county the person resided in prior to

admission to the facility. The responsible officer may have

developed an application form which should be completed

by the facility. The facility should request these forms from

the patient’s county of residence.

Inpatient

If the professional in charge of a facility that provides

intensive treatment recommends a conservatorship

under Welfare and Institutions Code Section 5352 as

discussed above, the proposed conservatee may be held

in that facility for a period not to exceed three days after

the expiration of the initial 14-day certification period if

this additional time period is necessary to allow for the

filing of the petition for temporary conservatorship and

the establishment of the temporary conservatorship by

the court.

Other Person

The professional in charge of an agency that provides

comprehensive evaluation or a facility that provides

intensive treatment may recommend conservatorship for a

person without the patient being an inpatient in the facility if

the professional, or a designee, has:

1. Examined and evaluated the person and determined

that he or she is gravely disabled, and

2. Determined that future examination on an inpatient

basis is not necessary to make the determination that

the person is gravely disabled.

[Welfare and Institutions Code Section 5352]

INVESTIGATOR ACTION

If the officer who provides the conservatorship investigation

concurs with the recommendation, he or she will file a

conservatorship petition with the superior court in the

patient’s county of residence. A temporary conservatorship

may be requested by the officer and, if granted, the

investigating officer or another person designated by

the county will be appointed to serve as the temporary

conservator. A temporary conservatorship automatically

expires after 30 days unless the court extends the time.

A temporary conservator may require the patient to be

detained in a facility that provides intensive treatment

pending the determination of whether or not a year-long

conservatorship will be established. The patient has the

right to judicial review during this period, as described

in “Judicial Review Pursuant to a Writ of Habeas Corpus,”

page3.22.

COURT HEARING

A court hearing will be held and county counsel

may be appointed to represent the patient if the

county has authorized such appointments. At the

conclusion of the hearing, the judge may rule that no

conservatorship is appropriate, or the judge may order a

year-long conservatorship.

CONSERVATORSHIP ESTABLISHED

If a year-long conservatorship is established, the court

will specify the conservator’s rights and may authorize

the conservator to require the conservatee to receive

treatment related specifically to remedying or preventing

the recurrence of the conservatee’s grave disability, or

to require the conservatee to receive routine medical

treatment unrelated to the conservatee’s grave disability.

[Welfare and Institutions Code Section 5357] (See

C.“Adults Under Conservatorship,” page2.15, for more

information about an LPS conservator’s authority to

consent to, or refuse, nonpsychiatric medical treatment.)

The facility should obtain a copy of the certified

conservatorship papers to determine whether the

conservator has the right to hospitalize the conservatee.

The copy should be placed in the patient’s medical record.

CHA Mental Health Law Manual 2019

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©CALIFORNIA HOSPITAL ASSOCIATION

EXPIRATION OF CONSERVATORSHIP

A conservatorship will automatically expire at the end of

one year unless it is renewed [Welfare and Institutions Code

Section 5361]. The period of service of the termporary

conservator is not included in the one-year period. The

court clerk is required to give the conservator, conservatee,

conservatee’s attorney and the facility where a conservatee

is detained 60 days notice that the year term is about to

expire. An application may be submitted to renew the

conservatorship at any time during this 60-day period.

[Welfare and Institutions Code Section 5362]

VI. DETENTION OF PATIENT IN A

NONDESIGNATED FACILITY

A. Immunity for Detaining Patient

Health and Safety Code Section 1799.111 provides that

specified general acute care hospitals, acute psychiatric

hospitals, licensed professional staff of these hospitals, and

any physician providing emergency medical services in

any department of these hospitals is not civilly or criminally

liable for detaining a patient, if all of the following conditions

exist during the detention:

1. The patient cannot be safely released from the hospital

because, in the opinion of the treating physician (or a

clinical psychologist with the medical staff privileges,

clinical privileges, or professional responsibilities

provided in Health and Safety Code Section 1316.5,

described below), the patient, as a result of a mental

health disorder, presents a danger to himself or herself,

or others, or is gravely disabled. “Gravely disabled”

is defined, for the purpose of this law, as the inability

to provide for basic personal needs for food, clothing,

or shelter.

NOTE: Health and Safety Code Section 1316.5

states that state owned and operated health

facilities that offer services within the scope of

practice of a psychologist must establish rules and

procedures for consideration of an application for

medical staff membership and clinical privileges

submitted by a clinical psychologist. Private health

facilities may appoint clinical psychologists on any

terms and conditions as the facility may establish.

However, if a particular service is offered by a

health facility that permits clinical psychologists

on its medical staff, which service both physicians

and clinical psychologists are authorized by law to

perform, such service may be performed by either,

without discrimination.

2. The hospital staff, treating physician, or appropriate

mental health professional has made, and documented,

repeated unsuccessful efforts to find appropriate

mental health treatment for the patient. Telephone

calls or other contacts required by this paragraph

must commence as soon as the treating physician has

determined when the patient will be medically stable for

transfer. In no case may the contacts required by this

paragraph begin after the patient becomes medically

stable for transfer. If the hospital starts making the

contacts after the patient is medically stable for

transfer, the hospital may lose the legal immunity

conferred by this law.

3. The patient is not detained beyond 24 hours.

4. There is probable cause for the detention.

5. If the patient is detained beyond eight hours, but

less than 24 hours, both of the following additional

conditions must be met:

a. A discharge or transfer for appropriate evaluation

or treatment has been delayed because of

the need for continuous and ongoing care,

observation, or treatment that the hospital

is providing.

b. In the opinion of the treating physician, or a clinical

psychologist with the medical staff privileges or

professional responsibilities provided for in Section

1316.5, the patient, as a result of a mental health

disorder, is still a danger to himself or herself or

others, or is gravely disabled (as defined above).

It appears that minors may be detained under this law,

although the law does not expressly mention minor patients.

CHA has developed a form, “Detention of Patient with

Psychiatric Emergency in a Nondesignated Health Facility

(Health and Safety Code Section 1799.111)” (CHA Form

12-12), that hospitals may use to document compliance

with this law.

B. Immunity for Actions of Patient After Release

The facilities and professionals listed above are not civilly

or criminally liable for the actions of a patient detained up

to 24 hours after release if the following conditions exist

during the detention:

1. The patient has not been admitted to a hospital for

evaluation and treatment under Welfare and Institutions

Code Section 5150.

2. The release from the hospital is authorized by a

physician or a clinical psychologist with the medical

Chapter 3 — Voluntary Admission and Involuntary Detainment for Mental Health Treatment CHA

3.33

©CALIFORNIA HOSPITAL ASSOCIATION

staff privileges or professional responsibilities provided

for in Health and Safety Code Section 1316.5, who

determines, based on a face-to-face examination

of the patient, that the patient does not present a

danger to self or others and is not gravely disabled.

The clinical psychologist may authorize the release

only after consulting with the physician. If there is a

disagreement, the patient must be detained unless the

hospital’s medical director overrules the decision of

the physician opposing the release. The physician and

psychologist must both enter their findings, concerns

or objections in the patient’s medical record.

C. Hospitals Covered by This Law

The hospital does not need to be designated by the county

to hold patients pursuant to this law. In fact, hospitals

that are designated by the county under LPS do not enjoy

these immunities.

D. Relationship to Other Laws

This law does not affect the responsibility of a hospital to

comply with all state laws and regulations pertaining to the

use of seclusion and restraint and psychiatric medications

for psychiatric patients. In addition, patients detained

under this law retain their legal rights regarding consent

for medical treatment (i.e., the hospital cannot treat the

patient without his or her consent, or the consent of the

legal representative if the patient has been determined by a

physician to lack capacity to consent to treatment).

E. Credit for Time Detained

A patient detained under Health and Safety Code

Section 1799.111 must be credited for the time detained

if he or she subsequently is placed on a 72-hour hold

under Welfare and Institutions Code Section 5150. A

transferring hospital should provide to the receiving hospital

documentation regarding the length of time the person was

detained, so that the receiving hospital can comply with

this requirement.

VII. COURT-ORDERED EVALUATION OF PERSONS

WHO MAY HAVE A MENTAL HEALTH

DISORDER

LPS specifies the procedures by which an individual may

apply to the appropriate county agency for a petition for a

court-ordered evaluation of a person alleged to be a danger

to self or others or gravely disabled as a result of mental

health disorder [Welfare and Institutions Code Section

5200].

This procedure is available when involuntary detention is

not or will not be authorized by persons permitted to initiate

involuntary detention under Welfare and Institutions Code

Section 5150 (see “Conditions for Detention,” page3.9).

VIII. REPORTING PATIENT ESCAPE,

DISAPPEARANCE, RELEASE OR TRANSFER

The law requires that hospitals notify law enforcement

officers and/or other persons of specified patient escapes,

disappearances, releases, or transfers. The relevant laws

and their requirements are described in X.“Notifying Law

Enforcement Officers of Patient Presence, Release or

Disappearance,” page7.36.

IX. INVOLUNTARY OUTPATIENT TREATMENT

California law permits courts to order patients to

participate in outpatient mental health treatment [Welfare

and Institutions Code Sections 5345-5349.5]. This law is

operative only in those counties in which the county board

of supervisors, by resolution or through the county budget

process, authorizes its application and makes a finding that

no voluntary mental health program serving adults, and

no children’s mental health program, will be reduced as a

result of the implementation of this law. A county choosing

to implement this law is required to provide a wide range

of outpatient services to both voluntary and involuntary

patients of every cultural and linguistic background, age,

gender, physical disability, etc. A county implementing this

law is also required to undertake detailed data collection,

evaluation and reporting.

A petition must be filed with the court to initiate the process

of involuntary outpatient treatment for a particular patient.

A. Contents of Petition

A court must find by clear and convincing evidence that the

following facts stated in a verified petition are true:

1. The patient is 18 years of age or older.

2. The patient is suffering from a mental illness as defined

in Welfare and Institutions Code Section 5600.3(b)(2)

and (3). This law defines a mental disorder as one that

is severe in degree and persistent in duration, which

may cause behavioral functioning which interferes

substantially with the primary activities of daily living,

and which may result in an inability to maintain stable

adjustment and independent functioning without

treatment for a long or indefinite period of time. These

disorders include, but are not limited to, schizophrenia,

CHA Mental Health Law Manual 2019

3.34

©CALIFORNIA HOSPITAL ASSOCIATION

bipolar disorder, post-traumatic stress disorder, as well

as major affective disorders or other severely disabling

mental disorders. Patients must meet additional criteria

related to functional impairments.

3. There has been a clinical determination that the

patient is unlikely to survive safely in the community

without supervision.

4. The patient has a history of lack of compliance with

mental health treatment, in that at least one of the

following is true:

a. The patient’s mental illness has, at least twice

within the last 36 months, been a substantial

factor in necessitating hospitalization, or receipt of

services in a forensic or other mental health unit

of a state correctional facility or local correctional

facility, not including any period during which

the patient was hospitalized or incarcerated

immediately preceding the filing of the petition.

b. The patient’s mental illness has resulted in one

or more acts of serious and violent behavior

toward himself or herself or another, or threats, or

attempts to cause serious physical harm to himself

or herself or another within the last 48 months,

not including any period in which the patient was

hospitalized or incarcerated immediately preceding

the filing of the petition.

5. The patient has been offered an opportunity to

participate in a treatment plan provided by the local

mental health department and the patient continues to

fail to engage in treatment.

6. The patient’s condition is substantially deteriorating.

7. Participation in the assisted outpatient treatment

program would be the least restrictive placement

necessary to ensure the patient’s recovery and stability.

8. In view of the patient’s treatment history and current

behavior, the patient needs assisted outpatient

treatment to prevent a relapse or deterioration that

would likely result in grave disability or serious harm to

himself or herself, or to others.

B. Who May Initiate a Petition

A petition may be filed by the county behavioral health

director or designee in the superior court in the county in

which the patient is present.

Any of the following persons may request the county

behavioral health director to file a petition:

1. Any adult cohabitant of the patient;

2. Any adult parent, spouse, sibling or child of the patient;

3. The director of any public or private agency, treatment

facility, charitable organization, or licensed residential

care facility providing mental health services to the

patient in whose institution the patient resides;

4. The director of a hospital in which the patient is

hospitalized;

5. A licensed mental health treatment provider who is

either supervising the treatment of, or treating the

mental illness of, the patient; or

6. A peace officer, parole officer, probation officer

assigned to supervise the patient.

Upon request of one of these persons, the county

behavioral health director must conduct an investigation

into the appropriateness of filing a petition. A hospital or

other health care provider should consult its legal counsel

about a patient’s confidentiality rights prior to disclosing

medical information to the county behavioral health

director for purposes of petitioning a court for involuntary

outpatient treatment.

C. Procedure

The petition must contain specified information (see

A.“Contents of Petition,” page3.33), and must be

accompanied by an affidavit of a licensed mental health

treatment provider designated by the local mental health

director. The court will hold a hearing. The patient has

the right to be represented by counsel, to be present at

the hearing, to present evidence, to call witness, and to

cross-examine witness. The patient has the right to judicial

review by habeas corpus and to appeal decisions. If the

court determines that the patient meets the criteria for

assisted outpatient treatment, it may be ordered for an

initial period not to exceed six months. (Procedures exist for

lengthening this time period.) The court order will state the

categories of assisted outpatient treatment that the patient

is to receive. Involuntary medication is not allowed without

a separate order by the court pursuant to Welfare and

Institutions Code Sections 5332-5336, inclusive.

Every 60 days, the director of the outpatient treatment

program must file an affidavit with the court that the patient

continues to meet the criteria for assisted outpatient

treatment. The patient has the right to a hearing if he or

she disagrees.

Failure to comply with an order of assisted outpatient

treatment alone may not be grounds for involuntary civil

commitment or a finding that the patient is in contempt

of court.

Chapter 4 — Contents

4 Rights of Mental Health Patients

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION ....................................... 4.1

II. PATIENT RIGHTS UNDER STATE LAW ........ 4.1

A. Notifying Patients of Their Rights ................4.1

Posters and Booklets ........................................4.1

Documentation

.................................................4.2

B. Patient Rights Under Welfare and

Institutions Code Section 5325

....................4.2

Patients Covered by the Law ............................4.2

List of Rights

....................................................4.2

Waiver of Rights

................................................4.3

C. Patient Rights Under Welfare and

Institutions Code Section 5325.1

.................4.3

D. Rights Noted in Other Laws .........................4.3

Right to Discharge ............................................4.3

Required Statement of California Law

................4.3

E. Complaint Procedures ..................................4.3

Complaint to Advocates ....................................4.3

Complaint to CDPH

..........................................4.4

Complaint to Hospital

.......................................4.4

F. Denial of Patient Rights ................................4.4

Denial for Good Cause ......................................4.4

Exceptions

........................................................4.4

Documentation of Denial of Rights

....................4.5

Disclosure of Denial of Rights

............................4.5

Restoration of Rights

........................................4.6

III. SEXUAL ORIENTATION CHANGE

THERAPY FOR MINORS

............................ 4.6

IV. AFTERCARE PLAN ................................... 4.6

A. Facilities Subject to This Law .......................4.6

B. Contents of the Aftercare Plan ..................... 4.7

C. Persons Who Must Be Given an

Aftercare Plan

................................................4.7

V. MENTAL HEALTH ADVOCACY

PROGRAMS

............................................. 4.7

A. Statewide Protection and Advocacy

Organization ...................................................4.7

Investigations ....................................................4.8

Noninvestigative Purposes

................................4.8

Delay or Denial of Access

..................................4.8

Copying Costs

..................................................4.8

Access to Records of Specified Persons

........... 4.9

Types of Records Available to DRC

...................4.9

Limitations on DRC Access

.............................4.10

Timelines for Compliance

................................ 4.10

Prohibitions on Redisclosure of Information

by DRC

..........................................................4.11

B. County Patients’ Rights Advocates ...........4.11

Duties of County Patients’ Rights Advocates ...4.11

Authority of County Patients’ Rights

Advocate

........................................................ 4.11

Agreement for Advocacy Services for Client

....4.11

Investigation Based Upon Probable Cause

...... 4.12

Access to Persons and Facilities

.....................4.12

Limitations on Access to Patients

....................4.12

Access to Records and Information

.................4.13

C. Retaliation and Discrimination

Prohibited

.....................................................4.15

D. Penalties .......................................................4.15

E. Immunity From Liability ..............................4.15

VI. PSYCHIATRIC ADVANCE DIRECTIVES ..... 4.15

VII. SEXUAL ACTIVITY BETWEEN PATIENT

AND PROVIDER

..................................... 4.16

A. Sexual Activity Between Involuntarily

Confined Patient and Hospital

Employee is a Crime

...................................4.16

B. Unprofessional Conduct .............................4.16

C. Patient Alleges Prior Psychotherapist

Sexual Activity

.............................................4.16

FORMS & APPENDICES

13-3

Aftercare Plan

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

“S” denotes that the form is provided in English and Spanish.

4 Rights of Mental Health Patients

4.1

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION

Both state and federal law contain multiple provisions

regarding patients’ rights. Requirements regarding patient

rights in general — that is, rights that apply to all patients,

not just mental health patients — are described in chapter 1

of CHA’s Consent Manual. Patients’ rights that are specific

to restraint and seclusion are described in chapter 5 of

this manual.

This chapter discusses the rights afforded under state and

federal law to persons who are involuntarily or voluntarily

admitted to a facility for mental health services, including

evaluation and treatment of a mental disorder, inebriation,

or drug use. These rights are codified primarily in the

Lanterman-Petris-Short (LPS) Act [Welfare and Institutions

Code Section 5000 et seq.]. Other relevant principles that

apply to these patients are found in Welfare and Institutions

Code Section 6000 et seq. and in state and federal judicial

decisions interpreting these statutes.

II. PATIENT RIGHTS UNDER STATE LAW

The Lanterman-Petris-Short Act contains two provisions

that discuss the rights of mental health patients:

1. Welfare and Institutions Code Section 5325. A list of

these rights must be prominently posted in the facility

in English, Spanish, and the predominant language of

the community, and explained to patients in a language

or modality accesible to the patient. These rights may

be denied for good cause (with some exceptions).

Details about these rights and denial of rights are

described in this chapter.

2. Welfare and Institutions Code Section 5325.1. This

statute states that persons with mental illness have

the same legal rights and responsibilities guaranteed

to all other persons by the constitutions and laws

of the United States and California. The statute also

states that persons who have been treated for mental

illness may not be subject to discrimination under any

program or activity that receives public funds. Finally,

this statute states the “intent of the legislature” that

persons with mental illness have certain rights. This list

of patient rights differs from the list found in Welfare

and Institutions Code Section 5325. These rights are

not subject to denial. It is not clear why the legislature

enacted a second list of patient rights. Details about

these rights are described in this chapter.

NOTE: As a legal matter, the “intent of the legislature”

is sometimes considered by a judge who is trying to

interpret an ambiguous provision of law. If a law is clear

and unambiguous, the judge will not consider legislative

intent. It is only when a statute can be interpreted in more

than one way that the judge will consider legislative intent

to resolve the ambiguity. It is not clear why the legislature

enacted a list of patient rights as “legislative intent.”

A. Notifying Patients of Their Rights

POSTERS AND BOOKLETS

A facility that treats patients listed in “Patients Covered by

the Law,”page4.2, must post a list of patient rights in

English, Spanish, and the predominant languages of the

community, in all wards and common living areas.

In addition, the facility must notify each patient personally

of his or her rights, both orally and in writing, in a

language the patient can understand. The patient’s

rights must be brought to the patient’s attention by other

means if he or she is unable to read or understand the

information provided.

The California Department of Health Care Services (DHCS)

has developed posters and booklets that facilities may

use to notify patients of their rights. The booklet, “Rights

for Individuals in Mental Health Facilities,” and posters are

available in many languages at www.dhcs.ca.gov/services/

pages/office-of-patients-rights.aspx.

These posters and booklets do not fulfill the

following requirements:

1. Notifying voluntary patients that they can discharge

themselves (see “Right to Discharge,”page4.3).

2. Notifying patients that nobody may be presumed

incompetent due to evaluation or treatment for a

mental disorder or chronic alcoholism (see “Required

Statement of California Law,”page4.3).

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3. Notifying patients about how to file a complaint with

the hospital (see “Complaint to Hospital,”page4.4).

Hospitals should adopt a procedure to ensure that these

requirements are met.

[Welfare and Institutions Code Section 5325; Title 9,

California Code of Regulation, Sections 862; Title 22,

California Code of Regulations, Section 71507]

DOCUMENTATION

A note that the hospital notified, or attempted to notify, the

patient of his or her rights must be entered in the patient’s

medical record within 24 hours of admission. This may

be accomplished by having the patient sign a form that

lists the patients’ rights, or another form acknowledging

receipt of the DHCS booklet. One copy of the signed form

should be given to the patient and the original placed in the

medical record.

If the patient cannot be notified of patients’ rights within

24 hours of admission, a note about the reason should be

entered in the patient’s medical record and the advisement

of rights should occur as soon as the patient is capable

of understanding [Title 9, California Code of Regulations,

Section 862].

B. Patient Rights Under Welfare and Institutions

Code Section 5325

PATIENTS COVERED BY THE LAW

Welfare and Institutions Code Section 5325 lists certain

rights enjoyed by all mental health patients, including:

1. Each person involuntarily detained for evaluation or

treatment under the LPS Act;

2. Each person admitted as a voluntary patient for

psychiatric evaluation or treatment to any facility

(as defined in Health and Safety Code Section

1250), including a general acute care hospital,

acute psychiatric hospital, skilled nursing facility, or

intermediate care facility in which psychiatric evaluation

or treatment is offered; and

3. Each person committed to a state hospital.

LIST OF RIGHTS

The patients’ rights are:

1. To wear one’s own clothes, to keep and use personal

possessions including toilet articles, and to keep and

spend a reasonable sum of one’s own money for

canteen expenses and small purchases.

2. To have access to individual storage space for

private use.

3. To see visitors each day.

4. To have reasonable access to telephones, both to

make and to receive confidential calls, or to have calls

made for them.

5. To have ready access to letter writing materials,

including stamps, and to mail and receive

unopened correspondence.

6. To refuse convulsive treatment including, but not

limited to, electroconvulsive treatment, any treatment

for a mental condition that depends on the induction

of a convulsion by any means, and insulin coma

treatment. NOTE: This right may be denied only under

the conditions specified in Welfare and Institutions

Code Section 5326.7 (see D.“Convulsive Therapy and

Insulin Coma Treatment,”page2.49).

7. To refuse psychosurgery. (NOTE: This right may not

be denied.) “Psychosurgery” is defined as those

operations referred to as lobotomy, psychiatric surgery,

behavioral surgery, and all other forms of brain surgery

if the surgery is performed for the purpose of any of

the following:

a. Modification or control of thoughts, feelings,

actions, or behavior rather than the treatment

of a known and diagnosed physical disease of

the brain.

b. Modification of normal brain function or normal

brain tissue in order to control thoughts, feelings,

actions, or behavior.

c. Treatment of abnormal brain function or abnormal

brain tissue in order to modify thoughts, feelings,

actions, or behavior when the abnormality is not

an established cause for those thoughts, feelings,

actions, or behavior.

Psychosurgery includes prefrontal sonic treatment if

there is any possibility of destruction of brain tissue

or brain cells. [Title 9, California Code of Regulations,

Section 857]

8. To see and receive the services of a patient advocate

who has no direct or indirect clinical or administrative

responsibility for the patient. (NOTE: This right may not

be denied.)

9. Other rights as specified by regulation. (There are no

additional rights specified by regulation at this time.)

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WAIVER OF RIGHTS

The rights listed above may not be waived by the patient’s

parent, guardian, or conservator. However, these rights

may be denied when “good cause” exists (except as noted

in the list above). The procedure for denying these rights

when good cause exists is discussed in F.“Denial of Patient

Rights,”page4.4.

C. Patient Rights Under Welfare and Institutions

Code Section 5325.1

Welfare and Institutions Code Section 5325.1 expressly

states that persons with mental illness have the same

legal rights and responsibilities guaranteed to all other

persons by the U.S. Constitution and the laws of the state

of California, unless specifically limited by federal or state

law. If an otherwise qualified person is involuntarily detained

for evaluation or treatment, or is admitted as a voluntary

patient to a health facility in which psychiatric evaluation or

treatment is offered, he or she may not be excluded from

participation in, denied the benefits of, or subjected to

discrimination under, any program or activity that receives

public funds.

In addition, Welfare and Institutions Code Section 5325.1

declares the legislative intent that persons with mental

illness shall have rights including, but not limited to,

the following:

1. A right to treatment services which promote the

potential of the person to function independently.

Treatment should be provided in ways that are least

restrictive of the personal liberty of the individual.

2. A right to dignity, privacy, and humane care.

3. A right to be free from harm, including unnecessary

or excessive physical restraint, isolation, medication,

abuse, or neglect. Medication may not be used

as punishment, for the convenience of staff, as a

substitute for a program, or in quantities that interfere

with the treatment program.

4. A right to prompt medical care and treatment.

5. A right to religious freedom and practice.

6. A right to participate in appropriate programs of

publicly supported education.

7. A right to social interaction and participation in

community activities.

8. A right to physical exercise and

recreational opportunities.

9. A right to be free from hazardous procedures.

D. Rights Noted in Other Laws

RIGHT TO DISCHARGE

A person who has the lawful right to discharge himself

or herself from a facility must be informed of that right at

the time of admission to the facility. This information is

not expressly included in the DHCS posters and booklets.

Hospitals should adopt a procedure to ensure that

patients are given this information. If the person decides

to discharge himself or herself from the facility rather

than voluntarily accepting a denial of patients’ rights, that

decision must be documented in the medical record and

the person must be permitted to leave the facility.

REQUIRED STATEMENT OF CALIFORNIA LAW

Welfare and Institutions Code Section 5331 states that a

person who leaves a mental health facility after evaluation

or treatment for a mental disorder or chronic alcoholism,

regardless of whether that evaluation or treatment was

voluntarily or involuntarily received, must be given the

following statement of California law:

No person may be presumed to be incompetent

because he or she has been evaluated or treated for

mental disorder or chronic alcoholism, regardless of

whether such evaluation or treatment was voluntarily

or involuntarily received.

This information is not expressly included in the DHCS

posters and booklets. Hospitals should adopt a procedure

to ensure that patients are given this statement. The law

does not specify when this information must be given to

the patient.

E. Complaint Procedures

A patient may complain to a patients’ rights advocate,

CDPH, or to the hospital. Patients must be given

information about these procedures, as described below.

This information is not expressly included in the DHCS

posters and booklets. Hospitals should adopt a procedure

to ensure that patients are given this information.

COMPLAINT TO ADVOCATES

A patient who believes a right has been abused, punitively

withheld, or unreasonably denied may file a complaint

with a patients’ rights advocate. The patients’ rights

advocates are assigned by each county behavioral health

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director to handle complaints of mental health patients

(see B.“County Patients’ Rights Advocates,”page4.11).

Residents’ rights advocates are assigned to handle

complaints from patients with developmental disabilities.

The posted complaint procedure must contain

the following:

1. Notification that a patient who believes a right of

his/hers has been abused, punitively withheld, or

unreasonably denied may file a complaint with the

patients’ rights advocate.

2. The name of the patients’ rights advocates assigned

to handle complaints, their telephone number(s), and

times they may be contacted.

[Title 9, California Code of Regulations, Section 864]

The patients’ rights advocate must take action to

investigate and resolve a complaint within two working

days of receipt. A complainant who is dissatisfied with

the patients’ rights advocate’s resolution of the complaint

may appeal. The appeals procedure is described in Title 9,

California Code of Regulations, Section 864.

The DHCS poster and booklet have a space on them for

the name and contact information of the local patients’

rights advocate. The booklet also gives the names and

contact information of two statewide organizations.

However, the statement included in paragraph 1. above is

not expressly included. Hospitals should adopt a procedure

to ensure that patients are given this information.

COMPLAINT TO CDPH

Information about how to submit complaints to CDPH must

be posted [Title 22, California Code of Regulations, Section

71507]. The DHCS posters do not contain language that

fulfills this requirement. Therefore, the hospital must post an

additional poster informing patients how to file a complaint

as well as the address and phone number of the CDPH

local district office.

COMPLAINT TO HOSPITAL

Information about how a patient may file a complaint with

the hospital must be provided to the patient [Title 22,

California Code of Regulations, Section 71507(d)]. The

DHCS posters and booklets do not contain language

that fulfills this requirement. Therefore, the hospital must

post another poster or handout informing patients of the

hospital’s complaint procedure must be used. Hospitals

that participate in the Medicare program are required

to have a specified grievance policy (see “Complaint to

Hospital,”page4.4, for details).

F. Denial of Patient Rights

DENIAL FOR GOOD CAUSE

The professional person in charge of the facility or a

designee may, for good cause, deny a person a right

specified under Welfare and Institutions Code Section 5325

(see B.“Patient Rights Under Welfare and Institutions Code

Section 5325,”page4.2).

EXCEPTIONS

The rights to refuse psychosurgery or to see and receive

the services of a patient advocate may not be denied, and

the right to refuse convulsive treatment may be denied only

under the conditions specified in Welfare and Institutions

Code Section 5326.7 (see D.“Convulsive Therapy and

Insulin Coma Treatment,”page2.49).

Definition

The term “professional person in charge of a facility”

means a person as defined in Title 9, California Code of

Regulations, Section 623 (psychiatrist), 624 (psychologist),

625 (social worker), 626 (marriage and family therapist),

or 627 (registered nurse with a master’s degree in

psychiatric or public health nursing) who is designated

by the governing board of the facility or person having

control of the facility as the professional person clinically in

charge of the facility for purposes of LPS. The designation

must be in writing. [Title 9, California Code of Regulations,

Section 822]

Good Cause

Good cause must be established to justify a denial of

rights [Title 9, California Code of Regulations, Section

862 et seq.].

Good cause for denying a patient the exercise of a right

exists when the professional person in charge of a facility or

a designee has good reason to believe:

1. That the exercise of the specific right would be injurious

to the patient; or

2. That there is evidence that the specific right, if

exercised, would seriously infringe upon the rights of

others; or

3. That the institution or facility would suffer serious

damage if the specific right is not denied; and

4. That there is no less restrictive way of protecting the

interests specified above.

[Title 9, California Code of Regulations, Section 865.2]

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The reason used to justify the denial of a patient right must

be related to the specific right denied. A right must not be

withheld or denied as a punitive measure. A right may not

be considered a privilege to be earned.

Treatment modalities must not include the denial of any

right specified in Welfare and Institutions Code Section

5325. Waivers signed by the patient or by the responsible

relative, guardian, or conservator must not be used as a

basis for denying these rights.

When a right has been denied, staff must use the least

restrictive means of managing the problem that led to

the denial.

Restraint and Seclusion

When a patient is restrained or secluded, a denial of rights

is deemed to have occurred, even though “restraint” and

“seclusion” are not mentioned in the list of patients’ rights

under Welfare and Institutions Code Section 5325. This

is because when a patient is restrained or secluded, the

situation implies the denial of other patients’ rights that are

listed, such as the right of reasonable access to telephones

and the right to have ready access to letter writing

materials.

If a patient is restrained or secluded and does not

specifically request to exercise any listed right, then only

the restraint or seclusion must be documented. If the

patient is restrained or secluded and requests to exercise a

listed right (for example, the patient asks to make a phone

call), then both the restraint (or seclusion) and the other

specifically denied right (in the example, the right to make a

phone call) must be documented. (See chapter 5 for more

information about restraint and seclusion.)

DOCUMENTATION OF DENIAL OF RIGHTS

Each denial of a patient’s rights must be noted in the

medical record [Welfare and Institutions Code Section

5326; Title 9, California Code of Regulations, Sections

865.3 and 865.4]. Documentation must take place

immediately whenever a right is denied, and each denial of

a right must be documented regardless of the gravity of the

reason for the denial or the frequency with which a specific

right is denied in a particular facility or to a particular

individual. As mentioned above, if a patient in seclusion

or restraints is denied any right, the denial must also be

documented. The documentation must include:

1. The specific right denied.

2. The date and time the right was denied.

3. The reason (good cause) for denial of the right.

4. The date of review if the denial of the right extended

beyond 30 days.

5. The signature of the professional person in charge of

the facility or a designee.

The patient must be told the contents of the documentation.

Forms

The former DMH has developed two forms for providers to

use, “Patients’ Rights Denial — Monthly Tally” and “Denial

of Rights/Seclusion and Restraint Monthly Report.”

Both forms may be found at www.dhcs.ca.gov/

formsandpubs/forms/pages/mental_health-Forms.aspx.

The “Patients’ Rights Denial — Monthly Tally” form should

be completed for each patient each month. The form has a

chart showing each day of the month. A number has been

assigned to each right (for example, “5” represents the right

to see visitors each day). If a denial of rights occurs, the

number assigned to the right that was denied is entered

into the box underneath the day of the month the denial

occurred. This form must be filed in the patient’s medical

record.

The “Denial of Rights/Seclusion and Restraint Monthly

Report” form must be completed monthly. This form

captures all patients and all denials of rights in a facility

in a particular month. The form must be submitted to

the local behavioral health director or the county or state

hospital executive director by the 10th day of the following

month. The Monthly Tally must be attached to the Denial of

Rights form.

Quarterly reports of the number of persons, by facility,

whose rights were denied and the specific right or

rights denied must be submitted to the local mental

health director, who must report to DHCS [Welfare and

Institutions Code Section 5326.1, Title 9, California Code of

Regulations, Section 866].

DISCLOSURE OF DENIAL OF RIGHTS

Information in a patient’s medical record about denial of

rights must be available, upon request, to the patient,

patient’s attorney, conservator and/or guardian, the local

mental health director or a designee, or the patients’ rights

program (see chapter 9 regarding HIPAA and the disclosure

of mental health information). The information that must

be made available includes consent forms, the required

documentation for convulsive treatment, documentation

regarding the use of restraints and seclusion, physicians’

orders, nursing notes, and involuntary detention and

conservatorship papers.

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State law calls for this information, except for the identity

of the patient whose rights are denied, to also be made

available upon request to a member of the California State

Legislature or a member of a county board of supervisors

[Welfare and Institutions Code Section 5326.1; Title 9,

California Code of Regulations, Section 867]. However,

legal counsel should be consulted prior to any release to

legislators or supervisors to be sure the facility complies

with HIPAA.

RESTORATION OF RIGHTS

A right may not be denied to a patient when good cause

for its denial no longer exists. Also, as noted above,

when a right has been denied, staff must employ the

least restrictive means of managing the problem that led

to the denial. The date a specific right is restored must

be documented in the patient’s medical record. [Title 9,

California Code of Regulations, Section 865.5]

III. SEXUAL ORIENTATION CHANGE THERAPY

FOR MINORS

California law states that “under no circumstances shall a

mental health provider engage in sexual orientation change

efforts with a patient under 18 years of age.”

“Sexual orientation change efforts,” also known as

reparative therapy or conversion therapy, means any

practices by mental health providers that seek to change

an individual’s sexual orientation. This includes efforts to

change behaviors or gender expressions, or to eliminate

or reduce sexual or romantic attractions or feelings toward

individuals of the same sex.

However, sexual orientation change efforts does not include

psychotherapies that:

1. Provide acceptance, support, and understanding

of clients or the facilitation of clients’ coping, social

support, and identity exploration and development,

including sexual orientation-neutral interventions to

prevent or address unlawful conduct or unsafe sexual

practices; and

2. Do not seek to change sexual orientation.

“Mental health provider” means:

1. A physician and surgeon specializing in the practice of

psychiatry;

2. A psychologist;

3. A psychological assistant, intern, or trainee;

4. A licensed marriage and family therapist, a registered

associate marriage and family therapist, or marriage

and family therapist trainee;

5. A licensed educational psychologist;

6. A credentialed school psychologist;

7. A licensed clinical social worker;

8. An associate clinical social worker;

9. A licensed professional clinical counselor, a registered

associate clinical counselor, or professional clinical

counselor trainee; or

10. Any other person designated as a mental health

professional under California law or regulation.

Any sexual orientation change efforts attempted on a

patient under 18 years of age by a mental health provider

are considered unprofessional conduct and subject the

provider to discipline by the licensing board.

[Business and Professions Code Sections 865-865.2]

IV. AFTERCARE PLAN

All psychiatric inpatient care providers must furnish each

mental health patient and specified other persons a

written aftercare plan upon the patient’s discharge from

the facility [Health and Safety Code Section 1262; Welfare

and Institutions Code Sections 5622 and 5768.5]. CHA

has developed the “Aftercare Plan” form (CHA Form 13-3)

which facilities may use to document compliance with

this law. Facilities are not required to use this particular

form; any form meeting the requirements described in this

section of the manual will work.

“Mental health patient,” for the purposes of this law,

means a person who is admitted to a facility primarily for

the diagnosis or treatment of a mental disorder.

A. Facilities Subject to This Law

The following facilities, both public and private, are subject

to this law:

1. State mental hospitals.

2. General acute care hospitals as defined in Health and

Safety Code Section 1250(a).

3. Acute psychiatric hospitals as defined in Health and

Safety Code Section 1250(b).

4. Psychiatric health facilities as defined in Health and

Safety Code Section 1250.2.

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5. Mental health rehabilitation centers as defined in

Welfare and Institutions Code Section 5675.

6. Skilled nursing facilities with a special treatment

program service unit for patients with chronic

psychiatric impairments (see Title 22, California Code

of Regulations, Sections 51335 and 72443-72475

about special treatment programs).

7. Facilities authorized under Welfare and Institutions

Code Section 5675 or 5768 (mental health

rehabilitation center pilot projects and other new

programs approved by the California Department of

Social Services (DSS)).

B. Contents of the Aftercare Plan

The aftercare plan must be written and must, to the extent

known, include the following components:

1. The nature of the illness and follow-up required.

2. Medications prescribed and their side effects and

dosage schedules. A signed informed consent form for

medications, when attached to the aftercare plan, may

satisfy this requirement if the consent form includes the

specified information.

3. The patient’s expected course of recovery.

4. Recommendations regarding treatment that are

relevant to the patient’s care.

5. Referral to providers of medical and mental

health services.

6. Other relevant information.

If any item above is not known at the time of discharge, this

should be noted on the aftercare plan.

The aftercare plan for a minor being released from

involuntary treatment must also include “education or

training needs, provided these are necessary for the minor’s

well-being” [Welfare and Institutions Code Section 5585.57].

CHA Form 13-3, “Aftercare Plan,” has space to document

compliance with this requirement.

C. Persons Who Must Be Given an Aftercare Plan

The law states that when a mental health patient is being

discharged from one of the facilities subject to the law, the

patient and the patient’s conservator, guardian, or other

legally authorized representative must be given a written

aftercare plan. As mentioned above, for purposes of this

law, a “mental health patient” is defined as a person

who is admitted to a facility primarily for the diagnosis or

treatment of a mental disorder. This law does not appear to

require that a mental health patient seen in the emergency

room, but never admitted, be given a written aftercare plan;

however, a hospital may wish to provide one.

The law is unclear about when a legally authorized

representative must be given an aftercare plan. In general,

a “legally authorized representative” exists only if the

patient lacks the capacity to make medical decisions for

himself or herself, in the opinion of the attending physician

or psychologist. In such a situation, the legally authorized

representative might be a guardian, conservator, or parent.

(See chapter 2 for a detailed discussion of capacity and

legally authorized representatives.)

In addition, facility personnel must advise the patient that

he or she may designate another person to receive a

copy of the aftercare plan. If the patient designates such

a person, the facility must give that person a copy of the

aftercare plan also.

V. MENTAL HEALTH ADVOCACY PROGRAMS

Advocacy programs, including the county patients’ rights

advocate program and the California Department of State

Hospitals (DSH), DHCS, and the California Department of

Social Services (DSS) advocacy program (contracted to

the statewide protection and advocacy agency), and the

Patients’ Rights Committee of the California Mental Health

Planning Council, are described in Welfare and Institutions

Code Sections 4900-4906 and 5500 et seq. (see also

42 U.S.C. Sections 10805 and 10806).

The county program pertains mainly to mental health

patients. The statewide program’s reach is much broader,

as described below.

State law specifies various circumstances under which a

health care facility must provide individually-identifiable

health information to patient advocates. This portion of the

manual describes the different types of patient advocacy

programs and when information must be disclosed to them.

A. Statewide Protection and Advocacy

Organization

The advocacy responsibilities of DHCS and DSH have been

transferred to a nongovernmental, nonprofit corporation

that acts as a statewide protection and advocacy agency.

The corporation that currently has the contract to act as

the statewide protection and advocacy agency is Disability

Rights California (DRC). [Welfare and Institutions Code

Section 5510]

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This organization is responsible for ensuring that mental

health laws, regulations, and policies regarding the rights

of recipients of mental health services are observed in

state hospitals as well as health and community care

facilities [Welfare and Institutions Code Section 5510]. In

addition, this organization is responsible for ensuring that

laws related to abuse and neglect of disabled persons are

observed in state hospitals and health and community care

facilities.

DRC may also investigate any incident of abuse or neglect

of a disabled person if the incident is reported to DRC or if

DRC, determines there is probable cause to believe abuse

or neglect occurred. The definition of a “person with a

disability” is extremely broad and encompasses persons

with physical disabilities as well as persons with mental

illness and developmentally disabled persons. [Welfare and

Institutions Code Section 4902]

DRC’s authority includes reasonable access to a facility

or program, and authority to examine relevant records.

What is considered “reasonable” differs depending upon

the purpose of DRC’s visit. [Welfare and Institutions Code

Section 4902(b)] DRC may also interview any facility or

program service recipient, employee, or other person who

might have knowledge of the alleged abuse or neglect.

INVESTIGATIONS

DRC must be given reasonable unaccompanied access

to public or private facilities, programs, and services, and

to recipients of services therein, at all times necessary to

investigate incidents of abuse and neglect. Access must

be given to DRC, upon request, when any of the following

has occurred:

1. An incident is reported or a complaint is made to DRC.

2. DRC determines there is probable cause to believe that

an incident has or may have occurred.

3. DRC determines that there is or may be imminent

danger of serious abuse or neglect of an individual with

a disability.

“Reasonable unaccompanied access” means access that

permits DRC, without undue interference, to:

1. Monitor, inspect, and observe conditions in facilities

and programs, and

2. Meet and communicate with residents and service

recipients privately and confidentially on a regular basis,

formally or informally, by telephone, mail, email, and in

person.

Reasonable unaccompanied access also includes the

review of records privately and confidentially, in a manner

that minimizes interference with the activities of the

program or service; that respects patients’ privacy interests

and honors a patient’s request to terminate an interview;

and that does not jeopardize the physical health or safety

of facility or program staff, patients, service recipients, or

DRC staff.

NONINVESTIGATIVE PURPOSES

DRC must be given reasonable unaccompanied access

to public or private facilities, programs and services, and

to recipients of services therein, during normal working

hours and visiting hours for other advocacy services (that is,

noninvestigative purposes).

Access must be provided at times mutually agreeable to

DRC and facility management for the following:

1. Providing information and training on (and referral to

programs addressing the needs of) individuals with

disabilities, and information and training on individual

rights and the protection and advocacy services

available from DRC, including, but not limited to, the

name, address, and telephone number of DRC.

2. Monitoring compliance with respect to the rights and

safety of patients or service recipients.

3. Inspecting, viewing, and photographing all areas of the

facility or program that are used by patients or service

recipients, or that are accessible to them.

DELAY OR DENIAL OF ACCESS

If DRC’s access to facilities, programs, service recipients,

patients, or records is wrongfully delayed or denied, the

facility must promptly provide DRC with a written statement

of reasons. If denial of access results from an alleged lack

of patient authorization, the facility must promptly provide

DRC with the name, address, and telephone number of

the patient’s legal guardian, conservator, or other legal

representative. Access to a facility, program, service

recipient, patient, or records may not be delayed or denied

without the prompt provision of a written statement of

the reasons for the denial. [Welfare and Institutions Code

Section 4902(c)]

COPYING COSTS

A health care provider may charge a reasonable fee to

cover the cost of copying records. This fee may take into

account the costs incurred in locating, identifying, and

making the records available. Charges for copying records

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that would be available to DRC or the patient under other

laws may not exceed any rates for obtaining copies of the

records specified in the other laws. [Welfare and Institutions

Code Section 4902(e)] (See CHA’s California Health

Information Privacy Manual regarding records that must be

made available to the patient and the photocopying rates

that may be charged.)

ACCESS TO RECORDS OF SPECIFIED PERSONS

DRC must be given access to the records of the following

people with disabilities:

1. A person with a disability alleged to be a victim of

abuse or neglect if the incident is reported to DRC or

DRC determines there is probable cause to believe the

incident occurred.

2. A person who is a client of DRC or who has requested

assistance from DRC, if that person, his or her

agent, legal guardian, conservator, or other legal

representative, has authorized DRC to have access to

the records. If a person with a disability who is able to

authorize DRC to access his or her records expressly

denies this access after being informed by DRC of his

or her right to authorize or deny access, DRC may not

have access to the records [Welfare and Institutions

Code Section 4903(a)(1)].

3. A person, including an individual who cannot be

located, to whom all of the following conditions apply:

a. The individual, due to his or her mental or physical

condition, is unable to authorize DRC to have

access to his or her records.

b. The individual does not have a legal guardian,

conservator, or other legal representative,

or the individual’s representative is a

public entity, including the state or one of

its political subdivisions.

c. DRC has received a complaint that the individual

has been subject to abuse or neglect, or has

determined that probable cause exists to believe

that the individual has been subject to abuse

or neglect.

[Welfare and Institutions Code Section 4903(a)(2)]

4. A person who is deceased, and for whom DRC has

received a complaint that the individual had been

subjected to abuse or neglect, or for whom DRC has

determined that probable cause exists to believe that

the individual had been subjected to abuse or neglect

[Welfare and Institutions Code Section 4903(a)(3)].

5. A person who has a legal guardian, conservator, or

other legal representative with respect to whom a

complaint has been received by DRC, or with respect

to whom DRC has determined that probable cause

exists to believe that the person has been subjected

to abuse or neglect, whenever all of the following

conditions exist:

a. The representative has been contacted by

DRC upon receipt of the representative’s name

and address.

b. DRC has offered assistance to the representative

to resolve the situation.

c. The representative has failed or refused to act on

behalf of the person.

[Welfare and Institutions Code Section 4903(a)(4)]

(See also Welfare and Institutions Code Section 5328.06.)

TYPES OF RECORDS AVAILABLE TO DRC

All of the following individual records must be made

available to DRC.

1. Information and records prepared or received in the

course of providing intake, assessment, evaluation,

education, training, or other supportive services,

including, but not limited to, medical records, financial

records, monitoring reports, or other reports, prepared

or received by a member of the staff of a facility,

program, or service that is providing care, treatment,

or services.

2. Reports prepared by an agency charged with

investigating reports of incidents of abuse, neglect,

injury, or death occurring at the program, facility, or

service while the individual with a disability is under the

care of a member of the staff of a program, facility, or

service, or by or for a program, facility, or service, that

describe any or all of the following:

a. Abuse, neglect, injury, or death.

b. The steps taken to investigate the incidents.

c. Reports and records, including, but not limited

to, personnel records prepared or maintained by

the facility in connection with reports of incidents,

subject to the following:

▪ If a state statute specifies procedures with

respect to personnel records, DRC must follow

those procedures.

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▪ Personnel records are protected from disclosure

in compliance with the state constitutional right

of privacy. The custodian of personnel records

has a right and a duty to resist attempts to

allow the unauthorized disclosure of personnel

records, and may not waive the privacy rights

that are guaranteed pursuant to the state

constitutional right to privacy.

▪ Supporting information that was relied upon

in creating a report including, but not limited

to, all information and records that document

interviews with persons who were interviewed,

physical and documentary evidence that was

reviewed, or related investigative findings.

d. Discharge planning records.

[Welfare and Institutions Code Section 4903(b) and (c)]

This information must be provided, whether written

or in another medium, and whether draft or final. This

information may include, but is not limited to, handwritten

notes, electronic files, photographs, videotapes, audiotapes

or records.

Information About Abuse or Neglect Investigations

A facility must make the following available to DRC when

investigating instances of abuse or neglect:

1. Information in reports prepared by individuals and

entities performing certification or licensure reviews,

or by professional accreditation organizations, as

well as related assessments prepared for a program,

facility, or service by its staff, contractors, or related

entities. However, information subject to any other

provision of state law protecting records produced by

medical care evaluation or peer review committees

need not be disclosed. (See “Limitations on DRC

Access,”page4.10.)

2. Information in professional, performance, building, or

other safety standards, or demographic and statistical

information, relating to the facility.

[Welfare and Institutions Code Section 4903(c)]

This information must be provided, whether written

or in another medium, and whether draft or final. This

information may include, but is not limited to, handwritten

notes, electronic files, photographs, videotapes, audiotapes

or records.

Documents Prepared by State Agencies

DRC must be given access to the following documents:

1. Unredacted facility evaluation or complaint

investigation report forms of the California Department

of Social Services.

2. Unredacted citation, licensing or survey reports,

plans of correction, or statements of deficiency of

the California Department of Public Health, prepared

by authorized licensing personnel or authorized

representatives of those departments who are licensed

or registered health personnel.

[Welfare and Institutions Code Sections 4903(h) and

5328.15(a)]

It should be noted that plans of correction are not

prepared by authorized licensing personnel or authorized

representatives of the state (see also Welfare and

Institutions Code Section 5328.15(c)).

Psychotherapy Notes

Psychotherapy notes may be disclosed to DRC

without a patient authorization to the extent required

by law. If information is disclosed to DRC pursuant to

an authorization from the patient or the patient’s legal

representative, a separate authorization form is required for

the disclosure of the psychotherapy notes.

LIMITATIONS ON DRC ACCESS

Under state law, DRC has no right to access records

protected from discovery as specified in Evidence Code

Sections 1157 and 1157.6, or records protected from

disclosure by the physician-patient privilege or the

psychotherapist-patient privilege [Welfare and Institutions

Code Section 4903(d)]. However, federal judicial decisions

have created some doubt about this legal issue. Legal

counsel should be consulted if such records are requested.

DRC has no right to access records that qualify as “patient

safety work product” as defined in the Patient Safety and

Quality Improvement Act of 2005.

TIMELINES FOR COMPLIANCE

DRC must be given access to medical records and other

records that are relevant to conducting an investigation

not later than three business days after DRC makes a

written request.

However, if DRC determines there is probable cause

to believe that the health or safety of the individual is in

serious and immediate jeopardy, or in a case of death of an

individual with a disability, DRC must be given immediate

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access to the records, not later than 24 hours after DRC

makes a request. No consent from another party is

required. [Welfare and Institutions Code Section 4903(e)]

PROHIBITIONS ON REDISCLOSURE OF INFORMATION

BY DRC

Confidential information kept or obtained by DRC remains

confidential and may not be subject to disclosure by DRC.

However, DRC may do the following:

1. Share the information with the individual client who is

the subject of the record, report or other document, or

with his or her legally authorized representative, subject

to any limitation on disclosure to recipients of mental

health services under federal law [42 U.S.C. Section

10806]. Federal law contains a provision authorizing

the mental health professional responsible for the

patient to provide to the advocacy agency a written

determination that disclosure of the information to the

patient would be detrimental to the patient’s health.

The advocacy agency may obtain a second opinion

and rely on it instead. [42 U.S.C. Section 10806]

2. Issue a public report of the results of an investigation

that maintains the confidentiality of individual

service recipients.

3. Report the results of an investigation to responsible

investigative or enforcement agencies if an

investigation reveals information about the facility, its

staff, or employees warranting possible sanctions or

corrective action. This information may be reported

to agencies that are responsible for facility licensing

or accreditation, employee discipline, employee

licensing or certification suspension or revocation, or

criminal prosecution.

4. Pursue alternative remedies, including the initiation of

legal action.

5. Report suspected elder or dependent adult abuse.

[Welfare and Institutions Code Section 4903(f)]

B. County Patients’ Rights Advocates

In general, the law states that each county behavioral

health director must appoint, or contract for the services of,

a county patients’ rights advocate to undertake the duties

described below.

For the purposes of the following discussion, the term

“advocate” refers to a “county patients’ rights advocate.”

The provisions regarding the county patients’ rights

advocate program apply to licensed health and community

care facilities and may apply to state hospitals.

DUTIES OF COUNTY PATIENTS’ RIGHTS ADVOCATES

The advocates’ duties include, but are not limited to,

the following:

1. To receive and investigate complaints from or about

recipients of mental health services who reside in

licensed health or community care facilities involving

abuse, unreasonable denial or punitive withholding of

the rights guaranteed by Welfare and Institutions Code

Section 5000 et seq. (including the Lanterman-Petris-

Short Act and the Short-Doyle Act).

2. To monitor mental health facilities, services, and

programs for compliance with patients’ rights laws.

3. To train and educate mental health providers about

mental health law and patients’ rights.

4. To assure that recipients of mental health services

in licensed health and community care facilities are

notified of their rights.

5. To exchange information and cooperate with the

patients’ rights program.

[Welfare and Institutions Code Section 5520]

AUTHORITY OF COUNTY PATIENTS’ RIGHTS

ADVOCATE

An advocate’s rights of access to a patient or records differ

depending upon whether the advocate is acting on behalf

of a client or pursuant to the advocate’s duties to monitor

patients’ rights compliance or to conduct an investigation

(see “Access to Persons and Facilities,”page4.12,

and “Access to Records and Information,”page4.13).

This portion of the manual describes the advocate’s

access rights.

AGREEMENT FOR ADVOCACY SERVICES FOR CLIENT

An advocate may enter into an agreement with a client

to provide advocacy services, which include “activities

undertaken on behalf of persons who are receiving or have

received mental health services to protect their rights or

to secure or upgrade treatment or other services to which

they are entitled” [Welfare and Institutions Code Section

5500(a)].

“Mental health client” or “client” is defined as:

a person who is receiving or has received services from

a mental health facility, service, or program and who has

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personally or through a guardian ad litem, entered into

an agreement with a county patients’ rights advocate for

the provision of advocacy services.

[Welfare and Institutions Code Section 5500(b)]

Agreement Requirements

Generally, the client must be competent to enter into a

binding agreement. The law states that a recipient of

mental health services is presumed competent for the

purpose of entering into an agreement with an advocate

for advocacy services unless the recipient is found by

a superior court to be incompetent to enter into an

agreement with an advocate and a guardian ad litem is

appointed for this purpose [Welfare and Institutions Code

Section 5523(a)]. This is true even if the patient has had a

guardian or conservator appointed.

The mental health client or guardian ad litem must

knowingly and voluntarily enter into the agreement with the

advocate [Welfare and Institutions Code Section 5523(c)].

The agreement must be in a language and modality that the

client understands [Welfare and Institutions Code Section

5523(c)].

The agreement may be revoked at any time by the person

who entered into the agreement (i.e., the client or the

guardian ad litem), either in writing or by an oral declaration

to the advocate [Welfare and Institutions Code Section

5523(c)].

The law does not expressly require the advocate to

inform the mental health facility or professional when an

agreement for advocacy services is either reached or

revoked. However, it is important for health providers to

know whether such an agreement has been entered into

or revoked, as it affects the advocate’s rights of access

to the patient and the patient’s records, and in effect

authorizes the advocate to interview all persons who care

for the patient.

INVESTIGATION BASED UPON PROBABLE CAUSE

An advocate may conduct an investigation if there is

probable cause to believe that the rights of a past or

present recipient of mental health services have been or

may be violated [Welfare and Institutions Code Section

5522].

Investigations that concern violations of a past recipient’s

rights are limited to cases that involve discrimination,

indicate the need for education or training, or have a direct

bearing on violations of the rights of a current recipient

[Welfare and Institutions Code Section 5523(f)]. Any such

investigation of a past patient’s rights are in addition to

routine monitoring functions of the advocate.

Welfare and Institutions Code Section 5326.1 requires that

a county-designated facility file quarterly reports with the

director of DHCS showing the number of patients whose

rights were denied and the right(s) which were denied. An

advocate may access, without patient authorization, the

treatment records of patients reported under Section

5326.1 if those records are pertinent to the investigation

concerning the denial of rights [Welfare and Institutions

Code Section 5328(a)(13)]. This provision does not permit

the advocate to see records of other patients. The records

may be inspected by the advocate even after the patient’s

discharge from the facility. [62 Ops.Cal.Atty.Gen.57, 59

(1979)]

ACCESS TO PERSONS AND FACILITIES

An advocate may distribute educational materials and hold

discussions in groups and with individual patients in order

to notify patients and others of the availability of advocacy

services and to give information about patient rights.

When the advocate seeks access in order to investigate

or resolve a specific complaint or to monitor compliance

with patients’ rights laws, the advocate must be permitted

access to all recipients of mental health services in any

mental health facility, program, or service at all times as

necessary.

For other advocacy purposes, the advocate must be

permitted access to mental health facilities, programs,

services, and recipients of services, but only during usual

working hours and visiting hours [Welfare and Institutions

Code Section 5530(a)].

Upon request, the mental health facility must provide, when

available, reasonable space for the county advocate to

interview clients in privacy [Welfare and Institutions Code

Section 5530(c)]. It is generally advisable to provide space

when an advocate requests privacy to interview patients

who are not clients, as well.

LIMITATIONS ON ACCESS TO PATIENTS

Patients Who Have Not Requested Advocacy Services

The law imposes certain requirements on an advocate

investigating a case involving a recipient of mental

health services who is not a client. In such a case, the

advocate must:

1. Notify the treating professional who is responsible for

the care of a recipient of services whom the advocate

wishes to interview;

2. Notify the facility, service, or program administrator of

the intention to conduct the interview; and

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3. Consult the treating professional whenever he or she is

reasonably available for consultation to determine the

appropriate time to conduct the interview.

[Welfare and Institutions Code Section 5523(b)]

Patient’s Right to Refuse Access

Each patient has a right to privacy which includes the right

to terminate a visit by an advocate, and the right to refuse

to see a patient advocate [Welfare and Institutions Code

Section 5530(d)].

Persons Rendering Services to the Advocate’s Client

An advocate has the right to interview all persons who

provide diagnostic or treatment services to the advocate’s

client [Welfare and Institutions Code Section 5530(b)].

ACCESS TO RECORDS AND INFORMATION

Under LPS, information must be disclosed to county

patients’ rights advocates when the patient or guardian

ad litem has knowingly and voluntarily authorized the

disclosure [Welfare and Institutions Code Section

5328(a)(13); 45 C.F.R. Section 164.512(a)(1)]. In addition,

the records must be disclosed when an advocate is

investigating the denial of a patient’s right(s). The details of

these LPS provisions are described below.

HIPAA also allows these disclosures. Under HIPAA, a

covered entity may use or disclose PHI with a valid

authorization, or to the extent that the use or disclosure

is required by law [45 C.F.R. Section 164.502(g)(2)]. A

separate authorization is required for psychotherapy notes

if access is pursuant to an authorization; psychotherapy

notes may be disclosed to the extent required by law if

access is pursuant to a valid investigation of a denial of a

patient’s right(s).

Confidential Client Information and Records

The advocate must obtain authorization from the client

to have access to, copy, or use confidential records

and information about the client. The law imposes the

following requirements:

1. The client or guardian ad litem must specifically

authorize the advocate to have access to, copy, or

otherwise use confidential records or information about

the client.

2. The authorization must be given knowingly and

voluntarily and must be in writing.

3. The client or guardian ad litem who has entered

into the advocate client agreement may revoke the

authorization at any time, either in writing or by oral

declaration to the advocate [Welfare and Institutions

Code Section 5541(a)].

4. Before confidential patient information is released to

an advocate, the mental health facility should obtain

a copy of the written authorization and place it in the

patient’s medical record.

If the client provides authorization, an advocate may

discuss information contained in the client’s records with

the client to the extent necessary for effective advocacy.

However, information provided in confidence by members

of a client’s family may be removed from the record before

it is given to the advocate. It is recommended that the

patient’s physician determine whether such information

should be removed. [Welfare and Institutions Code Section

5543(a)]

Any written client information obtained by a county patients’

rights advocate may be used and disseminated in court or

administrative proceedings, and to public agencies or their

authorized officials. However, the information may be used

or disseminated only to the extent required in the provision

of advocacy services and to the extent authorized by the

client [Welfare and Institutions Code Section 5544].

Patient Records in Investigation

An advocate may access, without patient authorization,

the treatment records of patients reported under Section

5326.1 (a patient whose rights have been denied) if those

records are pertinent to the investigation about the denial of

rights. This provision does not permit the advocate to see

records of other patients. The records may be inspected

by the advocate even after the patient’s discharge from

the facility. [Welfare and Institutions Code Section 5326.1;

62 Ops.Cal.Atty.Gen.57, 59 (1979)]

Records of Mental Health Facilities and Programs

An advocate has the right to inspect and/or copy records or

other materials not subject to confidentiality under Welfare

and Institutions Code Section 5328, HIPAA, or other

provisions of law. This right applies to records possessed

by a mental health program, service, or facility; or city,

county, or state agency that relate to an investigation on

behalf of a client or that indicate compliance or lack of

compliance with laws governing patients’ rights. These

records include, but are not limited to, reports on the use

of restraints or seclusion, and autopsy reports [Welfare and

Institutions Code Section 5542]. However, these reports

must not be patient-identifiable or they are subject to

confidentiality laws.

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2003 Memo from Protection & Advocacy, Inc.

In August, 2003, a lawyer working for Protection &

Advocacy, Inc. distributed a memo to county patients’

rights advocates about the advocates’ authority to access

patient health information. The overall point of the memo

was to reassure interested parties in 2003 that the (then)

brand-new HIPAA law did not change advocates’ authority

under state law to access patient records. This conclusion

is correct.

However, the memo did not correctly interpret the

advocates’ authority under state law to access patient

records.

The gist of the memo is on the bottom of page 6 of the

memo. It correctly states that:

1. County patients’ rights advocates may have access to

the facility at all times necessary to investigate specific

complaints.

2. County patients’ rights advocates may interview staff.

3. County patients’ rights advocates may access

records if:

a. They have client authorization;

b. The records aren’t confidential (which would not

include patient medical records) and they relate

to an investigation on behalf of a client, or they

indicate compliance/noncompliance with patients’

rights laws; or

c. The record relates to a denial of patients’ rights

that the facility reported to the local behavioral

health director.

County patients’ rights advocates are not entitled to

review any medical records they want. The California

Legislature has evidenced its intent to protect the privacy

of patient records — it has shown this by its wording of

various statutes:

Welfare and Institutions Code Section 5328(a)(13)) states

that, “[Disclosure may be made] To county patients’

rights advocates who have been given knowing voluntary

authorization by a client or a guardian ad litem. The client

or guardian ad litem, whoever entered into the agreement,

may revoke the authorization at any time, either in writing

or by oral declaration to an approved advocate.” If the

California Legislature wanted county patients’ rights

advocates to have access to all patients’ records, it could

easily have said so. It did not.

Welfare and Institutions Code Section states that,

“Individual patients shall have a right to privacy which shall

include the right to terminate any visit by [patients’ rights

advocates] and the right to refuse to see any patient

advocate.”

Welfare and Institutions Code Section 5540 states

that, “Except as otherwise provided in this chapter or in

other provisions of law, information about and records of

recipients of mental health services shall be confidential in

accordance with the provisions of Section 5328.”

Welfare and Institutions Code Section 5541 states that a

specific client authorization is required for a county patients’

rights advocate to have access to confidential records of

the client.

Welfare and Institutions Code Section 5542 states that

county patients’ rights advocates have the right to inspect

any nonconfidential information.

Welfare and Institutions Code Section 5545 states that,

“Nothing in this chapter [Chapter 6.2] shall be construed to

limit access to recipients of mental health services in any

mental health facility, program, or service or to information

or records of recipients of mental health services for the

purposes of subdivision (b) of Section 5520 or when

otherwise authorized by law to county patients’ rights

advocates or other individuals who are not county patients’

rights advocates.” This law does not expand any entities’

authority to access patient records. It merely states that it

does not limit other authority. Note that the main patient

privacy protection statute, Welfare and Institutions Code

Section 5328, is in chapter 2. That is the primary statute

limiting patients’ rights advocates’ authority to access

records of mental health patients who are not their clients

and who have not been the subject of a rights denied by

the facility.

The portion of the memo that relates to the facility

directory is a correct statement of the Confidentiality of

Medical Information Act, but that Act does not apply to

patients in an acute psychiatric hospital or the psychiatric

unit of a general acute care hospital. Instead, the

Lanterman-Petris-Short Act applies. No information may be

disclosed about these patients.

Costs Charged to the Advocate

Costs of copying or making records available must

be borne by the advocate [Welfare and Institutions

Code Section 5546]. Charges may include:

1. Actual costs of copying the records or other

material; and

2. Additional reasonable clerical costs incurred in locating

and making the records and materials available. These

costs must be based on a computation of the time

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spent locating and making the records available

multiplied by the employee’s hourly wage.

The law does not address when payment must be made. It

is recommended that payment be received before copies

are released.

C. Retaliation and Discrimination Prohibited

It is illegal to discriminate or retaliate in any manner against

a patient or employee for initiating or participating in an

advocacy proceeding. If a facility attempts to expel a

patient or engages in any discriminatory treatment of a

patient who submits a complaint to a county patients’

rights advocate (or upon whose behalf a complaint is

submitted) within 120 days of the filing of the complaint,

then a rebuttable presumption is raised that the facility

took the action in retaliation for the filing of the complaint.

[Welfare and Institutions Code Section 5550(c)]

D. Penalties

A person or facility is subject to a civil fine of between

$100 and $1,000, as determined by a court for knowingly

obstructing an advocate in the performance of his or her

duties as authorized by law including, but not limited to,

interference with access to:

1. Clients or potential clients;

2. Records of clients or potential clients, whether financial,

medical, or otherwise;

3. Other information, materials, or records; or

4. Anything which otherwise violates the statutory

provisions regarding the county patients’

rights advocates.

[Welfare and Institutions Code Section 5550(b) and (e)]

In addition, a person aggrieved by a violation of the statute

may pursue any other available legal remedies [Welfare and

Institutions Code Section 5523(e)].

E. Immunity From Liability

A person who files a complaint, provides information to an

advocate pursuant to the law or participates in a judicial

proceeding resulting therefrom is presumed to be acting

in good faith and, unless the presumption is rebutted,

is immune from civil, criminal or administrative penalty

[Welfare and Institutions Code Section 5550(a)].

VI. PSYCHIATRIC ADVANCE DIRECTIVES

A psychiatric advance directive is an instrument that mental

health patients may use to document their preferences

regarding future mental health treatment, in preparation for

the possibility of losing capacity to give or withhold consent

to treatment in the future. The mental health advocacy

community advocates the use of such documents,

particularly with respect to involuntary treatment,

psychiatric medications, restraint and seclusion.

Neither California nor federal law recognizes a special

document called a “psychiatric advance directive.” The

California advance health care directive laws and statutory

form were created with end-of-life issues in mind, not

mental health matters. However, the law does not prohibit a

person who executes an advance health care directive from

including instructions regarding mental health treatment.

Whether such wishes are required to be followed by a

health care provider if the patient loses capacity depends

upon several factors, including:

1. Whether the patient would have the legal ability to

consent or withhold consent to the recommended

treatment if he or she were competent. For example,

a patient who is detained pursuant to Welfare

and Institutions Code Section 5150 et seq. is, by

law, unable to withhold consent to be evaluated

for a mental disorder and may not leave the facility.

Therefore, if such a patient has executed an advance

directive denying consent to such care, a hospital need

not comply with this instruction.

2. Whether the wishes stated in the advance directive are

medically ineffective or contrary to generally accepted

health standards. In such a case, the facility need

not comply with the patient’s instructions. However, a

provider that declines to comply must follow certain

procedures (see Probate Code Sections 4735 and

4736).

There are no statutes, regulations, or judicial decisions

regarding “psychiatric” advance directives in California.

However, California law does contain one reference to

advance directives in the context of mental health care.

Health and Safety Code Section 1180.4(a) requires

psychiatric units of general acute care hospitals, acute

psychiatric hospitals, skilled nursing facilities, and other

specified facilities to conduct an assessment of each

patient prior to a placement decision or upon admission,

or as soon thereafter as possible. This assessment must

include, based on the information available at the time,

the patient’s advance directive regarding de-escalation or

the use of seclusion or behavioral restraints. This statute

does not authorize “psychiatric advance directives,” nor

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does it require a provider to comply with a patient’s stated

preferences. It merely requires the specified providers to

assess a patient’s advance directive, if any. (See chapter 5

regarding restraint and seclusion.)

A hospital should consult legal counsel if a situation arises

regarding a psychiatric advance directive. (See chapter 3

of CHA’s Consent Manual for a complete discussion of the

law regarding advance directives.)

VII. SEXUAL ACTIVITY BETWEEN PATIENT AND

PROVIDER

A. Sexual Activity Between Involuntarily Confined

Patient and Hospital Employee is a Crime

Penal Code Section 289.6 prohibits an employee, officer or

agent of a health facility that contracts with a public entity

(including the state or federal government) from engaging

in sexual activity with an adult who has been involuntarily

confined, even if that adult purportedly “consents” to the

sexual activity. Health facilities included in this law are:

1. An acute psychiatric hospital as defined in Health and

Safety Code Section 1250(b).

2. An intermediate care facility/developmentally disabled

habilitative as defined in Health and Safety Code

Section 1250(e).

3. An intermediate care facility/developmentally disabled

as defined in Health and Safety Code Section 1250(g).

4. An intermediate care facility/developmentally disabled

— nursing as defined in Health and Safety Code

Section 1250(h).

5. A congregate living health facility — persons who are

catastrophically and severely disabled –– as defined in

Health and Safety Code Section 1250(i)(2)(C).

6. A correctional treatment center as defined in Health

and Safety Code Section 1250(j).

“Sexual activity” means sexual intercourse, sodomy, oral

copulation, or penetration, however slight, of the genital

or anal openings of another person by a foreign object,

substance, instrument, or device, for the purpose of sexual

arousal, gratification, or abuse.

The first violation of this law constitutes a misdemeanor. A

subsequent violation constitutes a felony.

B. Unprofessional Conduct

The commission of any act of sexual relations, abuse,

or misconduct with a patient or client constitutes

unprofessional conduct and grounds for disciplinary

action for any person licensed under the healing arts

licensure provisions of the Business and Professions

Code. This includes doctors, nurses, pharmacists, dentists,

psychologists, physical therapists, dietitians, clinical

laboratory technologists, speech-language pathologists,

etc. This activity may also be a crime, punishable by a fine

or imprisonment or both.

This law does not apply to consensual sexual contact

between a licensee and his or her spouse (or other person

in an equivalent domestic relationship) when the licensee

provides medical treatment other than psychotherapeutic

treatment to the spouse or other person. [Business and

Professions Code Sections 726 and 729]

C. Patient Alleges Prior Psychotherapist Sexual

Activity

If a psychotherapist or employer of a psychotherapist

becomes aware through a client that the client has alleged

sexual intercourse, sexual behavior or sexual contact

with a previous psychotherapist during the course of a

prior treatment, the psychotherapist or employer must

give the client a brochure about the patient’s rights

and remedies [Business and Professions Code Section

728]. The California Department of Consumer Affairs has

published a booklet, “Professional Therapy Never Includes

Sex,” for psychotherapists to use to fulfill this requirement.

The booklet is available in English and Spanish at www.

mbc.ca.gov/publications. To purchase copies in quantity,

contact the Office of State Printing at (916) 445-5357.

In addition, the psychotherapist or employer must discuss

the brochure with the client.

For purposes of this law, the following definitions apply.

“Psychotherapist” means:

1. A physician specializing in the practice of psychiatry or

practicing psychotherapy,

2. A psychologist, psychological assistant, or trainee

under the supervision of a psychologist,

3. A marriage and family therapist, associate marriage

and family therapist, or marriage and family

therapist trainee,

4. A clinical social worker or associate clinical

social worker,

Chapter 4 — Rights of Mental Health Patients CHA

4.17

©CALIFORNIA HOSPITAL ASSOCIATION

5. A licensed professional clinical counselor, associate

professional clinical counselor, or clinical counselor

trainee (as specified in Business and Professions Code

Section 4999.10 et seq.).

“Sexual behavior” means inappropriate contact or

communication of a sexual nature, but does not include

providing appropriate therapeutic interventions relating to

sexual issues.

“Sexual contact” means the touching of an intimate part of

another person.

Section 728 states that “intimate part” and “touching”

have the same meanings as those terms are defined in

subdivisions (g) and (e), respectively, of Section 243.4 of

the Penal Code:

1. “Intimate part” means the sexual organ, anus, groin,

or buttocks of any person, and the breast of a female

[Penal Code Section 243.4(g)(1)].

2. Despite what Section 728 says, “touching” is not

defined in Penal Code Section 243.4. However,

“touches” is defined to mean physical contact with

another person, whether accomplished directly,

through the clothing of the person committing the

offense, or through the clothing of the victim [Penal

Code Section 243.4(e)(2)].

“The course of a prior treatment” means the period of

time during which a client first commences treatment

for services that a psychotherapist is authorized to

provide under his or her scope of practice, or that the

psychotherapist represents to the client as being within his

or her scope of practice, until the psychotherapist-client

relationship is terminated.

Chapter 5 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

5 Restraints and Seclusion

I. INTRODUCTION ....................................... 5.1

A. Scope of Chapter...........................................5.1

B. Restraint and Seclusion Laws ......................5.1

Federal Law ......................................................5.1

California Law

................................................... 5.2

Must Comply With All Laws

...............................5.2

C. Accreditation Organization Standards ........5.2

II. PATIENTS’ RIGHTS REGARDING

RESTRAINT AND SECLUSION

................... 5.2

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

....5.2

Survey Procedures ...........................................5.3

B. California Law ................................................5.3

III. GENERAL INFORMATION REGARDING

RESTRAINT AND SECLUSION ................... 5.4

A. Quick Summary of Restraint and

Seclusion Laws

..............................................5.4

B. Techniques .....................................................5.4

Survey Procedures ...........................................5.4

C. Restraints are Medical Devices

Regulated by the FDA

...................................5.4

IV. DEFINITIONS ........................................... 5.4

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

....5.5

Restraint ........................................................... 5.5

Seclusion

..........................................................5.7

Survey Procedures

...........................................5.8

B. California Law ................................................5.8

V. INTAKE ASSESSMENT/CARE PLAN ........... 5.8

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

....5.9

Survey Procedures ...........................................5.9

B. California Law ................................................5.9

Psychiatric Advance Directives ........................ 5.10

VI. LEAST RESTRICTIVE ALTERNATIVE ........ 5.10

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.10

Survey Procedures .........................................5.11

B. California Law ..............................................5.11

VII. ORDER FOR RESTRAINT OR

SECLUSION

........................................... 5.12

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.12

PRN Orders .................................................... 5.12

Who May Order Restraint or Seclusion

............ 5.12

When Order Must Be Obtained

.......................5.12

Protocol, Standing Orders, and PRN Orders

...5.13

Survey Procedures

.........................................5.13

B. California Law ..............................................5.14

VIII. FACE-TO-FACE EVALUATION ................ 5.14

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.14

Exception .......................................................5.15

Content of the Evaluation

................................ 5.15

Consultation With Attending Physician or

Other LIP

........................................................ 5.15

Survey Procedures

.........................................5.16

B. California Law ..............................................5.16

IX. NOTIFICATION OF ATTENDING

PHYSICIAN

............................................ 5.16

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.16

Survey Procedures .........................................5.16

B. California Law ..............................................5.17

X. LIMITS ON LENGTH OF TIME THAT

ORDERS FOR RESTRAINT/SECLUSION

ARE VALID

............................................ 5.17

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.17

Original Order .................................................5.17

Renewal of Order

............................................5.17

Chapter 5 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

CHA Mental Health Law Manual 2019

Renewal of Order 24 Hours After Original

Order

..............................................................5.17

Exceptions

......................................................5.17

Survey Procedures

.........................................5.18

B. California Law ..............................................5.18

XI. DISCONTINUATION OF RESTRAINT OR

SECLUSION ........................................... 5.18

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.18

Survey Procedures .........................................5.18

B. California Law ..............................................5.19

XII. PATIENT MONITORING ........................... 5.19

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.19

Survey Procedures ..........................................5.19

B. California Law ..............................................5.20

XIII. EMERGENCY SITUATIONS .................... 5.20

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.20

B. California Law ..............................................5.20

XIV. SIMULTANEOUS RESTRAINT AND

SECLUSION

.......................................... 5.20

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.20

Documentation ...............................................5.21

Patient Monitoring and Assessment

................5.21

Survey Procedures

.........................................5.21

B. California Law ..............................................5.21

Face-to-Face Observation...............................5.21

XV. PROHIBITED TECHNIQUES ..................... 5.21

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.21

B. California Law ..............................................5.21

Techniques That are Prohibited for All

Patients

.........................................................5.22

Techniques That are Prohibited for Specified

Patients

.........................................................5.22

Prone Containment Techniques

.......................5.22

Applicability

....................................................5.22

XVI. POST-RESTRAINT OR SECLUSION

REVIEW (CLINICAL/QUALITY REVIEW

AND DEBRIEFING)

............................... 5.22

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.22

B. California Law ..............................................5.23

Clinical and Quality Review..............................5.23

Debriefing

....................................................... 5.23

XVII. REPORTING REQUIREMENTS

RELATED TO RESTRAINT OR

SECLUSION

......................................... 5.24

A. CMS Death Reporting and

Documentation Requirements

...................5.24

Reporting Requirement ...................................5.24

Regional Office Phone Number/Worksheet

......5.24

Documentation Requirement

...........................5.24

CMS Response

..............................................5.25

Survey Procedures

.........................................5.25

B. FDA: Safe Medical Devices Act

Reporting Requirement

...............................5.25

C. Reporting Restraint and Seclusion to

Local Behavioral Health Director

...............5.25

D. California Adverse Event Reporting

Requirement ................................................5.25

E. Regional Centers for Persons with

Developmental Disabilities .........................5.26

Monthly Reporting ..........................................5.26

Incident Reporting

..........................................5.26

Definitions

.......................................................5.27

F. Medication Error .......................................... 5.27

G. California Unusual Occurrence

Reporting Requirement

...............................5.27

H. Staff Injury ....................................................5.27

I. TJC Sentinel Event Requirement ...............5.27

XVIII. STAFF TRAINING REQUIREMENTS ...... 5.27

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.27

Training Intervals ............................................. 5.27

Training Content

.............................................5.27

Who Must Be Trained

......................................5.29

Trainer Requirements

......................................5.29

Training Documentation

..................................5.29

Survey Procedures

.........................................5.29

B. California Law ..............................................5.30

©CALIFORNIA HOSPITAL ASSOCIATION

Chapter 5 — Contents

Chapter 5 — Restraints and Seclusion CHA

FORMS & APPENDICES

25-A Report of a Hospital Death Associated With

Restraint or Seclusion

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

XIX. LAW ENFORCEMENT RESTRAINT

OR SECLUSION

................................... 5.30

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.30

B. California Law ..............................................5.31

XX. DOCUMENTATION REQUIREMENTS ........ 5.31

A. Federal Law: CMS Conditions of

Participation and Interpretive Guidelines

..5.31

Survey Procedures .........................................5.31

B. California Law ..............................................5.32

5 Restraints and Seclusion

5.1

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION

The use of restraint and seclusion in health care facilities is

highly regulated by both the state and federal governments.

In the year prior to the publication of the Centers for

Medicare & Medicaid Services (CMS) interim final rule

regarding patient rights in 1999, the public, patient

advocacy groups, the media and Congress became

increasingly concerned about the need to ensure basic

protections for patient health and safety in hospitals with

regard to the use of restraint and seclusion. The Hartford

Courant, a Connecticut newspaper, heightened public

awareness of this issue with a series of articles in October

1998 citing the results of a study that identified 142 deaths

from seclusion or restraint use in mental health treatment

facilities in the previous 10 years. The majority of the deaths

were adolescent patients. The Hartford Courant articles

were reprinted around the country, receiving widespread

attention and leading to broad criticism of both private

hospital accreditation organizations and government

agencies charged with oversight of patient protection and

safety.

The goal of the laws regarding restraint and seclusion is to

protect patients’ rights to be free from the inappropriate

use of restraint and seclusion; to protect the patient,

hospital staff, and others from violent or self-destructive

behavior; and to promote patient safety when the use of

either intervention is necessary.

A. Scope of Chapter

This chapter addresses all state and federal laws regarding

restraint and seclusion applicable to general acute care

hospitals (GACHs) and acute psychiatric hospitals (APHs)

with respect to mental health patients.

This chapter does not discuss all laws regarding restraint

and seclusion applicable to skilled nursing facilities,

intermediate care facilities, psychiatric health facilities

or psychiatric residential treatment facilities. In addition,

hospitals operated by the state of California or the

United States government may be subject to additional

requirements not described in this chapter.

B. Restraint and Seclusion Laws

FEDERAL LAW

CMS Conditions of Participation and Interpretive

Guidelines

The primary federal law regarding restraint and seclusion

is found in the regulation published by CMS as part of the

Patients’ Rights Condition of Participation (CoP) [42 C.F.R.

Section 482.13]. All hospitals (acute care, long-term care,

psychiatric, children’s, and cancer) must comply with the

regulation to participate in the Medicare and Medicaid

programs. The requirements of the regulation apply to

all patients in a Medicare- or Medicaid-participating

hospital, not just Medicare or Medicaid beneficiaries.

The requirements apply to inpatients and outpatients

in all locations within the hospital (including medical/

surgical units, critical care units, emergency department,

psychiatric units, etc.). However, critical access hospitals

must comply only if they have a distinct-part psychiatric or

rehabilitative unit.

CMS contracts with “State Survey Agencies” (SAs) to

survey hospitals to assess their compliance with the

CoPs. In California, the SA is the California Department

of Public Health (CDPH). The SAs conduct these

surveys using the State Operations Manual published

by CMS. The State Operations Manual may be found

at www.cms.gov/Regulations-and-Guidance/Guidance/

Manuals/Internet-Only-Manuals-IOMs.html (click on

Publication 100-07). The State Operations Manual has

several appendices that apply to hospitals, for example,

A (hospitals), AA (psychiatric hospitals), V (EMTALA), and

W (critical access hospitals). Each appendix contains

the actual language of a CoP (the regulation) as well as

Interpretive Guidelines and survey probes that elaborate

on regulatory intent and give in-depth detail to surveyors

and hospitals about how to determine compliance with

the CoPs. The SAs recommend to CMS whether hospitals

meet the CoPs. The appendix that contains the Interpretive

Guidelines for restraint and seclusion, referred to

throughout this chapter, is Appendix A (hospitals). Restraint

and seclusion guidelines are found in Tags A-0154 through

A-0214.

CHA Mental Health Law Manual 2019

5.2

©CALIFORNIA HOSPITAL ASSOCIATION

This chapter discusses the requirements of the CMS

CoP regulation related to restraint and seclusion, and

describes the Interpretive Guidelines, including survey

probes to describe what surveyors will look for during

surveys. The Interpretive Guidelines sometimes

distinguish between restraints used to manage nonviolent,

non-self-destructive behavior and restraints used to

manage violent or self-destructive behavior. The reason

for this distinction is that the Interpretive Guidelines apply

to the use of restraints in the medical/surgical and skilled

nursing settings — for example, positioning devices, side

rails, Geri-chairs, etc. This chapter focuses on restraints

used in the mental health setting, which are primarily used

to manage violent or self-destructive behavior. However,

requirements related to both types of restraint use are

described at times when useful to facilitate understanding

of the requirements.

Children’s Health Act of 2000

A federal statute, the Children’s Health Act of 2000

(Pub.L. 106-310), was enacted on Oct. 17, 2000 — after

the publication by CMS of its interim final rule regarding

restraint and seclusion, but before publication of the final

rule.

The Children’s Health Act contained several provisions

not specific to children’s health, including some related to

restraint and seclusion [42 U.S.C. Sections 290ii to 290ii-2].

CMS incorporated these statutory requirements into its final

rule, which amended the hospital CoPs, regarding restraint

and seclusion. Therefore, hospitals in compliance with the

CoPs are also in compliance with the Children’s Health Act

requirements related to restraint and seclusion.

CALIFORNIA LAW

The primary law in California regarding restraint and

seclusion is found in Health and Safety Code Sections

1180.1 to 1180.5. This statute applies to patients admitted

to acute psychiatric hospitals and to psychiatric units of

general acute care hospitals (and other facilities as well). It

does not apply to patients in a medical/surgical unit, an

ICU, or the emergency department of a general acute

care hospital.

Hospital licensing regulations (Title 22) also contain several

requirements regarding the use of restraint and seclusion.

They are discussed in this chapter.

MUST COMPLY WITH ALL LAWS

California hospitals that participate in Medicare or Medicaid

programs must comply with all of the federal requirements

and all of the state requirements described in this chapter.

There is no federal preemption of state law.

C. Accreditation Organization Standards

California hospitals that are accredited by The Joint

Commission (TJC) or other accreditation organizations

must comply with the standards established by those

organizations. TJC standards regarding restraint and

seclusion are substantially similar to the federal law

requirements described in this chapter. (The relevant TJC

standards are PC.03.05.01 through PC.03.05.19.)

Other accrediting organizations may have adopted different

requirements regarding the use of seclusion or restraint.

Hospitals accredited by organizations other than TJC

should carefully check those requirements in addition to

complying with the requirements described in this chapter.

II. PATIENTS’ RIGHTS REGARDING RESTRAINT

AND SECLUSION

Both state and federal law contain multiple provisions

regarding patients’ rights. Requirements regarding patient

rights in general — that is, rights that apply to all patients,

not just mental health patients — are described in chapter 1

of CHA’s Consent Manual. Requirements regarding the

general rights of mental health patients are described in

chapter 4 of this manual. This chapter describes only those

patients’ rights that are specific to restraint and seclusion.

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Federal law states that all patients have the right to be free

from physical or mental abuse, and corporal punishment.

All patients have the right to be free from restraint or

seclusion, of any form, imposed as a means of coercion,

discipline, convenience, or retaliation by staff. Restraint or

seclusion may be imposed only to ensure the immediate

physical safety of the patient, a staff member, or others

and must be discontinued at the earliest possible time. The

patient also has the right to safe implementation of restraint

or seclusion by trained staff. [42 C.F.R. Section 482.13(e)

and (f)]

The Interpretive Guidelines state that hospital leadership is

responsible for creating a culture that supports a patient’s

right to be free from restraint or seclusion. Leadership

must ensure that systems and processes are developed,

implemented, and evaluated that support patients’ rights

and that eliminate the inappropriate use of restraint or

seclusion. Through its Quality Assurance/Performance

Improvement (QAPI) program, hospital leadership should:

1. Assess and monitor the use of restraint or seclusion in

the facility;

Chapter 5 — Restraints and Seclusion CHA

5.3

©CALIFORNIA HOSPITAL ASSOCIATION

2. Implement actions to ensure that restraint or seclusion

is used only to ensure the physical safety of the patient,

staff and others; and

3. Ensure that the hospital complies with the

requirements set forth in the federal regulation as well

as those set forth by state law and hospital policy

when the use of restraint or seclusion is necessary.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review a sample of medical records of patients for

whom restraints were used to manage nonviolent,

non-self-destructive behavior, as well as a sample

of medical records of patients for whom restraint

or seclusion was used to manage violent or

self-destructive behavior.

2. Include in the review patients who are currently in

restraint or seclusion, as well as those who have

been in restraint or seclusion during their hospital stay

(include both violent or self-destructive patients, as well

as nonviolent, non-self-destructive patients).

3. What evidence is there that hospital staff identified the

reason for the restraint or seclusion, and determined

that other less restrictive measures would not be

effective before applying the restraint?

4. Interview staff who work directly with patients to

determine their understanding of the restraint and

seclusion policies. If any patients are currently in

restraint or seclusion, ascertain the rationale for

use and when the patient was last monitored and

assessed.

5. Is the actual use of restraints or seclusion consistent

with hospital restraint and seclusion policies and

procedures, as well as CMS requirements?

6. Review incident and accident reports to determine

whether patient injuries occurred proximal to or during

a restraint or seclusion intervention. Are incidents and

accidents occurring more frequently with restrained or

secluded patients?

7. If record review indicates that restrained or secluded

patients sustained injuries, determine what the hospital

did to prevent additional injury. Determine if the

hospital investigated possible changes to its restraint

or seclusion policies.

8. Obtain data on the use of restraint and seclusion for a

specified time period (e.g., three months) to determine

any patterns in their use for specific units, shifts, days

of the week, etc.

9. Does the number of patients who are restrained or

secluded increase on weekends, on holidays, at night,

on certain shifts; where contract nurses are used;

in one unit more than other units? Such patterns

of restraint or seclusion use may suggest that the

intervention is not based on the patient’s need, but on

issues such as convenience, inadequate staffing or

lack of staff training. Obtain nursing staffing schedules

during time periods in question to determine if staffing

levels impact the use of restraint or seclusion.

10. Interview a random sample of patients who were

restrained to manage nonviolent, non-self-destructive

behavior. Were the reasons for the use of a restraint

to manage nonviolent, non-self-destructive behavior

explained to the patient in understandable terms?

Could the patient articulate his/her understanding?

NOTE: The instructions to surveyors regarding restraints

to manage nonviolent, non-self-destructive behavior may

be more applicable in a medical/surgical or skilled nursing

setting than a mental health setting.

B. California Law

California law is virtually identical to federal law with respect

to the rights of patients who are restrained or secluded.

California law states that:

A patient has the right to be free from the use of

seclusion and behavioral restraints of any form imposed

as a means of coercion, discipline, convenience, or

retaliation by staff. This right includes, but is not

limited to, the right to be free from the use of a drug

used in order to control behavior or to restrict the

person’s freedom of movement, if that drug is not

a standard treatment for the person’s medical or

psychiatric condition.

[Health and Safety Code Section 1180.4(k); Title 9,

California Code of Regulations, Section 865.4] (Although

the last sentence in the state law is not included in the

patients’ rights portion of the federal law, it is included

elsewhere in the federal law.) (See “Drug Used as a

Restraint,”page5.6.)

CHA Mental Health Law Manual 2019

5.4

©CALIFORNIA HOSPITAL ASSOCIATION

III. GENERAL INFORMATION REGARDING

RESTRAINT AND SECLUSION

A. Quick Summary of Restraint and Seclusion

Laws

If a hospital uses restraint or seclusion, the use must be:

1. In accordance with the order of a licensed health

care practitioner acting within the scope of his or her

professional licensure;

2. In accordance with a written modification to the

patient’s plan of care;

3. Used in the least restrictive manner possible;

4. Used in accordance with safe and appropriate

restraining techniques;

5. Selected only when other less restrictive measures

have been found ineffective to protect the patient or

others from harm; and

6. Ended at the earliest possible time.

The patient’s attending physician must be consulted

as soon as possible, if the attending physician did not

order the restraint (see IX.“Notification of Attending

Physician,”page5.16). In addition, the condition of

the restrained or secluded patient must be continually

assessed, monitored, and reevaluated. All staff involved

in the care of restrained or secluded patients must have

ongoing education and training in the proper and safe use

of restraint and seclusion. A debriefing must follow each

episode of restraint or seclusion.

Details of these requirements are discussed in this chapter.

B. Techniques

The use of restraint or seclusion must be implemented

in accordance with safe and appropriate restraint and

seclusion techniques as determined by hospital policy in

accordance with state law [42 C.F.R. Section 482.13(e)

(4)(ii)]. State law does not contain specific requirements

regarding restraint technique, except to describe

certain prohibited techniques (see XV.“Prohibited

Techniques,”page5.21).

Title 22 regulations applicable to acute psychiatric hospitals

require that restraints be easily removable in the event

of fire or other emergency [Title 22, California Code of

Regulations, Section 71545(d)]. In addition, if seclusion

rooms are provided, they must be designed and equipped

to ensure the safety of the patient [Title 22, California Code

of Regulations, Section 71625].

The Interpretive Guidelines state that the use of restraint

or seclusion must never act as a barrier to the provision of

other interventions to meet the patients’ needs.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review the hospital’s policies and procedures to

determine if they reflect current standards of practice

regarding safe and appropriate restraint and seclusion

techniques. Are there any references to state law

statutes or any indication that state laws were reviewed

and incorporated?

2. Review a sample of patient medical records

that include patients who required the use of

restraint or seclusion for the management of both

violent, self-destructive behaviors, and nonviolent,

non-self-destructive behaviors.

3. After restraints were applied, was an assessment

immediately made to ensure that restraints were

properly and safely applied?

4. Were the hospital policies and procedures followed?

5. Was the use of restraint or seclusion effective in

achieving the purpose for which it was ordered? If not,

were timely changes made?

6. Was there any evidence of injury to the patient?

C. Restraints are Medical Devices Regulated by

the FDA

The Food and Drug Administration (FDA) regulates restraint

devices as it regulates other medical devices. Any restraint

used by a hospital should be FDA-approved, and used

according to the manufacturer’s instructions.

Under the Safe Medical Devices Act of 1990, hospitals and

other device user facilities must report incidents involving

medical devices (including restraints) that have or may

have caused or contributed to the serious injury or death

of a patient. Details of this reporting requirement are found

in XVII.“Reporting Requirements Related to Restraint or

Seclusion,”page5.24.

IV. DEFINITIONS

Both federal and state law contain definitions of various

terms related to restraint and seclusion. The definition of

“seclusion” is identical under both; however, other terms are

defined differently. As a practical matter, the difference in

definitions is not significant in the mental health setting.

Chapter 5 — Restraints and Seclusion CHA

5.5

©CALIFORNIA HOSPITAL ASSOCIATION

The definitions and requirements in federal law apply to

medical/surgical patients as well as mental health patients.

Although this manual focuses on mental health law, some

discussion of the definitions as applied to medical/surgical

patients is included as helpful to understanding their

meaning as applied to mental health patients.

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

RESTRAINT

Federal law defines a “restraint” as:

1. Any manual method, physical or mechanical device,

material, or equipment that immobilizes or reduces the

ability of a patient to move his or her arms, legs, body

or head freely; or

2. A drug or medication when it is used as a restriction to

manage the patient’s behavior or restrict the patient’s

freedom of movement and is not a standard treatment

or dosage for the patient’s condition.

[42 C.F.R. Section 482.13(e)(1)]

General Rule

The CMS definition is a functional definition. That is, if a

patient is functionally restrained, regardless of the method

used, then the restraint requirements apply. Similarly, if a

patient can easily remove a device, the device would not

be considered a restraint. “Easily remove” means that

the manual method, device, material, or equipment can be

removed intentionally by the patient in the same manner

as it was applied by the staff, considering the patient’s

physical condition and ability to accomplish the objective,

such as transfer to a chair, get to the bathroom in time,

etc. (e.g., side rails can be put down, not climbed over;

buckles can be intentionally unbuckled; ties or knots can

be intentionally untied; etc.). It is important to document

that the patient can unsnap the belt in the wheelchair,

or that the patient can lower the side rails when she

wants to, etc. so that it is clear that such devices do not

constitute restraints.

Examples

The use of an FDA-approved protective restraint would

constitute the restraint of a patient as defined in the federal

regulation. Other devices and practices that could meet the

CMS definition of a restraint include:

1. Tucking a patient’s sheets in so tightly that the patient

cannot move.

2. Use of a “net bed” or an “enclosed bed” that prevents

the patient from freely exiting the bed. However,

placement of a toddler in an “enclosed” or “domed”

crib is not a restraint.

3. Use of “Freedom” splints that immobilize a

patient’s limb.

4. Using side rails that prevent a patient from voluntarily

getting out of bed.

5. Geri-chairs or recliners, but only if the patient cannot

easily remove the restraint appliance and get out of the

chair on his or her own.

These types of “restraints” are more commonly used in

medical/surgical and skilled nursing settings rather than

mental health settings; they are included in this manual

as illustrative.

Positioning Devices

A medically-necessary positioning or securing device

used to maintain the position, limit mobility, or temporarily

immobilize the patient during medical, dental, diagnostic,

or surgical procedures is not considered a restraint. Thus,

an IV arm board or a hand mitt would generally not be

considered a restraint. However, if the board or mitt is

attached to the bed, this would meet the definition of a

restraint. In addition, if the mitts are applied so tightly that

the hand or fingers are immobilized — or if the mitts are

so bulky that the patient’s ability to use his or her hands

is significantly reduced — this would be considered

a restraint.

Physical Escort

A physical escort may include a light grasp to escort the

patient to a desired location. If the patient can easily

remove or escape the grasp, this is not a restraint.

However, if the patient cannot easily remove or escape the

grasp, this is a restraint.

Physical Holding

The Interpretive Guidelines permit the physical holding

of a patient to conduct routine physical exams or tests.

However, patients have the right to refuse physical exams

or tests. Holding a patient in a manner that restricts the

patient’s movement against the patient’s will is considered

a restraint. This includes “therapeutic holds.” CMS states

that physically holding a patient can be just as restrictive,

and just as dangerous, as restraining methods that involve

devices.

The application of force to physically hold a patient, in order

to administer a medication against the patient’s wishes,

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is considered restraint. The patient has a right to be free

of restraint and, in accordance with the patients’ rights

CoP (42 C.F.R. Section 482.13(b)(2)), also has a right to

refuse medications, unless a court has ordered medication

treatment. Additionally, some patients may be medicated

against their will in certain emergency circumstances.

However, in both of these circumstances, health care

staff is expected to use the least restrictive method of

administering the medication to avoid or reduce the use of

force, when possible. The use of force in order to medicate

a patient, as with other restraint, must have a physician’s

order prior to the application of the restraint (use of force).

If physical holding for forced medication is necessary with

a violent patient, the one-hour face-to-face evaluation

requirement would also apply.

In certain circumstances, a patient may consent to an

injection or procedure, but may not be able to hold still

for an injection, or cooperate with a procedure. In such

circumstances, and at the patient’s request, staff may

“hold” the patient in order to safely administer an injection

(or obtain a blood sample, or insert an intravenous line,

if applicable) or to conduct a procedure. This is not

considered restraint.

A staff member picking up, redirecting, or holding an infant,

toddler, or preschool-aged child to comfort the patient is

not considered restraint.

Side Rails

A restraint does not include methods that protect the

patient from falling out of bed. However, side rails are

sometimes used instead to restrict the patient’s freedom

to exit the bed (this is usually not an issue in the mental

health setting). Such use of side rails would be considered

a restraint.

Disoriented patients may view a raised side rail as a barrier

to climb over, may slide between raised, segmented side

rails, or may scoot to the end of the bed to get around

a raised side rail and exit the bed. When attempting to

leave the bed by any of these routes, the patient is at risk

for entrapment, entanglement, or falling from a greater

height posed by the raised side rail, with a possibility for

sustaining greater injury or death than if the patient had

fallen from the height of a lowered bed without raised side

rails. In short, the patient may have an increased risk for

a fall or other injury by attempting to exit the bed with the

side rails raised. The risk presented by side rail use should

be weighed against the risk presented by the patient’s

behavior as ascertained through individualized assessment.

When the clinician raises all four side rails in order to

restrain a patient (that is, to immobilize or reduce the

ability of a patient to move his or her arms, legs, body, or

head freely) to ensure the immediate physical safety of the

patient, then the requirements of the restraint regulation

apply. Raising fewer than four side rails when the bed has

segmented side rails would not necessarily immobilize or

reduce the ability of a patient to move freely as defined in

the regulation. For example, if the side rails are segmented

and all but one segment are raised to allow the patient to

freely exit the bed, the side rail is not acting as a restraint.

Conversely, if a patient is not physically able to get out

of bed regardless of whether the side rails are raised or

not, raising all four side rails for this patient would not be

considered restraint because the side rails have no impact

on the patient’s freedom of movement. In this example, the

use of all four side rails would not be considered restraint.

The use of side rails on stretchers is not considered a

restraint. Neither is the use of a seat belt when transporting

a patient in a wheelchair.

Drug Used as a Restraint

Drugs or medications that are used as part of a patient’s

standard medical or psychiatric treatment, and are

administered within the standard dosage for the patient’s

condition, are not considered restraints [42 C.F.R. Section

482.13(e)(1)(i)(B)].

The Interpretive Guidelines state that the restraint and

seclusion regulations are not intended to interfere with

the clinical treatment of patients who are suffering from

serious mental illness and who need therapeutic doses

of medication to improve their level of functioning so

that they can more actively participate in their treatment.

Similarly, the regulations are not intended to interfere with

appropriate doses of sleeping medication prescribed for

patients with insomnia, anti-anxiety medication prescribed

to calm a patient who is anxious, or analgesics prescribed

for pain management. The regulatory language is intended

to provide flexibility and recognize the variations in patient

conditions.

Whether or not an order for a medication is PRN or a

standing order does not determine whether or not the

use of that drug is considered a restraint. The use of PRN

or standing order medications is prohibited only if the

medication is a drug used as a restraint. Similarly, whether

or not the use of a medication is voluntary, or even whether

the drug is administered as a one-time dose or PRN are not

factors in determining if a drug is being used as a standard

treatment. [71 Fed. Reg. 71378, 71391 (Dec. 8, 2006)]

If a drug is used as a restraint, all restraint requirements

must be followed, including the time-limited orders and the

assessment, documentation, and monitoring requirements.

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Criteria used to determine whether the use of a drug or

combination of drugs is a standard treatment or dosage for

the patient’s condition includes all of the following:

1. The drug is used within the pharmaceutical parameters

approved by the FDA and the manufacturer for the

indications that it is manufactured and labeled to

address, including listed dosage parameters;

2. The use of the drug follows national practice

standards established or recognized by the medical

community, or professional medical associations or

organizations; and

3. The use of the drug to treat a specific patient’s clinical

condition is based on that patient’s symptoms, overall

clinical situation, and on the physician’s knowledge

of that patient’s expected and actual response to the

medication.

Another component of “standard treatment or dosage”

for a drug is the expectation that the standard use of a

drug to treat the patient’s condition enables the patient

to more effectively or appropriately function in the world

around them than would be possible without the use of the

medication. If the overall effect of a drug or combination

of drugs is to reduce the patient’s ability to effectively or

appropriately interact with the world around the patient,

then the drug is not being used as a standard treatment or

dosage for the patient’s condition.

As with any use of restraint or seclusion, staff must conduct

a comprehensive patient assessment to determine the

need for other types of interventions before using a drug as

a restraint. For example, a patient may be agitated due to

pain, an adverse reaction to an existing drug or medication,

or other unmet care need or concern.

There are situations where the use of a drug is clearly

outside the standard for a patient or a situation, or a

medication is not medically necessary but is used for

patient discipline or staff convenience (neither of which is

allowed by law).

CMS has provided the following two examples.

Example 1. A patient has Sundowner’s Syndrome, a

syndrome in which a patient’s dementia becomes more

apparent at the end of the day rather than at the beginning

of the day. The patient may become agitated, angry, or

anxious at sundown. This may lead to wandering, pacing

the floors, or other nervous behaviors. The staff finds the

patient’s behavior bothersome, and asks the physician

to order a high dose of a sedative to “knock out” the

patient and keep him in bed. The patient has no medical

symptoms or condition that indicates the need for a

sedative. In this case, for this patient, the sedative is being

used inappropriately as a restraint for staff convenience.

Such use is not permitted.

Example 2. A patient is in a detoxification program. The

patient becomes violent and aggressive. Staff administers

a PRN medication ordered by the patient’s physician

to address these types of outbursts. The use of the

medication enables the patient to better interact with others

or function more effectively. In this case, the medication

used for this patient is not considered a “drug used as a

restraint.” The availability of a PRN medication to manage

outbursts of specific behaviors, such as aggressive, violent

behavior is standard for this patient’s medical condition

(i.e., drug or alcohol withdrawal). Therefore, this patient’s

medication does not meet the definition of “drug used as a

restraint” since it is a standard treatment or dosage for the

patient’s medical or psychiatric condition.

If a drug or medication is used as a standard treatment (as

previously defined) to address the assessed symptoms and

needs of a patient with a particular medical or psychiatric

condition, its use is not subject to the requirements of the

federal regulation. However, the patient would still need to

receive any assessments, monitoring, interventions, and

care that are appropriate for that patient’s needs.

SECLUSION

“Seclusion” is the involuntary confinement of a patient

alone in a room or area from which the patient is physically

prevented from leaving. Seclusion may be used only for

the management of violent or self-destructive behavior that

jeopardizes the immediate physical safety of the patient, a

staff member, or others.

Seclusion is not just confining a patient to an area, but

involuntarily confining the patient alone in a room or area

where the patient is physically prevented from leaving. If a

patient is restricted to a room alone and staff are physically

intervening to prevent the patient from leaving the room

or giving the perception that threatens the patient with

physical intervention if the patient attempts to leave the

room, the room is considered locked, whether the door is

actually locked or not. In this situation, the patient is being

secluded.

A patient physically restrained alone in an unlocked room

does not constitute seclusion. Confinement on a locked

unit or ward where the patient is with others does not

constitute seclusion.

Timeout is not considered seclusion. The Interpretive

Guidelines state that a “timeout” is an intervention in which

the patient consents to being alone in a designated area

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for an agreed upon time frame from which the patient is not

physically prevented from leaving. Therefore, the patient

can leave the designated area when the patient chooses.

The Children’s Health Act defines “time out” to mean

a “behavior management technique that is part of an

approved treatment program and may involve the

separation of the resident from the group, in a nonlocked

setting, for the purpose of calming” [42 U.S.C. Section

290ii].

Quarantining a patient for public health reasons, as

governed by state law, is not considered “seclusion” under

federal law [71 Fed. Reg. 71378, 71404 (Dec. 8, 2006)].

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Determine whether the hospital’s policies and

procedures employ a definition or description of what

constitutes “restraint” and “seclusion” that is consistent

with the federal regulation.

2. Determine whether the hospital’s policies and

procedures employ a definition or description of what

constitutes the use of a drug as a restraint that is

consistent with the federal regulation.

3. While touring hospital units look for restraints in use.

Where a restraint is in use, check the medical record

for appropriate documentation.

4. While touring hospital units look for bed side rail use

to determine whether it is consistent with the definition

of a restraint. Where bed side rails are being used as

a restraint, check the medical record for appropriate

documentation. (This direction to surveyors is more

applicable to the medical/surgical or skilled nursing

setting rather than the mental health setting.)

5. Interview hospital staff to determine whether they know

the definition of a “restraint” (particularly with respect to

use of bed side rails) and “seclusion.”

6. Interview hospital staff to determine whether they

can identify when the use of a drug or medication is

considered a chemical restraint.

B. California Law

For purposes of this chapter, the following definitions apply.

“Behavioral restraint” means “mechanical restraint” or

“physical restraint” used as an intervention when a patient

presents an immediate danger to self or others. It does

not include restraints used for medical purposes, including,

but not limited to, securing an intravenous needle or

immobilizing a person for a surgical procedure, or postural

restraints, or devices used to prevent injury or to improve a

patient’s mobility and independent functioning rather than

to restrict movement.

“Containment” means a brief physical restraint of a patient

for the purpose of effectively gaining quick control of a

patient who is aggressive or agitated or who is a danger to

self or others.

“Mechanical restraint” means the use of a mechanical

device, material, or equipment attached or adjacent to the

patient’s body that he or she cannot easily remove and

that restricts the freedom of movement of all or part of a

person’s body or restricts normal access to the person’s

body, and that is used as a behavioral restraint.

“Physical restraint” means the use of a manual hold to

restrict freedom of movement of all or part of a patient’s

body, or to restrict normal access to the patient’s body, and

that is used as a behavioral restraint. “Physical restraint”

is staff-to-patient physical contact in which the patient

unwillingly participates. “Physical restraint” does not include

briefly holding a patient without undue force in order to

calm or comfort, or physical contact intended to gently

assist a patient in performing tasks or to guide or assist a

patient from one area to another.

“Seclusion” means the involuntary confinement of

a patient alone in a room or an area from which the

patient is physically prevented from leaving. “Seclusion”

does not include a “timeout,” as defined in regulations

relating to facilities operated by the State Department of

Developmental Services.

“Time out” is defined as the “removal of a client from

specified activities for a specific period of time.”

[Health and Safety Code Section 1180.1; Title 9, California

Code of Regulations, Section 865.4; Title 22, California

Code of Regulations, Section 76331]

V. INTAKE ASSESSMENT/CARE PLAN

State and federal laws require that a patient receive an

overall physical and psychiatric exam around the time of

admission and that a plan of care be developed [42 C.F.R.

Sections 482.24(c)(2) and 482.61; Title 22, California Code

of Regulations, Sections 70717(d), 71517(c) and 71549].

This portion of the manual describes only the requirements

related to restraint and seclusion — it is not intended

to describe everything a hospital must consider and

document in its evaluation, assessment, and overall care

planning for a mental health patient.

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A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

CMS requires that the use of restraint or seclusion be in

accordance with a written modification to the patient’s plan

of care [42 C.F.R. Section 482.13(e)(4)(i)].

CMS notes that it refers to the “modified” plan of care to

reinforce its expectation that restraint or seclusion should

not be a standard response to a particular behavior or

situation [64 Fed. Reg. 36070, 36083 (July 2, 1999)]. CMS

also states that the regulation does not require that a

modification to the patient’s plan of care be made before

initiating or obtaining an order for the use of restraint

or seclusion. The plan of care should be reviewed and

updated in writing to reflect the use of restraint or seclusion

within a time frame specified by hospital policy. The use of

restraint or seclusion should be reflected in the patient’s

plan of care based on an assessment and evaluation of

the patient.

The Patients’ Rights CoP promotes the patient’s right to be

involved in and make decisions about his or her health care.

This includes being informed of his or her health status,

being involved in care planning and treatment, and being

able to request or refuse treatment. This standard applies

to all health care, and is not specific to mental health care

or to the use of restraint or seclusion. The patient should

be informed of changes to the plan of care, including the

use of restraint or seclusion.

Although in general a competent patient may refuse

recommended treatment, in the preamble to the final

Patients’ Rights rule, CMS stated that:

If the patient’s violent or self-destructive behavior

jeopardizes the immediate physical safety of the patient,

a staff member, or others, the patient does not have

the right to refuse the use of restraint or seclusion. In

this situation, the use of restraint or seclusion is an

emergency measure to protect the safety of the patient,

staff, or others. [71 Fed. Reg. 71378, 71392 (Dec. 8,

2006)]

SURVEY PROCEDURES

CMS emphasizes the individualized assessment and

evaluation of the patient in its survey probes. The

Interpretive Guidelines direct surveyors to consider

the following:

1. Determine whether the hospital’s procedures are

consistent with the requirements of the regulation.

Does the plan of care reflect a process of assessment,

intervention, and evaluation when restraint or seclusion

is used?

2. Is there evidence of assessment of the identified

problem or of an individual patient assessment? Does

the patient’s plan of care reflect that assessment?

3. What was the goal of the intervention?

4. What was the described intervention?

5. Who is responsible for implementation?

6. Was the patient informed of the changes in his or her

plan of care?

7. Did the physician or other licensed independent

practitioner (LIP) write orders that included a

time limit? Were these orders incorporated into

the plan of care? (See VII.“Order for Restraint or

Seclusion,”page5.12.)

8. After the discontinuation of the restraint or seclusion,

was this information documented in an update of the

plan of care?

B. California Law

California law requires that each facility conduct an initial

assessment of each patient prior to a placement decision

or upon admission, or as soon thereafter as possible.

The assessment must include input from the patient and

someone the patient desires to be present, such as a family

member or other person designated by the patient, if the

desired family member or other person can be present at

the time of admission.

The initial assessment must include all of the following, to

the extent the information is available at the time of the

initial assessment:

1. Identification of early warning signs, triggers, and

precipitants that cause the patient to escalate.

2. Identification of the earliest precipitant of

aggression for patients with a known or suspected

history of aggressiveness, or patients who are

currently aggressive.

3. Techniques, methods, or tools that would help the

patient control his or her behavior.

4. Preexisting medical conditions or any physical

disabilities or limitations that would place the patient at

greater risk during restraint or seclusion.

5. Any trauma history, including any history of sexual or

physical abuse that the patient feels is relevant.

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6. The patient’s advance directive regarding de-escalation

or the use of seclusion or behavioral restraints. (See

discussion below regarding psychiatric advance

directives.)

For general acute care hospitals, this California requirement

applies only to patients admitted to the psychiatric unit, if

the hospital has one. It does not apply to mental health

patients in the emergency department, an intensive care

unit, or other locations within the hospital [Health and

Safety Code Sections 1180.3 and 1180.4].

PSYCHIATRIC ADVANCE DIRECTIVES

A psychiatric advance directive is an instrument that mental

health patients may use to document their preferences

regarding future mental health treatment, in preparation for

the possibility of losing capacity to give or withhold consent

to treatment in the future. The mental health advocacy

community advocates the use of such documents,

particularly with respect to involuntary treatment,

psychiatric medications, restraint and seclusion.

Neither California nor federal law recognizes a special

document called a “psychiatric advance directive.” The

California advance health care directive laws and statutory

form were created with end-of-life issues in mind, not

mental health matters. However, the law does not prohibit a

person who executes an advance health care directive from

including instructions regarding mental health treatment.

Whether such wishes are required to be followed by a

health care provider if the patient loses capacity depends

upon several factors, including:

1. Whether the patient would have the legal ability to

consent or withhold consent to the recommended

treatment if he or she were competent. For example,

a patient who is detained pursuant to Welfare

and Institutions Code Section 5150 et seq. is, by

law, unable to withhold consent to be evaluated

for a mental disorder and may not leave the facility.

Therefore, if such a patient has executed an advance

directive denying consent to such care, a hospital need

not comply with this instruction.

2. Whether the wishes stated in the advance directive are

medically ineffective or contrary to generally accepted

health standards. In such a case, the facility need not

comply with the patient’s instructions.

There are no statutes, regulations, or judicial decisions

regarding “psychiatric” advance directives in California,

except for the reference in the intake assessment

requirement. It should be noted that this statute does

not authorize “psychiatric advance directives,” nor does

it require a provider to comply with a patient’s stated

preferences. It merely requires the provider to assess a

patient’s advance directive, if any.

A hospital should consult legal counsel if a situation arises

regarding a psychiatric advance directive. (See chapter 3

of CHA’s Consent Manual for a complete discussion of the

law regarding advance directives.)

VI. LEAST RESTRICTIVE ALTERNATIVE

Both state and federal law require that the restraint or

seclusion be used only when less restrictive interventions

are ineffective to protect the patient, staff or others from

harm.

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Restraint or seclusion may be used only when less

restrictive interventions have been determined to be

ineffective to protect the patient, a staff member, or others

from harm [42 C.F.R. Section 482.13(e)(3)]. In addition,

the type or technique of restraint or seclusion used must

be the least restrictive intervention that will be effective to

protect the patient, a staff member, or others from harm.

This determination may be made by nursing staff or other

trained clinical staff [71 Fed. Reg. 71378, 71393 (Dec. 8,

2006)].

CMS states that less restrictive interventions do not always

need to be attempted, but less restrictive interventions

must be considered and determined by staff to be

ineffective to protect the patient or others from harm

prior to the introduction of more restrictive measures.

Alternatives attempted, or the rationale for not using

alternatives, must be documented.

CMS states that the underpinning of this regulation is

the concept that safe patient care hinges on looking

at the patient as an individual and assessing his or her

condition, needs, strengths, weaknesses, and preferences.

Such an approach relies on caregivers who are skilled in

individualized assessment and in tailoring interventions

to the patient’s needs after weighing factors such as the

patient’s condition, behaviors, history, and environmental

factors.

Prior to the use of restraint or seclusion, a comprehensive

assessment of the patient must determine that the

risks associated with the use of restraint or seclusion

are outweighed by the risk of not using the restraint

or seclusion. CMS recommends a document entitled,

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“Learning from Each Other – Success Stories and Ideas

for Reducing Restraint/Seclusion in Behavioral Health,”

sponsored by the American Psychiatric Association,

American Psychiatric Nurses Association, the National

Association of Psychiatric Health Systems, and the

American Hospital Association. This document may be

found at www.nabh.org/nabh-resources. This website also

includes useful forms, assessment tools, and checklists.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Do the physician’s or other LIP’s orders specify the

reason for restraint or seclusion, the type of restraint,

and the duration of restraint or seclusion? (See

VII.“Order for Restraint or Seclusion,”page5.12.)

2. Does the severity of the behavior justify seclusion or

restraint usage by identifying an immediate and serious

danger to the physical safety of the patient or others?

3. Is there evidence that the hospital considers factors

other than the individual patient in determining

causes for the need for restraints or seclusion (i.e.,

environmental factors)?

4. Does the medical record include documentation of an

individual patient assessment and a revision of the plan

of care?

5. Does the medical record reflect changes in behavior

and staff concerns regarding safety risks to the

patient, staff, or others prompting use of seclusion or

restraints?

6. Did the patient’s behavior place the patient or others

at risk for harm? Was the patient’s behavior violent or

self-destructive?

7. Were other, less restrictive interventions tried and

documented, or is there evidence that alternatives

were considered and determined to be insufficient?

8. Is there clear documentation in the patient’s medical

record describing the steps or interventions used prior

to the use of the needed restraint or seclusion? That is,

what documentation is in the medical record to explain

the rationale for the use of restraint or seclusion?

9. Is the restraint or seclusion intervention the least

restrictive intervention that meets the patient’s clinical

needs and protects the safety of the patient, staff, or

others?

10. Did the staff determine that less restrictive alternatives

would not meet the patient’s clinical needs, or protect

the patient’s safety or the safety of others?

11. Do ongoing documented assessments demonstrate

that the restraint or seclusion intervention is needed at

this time (or at a time in the past) and that the restraint

or seclusion intervention remains the least restrictive

way to protect the patient’s safety?

12. If the time of restraint or seclusion use is lengthy, look

for evidence that the symptoms necessitating the

use of restraint or seclusion have persisted. Is there

evidence to indicate that the staff have evaluated

whether or not the restraint or seclusion can be safely

discontinued?

B. California Law

California law contains several provisions regarding

seclusion and restraint that require the least restrictive

alternative form of treatment be provided to mental health

patients.

Title 9, California Code of Regulations, Section 865.4

states that “seclusion and/or restraints shall never be

used as punishment or as a substitute for a less restrictive

alternative form of treatment.”

Similarly, the Health and Safety Code states that a health

facility must afford patients who are restrained the least

restrictive alternative and the maximum freedom of

movement, while ensuring the physical safety of the patient

and others. The facility must use the least number of

restraint points. [Health and Safety Code Section 1180.4(j)]

This requirement applies to all facilities. However, for

general acute care hospitals, this requirement applies only

to patients admitted to the psychiatric unit, if the hospital

has one. It does not apply to mental health patients in the

emergency department, an intensive care unit, or other

locations within the hospital [Health and Safety Code

Sections 1180.3 and 1180.4].

Title 22 regulations applicable to the psychiatric unit of

general acute care hospitals and to acute psychiatric

hospitals state that “restraint shall be used only when

alternative methods are not sufficient to protect the

patient or others from injury” [Title 22, California Code of

Regulations, Sections 70577(j)(1) and 71545(a)].

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VII. ORDER FOR RESTRAINT OR SECLUSION

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Federal law states that the use of restraint or seclusion

must be in accordance with the order of a physician

or other licensed independent practitioner (LIP) who is

responsible for the care of the patient as specified under

42 C.F.R. Section 482.12(c) and authorized to order

restraint or seclusion by hospital policy in accordance with

state law.

Section 482.12(c) states:

hospital policy, the governing body must ensure that the

following requirements are met:

(1) Every Medicare patient is under the care of:

(a) A doctor of medicine or osteopathy (This

provision is not to be construed to limit the

authority of a doctor of medicine or osteopathy

to delegate tasks to other qualified health care

personnel to the extent recognized under state

law or a state’s regulatory mechanism.);

(b) A doctor of dental surgery or dental medicine

who is legally authorized to practice dentistry by

the state and who is acting within the scope of

his or her license;

respect to functions which he or she is legally

authorized by the state to perform;

(d) A doctor of optometry who is legally

authorized to practice optometry by the state in

which he or she practices;

(e) A chiropractor who is licensed by the state

or legally authorized to perform the services of a

chiropractor, but only with respect to treatment

by means of manual manipulation of the spine

to correct a subluxation demonstrated by x-ray

to exist; and

(f) A clinical psychologist as defined in 42 C.F.R.

Section 410.71, but only with respect to clinical

psychologist services as defined in 42 C.F.R.

Section 410.71 and only to the extent permitted

by state law.

(2) Patients are admitted to the hospital only on

the recommendation of a licensed practitioner

permitted by the state to admit patients to a

hospital. If a Medicare patient is admitted by

a practitioner not specified in paragraph (c)(1)

above, that patient is under the care of a doctor of

medicine or osteopathy.

(3) A doctor of medicine or osteopathy is on duty or

on call at all times.

(4) A doctor of medicine or osteopathy is

responsible for the care of each Medicare patient

with respect to any medical or psychiatric problem

that —

(a) is present on admission or develops during

hospitalization; and

(b) Is not specifically within the scope of practice

of a doctor of dental surgery, dental medicine,

podiatric medicine, or optometry; a chiropractor;

or clinical psychologist, as that scope is —

(i) Defined by the medical staff;

(ii) Permitted by state law; and

(iii) Limited, under paragraph (c)(1)(e) above,

with respect to chiropractors.

PRN ORDERS

Orders for the use of restraint or seclusion must never

be written as a standing order or on an as-needed

“PRN” basis.

WHO MAY ORDER RESTRAINT OR SECLUSION

Hospitals must have policies and procedures for the

initiation of restraint or seclusion that identify the categories

of LIPs that are permitted to order restraint or seclusion in

that hospital, consistent with state law. (California law is

described in B.“California Law,”page5.3.)

CMS states that, for the purposes of the use of restraint

or seclusion, the attending practitioner must be able to

conduct both a physical and psychological assessment

of the patient in accordance with state law, their scope of

practice, and hospital policy [71 Fed. Reg. 71378, 71398

(Dec. 8, 2006)].

A resident physician who is authorized by state law and the

hospital’s residency program to practice as a physician can

carry out functions reserved for a physician or LIP by the

CMS regulation. A medical student is not an LIP.

Patient or Family Request

A request from a patient or family member for the

application of a restraint is not a sufficient basis for the

use of a restraint intervention. A patient or family member

request for a restraint intervention should prompt an

assessment to determine whether such a restraint

intervention is needed.

WHEN ORDER MUST BE OBTAINED

If possible, the physician or other LIP responsible for the

care of the patient should order the restraint or seclusion

prior to its application. In some situations, however, the

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need for restraint or seclusion may occur so quickly that

an order cannot be obtained prior to the application of

restraint or seclusion. In these emergency situations,

the Interpretive Guidelines state that the order must be

obtained either during the emergency application of the

restraint or seclusion, or immediately (within a few minutes)

after the restraint or seclusion has been applied. The

failure to immediately obtain an order is viewed by CMS as

the application of restraint or seclusion without an order.

The hospital should address this process in its restraint

and seclusion policies and procedures. The policies and

procedures should specify who can initiate the emergency

application of restraint or seclusion prior to obtaining an

order from a physician or other LIP.

PROTOCOL, STANDING ORDERS, AND PRN ORDERS

Protocol

A protocol cannot serve as a substitute for obtaining

a physician’s or other LIP’s order prior to restraint or

seclusion. If a hospital uses protocols that include the

use of restraint or seclusion, a specific physician or LIP

order is still required for each episode of restraint or

seclusion. CMS states that the philosophy that serves as

a foundation for its regulation is that restraint or seclusion

use is an exceptional event, not a routine response to a

certain patient condition or behavior. Each patient must be

assessed, and interventions should be tailored to meet the

individual patient’s needs. The creation of a protocol can

run counter to this philosophy if it sets up the expectation

that restraint or seclusion will be used as a routine part of

care. The use of restraint or seclusion is a last resort when

less restrictive measures have been determined ineffective

to ensure the safety of the patient, staff or others; it should

not be a standard response to a behavior or patient need.

However, protocols are not banned by the regulation. A

protocol may contain information that is helpful for staff,

such as how a restraint is to be applied and monitored.

Typically, a hospital will develop an emergency protocol

approved by the medical staff to be used in emergency

situations in a manner consistent with the regulations. As

mentioned above, however, a protocol cannot serve as

a substitute for obtaining a physician or LIP order before

initiating each episode of restraint or seclusion. [64 Fed.

Reg. 36070, 36083 (July 2, 1999); 71 Fed. Reg. 71378,

71395 (Dec. 8, 2006)]

When implementing a protocol that includes restraint

or seclusion, the patient’s medical record must include

documentation of an individualized patient assessment

indicating that the patient’s symptoms and diagnosis meet

the use-triggering criteria listed in the protocol. Hospitals

that utilize protocols involving restraint or seclusion are

expected to provide evidence that the medical staff has

been involved in the development, review, and quality

monitoring of their use. [71 Fed. Reg. 71378, 71396 (Dec.

8, 2006)]

Standing or PRN Orders

Standing orders or PRN orders are not permitted. Each

episode of restraint or seclusion must be initiated in

accordance with the order of a physician or other LIP. If a

patient was recently released from restraint or seclusion,

and exhibits behavior that can be handled only through

the reapplication of restraint or seclusion, a new order is

required. Staff cannot discontinue a restraint or seclusion,

and then re-start it under the same order. This would

constitute a PRN order. A “trial release” constitutes a PRN

use, and therefore is not permitted.

A temporary, directly-supervised release that occurs for the

purpose of caring for a patient’s needs (such as toileting,

feeding, or range-of-motion exercises) is not considered a

discontinuation of the restraint or seclusion. As long as the

patient remains under direct staff supervision, the restraint

is not considered to be discontinued because the staff

member is present and serving the same purpose as the

restraint or seclusion.

The use of PRN orders for drugs is prohibited only when a

drug is being used as a restraint.

Exceptions

1. Geri-chair. If a patient requires a Geri-chair with the

tray locked to be safely out of bed, a standing or PRN

order is permitted.

2. Raised side rails. If a patient requires that all bedrails

be raised (restraint) while in bed, a standing or PRN

order is permitted.

3. Repetitive self-mutilating behavior. If a patient

is diagnosed with a chronic medical or psychiatric

condition, such as Lesch-Nyham Syndrome, and the

patient engages in repetitive self-mutilating behavior,

a standing or PRN order for restraint to be applied in

accordance with specific parameters established in the

treatment plan is permitted.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review hospital policies and medical staff bylaws to

ascertain clinical practice guidelines that describe the

responsibilities of medical staff and clinicians who are

privileged to order restraint and seclusion.

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2. Do the hospital’s written policies identify what

categories of practitioners the state recognizes as an

LIP or as having the authority to order restraint and

seclusion?

3. Does the hospital have written policies indicating

which practitioners are permitted to order restraint or

seclusion in the facility?

4. Do the hospital’s written policies conform to state law?

5. Does the hospital have established policies for who

can initiate restraint or seclusion?

6. Does the hospital utilize protocols for the use of

restraint or seclusion? If so, is the use of protocols

consistent with the requirements of the regulation?

7. Do the medical records reviewed identify the physician

or LIP who ordered each use of restraint or seclusion?

8. During the medical record review, verify that a

physician or LIP order was obtained prior to the

initiation of restraint or seclusion. When emergency

application of restraint or seclusion was necessary,

verify that a physician or LIP order was obtained

immediately (within a few minutes) after application of

the restraint or seclusion.

9. Review a random sample of medical records for

patients that have been restrained or secluded. Review

orders, progress notes, flow sheets, and nursing notes

to:

a. Verify that there is a physician or other LIP order

for each episode of restraint or seclusion;

b. Evaluate patterns of use and verify that orders

were obtained when necessary;

c. Verify that the documentation specifically

addresses the patients’ behaviors or

symptoms; and

d. Determine if restraint or seclusion is being

improperly implemented on a PRN basis.

10. Interview staff to determine if actual practice

is consistent with written hospital policies and

procedures.

B. California Law

Title 22 regulations applicable to psychiatric units of general

acute care hospitals and to acute psychiatric hospitals

state that patients may be placed in restraint “only on the

written order of a licensed health care practitioner acting

within the scope of his or her professional licensure.” This

order must include the reason for the restraint and the type

of restraint to be used. Because the Title 22 definitions of

a restraint include seclusion, an order from the LIP is also

required for seclusion.

However, “in a clear case of emergency,” a patient may be

placed in restraint at the discretion of a registered nurse

and a verbal or written order obtained thereafter. A verbal

order must be recorded in the patient’s medical record and

signed by the LIP on his or her next visit.

[Title 22, California Code of Regulations, Sections 70059,

70577(j)(2), 71055 and 71545(b)]

A drug used as a restraint requires a physician order.

Whereas California law clearly permits physicians to order

restraint and seclusion, the law regarding the ability of

licensed psychologists to order restraint and seclusion

in general acute care hospitals and in acute psychiatric

hospitals was less clear until recently. Prior to April 2, 2010,

Title 22 regulations applicable to psychiatric units of general

acute care hospitals and to acute psychiatric hospitals

required that patients be placed in restraint only on the

written order of a physician [Title 22, California Code of

Regulations, Sections 70577(j)(2) and 71545]. However,

effective April 2, 2010, the California Department of Public

Health (CDPH) replaced the word “physician” with “licensed

health care practitioner acting within the scope of his or

her professional licensure” in approximately 99 places

throughout the Title 22 health facility licensing regulations.

CDPH made these changes as an acknowledgment that it

is not CDPH’s role to determine scope of practice — this is

the role of professional licensing boards.

In an issue paper adopted on Jan. 6, 1994, the California

Board of Psychology stated:

The ordering of restraints and seclusion is within the

authorized scope of practice of a licensed psychologist,

provided such order is performed within the field of

competence of the psychologist as established by his or

her education, training and experience.

Hospitals with questions or concerns about the scope

of practice of psychologists should consider the

nondiscrimination requirements of Health and Safety Code

Section 1316.5(b)(2), and consult their legal counsel.

VIII. FACE-TO-FACE EVALUATION

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

When restraint or seclusion is used for the management

of violent or self-destructive behavior that jeopardizes the

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immediate physical safety of the patient, a staff member, or

others, the patient must be seen face-to-face within one

hour after the initiation of the intervention:

1. By a physician or other LIP; or

2. By a registered nurse or physician assistant

who has been trained in accordance with the

requirements described in XVIII.“Staff Training

Requirements,”page5.27.

[42 C.F.R. Section 482.13(e)(12)]

This requirement also applies when a drug is used as a

restraint to manage violent or self-destructive behavior.

The one-hour face-to-face evaluation must be conducted

by a physician, other LIP, registered nurse or physician

assistant. CMS states that the practitioner who conducts

this evaluation must be able to complete both a physical

and behavioral assessment of the patient in accordance

with state law, his or her scope of practice, and hospital

policy. Generally, practitioners such as social workers,

psychologists and other mental health workers are not

qualified to conduct a physical assessment, nor is it in

their scope of practice. [71 Fed. Reg. 71378, 71411

(Dec. 8, 2006)]

The evaluation must be conducted in person. A telephone

call or telemedicine methodology is not permitted.

If a patient’s violent or self-destructive behavior resolves

and the restraint or seclusion intervention is discontinued

before the practitioner arrives to perform the one-hour

face-to-face evaluation, the practitioner is still required to

see the patient face-to-face and conduct the evaluation

within one hour after the initiation of this intervention.

The fact that the patient’s behavior warranted the use

of a restraint or seclusion indicates a serious medical or

psychological need for prompt evaluation of the patient

behavior that led to the intervention. The evaluation

would also determine whether there is a continued need

for the intervention, factors that may have contributed to

the violent or self-destructive behavior, and whether the

intervention was appropriate to address the violent or

self-destructive behavior.

EXCEPTION

If a patient is diagnosed with a chronic medical or

psychiatric condition, such as Lesch-Nyham Syndrome,

and the patient engages in repetitive self-mutilating

behavior, a one-hour face-to-face evaluation is not required.

CONTENT OF THE EVALUATION

The physician, LIP, registered nurse, or physician assistant

must evaluate:

1. The patient’s immediate situation;

2. The patient’s reaction to the intervention;

3. The patient’s medical and behavioral condition; and

4. The need to continue or terminate the restraint

or seclusion.

The one-hour face-to-face evaluation includes both a

physical and behavioral assessment of the patient that

must be conducted by a qualified practitioner within the

scope of their practice. An evaluation of the patient’s

medical condition would include a complete review of

systems assessment, behavioral assessment, as well as

review and assessment of the patient’s history, drugs and

medications, most recent lab results, etc. The purpose is to

complete a comprehensive review of the patient’s condition

to determine if other factors, such as drug or medication

interactions, electrolyte imbalances, hypoxia, sepsis, etc.,

are contributing to the patient’s violent or self-destructive

behavior.

Training for a registered nurse (RN) or physician assistant

(PA) to conduct the one-hour face-to-face evaluation

would include all of the training requirements described in

XVIII.“Staff Training Requirements,”page5.27, including

content to evaluate the patient’s immediate situation,

the patient’s reaction to the intervention, the patient’s

medical and behavioral condition (documented training in

conducting physical and behavioral assessment); and the

need to continue or terminate the restraint or seclusion.

CONSULTATION WITH ATTENDING PHYSICIAN OR

OTHER LIP

If the face-to-face evaluation is conducted by a registered

nurse or physician assistant, the registered nurse or

physician assistant must consult the attending physician

or other LIP who is responsible for the care of the patient

under 42 C.F.R. Section 482.12 as soon as possible after

completing the evaluation. Hospital policy should address

the expected time frame for, and the components of, the

consultation.

This consultation should include, at a minimum,

the following:

1. A discussion of the findings of the one-hour

face-to-face evaluation.

2. The need for other interventions or treatments.

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3. The need to continue or discontinue the use of restraint

or seclusion.

The consultation must be conducted prior to a renewal

of the order. Otherwise, CMS considers that the timing

of the consultation is not consistent with the “as soon as

possible” requirements.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review the hospital policy regarding the one-hour

face-to-face evaluation.

2. What categories of practitioners does the hospital

policy authorize to conduct the one-hour face-to-face

evaluation?

3. Interview staff to determine if practice is consistent

with hospital policy.

4. Was the one-hour face-to-face evaluation conducted

by a practitioner authorized by hospital policy in

accordance with state law to conduct this evaluation?

5. If the one-hour face-to-face evaluations are conducted

by RNs who are not advanced practice nurses (APN),

verify that those RNs have documented training

that demonstrates they are qualified to conduct a

physical and behavioral assessment of the patient

that addresses: the patient’s immediate situation, the

patient’s reaction to the intervention, the patient’s

medical and behavioral condition, and the need to

continue or terminate the restraint or seclusion.

6. Does documentation of the one-hour face-to-face

evaluation in the patient’s medical record include all the

listed elements of this requirement?

7. Did the evaluation indicate whether changes in the

patient’s care were required, and, if so, were the

changes made?

8. Review the hospital restraint and seclusion policy

regarding consultation with the physician or other

LIP after a face-to-face evaluation conducted by a

registered nurse or physician assistant.

9. Does the hospital policy clarify expectations regarding

the requirement, “as soon as possible?”

10. Does documentation in the patient’s medical record

indicate consultation with the attending physician or

other LIP when the one-hour face-to-face evaluation

was conducted by a trained RN or PA?

11. Is practice consistent with hospital policy and

state law?

B. California Law

California law contains no specific requirements regarding a

face-to-face evaluation. Hospitals should follow federal law.

IX. NOTIFICATION OF ATTENDING PHYSICIAN

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The attending physician must be consulted as soon

as possible if the attending physician did not order the

restraint or seclusion. This consultation may occur

via telephone.

Hospital medical staff policies determine who is considered

the attending physician. Medicare permits the attending

“physician” to be an LIP (physician, dentist, podiatrist,

chiropractor, or clinical psychologist), if permitted by state

law and hospital policy. The intent of this requirement is to

ensure that the practitioner who has overall responsibility

and authority for the management and care of the patient is

aware of the patient’s condition and is aware of the restraint

or seclusion intervention. When the attending physician is

unavailable, responsibility for the patient must be delegated

to another practitioner, who would then be considered the

attending physician. [Interpretive Guidelines, Tag A-0170]

Hospital policies should address the definition of “as

soon as possible” based on the needs of their particular

patient population.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review the patient’s medical record for documentation

that the attending physician was notified immediately

if the attending physician did not order the restraint

or seclusion. Was the attending physician notified “as

soon as possible?”

2. Review the hospital’s policies and procedures

regarding consultation with the attending physician if

the attending physician did not order the restraint or

seclusion.

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B. California Law

California law contains no specific requirements regarding

notification of the attending physician. Hospitals should

follow federal law.

X. LIMITS ON LENGTH OF TIME THAT ORDERS

FOR RESTRAINT/SECLUSION ARE VALID

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

ORIGINAL ORDER

Restraint or seclusion used for the management of violent

or self-destructive behavior that jeopardizes the immediate

physical safety of the patient, a staff member, or others

may be ordered only in accordance with the following limits,

for up to a total of 24 hours:

1. Adults 18 years of age or older: 4 hours

2. Children and adolescents 9 to 17 years of age: 2 hours

3. Children under 9 years of age: 1 hour

[42 C.F.R. Section 482.13(e)(8)]

The physician or other LIP may write the order for a

shorter length of time. The requirement that restraint

use be ended at the earliest possible time applies to all

uses of restraint (see XI.“Discontinuation of Restraint or

Seclusion,”page5.18).

These limited time frames apply regardless of whether

each order is considered a separate, distinct, original

order, or whether an order is considered a continuation or

renewal of the original order. [71 Fed. Reg. 71378, 71413

(Dec. 8, 2006)]

RENEWAL OF ORDER

At the end of the time frame, if the continued use of

restraint or seclusion to manage violent or self-destructive

behavior is necessary based on an individualized patient

assessment, another order is required. When the original

order is about to expire, the RN must contact the physician

or other LIP, report the results of the most recent patient

assessment and request that the original order be renewed

(not to exceed the time limits described above). Whether

or not an onsite assessment is necessary prior to renewing

the order is left to the discretion of the physician or other

LIP in conjunction with a discussion with the RN who

is overseeing the care of the patient. Another one-hour

face-to-face patient evaluation is not required when the

original order is renewed.

When the physician or other LIP renews an order or

writes a new order authorizing the continued use of

restraint or seclusion, there must be documentation in

the patient’s medical record that describes the findings of

the physician’s or other LIP’s re-evaluation supporting the

continued use of restraint or seclusion.

RENEWAL OF ORDER 24 HOURS AFTER ORIGINAL

ORDER

If a patient remains in restraint or seclusion for the

management of violent or self-destructive behavior 24

hours after the original order, the physician or other LIP

who is responsible for the care of the patient must see

and assess the patient before writing a new order for the

continued use of restraint or seclusion [42 C.F.R. Section

482.13(e)(8)]. This assessment must be done in person.

CMS views 24 hours of restraint or seclusion for the

management of violent or self-destructive behavior to be

an extreme measure with potential for serious harm to the

patient, and so requires the patient to be seen in person at

least every 24 hours.

EXCEPTIONS

Repetitive Self-Mutilating Behavior

If a patient is diagnosed with a chronic medical or

psychiatric condition, such as Lesch-Nyham Syndrome,

and the patient engages in repetitive self-mutilating

behavior, a standing or PRN order for restraint to be

applied in accordance with specific parameters established

in the treatment plan is permitted. Since the use of

restraints to prevent self-injury is needed for these types

of rare, severe, medical and psychiatric conditions, the

requirements regarding time-limited orders and evaluation

every 24 hours before renewal of the order for the

management of violent or self-destructive behavior do not

apply.

Nonviolent or Non-Self-Destructive Patient

Renewal of an order for restraint used to ensure the

physical safety of a nonviolent or non-self-destructive

patient does not need to meet the above requirements.

(This use of restraints is more typically found in medical/

surgical and skilled nursing settings than in the mental

health setting.) These orders may be renewed as

authorized by hospital policy. Hospitals have the flexibility

to determine time frames for the renewal of orders for

restraint of nonviolent, non-self-destructive patients. These

time frames should be addressed in hospital policies and

procedures. (However, the requirement that restraint use

be ended at the earliest possible time applies to all uses of

restraint.)

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SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. When restraint or seclusion is used to manage violent

or self-destructive behavior, do orders contain the

appropriate time frames based on the patient’s age?

Does the total number of hours covered by an order or

its renewal exceed 24 hours?

2. If more restrictive state laws apply, are they being

followed? (NOTE: California does not have more

restrictive laws.)

3. Is the renewal order for restraint or seclusion based on

a comprehensive individual patient assessment?

4. Is there evidence in the patient’s medical record that

the symptoms necessitating the continued use of

restraint or seclusion have persisted?

5. If restraint or seclusion is used to manage violent or

self-destructive behavior for longer than 24 hours, is

there documentation of a new written order, patient

assessments, and a re-evaluation by a physician

or other LIP in the medical record? Does the

documentation provide sufficient evidence to support

the need to continue the use of restraint or seclusion?

Is there evidence in the medical record that the

symptoms necessitating the continued use of restraint

or seclusion have persisted?

6. Does the patient’s plan of care address the use of

restraint or seclusion?

7. What is the patient’s documented clinical response to

the continued need for restraint or seclusion?

8. Review the hospital policy on renewal of restraint

orders for the management of nonviolent,

non-self-destructive patient behavior.

9. Interview staff and review the medical record

documentation to ensure that practice is consistent

with the hospital policy.

B. California Law

California law contains no specific requirements regarding

time limitations of orders for restraint and seclusion.

Hospitals should follow federal law.

XI. DISCONTINUATION OF RESTRAINT OR

SECLUSION

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Restraint or seclusion must be discontinued at the earliest

possible time, regardless of the length of time identified in

the order [42 C.F.R. Section 482.13(e)(9)].

Restraint or seclusion may be employed only while the

unsafe situation continues. Once it ends, the restraint

or seclusion must be discontinued. Staff members are

expected to assess and monitor the patient’s condition

on an ongoing basis to determine whether restraint or

seclusion can safely be discontinued to ensure that the

patient is released from restraint or seclusion at the earliest

possible time. The decision to discontinue the intervention

should be based on the determination that the need for

restraint or seclusion is no longer present, or that the

patient’s needs may be addressed using less restrictive

methods.

A hospital’s policies and procedures should address, at

a minimum:

1. Categories of staff that the hospital authorizes to

discontinue restraint or seclusion in accordance with

state law (described below); and

2. The circumstances under which restraint or seclusion is

to be discontinued.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Does the hospital have policies and procedures for

ending restraint or seclusion? Do they address, at a

minimum:

a. Who has the authority to discontinue the use of

restraint or seclusion (based on state law and

hospital policies); and

b. Circumstances under which restraint or seclusion

should be discontinued?

2. Do the policies include a requirement to end the

restraint or seclusion as soon as is safely possible?

3. Does the medical record contain evidence that the

decision to continue or discontinue the use of restraint

or seclusion was based on an assessment and

re-evaluation of the patient’s condition?

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4. Interview staff to determine whether they are

aware that use of a restraint or seclusion must be

discontinued as soon as is safely possible.

B. California Law

California law does not contain an explicit statement that

restraint or seclusion must be discontinued at the earliest

possible time. However, the California requirement that the

least restrictive alternative be employed, and the totality

of California requirements in general, capture the same

sentiment.

Registered nurses are permitted by California law to

discontinue restraint or seclusion.

XII. PATIENT MONITORING

Both state and federal law require that a patient in restraint

or seclusion be carefully monitored. Whereas the CoPs

permit the hospital some flexibility in determining the time

intervals between assessments, California law is much

stricter — patients must be observed every 15 minutes.

The federal law is described below, but California hospitals

are cautioned to follow the stricter state time frames

(described in B.“California Law,”page5.20).

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The condition of the patient who is restrained or secluded

must be monitored by a physician, other LIP, or trained staff

at an interval determined by hospital policy in accordance

with state law.

CMS states that ongoing assessment and monitoring of

the patient’s condition by a physician, other LIP or trained

staff is crucial for prevention of patient injury or death, as

well as ensuring that the use of restraint or seclusion is

discontinued at the earliest possible time. Hospital policies

are expected to guide staff in determining appropriate

intervals for assessment and monitoring based on the

individual needs of the patient, the patient’s condition, and

the type of restraint or seclusion used. The selection of an

intervention and determination of the necessary frequency

of assessment and monitoring should be individualized,

taking into consideration variables such as the patient’s

condition, cognitive status, risks associated with the use

of the chosen intervention, and other relevant factors.

In some cases, checks every 15 minutes or vital signs

taken every 2 hours may not be sufficient to ensure the

patient’s safety. In others, it may be excessive or disruptive

to patient care (e.g., it may be unnecessary to mandate

that a patient with wrist restraints, and who is asleep, be

checked every 15 minutes and awakened every 2 hours

to take the patient’s vital signs). Similarly, depending on

the patient’s needs and situational factors, the use of

restraint or seclusion may require either periodic (e.g.,

every 15 minutes, every 30 minutes, etc.) or continual (i.e.,

moment-to-moment) monitoring and assessment.

Hospital policies should address:

1. Frequencies of monitoring and assessment;

2. Assessment content (e.g., vital signs, circulation

checks, hydration needs, elimination needs, level

of distress and agitation, mental status, cognitive

functioning, skin integrity, etc.);

3. Providing for nutritional needs, range of motion

exercises, and elimination needs; and

4. Mental status and neurological evaluations.

With the exception of the simultaneous use of restraint and

seclusion, one-to-one observation with a staff member

in constant attendance is not required unless deemed

necessary based on a practitioner’s clinical judgment. (See

XIV.“Simultaneous Restraint and Seclusion,”page5.20.)

For example, placing staff at the bedside of a patient with

wrist restraints may be unnecessary. However, for a more

restrictive or risky intervention and/or a patient who is

suicidal, self injurious, or combative, staff may determine

that continual face-to-face monitoring is needed. The

hospital is responsible for providing the level of monitoring

and frequency of reassessment that will protect the

patient’s safety.

Hospitals have flexibility in determining which staff performs

the patient assessment and monitoring. This determination

must be in accordance with the practitioner’s scope of

clinical practice and state law. For example, assessment

and monitoring are activities within a registered nurse’s

scope of practice. However, some trained, unlicensed staff

with demonstrated competency may perform components

of monitoring (e.g., checking the patient’s vital signs,

hydration and circulation; the patient’s level of distress and

agitation; or skin integrity), and may also provide for general

care needs (e.g., eating, hydration, toileting, and range of

motion exercises).

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review hospital policies regarding assessment and

monitoring of a patient in restraint or seclusion.

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a. What evidence do you find that the hospital’s

monitoring policies are put into practice for all

restrained or secluded patients?

b. Do hospital policies identify which categories of

staff are responsible for assessing and monitoring

the patient?

c. Do hospital policies include time frames for

offering fluids and nourishment, toileting/

elimination, range of motion, exercise of limbs

and systematic release of restrained limbs? Is this

documented in the patient’s medical record?

2. Review patient medical records.

a. Was there a valid rationale for the decision

regarding the frequency of patient assessment and

monitoring documented in the medical record?

b. Was documentation consistent, relevant, and

reflective of the patient’s condition?

c. Are time frames described for how often a patient

is monitored for vital signs, respiratory and cardiac

status, and skin integrity checks?

d. Is there documentation of ongoing patient

monitoring and assessment (e.g., skin integrity,

circulation, respiration, intake and output, hygiene,

injury, etc.)?

e. Is the patient’s mental status assessed? Is this

documented in the medical record?

f. Is the patient assessed regarding continued need

for the use of seclusion or restraint?

g. Is there adequate justification for continued use

and is this documented?

h. Is the level of supervision appropriate to meet the

safety needs of the patient who is at a higher risk

for injury (e.g., self-injurious, suicidal)?

B. California Law

Title 22 regulations applicable to psychiatric units of general

acute care hospitals and to acute psychiatric hospitals

require that “patients in restraint by seclusion or mechanical

means shall be observed at intervals not greater than

15 minutes” [Title 22, California Code of Regulations,

Sections 70577(j)(3) and 71545(c)]. State law does not

specify any particular actions a hospital must take when

making the required observations.

XIII. EMERGENCY SITUATIONS

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Federal law does not contain any special language

regarding emergency situations. All of the federal

requirements should be complied with regardless of

whether the situation is considered an “emergency” or not.

B. California Law

A health facility may use seclusion or behavioral restraints

for behavioral emergencies only when a patient’s behavior

presents an imminent danger of serious harm to self or

others [Health and Safety Code Section 1180.4(b)].

There is no definition in this law for “behavioral

emergencies,” “imminent danger,” or “serious harm.”

This requirement applies to all facilities. For general acute

care hospitals, this requirement applies only to patients

admitted to the psychiatric unit, if the hospital has one. It

does not apply to mental health patients in the emergency

department, an intensive care unit, or other locations within

the hospital [Health and Safety Code Sections 1180.3

and 1180.4]. However, the federal regulation requires that

restraint or seclusion be used only when less restrictive

interventions have been determined to be ineffective

to protect the patient, a staff member, or others from

harm. Therefore, as a matter of practicality, hospitals in

compliance with the federal regulation will be in compliance

with this state requirement throughout the facility.

XIV. SIMULTANEOUS RESTRAINT AND

SECLUSION

At times a patient may be in restraint and in seclusion

at the same time. If so, all requirements applicable to

restraints and all requirements applicable to seclusion must

be followed. In addition, the requirements described below

must be met.

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Simultaneous restraint and seclusion is permitted only if the

patient is continually monitored:

1. Face-to-face by an assigned, trained staff member; or

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2. By trained staff using both video and audio equipment.

This monitoring must be in close proximity to the

patient.

[42 C.F.R. Section 482.13(e)(15)]

For the purposes of this requirement, “continually” means

ongoing without interruption.

A patient who is physically restrained alone in his or her

room is not necessarily being simultaneously secluded.

The question to ask is whether the patient would be able

to leave the room if he or she were not being physically

restrained. If so, then the patient is not also being secluded.

However, if the physical restraint was removed and the

patient was still unable to leave the room because the door

was locked or staff otherwise physically preventing the

patient from leaving, then the patient is also being secluded.

DOCUMENTATION

When the simultaneous use of restraint and seclusion is

employed, there must be adequate documentation that

justifies the decision for simultaneous use.

PATIENT MONITORING AND ASSESSMENT

The use of video and audio equipment does not eliminate

the need for frequent monitoring and assessment of the

patient.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Review the hospital’s policy regarding simultaneous

use of restraint and seclusion to determine whether it

provides for continual monitoring and complies with all

other requirements regarding restraint and seclusion.

2. Conduct document review and staff interviews to

determine if practice is consistent with the hospital

policy and required uninterrupted audio and visual

monitoring is provided as required.

3. Is the staff member monitoring the patient with video

and audio equipment trained and in close proximity

to ensure prompt emergency intervention if a problem

arises?

4. Does the video equipment cover all areas of the room

or location where the patient is restrained or secluded?

5. Is the audio and video equipment located in an area

that assures patient privacy?

6. Is the equipment appropriately maintained and in

working condition?

B. California Law

California law is somewhat stricter than federal law with

respect to patient observation requirements when a patient

is simultaneously restrained and secluded.

FACE-TO-FACE OBSERVATION

California law requires that a patient who is in seclusion and

in any type of behavioral restraint at the same time must be

kept under constant, face-to-face human observation.

Observation by means of video camera may be used only

in facilities that were permitted to use video monitoring

under federal regulations specific to that facility when

this law became effective (Jan. 1, 2004). Facilities should

consult their legal counsel if in doubt as to whether this

provision applies to them.

[Health and Safety Code Section 1180.4(i)]

This California requirement applies to all health facilities.

However, for general acute care hospitals, this requirement

applies only to patients admitted to the psychiatric unit, if

the hospital has one. It does not apply to mental health

patients in the emergency department, an intensive care

unit, or other locations within the hospital [Health and

Safety Code Sections 1180.3 and 1180.4]. However, a

hospital may wish to consider following this requirement

with respect to all patients who are in simultaneous restraint

and seclusion.

XV. PROHIBITED TECHNIQUES

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The CMS CoP and Interpretive Guidelines do not specify

any prohibited techniques. However, CMS requires

that the use of restraint or seclusion be implemented

in accordance with safe and appropriate restraint and

seclusion techniques as determined by hospital policy in

accordance with state law. California law does prohibit

some techniques.

B. California Law

California law prohibits specific restraint techniques.

Some of these techniques are prohibited for all patients.

Other techniques are prohibited only for specified types

of patients. These prohibitions are described in the

following sections.

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TECHNIQUES THAT ARE PROHIBITED FOR ALL

PATIENTS

A health facility may not do any of the following:

1. Use a physical restraint or containment technique that

obstructs a patient’s respiratory airway or impairs the

patient’s breathing or respiratory capacity, including

a technique in which a staff member places pressure

on a patient’s back or places his or her body weight

against the patient’s torso or back [Health and Safety

Code Section 1180.4(c)(1)].

2. Use a pillow, blanket, or other item to cover a patient’s

face as part of a physical or mechanical restraint or

containment process [Health and Safety Code Section

1180.4(c)(2)].

3. Place a patient in a facedown “prone” position with the

patient’s hands held or restrained behind the patient’s

back [Health and Safety Code Section 1180.4(g)].

4. Use physical or mechanical restraint or containment

on a patient who has a known medical or physical

condition and there is reason to believe that the

use would endanger the patient’s life or seriously

exacerbate the patient’s medical condition [Health and

Safety Code Section 1180.4(d)].

5. Use physical restraint or containment as an extended

procedure [Health and Safety Code Section 1180.4(h)].

TECHNIQUES THAT ARE PROHIBITED FOR SPECIFIED

PATIENTS

A health facility may not use prone (facedown) mechanical

restraint on a person at risk for positional asphyxiation as a

result of one of the following risk factors, if the risk factor(s)

is known to the health care provider:

1. Obesity

2. Pregnancy

3. Agitated delirium or excited delirium syndromes

4. Cocaine, methamphetamine, or alcohol intoxication

5. Exposure to pepper spray

6. Preexisting heart disease, including, but not limited to,

an enlarged heart or other cardiovascular disorders

7. Respiratory conditions, including emphysema,

bronchitis, or asthma

[Health and Safety Code Section 1180.4(e)(1)]

However, this prohibition regarding prone mechanical

restraint does not apply in the following situations:

1. When the patient has stated a preference for the prone

position. The patient might have stated this preference

during the initial intake assessment (in which case it

should be carefully documented) or later when the use

of restraint is taking place.

2. When the physician judges other clinical risks to take

precedence.

In both of the above situations, a physician must provide

“written authorization.” This written authorization —

presumably a physician order — may not be a standing

order, and must be evaluated on a case-by-case basis by

the physician. [Health and Safety Code Section 1180.4(e)

(2)]

PRONE CONTAINMENT TECHNIQUES

A health facility must avoid the deliberate use of prone

containment techniques whenever possible, using the

best practices in early intervention techniques, such as

de-escalation. If prone containment techniques are used

in an emergency situation, a staff member must observe

the patient for any signs of physical duress throughout the

use of prone containment. Whenever possible, the staff

member observing the patient should not be involved in

restraining the patient. [Health and Safety Code Section

1180.4(f)]

APPLICABILITY

The prohibitions described above apply to all facilities.

However, for general acute care hospitals, the prohibitions

apply only to patients admitted to the psychiatric unit, if

the hospital has one. They do not apply to mental health

patients in the emergency department, an intensive care

unit, or other locations within the hospital [Health and

Safety Code Sections 1180.3 and 1180.4]. However, a

hospital may wish to adopt these prohibitions throughout

its facility.

XVI. POST-RESTRAINT OR SECLUSION

REVIEW (CLINICAL/QUALITY REVIEW AND

DEBRIEFING)

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The CMS CoP and Interpretive Guidelines do not specify

any required clinical/quality reviews or debriefings after the

use of restraint or seclusion. However, California law does

contain such requirements.

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B. California Law

A health facility must conduct two reviews for each episode

of the use of seclusion or behavioral restraint: a clinical/

quality review and a debriefing. The requirements for each

type of review are discussed below.

The review requirements apply to all facilities. However, for

general acute care hospitals, they apply only to patients

admitted to the psychiatric unit, if the hospital has

one. They do not apply to mental health patients in the

emergency department, an intensive care unit, or other

locations within the hospital [Health and Safety Code

Sections 1180.3 and 1180.5]. However, a facility may wish

to conduct these reviews on all mental health patients

who experience an episode of the use of seclusion or

behavioral restraint.

If an adverse event or adverse outcome occurs while a

patient is in seclusion or restraint, the hospital should

follow its adverse event/sentinel event/root cause analysis

policy in addition to conducting the two types of reviews

described in this section.

CLINICAL AND QUALITY REVIEW

A health facility must conduct a clinical and quality review

for each episode of the use of seclusion or behavioral

restraints [Health and Safety Code Section 1180.5(a)]. The

law does not specify which types of professionals in the

facility must conduct this review nor what information

must be considered. A health facility may choose to have

a special committee to review restraint and seclusion use,

or may assign this function to a more general medical

staff quality assurance committee. In order to protect

the documents and deliberations of the committee from

discovery (including subpoena) under the “peer review”

confidentiality provision of Evidence Code Section 1157,

the committee should be formed under the auspices of the

medical staff quality assurance program. (See chapter 8 for

more information about protecting peer review and quality

assurance information from discovery.)

DEBRIEFING

In addition, a health facility must conduct a debriefing

regarding each episode of the use of seclusion or

behavioral restraints. This debriefing must take place as

quickly as possible, but no later than 24 hours after the use

of seclusion or behavioral restraints.

Who Must be Included in the Debriefing

1. The patient’s participation is voluntary. The facility

should encourage the patient to participate in the

debriefing, but may not require the patient to do so.

If the patient chooses not to participate, the hospital

should document both its encouragement and the

refusal.

2. The staff members involved in the incident, if

reasonably available.

3. A supervisor.

4. If the patient requests it, someone the patient desires

to be present, such as a family member or other

person designated by the patient, should be included

(if the desired family member or other person can be

present at the time of the debriefing at no cost to the

facility).

The Purpose and Elements of the Debriefing

The purpose of the debriefing is to do all of the following:

1. Assist the patient to identify the precipitant of the

incident, and suggest methods of more safely and

constructively responding to the incident.

2. Assist the staff to understand the precipitants to the

incident, and to develop alternative methods of helping

the patient avoid or cope with those incidents.

3. Help treatment team staff devise treatment

interventions to address the root cause of the

incident and its consequences, and to modify the

treatment plan.

4. Help assess whether the intervention was necessary

and whether it was implemented in a manner

consistent with staff training and facility policies.

In the debriefing, the health facility must provide the patient

and the staff the opportunity to discuss the following:

1. The circumstances resulting in the use of seclusion or

behavioral restraints; and

2. Strategies to be used by the staff, the patient, or

others that could prevent the future use of seclusion or

behavioral restraints.

[Health and Safety Code Section 1180.5(b) and (c)]

Documentation Requirements Regarding the Debriefing

The law explicitly requires that the health facility document

in the patient’s medical records that the debriefing session

took place and any changes to the patient’s treatment

plan that resulted from the debriefing [Health and Safety

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Code Section 1180.5(d)]. In addition, health facilities

should consider documenting the date and time of the

debriefing, the participants in the debriefing, whether the

patient wanted to participate, whether the patient wanted

a third party to participate, and the fact that each element

described under “The Purpose and Elements of the

Debriefing,”page5.23, was addressed.

XVII. REPORTING REQUIREMENTS RELATED TO

RESTRAINT OR SECLUSION

There are several state and federal reporting requirements

potentially implicated when a patient is restrained or

secluded. These reporting requirements are described

below. One incident can easily lead to multiple reports

being required. The reporting requirements related to the

Safe Medical Devices Act, adverse event reporting, and

unusual occurrences should be reviewed and all necessary

reports should be made in the event of an adverse

event involving restraints or seclusion. In addition, the

requirements regarding sentinel events should be reviewed.

All of these requirements are described in chapter 8.

A. CMS Death Reporting and Documentation

Requirements

REPORTING REQUIREMENT

Hospitals must report the following deaths associated with

the use of seclusion or restraint to CMS by fax no later than

the close of business on the next business day following

knowledge of the patient’s death. (The CMS Regional

Office in California does not accept reports by email.) The

following events must be reported:

1. Each death that occurs while a patient is in restraint

or seclusion, except for deaths subject to the

“Documentation Requirement,”page5.24.

2. Each death that occurs within 24 hours after the

patient was removed from restraint or seclusion

(whether or not the hospital believes that the

use of restraint or seclusion contributed to the

patient’s death), except for deaths subject to the

“Documentation Requirement,”page5.24.

3. Each death known to the hospital that occurs

within one week after restraint or seclusion where

it is reasonable to assume that use of restraint or

seclusion contributed directly or indirectly to a patient’s

death, regardless of the type(s) of restraint used.

“Reasonable to assume” in this context includes,

but is not limited to, deaths related to restrictions of

movement for prolonged periods of time, or death

related to chest compression, restriction of breathing

or asphyxiation.

This requirement applies to deaths that occur in any unit of

the hospital, including an ICU or critical care unit. However,

critical access hospitals are required to report to CMS

only if they have a psychiatric or rehabilitative distinct part

unit. (Critical access hospitals may be required to report

an adverse event related to restraints or seclusion under

another reporting requirement described in this chapter.)

The date and time of the report to CMS must be

documented in the patient’s medical record.

[42 C.F.R. Section 482.13(g)]

REGIONAL OFFICE PHONE NUMBER/WORKSHEET

Hospitals must fax a report to CMS at the Regional

Office for Region IX at (443) 380-8909 to report deaths

associated with the use of seclusion or restraint. The

hospital must use Form CMS-10455, which is included

at the end of this manual as CHA Appendix MH 5-A.

Reporting by email is not acceptable to CMS.

Hospitals with questions about the reporting requirement

may contact Alex Garza or Rosanna Dominguez at:

Division of Survey and Certification

Centers for Medicare & Medicaid Services

90 7th Street, Suite 5-300 (5W)

San Francisco, CA 94103

(415) 744-3735

DOCUMENTATION REQUIREMENT

When no seclusion has been used and when the only

restraints used on the patient are those applied exclusively

to the patient’s wrist(s), and which are composed solely

of soft, non-rigid, cloth-like materials, the hospital staff

does not need to notify CMS of a patient death by the

next business day. Instead, hospital staff must record the

following information in an internal log or other system:

1. The patient’s name,

2. The patient’s date of birth,

3. The patient’s date of death,

4. The name of attending physician or other LIP who is

responsible for the care of the patient,

5. The patient’s medical records number, and

6. The patient’s primary diagnosis(es).

Each entry must be made not later than seven days after

the date of death. An entry must be made for:

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1. Any death that occurs while a patient is in restraints as

described above.

2. Any death that occurs within 24 hours after a patient

has been removed from restraints as described above.

The log or other system must be made available in either

written or electronic form to CMS immediately upon

request.

The date and time of the log entry must be documented in

the patient’s medical record.

CMS RESPONSE

CMS will use the information reported by the hospital to:

1. Authorize an onsite investigation (complaint survey)

of the hospital by CDPH, which is the state survey

agency for CMS, and

2. Inform the federally-mandated protection and

advocacy entity, which in California is Disability Rights

California (DRC). DRC’s role and responsibilities

are described in V.“Mental Health Advocacy

Programs,”page4.7.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Does the hospital have a death reporting policy that

addresses the requirements of the regulation?

2. Review data related to patient deaths while the

patients were in restraint or seclusion to determine if

the hospital followed the requirements related to death

reporting for:

a. Each death that occurred while the patient was

in restraints (whether physical or drugs used as a

restraint) or seclusion;

b. Each death that occurred within 24 hours after

the patient had been removed from restraint or

seclusion; and

c. Each death that occurred within one week after

restraint or seclusion where it is reasonable to

assume that the use of restraint or seclusion

contributed directly or indirectly to a patient’s

death.

3. Interview staff to determine their knowledge of the

hospital’s death reporting policy.

4. Is there evidence that deaths associated with the use

of restraints or seclusion are reported to CMS? Review

medical records of patients who died associated with

the use of restraint or seclusion to determine if the

documentation included the date and time the death

was reported to CMS.

B. FDA: Safe Medical Devices Act Reporting

Requirement

The Food and Drug Administration (FDA) regulates restraint

devices as it regulates other medical devices. Under the

Safe Medical Devices Act of 1990, hospitals and other

device user facilities must report incidents involving medical

devices (including restraints) that may have caused or

contributed to the serious injury or death of a patient.

For purposes of this reporting law, it should be noted that

the FDA uses a different definition of restraint than does the

CMS CoP or California law. The FDA defines a protective

restraint as:

a device, including but not limited to a wristlet, anklet,

vest, mitt, straight jacket, body/limb holder, or other type

of strap, that is intended for medical purposes and that

limits the patient’s movements to the extent necessary

for treatment, examination, or protection of the patient or

others. [21 C.F.R. Section 880.6760]

Whereas the CMS definition of restraint could include a

Geri-chair, a tray table, a side rail, a sheet, or even a staff

member holding a patient, the FDA definition does not.

Therefore, this reporting requirement is somewhat more

narrow than the other reporting requirements discussed

throughout XVII.“Reporting Requirements Related to

Restraint or Seclusion,”page5.24.

Detailed information regarding the Safe Medical Devices

Act of 1990 is found in IX.“Reports Under the Safe Medical

Devices Act of 1990,”page8.11.

C. Reporting Restraint and Seclusion to Local

Behavioral Health Director

When a patient is restrained or secluded, a denial of

rights is deemed to have occurred. (See F.“Denial of

Patient Rights,”page4.4, regarding required monthly

and quarterly reporting to the Department of Health Care

Services.)

D. California Adverse Event Reporting

Requirement

California law requires that 27 specified adverse events be

reported to CDPH within five days of detection. Most of

these events are unlikely to occur in the context of restraint

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or seclusion. However, one of the specified adverse

events that must be reported is “a patient death or serious

disability associated with the use of restraints or bedrails

while being cared for in a health facility.”

In addition, the following adverse events could happen

while a patient is being restrained or secluded and would

be reportable:

1. A patient death or serious disability associated with a

medication error, including, but not limited to, an error

involving the wrong drug, the wrong dose, the wrong

patient, the wrong time, the wrong rate, the wrong

preparation, or the wrong route of administration,

excluding reasonable differences in clinical judgment

on drug selection and dose. This adverse event could

take place in the context of a drug used as a restraint.

2. A patient death associated with a fall while the

patient is being cared for in a health facility. If a

patient were to die as the result of a fall while in

seclusion or while being restrained, this adverse

event would be reportable under the adverse event

reporting requirement.

The details of the adverse event reporting requirement

are described in VII.“CDPH Adverse Events

Reporting,”page8.7.

E. Regional Centers for Persons with

Developmental Disabilities

State law requires specified facilities to report the

use of restraint and seclusion for clients of California

regional centers. Regional centers serve individuals

with developmental disabilities. The facilities that must

report are:

1. Acute psychiatric hospitals that are regional center

vendors (that is, the hospital contracts with one or

more California regional centers for persons with

developmental disabilities). Acute psychiatric hospitals

may wish to check with their contracts department

to determine whether the hospital is a regional

center vendor.

2. Long-term health care facilities that are required to

report to a regional center under Title 17, California

Code of Regulations, Section 54327. “Long-term

health care facilities include:

a. Skilled nursing facility.

b. Intermediate care facility.

c. Intermediate care facility/developmentally disabled.

d. Intermediate care facility/developmentally

disabled habilitative.

e. Intermediate care facility/developmentally

disabled-nursing.

f. Congregate living health facility.

g. Nursing facility.

h. Intermediate care facility/developmentally

disabled-continuous nursing.

i. Pediatric day health and respite care facility.

j. “Long-term health care facility” does not include

a general acute care hospital or an acute

psychiatric hospital, except for that distinct part

of the hospital that provides skilled nursing facility,

intermediate care facility, intermediate care facility/

developmentally disabled, or pediatric day health

and respite care facility services.

3. Regional center vendors that provide crisis or

residential services or supported living services.

General acute care hospitals may wish to check with

their contracts department to determine whether the

hospital is a regional center vendor of crisis services.

MONTHLY REPORTING

Each month, the facilities listed above must report to

the state-contracted protection and advocacy agency,

Disability Rights California, the following:

1. The number of incidents of seclusion and the duration

of time spent per incident in seclusion;

2. The number of incidents of the use of behavioral

restraints and the duration of time spent per incident of

restraint; and

3. The number of times an involuntary emergency

medication is used to control behavior.

These reports must include the name, street address, and

telephone number of the facility.

INCIDENT REPORTING

If a client of a California regional center dies or suffers a

serious injury during, or related to, the use of seclusion,

physical restraint, or chemical restraint, or any combination

thereof, a report must be made to the state-contracted

protection and advocacy agency, Disability Rights California.

The report must be made no later than the close of the

business day following the death or serious injury. The

report must include the encrypted identifier of the person

involved, and the name, street address, and telephone

number of the facility.

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DEFINITIONS

For purposes of this law, the following definitions apply.

“Physical restraint” means any behavioral or mechanical

restraint, as defined in B.“California Law,”page5.3.

“Chemical restraint” means a drug that is used to control

behavior and that is used in a manner not required to treat

the patient’s medical conditions.

“Seclusion” means involuntary confinement of a person

alone in a room or an area as defined in B.“California

Law,”page5.3.

F. Medication Error

The Board of Pharmacy has adopted regulations requiring

specified reports to be made if a medication error occurs

(including errors involving a drug used as a restraint). The

details of these reporting requirements are described in

VIII.“Medication Errors,”page8.11.

G. California Unusual Occurrence Reporting

Requirement

Title 22 requires general acute care hospitals and acute

psychiatric hospitals to report an unusual occurrence

which threatens the welfare, safety, or health of patients,

personnel, or visitors. In a letter to general acute care

hospitals and acute psychiatric hospitals (and others)

dated May 29, 2002, the California Department of Health

Services (DHS; now called the California Department of

Public Health (CDPH)) stated that a patient death that

occurs while a patient is restrained or in seclusion for

behavior management is a reportable unusual occurrence.

DHS stated that it is also a reportable unusual occurrence

when the use of restraint or seclusion for either behavior

management or for medical and surgical care may be a

cause or a contributing factor to a patient death or injury.

This report must be made to CDPH and to the local

health officer as soon as reasonably practicable by

telephone. The details of the unusual occurrence reporting

requirement are described in XI.“Reportable “Unusual

Occurrences”,”page8.14.

H. Staff Injury

If an employee is injured during the application of restraint

or seclusion, one or more reports may be required. CHA

has published a guidebook that details all reporting

requirements — to local law enforcement, to CDPH, and

to Cal/OSHA — that may be triggered when an employee

is injured by a patient. For more information about the

Healthcare Workplace Violence Prevention guidebook, or to

order, visit www.calhospital.org/wvp-guidebook.

I. TJC Sentinel Event Requirement

Under its policy on “sentinel events,” The Joint Commission

(TJC) asks hospitals to review all incidents that constitute

a sentinel event and, with some exceptions, to share

with TJC the results of this review (called a “root cause

analysis”). Hospitals are also expected to prepare action

plans to address any issues identified in the root cause

analysis. Information about TJC’s sentinel even requirement

is found under A.“Sentinel Events,”page8.5.

XVIII. STAFF TRAINING REQUIREMENTS

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

Federal law requires that staff be trained and able to

demonstrate competency in the application of restraints,

implementation of seclusion, monitoring, assessment, and

providing care for a patient in restraint or seclusion.

TRAINING INTERVALS

All staff, including contract or agency personnel, must

be trained and must demonstrate competency before

applying restraints; implementing seclusion; or monitoring,

assessing, or providing care for a patient in restraint or

seclusion.

Training must be included as part of orientation. The

required competencies must be demonstrated initially as

part of orientation and subsequently on a periodic basis

consistent with hospital policy. Hospitals have the flexibility

to identify a time frame for ongoing training based on the

level of staff competency, and the needs of the patient

population served. The results of skills and knowledge

assessments, new equipment or policies, or QAPI data

may indicate a need for targeted training or more frequent

or revised training.

Hospitals may develop and implement their own training

programs or use an outside training program.

TRAINING CONTENT

Appropriate staff must have education, training, and

demonstrated knowledge based on the specific needs of

the patient population in the following:

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1. Techniques to identify staff and patient behaviors,

events, and environmental factors that may trigger

circumstances that require the use of a restraint

or seclusion.

2. The use of nonphysical intervention skills.

CMS states that staff may prevent a patient situation

from escalating to the point of needing restraint or

seclusion by using alternative techniques to redirect a

patient, engage the patient in constructive discussion

or activity, or otherwise help the patient maintain

self-control and avert escalation. CMS states that

the use of nonphysical intervention skills does not

mean attempting a complex series of interventions

or a lengthy checklist of steps before restraining

or secluding a patient. “Rather, a whole toolbox of

possible interventions can be implemented during

the course of a patient’s treatment based upon the

assessment of an individual patient’s responses” (see

Interpretive Guidelines, Tag A-0200). CMS does not

provide any information about this “toolbox.”

3. Choosing the least restrictive intervention based on an

individualized assessment of the patient’s medical, or

behavioral status or condition.

CMS states that the underpinning of this regulation is

the concept that safe patient care hinges on looking

at the patient as an individual and assessing his or

her condition, needs, strengths, weaknesses, and

preferences. Such an approach relies on caregivers

who are skilled in individualized assessment and in

tailoring interventions to the patient’s needs after

weighing factors such as the patient’s condition,

behaviors, history, and environmental factors. CMS

recommends a document entitled, “Learning from

Each Other — Success Stories and Ideas for

Reducing Restraint/Seclusion in Behavioral Health,”

sponsored by the American Psychiatric Association,

American Psychiatric Nurses Association, the National

Association of Psychiatric Health Systems, and the

American Hospital Association. This document may be

found at www.nabh.org/nabh-resources. This website

also includes useful forms, assessment tools, and

checklists.

4. CMS requires that appropriate staff be trained, and

demonstrate competency, in the safe application and

use of all types of restraint or seclusion used in the

hospital, including training in how to recognize and

respond to signs of physical and psychological distress

(for example, positional asphyxia) in a timely manner.

5. Clinical identification of specific behavioral changes

that indicate that restraint or seclusion is no

longer necessary.

CMS states that the use of restraint or seclusion must

end at the earliest possible time regardless of the

length of time identified in the order. Staff must be

trained and demonstrate competency in their ability

to identify specific patient behavioral changes that

may indicate that restraint or seclusion is no longer

necessary and can be safely discontinued.

6. Monitoring the physical and psychological well-being

of the patient who is restrained or secluded, including

but not limited to, respiratory and circulatory status,

skin integrity, vital signs, and any special requirements

specified by hospital policy associated with the

one-hour face-to-face evaluation.

7. The use of first aid techniques and certification in

the use of cardiopulmonary resuscitation, including

required periodic recertification.

CMS notes that typical “first aid” courses may not

adequately address the immediate interventions that need

to be rendered to a restrained or secluded patient who is

in distress or injured. Training should include information

that pertains to restrained or secluded patients in distress

or injured — for example, a patient found hanging in a vest

restraint, a restrained patient choking on food, a secluded

suicidal patient found hanging, a secluded suicidal patient

who has cut himself, etc. Staff need to assess their

patient population and identify likely scenarios, develop

a first aid training that addresses those scenarios, and

provide that training to all staff who care for restrained or

secluded patients.

In addition, appropriate staff should be certified in

cardiopulmonary resuscitation.

Special Training for RN or PA to Conduct One-Hour

Face-to-Face Evaluation

Training for an RN or PA to conduct the one-hour

face-to-face evaluation would also include content to

evaluate the patient’s immediate situation, the patient’s

reaction to the intervention, the patient’s medical and

behavioral condition, and the need to continue or terminate

the restraint or seclusion. An evaluation of the patient’s

medical condition would include a complete review of

systems assessment, behavioral assessment, as well as

review and assessment of the patient’s history, medications,

most recent lab results, etc. The purpose of the one-hour

face-to-face evaluation is to complete a comprehensive

review of the patient’s condition and determine if other

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factors, such as drug or medication interactions, electrolyte

imbalances, hypoxia, sepsis, etc., are contributing to

the patient’s violent or self-destructive behavior. (See

VIII.“Face-to-Face Evaluation,”page5.14.)

WHO MUST BE TRAINED

The regulation states that “appropriate staff” must be

trained. “Appropriate staff” includes all staff, including

contract or agency personnel, that apply restraint or

seclusion, monitor, assess, or otherwise provide care for

patients in restraint or seclusion. If hospital security guards

or other nonclinical staff, as part of hospital policy, may

assist clinical staff when requested, they are also expected

to be trained and able to demonstrate competency in the

safe application of restraint and seclusion.

Physician and other LIP training requirements must also be

specified in hospital policy. At a minimum, physicians and

other LIPs who may order restraint or seclusion must have

a working knowledge of hospital policy regarding the use of

restraint and seclusion.

Hospitals have the flexibility to identify training requirements

above this minimum requirement based on the competency

level of their physicians and other LIPs and the needs of

the patient population(s) that they serve. Physicians receive

training in the assessment, monitoring, and evaluation

of a patient’s condition as part of their medical school

education. However, physicians generally do not receive

training regarding application of restraint or implementation

of seclusion as part of their basic education. Depending on

the level and frequency of involvement that a physician has

in the performance of these activities, additional training

may or may not be necessary to ensure the competency of

these individuals in this area.

TRAINER REQUIREMENTS

CMS states that individuals providing staff training “must

be qualified as evidenced by education, training, and

experience in techniques used to address patients’

behaviors for the patient populations being served.”

Trainers should demonstrate a high level of knowledge

regarding all of the requirements of the CMS regulations as

well as the hospital’s policies and procedures.

TRAINING DOCUMENTATION

Hospitals must document in staff personnel records that

both training and demonstration of competency were

successfully completed initially during orientation and on a

periodic basis consistent with hospital policy.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Does the hospital have a documented training program

for the use of restraint and seclusion interventions

employed by the hospital?

2. Does the hospital have documented evidence that all

levels of staff, including agency or contract staff, that

have direct patient care responsibilities and any other

individuals who may be involved in the application of

restraints (e.g., security guards) have been trained

and are able to demonstrate competency in the safe

use of seclusion and the safe application and use of

restraints?

3. Review and verify restraint and seclusion education

staff training documentation for all new employees and

contract staff.

4. Does the training include demonstration of required

competencies?

5. Does the hospital educational program include

techniques related to the specific patient populations

being served?

6. Does the hospital educational program address each

topic discussed in “Training Content,”page5.27?

7. Does the hospital educational program provide more

in-depth training in the areas included in the regulation

for staff members who routinely provide care to

patients who exhibit violent or self-destructive behavior

(e.g., staff who work in the emergency department or

psychiatric unit)?

8. Does the hospital educational program address the

specific requirements for the training of RNs and PAs

that the hospital authorizes to conduct the one-hour

face-to-face evaluation?

9. Observe patients in restraint or seclusion to verify safe

application of the restraint or seclusion.

10. Interview staff to assess their knowledge and

skills in each of the topics discussed in “Training

Content,”page5.27.

11. Review hospital data (i.e., incident reports, patient

injury or death reports, etc.) to identify any patterns of

patient injuries or death that may indicate that staff are

not adequately trained to recognize and respond to

patient signs of physical and psychological distress.

12. Review personnel files of individuals responsible

for providing staff education and training. Do these

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individuals possess education, training, and experience

to qualify them to teach the staff? Are they qualified to

identify and meet the needs of the patient population(s)

being served?

13. Does the hospital have a system for documenting and

ensuring that the individuals providing education and

training have the appropriate qualifications required by

this regulation?

14. Review a sample of staff personnel records, including

contract or agency staff, to determine if the training

and demonstration of competency have been

completed during orientation and on a periodic basis

consistent with hospital policy.

15. Review the hospital policy regarding restraint and

seclusion training requirements for physicians and

other LIPs. Are the minimum training requirements

addressed?

16. Review medical staff credentialing and privileging files

to determine if physicians or other LIPs involved in

restraint and seclusion activities have completed the

required training.

B. California Law

California law contains no requirements regarding staff

training. However, the law does mention some desirable

(not mandatory) topics for training programs. These include:

1. Conducting the intake assessment.

2. Utilizing strategies to engage patients collaboratively

in avoidance and management of crisis situations to

minimize the use of seclusion and restraint.

3. Using conflict resolution, effective communication,

de-escalation, and patient-centered problem solving

strategies to diffuse and safely resolve emerging

crisis situations.

4. Using individual treatment planning that identifies

risk factors, positive early intervention strategies, and

strategies to minimize time spent in seclusion and

restraint. Include patient input.

5. Using strategies to mitigate the emotional and physical

discomfort of patients in seclusion and restraint and

ensure the safety of the patient in seclusion and

restraint. Get patient input regarding what would

alleviate his or her distress.

6. Conducting an effective debriefing. Include strategies

that result in maximum participation and comfort for all

participants to identify factors that lead to the use of

seclusion and restraint and factors that would reduce

the likelihood of future incidents.

(See Health and Safety Code Section 1180.2.)

XIX. LAW ENFORCEMENT RESTRAINT OR

SECLUSION

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The use of handcuffs, manacles, shackles, other chain-type

restraint devices, or other restrictive devices applied by

nonhospital employed or contracted law enforcement

officials for custody, detention, and public safety reasons

is not governed by the federal regulation regarding

restraint and seclusion. Such devices are considered law

enforcement restraint devices and are not considered safe,

appropriate health care restraint interventions for use by

hospital staff to restrain patients. The law enforcement

officers who maintain custody and direct supervision of

their prisoner (the hospital’s patient) are responsible for

the use, application, and monitoring of these restrictive

devices in accordance with state and federal law. However,

the hospital is still responsible for an appropriate patient

assessment and the provision of safe, appropriate care to

its patient (the law enforcement officer’s prisoner).

CMS does not consider the use of weapons in the

application of restraint or seclusion as a safe, appropriate

health care intervention. For the purposes of the federal

regulation, the term “weapon” includes, but is not limited

to, pepper spray, mace, nightsticks, tazers, cattle prods,

stun guns, and pistols. Security staff may carry weapons

as allowed by hospital policy, and state and federal

law. However, the use of weapons by security staff is

considered a law enforcement action, not a health care

intervention. CMS does not support the use of weapons by

any hospital staff as a means of subduing a patient in order

to place that patient in restraint or seclusion. If a weapon is

used by security or law enforcement personnel on a person

in a hospital (patient, staff, or visitor) to protect people or

hospital property from harm, CMS expects the situation

to be handled as a criminal activity and the perpetrator be

placed in the custody of local law enforcement.

CMS states that it is not appropriate for a hospital to

routinely call upon a law enforcement agency as a means

of applying restraint or seclusion. Hospitals must have

appropriately trained clinical staff. If hospital security guards

or other nonclinical staff, as part of hospital policy, may

assist clinical staff when requested, they are also expected

to be trained and able to demonstrate competency in the

safe application of restraint and seclusion.

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©CALIFORNIA HOSPITAL ASSOCIATION

B. California Law

California law is silent regarding the use of restraint or

seclusion by law enforcement officers with respect to

hospitalized patients (with the exception of inmates in labor,

who may not be shackled; see Penal Code Sections 3407,

3423 and 6030; Welfare and Institutions Code Sections

222 and 1774).

In early 2009, the news media reported that the U.S.

Immigration and Customs Enforcement Agency (ICE)

contracted with a private California hospital to care for

mentally ill detainees. It was reported that the detainees

were kept shackled pursuant to ICE requirements, and

were denied many of their rights, such as sending and

receiving mail or having access to a phone. It was

suggested that the hospital was violating state law

regarding seclusion and restraint and denial of rights. The

argument was made that although patient’s rights can be

denied for good cause (and must be properly documented

and reported), good cause for denial of rights must be

based on an individual patient assessment, not on a

blanket policy regarding a group of patients, such as

ICE detainees.

Most of the California laws regarding restraint and seclusion

apply only to patients in acute psychiatric hospitals or in

psychiatric units of general acute care hospitals. As a

general rule, inmates and detainees who are restrained

or secluded by law enforcement officials are not admitted

to these settings. If, however, this situation arises, legal

counsel should be consulted.

XX. DOCUMENTATION REQUIREMENTS

Hospitals should document compliance with every state

and federal requirement regarding restraint and seclusion

discussed in this chapter. This portion of the chapter

describes the documentation requirements that CMS and

CDPH have listed in the “documentation” or “medical

records” portions of their regulations. However, it cannot

be emphasized enough that compliance with all of the

requirements discussed throughout this chapter should

be documented — not just compliance with the “medical

records” or “documentation” portions of the regulations.

A. Federal Law: CMS Conditions of Participation

and Interpretive Guidelines

The CMS CoP states that when restraint or seclusion is

used, there must be documentation in the patient’s medical

records of the following:

1. The one-hour face-to-face medical and behavioral

evaluation if restraint or seclusion is used to manage

violent or self-destructive behavior;

2. A description of the patient’s behavior and the

intervention used;

3. Alternatives or other less restrictive interventions

attempted (as applicable);

4. The patient’s condition or symptom(s) that warranted

the use of the restraint or seclusion; and

5. The patient’s response to the intervention(s)

used, including the rationale for continued use of

the intervention.

[42 C.F.R. Section 482.13(e)(16)]

The Interpretive Guidelines state that the patient’s behavior

should be documented in descriptive terms to evaluate

the appropriateness of the interventions used. The

documentation should include a detailed description of the

patient’s physical and mental status assessments and of

any environmental factors (e.g., physical, milieu, activities,

etc.) that may have contributed to the situation at the time

of the intervention. The patient’s condition or symptom(s)

must be identified and documented in the patient’s

medical record.

SURVEY PROCEDURES

The Interpretive Guidelines direct surveyors to consider

the following:

1. Does the patient’s medical record include

documentation of the one-hour face-to-face medical

and behavioral evaluation when restraint or seclusion is

used to manage violent or self-destructive behavior?

2. Does the patient’s medical record include a clear

description of the patient’s behavior that warranted the

use of restraint or seclusion?

3. Was the intervention employed appropriate for the

identified behavior?

4. What was the patient’s clinical response to the

intervention(s)?

5. Does the patient’s medical record document any

alternatives or less restrictive interventions attempted

by staff, if appropriate?

6. What was the effect of less restrictive interventions, if

attempted by staff?

7. Were the interventions selected appropriate to the

targeted patient behaviors?

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8. When an immediate and serious danger to the

patient or others occurred, was the more restrictive

intervention(s) effective? Could a less restrictive

intervention have been used to ensure the safety of the

patient, staff or others?

9. Does the patient’s medical record include descriptions

of the patient’s condition or symptom(s) that warranted

the use of restraint or seclusion?

10. Does the patient’s medical record include descriptions

of the impact of the intervention on the patient behavior

that resulted in the use of restraint or seclusion?

11. Does the patient’s medical record include a detailed

assessment of the patient’s response to the

intervention and a well-reasoned plan for the continued

use of restraint or seclusion?

B. California Law

Each instance of seclusion or restraint must be noted

in the patient’s medical record in accordance with the

documentation requirements regarding denials of rights

(see F.“Denial of Patient Rights,”page4.4, for more

information about documentation of denial of rights)

[Title 9, California Code of Regulations, Section 865.4].

Psychiatric units of general acute care hospitals must

record the type of restraint and the time of application and

removal [Title 22, California Code of Regulations, Section

70577(j)(5)].

General acute care hospitals must record the type of

restraint and the time of application and removal [Title 22,

California Code of Regulations, Section 70749(a)(6)]. This

regulation specifies that this information does not need to

be recorded for soft-tie restraints used for the support and

protection of the patient. The exception likely applies to

medical/surgical uses of restraints, not restraints for mental

health patients.

In addition, state licensing regulations applicable to general

acute care hospitals state that “policies and procedures

which contain competency standards for staff performance

in the delivery of patient care shall be established,

implemented, and updated as needed for each nursing

unit, including standards for the application of restraints.”

The employees’ annual evaluation must include measuring

individual performance against established competency

standards. [Title 22, California Code of Regulations,

Section 70213]

Chapter 6 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

6 Health Information Privacy Basics

I. INTRODUCTION ....................................... 6.1

A. Important Laws to Know ..............................6.1

B. Enforcement and Penalties ..........................6.3

Federal .............................................................6.3

State

................................................................6.3

II. PATIENT PRIVACY RIGHTS ....................... 6.4

III. HEALTH CARE PROVIDER OBLIGATIONS ... 6.4

IV. USE AND DISCLOSURE OF PATIENT

INFORMATION ......................................... 6.4

A. What Information is Protected? ...................6.4

B. General Rule ..................................................6.5

The Concept of Minimum Necessary .................6.5

Incidental Uses and Disclosures

........................ 6.6

Verification of Identity/Authority

.........................6.6

C. Treatment, Payment and Health Care

Operations......................................................6.6

D. Hospital Directory..........................................6.6

E. Family and Friends: Patients Covered

by CMIA

..........................................................6.7

Patient is Present and Has Decision-Making

Capacity

........................................................... 6.7

Patient is Unavailable or Incapacitated

..............6.7

F. Family and Friends: Patients Covered

by LPS

.............................................................6.7

Which Patients are Covered by These

Notification Requirements?

...............................6.8

Definitions

.........................................................6.8

Notification Obligations

.....................................6.8

Immunity from Liability

......................................6.9

G. Mental Health Advocates ..............................6.9

H. Notifying Law Enforcement Officers

of Patient Presence, Release or

Disappearance

.............................................6.10

“Holdable” Voluntary Patient ............................ 6.10

Involuntary Patient

..........................................6.10

Involuntary Patient Under Criminal

Investigation

...................................................6.10

Dangerous Felon

.............................................6.11

Criminal Defendant Determined to Be

Mentally Incompetent to Stand Trial

.................6.11

Law Enforcement Officer With A Warrant

.........6.11

Patient Had Weapon Confiscated

...................6.12

I. Minor’s Medical Records ............................6.12

General Rule: Access to Records

Corresponds to Consent for Treatment

............6.12

V. SEARCHING PATIENTS AND THEIR

BELONGINGS ........................................ 6.13

A. Culture of Safety and Right to Privacy ......6.13

B. When to Search ...........................................6.13

C. Process of Search .......................................6.14

D. Potentially Dangerous Items ......................6.14

E. Related Laws ...............................................6.14

FORMS & APPENDICES

16-1

Authorization for Use or Disclosure of Health

Information

16-2

Request to Withhold Public Release of Information

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

“S” denotes that the form is provided in English and Spanish.

6 Health Information Privacy Basics

6.1

©CALIFORNIA HOSPITAL ASSOCIATION

I. INTRODUCTION

Health information privacy law is complicated. California

health care providers must comply with many state and

federal statutes and regulations governing patient privacy.

Understanding all of them, and how they interact with

each other, is challenging and the answers aren’t always

clear, even to experienced privacy lawyers. This chapter

provides an overview of the most important laws, as well

as guidance on everyday uses and disclosures of health

information in the hospital and clinic setting. This chapter

also addresses searching patients and their belongings.

This chapter is intended to address common situations

encountered by clinical staff and management, rather

than unusual circumstances or technical areas within the

privacy officer’s purview. The hospital’s privacy officer or

legal counsel should be consulted whenever questions

arise. For privacy officers, legal counsel, and others

tasked with health information privacy compliance, the

California Hospital Association publishes the California

Health Information Privacy Manual, which describes in

detail all of the relevant laws about health information

privacy, including permissible and impermissible uses and

disclosures; technical, administrative and physical security

safeguards; risk assessment; breaches; patient access to

their information and other patient privacy rights; employee

health; administrative processes; government and private

enforcement; and penalties. For more information about

this more than 450-page manual, visit www.calhospital.org/

privacy.

A. Important Laws to Know

The important privacy laws that California health care

providers must follow are briefly described below.

1. The Health Insurance Portability and Accountability Act

(HIPAA) regulations published by the U.S. Department

of Health and Human Services (DHHS) form the

overarching federal law about medical privacy. The

regulations give patients certain rights (see II.“Patient

Privacy Rights,” page6.4) and restrict how health

care providers and payers can use and disclose patient

information. Health care providers must comply with

HIPAA and applicable state law. [45 C.F.R. parts 160

and 164]

2. The Confidentiality of Medical Information Act (CMIA) is

California’s general health information privacy law. This

law applies to all general acute care hospital patients

except for some (but not all) mental health patients.

[Civil Code Section 56 et seq.]

3. The Lanterman-Petris-Short Act (LPS) includes several

confidentiality provisions that apply to records of some

(but not all) mental health patients. The confidentiality

provisions of LPS apply to all information and records

obtained in the course of providing services to:

a. Patients who are treated or evaluated under

Welfare and Institutions Code Sections 5150-

5344. These code sections include involuntary

evaluation and treatment in a designated facility

for patients who are a danger to self or others or

gravely disabled. These patients do not include

patients who may be detained involuntarily for up

to 24 hours in a non-designated hospital on an

emergency basis (usually, but not always, in the

emergency department) under Health and Safety

Code Section 1799.111 (chapter 12 of CHA’s

Consent Manual contains a thorough description

of all of these patients); and

b. Patients who are receiving voluntary or involuntary

mental health treatment in a:

• State mental hospital;

• County psychiatric ward, facility or hospital;

• University of California psychiatric facility:

Langley Porter Psychiatric Institute and the

Neuropsychiatric Institute at UCLA. Other

University of California mental health services

providers should consult University of California

counsel regarding their status under LPS;

• Federal hospital, psychiatric hospital or unit;

• Private institution, hospital, clinic or sanitarium

which is conducted for, or that includes a

department or ward conducted for, the care

and treatment of persons who are mentally

disordered;

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©CALIFORNIA HOSPITAL ASSOCIATION

• Psychiatric health facility as described in Health

and Safety Code Section 1250.2;

• Mental health rehabilitation center as deﬁned in

Welfare and Institutions Code Section 5675;

• Skilled nursing facility with a special treatment

program service unit for patients with chronic

psychiatric impairments (see Title 22, California

Code of Regulations, Sections 51335 and

72443-72475 about such special treatment

programs);

• Community program funded by the Bronzan-

McCorquodale Act. Because it is often difﬁcult

to determine which patients received services

funded under the Bronzan-McCorquodale

Act, each program and its legal counsel

should review any funds received under the

Bronzan-McCorquodale Act to determine the

applicability, if any, of those conﬁdentiality

provisions as a result of such funding [Welfare

and Institutions Code Sections 5600-5778];

and

• Community program speciﬁed in the Welfare

and Institutions Code Sections 4000-4390 and

Welfare and Institutions Code Sections 6000-

6008.

Absent some tie-in to one of the above described

programs, LPS does not apply to other mental health

patients or their records, even though those records

may describe mental health treatment similar to what

is protected under LPS. These records are instead

subject to the Conﬁdentiality of Medical Information Act

(CMIA)

4. California’s Health and Safety Code gives special

confidentiality protection to HIV test results. This law

does not apply to a diagnosis of AIDS; it applies only to

the HIV test results, whether the results are positive or

negative. [Health and Safety Code Section 120980 et

seq.] HIV test results may be disclosed to the patient

and to other health care providers with a need to know

to diagnose or treat the patient. Hospital employees

should check with their privacy officers or legal counsel

before disclosing HIV test results to others.

5. Federal law gives special confidentiality protection to

records of substance use disorder programs. These

rules do not apply to all substance use disorder

patients; they apply only to patients served by

“federally-assisted substance use disorder programs.”

If a not-for-profit hospital has a service line identified

to the public as a substance use disorder program

or unit, or has personnel whose primary function is

the provision of substance use disorder treatment

and who are identified as such providers, the hospital

must follow these strict confidentiality rules. These

rules are described in detail in CHA’s California

Health Information Privacy Manual, available at www.

calhospital.org/privacy.

6. Federal law gives special confidentiality protection

to “psychotherapy notes,” a concept introduced by

HIPAA. “Psychotherapy notes” means:

[N]otes recorded (in any medium) by a health

care provider who is a mental health professional

documenting or analyzing the contents of conversations

during a private counseling session or a group, joint,

or family counseling session and that are separated

from the rest of the individual’s medical record.

[emphasis added]

Psychotherapy notes exclude medication prescription

and monitoring; counseling session start and stop

times; the modalities and frequencies of treatment

furnished; results of clinical tests; and any summary

of diagnosis, functional status, the treatment plan,

symptoms, prognosis, and progress to date.

A psychotherapist is not required to maintain

psychotherapy notes. Most hospitals, skilled nursing

facilities, and other institutional providers do not have

psychotherapy notes, as deﬁned in HIPAA, because

the deﬁnition requires the notes to be separate from

the rest of the medical record. If the notes are included

with the rest of the medical record, then they are not

psychotherapy notes and are not subject to the special

restrictions. A separate authorization for the disclosure

of psychotherapy notes, even for treatment purposes

(except by the provider who created the notes), is

almost always required. [42 C.F.R. Sections 164.501,

164.508(a)(2)]

7. The Patient Access to Health Records Act gives

patients the right to review, and obtain copies of, their

medical information [Health and Safety Code Section

123000 et seq.]. HIPAA has a similar provision [45

C.F.R. Section 164.524].

8. Both state and federal law require health care providers

to notify patients and government agencies if a privacy

breach occurs. Clinical staff should immediately notify

the hospital’s privacy officer if they believe a breach

has occurred or if a patient complains about an alleged

breach. The laws are complicated, and what may seem

like a breach may not, in fact, constitute a reportable

incident. On the other hand, if a breach has occurred,

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the timeline for making the required notifications is

short, and the privacy officer will want as much time

as possible to investigate, document, and report. [45

C.F.R. Section 164.402; Civil Code Section 1798.82;

Health and Safety Code Section 1280.15]

9. The law permits hospitals and other businesses to

examine a driver’s license or DMV identification card,

photocopy it, and retain the photocopy. However, a

license or ID card may be scanned or swiped only:

a. To verify the age or authenticity of the card.

b. To comply with a legal requirement.

c. To transmit to a check service company.

d. To collect or disclose information required for

reporting, investigating, or preventing fraud, abuse,

or material misrepresentation.

A hospital or other business may not retain or

use any of the information obtained by electronic

scanning or swiping for any purpose not listed

above. [Civil Code Section 1798.90.1]

10. California law contains limitations on requiring patients

or consumers to submit their Social Security number

(SSN) over the internet, as well as printing SSNs on

identification cards or on materials mailed to the holder

of the number. The law does not prevent the collection,

use or release of an SSN as required by law, or the

use of an SSN for internal verification or administrative

purposes. [Civil Code Section 1798.85]

11. California law limits the information that a business can

require a customer to provide when accepting a check

or a credit card as payment for goods and services

[Civil Code Sections 1725 and 1747.08].

California hospitals (and most other health care providers)

must comply with either the CMIA or LPS, and with all the

other laws listed above. If there is a state law and a federal

law on the same topic, under federal preemption rules,

health care providers must comply with whichever law is

more stringent — that is, the law that is more protective of

the patient’s privacy or that gives the patient greater access

to their information. Complicating matters further, providers

must comply with whichever provision of the laws is stricter.

This means if the state law is more stringent than the

federal law, with the exception of one provision, providers

must comply with the state law and the one provision in

federal law that gives patients greater privacy protection or

greater access to their own information.

B. Enforcement and Penalties

FEDERAL

The DHHS Office for Civil Rights (OCR) is responsible for

enforcing HIPAA. Any person, organization, or group that

believes a hospital or other health care provider has violated

HIPAA may file a complaint with OCR; the complainant

does not need to be the patient. Therefore, complainants

may include a provider’s employees, unions, medical staff

members, business associates, or patients, as well as

accrediting, health oversight or advocacy agencies. OCR

is also required by law to conduct random audits and

compliance reviews.

Noncompliance with the HIPAA rules has serious potential

implications. HIPAA provides for fines of up to $55,010

per violation and criminal penalties of up to 10 years in

prison. A California hospital is subject to both state and

federal penalties.

A state attorney general may also enforce HIPAA.

STATE

The California Department of Public Health (CDPH) is

responsible for investigating violations of California law in

hospitals and other health care facilities, and may assess

fines of up to $25,000 per patient, per privacy breach (with

some limits).

In addition, the CMIA authorizes several levels of

administrative fines or civil penalties, depending upon

whether a violation was negligent, knowing or willful,

or done for financial gain. The upper levels of fines are

$250,000 per violation. These penalties may be sought

by the California Attorney General, any district attorney or

county counsel, or others. A violation of CMIA may also be

punished as a misdemeanor.

There are also financial penalties available under the law for

violations of LPS and the special laws for confidentiality of

HIV test results.

Finally, a patient may recover monetary damages from

a health care provider for a violation of state health

information privacy laws. Many class action lawsuits

have been brought against providers asking for statutory

damages of $1,000 per patient whose information was

hacked or was contained in stolen computer equipment.

Although many of these lawsuits have been successfully

defended, it is clear that privacy breaches are an area of

high-dollar risk.

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II. PATIENT PRIVACY RIGHTS

State and federal laws give patients certain rights regarding

their privacy and their medical information. Patients have a

right to:

1. Obtain a written notice from their health care provider

explaining how it will use and disclose their information.

This is called the Notice of Privacy Practices.

2. Access their medical records. This means patients

can see their records, request copies, and request

a correction/amendment to their record. Limited

exceptions to this right exist; if a health care provider

believes that a patient seeing his or her own medical

record might be detrimental to the patient or another

person, the provider should consult legal counsel or

the privacy officer. Patients are not entitled to take the

original medical record, and may be monitored while

they review the record to ensure no changes are made.

3. Request that a provider not use or disclose certain

information for purposes of treatment, payment,

and health care operations. It is important to know

that although patients have the right to make these

requests, providers are generally not required to

comply. Hospital personnel should be trained that

whenever a patient makes a special request about the

privacy of their information, the hospital’s privacy officer

should be contacted. The bedside nurse or emergency

department physician should not, for example, assure

the patient that their information will not be disclosed

to a certain physician or insurance company. Only

the privacy officer should make such commitments

to patients.

4. Request that information be communicated to them in

particular ways to ensure confidentiality. For example,

the patient may request to have information sent to

work rather than their home. These requests must be

accommodated, if reasonable. Hospitals and other

health care providers should have a process in place

to document these requests, respond to them, and

implement them if reasonable.

5. Obtain an accounting of how their information has

been disclosed for purposes not related to treatment,

payment or health care operations. (See C.“Treatment,

Payment and Health Care Operations,” page6.6.)

6. Refuse to authorize the release of their information

for most purposes that are not related to treatment,

payment or health care operations. (See C.“Treatment,

Payment and Health Care Operations,” page6.6.)

7. Be notified of breaches to the extent required by law.

For more information about these patient rights, consult

your hospital’s privacy officer or legal counsel, or refer to

CHA’s California Health Information Privacy Manual.

III. HEALTH CARE PROVIDER OBLIGATIONS

Hospitals and other health care providers must:

1. Give each patient a Notice of Privacy Practices.

2. Limit the circumstances under which patient

information is used or disclosed.

3. Develop policies, procedures and systems to protect

patient privacy and allow patients to access and

correct their records.

4. Train staff on privacy policies and procedures.

5. Appoint a privacy officer to make sure privacy

procedures are developed, adopted and followed.

6. Appoint a security officer to make sure security

procedures are developed, adopted and followed.

7. Implement appropriate administrative, technical and

physical safeguards to protect patient records from

individuals who shouldn’t see them.

8. Account for specified disclosures of patient information.

9. Establish a complaint mechanism for privacy concerns.

10. Establish and enforce a system of sanctions

for employees who violate privacy policies

and procedures.

11. Establish written agreements with business associates.

12. Notify patients and government agencies of a breach

to the extent required by law.

For more information about these requirements, consult

your hospital’s privacy officer or legal counsel, or refer to

CHA’s California Health Information Privacy Manual.

IV. USE AND DISCLOSURE OF PATIENT

INFORMATION

A. What Information is Protected?

State and federal laws protect individually-identifiable health

information in every form — electronic, on paper or oral.

“Individually-identifiable health information” is health

information that identifies, or there is a reasonable basis

to believe it can be used to identify, a patient. Federal

law in particular has very detailed requirements about

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de-identified information, because computer-savvy people

can take a little bit of health information, combine it with

other publicly available data such as voter registration or

social media information, and determine to which patient

the health information pertains. Hospital staff should

consult the hospital’s privacy officer or legal counsel to

learn if a particular set of data elements is considered

individually-identifiable.

“Health information” is broadly defined to include any

information relating to the physical or mental health or

condition of a patient, the health care provided to a patient,

or payment for health care provided to a patient. This

includes medical records, billing records, and other types

of records.

It is important to understand that the restrictions on the use

and disclosure of individually-identifiable health information

apply to the hospital’s use of patient information internally,

among staff and throughout departments — not just to

disclosures of information outside the facility.

B. General Rule

In general, providers cannot use or disclose

individually-identifiable health information unless:

1. The patient completes an authorization form. An

authorization for a disclosure of medical information

must be in writing and contain several specified

elements. CHA has developed the “Authorization for

Use or Disclosure of Health Information” (CHA Form

16-1) to comply with all state and federal requirements.

If the patient is a minor, deceased, or lacks the

capacity to make health care decisions, the patient’s

legal representative may sign the authorization form.

Hospital staff should consult the privacy officer or legal

counsel about who is considered a legal representative.

2. The use or disclosure is made directly to another

health care provider for the purposes of treatment

or payment.

3. The information is used within the facility for its own

health care operations (see C.“Treatment, Payment

and Health Care Operations,” page6.6).

4. The requirements for communicating with patients’

family or friends are followed (see E.“Family and

Friends: Patients Covered by CMIA,” page6.7 and

F.“Family and Friends: Patients Covered by LPS,”

page6.7).

5. The disclosure is required by law. A health care

provider is permitted to disclose patient-identifiable

information to the extent necessary to make a

legally-mandated report, such as a report of child

abuse, communicable disease, gunshot wound or

other suspicious injury, etc. The information disclosed

must be limited to the minimum information necessary

to comply with the reporting requirement.

It is important to note that this “required by law”

permission does not mean that a health care provider

can disclose information to law enforcement ofﬁcers.

In fact, there are very strict rules about giving

information to law enforcement ofﬁcers. The hospital’s

privacy ofﬁcer or legal counsel should be consulted

before giving a law enforcement ofﬁcer any patient

information.

6. A specific provision of law permits the use or

disclosure.

There are many complicated exceptions to the general rule.

Front line clinical staff should consult the hospital’s privacy

officer or legal counsel in situations that are not listed

above.

If a question arises about whether a particular use or

disclosure is permissible, providers should remember that

obtaining a written authorization from the patient or the

patient’s legal representative is almost always a safe course

of action.

THE CONCEPT OF MINIMUM NECESSARY

HIPAA introduced the concept of “minimum necessary.”

Providers must limit their use and disclosure of

individually-Identifiable health information to the minimum

amount of information necessary to accomplish the

intended purpose of the use or disclosure. For example,

if the hospital’s auditor needs patient medical record

information to determine if a bill is accurate, the auditor

should be allowed access to only that portion of the

medical record that the bill covers. The auditor should not

be able to see the rest of the medical record.

The minimum necessary standard does not apply to:

1. Disclosures to, or requests by, a health care provider

for treatment purposes. Physicians, nurses and other

providers may need the complete medical record to

provide the best care possible.

2. Uses or disclosures made to the patient. A patient has

the right to access his or her information.

3. Uses or disclosures made according to a patient’s

written authorization. A patient is allowed to authorize

the disclosure of the entire medical record.

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Implementation of Minimum Necessary

A health care provider must identify the employees

or classes of employees who need access to health

information to carry out their duties. For each employee

or class of employees, the provider must identify the

categories of information to which access is needed and

any conditions appropriate to such access. The provider

must make reasonable efforts to limit access to the

minimum information needed.

For routine and recurring disclosures (or requests), a

provider must implement policies and procedures (which

may be standard protocols) that limit the information

disclosed (or requested from another covered entity) to the

amount reasonably necessary to achieve the purpose of the

disclosure (or request).

For all other disclosures (or requests) — that is, nonroutine

and nonrecurring — a provider must develop criteria

designed to limit the information disclosed to what is

reasonably necessary to accomplish the purpose for

which disclosure is sought, and must review each request

for disclosure on an individual basis in accordance with

those criteria.

When the minimum necessary standard applies, a provider

may not use, disclose or request an entire medical record,

except when the entire medical record is specifically

justified as the amount that is reasonably necessary to

accomplish the purpose of the use, disclosure or request.

[45 C.F.R. Section 164.514(d)]

INCIDENTAL USES AND DISCLOSURES

HIPAA recognizes that “incidental” uses and disclosures

will occur. For example, if two hospitalized patients share a

room, it is inevitable that one patient will overhear medical

information about the other. HIPAA explicitly permits

covered entities to use or disclose health information

“incident to a use or disclosure otherwise permitted or

required by” HIPAA, if the hospital has complied with the

minimum necessary standard; implemented appropriate

administrative, technical, and physical safeguards; and

made reasonable attempts to limit incidental uses and

disclosures. For example, if a nurse needs to talk to a

patient about his or her medical condition, it would be

reasonable to ask the roommate’s visitors to step outside

the room temporarily. However, it would not be necessary

to transfer the roommate to another room temporarily.

[45 C.F.R. Section 164.502(a)(1)(iii)]

VERIFICATION OF IDENTITY/AUTHORITY

Health care providers must verify the identity of any person

requesting individually-identifiable information, and their

authority to have it, if the identity or authority is not already

known to the provider. Providers must also obtain any

documentation, statements or representations (whether

oral or written) that are a condition of disclosure. In the

case of parents, guardians, or other legal representatives,

this includes verifying that the person requesting

health information is indeed the parent, guardian, or a

legal representative.

Providers should have policies and procedures to verify the

identity and authority of requestors, and to document this

was done.

C. Treatment, Payment and Health Care

Operations

A health care provider may use or disclose patient

information, without a written authorization from the patient,

for what HIPAA calls “treatment, payment, and health care

operations” (TPO).

“Treatment” means providing, coordinating or managing

a patient’s care, including consultations between providers

and referrals.

“Payment” is defined as activities related to paying or

being paid for services rendered. These include eligibility

and coverage determinations, billing, claims management,

utilization review and the like.

“Health care operations” covers a broad range of

activities such as quality assessment and improvement,

patient education and training, health practitioner training,

contracting for health care services, medical review, legal

services, auditing functions, compliance, business planning

and development, business management and general

administrative activities.

Clinical staff should consult the hospital’s privacy officer or

legal counsel if questions arise about which activities are

considered TPO.

D. Hospital Directory

State and federal health information privacy laws

significantly restrict the information that may be disclosed

without patient authorization to the public, including visitors,

florists, clergy, media and others. A patient has the right

to prevent even this restricted information from being

released. Patients should be advised of this right in the

Notice of Privacy Practices they receive upon admission to

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the hospital. If a patient objects to the release of information

to the public, the patient should be asked to complete the

“Request to Withhold Public Release of Information” (CHA

Form 16-2) or a similar form.

If the patient has not requested that information be withheld

and the request for information contains the patient’s name,

HIPAA and the CMIA allow hospitals to release:

1. The patient’s condition, described in general terms

that do not communicate specific medical information

about the individual (for example, “undetermined,”

“good,” “fair,” “critical,” etc.).

2. The patient’s location within the hospital. Release of

location is intended to facilitate visits by family and

friends, as well as delivery of gifts or flowers. Caution

should be exercised in disclosing this information over

the telephone. Precise directions (e.g., floor or room

number) are best disclosed only on a face-to-face

basis so that there is an opportunity to verify the

individual’s purpose or intended use of the information.

As a reminder, patients in psychiatric units are covered by

the Lanterman-Petris-Short Act, not the CMIA (see 3. on

page 6.1). A hospital should neither confirm nor deny that

a patient is in an acute psychiatric hospital or a psychiatric

unit of a general acute care hospital without the patient’s

authorization.

[45 C.F.R. Section 164.510(a)(1)(i)(C)]; Civil Code Section

56.16]

(See E.“Family and Friends: Patients Covered by CMIA,”

page6.7 below, about disclosures that may be made to

family and friends involved in the care of the patient.)

E. Family and Friends: Patients Covered by CMIA

Both the CMIA and HIPAA (but not LPS) permit disclosure

of limited information to a family member, other relative,

domestic partner, close personal friend, or other person

identified by the patient. Information is limited to the

information directly relevant to that person’s involvement

with the patient’s health care or payment for the care.

This rule applies to minors as well as adults. This rule

does not apply to HIV test results or information held by

federally-assisted substance use disorder programs.

Disclosure or use of health information is also permitted to

notify, or assist in the notification of (including identifying

or locating), a family member, personal representative of

the patient, domestic partner, or other person responsible

for the care of the patient, of the patient’s location, general

condition, or death.

Disclosure to family and friends is subject to the conditions

described below. [Civil Code Section 56.1007; 45 C.F.R.

Section 164.510(b)]

CAUTION: LPS information may not be disclosed under

this provision of law. If a patient is an involuntarily detained

mental health patient, or a patient in an acute psychiatric

hospital, psychiatric unit in a general acute care hospital, or

a mental health patient in a government-operated hospital

or clinic, the patient’s authorization must be obtained prior

to disclosing information to family or friends (see 3. on page

6.1).

PATIENT IS PRESENT AND HAS DECISION-MAKING

CAPACITY

Where the patient is available and has decision-making

capacity, disclosure may be made to family/friends if

the provider:

1. Obtains the patient’s verbal agreement;

2. Provides the patient with the opportunity to object to

the disclosure, and the patient does not do so; or

3. Reasonably infers from the circumstances, based upon

their professional judgment that the patient does not

object to the disclosure. However, this provision does

not apply if the provider is a psychotherapist [Civil

Code Section 56.1007(c)(2))].

PATIENT IS UNAVAILABLE OR INCAPACITATED

If the patient is not present, or the opportunity to agree

or object to the use or disclosure to family/friends cannot

practicably be provided because of the patient’s incapacity

or an emergency circumstance, disclosure may be made

if the provider, in the exercise of professional judgment,

determines the disclosure is in the best interests of the

patient. As a reminder, the provider may disclose only the

information directly relevant to the person’s involvement

with the patient’s health care, payment for the care, or

needed for notification purposes.

F. Family and Friends: Patients Covered by LPS

As a general rule, a hospital may not disclose

patient-identifiable information to family or friends without

the patient’s authorization, unless a special exception to

the law applies. The law is especially strict with respect to

mental health patients whose records are subject to the

LPS confidentiality provisions (see below for information

about which patients are covered). For these patients,

a hospital usually should not disclose even whether the

person is or has been a patient (“we can neither confirm

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nor deny that this person is or has been a patient here”)

without patient permission. However, LPS requires that

limited information be disclosed to family and others in

the situations described below. In each case, the hospital

should disclose only the minimum information necessary to

comply with the law.

WHICH PATIENTS ARE COVERED BY THESE

NOTIFICATION REQUIREMENTS?

The LPS notification requirements apply to patients who are

receiving voluntary or involuntary treatment in a:

1. Hospital designated by the county for patients who are

a danger to self or others or gravely disabled;

2. State mental hospital;

3. County psychiatric ward, facility or hospital;

4. University of California psychiatric facility: Langley

Porter Psychiatric Institute and the Neuropsychiatric

Institute at UCLA. Other University of California mental

health services providers should consult University of

California counsel regarding their status under LPS;

5. Federal hospital, psychiatric hospital or unit;

6. Private institution, hospital, clinic or sanitarium which is

conducted for, or that includes a department or ward

conducted for, the care and treatment of persons who

are mentally disordered;

7. Psychiatric health facility as described in Health and

Safety Code Section 1250.2;

8. Mental health rehabilitation center as defined in Welfare

and Institutions Code Section 5675;

9. Skilled nursing facility with a special treatment

program service unit for patients with chronic

psychiatric impairments (see Title 22, California Code

of Regulations, Sections 51335 and 72443-72475

regarding such special treatment programs);

10. Community program funded by the

Bronzan-McCorquodale Act. Because it is often difficult

to determine which patients received services funded

under the Bronzan-McCorquodale Act, each program

and its legal counsel should review any funds received

under the Bronzan-McCorquodale Act to determine the

applicability, if any, of those confidentiality provisions as

a result of such funding [Welfare and Institutions Code

Sections 5600-5778]; and

11. Community program specified in the Welfare and

Institutions Code Sections 4000-4390 and Welfare and

Institutions Code Sections 6000-6008.

Absent some tie-in to one of the above-described

programs, LPS does not apply to other mental health

patients, even though they may receive mental health

treatment similar to what is covered by LPS. These patients

and their records are instead subject to the Confidentiality

of Medical Information Act (CMIA). For example, mental

health services provided to an involuntary patient in a

private, non-designated hospital emergency department

under Health and Safety Code Section 1799.111 are

subject to the CMIA rather than LPS.

DEFINITIONS

The reporting requirements described below use the terms

“next of kin” and “reasonable attempt,” but do not define

these terms. The facility should specify by policy the order

in which relatives will be notified, and may, for example,

use the priority in which people inherit as a starting point.

Therefore, when an adult patient is admitted, the facility

could decide that it should attempt to contact one of the

following persons, in the priority stated:

1. Spouse or domestic partner

2. Adult son or daughter

3. Either parent

4. Adult brother or sister

5. Grandparents

6. Adult aunt or uncle

If the patient is a minor, the parent(s) or legal guardian

should be contacted.

The hospital should also establish in its policy what actions

constitute a “reasonable attempt” to notify the family.

NOTIFICATION OBLIGATIONS

Notifying Family and Others of Admission

A hospital must make reasonable attempts to notify an

LPS patient’s next of kin or other person designated by the

patient when he or she is admitted for inpatient services

to a 24-hour public or private health facility licensed

under Health and Safety Code Section 1250 (for example,

a general acute care hospital or an acute psychiatric

hospital), unless the patient asks that this information not

be provided. The patient must be advised by the facility that

he or she has the right to request that this information not

be provided.

The following information must be documented in the

patient’s medical record:

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1. That the patient was advised that next of kin would be

notified unless the patient asks that this notification not

be made;

2. The patient’s response to the advisement;

3. The date and circumstances under which the

notification (if any) was made or attempted;

4. The names and relationships to the patient, if any, of

persons or agencies to whom the notification was

made; and

5. The specific information disclosed.

[Welfare and Institutions Code Section 5328.1(b); see also

45 C.F.R. Section 164.512(a)]

Different notification requirements apply to patients who

arrive in the emergency department of a general acute

care hospital who are unconscious or otherwise unable to

communicate. (See CHA’s Consent Manual, chapter 1, for

further information.)

Notifying Family and Others of Inpatient’s Release,

Transfer, Illness or Death

A hospital must make reasonable attempts to notify an

LPS inpatient’s next of kin or other person designated by

the patient of the patient’s release, transfer, serious illness,

injury or death, upon the request of the family member,

unless the patient asks that this information not be provided

[Welfare and Institutions Code Section 5328.1(b); see also

45 C.F.R. Section 164.512(a)].

The hospital must advise the patient that it is required to

and will attempt to contact his or her next of kin or other

person the patient designates, to provide this information.

The hospital also must inform the patient of the right to

request that this information not be disclosed.

The following information must be documented in the

patient’s medical record:

1. That the patient was advised that next of kin would be

notified unless the patient asks that this notification not

be made;

2. The patient’s response to the advisement;

3. The date and circumstances under which the

notification (if any) was made or attempted;

4. The names and relationships to the patient, if any, of

persons or agencies to whom the notification was

made; and

5. The specific information disclosed.

Notifying Family and Others of the Patient’s Condition

Upon request of a family member of a patient (or other

person designated by the patient), a facility must tell

the family member (or the designee) of an LPS patient’s

diagnosis, the prognosis, the medications prescribed,

the side effects of medications prescribed, if any, and

the progress of the patient, if, after notifying the patient

that this information is requested, the patient authorizes

its disclosure [Welfare and Institutions Code Section

5328.1(a)].

The patient’s written authorization should be obtained. The

“Authorization for Use or Disclosure of Health Information”

form (CHA Form 16-1) or a similar form, should be

completed and placed in the patient’s medical record.

If the patient is unable to authorize the release of this

information, the hospital must document the attempt to

obtain the patient’s authorization in the medical record.

Daily efforts must be made to secure the patient’s

authorization or refusal.

However, if a request for information is made by the

spouse, parent, child or sibling of the patient and

the patient is unable to authorize the release of such

information, the requestor must be told of the patient’s

presence in the facility, except to the extent prohibited

by federal law (this last qualification was likely inserted

originally to accommodate the federal substance use

disorder confidentiality regulations, which limit disclosure

of a patient’s presence in a facility) [Welfare and Institutions

Code Section 5328.1(a); see also 45 C.F.R. Section

164.512(a)].

The following information must be documented in the

patient’s medical record:

1. The date and circumstances under which the

notification was made or attempted;

2. The names and relationships to the patient, if any, of

persons or agencies to whom the notification was

made; and

3. The specific information disclosed.

IMMUNITY FROM LIABILITY

Facilities and their employees are not liable for damages

caused, or allegedly caused, by the release of information,

or failure to release information, under this law.

G. Mental Health Advocates

Mental health advocates may have the legal authority to

access patient information and records. This authority

is described in V.“Mental Health Advocacy Programs,”

page4.7.

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H. Notifying Law Enforcement Officers of Patient

Presence, Release or Disappearance

As a general rule, a hospital may not disclose

patient-identifiable information to law enforcement officers

without the written authorization of the patient, unless a

special exception to the law applies (see chapter 6). The

law is especially strict when an officer requests information

about a mental health patient whose records are subject

to the LPS confidentiality provisions (see chapter 6

for information about which patients are covered). For

these patients, a hospital usually should not disclose

even whether the person is or has been a patient (“we

can neither confirm nor deny that this person is or has

been a patient here”). However, LPS requires that limited

information be disclosed to law enforcement officers in

the situations described below. In each case, the hospital

should disclose only the minimum information necessary to

comply with the law.

“HOLDABLE” VOLUNTARY PATIENT

If a voluntary patient who is a danger to self/others or

gravely disabled (that is, the patient meets the criteria

for involuntary commitment for 72-hour treatment and

evaluation) disappears from the hospital, the physician in

charge of the patient or the professional person in charge

of the facility or his or her designee may designate a

governmental law enforcement agency or agencies to be

notified. The whereabouts of the patient must be unknown,

and the disclosure must be necessary for the protection

of the patient or others. The hospital may also notify the

patient’s relatives. The information disclosed should be the

minimum necessary to assist in finding the patient. [Welfare

and Institutions Code Section 5328.3(a); see also 45 C.F.R.

Sections 164.508(a)(2)(ii) and 164.512(j)]

The following information must be documented in the

patient’s medical record:

1. The date and circumstances under which the

notification was made;

2. The names and relationships to the patient, if any, of

persons or agencies to whom the notification was

made; and

3. The specific information disclosed.

The law does not define the term “relatives” or specify

which relatives may be notified. It would make sense to

notify the relative(s) in the best position to find the patient

and take steps to keep the patient and others safe.

[Welfare and Institutions Code Section 5328.6]

INVOLUNTARY PATIENT

LPS-designated hospitals, state hospitals, and Veterans’

Administration facilities must notify the law enforcement

agency of the county or city in which the hospital is

located when a patient listed in one of the following

categories escapes:

1. A patient judicially committed.

2. A patient involuntarily detained under Welfare and

Institutions Code Sections 5000 to 5550. (See chapter

3 regarding involuntary detainment for mental health

evaluation and treatment.)

3. A patient who has been placed in a facility by his or her

conservator pursuant to Welfare and Institutions Code

Section 5350.

The notification must be in writing and include:

1. The name and physical description of the patient;

2. The patient’s home address;

3. The degree of dangerousness of the patient, including

specific information about the patient if he or she is

deemed likely to cause harm to himself or herself or

others; and

4. Any additional information that is necessary to

apprehend and return the patient.

The person in charge of the hospital or facility (or a

designee) may notify the law enforcement agency by

phone and follow up with written notification. The written

notification must include the time and date of the telephonic

notification, the person notified, and the person who made

the notification. [Welfare and Institutions Code Section

7325; see also 45 C.F.R. Section 164.512(a) and (f)]

INVOLUNTARY PATIENT UNDER CRIMINAL

INVESTIGATION

A hospital must notify the county behavioral health

director (or designee) and law enforcement agency upon

the discharge of a patient after a peace officer initiated a

72-hour hold and requested to be notified when the patient

was released. The peace officer must have certified in

writing at the time of detention that the facts would support

the filing of a criminal complaint against the patient. The

information disclosed must be limited to:

1. The patient’s name and address;

2. The date of admission for 72-hour evaluation and

treatment;

3. The date of certification for intensive treatment (if

applicable); and

Chapter 6 — Health Information Privacy Basics CHA

6.11

©CALIFORNIA HOSPITAL ASSOCIATION

4. The date of release.

Notification is required whether the hospital decides not to

detain the patient at all, detains him or her for the full 72

hours, or detains him or her for less than 72 hours.

(See “Notification of Release to County Behavioral Health

Director and Peace Officer,” page 3.12, regarding patients

brought to the facility for a 72-hour evaluation period.

See “Notification of Release to County Behavioral Health

Director and Peace Officer,” page 3.19, regarding patients

receiving 14-day intensive treatment.)

[Welfare and Institutions Code Sections 5152.1, 5250.1 and

5328(a)(16); see also 45 C.F.R. Section 164.512(a) and (f)]

DANGEROUS FELON

A hospital must report to the California Department of

Justice movement and identification information about a

patient committed to the California Department of State

Hospitals, a state hospital, or any other public or private

mental health facility approved by the county behavioral

health director for observation or for an indeterminate

period as a mentally disordered sex offender, a sexually

violent predator, a person committed pursuant to Penal

Code Sections 1026 (not guilty by reason of insanity) or

1370 (mentally incompetent to stand trial), or Welfare and

Institutions Code Section 5300 (imminently dangerous). The

information that may be disclosed is limited to:

1. Patient’s name and address;

2. Fingerprints;

3. Dates of admission and discharge;

4. Date of escape or return from escape;

5. Date of any home leave, parole, or leave of

absence; and

6. The county in which the person will reside upon

release, if known.

[Welfare and Institutions Code Section 5328.2; see also

45 C.F.R. Section 164.512(a) and (f)(1)(i)]

CRIMINAL DEFENDANT DETERMINED TO BE

MENTALLY INCOMPETENT TO STAND TRIAL

A hospital must report the disappearance or transfer

between state hospitals of a patient who is a criminal

defendant who was committed following a determination of

incompetency to stand trial with respect to a pending felony

charge involving death, great bodily harm, or a serious

threat to the physical well-being of another person [Welfare

and Institutions Code Section 5008(h)(1)(B); Penal Code

Section 1370].

Notice of the disappearance or transfer must be made to:

1. The court initially ordering the patient’s commitment;

2. The district attorney for the county that ordered the

commitment; and

3. Governmental law enforcement agencies designated

by the physician in charge of the patient or the person

in charge of the facility.

This notice must be made within 24 hours of the patient’s

disappearance or transfer.

[Welfare and Institutions Code Section 5328.3(b)(1); see

also 45 C.F.R. Section 164.512(a) and (f)]

The following information must be documented in the

patient’s medical record:

1. The date and circumstances under which the report

was made;

2. The names and relationships to the patient, if any,

of persons or agencies to whom the report was

made; and

3. The specific information disclosed.

[Welfare and Institutions Code Section 5328.6]

LAW ENFORCEMENT OFFICER WITH A WARRANT

A facility must advise a law enforcement officer who

personally lodges a warrant of arrest or an abstract of such

a warrant showing that the person sought is wanted for a

serious felony (as defined in Penal Code Section 1192.7) or

a violent felony (as defined in Penal Code Section 667.5),

whether the person named in the arrest warrant is currently

in the facility. The information to be disclosed is limited to

whether or not the person named in the warrant is in the

facility.

An officer may not enter the facility to arrest the person

without obtaining a valid search warrant or the permission

of the facility.

For purposes of this law, “facility” means:

1. A state hospital as defined in Welfare and Institutions

Code Section 4001;

2. A general acute care hospital as defined in Health and

Safety Code Section 1250(a), solely with regard to

information pertaining to a person with mental illness

subject to LPS;

3. An acute psychiatric hospital as defined in Health and

Safety Code Section 1250(b);

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©CALIFORNIA HOSPITAL ASSOCIATION

4. A psychiatric health facility as defined in Health and

Safety Code Section 1250.2;

5. A mental health rehabilitation center as defined in

Welfare and Institutions Code Section 5675; and

6. A skilled nursing facility with a special treatment

program for individuals with mental illness, as

described in Title 22, California Code of Regulations,

Sections 51335 and 72445-72475.

[Welfare and Institutions Code Section 5328(a)(20); see also

45 C.F.R. Section 164.512(a) and (f)]

PATIENT HAD WEAPON CONFISCATED

A hospital must report the release of a patient who had a

weapon confiscated to the confiscating law enforcement

agency. (See “Reporting to Confiscating Law Enforcement

Agency,” page 7.37.)

I. Minor’s Medical Records

In general, state and federal health information privacy

laws apply equally to the records of adults and the records

of minors. Minors’ health information enjoys the same

legal privacy protections as that of adults, and the health

information of minors may generally be used and disclosed

in the same ways as that of adults. However, the law

often gives parents or guardians the ability to exercise the

privacy rights of minors on their behalf. This is not always

the case, though, as described more fully below. [45 C.F.R.

Section 164.502(g); Civil Code Section 56.11(c); Health and

Safety Code Sections 123110 and 123115; Welfare and

Institutions Code Section 5328(a)(4)]

Note that disclosures may be made to family and close

personal friends of minors as described In E.“Family and

Friends: Patients Covered by CMIA,” page6.7.

GENERAL RULE: ACCESS TO RECORDS

CORRESPONDS TO CONSENT FOR TREATMENT

The laws governing who may access a minor’s medical

information and disclose a minor’s medical information

to third parties correspond with the laws governing who

may consent to the treatment that the information covers.

Chapter 2 describes the laws about minors’ consent

to treatment.

Access to a minor’s medical and dental records may not

be denied to a parent solely because that parent is not

the minor’s custodial parent [Family Code Section 3025].

However, this law does not give noncustodial parents the

right to access medical records where the minor has the

legal authority to consent to the treatment.

Special laws apply to records of dependent children of the

juvenile court and foster children. The hospital’s privacy

officer or legal counsel should be consulted.

Minor Has Legal Authority to Consent to the Treatment

If the minor has the authority to consent to medical

treatment under state law, then the minor is generally the

person authorized to have access to the records regarding

the treatment, and to decide whether the records may

be released to others (including the parent or other legal

representative). This is true even where the parent or other

legal representative, as a practical matter, solicits and

consents to the treatment. However, the minor may request

that the parent or other legal representative be treated

as the minor’s personal representative under HIPAA. This

means that the minor can request that the parent be told

about the minor’s health conditions and have access to the

minor’s record.

Exceptions. There are several situations in which the minor

has the legal authority to consent to medical treatment, but

the provider is authorized, or required, to provide specified

information to the parents. These situations involve self-

sufficient minors, minor victims of sexual assault, minors

receiving outpatient mental health treatment or residential

shelter services, and minors receiving substance use

disorder treatment. Chapter 2 contains more information

about these situations.

Minor Does Not Have Legal Authority to Consent to the

Treatment

If the parent (or other legal representative) has the authority

to consent to medical treatment for a minor, then the parent

is generally the person authorized to have access to the

minor’s records about the treatment, and to decide whether

the records may be released to others. Three exceptions

are described below.

Exception: Parent Assents to Confidentiality. A parent

(or other legal representative) may assent to an agreement

of confidentiality between a health care provider and the

minor with respect to a health care service for which the

minor does not have the legal authority to consent. In this

case, the provider may not disclose information to the

parent without the minor’s authorization.

Exception: Access by Parent Would Be Detrimental

to Minor. A health care provider may deny a parent (or

other legal representative) access to the minor’s records,

even though the parent had the authority to consent to

the treatment, if the provider determines that access to

Chapter 6 — Health Information Privacy Basics CHA

6.13

©CALIFORNIA HOSPITAL ASSOCIATION

the records by the parent would have a detrimental effect

on the provider’s professional relationship with the minor

patient, or the minor’s physical safety or psychological

well-being. The decision of the health care provider about

whether or not to make the minor’s records available will

not result in any liability to the provider, unless the decision

is found to be in bad faith.

Exception: Dependent Child of the Juvenile Court/

Foster Child. A minor may be removed from the physical

custody of his or her parent or guardian by the juvenile

court because the minor has suffered, or there is a

substantial risk that the minor will suffer, abuse or harm.

Such a minor is called a “dependent child of the court” for

a foster child. A psychotherapist may not disclose mental

health information about the minor to the parent, or to

third parties based on the parent’s authorization. For a

detailed discussion of this law, see CHA’s California Health

Information Privacy Manual or Minors and Health Care Law

Manual.

Cautions

“Mixed” Medical Record. A minor’s medical record may

contain information about treatment that the minor may

consent to, and information about treatment that the parent

or other legal representative must consent to. In such

cases, the health care provider should take extra care to

ensure that records are released appropriately. Records

released to the wrong person, or at the wrong person’s

request, may constitute a privacy breach.

Billing for Services. If a minor has the legal authority to

consent to medical treatment, then the minor is responsible

for payment. Health care providers should establish a

system to ensure that they do not bill parents for services

for which the minor may lawfully consent, as this may be

considered a breach of the minor’s privacy rights (unless

the minor’s consent to bill is obtained). The provider may bill

insurance companies — it is the insurer’s responsibility to

insure that Explanation of Benefits (EOB) forms are not sent

to parents for services the minor can consent to.

Medi-Cal has a special program to pay for some services

for which minors may consent regardless of parental

income or assets, and without contacting the parents.

(See C.“Financial Responsibility for Treatment of Minors,”

page2.25.)

V. SEARCHING PATIENTS AND THEIR

BELONGINGS

A. Culture of Safety and Right to Privacy

Hospitals are responsible for keeping their patients and

employees safe. (See, for example, 42 C.F.R Section

482.13(c)(2) and Title 8, California Code of Regulations,

Section 3342.) At times, this may require searching a

patient and his or her belongings.

Hospitals should have a form and a process to document

the belongings patients bring to the hospital — mundane

items as well as valuables — and where they will be

kept (such as at the patient’s bedside or in the hospital’s

safe). Chapter 20 of CHA’s Consent Manual describes

the legal limitations on a hospital’s liability for patients’

personal belongings and includes a suggested process

for inventorying and documenting belongings. Chapter 11

of CHA’s Consent Manual contains sample language for

the hospital’s “Conditions of Admissions” form informing

the patient that the hospital is not liable for the patient’s

personal articles that are not deposited with the hospital

for safekeeping (such as eyeglasses, dentures, hearing

aids, cell phones, laptops, etc.). This portion of this manual

addresses the purposeful search of patients and their

belongings for potentially dangerous items rather than the

routine cataloguing of patients’ belongings.

There is no state or federal law specifically addressing

patient searches. However, state and federal laws

acknowledge that patients have a general right to privacy.

This right at times must give way to the hospital’s obligation

to keep its patients and employees safe. Hospitals may

wish to develop and implement a patient search policy

to guide clinicians in the hospital’s requirements for, and

process of, searching patients and their belongings. The

policy should address situations where a patient does not

cooperate with a search.

B. When to Search

Health care facilities or units that care for patients who

have been detained as a danger to self or others or

gravely disabled will generally search all patients and their

belongings. Even if a particular patient is not considered to

be potentially dangerous, the hospital cannot take the risk

that another patient in the same room or common area will

obtain a potentially harmful item.

Health care facilities or units that do not care for patients

who may be a danger to self or others or gravely

disabled will usually conduct searches only upon specific

CHA Mental Health Law Manual 2019

6.14

©CALIFORNIA HOSPITAL ASSOCIATION

justification. These facilities may wish to document the

justification in the patient’s medical record or include a

space to document the justification on a search/inventory

form they develop.

If the patient has (or if there is a suspicion that a patient

has) firearms or other dangerous weapons, hospital

policy may require that staff contact security and/or law

enforcement immediately. Clinical staff should not be put

in the position of attempting to remove weapons from a

patient.

C. Process of Search

The patient should be informed that the hospital is required

to keep the patient, other patients, staff and visitors safe,

and that any belongings not sent home with family or

friends may be searched to remove any objects that may

be used in an unsafe or disruptive manner. In addition,

hospitals are required to protect the privacy of other

patients, so the use of cell phones and cameras may be

restricted. Efforts should be made to accomplish the search

in a consensual, non-forcible manner.

Hospital policy should describe when a full search is

required (as opposed to having the patient empty his

or her pockets and submit to a “patdown”). If a full

search is necessary, hospitals typically have the patient

remove all street clothing and change into a paper or

cloth gown, putting their clothing and other belongings

into a bag provided by the hospital. The patient should

be given as much privacy to undress as is safe. An

employee who observes the patient should be of the

same gender as the patient. A hospital employee will then

inventory the possessions (including the contents of any

suitcases, purses and bags). If the patient is able and

willing to cooperate, this should be done in the presence

of the patient. Hospitals often require that two staff

members participate in the search; both should sign the

inventory form.

If a patient wishes to wear his or her own clothes while

hospitalized, the searched clothing may be returned to the

patient if it is safe (no drawstrings, belts, neckties, etc.). If

the patient wishes a friend or family member to take home

any items, this should be documented. The hospital may

wish to have the patient or family member sign for the

item(s) taken home. The patient should be told where the

belongings will be kept and how and when he or she may

access them.

A body cavity search is generally performed only when

the attending physician believes that this level of search is

warranted. This type of search should only be conducted

by a physician, usually in the presence of a second

clinician. At least one of the clinicians should be the same

gender as the patient.

If a patient refuses to cooperate with a needed search, and

holding or restraint is necessary to accomplish it, staff must

follow the hospital restraint policy. Chapter 5 describes

all state and federal laws governing the use of seclusion

and restraint.

The search should be documented so that it is not

unnecessarily repeated.

D. Potentially Dangerous Items

Hospitals should develop a policy about storage,

disposition or destruction of weapons, legal or

illegal drugs, or other potentially harmful objects or

substances encountered.

E. Related Laws

Mental health patients covered by the

Lanterman-Petris-Short Act have certain rights, including

the right to wear their own clothing; the right to have

access to storage space for personal belongings; and the

right to keep and use their own personal possessions,

including toilet articles. These rights may be denied for

good cause. There are documentation and reporting

requirements when rights are denied. A complete

description of mental health patient rights is found in

chapter 4.

In addition, certain mental health patients are prohibited by

law from possessing firearms and other deadly weapons

for a specified period of time after their treatment. The law

requires hospitals to report these patients to the California

Department of Justice. Chapter 7 contains complete

information about weapons prohibitions laws.

Chapter 7 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

7 Reporting Assaults, Potentially

Dangerous Patients and Firearms

Prohibitions

I. REPORTS REQUIRED BY LAW .................. 7.1

A. Scope of Chapter...........................................7.1

B. Confidentiality Considerations .....................7.1

Child Abuse ...................................................... 7.1

Other Abuse

.....................................................7.1

C. Informing the Patient of Reporting ..............7.1

D. Summary of Assault and Abuse

Reporting Requirements

...............................7.2

II. STATUTORY DUTY TO REPORT CERTAIN

INJURIES AND CONDITIONS..................... 7.2

A. Nature of the Duty to Report ........................7.2

B. Failure to Report ............................................ 7.2

Criminal Liability ................................................ 7.2

Civil Liability

......................................................7.2

III. REPORTING INJURIES BY FIREARM OR

ASSAULTIVE OR ABUSIVE CONDUCT

(“SUSPICIOUS INJURIES”)

........................ 7.3

A. Who Must Report...........................................7.3

B. Reports Required to be Made ......................7.3

Related Reporting Requirements .......................7.3

C. Definitions ......................................................7.4

D. Timing and Form of Report ..........................7.4

E. Notification of Patient/Victim That

Report Will be Made

......................................7.5

F. Medical Record Documentation ..................7.5

G. Immunity From Liability ................................7.5

H. Confidentiality ................................................7.5

IV. SEXUAL ASSAULT AND RAPE ................... 7.5

A. Reporting Requirements ...............................7.5

B. Examination or Referral of Victims ..............7.5

C. Required Examination Report Forms ..........7.6

Forms ...............................................................7.6

D. Consent to the Forensic Examination .........7.6

E. Protocol for Examination and

Treatment of Victim

.......................................7.6

Informational Card ............................................7.6

Postcoital Contraception

...................................7.6

Sexual Assault Counselor

..................................7.6

Notify Rape Victim Counseling Center

...............7.7

Opportunity to Shower/Bathe

............................7.7

Notify Law Enforcement Agency

........................7.7

F. Confidentiality ................................................7.7

G. Forensic Exam of Suspect ............................7.7

V. CHILD ABUSE AND NEGLECT ................... 7.8

A. Basic Reporting Requirement ......................7.8

Unsuitable Home ..............................................7.8

Emotional Damage

...........................................7.8

B. Definitions ......................................................7.8

C. Persons Required or Permitted to

Report

..........................................................7.10

Mandated Reporters ....................................... 7.10

Voluntary Reporters

........................................7.11

Selection of a Person to Report

......................7.11

D. Reporting to Law Enforcement ..................7.11

Content of Report ........................................... 7.11

How Reports are Made

................................... 7.12

Forensic Medical Reports

...............................7.12

Consent for Abuse-Related Exams

..................7.12

E. Special Situations Regarding Reporting ...7.13

When a Child Seeks Treatment for a

Sexually Transmitted Disease, Pregnancy

or Abortion

.....................................................7.13

When Treating Substance Use Disorder

Patients

..........................................................7.14

Maternal Substance Abuse

.............................7.14

Safe Surrender of a Newborn

..........................7.15

Homeless Children

..........................................7.15

F. Privileges Inapplicable ................................7.15

G. Disclosure and Follow-Up Procedures ......7.16

Disclosure to Investigator ...............................7.16

Disclosure to Licensing Agency

.......................7.17

Chapter 7 — Contents

©CALIFORNIA HOSPITAL ASSOCIATION

CHA Mental Health Law Manual 2019

H. Immunity From Liability ..............................7.17

Mandated Reporters ....................................... 7.17

Voluntary Reporters

........................................7.18

Immunity for Providing Access to the Victim

....7.18

Immunity for Photographing of Suspected

Abuse

.............................................................7.18

I. Confidentiality of Reports ...........................7.18

J. Sanctions for a Failure to Report ...............7.18

K. Employer Obligations ..................................7.19

Obtain Employees’ Acknowledgment of

Reporting Obligations

.....................................7.19

Train Employees

.............................................7.19

VI. ABUSE OF ELDERS AND DEPENDENT

ADULTS

................................................ 7.19

A. Introduction..................................................7.19

Who is an Elder or Dependent Adult? ..............7.20

B. Definitions ....................................................7.20

C. Mandatory Reporting of Abuse ..................7.23

Mandated Reporters ....................................... 7.23

What Triggers Reporting Obligation

................. 7.24

D. Nonmandated Reporting ............................7.24

By Mandated Reporters .................................. 7.25

By Other Persons

...........................................7.25

E. Making Reports ...........................................7.25

To Whom Reports are Made; Time Frames ...... 7.25

Telephone or Internet Report

...........................7.26

Written Report

................................................7.26

Selection of a Person to Report

......................7.27

F. Notification of Patient/Victim That

Report Will be Made

....................................7.27

G. Forensic Medical Reports ...........................7.27

Documentation in the Medical Record ............. 7.27

H. Sanctions for a Failure to Report ...............7.27

I. Immunity From Liability ..............................7.28

Providing Access to the Victim ........................ 7.28

Photographing of Suspected Abuse

................7.28

Attorneys’ Fees

...............................................7.28

Employers

......................................................7.28

J. Confidentiality of Reports; Disclosures .....7.28

Disclosure of Information Regarding Abuse .....7.29

Disclosure of Reporter’s Identity

...................... 7.29

K. Employees’ Acknowledgment of

Reporting Obligations

.................................7.29

L. Employer Obligation to Train

Employees

....................................................7.29

M. Federal Requirements ................................. 7.30

Reporting .......................................................7.30

Notifying Employees and Others of

Reporting Obligations

.....................................7.30

Nonretaliation and Signage

.............................7.30

N. Detention of Endangered Adults ................7.30

VII. INJURY OR CONDITION IN A PATIENT

RECEIVED FROM A LICENSED HEALTH

FACILITY RESULTING FROM NEGLECT

OR ABUSE

............................................. 7.31

A. Statutory Duty of Hospital and

Physician to Report

.....................................7.31

Contents of Report .........................................7.31

Notification of Patient/Victim That Report

Will Be Made

..................................................7.31

B. Optional Reporting by Nurses and

Social Workers

.............................................7.31

C. Immunity From Liability ..............................7.31

VIII. SCREENING FOR DOMESTIC

VIOLENCE ........................................... 7.32

A. Screening Policies .......................................7.32

B. Domestic Violence Indicators ....................7.32

C. Reporting Requirements ............................. 7.32

D. Forms ............................................................7.33

IX. POTENTIALLY DANGEROUS PATIENTS:

DUTY TO WARN POTENTIAL VICTIMS

AND NOTIFY LAW ENFORCEMENT

.......... 7.33

A. Duty to Warn Potential Victims ..................7.33

B. Duty to Notify Law Enforcement

Agency

..........................................................7.33

C. Immunity From Liability ..............................7.34

Immunity for Psychotherapists .......................7.34

Immunity for Psychotherapists and Others

......7.35

D. Documenting Decisions ............................. 7.35

X. NOTIFYING LAW ENFORCEMENT

OFFICERS OF PATIENT PRESENCE,

RELEASE OR DISAPPEARANCE

.............. 7.36

©CALIFORNIA HOSPITAL ASSOCIATION

Chapter 7 — Contents

Chapter 7 — Reporting Assaults, Potentially Dangerous Patients and Firearms Prohibitions CHA

FORMS & APPENDICES

13-4 Notice to Law Enforcement Agency: Release of

Person From Hospital From Whom a Firearm or

Other Deadly Weapon Was Conﬁscated

13-5

Notice to Patient: Procedure for Return of

Conﬁscated Weapon(s)

19-2 Employee Acknowledgment of Child Abuse and

Neglect Reporting Obligations

19-4 Employee Acknowledgment of Elder and

Dependent Adult Abuse Reporting Obligations

19-A Assault and Abuse Reporting Requirements

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

“S” denotes that the form is provided in English and Spanish.

XI. PATIENTS PROHIBITED FROM

POSSESSING FIREARMS OR OTHER

DEADLY WEAPONS

................................ 7.36

A. Prohibition Against Possessing or

Purchasing a Firearm or Other Deadly

Weapon

........................................................7.36

B. Persons Subject to the Prohibition ...........7.36

C. Reporting Requirements ............................. 7.37

Reporting to California Department of

Justice

............................................................7.37

Reporting to Confiscating Law Enforcement

Agency

........................................................... 7.37

D. Patient Notification Obligations .................7.37

Notice to Patient ............................................. 7.37

Procedure for Return of Weapon

.....................7.38

E. Confidentiality Considerations ...................7.38

F. Immunity From Liability ..............................7.38

7.1

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7 Reporting Assaults, Potentially

Dangerous Patients and Firearms

Prohibitions

I. REPORTS REQUIRED BY LAW

A. Scope of Chapter

Hospitals and other health care providers are required by

law to make certain reports, many of which arise in the

context of mental health services. This chapter addresses

the laws that require reporting of assault and abuse,

including injuries by deadly weapon, rape, child abuse,

elder abuse, dependent adult abuse and injuries/conditions

resulting from abuse or neglect found in a patient received

from a health facility, such as a skilled nursing or community

care facility. These reports must be made whether the

patient is assaulted inside or outside the hospital, if the

triggers for the reporting requirement are met.

NOTE: This manual does not address required reporting of

injured employees to Cal/OSHA, law enforcement agencies,

or CDPH. CHA publishes other guidebooks and manuals

that address employer obligations, including Healthcare

Workplace Violence Prevention and The Cal/OSHA

Safe Patient Handling Regulation guidebook. Visit www.

calhospital.org/publications for information about other

CHA publications.

B. Confidentiality Considerations

State and federal health information privacy laws permit

the disclosure of patient-identifiable information to report

suspicious injuries and suspected abuse as described in

this chapter [45 C.F.R. Section 164.512(a) and (c); Civil

Code Section 56.10(c)(14) and (22)]. The special restrictions

that apply to certain mental health patient information and

records, federally-assisted substance use disorder program

records, and HIV test results must be followed, if applicable

(see chapter 6). In all cases, disclosure should be limited

to the minimum amount of information necessary to fulfill

the reporting requirement. Specifics about the patient’s

diagnosis, medications, and other details are ordinarily not

required to be disclosed to fulfill reporting obligations.

CHILD ABUSE

HIPAA contains a specific provision allowing disclosure

of protected health information (PHI) to appropriate

government authorities authorized by law to receive

reports of child abuse or neglect [45 C.F.R. Section

164.512(b)(1)(ii)].

OTHER ABUSE

HIPAA authorizes disclosure of information about

individuals reasonably believed to be victims of abuse,

neglect or domestic violence to government authorities

legally authorized to receive such reports as follows:

1. To the extent required by law; or

2. If the individual agrees to the disclosure; or

3. To the extent disclosure is expressly authorized by law

and either:

a. Disclosure is necessary to prevent serious harm to

the individual or other potential victims; or

b. The individual is unable to agree to due to

incapacity, the government authority represents

that the PHI is not intended to be used against the

individual, and an immediate enforcement activity

depends upon the disclosure and would be

materially and adversely affected by waiting until

the individual is able to agree to the disclosure.

[45 C.F.R. Section 164.512(c)(1)]

Therefore, if state law requires a report, it may be made. If

state law merely authorizes (but does not require) a report,

it may be made only if the criteria in paragraph 3.a. or 3.b.

are satisfied.

C. Informing the Patient of Reporting

If the patient was a victim of abuse, neglect or domestic

violence (except child abuse or neglect), the health care

provider must promptly inform the patient that a report has

been or will be made, unless:

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1. The provider believes, in the exercise of professional

judgment, that informing the patient would place him

or her at risk of serious harm; or

2. The provider would be informing a personal

representative, and the provider reasonably believes

the personal representative is responsible for the

abuse, neglect or other injury, and that informing the

personal representative would not be in the patient’s

best interest as determined by the provider in the

exercise of professional judgment. [45 C.F.R. Section

164.512(c)(2)]

Verbal notification to the patient is sufficient. A report

must be made even if the patient objects. The health

care provider may wish to suggest that the victim go to

a protected environment due to the risk of the abuser’s

retaliation after the report is made.

If the patient was not a victim of abuse, neglect or

domestic violence (for example, the patient was shot by

accident or attempted suicide), the patient need not be

notified that a report has been or will be made.

D. Summary of Assault and Abuse Reporting

Requirements

CHA has included a table at the end of this manual

titled “Assault and Abuse Reporting Requirements”

(CHA Table 19-A) summarizing assault and abuse

reporting requirements.

II. STATUTORY DUTY TO REPORT CERTAIN

INJURIES AND CONDITIONS

A. Nature of the Duty to Report

California law imposes a duty on hospitals and physicians

to make oral and written reports to local authorities when

a person comes, or is brought to, a hospital, or is under

the professional care of a physician, and the person is

suffering from:

1. An injury caused by a firearm or assaultive or abusive

conduct (see III.“Reporting Injuries by Firearm or

Assaultive or Abusive Conduct (“Suspicious Injuries”),”

page7.3);

2. Sexual assault/rape (see IV.“Sexual Assault and Rape,”

page7.5);

3. Child abuse (see V.“Child Abuse and Neglect,”

page7.8);

4. Abuse of elders and dependent adults (see VI.“Abuse

of Elders and Dependent Adults,” page7.19);

5. An injury or condition resulting from neglect or abuse

in a patient transferred from another health facility (see

VII.“Injury or Condition in a Patient Received From

a Licensed Health Facility Resulting From Neglect or

Abuse,” page7.31).

In addition, hospitals must report violence against hospital

personnel in specified circumstances. These reporting

requirements are described in CHA’s Healthcare Workplace

Violence Prevention guidebook. Go to www.calhospital.org/

wvp-guidebook for more information or to order.

B. Failure to Report

CRIMINAL LIABILITY

A person required to report injuries by firearms or by

assaultive or abusive conduct (see III.“Reporting Injuries

by Firearm or Assaultive or Abusive Conduct (“Suspicious

Injuries”)” below) but who fails to do so is guilty of a

misdemeanor, punishable by imprisonment in the county

jail not exceeding six months or by a fine not exceeding

$1,000, or both.

A mandated reporter who fails to report an incident of

known or reasonably suspected child abuse or neglect

(see V.“Child Abuse and Neglect,” page7.8) is also

guilty of a misdemeanor (same punishment as above). The

law contains similar penalties for failure to report elder

or dependent adult abuse (see VI.“Abuse of Elders and

Dependent Adults,” page7.19).

[Penal Code Sections 11162 and 11166; Welfare and

Institutions Code Section 15630(h)]

CIVIL LIABILITY

In Landeros v. Flood, 17 Cal.3d 399 (1976), the California

Supreme Court ruled that an abused child may recover

damages for subsequent injuries suffered at the hands of

his or her parents, from a hospital or physician if it can be

proven that the hospital or physician knew, or should have

known, that the child was a victim of child abuse or neglect,

but failed to report the abuse in accordance with the law.

This ruling may be extended to other situations, such as

imposition of civil liability for failure to report elder abuse or

an injury or condition resulting from neglect or abuse in a

patient transferred from another health facility.

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III. REPORTING INJURIES BY FIREARM OR

ASSAULTIVE OR ABUSIVE CONDUCT

(“SUSPICIOUS INJURIES”)

Health practitioners employed by specified entities are

required to make reports to a local law enforcement agency

when they treat persons with specified injuries (sometimes

called “suspicious injury reports”). Additionally, every

physician treating such persons also has a duty to make

a report, even if the physician is not an employee. [Penal

Code Sections 11160 and 11161]

A. Who Must Report

Reports must be made by:

1. A health practitioner employed in a health facility,

clinic, physician’s office, local or state public health

department, local government agency, or a clinic or

other type of facility operated by a local or state public

health department; and

2. A physician who has an injured patient under his or her

charge or care.

For purposes of this law, “employed by a local government

agency” includes an employee of an entity under contract

with a local government agency to provide medical services.

This would include paramedics and emergency medical

technicians working for ambulance companies or hospitals

that have a contract with a local government agency. [Penal

Code Section 11160(i)]

The reporting duties under this law apply to each individual.

However, when two or more persons who are required

to report are present and jointly have knowledge of a

reportable event, they may agree among themselves to

report as a team and make a single report. The team may

mutually select a member of the team to make a report by

telephone and a single written report. The written report

must be signed by the selected member of the reporting

team. A member who has knowledge that the member

designated to report has failed to do so must thereafter

make the report.

California’s legislative counsel has opined that licensed

clinical social workers are not required to report suspicious

injuries because they do not provide medical services for a

physical condition [Opinion dated 4-1-98].

No supervisor or administrator may impede or inhibit the

reporting duties required under the law, and no person

making a report may be subject to any penalties for making

the report. However, internal procedures to facilitate

reporting and apprise supervisors and administrators of

reports may be established. The internal procedures must

not require any employee required to make a report to

disclose his or her identity to the employer.

B. Reports Required to be Made

A report must be made when a health practitioner, in his

or her professional capacity or within the scope of his or

her employment, provides medical services for a physical

condition to a patient whom he or she knows or reasonably

suspects is a person:

1. Suffering from any wound or other physical

injury where the injury is by means of a firearm,

whether inflicted by the patient him/herself or by

another person.

2. Suffering from any wound or other physical injury

inflicted upon the person where the injury is the result

of assaultive or abusive conduct.

[Penal Code Section 11160]

The duty to report arises where the health practitioner

provides medical services to a patient for any physical

condition, not just the condition or injury arising from the

assault, battery or firearm incident. A report must be made

even if the injury is not serious. So, for example, if a patient

in a mental health facility is assaulted by another patient

and requires any type of treatment for a physical injury –

even if relatively minor — a report must be made.

A report must also be made by every physician who has

such a person under his or her charge or care [Penal Code

Section 11161(a)].

RELATED REPORTING REQUIREMENTS

If a patient or staff member is assaulted or abused in

a health facility and medical services are provided to

treat the injury, a report must be made under the law

discussed above as well as the laws that are specific to

violence against hospital personnel (see CHA’s Healthcare

Workplace Violence Prevention guidebook for more

information). If death or significant injury occurs to a patient

or staff member resulting from a physical assault on the

grounds of a facility, an adverse event must be reported

to the California Department of Public Health (CDPH) (see

VII.“CDPH Adverse Events Reporting,” page8.7), as well

as reporting under the law described above.

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C. Definitions

“Assaultive or abusive conduct” includes any of the

following offenses, as they are defined in the Penal Code:

1. Murder

2. Manslaughter

3. Mayhem

4. Aggravated mayhem

5. Torture

6. Assault with intent to commit mayhem, rape, sodomy

or oral copulation

7. Administering controlled substances or anesthetic to

aid in commission of a felony

8. Battery

9. Sexual battery

10. Incest

11. Throwing any vitriol, corrosive acid or caustic chemical

with intent to injure or disfigure

12. Assault with a stun gun or taser

13. Assault with a deadly weapon, firearm, assault weapon

or machine gun, or by means likely to produce great

bodily injury

14. Rape

15. Spousal rape

16. Procuring any female to have sex with another man

17. Child abuse or endangerment

18. Abuse of spouse or cohabitant

19. Sodomy

20. Lewd and lascivious acts with a child

21. Oral copulation

22. Sexual penetration by a foreign object

23. Elder abuse

24. An attempt to commit any crime specified in the

offenses listed above.

[Penal Code Section 11160(d)]

“Health practitioner” is defined in the law to include:

1. A physician, surgeon, psychiatrist, psychologist,

dentist, resident, intern, podiatrist, chiropractor,

licensed nurse, dental hygienist, optometrist, marriage

and family therapist, clinical social worker or any other

person who is currently licensed under Business and

Professions Code Section 500 et seq.;

2. An emergency medical technician I or II, paramedic or

other person certified pursuant to Health and Safety

Code Section 1797 et seq.;

3. A psychological assistant registered pursuant to

Business and Professions Code Section 2913;

4. A marriage and family therapist trainee, as defined in

Business and Professions Code Section 4980.03(c);

5. An unlicensed associate marriage and family therapist

registered under Business and Professions Code

Section 4980.44;

6. A state or county public health employee who treats a

minor for venereal disease or any other condition;

7. A coroner; or

8. A medical examiner or any person who performs

autopsies.

[Penal Code Sections 11162.5(a) and 11165.7]

“Injury” does not include any psychological or physical

condition brought about solely through the voluntary

administration of a narcotic or restrictive dangerous drug

[Penal Code Section 11160(c)].

“Reasonably suspects” means that it is objectively

reasonable for a person to entertain such a suspicion,

based upon facts that could cause a reasonable person in

a like position, drawing when appropriate from his or her

training and experience, to suspect [Penal Code Section

11162.5(d)].

D. Timing and Form of Report

A report by telephone must be made immediately

or as soon as practically possible to a local law

enforcement agency.

A written report must be prepared and sent to a local

law enforcement agency within two working days. The

California Office of Emergency Services (Cal OES)

has developed a standard form to be used by health

practitioners. The “Suspicious Injury Report” (Cal OES

2-920) may be found at www.ccfmtc.org.

A report must be made even if the person who suffered the

injury has died, regardless of whether or not the injury or

assaultive or abusive conduct was a factor contributing to

the death, and even if the evidence of the conduct of the

perpetrator of the injury or assaultive or abusive conduct

was discovered during an autopsy.

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E. Notification of Patient/Victim That Report Will

be Made

The patient usually must be notified that a report has

been or will be made. (See C.“Informing the Patient

of Reporting,” page7.1, for information about this

requirement.)

F. Medical Record Documentation

Penal Code Section 11161 recommends (but does not

require) that the medical record of a person who is the

subject of a report include the following:

1. Any comments by the injured person about past

domestic violence or the name of any persons

suspected of inflicting the wound, other physical injury,

or assaultive or abusive conduct upon the person.

2. A map of the injured person’s body showing and

identifying injuries and bruises.

3. A copy of the law enforcement reporting form.

Hospitals may wish to consider putting the forensic medical

reports in a separate section of the medical record to

prevent routine copying and disclosure of these reports for

purposes not related to the criminal justice system, and to

prevent improper release to unauthorized persons.

G. Immunity From Liability

A health practitioner who makes a report of injury or abuse

as required or authorized by law shall not incur civil or

criminal liability as a result. Furthermore, the practitioner

shall not incur civil or criminal liability as a result of providing

access to the victim at the request of an adult protective

services agency or a law enforcement agency.

Health practitioners who have made reports and who incur

attorneys’ fees as a result of legal action taken against

them on the basis of making the report may present a

claim to the California Board of Control for their reasonable

attorney’s fees if the health practitioner prevails in the

legal action.

Immunity is also provided in connection with the taking of

photographs of a person about whom a report is made or

for disseminating the photographs to local law enforcement

with the reports. However, no immunity is provided for any

other use of the photographs.

No employee may be discharged, suspended, disciplined

or harassed for making a report pursuant to this law.

[Penal Code Sections 11161.9 and 11163]

H. Confidentiality

The reports required by this law must be kept confidential

by the health facility, clinic or physician’s office that

submitted the report, and by local law enforcement

agencies [Penal Code Section 11163.2(b)].

However, counties may establish domestic violence death

or elder death review teams, which may include medical

personnel with expertise in domestic violence. Each

organization represented on the team may share otherwise

confidential information, upon written request, with other

team members if pertinent to the review. This includes

medical information covered by the Confidentiality of

Medical Information Act or the Lanterman-Petris-Short Act.

[Penal Code Sections 11163.3 and 11174.8]

In no case shall the person suspected of the assaultive or

abusive conduct or his or her attorney be allowed access

to the injured person’s whereabouts.

In a court proceeding or administrative hearing, neither the

physician-patient privilege nor the psychotherapist-patient

privilege applies to the information required to be reported

under this law [Penal Code Section 11163.2(a)].

IV. SEXUAL ASSAULT AND RAPE

A. Reporting Requirements

Cases of sexual assault and rape must be reported under

Penal Code Section 11160 (described in III.“Reporting

Injuries by Firearm or Assaultive or Abusive Conduct

(“Suspicious Injuries”),” page7.3).

B. Examination or Referral of Victims

Penal Code Section 13823.9(c) requires each county

to designate at least one general acute care hospital to

perform forensic examinations on victims of sexual assault,

including child molestation. All other public and private

general acute care hospitals must either comply with the

legal standards, protocols and guidelines in examining or

treating victims of sexual assault and attempted sexual

assault (including child molestation) or “adopt a protocol

for immediate referral of these victims to a local hospital

that so complies and shall notify local law enforcement

agencies, the district attorney and local victim assistance

agencies of the adoption of the referral protocol.” [Health

and Safety Code Section 1281].

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C. Required Examination Report Forms

Each physician or nurse who conducts an examination for

evidence of a sexual assault or attempted sexual assault

(including child molestation) must use the standard form(s)

adopted by the California Office of Emergency Services

(Cal OES). The health care professional must make the

observations and perform the tests required to complete

the form if the patient consents. Reports must be made on

the forms listed below. [Penal Code Section 13823.5]

FORMS

The forms are:

1. Cal OES 2-923: “Forensic Medical Report: Acute

(less than 72 hours) Adult/Adolescent Sexual Assault

Examination”

2. Cal OES 2-924: “Forensic Medical Report: Abbreviated

Adult/Adolescent Sexual Assault Examination”

3. Cal OES 2-925: “Forensic Medical Report: Nonacute

(greater than 72 hours) Child/Adolescent Sexual

Abuse Examination”

4. Cal OES 2-930: “Forensic Medical Report: Acute

(less than 72 hours) Child/Adolescent Sexual Abuse

Examination”

Copies of these forms and instructions are available

at www.ccfmtc.org. The website also has instructions,

protocols for examination of victims, and other information.

For information about the forms or assistance in completing

them, contact the California Clinical Forensic Medical

Training Center at (916) 930-3080 or see their website at

www.ccfmtc.org.

D. Consent to the Forensic Examination

Forms Cal OES 2-923, OES 2-924, 2-925 and 2-930

contain distinct consent requirements in addition to those

generally included in consent forms used by emergency

departments, including:

1. An acknowledgment of the provider’s duty to

report to law enforcement authorities the name and

whereabouts of any persons who are victims of sexual

assault (see A.“Reporting Requirements,” page7.5).

2. A consent to a separate medical examination for

evidence of sexual assault at public (county) expense

to discover and preserve evidence of the assault.

Consent for a physical examination, treatment and

collection of evidence is required [Penal Code Section

13823.11]. Consent to an examination for evidence

of sexual assault must be obtained prior to the exam

and must include written documentation of each of

the following:

1. Examination for the presence of injuries sustained as a

result of the assault.

2. Examination for evidence of sexual assault and

collection of physical evidence.

3. Photographs of injuries.

The victim (or parent or guardian) must be informed that he

or she may refuse to consent to an evidentiary exam, and

that such a refusal will not result in a denial of treatment

of injuries, possible pregnancy and sexually transmitted

diseases if the victim wishes to obtain treatment. (See

“Consent for Abuse-Related Exams,” page7.12, for

information about minors ability to consent to sexual

assault examination and treatment.)

E. Protocol for Examination and Treatment of

Victim

Cal OES has prepared protocols for examination of victims,

available at www.ccfmtc.org. This portion of the manual

identifies several preliminary legal requirements.

INFORMATIONAL CARD

Before starting an evidentiary or other physical exam for a

sexual assault, the physician or nurse must give the victim

an informational card designed by law enforcement for

sexual assault victims [Penal Code Section 680.2(a)]. This

requirement applies only if the law enforcement agency

has given cards to the medical provider in a language

understood by the victim. Hospitals should check with their

local law enforcement agency to obtain a supply of these

cards. [Penal Code Section 264.2(b)(2)]

POSTCOITAL CONTRACEPTION

If the sexual assault could result in pregnancy, the

victim must be provided with the option of postcoital

contraception. If the victim requests it, postcoital

contraception must be dispensed at no cost to the victim.

[Penal Code Section 13823.11]

SEXUAL ASSAULT COUNSELOR

The victim has the right to have a sexual assault counselor

and at least one other support person of the victim’s

choosing present at any medical evidentiary or physical

examination. The victim must be informed by the medical

provider of this right, either orally or in writing, prior to the

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examination. A support person may be excluded from the

exam if the law enforcement officer or medical provider

determines that the presence of that individual would

be detrimental to the purpose of the exam. [Penal Code

Section 264.2]

NOTIFY RAPE VICTIM COUNSELING CENTER

The law enforcement officer or agency is supposed to

notify the local rape victim counseling center whenever a

victim is transported to a hospital for a medical evidentiary

or physical exam. The hospital may verify with the

law enforcement officer or agency that the rape victim

counseling center has been notified, if the victim approves.

In addition, the hospital may notify the rape victim

counseling center, if the victim approves. [Penal Code

Section 264.2(b)(1)]

OPPORTUNITY TO SHOWER/BATHE

After conducting a medical evidentiary or physical

examination, the medical provider is required to give the

victim the opportunity to shower or bathe at no cost, unless

a showering or bathing facility is not available. [Penal Code

Section 264.2(b)(5)]

NOTIFY LAW ENFORCEMENT AGENCY

A medical provider must, within 24 hours of obtaining

sexual assault forensic evidence from the victim, notify the

law enforcement agency having jurisdiction over the alleged

violation if the medical provider knows the appropriate

jurisdiction. If the medical provider does not know the

appropriate jurisdiction, the medical provider must notify

the local law enforcement agency. [Penal Code Section

264.2(b)(6)]

F. Confidentiality

The suspected sexual assault forms Cal OES 2-923, OES

2-924, 2-925 and 2-930 are subject to the same principles

of confidentiality applicable to any other aspect of the

medical record [Penal Code Section 13823.5(c)]. No

information may be disclosed except that which is required

to complete the form, except as permitted or required by

another law (for example, in response to a court order or

pursuant to child abuse or elder abuse reporting laws). The

special confidentiality rules regarding child/elder/dependent

adult abuse reports are described in the respective portions

of this chapter.

G. Forensic Exam of Suspect

A health practitioner who, in his or her professional capacity

or within the scope of his or her employment, performs a

forensic medical examination on a person in the custody

of law enforcement from whom evidence is sought in

connection with the commission or investigation of sexual

assault, must prepare a written report. The report must

be on the form developed by Cal OES, and must be

immediately provided to the law enforcement agency that

has custody of the person examined. The required form is

Cal OES 2-950, “Forensic Medical Report: Sexual Assault

Suspect Examination” and is available at www.ccfmtc.org.

Instructions and an examination protocol are also available

at this website.

The health practitioners covered by this law are those

who are employed in a health facility, clinic, physician’s

office, local or state public health department, or a clinic

or other type of facility operated by a local or state public

health department.

The examination and report are subject to the

Confidentiality of Medical Information Act, the

physician-patient privilege, and the privilege of official

information pursuant to Evidence Code Section 1040 et

seq. However, the report must be released upon oral or

written request to any person or agency involved in any

related investigation or prosecution of a criminal case.

The persons to whom the report must be released upon

request include, but are not limited to, a law enforcement

officer, district attorney, city attorney, crime laboratory,

county licensing agency, and a coroner. The report may

be released to defense counsel or another third party only

through discovery of documents in the possession of a

prosecuting agency or by court order.

A health practitioner who makes a report in accordance

with this law is immune from civil or criminal liability.

No person, agency, or their designee required or authorized

to report pursuant to this law, who takes photographs

of a suspect is civilly or criminally liable for taking the

photographs, causing the photographs to be taken, or

disseminating the photographs to a law enforcement officer,

district attorney, city attorney, crime laboratory, county

licensing agency, or coroner with the reports required in

accordance with this law. However, the photographs may

not be used in any other way.

No health practitioner may be required to perform a

forensic medical examination as part of his or her duties as

a health practitioner, except for those health practitioners

who have entered into a contract to perform forensic

medical exams.

[Penal Code Section 11160.1]

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V. CHILD ABUSE AND NEGLECT

A. Basic Reporting Requirement

Health practitioners and others who have knowledge of

or observe a child in his or her professional capacity or

within the scope of his or her employment whom he or she

knows or reasonably suspects has been the victim of child

abuse or neglect are required to report to a designated

law enforcement agency. The initial report must be

made immediately, or as soon as practically possible, by

telephone. A follow-up written report must then be made

within 36 hours. These requirements, as well as definitions

of terms used in the law, are explained in this section of

the manual.

California’s child abuse and neglect reporting laws cover

children under the age of 18. [Penal Code Sections

11164-11174.3]

This reporting requirement applies even if the child has

died, regardless of whether or not the possible abuse

was a factor contributing to the child’s death, and even if

suspected child abuse was discovered during an autopsy.

[Penal Code Section 11166(a)]

UNSUITABLE HOME

A mandated reporter who knows or reasonably suspects

that the home or institution in which a child resides is

unsuitable for the child because of abuse or neglect of the

child is required to bring the condition to the attention of

the agency to which he or she makes a report of the abuse

or neglect, and must do so at the same time as the report

is made [Penal Code Section 11166(f)].

EMOTIONAL DAMAGE

A mandated reporter who has knowledge of or who

reasonably suspects that a child is suffering serious

emotional damage or is at substantial risk of suffering

serious emotional damage, evidenced by states of being

or behavior, including, but not limited to, severe anxiety,

depression, withdrawal or untoward aggressive behavior

toward self or others, may (but is not required to) make

a report to the appropriate agency. [Penal Code Section

11166.05]

B. Definitions

“Abuse or neglect in out-of-home care” includes:

1. Physical injury or death inflicted upon a child by

another person (by other than accidental means);

2. Sexual abuse;

3. Neglect;

4. Unlawful corporal punishment or injury; or

5. The willful harming or injuring of a child or the

endangering of the person or health of a child.

This applies where the person responsible for the child’s

welfare is:

1. A licensee, administrator or employee of a licensed

community care or child day care facility or a facility

licensed to care for children; or

2. The administrator or employee of a public or private

residential home, school or other institution.

This term does not include an injury caused by a peace

officer’s reasonable and necessary force while acting within

the course and scope of the officer’s employment as a

peace officer. [Penal Code Section 11165.5]

“Child abuse or neglect” includes the following:

1. A physical injury or death that is inflicted by other than

accidental means on a child by another person;

2. Sexual abuse;

3. Neglect;

4. Unlawful corporal punishment or injury;

5. Willful harming or injuring of a child or endangering of

the person or health of a child; and

6. Abuse or neglect in out-of-home care.

[Penal Code Section 11165.6]

NOTE: Child abuse does not include a mutual affray

between minors or an injury caused by a peace officer’s

reasonable and necessary force used while acting within

the course and scope of the officer’s employment as a

peace officer. “Affray” is not defined in the law, but the

dictionary defines it as a fight, quarrel or brawl.

“Neglect” means the negligent treatment or maltreatment

of a child by a person responsible for the child’s welfare

under circumstances indicating harm or threatened harm

to the child’s health or welfare. The term includes both acts

and omissions on the part of the responsible person. [Penal

Code Section 11165.2]

“Neglect” includes “general neglect” which means:

the negligent failure of a person having the care or

custody of a child to provide adequate food, clothing,

shelter, medical care or supervision where no physical

injury to the child has occurred.

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“Neglect” also includes “severe neglect” which means:

the negligent failure of a person having the care or

custody of a child to protect the child from severe

malnutrition or medically diagnosed nonorganic failure to

thrive. “Severe neglect” also means those situations of

neglect where a person having the care or custody of a

child willfully causes or permits the person or health of

the child to be placed in a situation such that his or her

person or health is endangered, as proscribed by section

11165.3, including the intentional failure to provide

adequate food, clothing, shelter or medical care.

A child receiving treatment by spiritual means as provided

in Welfare and Institutions Code Section 16509.1 or

not receiving specified medical treatment for religious

reasons, shall not be, for that reason alone, considered a

neglected child.

The law also provides that “an informed and appropriate

medical decision made by (the) parent or guardian after

consultation with a physician or physicians who have

examined the child does not constitute neglect” [Penal

Code Section 11165.2]. This provision leaves open

the question as to what constitutes an “informed and

appropriate medical decision,” but it appears to require

reporting in situations in which the physician or another

member of the health care team believes that a decision

made by a child’s parent or guardian after receiving the

relevant information is not appropriate, in the sense that it

is not consistent with the child’s best interests.

“Reasonable suspicion” means that it is objectively

reasonable for a person to entertain a suspicion, based

upon facts that could cause a reasonable person in a

like position, drawing, when appropriate, on his or her

training and experience, to suspect child abuse or neglect.

“Reasonable suspicion” does not require certainty that

child abuse or neglect has occurred nor does it require a

specific medical indication of child abuse or neglect. Any

reasonable suspicion is sufficient. However, the pregnancy

of a minor does not, in and of itself, constitute a basis

for a reasonable suspicion of sexual abuse (see “When a

Child Seeks Treatment for a Sexually Transmitted Disease,

Pregnancy or Abortion,” page7.13). [Penal Code Section

11166(a)] In addition, the laws regarding “safe surrender”

of a newborn and maternal substance abuse contain

provisions stating that these activities in and of themselves

do not trigger child abuse reporting. (See “Maternal

Substance Abuse,” page7.14, and “Safe Surrender of a

Newborn,” page7.15.)

“Sexual abuse” means sexual assault or sexual exploitation

[Penal Code Section 11165.1].

“Sexual assault” means conduct in violation of various

Penal Code sections including rape, rape in concert,

statutory rape, incest, sodomy, lewd or lascivious acts

upon a child, oral copulation, sexual penetration and

child molestation.

Conduct described as “sexual assault” includes, but is not

limited to, all of the following:

1. Penetration, however slight, of the vagina or anal

opening of one person by the penis of another person,

whether or not there is emission of semen.

2. Sexual contact between the genitals or anal

opening of one person and the mouth or tongue of

another person.

3. Intrusion by one person into the genitals or anal

opening of another person, including the use of an

object for this purpose, except that it does not include

acts performed for a valid medical purpose.

4. The intentional touching of the genitals or intimate

parts, including the breasts, genital area, groin, inner

thighs and buttocks, or the clothing covering them, of

a child, or of the perpetrator by a child, for purposes of

sexual arousal or gratification, except that it does not

include acts which may reasonably be construed to

be normal caretaker responsibilities; interactions with,

or demonstrations of affection for, the child; or acts

performed for a valid medical purpose.

5. The intentional masturbation of one’s genitals in the

presence of a child.

“Sexual exploitation” refers to any of the following:

1. Conduct involving matter depicting a minor engaged

in obscene acts, which violates the law prohibiting the

preparation, sale or distribution of obscene matter or

employment of minors to perform obscene acts.

2. A person who knowingly promotes, aids, or assists,

employs, uses, persuades, induces, or coerces a

child, or a person responsible for a child’s welfare who

knowingly permits or encourages a child to engage in,

or assist others to engage in, prostitution or to either

pose or model alone or with others for purposes of

preparing a film, photograph, negative, slide, drawing,

painting or other pictorial depiction involving obscene

sexual conduct. (“Person responsible for a child’s

welfare” means a parent; guardian; foster parent; or

a licensed administrator or employee of a public or

private residential home, residential school or other

residential institution.)

3. A person who depicts a child in, or who knowingly

develops, duplicates, prints, downloads, streams,

accesses through any electronic or digital media, or

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exchanges, a film, photograph, videotape, video

recording, negative or slide in which a child is engaged

in an act of obscene sexual conduct, except for

those activities by law enforcement and prosecution

agencies and other persons described in Penal Code

Section 311.3.

“Commercial sexual exploitation” refers to either of

the following:

1. The sexual trafficking of a child, as described in Penal

Code Section 236.1(c).

2. The provision of food, shelter, or payment to a child

in exchange for the performance of any sexual act

described in this law or Penal Code Section 236.1(c).

“Unlawful corporal punishment or injury” means a

situation where a person willfully inflicts upon a child cruel

or inhuman corporal punishment or injury resulting in a

traumatic condition. It does not include an amount of force

that is reasonable and necessary for a person employed

by or engaged in a public school to quell a disturbance

threatening physical injury to a person or damage to

property, for purposes of self-defense, or to obtain

possession of weapons or other dangerous objects within

the control of the pupil, as authorized by Education Code

Section 49001. It also does not include the exercise of the

degree of physical control authorized by Education Code

Section 44807. In addition, unlawful corporal punishment or

injury does not include an injury caused by a peace officer’s

reasonable and necessary force while acting within the

course and scope of the officer’s employment as a peace

officer. [Penal Code Section 11165.4]

“Willful harming or endangering of a child” means a

situation in which any person willfully causes or permits a

child to suffer, or inflicts upon a child, unjustifiable physical

pain or mental suffering, or having the care and custody of

the child, willfully causes or permits the person or health

of the child to be placed in a situation in which the child’s

person or health is endangered. [Penal Code Section

11165.3]

C. Persons Required or Permitted to Report

MANDATED REPORTERS

Penal Code Section 11165.7 requires specified health care

providers and clergy members (among others) to report

suspected child abuse and neglect. Persons required by

law to report are called “mandated reporters.”

The law describes more than 44 categories of professionals

or individuals who are considered mandatory reporters

under the law [Penal Code Section 11165.7]. These

categories of mandated reporters include social workers;

teachers; teacher’s aides and assistants; certain court

employees; licensed day care workers; employees of child

care institutions; peace officers; firefighters; probation

officers; parole officers; custodial officers; specified

district attorney investigators; local child support agency

caseworkers; persons providing in-home supportive

services to minors; film developers; commercial computer

technicians (who work for a company in the business of

repairing or installing computers for a fee); and various

community professionals and workers in schools, day care

programs, youth centers and camps.

Health care providers that are mandated reporters are

physicians, surgeons, psychiatrists, psychologists, dentists,

residents, interns, podiatrists, chiropractors, licensed

nurses, dental hygienists, optometrists, marriage and family

therapists, clinical social workers, professional clinical

counselors, or any other person who is currently licensed

under Business and Professions Code Section 500 et seq.;

an emergency medical technician I or II, paramedic, or

other person certified pursuant to Health and Safety Code

Section 1797 et seq.; a psychological assistant registered

pursuant to Business and Professions Code Section

2913; a marriage and family therapist trainee, as defined

in Business and Professions Code Section 4980.03(c);

an unlicensed associate marriage and family therapist

registered under Business and Professions Code Section

4980.44; an alcohol and drug counselor; a professional

clinical counselor trainee; an associate professional clinical

counselor; a state or county public health employee who

treats a minor for venereal disease or any other condition;

a coroner; or a medical examiner or any person who

performs autopsies. [Penal Code Sections 11162.5 and

11165.7]

Clergy

“Clergy member” means a priest, minister, rabbi, religious

practitioner, or similar functionary of a church, temple, or

recognized denomination or organization [Penal Code

Section 11165.7(a)(32)]. Any clergy member who has

knowledge of, or observes a child in his or her professional

capacity or within the scope of his or her duties, whom

he or she knows or reasonably suspects has been the

victim of child abuse or neglect, must comply with the

requirements of this law. However, a clergy member who

acquires knowledge or reasonable suspicion of child abuse

or neglect during a “penitential communication” is not

required to report. A “penitential communication” means

a communication, intended to be in confidence, including,

but not limited to, a sacramental confession, made to

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a clergy member, who in the course of the discipline or

practice of his or her church, denomination or organization,

is authorized or accustomed to hear those communications,

and under the discipline, tenets, customs or practices of

his or her church, denomination or organization, has a

duty to keep those communications secret. This exception

must not be construed to modify or limit a clergy member’s

duty to report known or suspected child abuse or neglect

when he or she is acting in some other capacity that would

otherwise make the clergy member a mandated reporter

[Penal Code Section 11166(d)]. A custodian of records of a

clergy member is also a mandated reporter.

Alcohol and Drug Counselor

Alcohol and drug counselors are mandatory reporters.

An “alcohol and drug counselor” is a person providing

counseling, therapy, or other clinical services for a

state-licensed or certified drug, alcohol, or drug and

alcohol treatment program.

VOLUNTARY REPORTERS

Penal Code Section 11166(g) permits, but does not require,

reporting from any other person (who is not a mandated

reporter) who has knowledge of or reasonably suspects

a child has been the victim of child abuse or neglect

[Penal Code 11166(g)]. This includes a mandated reporter

who acts in his or her private capacity and not in his or

her professional capacity or within the scope of his or

her employment.

Volunteers

Although hospital volunteers (and other volunteers, except

volunteers of a Court Appointed Special Advocate Program)

are not mandated reporters, the law encourages volunteers

who have contact with children to obtain training in the

identification and reporting of child abuse and to report

known or suspected instances of child abuse to agencies

specified under the law to receive such reports [Penal Code

Section 11165.7(b)]. Employers are encouraged to provide

training to volunteers [Penal Code Section 11165.7(g)].

SELECTION OF A PERSON TO REPORT

Reporting information about possible child abuse to a

supervisor, employer, coworker or other person is not

a substitute for reporting to a law enforcement agency.

However, in a hospital or clinic, two or more mandated

reporters may become jointly aware of the same instance of

reportable child abuse or neglect. The law allows the team

to select, by mutual agreement, a single member who will

be responsible for making the telephone report and making

and signing the written report. However, if any member of

the team knows the designated member failed to report, he

or she must thereafter make the report.

The law allows the hospital or clinic to create internal

procedures to facilitate reporting and apprise supervisors

and administrators of reports. However, a hospital’s internal

policy may not direct employees to allow their supervisor to

file or process a mandated report under any circumstances.

No supervisor or administrator may impede or inhibit child

abuse reporting, and employees must not be subject to

sanctions for making a report. [Penal Code 11166]

The internal procedures must not require an employee

required to make reports by the statute to disclose his

or her identity to the employer [Penal Code Section

11166(i)(2)].

D. Reporting to Law Enforcement

A telephone report, followed by a written report, must be

made to any police department (not including a school

district police or security department), sheriff’s department,

county probation department (if designated by the county

to receive child abuse reports) or the county welfare

department. Agencies that are required to receive child

abuse reports may not refuse to accept them. They must

maintain a record of all reports received. [Penal Code

Section 11165.9]

CONTENT OF REPORT

Reports of suspected child abuse or neglect must include

the following information [Penal Code Section 11167]:

1. The name, business address and telephone number of

the mandated reporter, and the capacity that makes

the person a mandated reporter.

If the person is not a mandated reporter, he or she is

not required to include his or her name [Penal Code

Section 11167(f)]. If the name is given, the person’s

identity is confidential and may be disclosed only in

limited circumstances.

2. The information that gave rise to the reasonable

suspicion of child abuse or neglect and the source or

sources of that information.

If a report is made, the following information, if known,

must also be included in the report:

1. The child’s name, address and present location, and, if

applicable, the child’s school, grade and class.

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2. The names, addresses and telephone numbers of the

child’s parents or guardians.

3. The name, address, telephone number and other

relevant personal information about the person or

persons who might have abused or neglected the child.

A mandated reporter may include with the report any

nonprivileged documentary evidence related to the

incident [Penal Code Section 11166(a)]. (See F.“Privileges

Inapplicable,” page7.15.)

The mandated reporter shall make a report even if some of

this information is not known or is uncertain to him or her.

HOW REPORTS ARE MADE

An initial telephone report must be made immediately

or as soon as is practically possible after receiving the

information concerning the incident [Penal Code Section

11166(a)].

A written follow-up report must be sent by mail, facsimile,

or email to the law enforcement agency within 36 hours of

receiving the information concerning the incident.

Required Form

The California Department of Justice has adopted

“Suspected Child Abuse Report,” form SS 8572, which

must be used for the written report. The form may be

obtained from the local social services department or child

protective services agency. (The form may be downloaded

at www.ag.ca.gov/childabuse/pdf/ss_8572.pdf or www.

ccfmtc.org.)

Procedure

The person or the team member designated to report

should fill in and sign the written report. The same person

should make both the telephone and the written report.

FORENSIC MEDICAL REPORTS

A medical professional who examines a child for physical

injury or sexual assault that is suspected child abuse must

complete a medical report within 36 hours of receiving the

information concerning the incident. This medical report

should be submitted along with “Suspected Child Abuse

Report,” form SS 8572. This medical report should be

the “Medical Report: Suspected Child Physical Abuse and

Neglect Examination” (Cal OES 2-900) or one of the forms

described in “Forms,” page7.6. The forms, instructions,

and examination protocols may be found at www.ccfmtc.

org.

A medical exam relating to sexual assault must be

documented on standard forms adopted by Cal OES

[Penal Code Section 13823.5]. That office developed the

forms described in “Forms,” page7.6. Therefore, when

there is evidence of child sexual abuse, one of these

forms must be used. When no sexual abuse is indicated,

form Cal OES 2-900 is the more appropriate form since

it is better suited to gathering evidence of physical abuse

or neglect.

For information about the forms or assistance in completing

them, contact the California Clinical Forensic Medical

Training Center at (916) 930-3080.

Documentation in the Medical Record

The forensic medical reports must become part of the

patient’s medical record pursuant to guidelines established

by the advisory committee of Cal OES. Hospitals may

wish to consider putting the forensic medical reports in a

separate section of the medical record to prevent routine

copying and disclosure of these reports for purposes

not related to the criminal justice system, and to prevent

improper release to unauthorized persons. The completed

forms are subject to the special confidentiality laws

pertaining to the release of forensic medical examination

records (see G.“Disclosure and Follow-Up Procedures,”

page7.16, and I.“Confidentiality of Reports,” page7.18).

[Penal Code Section 11171(d)]

The hospital’s initial report to law enforcement is not

required to be placed in the medical record. Hospitals

should develop a policy regarding maintenance of reports

to maintain confidentiality of the reporter’s identity (see

I.“Confidentiality of Reports,” page7.18).

CONSENT FOR ABUSE-RELATED EXAMS

Special Law for X-Rays

A physician or dentist (or their agents at their direction)

may take skeletal X-rays of a child without the consent of

the child’s parent or guardian, but only for the purpose

of diagnosing the case as one of possible child abuse or

neglect and determining the extent of such child abuse or

neglect [Penal Code Section 11171.2].

Additionally, if a peace officer in the course of investigation

of child abuse or neglect has reasonable cause to believe

that the child has been physically abused, the officer may

apply to a magistrate for an order directing that the child

be X-rayed without parental consent [Penal Code Section

11171.5]. X-rays performed pursuant to such an order must

be performed by a physician or dentist or their agents.

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Reimbursement by the county for administrative costs of

such X-rays will not exceed 5 percent of the cost of the

X-rays.

Other Treatment

If further treatment beyond X-rays is necessary and the

parents object, the hospital should consult legal counsel. It

may be appropriate to seek a petition to declare the minor

a dependent child of the juvenile court pursuant to Welfare

and Institutions Code Section 300 for the purposes of

assuring that he or she receives the proper medical care.

If the minor has been raped or sexually assaulted, the minor

may give consent to medical treatment (see below).

Rape

A minor 12 years of age or older who has allegedly been

raped may consent to the furnishing of hospital, medical,

and surgical care related to the diagnosis or treatment of

such condition. This includes information concerning, and

access to, the “morning after” pill [Brownfield v. Daniel

Freeman Marina Hospital, 208 Cal.App.3d 405(1989)]. The

minor may also consent to the collection of evidence with

regard to the alleged rape. The consent of the minor’s

parent(s) or guardian is not necessary. [Family Code

Section 6927; Title 11, California Code of Regulations,

Section 925]

A minor who has been raped has also been sexually

assaulted, according to the legal definitions. It is unclear

why California law contains two different statutes pertaining

to these victims (Family Code Sections 6927 and 6928,

which is discussed below). The only difference in the two

statutes is that Family Code Section 6928 (regarding

sexual assault) requires the professional person providing

medical treatment to a minor victim of sexual assault must

attempt to contact the minor’s parent/guardian unless the

treating professional person reasonably believes the parent/

guardian was the perpetrator. CHA recommends that the

treating professional talk to the minor sexual assault victim

about contacting the parent, and then contact the parent

unless the minor voices significant concern. This discussion

and the outcome should be documented.

Sexual Assault

A minor who is alleged to have been sexually assaulted

may consent to the furnishing of hospital, medical and

surgical care related to the diagnosis and treatment of

such condition. Sexual assault includes, but is not limited

to, rape, sodomy, or oral copulation. The minor may also

consent to collection of medical evidence with regard to the

alleged sexual assault. The consent of the minor’s parent(s)

or guardian is not necessary [Family Code Section 6928;

Title 11, California Code of Regulations, Section 925].

The professional person providing the medical treatment

must attempt to contact the minor’s parent(s) or guardian

and note the date and time of such contact or, if

unsuccessful, when contact was attempted. However,

the professional person need not make this contact if he

or she reasonably believes that the parent(s) or guardian

committed the sexual assault on the minor. [Family Code

Section 6928]

E. Special Situations Regarding Reporting

WHEN A CHILD SEEKS TREATMENT FOR A SEXUALLY

TRANSMITTED DISEASE, PREGNANCY OR ABORTION

The pregnancy of a minor, in and of itself, does not

constitute the basis for reasonable suspicion of child abuse

[Penal Code Section 11166(a)]. Neither does, by itself, a

request for birth control assistance [67 Ops.Cal.Atty.Gen.

235 (1984)], which a minor is legally authorized to obtain

under Family Code Section 6925 (see chapter 2).

Notwithstanding the foregoing, child abuse reporting may

be required when particular types of medical attention are

rendered to a child if there are additional facts indicating

that the child was sexually assaulted [67 Ops. Cal. Atty.

Gen. 235 (1984)]. Thus, reporting may be required when a

minor seeks treatment for a sexually transmitted disease

or pregnancy or requests an abortion or birth control

assistance and there is reasonable suspicion to believe that

there has been a violation of the law amounting to sexual

assault (as defined above). (See “Minors Under 14 Years of

Age: Lewd and Lascivious Conduct Versus Statutory Rape”

below, for discussion of reports concerning children under

age 14.)

Reasonable Suspicion

In People v. Stockton Pregnancy Control Medical Clinic,

203 Cal.App.3d 225, 239-240 (1988), which is discussed

below, the court stated:

The [Child Abuse and Neglect Reporting] Act makes clear

that professionals subject to the Act must evaluate facts

known to them in light of their training and experience to

determine whether they have an objectively reasonable

suspicion of child abuse ... However, nothing in the Act

requires professionals such as health practitioners to

obtain information they would not ordinarily obtain in the

course of providing care or treatment. Thus, the duty to

report must be premised on information obtained by the

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health practitioner in the ordinary course of providing

care and treatment according to standards prevailing in

the medical profession.

According to the California Attorney General [67 Ops.

Cal.Atty.Gen. 235 (1984)], the facts to be used to

evaluate whether there is reasonable suspicion to believe

that a child who seeks care for a sexually transmitted

disease, pregnancy or abortion was the victim of child

abuse include:

1. The child’s medical history;

2. Other information available to the professional through

consultation or examination; and

3. Whether the child is immature or mentally deficient.

Pregnancy in a mentally or physically impaired child

or an intellectually disabled child does, according to

the California Attorney General, raise a reasonable

suspicion of child abuse.

Minors Under 14 Years of Age: Lewd and Lascivious

Conduct Versus Statutory Rape

As noted above, the commission of a lewd or lascivious

act upon a child under 14 years of age, which is a violation

of Penal Code Section 288, constitutes sexual assault. In

Planned Parenthood Affiliates v. Van de Kamp, 181 Cal.

App.3d 245 (1986), the Court of Appeal held that no child

abuse report need be made where the conduct involved

is voluntary sexual activity between minors who are

both under age 14 and are of a similar age. This ruling

was affirmed in People v. Stockton Pregnancy Control

Medical Clinic, supra, 203 Cal.App.3d at 234, where the

court stated:

In practical effect, the [Child Abuse and Neglect

Reporting] Act, as construed in Planned Parenthood,

exempts from reporting as “child abuse” the voluntary

sexual conduct of sexually mature boyfriends and

girlfriends (i.e., minors age 14 and older) and the conduct

of younger children of similar ages who voluntarily play

doctor or otherwise engage in sexual experimentation.

However, the appellate court in the Stockton case also

held that a report of child abuse is still required where the

sexual activity, even though voluntary, is between a minor

under age 14 and a person of disparate age. This includes

instances in which the other person is an adult or a minor

age 14 or older. Penal Code Section 288(c)(1) clarifies

that it is deemed an offense where lewd or lascivious

acts are committed with a minor of 14 or 15 years and

the defendant is at least 10 years older than the victim.

Moreover, Penal Code Section 261.5 sets forth degrees of

liability for sexual intercourse with a minor more than two

years younger than the age of the perpetrator.

WHEN TREATING SUBSTANCE USE DISORDER

PATIENTS

Alcohol and/or drug abuse is not, in and of itself, a sufficient

basis for reporting child abuse or neglect [Penal Code

Section 11165.7(a)(38)].

The federal laws regulating the disclosure of patient

records maintained in connection with the treatment of

substance use disorders by federally assisted programs

expressly permit the reporting under state law of incidents

of suspected child abuse and neglect to appropriate

state or local authorities [42 U.S.C. Section 290dd-2(e)]

(see chapter 6 regarding federal laws governing the

confidentiality of substance use disorder information).

MATERNAL SUBSTANCE ABUSE

When a Report Must Be Made

A positive toxicology screen at the time of an infant’s

delivery is not in and of itself a sufficient basis for reporting

child abuse or neglect. However, any indication of maternal

substance abuse requires an assessment of the needs

of the mother and child under Health and Safety Code

Section 123605. If other factors are present that indicate

risk to a child, then a child abuse report must be made.

However, a report based on risk to a child which relates

solely to the inability of the parent to provide the child with

regular care due to the parent’s substance abuse must be

made only to a county welfare or probation department

and not to a law enforcement agency. [Penal Code Section

11165.13]

Needs Assessment

Each county must establish protocols between county

health departments, county welfare departments, and all

public and private hospitals in the county regarding the

application and use of an assessment of the needs of, and

a referral for, a substance abuse-exposed infant to a county

welfare department.

The needs assessment must be performed by a health

practitioner or a medical social worker before the infant is

released from the hospital.

The purpose of the needs assessment is to:

1. Identify needed services for the mother, child or family,

including, where applicable, services to assist the

mother in caring for her child and services to assist

maintaining children in their homes.

2. Determine the level of risk to the newborn upon release

to the home and the corresponding level of services

and intervention, if any, necessary to protect the

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newborn’s health and safety, including a referral to the

county welfare department for child welfare services.

3. Gather data for information and planning purposes.

[Health and Safety Code Section 123605; Penal Code

Section 11165.13]

Government Facilities

In Ferguson et al. v. City of Charleston et al., 532 U.S. 67

(2001), the U.S. Supreme Court ruled that a state hospital’s

performance of a drug test to obtain evidence of a patient’s

criminal conduct for law enforcement purposes is an

unreasonable search if the patient has not consented to

the procedure. In that case, a state hospital worked with

local law enforcement personnel to develop policies to

identify and report pregnant drug users. Criteria for testing

pregnant women were developed which, according to the

court, were not sufficiently related to illegal drug use to

constitute probable cause or even a basis for a reasonable

suspicion. No search warrants were sought. Chain of

custody procedures and documentation were developed

to make sure test results could be used in subsequent

criminal proceedings. The hospital policy set forth the range

of possible criminal charges and the logistics of police

notification and arrests. The policy did not discuss different

courses of medical treatment for either the mother or infant.

For purposes of this case, it was assumed that the women

did not consent to taking the urine sample (although there

were no allegations that the urine was forcibly removed),

testing the urine for drugs, or reporting the positive result to

law enforcement.

The court found that the focus of the policy was on the

arrest and prosecution of drug-abusing mothers, not

medical care. The court held that because the hospital is

a state hospital, the members of its staff are government

actors and subject to the Fourth Amendment prohibitions

against unreasonable search and seizure. The court stated

that when a hospital undertakes to obtain evidence from

its patients for the specific purpose of incriminating those

patients, the hospital has a special obligation to make sure

that the patients are fully informed about their constitutional

rights. The court sent the case back to a lower court

to determine whether informed consent was given by

the patients.

The court distinguished this case from circumstances

in which physicians, in the course of ordinary medical

procedures aimed at helping the patient, come across

information that under rules of law or ethics is subject to

reporting requirements. However, the court also stated

that the “reasonable expectation of privacy enjoyed by the

typical patient undergoing diagnostic tests in a hospital

is that the results of those tests will not be shared with

nonmedical personnel without her consent.”

Government hospitals should work with their legal counsel

to develop a drug testing policy that satisfies the concerns

outlined by the court in the Ferguson case.

SAFE SURRENDER OF A NEWBORN

The voluntary surrendering of a newborn in accordance

with California’s “safe surrender” law is not, in and of itself,

a sufficient basis for reporting child abuse or neglect.

HOMELESS CHILDREN

The fact that a child is homeless or is classified as an

unaccompanied minor is not, in and of itself, a sufficient

basis for reporting child abuse or neglect. However, this

law is not intended to limit reports when a mandated

reporter has knowledge of or observes an unaccompanied

minor whom the mandated reporter knows or reasonably

suspects to be the victim of abuse or neglect. [Penal Code

Section 11165.15]

For purposes of this law, “homeless children and youths”

means individuals who lack a fixed, regular, and adequate

nighttime residence, and includes:

1. Children and youths who are sharing the housing

of other persons due to loss of housing, economic

hardship, or a similar reason; are living in motels,

hotels, trailer parks, or camping grounds due to the

lack of alternative adequate accommodations; are

living in emergency or transitional shelters; or are

abandoned in hospitals;

2. Children and youths who have a primary nighttime

residence that is a public or private place not

designed for or ordinarily used as a regular sleeping

accommodation for human beings; and

3. Children and youths who are living in cars, parks,

public spaces, abandoned buildings, substandard

housing, bus or train stations, or similar settings.

“Unaccompanied youth” includes a homeless child or

youth not in the physical custody of a parent or guardian.

[42 U.S.C. Section 11301 et seq.; 42 U.S.C.

Section 11434a]

F. Privileges Inapplicable

Neither the physician-patient privilege nor the

psychotherapist-patient privilege applies to information that

must be reported pursuant to child abuse reporting laws in

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a court proceeding or administrative hearing [Penal Code

Section 11171.2].

In People v. Stritzinger, 34 Cal.3d 505 (1983), the

California Supreme Court held that the child abuse

or neglect reporting requirements supersede the

psychotherapist-patient privilege, and that confidential

information must be disclosed by a psychotherapist in

order to fulfill the reporting requirements. However, the

court also held that only the information which must be

reported may be disclosed, and that a psychotherapist

cannot disclose information received after the report

was made if it pertains to the identical situation that was

reported.

The California Attorney General has opined that the child

abuse reporting requirements supersede the confidentiality

provisions of the Lanterman-Petris-Short Act (see chapter

17 regarding the Lanterman-Petris-Short Act requirements)

[65 Ops.Cal.Atty.Gen. 345 (1982)]. Facilities should consult

their legal counsel regarding the scope of disclosure that is

required by the child abuse reporting statute.

G. Disclosure and Follow-Up Procedures

DISCLOSURE TO INVESTIGATOR

Information relevant to the incident of child abuse or

neglect and information relevant to a report made pursuant

to Penal Code Section 11166.05 (see “Emotional Damage,”

page7.8) may be given to an investigator from an agency

that is investigating a known or suspected case of child

abuse or neglect [Penal Code Section 11167(b)]. However,

the only information that may be disclosed is that which

is relevant to the incident of child abuse or neglect. Thus,

medical information regarding the involved persons (e.g., a

suspected victim or perpetrator) should be disclosed only if

it appears to satisfy this relevancy test.

Scope of Information to be Released

In Ferraro v. Chadwick, 221 Cal.App.3d 86 (1990), parents

who were reported for child abuse sued the reporting

hospital and physician alleging that statements made

and information provided after the initial report of child

abuse were outside the immunity provided under Penal

Code Section 11172 (see the discussion of immunity

in G.“Immunity From Liability,” page7.5). In rejecting

this argument, the court made several points relevant

to the scope of permissible disclosure of information

to investigators:

1. The type of report or communication contemplated by

Section 11167(b) most often is going to occur after an

initial report of suspected abuse.

2. Section 11167 anticipates that, in the course of an

investigation into suspected abuse, the reporter

(“particularly if the reporter is a doctor”) is going

to be contacted and interviewed by the agency

conducting the investigation, and the law approves

communications between the reporter and the

investigating agency.

3. The child abuse reporting laws both authorize and

protect these subsequent communications, regardless

of whether they were in response to law enforcement

inquiries or were initiated by the doctor and/or hospital.

These comments show that the court in Ferraro obviously

considered release of information under Penal Code

Section 11167(b) to be authorized reports under the

immunity statute. However, the only information that may

be disclosed is information that is relevant to the incident

of suspected abuse. Thus, medical information regarding

the involved persons, whether a suspected victim or

perpetrator, should be disclosed under this provision only if

it appears to satisfy this relevancy test.

If the information being requested does not appear to meet

this test, then the law enforcement officers should be asked

to obtain a court order or search warrant. As the California

Attorney General points out in its Child Abuse Prevention

Handbook (revised January 2000) (p. 56):

As in all areas of criminal law, all searches, seizures,

and arrests made in the course of child abuse

investigations must comply with the requirements of the

Fourth Amendment.

Mental Health and Substance Abuse Information

There are also some restrictions that have particular

application to mental health information (see chapter 6

regarding laws governing the confidentiality of mental

health information).

While the psychotherapist-patient privilege does not apply

to information required to be reported pursuant to the child

abuse reporting laws, at least one court has ruled that the

privilege continues to apply to information not required to

make the report. In People v. Stritzinger, 34 Cal.3d 505

(1983), the court ruled that while a psychotherapist was

required to disclose privileged information in order to make

a child abuse report, the psychotherapist should not have

disclosed information received after the report was made

that did not disclose new incidents of abuse.

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In addition, the California Attorney General has stated its

view that while the child abuse reporting laws override

the Lanterman-Petris-Short confidentiality law for mental

health information, it does so only to permit persons to

report “what they know or have observed” [65 Ops.Cal.Atty.

Gen 345, 355 (1982)]. According to the Attorney General’s

opinion, the reporting law does not give child protection

agencies direct access to mental health records and

information protected by the Lanterman-Petris-Short Act.

Similarly, the federal law regarding the confidentiality of

substance use disorder program records contains an

exception to confidentiality to report suspected child abuse

[42 U.S.C. Section 290dd-2(e)]. However, this exception

does not permit disclosure of patient records in any legal

proceeding that may later arise from the initial child abuse

report. Records requested for court proceedings may

be released only if the requestor has complied with the

procedures set forth in the federal regulations that apply

to federally-funded substance use disorder programs.

[42 C.F.R. Sections 2.12(c)(12) and 2.61-2.67] (See chapter

6 regarding laws governing the confidentiality of substance

use disorder information.)

DISCLOSURE TO LICENSING AGENCY

Information relevant to an incident of child abuse or

neglect (including the investigation report and other

pertinent materials) as well as information relevant to a

report made pursuant to Penal Code Section 11166.05

(see “Emotional Damage,” page7.8), may be given to

the California Department of Social Services, or the county

licensing agency that has contracted with the state for

the performance of its services, when it is investigating

a known or suspected case of child abuse or neglect

[Penal Code Sections 11167(c), 11167.5(b)(6), 11170(b)

(4)]. However, the only information that may be disclosed

is that which is relevant to the incident of child abuse or

neglect. Thus, medical information regarding the involved

persons (e.g., a suspected victim or perpetrator) should be

disclosed only if it appears to satisfy this relevancy test.

Interestingly, as used in the child abuse law, “licensing

agency” does not appear to include the California

Department of Public Health (CDPH) (see Penal Code

Section 11165.11 for the definition of “licensing agency”).

However, CDPH has other legal authority to review hospital

records; an attorney should be consulted if doubt exists as

to whether particular records should be disclosed to CDPH.

H. Immunity From Liability

MANDATED REPORTERS

No mandated reporter shall incur any civil or criminal liability

as a result of making a report required or authorized by the

child abuse reporting law. This immunity applies even if the

mandated reporter acquired the knowledge or reasonable

suspicion of child abuse or neglect outside of his or her

professional capacity or outside the scope of his or her

employment. [Penal Code Section 11172]

Two court decisions have emphasized that this immunity

for mandated reporters is absolute — that is, the immunity

applies regardless of whether or not the person making

the report knew or should have known that the report

was not true [Krikorian v. Barry, 196 Cal.App.3d 1211

(1987); Storch v. Silverman, 186 Cal.App.3d 671 (1986)].

Additionally, the immunity applies not only to the person

who makes the report (i.e., telephones the agency and

submits the written report) but to any other mandated

reporter involved in the identification of an instance of

child abuse even though they did not personally report

it to the authorities [Storch v. Silverman, supra, 186 Cal.

App.3d at 681]. This recognizes that in many instances,

especially in hospitals, the discovery of child abuse will be a

collaborative event, involving more than one person.

In Krikorian v. Barry, supra, 196 Cal.App.3d at 1223, the

court held that Penal Code Section 11172 immunity

encompasses not only the actual act of reporting but also:

conduct giving rise to the obligation to report, such as

the collection of data, or the observation, examination or

treatment of the suspected victim or perpetrator of child

abuse, performed in a professional capacity or within the

scope of employment.... [Accord, McMartin v. Children’s

Institute International, 212 Cal.App.3d 1393 (1989), cert.

den., 494 U.S. 1057 (1990)]

Mandated reporters are immunized not only for activity

related to the initial mandated report but also with respect

to activity after the initial report that is authorized under

the child abuse reporting law. [Ferraro v. Chadwick, 221

Cal.App.3d 86 (1990) and Thomas v. Chadwick, 224 Cal.

App.3d 813 (1990) modified, 224 Cal.App.3d 1637]

Attorneys’ Fees

In addition, the California Legislature recognized that

while the immunity from liability prevents imposition of

liability, it cannot prevent the filing of a lawsuit against a

person who reports. Thus, to limit the financial hardship

that persons may incur as a result of fulfilling their legal

reporting responsibilities, the law allows a person who is

sued as a result of fulfilling his or her mandatory reporting

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obligation to recover from the state the attorneys’ fees

spent defending the action, if the person prevails. The

state is required to reimburse the person for reasonable

attorneys’ fees at hourly rates based upon the rates

charged by the California Attorney General, up to $50,000

[Penal Code Section 11172(d)]. A claim may be filed with

the Department of General Services.

VOLUNTARY REPORTERS

Penal Code Section 11172 also provides that any other

person reporting a suspected instance of child abuse or

neglect (i.e., those making voluntary reports) shall not incur

civil or criminal liability as a result of making the report

unless it can be proved that the report was false and that

the person knew it was false or that the report was made

with reckless disregard of its truth or falsity. In such a case,

the person making the report is liable for any damages

caused [Penal Code Section 11172(a)].

IMMUNITY FOR PROVIDING ACCESS TO THE VICTIM

Health practitioners and other persons are granted

immunity from civil or criminal liability for providing access

to a suspected or known victim of child abuse or neglect to

a government agency investigating a report of suspected

child abuse or neglect [Penal Code Section 11172(b)].

IMMUNITY FOR PHOTOGRAPHING OF SUSPECTED

ABUSE

Mandated reporters (and others taking photographs at

the mandated reporter’s direction) are not subject to civil

or criminal liability for photographing a suspected victim

of child abuse or neglect, or causing photographs to be

taken, without parental consent, or for disseminating the

photographs or images with the required reports. However,

this law does not give immunity from liability for other uses

of the photographs [Penal Code Section 11172(a)].

The health care provider may wish to obtain photographs

to assist the investigating agency and to provide

documentation should a question arise about the

justification for a report made by the hospital.

I. Confidentiality of Reports

Reports of child abuse and the information contained in

them, as well as certain child abuse or neglect investigative

reports, are confidential and may be disclosed only as

provided by statute [Penal Code Section 11167.5(a)].

Those to whom the statute permits disclosure include

various law enforcement and governmental agencies,

coroners and medical examiners, multidisciplinary teams,

hospital scan teams, agencies responsible for licensing

facilities that care for children, adoption agencies, and

others as specified. (See Penal Code Sections 11167-

11170.5 and G.“Disclosure and Follow-Up Procedures,”

page7.16.) Such disclosures should typically be made by

the agency to which the original report is made, rather than

by initial reporters.

The identity of all persons who make child abuse reports is

confidential and may be disclosed only among the following

agencies receiving or investigating mandated reports:

1. To the prosecutor in a criminal prosecution or in an

action initiated under Welfare and Institutions Code

Section 602 arising from alleged child abuse;

2. To counsel appointed to represent the child pursuant to

Welfare and Institutions Code Section 317(c);

3. To the county counsel or prosecutor in a proceeding

under Family Code Section 7800 et seq. or Welfare

and Institutions Code Section 300 et seq.; or

4. To a licensing agency when abuse or neglect in

out-of-home care is reasonably suspected.

In addition, the identity may be disclosed when the reporter

waives confidentiality or by court order.

No agency or person may disclose the identity of a person

who makes a child abuse report to that person’s employer,

except with the employee’s consent or by court order.

[Penal Code Section 11167(d)]

Notwithstanding these confidentiality requirements, a

representative of a child protective services agency

performing an investigation that results from a report of

suspected child abuse or neglect made pursuant to the

child abuse reporting law, at the time of the initial contact

with the individual who is subject to the investigation,

shall advise the individual of the complaints or allegations

against him or her, in a manner that is consistent with the

requirement to protect the identity of the reporter. [Penal

Code Section 11167(e)]

Violation of this confidentiality requirement is a

misdemeanor punishable by imprisonment in a county jail

not to exceed six months, by a fine of $500, or by both that

imprisonment and fine. [Penal Code Section 11167.5(a)]

J. Sanctions for a Failure to Report

A person who is required to, but fails to, report an instance

of known or reasonably suspected child abuse or neglect

may be found guilty of a misdemeanor. The punishment

may include up to six months imprisonment in the county

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jail, a fine of up to $1,000, or both [Penal Code Section

11166(c)]. A supervisor or administrator who impedes or

inhibits an employee’s reporting of child abuse may be

subject to up to six months imprisonment in the county

jail or a fine not to exceed $1,000, or both. A mandated

reporter who willfully fails to report abuse or neglect, or

a person who impedes or inhibits a report of abuse or

neglect, where that abuse or neglect results in death or

great bodily injury, will be punished by not more than one

year in a county jail, a fine of up to $5,000, or both [Penal

Code Section 11166.01] The statutory provisions do not

affect the principle established in Landeros v. Flood, 17

Cal.3d 399 (1976), which imposes civil liability for a failure

to report child abuse (see “Civil Liability,” page7.2).

If a mandated reporter intentionally conceals his or her

failure to report an incident known by the mandated

reporter to be abuse or severe neglect under this section,

the failure to report is a continuing offense until an agency

specified in Section 11165.9 discovers the offense [Penal

Code Section 11166(c)].

K. Employer Obligations

OBTAIN EMPLOYEES’ ACKNOWLEDGMENT OF

REPORTING OBLIGATIONS

Hospitals and other employers of mandated reporters are

required to provide forms on which the mandated reporters

acknowledge that they are aware of the child abuse and

neglect reporting requirements and will comply with them.

The form must inform the employee that he or she is a

mandated reporter and inform the employee of his or her

reporting obligations under Penal Code Section 11166 and

of his or her confidentiality rights under Penal Code Section

11167(d). The employer must provide a copy of Penal Code

Sections 11165.7, 11166 and 11167 to the employee.

These statements must be retained by the employer. The

employer must bear the costs of printing, distributing and

filing the acknowledgment forms [Penal Code Section

11166.5].

The statements must be signed by any person hired after

Jan. 1, 1985, who is required to report.

Because this requirement applies only to employees hired

by a hospital, it does not apply specifically to medical staff

members who have no employment relationship with the

hospital. However, hospitals may choose to have medical

staff members acknowledge their awareness of their

obligations to report suspected instances of child abuse or

neglect, particularly if the medical staff members may be

treating possible victims of child abuse who present to the

emergency room.

The hospital may supplement its form by discussing any

special policy it has regarding notifying supervisors and

administration about reports that will be or are made, and

how the reporting is coordinated when several employees

become aware of the same instance of suspected child

abuse or neglect. Hospitals may use the “Employee

Acknowledgment of Child Abuse and Neglect Reporting

Obligations” form (CHA Form 19-2) for this purpose.

TRAIN EMPLOYEES

The law also strongly encourages employers to provide

their employees who are mandated reporters with

training in child abuse and neglect identification and

reporting. Whether or not employers provide this training,

the employers must provide their employees who are

mandated reporters with the required notice of their status

as a mandated reporter.

VI. ABUSE OF ELDERS AND DEPENDENT

ADULTS

A. Introduction

The Elder Abuse and Dependent Adult Civil Protection Act

[Welfare and Institutions Code Sections 15600-15659]

imposes mandatory reporting requirements for abuse of

elders and dependent adults. The reporting requirements

for elders and dependent adults are identical. Abuse of

an elder or dependent adult is a criminal act [Penal Code

Section 368].

Under the law, any mandated reporter who, in his or her

professional capacity, or within the scope of his or her

employment, has observed or has knowledge of an incident

that reasonably appears to be abuse, or is told by an

elder or dependent adult that he or she has experienced

behavior, including an act or omission, constituting abuse,

must report the known or suspected instance of abuse

by telephone or through a confidential Internet reporting

tool (when available) immediately or as soon as practicably

possible. If initially reported by telephone, a written report

or an Internet report must be sent within two working days.

Quicker reporting is required if the abuse occurred in a

long-term care facility. (See “To Whom Reports are Made;

Time Frames,” page7.25, for time frames.)

Abuse of an elder or a dependent adult includes physical

abuse, neglect, financial abuse, abandonment, isolation,

abduction or other treatment with resulting physical harm

or pain or mental suffering, or the deprivation by a care

custodian of goods or services that are necessary to avoid

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physical harm or mental suffering [Welfare and Institutions

Code Section 15610.07]. Abuse does not include the use

of reasonable and necessary force by a peace officer acting

within the course of his or her employment [Penal Code

Section 11174.4].

WHO IS AN ELDER OR DEPENDENT ADULT?

Elders are persons 65 years of age or older. Dependent

adults are persons between ages 18 and 64 with physical

or mental limitations that restrict their ability to carry

out normal activities or protect their rights, including

persons with physical or developmental disabilities or

age-diminished physical or mental abilities. A person may

be considered a dependent adult even if he or she lives

independently. The law also expressly states that any

person between the ages of 18 and 64 who is admitted

as an inpatient

in an acute care hospital or other 24-hour

health facility is a dependent adult. (See Welfare and

Institutions Code Sections 15610.23 and 15610.27 for

definitions of relevant facilities.) [Welfare and Institutions

Code Sections 15610.23 and 15610.27]

B. Definitions

“Abandonment” means the desertion or willful forsaking

of an elder or dependent adult by anyone having care or

custody of that person under circumstances in which a

reasonable person would continue to provide care and

custody [Welfare and Institutions Code Section 15610.05].

“Abuse of an elder or a dependent adult” means physical

abuse, neglect, abandonment, isolation, abduction, or other

treatment with resulting physical harm or pain or mental

suffering, or the deprivation by a care custodian of goods

or services that are necessary to avoid physical harm or

mental suffering. Abuse of an elder or a dependent adult

also includes financial abuse as defined below. [Welfare and

Institutions Code Section 15610.07]

“Adult protective services agency” means a county

welfare department, except persons who do not work

directly with elders or dependent adults as part of their

official duties, including members of support staff and

maintenance staff [Welfare and Institutions Code Section

15610.13].

“Care custodian” means an administrator or an employee

of any of specified public or private facilities or agencies, or

persons providing care or services for elders or dependent

adults, including members of the support staff and

maintenance staff [Welfare and Institutions Code Section

15610.17]. These facilities and agencies include the

following: 24-hour health facilities as defined in Health and

Safety Code Sections 1250, 1250.2 and 1250.3; clinics;

home health agencies; agencies providing publicly funded

in-home supportive services, nutrition services, or other

home- and community-based support services; adult day

health care centers and adult day care; Alzheimer’s Disease

day care resource centers; community care facilities as

defined in Health and Safety Code Section 1502; residential

care facilities for the elderly as defined in Health and Safety

Code Section 1569.2; respite care facilities; and other

protective, public, sectarian, mental health, or private

assistance or advocacy agencies and persons providing

health services or social services to elders or dependent

adults. (See Welfare and Institutions Code Section

15610.17 for a complete list of “care custodians.”)

“Clergy member” means a priest, minister, rabbi, religious

practitioner or similar functionary of a church, synagogue,

temple, mosque or recognized religious denomination

or organization. Clergy member does not include unpaid

volunteers whose principal occupation or vocation does not

involve active or ordained ministry in a church, synagogue,

temple, mosque or recognized religious denomination

or organization, and who periodically visit elder or

dependent adults on behalf of that church, synagogue,

temple, mosque or recognized religious denomination

or organization. [Welfare and Institutions Code Section

15610.19]

“Endangered adult” means a dependent or elder adult

who is at immediate risk of serious injury or death, due to

suspected abuse or neglect and who demonstrates the

inability to take action to protect himself or herself from the

consequences of remaining in that situation or condition

[Welfare and Institutions Code Section 15701.25].

“Financial abuse” occurs when a person or entity takes,

secretes, appropriates, obtains, or retains (or assists

another to do so) real or personal property of an elder

or dependent adult for a wrongful use or with intent to

defraud or both, or by undue influence. A person or entity

shall be deemed to have taken, secreted, appropriated,

obtained, or retained for a wrongful use if, among other

things, the person did so knowing (or if the person should

have known) that this would likely be harmful to the elder

or dependent adult. Property includes any property right,

including by means of an agreement, donative transfer, or

testamentary bequest, regardless of whether the property

is held directly or by a representative. A representative is a

conservator, trustee or other representative of the estate of

an elder or dependent adult, or an attorney-in-fact acting

within the authority of the power of attorney. [Welfare and

Institutions Code Section 15610.30]

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“Goods and services necessary to avoid physical harm

or mental suffering” include, but are not limited to, all

of the following [Welfare and Institutions Code Section

15610.35]:

1. The provision of medical care for physical and mental

health needs.

2. Assistance in personal hygiene.

3. Adequate clothing.

4. Adequately heated and ventilated shelter.

5. Protection from health and safety hazards.

6. Protection from malnutrition, under those

circumstances where the results include, but are not

limited to, malnutrition and deprivation of necessities or

physical punishment.

7. Transportation and assistance necessary to secure any

of the needs set forth above.

“Health practitioner” includes a physician; psychiatrist;

psychologist; dentist; resident; intern; podiatrist;

chiropractor; registered nurse; dental hygienist; licensed

clinical social worker or associate clinical social worker;

associate clinical marriage and family therapist; licensed

professional clinical counselor; any other person who is

currently licensed under Business and Professions Code

Section 500 et seq.; emergency medical technician I or

II; paramedic; person certified pursuant to Health and

Safety Code Section 1797 et seq.; psychological assistant

registered pursuant to Business and Professions Code

Section 2913; marriage and family therapist trainee, as

defined in Business and Professions Code Section

4980.03; unlicensed associate marriage and family

therapist registered under Business and Professions Code

Section 4980.44; a professional clinical counselor trainee;

an associate professional clinical counselor; state or county

public health or social service employee who treats an elder

or a dependent adult for any condition; substance use

disorder counselor; or a coroner [Welfare and Institutions

Code Section 15610.37].

“Imminent danger” means a substantial probability that

an elder or dependent adult is in imminent or immediate

risk of death or serious physical harm, through either his

or her own action or inaction, or as a result of the action or

inaction of another person [Welfare and Institutions Code

Section 15610.39].

“Isolation” means any of the following [Welfare and

Institutions Code Section 15610.43]:

1. Acts intentionally committed for the purpose of

preventing, and that do serve to prevent, an elder

or dependent adult from receiving his or her mail or

telephone calls.

2. Telling a caller or prospective visitor that an elder or

dependent adult is not present, does not wish to talk

with the caller, or does not wish to meet with the visitor

where the statement is:

a. False;

b. Contrary to the express wishes of the elder or

dependent adult, whether he or she is competent

or not; and

c. Made for the purpose of preventing the elder or

dependent adult from having contact with family,

friends or concerned persons.

3. False imprisonment, as defined in Penal Code

Section 236.

4. Physical restraint of an elder or dependent adult for

the purpose of preventing him or her from meeting

with visitors.

These acts are subject to a rebuttable presumption that

they do not constitute isolation if they are performed

pursuant to the instructions of a physician licensed to

practice medicine in California, who is caring for the

elder or dependent adult at the time the instructions are

given, and who gives the instructions as part of his or her

medical care.

Also, these acts shall not constitute isolation if they are

performed in response to a reasonably perceived threat of

danger to property or physical safety.

“Local law enforcement agency” means a city police

or county sheriff’s department, or a county probation

department, except persons who do not work directly with

elders or dependent adults as part of their official duties,

including members of support staff and maintenance staff

[Welfare and Institutions Code Section 15610.45].

“Long-term care facility” means any of the following

[Welfare and Institutions Code Section 15610.47]:

1. A long-term health care facility, as defined in Health

and Safety Code Section 1418(a).

2. A community care facility, as defined in Health and

Safety Code Section 1502(a), whether licensed

or unlicensed.

3. A swing bed in an acute care facility, or an extended

care facility.

4. An adult day health care center as defined in Health

and Safety Code Section 1570.7(b).

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5. A residential care facility for the elderly as defined in

Health and Safety Code Section 1569.2.

“Long-term care ombudsman” means the California

Long-Term Care Ombudsman, local ombudsman

coordinators, and other persons currently certified as

ombudsmen by the California Department of Aging as

described in Welfare and Institutions Code Section 9700 et

seq. [Welfare and Institutions Code Section 15610.50].

“Mental suffering” means:

1. Fear, agitation, confusion, severe depression or other

forms of serious emotional distress that is brought

about by forms of intimidating behavior, threats,

harassment or by deceptive acts performed; or

2. False or misleading statements made with malicious

intent to agitate, confuse, frighten or cause severe

depression or serious emotional distress of the elder or

dependent adult.

[Welfare and Institutions Code Section 15610.53]

“Neglect” means:

1. The negligent failure of a person having the care or

custody of an elder or a dependent adult to exercise

that degree of care that a reasonable person in a like

position would exercise; or

2. The negligent failure of an elder or dependent adult

to exercise that degree of self-care that a reasonable

person in a like position would exercise.

Neglect includes, but is not limited to, all of the following:

1. Failure to assist in personal hygiene, or in the provision

of food, clothing or shelter.

2. Failure to provide medical care for physical and mental

health needs. No person shall be deemed neglected

or abused for the sole reason that he or she voluntarily

relies on treatment by spiritual means through prayer

alone in lieu of medical treatment.

3. Failure to protect from health and safety hazards.

4. Failure to prevent malnutrition or dehydration.

If a person cannot provide the above for himself or

herself due to poor cognitive functions, mental limitation,

substance abuse or chronic poor health, this also

constitutes neglect.

[Welfare and Institutions Code Section 15610.57]

“Physical abuse” means all of the following, as these terms

are defined in the Penal Code [Welfare and Institutions

Code Section 15610.63]:

1. Assault

2. Battery

3. Assault with a deadly weapon or force likely to produce

great bodily injury

4. Unreasonable physical constraint, or prolonged or

continual deprivation of food or water

5. Sexual assault, which means any of the following:

a. Sexual battery

b. Rape

c. Rape in concert

d. Spousal rape

e. Incest

f. Sodomy

g. Oral copulation

h. Sexual penetration

i. Lewd or lascivious act

6. Use of a physical or chemical restraint or psychotropic

medication under any of the following conditions:

a. For punishment

b. For a period significantly beyond that for which the

restraint or medication is authorized by a physician

licensed in California who is providing medical

care to the elder or dependent adult at the time

the instructions are given

c. For any purpose not authorized by the physician

“Reasonable suspicion” means an objectively reasonable

suspicion that a person would entertain, based upon facts

that could cause a reasonable person in a like position,

drawing when appropriate upon his or her training and

experience, to suspect abuse [Welfare and Institutions

Code Section 15610.65].

“Serious bodily injury” means an injury involving extreme

physical pain, substantial risk of death, or protracted loss

or impairment of function of a bodily member, organ, or of

mental faculty, or requiring medical intervention, including,

but not limited to, hospitalization, surgery, or physical

rehabilitation [Welfare and Institutions Code Section

15610.67].

“Substance use disorder counselor” is a person providing

counseling services in an alcoholism or drug abuse

recovery and treatment program licensed, certified, or

funded under Part 2 (commencing with Section 11760) of

Division 10.5 of the Health and Safety Code.

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“Undue influence” means excessive persuasion that

causes another person to act or refrain from acting by

overcoming that person’s free will and results in inequity.

In determining whether a result was produced by undue

influence, all of the following must be considered:

1. The vulnerability of the victim. Evidence of vulnerability

may include, but is not limited to, incapacity, illness,

disability, injury, age, education, impaired cognitive

function, emotional distress, isolation, or dependency,

and whether the influencer knew or should have known

of the alleged victim’s vulnerability.

2. The influencer’s apparent authority. Evidence of

apparent authority may include, but is not limited to,

status as a fiduciary, family member, care provider,

health care professional, legal professional, spiritual

adviser, expert, or other qualification.

3. The actions or tactics used by the influencer. Evidence

of actions or tactics used may include, but is not

limited to, all of the following:

a. Controlling necessaries of life, medication, the

victim’s interactions with others, access to

information, or sleep.

b. Use of affection, intimidation, or coercion.

c. Initiation of changes in personal or property

rights, use of haste or secrecy in effecting those

changes, effecting changes at inappropriate

times and places, and claims of expertise in

effecting changes.

4. The equity of the result. Evidence of the equity of the

result may include, but is not limited to, the economic

consequences to the victim, any divergence from the

victim’s prior intent or course of conduct or dealing,

the relationship of the value conveyed to the value

of any services or consideration received, or the

appropriateness of the change in light of the length

and nature of the relationship.

Evidence of an inequitable result, without more, is not

sufficient to prove undue influence.

[Welfare and Institutions Code Section 15610.70]

C. Mandatory Reporting of Abuse

Certain categories of persons, referred to as mandated

reporters, are required to report any suspected abuse, as

defined, of elders or dependent adults.

MANDATED REPORTERS

Persons required to report elder or dependent adult

abuse are:

1. Elder or dependent adult “care custodians” (see

definition on page7.20; every employee of a hospital

is a “care custodian”).

2. Health practitioners (see page7.21.)

3. Clergy members.

4. Employees of a county adult protective services

agency or local law enforcement agency.

5. Any person who has assumed full or intermittent

responsibility for the care or custody of an elder or

dependent adult, whether or not that person receives

compensation, including administrators, supervisors,

and any licensed staff of a public or private facility that

provides care or services for elder or dependent adults

[Welfare and Institutions Code Section 15630(a)].

Exception

A mandated reporter who is a clergy member who acquires

knowledge or reasonable suspicion of elder or dependent

adult abuse during a penitential communication is not

required to report. “Penitential communication” means

a communication that is intended to be in confidence,

including, but not limited to, a sacramental confession

made to a clergy member who, in the course of the

discipline or practice of his or her church, denomination

or organization is authorized or accustomed to hear

those communications and under the discipline,

tenets, customs or practices of his or her church,

denomination or organization, has a duty to keep those

communications secret.

However, this exception does not modify or limit a clergy

member’s duty to report known or suspected elder and

dependent adult abuse if he or she is acting in the capacity

of a care custodian, health practitioner or employee of an

adult protective agency.

A clergy member who is not regularly employed on either

a full-time or part-time basis in a long-term care facility or

does not have care or custody of an elder or dependent

adult is not required to report abuse or neglect that is

not reasonably observable or discernible to a reasonably

prudent person having no specialized training or experience

in elder or dependent care.

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WHAT TRIGGERS REPORTING OBLIGATION

General Rule

A report must be made by a mandated reporter who, in

his or her professional capacity or within the scope of his

or her employment [Welfare and Institutions Code Section

15630(b)]:

1. Has observed or has knowledge of an incident

that reasonably appears to be physical abuse,

abandonment, abduction, isolation, financial abuse or

neglect; or

2. Is told by an elder or dependent adult that he or she

has experienced behavior, including an act or omission,

constituting physical abuse, abandonment, abduction,

isolation, financial abuse or neglect; or

3. Reasonably suspects abuse.

No Duty to Investigate

A mandated reporter does not have a duty to investigate

a known or suspected incident of abuse. In fact, criminal

liability may arise where a mandated reporter undertakes

an investigation and determines that no report is needed

[People v. Davis, 126 Cal. App. 4th 1416 (2005)]. It is up

to the mandated reporter to report the facts giving rise to

the suspicion of abuse, and it is up to law enforcement to

investigate and determine whether abuse occurred.

Incidents That Do Not Need to Be Reported

A physician, registered nurse or psychotherapist as defined

in Evidence Code Section 1010 need not report an incident

if all of the following conditions exist:

1. The mandated reporter has been told by an elder

or dependent adult that he or she has experienced

behavior constituting physical abuse, abandonment,

abduction, isolation, financial abuse or neglect.

2. The mandated reporter is not aware of any

independent evidence that corroborates the statement

that the abuse has occurred.

3. The elder or dependent adult has been diagnosed

with a mental illness or dementia, or is the subject of

a court-ordered conservatorship because of a mental

illness or dementia.

4. The physician, registered nurse or psychotherapist as

defined in Evidence Code Section 1010 reasonably

believes, in the exercise of clinical judgment, that the

abuse did not occur.

(See “Definition of Psychotherapist,” page7.34, for a list

of which professionals are considered “psychotherapists”

pursuant to Evidence Code Section 1010.)

In addition, in a long-term care facility, a mandated reporter

need not report an incident where all of the following

conditions exist:

1. The mandated reporter is aware that there is a proper

plan of care.

2. The mandated reporter is aware that the plan of care

was properly provided or executed.

3. A physical, mental or medical injury occurred as a

result of care provided pursuant to the above.

4. The mandated reporter reasonably believes that the

injury was not the result of abuse.

This exception applies only to those categories of

mandated reporters that the California Department of

Public Health (CDPH) determines have access to plans

of care and have the training and experience necessary

to determine whether the conditions specified have been

met. A mandated reporter in a long-term care facility is not

required to seek, nor is precluded from seeking, information

regarding a known or suspected incident of abuse prior to

reporting.

D. Nonmandated Reporting

In addition to the reports of abuse that must be made

by mandated reporters, reports of other types of elder

or dependent adult abuse may be made by any person,

whether mandated reporters or other persons. Other forms

of elder or dependent adult abuse may include intimidation,

cruel punishment or other treatment that endangers an

elder or dependent adult’s emotional well-being. If a report

is not required to be made under California law, then it may

not be made by the patient’s health care provider unless

it also complies with federal privacy regulations, which

require that:

1. The victim agrees to the disclosure; or

2. The health care provider, in the exercise of professional

judgment, believes the disclosure is necessary to

prevent serious harm to the victim or other potential

victims; or

3. If the victim is unable to agree because of incapacity, a

law enforcement or other public official authorized to

receive the report represents that the protected health

information to be disclosed is not intended to be used

against the victim and that an immediate enforcement

activity that depends upon the disclosure would be

materially and adversely affected by waiting until the

victim is able to agree to the disclosure. [45 C.F.R.

Section 164.512(c); Civil Code Section 56.10(c)(14)]

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BY MANDATED REPORTERS

If making the report satisfies the standards described

above, then a mandated reporter may file a report where

that person knows, or reasonably suspects, that types of

elder or dependent adult abuse for which reports are not

mandated have been inflicted on an elder or dependent

adult or that the emotional well-being of an elder or

dependent adult is endangered in any other way [Welfare

and Institutions Code Section 15630(c)].

If the suspected abuse occurred in a long-term care

facility other than a state mental health hospital or a state

developmental center, the report may be made to the

long-term care ombudsman program.

If the suspected abuse occurred in a state mental health

hospital or a state developmental center, the report may

be made to the designated investigator of the California

Department of State Hospitals or the California Department

of Developmental Services, or to a local law enforcement

agency or to the local ombudsman.

If the suspected abuse occurred in any other place,

the report may be made to the county adult protective

services agency.

If the conduct involves criminal activity not constituting

abuse, it may also be immediately reported to the

appropriate law enforcement agency, if such reporting

complies with federal privacy regulations (see chapter 6).

(See also M.“Federal Requirements,” page7.30.)

BY OTHER PERSONS

A person who is not a mandated reporter who knows or

reasonably suspects that an elder or dependent adult has

been the victim of abuse may report that abuse as follows

[Welfare and Institutions Code Section 15631]:

1. If the abuse is alleged to have occurred in a long-term

care facility, the report may be made to a long-term

care ombudsman program or local law enforcement

agency, or both.

2. If the abuse is alleged to have occurred in any place

other than a long-term care facility, the report may be

made to the county adult protective services agency or

local law enforcement agency.

However, the federal privacy requirements described

in D.“Nonmandated Reporting,” page7.24, must be

met before a report may be made by the victim’s health

care provider.

E. Making Reports

TO WHOM REPORTS ARE MADE; TIME FRAMES

Abuse Occurring in a Long-Term Care Facility

If suspected or alleged abuse occurred in a long-term care

facility (except a state mental health hospital or a state

developmental center), the following reporting requirements

apply.

Physical Abuse. If suspected or alleged physical abuse

occurred in a long-term care facility and results in serious

bodily injury:

1. A telephone report must be made to the local law

enforcement agency immediately, but also no later than

within two hours of the mandated reporter observing,

obtaining knowledge of, or suspecting the physical

abuse; and

2. A written report must be made to the local

ombudsman, the facility’s licensing agency (CDPH

for hospitals and nursing facilities, Department of

Social Services for board and care facilities), and the

local law enforcement agency within two hours of the

mandated reporter observing, obtaining knowledge of,

or suspecting the physical abuse.

If suspected or alleged physical abuse occurred in a

long-term care facility and does not result in serious

bodily injury:

1. A telephone report must be made to the local law

enforcement agency within 24 hours of the mandated

reporter observing, obtaining knowledge of, or

suspecting the physical abuse; and

2. A written report must be made to the local

ombudsman, the facility’s licensing agency (CDPH

for hospitals and nursing facilities), and the local law

enforcement agency within 24 hours of the mandated

reporter observing, obtaining knowledge of, or

suspecting the physical abuse.

However, if the suspected abuse is allegedly caused by a

resident with a physician’s diagnosis of dementia, and there

is no serious bodily injury (as reasonably determined by

the mandated reporter, drawing upon his or her training or

experience), the reporter must:

1. Report to the local ombudsman or law enforcement

agency by telephone, immediately or as soon as

practicably possible; and

2. Make a written report within 24 hours.

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Abuse Other Than Physical Abuse. If suspected or

alleged abuse other than physical abuse occurred in a

long-term care facility (except a state mental health hospital

or a state developmental center), a telephone report and

a written report must be made to the local ombudsman or

the local law enforcement agency within the time frames

noted above for physical abuse that does not result in

serious bodily injury (see above).

A report must also be made to CDPH immediately or within

24 hours [Health and Safety Code Section 1418.91; Title

22, California Code of Regulations, Section 72541].

Abuse Occurring in a State Facility

If the suspected or alleged abuse occurred in a state

mental health hospital or a state developmental center, the

report must be made to designated investigators of the

California Department of State Hospitals or the California

Department of Developmental Services, or to the local

law enforcement agency. The report must be made by

telephone or through a confidential Internet reporting

tool immediately or as soon as practicably possible after

receiving the information concerning the incident. If the

initial report is made by telephone, a written report or an

Internet report must be sent to the appropriate agency

within two working days of receiving the information

concerning the incident.

If the suspected or alleged abuse or neglect resulted in

any of the following incidents, a report must be made

to designated investigators of the State Department of

State Hospitals or the State Department of Developmental

Services, and also to the local law enforcement agency:

1. A death.

2. A sexual assault, as defined in Welfare and Institutions

Code Section 15610.63.

3. An assault with a deadly weapon, as described Penal

Code Section 245, by a nonresident of the state

mental hospital or state developmental center.

4. An assault with force likely to produce great bodily

injury, as described in Penal Code Section 245.

5. An injury to the genitals when the cause of the injury

is undetermined.

6. A broken bone when the cause of the break

is undetermined.

Abuse Occurring Elsewhere

If the suspected or alleged abuse occurred in any other

place, the report must be made to the adult protective

services agency or the local law enforcement agency.

The report must be made by telephone or through a

confidential Internet reporting tool immediately or as soon

as practicably possible after receiving the information

concerning the incident. If the initial report is made by

telephone, a written report or an Internet report must be

sent to the appropriate agency within two working days of

receiving the information concerning the incident.

TELEPHONE OR INTERNET REPORT

A report by telephone or through a confidential Internet

reporting tool must include, if known:

1. The name of the person making the report.

a. If the person is one who is not a mandated

reporter, the person is not required to include

his or her name [Welfare and Institutions Code

Section 15633.5(d)].

b. If the name is given, the person’s identity

is confidential and disclosed only under

limited circumstances.

2. The name and age of the elder or dependent adult.

3. The present location of the elder or dependent adult.

4. The names and addresses of family members or any

other adult responsible for the elder’s or dependent

adult’s care.

5. The nature and extent of the elder’s or dependent

adult’s condition.

6. The date of the incident.

7. Any other information requested by the agency

receiving the report, including information that led the

person to suspect elder or dependent adult abuse.

[Welfare and Institutions Code Section 15630(e)]

WRITTEN REPORT

If the initial report is made by telephone, a written report or

an Internet report must be sent to the appropriate agency

[Welfare and Institutions Code Section 15630(b)]. Reports

should be submitted on forms adopted by the California

Department of Social Services [Welfare and Institutions

Code Section 15658(a)]. The current form is “Report of

Suspected Dependent Adult/Elder Abuse” (SOC 341). This

form can be obtained from county adult protective services

agencies, long-term care ombudsman coordinators or at

www.ccfmtc.org.

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SELECTION OF A PERSON TO REPORT

In the hospital, two or more people may become jointly

aware of the same instance of reportable elder or

dependent adult abuse. The law allows them to select, by

mutual agreement, a single person who will be responsible

for making the report. However, if one of these persons

knows that the designated person failed to report, that

person must thereafter make the report [Welfare and

Institutions Code Section 15630(d)].

The law allows the hospital to create internal procedures

to facilitate reporting, ensure confidentiality and apprise

supervisors and administrators of reports. These

procedures must make clear that reporting duties are

individual, that no supervisor or administrator may impede

or inhibit such reporting, and that a person is not subject

to sanctions for making a report [Welfare and Institutions

Code Section 15630(f)].

F. Notification of Patient/Victim That Report Will

be Made

The victim must be notified that a report has been or will

be made. (See C.“Informing the Patient of Reporting,”

page7.1, for information about this requirement.)

G. Forensic Medical Reports

Cal OES has developed forensic medical report forms,

instructions, and examination protocols, available at www.

ccfmtc.org. The form that providers must use for elder and

dependent adult abuse and neglect is “Forensic Medical

Report: Elder and Dependent Adult Abuse and Neglect

Examination” (Cal OES 2-602).

DOCUMENTATION IN THE MEDICAL RECORD

The forensic medical forms must become part of the

patient’s medical record pursuant to guidelines established

by the agency or agencies designated by the California

Offices of Emergency Services advisory committee.

Hospitals may wish to consider putting the forensic medical

reports in a separate section of the medical record to

prevent routine copying and disclosure of these reports for

purposes not related to the criminal justice system, and

to prevent improper release to unauthorized persons. The

completed forms are subject to the special confidentiality

laws pertaining to release of forensic medical examination

records (see I.“Confidentiality of Reports,” page7.18).

[Penal Code Section 11161.2(b)(3)]

The hospital’s initial report to law enforcement is not

required to be placed in the medical record. Hospitals

should develop a policy regarding maintenance of reports

to maintain confidentiality of the reporter’s identity (see

J.“Confidentiality of Reports; Disclosures,” page7.28).

H. Sanctions for a Failure to Report

A person who is required, but fails, to report an instance

of elder or dependent adult abuse may be found guilty

of a misdemeanor. A person who impedes or inhibits a

report may also be found guilty of a misdemeanor. The

punishment may include up to six months imprisonment

in the county jail, a fine of up to $1,000, or both. Any

mandated reporter who willfully fails to report an instance

of elder or dependent adult abuse, or impedes or inhibits

a report, where that abuse results in death or great bodily

injury, is punishable by not more than one year in a county

jail or by a fine of up to $5,000 or both. If a mandated

reporter intentionally conceals his or her failure to report an

incident known by the mandated reporter to be abuse or

severe neglect, the failure to report is a continuing offense

until the responsible law enforcement agency discovers the

offense. [Welfare and Institutions Code Section 15630(h)]

It is illegal for a person to do any of the following under

circumstances likely to produce great bodily harm or death:

1. Willfully cause or permit any elder or dependent adult

to suffer, or

2. Inflict unjustifiable physical pain or mental suffering

upon any elder or dependent adult, or

3. Having the care or custody of any elder or dependent

adult, willfully cause or permit the person or health of

the elder or dependent adult to be injured, or willfully

cause or permit the elder or dependent adult to be

placed in a situation in which his or her person or

health is endangered.

This illegal behavior is punishable by imprisonment in a

county jail not exceeding one year, by a fine not to exceed

$6,000 upon a first conviction or $10,000 for a subsequent

conviction, by both that fine and imprisonment, or by

imprisonment in the state prison for two, three, or four

years. If in the commission of this offense the victim suffers

great bodily injury, as defined, or death, the defendant shall

receive an additional term in the state prison. [Penal Code

Section 368]

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I. Immunity From Liability

No care custodian, clergy member, health practitioner,

mandated reporter of suspected financial abuse of an elder

or dependent adult, or employee of an adult protective

services agency or local law enforcement agency shall incur

any civil or criminal liability as a result of making a report

required or authorized by the statute. No other person

reporting a suspected instance of dependent adult abuse

shall incur civil or criminal liability as a result of making any

report authorized by the law unless it can be proved that

a false report was made and the person knew it was false

[Welfare and Institutions Code Section 15634(a)].

PROVIDING ACCESS TO THE VICTIM

No care custodian, clergy member, health practitioner,

mandated reporter of suspected financial abuse of

an elder or dependent adult, or employee of an adult

protective services agency or local law enforcement

agency investigating a report of known or suspected elder

or dependent adult abuse shall incur any civil or criminal

liability for providing an adult protective services agency or

local law enforcement agency with access to a victim of

suspected or known dependent adult abuse, when done

at the request of the agency [Welfare and Institutions Code

Section 15634(b)].

PHOTOGRAPHING OF SUSPECTED ABUSE

No person required to make a report, nor any person

taking photographs at his or her direction, shall incur

any civil or criminal liability for taking photographs of a

suspected victim of elder or dependent adult abuse, or

causing photographs to be taken of such a victim, or for

disseminating such photographs with the reports required

by statute. However, the law does not confer immunity from

liability with respect to any other use of such photographs

[Welfare and Institutions Code Section 15634(a)].

If the hospital can do so, it may wish to obtain such

photographs to provide documentation should a question

arise in the future concerning the justification for any report

made by hospital personnel.

ATTORNEYS’ FEES

A care custodian, clergy member, health practitioner or

employee of an adult protective services agency or local

law enforcement agency who is sued as a result of making

a report that is required or authorized under the statute

may recover from the state the attorneys’ fees spent

defending against the action, if the person prevails. The

state is required to reimburse the person for the reasonable

attorneys’ fees at hourly rates based upon the rates

charged by the California Attorney General, up to $50,000.

A claim may be filed with the Department of General

Services. [Welfare and Institutions Code Section 15634(c)]

EMPLOYERS

The failure of any employee or other person associated

with the employer to report physical abuse of elders or

dependent adults or otherwise meet the requirements of

the abuse reporting law is the sole responsibility of such

person. The person’s employer or facility shall incur no civil

or other liability for the failure of these persons to comply

with the abuse reporting law [Welfare and Institutions Code

Section 15659(f)].

J. Confidentiality of Reports; Disclosures

Reports of elder and dependent adult abuse are

confidential and may be disclosed only as provided by

statute [Welfare and Institutions Code Section 15633].

According to the statute, reports (and the information

contained therein) may be disclosed only as follows:

1. To persons or agencies to whom disclosure of

information or the identity of the reporter is permitted

(see below).

2. Persons who are trained and qualified to serve on

multidisciplinary personnel teams may disclose to one

another information and records that are relevant to

the prevention, identification or treatment of abuse of

elderly or dependent adults.

Disclosure is not authorized by this statute if such

disclosure is prohibited by any other applicable provision of

state or federal law. (See chapter 6 for further information

about privacy implications.)

However, these disclosures may be made only:

1. If the victim agrees to the disclosure; or

2. If the health care provider, in the exercise of

professional judgment, believes the disclosure is

necessary to prevent serious harm to the victim or

other potential victims; or

3. If the victim is unable to agree because of incapacity, a

law enforcement or other public official authorized to

receive the report represents that the protected health

information to be disclosed is not intended to be used

against the victim and that an immediate enforcement

activity that depends upon the disclosure would be

materially and adversely affected by waiting until the

victim is able to agree to the disclosure. [45 C.F.R.

Section 164.512(c)]

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DISCLOSURE OF INFORMATION REGARDING ABUSE

Information relevant to the incident of elder or dependent

adult abuse may be given to an investigator from an adult

protective services agency, a local law enforcement agency,

the office of the district attorney, the office of the public

guardian, the probate court, the bureau, or an investigator

of the Department of Consumer Affairs, Division of

Investigation who is investigating a known or suspected

case of elder or dependent adult abuse. [Welfare and

Institutions Code Section 15633]

In addition, a health care provider may, upon written

request, disclose otherwise confidential medical information

to an elder death review team in certain circumstances (see

CHA’s California Health Information Privacy Manual; order

online at www.calhospital.org/privacy).

[Penal Code Section 11174.8]

DISCLOSURE OF REPORTER’S IDENTITY

The identity of persons making reports is confidential and

may be disclosed only among the following agencies or

persons representing an agency:

1. An adult protective services agency.

2. A long-term care ombudsperson program.

3. A licensing agency.

4. A local law enforcement agency.

5. The office of the district attorney.

6. The office of the public guardian.

7. The probate court.

8. The Bureau of Medi-Cal Fraud within the Office of the

California Attorney General.

9. The California Department of Consumer Affairs,

Division of Investigation.

10. Counsel representing an adult protective

services agency.

The identity of a person who reports under this law may

also be disclosed under the following circumstances:

1. To the district attorney in a criminal prosecution.

2. When a person reporting waives confidentiality.

3. By court order.

[Welfare and Institutions Code Section 15633.5]

K. Employees’ Acknowledgment of Reporting

Obligations

Hospitals, and other employers of health practitioners,

clergy members and care custodians, are required to

provide forms on which persons hired for such positions

acknowledge that they are aware of the elder and

dependent adult abuse reporting requirements (specifically,

Welfare and Institutions Code Section 15630) and will

comply with them. A copy of Welfare and Institutions

Code Section 15630 must be provided to each employee.

These statements must be signed by the employee prior

to commencing employment (for employees hired after

Jan. 1, 1995). The signed statements must be retained

by the employer. The law does not specify how long the

statements must be retained; it is recommended that

they be retained at least as long as the employee remains

employed. [Welfare and Institutions Code Section 15659]

A form developed by the California Department of Social

Services may be used (SOC 341A) and can be downloaded

at www.cdss.ca.gov/inforesources/Forms-Brochures/

Forms-Alphabetic-List/Q-T#soc. CHA has also developed a

form, “Employee Acknowledgment of Elder and Dependent

Adult Abuse Reporting Obligations” (CHA Form 19-4), that

hospitals may use.

The hospital may supplement the acknowledgment and

notice by discussing any special policy it has regarding

notifying supervisors and administration about reports that

will be or are made, and how the reporting is coordinated

when several employees become aware of the same

instance of suspected elder or dependent adult abuse.

L. Employer Obligation to Train Employees

Every long-term care facility (as defined in Health and

Safety Code Section 1418), every community care facility

(as defined in Health and Safety Code Section 1502), and

every residential care facility for the elderly (as defined in

Health and Safety Code Section 1569.2) that provides

care to adults, must train its employees in recognizing and

reporting elder and dependent adult abuse, as prescribed

by the California Department of Justice. It is recommended

that general acute care hospitals also provide this training.

These facilities must also provide all staff being trained

a written copy of the reporting requirements and written

notification of the staff’s confidentiality rights under

Welfare and Institutions Code Section 15633.5 (see

I.“Confidentiality of Reports,” page7.18). The “Employee

Acknowledgment of Elder and Dependent Adult Abuse

Reporting Obligations” (CHA Form 19-4) fulfills these

requirements. Facilities may provide employees being

CHA Mental Health Law Manual 2019

7.30

trained a copy of the portion of CHA’s Consent Manual that

describes the California elder and dependent adult abuse

reporting laws to comply with this requirement.

New employees must be trained within 60 days of the

first day of employment. [Welfare and Institutions Code

Section 15655]

The California Department of Justice, in cooperation

with the California Department of Public Health and the

California Department of Social Services has developed a

minimal core training program that facilities may use.

M. Federal Requirements

REPORTING

The Elder Justice Act requires specified long-term care

facilities to report a reasonable suspicion of a crime

against a resident or other person receiving care from the

facility. The age of the resident and the location where the

crime occurred are irrelevant under this law. If the incident

results in serious bodily injury, it must be reported within

two hours of becoming aware of it. Otherwise, reporting

must take place within 24 hours. (See “Abuse Occurring

in a Long-Term Care Facility,” page7.25, for information

regarding to whom reports must be made.)

Failure to report as required by federal law may result in a

civil money penalty of up to $300,000 and exclusion from

participation in federal health care programs.

NOTIFYING EMPLOYEES AND OTHERS OF REPORTING

OBLIGATIONS

The Elder Justice Act requires the owner or operator of

a long-term care facility to annually notify each covered

individual of his/her obligation to comply with the federal

reporting requirements. A “covered individual” includes

each individual who is an owner, operator, employee,

manager, agent or contractor of the facility.

NONRETALIATION AND SIGNAGE

Facilities must adopt a non-retaliation policy and post signs

that specify the rights of employees under this law and tell

how an employee may file a complaint with the Secretary of

the U.S. Department of Health and Human Services against

a facility that violates this law. The Centers for Medicare &

Medicaid Services (CMS) is required to develop a model

sign. However, at the time of publication of this manual,

CMS had not done so. However, CMS issued a guidance

about the poster, S&C: 11-30-NH (revised 1-20-12)

available at www.cms.gov/Medicare/Provider-Enrollment-

and-Certification/SurveyCertificationGenInfo/downloads/

SCLetter11_30.pdf.

[42 U.S.C. Section 1320b-25]

N. Detention of Endangered Adults

The law allows (but does not require) a physician treating an

adult, if he/she determines that the adult is an endangered

adult (defined in B.“Definitions,” page7.20), to delay the

release of the endangered adult until:

1. A local law enforcement agency takes custody of the

endangered adult;

2. The responding agency determines that the adult is not

endangered; or

3. The responding agency takes other appropriate action

to ensure the safety of the endangered adult.

This law applies whether or not medical treatment is

required by the adult. [Welfare and Institutions Code

Section 15703.05]

Law enforcement officers and other designated persons

may take an endangered adult to temporary emergency

protective custody in certain circumstances for up to 72

hours. In such cases, the endangered adult must be taken

to a hospital if medical evaluation and treatment is required.

[Welfare and Institutions Code Section 15703]

During the 72-hour custody, the endangered adult will be

transferred to an appropriate temporary residence while

an investigation is conducted and a judicial hearing takes

place. The temporary residence may include a hospital

[Welfare and Institutions Code Section 15701.05].

Following the judicial hearing, the court may order the

provision of protective services on an emergency basis

for up to 14 business days. The court must specifically

designate the approved services in the emergency order.

An emergency order for protective services does not

include hospitalization unless the court order specifically

states otherwise. The emergency order will designate an

appropriate temporary conservator of the endangered adult

who is responsible for the care of the endangered adult and

who may consent for the provision of protective services,

including health related services, for the endangered adult.

This law specifically states that it must not be used to

circumvent the involuntary commitment process provided

for in Welfare and Institutions Code Section 5150 et seq.

[Welfare and Institutions Code Sections 15703-15705.40].

(See chapter 3 regarding involuntary commitment laws.)

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VII. INJURY OR CONDITION IN A PATIENT

RECEIVED FROM A LICENSED HEALTH

FACILITY RESULTING FROM NEGLECT OR

ABUSE

A. Statutory Duty of Hospital and Physician to

Report

Hospitals and physicians must report by telephone and in

writing within 36 hours to the local police and the county

health department if a patient is received from a health

facility or community care facility (as defined in Health and

Safety Code Sections 1250 et seq. and 1502 et seq.) who

exhibits a physical injury or condition which, in the opinion

of the examining physician, reasonably appears to be the

result of neglect or abuse. [Penal Code Section 11161.8]

Although the initial justification for and apparent legislative

intent was to require reporting in cases of suspected

neglect or abuse in patients received from nursing homes

only, the present statutory language is much broader and

requires reporting with respect to neglected or abused

patients of any age received from essentially any licensed

health care facility or community care facility.

This law was written long before the law regarding elder

and dependent adult abuse and neglect was amended

to require reporting of abuse that occurs in a long-term

care facility within two or 24 hours. Facilities should follow

the requirements of both laws if the patient is an elder or

dependent adult. (See VI.“Abuse of Elders and Dependent

Adults,” page7.19.)

CONTENTS OF REPORT

Telephone and written reports must state the character and

extent of the physical injury or condition.

Telephone Report

Although both the physician and hospital have an

independent duty to report, a single telephone report

will satisfy the requirement for an oral report. It is

recommended that the examining physician make the

telephone report.

Written Report

The “Report of Injury or Condition Resulting from Neglect

or Abuse (To a Patient Received from a Licensed Health

Facility)” (CHA Form 19-3) has been developed to meet

this reporting requirement. It is recommended that the

form be completed and signed by the examining physician

and then forwarded to the hospital administrator, or his or

her designee, for signature and transmission to both the

local police authority having jurisdiction and the county

health department.

NOTIFICATION OF PATIENT/VICTIM THAT REPORT

WILL BE MADE

The patient must be informed that a report has been or

will be made. (See C.“Informing the Patient of Reporting,”

page7.1.)

B. Optional Reporting by Nurses and Social

Workers

A registered nurse, licensed vocational nurse or licensed

clinical social worker employed at the admitting hospital

may report to the local police authority and the county

health department the fact that a patient received from

a health facility or community care facility, (as defined in

Health and Safety Code Sections 1250 and 1502), exhibits

a physical injury or condition which, in the opinion of the

nurse or social worker, reasonably appears to be the result

of neglect or abuse. [Penal Code Section 11161.8]

Reporting by nurses and social workers is not required by

statute, and hence, penalties for failure to report do not

apply. Except for victims of child abuse, federal privacy

regulations restrict the making of an optional report to

situations in which:

1. The victim agrees to the disclosure; or

2. The health care provider, in the exercise of professional

judgment, believes the disclosure is necessary to

prevent serious harm to the victim or other potential

victims; or

3. If the victim is unable to agree because of incapacity, a

law enforcement or other public official authorized to

receive the report represents that the protected health

information to be disclosed is not intended to be used

against the victim and that an immediate enforcement

activity that depends upon the disclosure would be

materially and adversely affected by waiting until the

victim is able to agree to the disclosure. [45 C.F.R.

Section 164.512(c)]

No employee may be discharged, suspended, disciplined

or harassed for making such a report.

C. Immunity From Liability

Penal Code Section 11161.8 provides that no person shall

incur any civil or criminal liability as a result of making a

report authorized by the law.

CHA Mental Health Law Manual 2019

7.32

VIII. SCREENING FOR DOMESTIC VIOLENCE

A. Screening Policies

General acute care hospitals, acute psychiatric hospitals,

special hospitals, psychiatric health facilities and chemical

dependency recovery hospitals must establish written

policies and procedures for routine screening of patients for

purposes of detecting spousal or partner abuse [Health and

Safety Code Section 1259.5]. The policies must include

guidelines on all of the following:

1. Identifying, through routine screening, spousal or

partner abuse among patients.

2. Documenting patient injuries or illnesses attributable to

spousal or partner abuse.

3. Educating appropriate hospital staff about the criteria

for identifying, and the procedures for handling,

patients whose injuries or illnesses are attributable to

spousal or partner abuse.

4. Advising patients exhibiting signs of spousal or

partner abuse of crisis intervention services that

are available either through the hospital or through

community-based intervention and counseling services.

5. Providing patients who exhibit signs of spousal or

partner abuse with information on domestic violence

and a referral list, to be updated periodically, of private

and public community agencies that serve persons

experiencing spousal or partner abuse, including

hotlines, shelters, legal services and information about

temporary restraining orders.

This law does not define “spousal abuse” or “partner

abuse.” However, Penal Code Section 273.5 states that

any person who willfully inflicts upon a person who is his or

her current or former spouse, cohabitant, fiancé or fiancée,

or dating partner, or the mother or father of his or her child,

corporal injury resulting in a traumatic condition is guilty of

a felony, and upon conviction thereof shall be punished by

imprisonment or by a fine or by both. As used in this law,

“traumatic condition” means a condition of the body, such

as a wound, or external or internal injury, including, but not

limited to, injury as a result of strangulation or suffocation,

whether of a minor or serious nature, caused by a physical

force. For purposes of this section, “strangulation” and

“suffocation” include impeding the normal breathing or

circulation of the blood of a person by applying pressure on

the throat or neck.

The Penal Code section discussed above does not discuss

abuse of persons who are dating but not cohabiting or

coparenting, or abuse of same-sex partners. However,

such abuse should also be reported as assaultive or

abusive conduct (see III.“Reporting Injuries by Firearm

or Assaultive or Abusive Conduct (“Suspicious Injuries”),”

page7.3).

Emotional or verbal abuse does not appear to be

reportable.

Similar requirements apply to licensed clinics [Health and

Safety Code Section 1233.5; Penal Code Section 13700].

B. Domestic Violence Indicators

Some indicators that may raise a suspicion of domestic

violence include:

1. Patient’s explanation of injury is inconsistent with

appearance of injury

2. Unexplained delay in seeking treatment

3. Patient is under or overly concerned with an injury

4. History of non-specific physical or somatic complaints

5. Overly attentive or aggressive partner

6. Multiple injuries with varying stages of healing

The health care provider may wish to question the patient

when he or she is alone and ask something along the lines

of, “Because violence is so prevalent in our society, I ask

all my patients about abuse. Have you ever been hurt or

threatened by a partner or ex-partner?”

If the patient answers in the affirmative, providers may

take a history, assess patient safety, provide emotional

support, provide medical/legal/social services referral

information, and document. Providers may wish to discuss

with the patient the legal obligation to report (if applicable)

and provide the patient with referrals so they can go to

a protected environment due to the risk of the abuser’s

retaliation after a report is made.

C. Reporting Requirements

Domestic violence must be reported if it meets the

requirements of any of the following reporting laws:

1. Injury by firearm or assaultive or abusive conduct

(also known as “suspicious injury reporting”) (see

III.“Reporting Injuries by Firearm or Assaultive or

Abusive Conduct (“Suspicious Injuries”),” page7.3).

2. Sexual assault or rape (see IV.“Sexual Assault and

Rape,” page7.5).

3. Elder or dependent adult abuse (see VI.“Abuse of

Elders and Dependent Adults,” page7.19).

Chapter 7 — Reporting Assaults, Potentially Dangerous Patients and Firearms Prohibitions CHA

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D. Forms

Cal OES has developed a form (Cal OES 2-502),

instructions, and examination protocol for use in cases of

domestic abuse. They may be found at www.ccfmtc.org.

IX. POTENTIALLY DANGEROUS PATIENTS: DUTY

TO WARN POTENTIAL VICTIMS AND NOTIFY

LAW ENFORCEMENT

A. Duty to Warn Potential Victims

The California Supreme Court held in Tarasoff v. Regents

of the University of California, 17 Cal.3d 425 (1976), that

a psychotherapist has a duty to warn, or take other

appropriate action to protect, the foreseeable victim or

victims of a patient’s violent tendencies, if:

1. A psychotherapist-patient relationship exists,

2. The psychotherapist knows or should know that the

patient is dangerous, and

3. There is a foreseeable victim or victims of the patient’s

violent tendencies.

According to the court, when a therapist determines

(or pursuant to the standards of the profession should

determine) that a patient presents a serious danger of

violence to another, the therapist has a duty to use

reasonable care to protect the intended victim against the

danger. Depending on the nature of the case, the discharge

of this duty may require the therapist to take one or more

steps, including warning the intended victim or others likely

to apprise the victim of the danger, notifying the police, or

taking other steps that may be reasonably necessary under

the circumstances. After the court’s decision, the California

legislature enacted an immunity statute under which, if a

warning is required, the psychotherapist must at least notify

both the potential victim(s) and law enforcement.

In carrying out this duty, the psychotherapist may need

to release confidential patient information. The court held

that in these situations, the justification for protecting

the patient’s confidentiality (e.g., to encourage patients

to seek treatment and fully disclose information to their

psychotherapist) is outweighed by the need to warn

potential victims so that they can protect themselves. In

addition, the Confidentiality of Medical Information Act and

Welfare and Institutions Code Section 5328(a)(18) allow the

release of confidential information when a psychotherapist

believes that a patient presents a serious danger of

violence to a reasonably foreseeable victim or victims.

Also, the psychotherapist-patient privilege does not apply

if the psychotherapist has reasonable cause to believe

that the patient is in such mental or emotional condition

as to be dangerous to himself or to the person or property

of another, and that disclosure of the communication is

necessary to prevent the threatened danger (see Evidence

Code Section 1024). The HIPAA privacy regulations also

permit these disclosures [45 C.F.R. Section 164.512(j)(l)(i)].

B. Duty to Notify Law Enforcement Agency

A licensed psychotherapist is required to report, within

24 hours, to a local law enforcement agency the identity

of a person who has communicated to the licensed

psychotherapist a serious threat of physical violence

against a reasonably identifiable victim or victims.

A “licensed psychotherapist,” for purposes of this

requirement, is defined in Evidence Code Section 1010,

subdivisions (a) to (e), as a person who is, or is reasonably

believed by the patient to be:

1. A person authorized to practice medicine in any state

or nation who devotes, or is reasonably believed by

the patient to devote, a substantial portion of his or her

time to the practice of psychiatry.

2. A licensed psychologist.

3. A licensed clinical social worker, when he or

she is engaged in applied psychotherapy of a

nonmedical nature.

4. A credentialed school psychologist.

5. A licensed marriage and family therapist.

[Welfare and Institutions Code Sections 8100(b)(1) and

8105(c)]

Note that the definition of “psychotherapist” for the

purposes of this requirement is narrower than the

definition of “psychotherapist” under the immunity statute

discussed below.

The report to law enforcement should be made by

telephone and be followed by a written letter documenting

the telephone report. A copy of the letter should be

retained by the hospital. The psychotherapist may also

need to warn potential victims, as described above. (See

also 45 C.F.R. Section 164.512(j)(l)(i).)

CHA Mental Health Law Manual 2019

7.34

C. Immunity From Liability

IMMUNITY FOR PSYCHOTHERAPISTS

Civil Code Section 43.92 provides immunity to

psychotherapists for failure to protect from a patient’s

violent behavior except if the patient has communicated to

the psychotherapist a serious threat of physical violence

against persons. That statute describes a duty to warn and

protect as well as how that duty might be met.

NOTE: Effective Jan. 1, 2014, the California legislature

changed the name of the “duty to warn and protect” to

the “duty to protect” in this law. However, the law explicitly

stated that changing the name shall not be “construed to

be a substantive change, and any duty of a psychotherapist

shall not be modified as a result of changing the wording in

this section.” The law also stated that “it is the intent of the

Legislature that a court interpret this section ... in a manner

consistent with the interpretation of this section as it read

prior to Jan. 1, 2013.” [Civil Code Section 43.92(c) and(d)]

Duty to Warn and Protect

Unless the patient has communicated to the

psychotherapist a serious threat of physical violence

against a reasonably identifiable victim or victims, a

psychotherapist (as defined in Evidence Code Section

1010 below) is not liable for:

1. Failing to protect from a patient’s threatened violent

behavior, or

2. Failing to protect from a patient’s violent behavior.

NOTE: A 2004 decision by the California Court of Appeal

expands the duty to warn under the law described in

this part of the manual. In Ewing v. Goldstein, 120 Cal.

App.4th 807 (2d Dist. 2004), the Court of Appeal ruled that

under Civil Code Section 43.92, a psychotherapist has a

duty to warn of a patient’s threat even if the patient never

communicated the threat directly to the psychotherapist,

as long as the patient’s threat was communicated to

the psychotherapist by a member of the patient’s family.

This ruling that a duty to warn may arise based on

communications to the psychotherapist by someone other

than the patient creates a duty to warn that exceeds the

literal language of Section 43.92. Psychotherapists should

consider what action they need to take in light of this

decision and consider whether to consult with their legal

counsel. Providers should review any documents (including

policies or forms) they use to inform patients about the

limits of confidentiality.

Satisfying the Duty

If there is a duty to warn and protect under the limited

circumstances specified above, the law states that the duty

is discharged by the psychotherapist making reasonable

efforts to communicate the threat to both the victim or

victims and a law enforcement agency. A psychotherapist

may also discharge the duty by taking other reasonable

measures, depending on the circumstances of the situation.

Placing the patient on an involuntary hold under Welfare

and Institutions Code Section 5150 might be a reasonable

measure also.

Definition of Psychotherapist

“Psychotherapist” is defined for purposes of this law in

Evidence Code Section 1010, subdivisions (a) to (p), to

mean a person who is, or is reasonably believed by the

patient to be:

1. A person authorized to practice medicine in any state

or nation who devotes, or is reasonably believed by

the patient to devote, a substantial portion of his or her

time to the practice of psychiatry.

2. A licensed psychologist.

3. A licensed clinical social worker, when he or she is

engaged in applied psychotherapy of a nonmedical

nature.

4. A credentialed school psychologist.

5. A licensed marriage and family therapist.

6. A person registered as a psychological assistant who

is under the supervision of a licensed psychologist or

board certified psychiatrist as required by Business

and Professions Code Section 2913, or a person

registered as an associate marriage and family

therapist who is under the supervision of a licensed

marriage and family therapist, licensed clinical social

worker, licensed psychologist, licensed professional

clinical counselor, or licensed physician certified in

psychiatry, as specified in Business and Professions

Code Section 4980.44.

7. A person registered as an associate clinical social

worker who is under supervision as specified in

Business and Professions Code Section 4996.23.

8. A person registered with the Board of Psychology

as a registered psychologist and who is under the

supervision of a licensed psychologist or board

certified psychiatrist.

9. A psychological intern as defined in Business and

Professions Code Section 2911 who is under the

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supervision of a licensed psychologist or board

certified psychiatrist.

10. A trainee, as defined in Business and Professions

Code Section 4980.03(c), who is fulfilling his or her

supervised practicum required by Business and

Professions Code Section 4980.36(d) or 4980.37(c)

and is supervised by a licensed psychologist, a board

certified psychiatrist, licensed clinical social worker, a

licensed marriage and family therapist, or a licensed

professional clinical counselor.

11. A California licensed registered nurse who possesses

a master’s degree in psychiatric-mental health nursing

and is listed as a psychiatric-mental health nurse by

the Board of Registered Nursing.

12. An advanced practice registered nurse who is

certified as a clinical nurse specialist pursuant to

Business and Professions Code Section 2838 et

seq. and who participates in expert clinical practice in

psychiatric-mental health nursing.

13. A person providing outpatient mental health treatment

or counseling services to minors as authorized by

Family Code Section 6924. This includes psychiatrists,

psychologists, social workers, and marriage and

family therapists, as well as services provided by a

governmental agency, an entity having a contract with

a governmental agency to provide the services, a

runaway house, or a crisis resolution center.

14. A person licensed as a professional clinical counselor

under Business and Professions Code Section

4999.10 et seq.

15. A person registered as an associate professional

clinical counselor who is under the supervision of a

licensed professional clinical counselor, a licensed

marriage and family therapist, a licensed clinical social

worker, a licensed psychologist, or a licensed physician

and surgeon certified in psychiatry, as specified in

Business and Professions Code Sections 4999.42 to

4999.48.

16. A clinical counselor trainee, as defined in Business

and Professions Code Section 4999.12(g), who is

fulfilling his or her supervised practicum required by

Business and Professions Code Section 4999.32(c)

(3) or 4999.33(c)(3), and is supervised by a licensed

psychologist, a board certified psychiatrist, a licensed

clinical social worker, a licensed marriage and family

therapist, or a licensed professional clinical counselor.

IMMUNITY FOR PSYCHOTHERAPISTS AND OTHERS

As indicated in chapter 3, Welfare and Institutions Code

Sections 5154, 5173, 5259.3, 5267 and 5270.50 provide

immunity to various persons involved in the treatment,

evaluation and certification of involuntary mental health

patients, including the professional in charge of a

facility, the medical director and the psychiatrist directly

responsible for the patient’s treatment, provided that

certain conditions are met. This immunity may apply even

where a psychiatrist fails to carry out his or her obligation

under Tarasoff to warn or otherwise protect the foreseeable

victim of an involuntary patient’s violent tendencies [Lowe

v. County of San Diego, 183 Cal.App.3d 515 (1986), cert.

den.; Karash v. San Diego, 480 U.S. 946 (1987)].

D. Documenting Decisions

In order to carry out the duty to warn and to notify law

enforcement, the psychotherapist must strike a careful

balance between protecting the patient’s confidentiality and

protecting the potential victim. Initially, the psychotherapist

should gather relevant information about the patient,

including the patient’s past treatment. The therapist’s

decision about whether it is likely that the patient will carry

out his or her threats, or that the patient presents a danger

to another person, should be documented along with

the information that led to the decision. This will provide

important protection against claims that the therapist

should not have released information to law enforcement

and/or the potential victim (if a warning/notification is

given) or that the therapist did not carry out his or her duty

to warn the potential victim or notify law enforcement (if

a warning/notification is not given). If a warning is given,

the therapist should disclose only the information that is

necessary to enable the potential victim to recognize the

seriousness of the threat and take proper precautions to

protect himself or herself. A general indication to a person

that perhaps the person should avoid the patient may not

be a sufficient warning. Also, depending upon the patient’s

therapeutic condition and possible reaction, it may be

advisable to inform the patient that the warning will be

given. However, the law does not require that the patient be

so informed.

Situations in which a psychotherapist may have a duty

to warn a potential victim or notify law enforcement

often involve difficult decisions, and hospitals

and psychotherapists should seek legal advice in

specific situations.

CHA Mental Health Law Manual 2019

7.36

X. NOTIFYING LAW ENFORCEMENT OFFICERS

OF PATIENT PRESENCE, RELEASE OR

DISAPPEARANCE

As a general rule, a hospital may not disclose

patient-identifiable information to law enforcement officers

without the written authorization of the patient, unless a

special exception to the law applies. These exceptions

and required reporting of patient presence, release

or disappearance are described in H.“Notifying Law

Enforcement Officers of Patient Presence, Release or

Disappearance,” page6.x.

XI. PATIENTS PROHIBITED FROM POSSESSING

FIREARMS OR OTHER DEADLY WEAPONS

State law prohibits certain psychiatric patients and former

psychiatric patients from possessing or purchasing firearms

and other deadly weapons. Allowing these persons to

possess or purchase firearms or other deadly weapons

is also illegal. In order to implement these laws, facilities

that provide psychiatric treatment are required to make

the reports discussed in C.“Reporting Requirements,”

page7.37. [Welfare and Institutions Code Sections

8100-8108]

A. Prohibition Against Possessing or Purchasing

a Firearm or Other Deadly Weapon

The persons described in B.“Persons Subject to the

Prohibition,” page7.36, are not permitted to possess,

control, purchase, receive, or attempt to purchase or

receive, any firearm or other deadly weapon.

Besides firearms, “deadly weapon” includes certain types

of ammunition, knives, explosives, clubs, and martial arts

weapons (see Penal Code Section 16590). Facilities should

consult their legal counsel if in doubt about whether a

particular article comes within the definition of a deadly

weapon. (See also Penal Code Sections 16430 and

16520.)

A person who knowingly supplies, sells, gives or allows

possession of a firearm by a person described below

will be incarcerated in the state prison for two to four

years. A person who knowingly supplies, sells, gives or

allows possession of another deadly weapon by a person

described below is subject to incarceration for one year or

less and/or fine.

If a person described below is found to have in his or

her possession a firearm or other deadly weapon, the

weapon must be confiscated by a law enforcement agency

or peace officer [Welfare and Institutions Code Section

8102(a)].

B. Persons Subject to the Prohibition

The following persons are subject to the prohibition against

possessing or purchasing a firearm or other deadly weapon

for the time period specified:

1. A person taken into custody, assessed and admitted

to a designated facility under Welfare and Institutions

Code Sections 5150-5152 because that person is a

danger to self or others (not gravely disabled). The

prohibition is effective for five years from the date

of discharge [Welfare and Institutions Code Section

8103(f)].

2. A person certified for intensive treatment under Welfare

and Institutions Code Sections 5250, 5260 or 5270.15.

The prohibition is effective for five years from the date

of discharge [Welfare and Institutions Code Section

8103(g)].

3. A person undergoing inpatient treatment, whether on

a voluntary or involuntary basis, who is a danger to

self or others. The prohibition ends once the patient is

discharged from the facility. [Welfare and Institutions

Code Section 8100(a) and (d)] The attending health

professional primarily responsible for the patient’s

treatment should document the determination that

the patient has a mental health disorder and probable

cause exists to believe he or she is a danger to self

or others. With respect to voluntary patients, “danger

to self” means a voluntary patient who has made a

serious threat of, or attempted, suicide with the use

of a firearm or other deadly weapon [Welfare and

Institutions Code Section 8100(f)].

4. A person who communicates to a licensed

psychotherapist a serious threat of physical violence

against a reasonably identifiable victim or victims, and

the psychotherapist reports this threat to the local

law enforcement agency. For purposes of this law,

“psychotherapist” is defined in Evidence Code Section

1010, subdivisions (a) through (e), inclusive, as a

person who is, or is reasonably believed by the patient

to be:

a. A person authorized to practice medicine in any

state or nation who devotes, or is reasonably

believed by the patient to devote, a substantial

portion of his or her time to the practice

of psychiatry.

b. A licensed psychologist.

c. A licensed clinical social worker, when he or

she is engaged in applied psychotherapy of a

nonmedical nature.

Chapter 7 — Reporting Assaults, Potentially Dangerous Patients and Firearms Prohibitions CHA

7.37

d. A credentialed school psychologist.

e. A licensed marriage and family therapist.

The prohibition ends five years after the date of the

report. [Welfare and Institutions Code Section 8100(b)]

5. A person who has been adjudicated by a court of any

state to be a mentally disordered sex offender or a

danger to others as a result of a mental disorder or

mental illness. The prohibition is of indefinite duration.

[Welfare and Institutions Code Section 8103(a)]

6. A person who has been found not guilty of certain

crimes by reason of insanity, or mentally incompetent

to stand trial. (Facilities should consult their legal

counsel if in doubt about whether a particular crime

falls within this law.) The prohibition is of indefinite

duration. [Welfare and Institutions Code Section

8103(b), (c) and (d)]

7. A person who has been placed under conservatorship

by a court pursuant to Welfare and Institutions Code

Section 5350 or the law of any other state because

the person is gravely disabled as a result of a mental

health disorder or impairment by chronic alcoholism, if

the court determined that possession of a firearm or

other deadly weapon would present a danger to the

patient or to others. The prohibition ends when the

conservatorship ends. [Welfare and Institutions Code

Section 8103(e)]

Some of the persons listed above may gain the right to

possess or purchase a firearm by obtaining a court order

to this effect. Facilities should consult their legal counsel if

in doubt about whether a particular patient has the right to

possess a firearm.

C. Reporting Requirements

Facilities must make reports to the California Department

of Justice (DOJ), as described below. The law does not

require facilities to notify patients that the reports described

below have been made.

REPORTING TO CALIFORNIA DEPARTMENT OF

JUSTICE

Initial Reporting

California law requires hospitals to report electronically to

DOJ information DOJ deems necessary to identify those

persons described in paragraphs 1., 2., 3. above. (Persons

described in paragraphs 4.-7. are reported to DOJ by local

law enforcement or by the courts.) The facility must report

within 24 hours of admission. Information about online

reporting may be obtained by calling the California DOJ at

(916) 227-7550.

A copy of the completed online form should be printed and

retained by the hospital. Facilities will be reimbursed by the

California DOJ for submitting reports at a rate of 50 cents

per report. Facilities must submit a quarterly invoice to DOJ.

Reporting at Time of Discharge

Facilities must report to DOJ the discharge of persons

described in paragraph 1. or 2. of B.“Persons Subject to

the Prohibition,” page7.36. However, discharge reports

are not to be made for persons who are discharged within

31 days after admission [Welfare and Institutions Code

Section 8103(h)].

REPORTING TO CONFISCATING LAW ENFORCEMENT

AGENCY

If a patient was detained or apprehended for examination

of his or her mental condition, or is a person described in

B.“Persons Subject to the Prohibition,” page7.36, and

has had a weapon or weapons confiscated pursuant to

Welfare and Institutions Code Section 8102, health facility

personnel must notify the confiscating law enforcement

agency upon release of the patient. “Notice to Law

Enforcement Agency: Release of Person From Whom A

Firearm or Other Deadly Weapon Was Confiscated” (CHA

Form 13-4) can be used for this purpose. A copy of this

form should be retained by the hospital. [Welfare and

Institutions Code Section 8102(b)]

D. Patient Notification Obligations

NOTICE TO PATIENT

Prior to, or concurrent with, the discharge of a person

described in paragraph 1. or 2. of B.“Persons Subject

to the Prohibition,” page7.36, the facility must inform

that person that he or she is prohibited from owning,

possessing, controlling, receiving, or purchasing any

firearm or other dangerous weapon for five years after

discharge. The facility must also tell the patient that he or

she may request a court hearing for an order permitting

the patient to own, possess, control, receive, or purchase

a firearm. The facility should have each such patient sign a

form stating that he or she received this information. The

California DOJ has developed a form for this purpose,

“Patient Notification of Firearms Prohibition and Right to

Hearing Form” (BOF 4009B). (This form may be ordered

from the California DOJ at the phone number given above.)

CHA Mental Health Law Manual 2019

7.38

A copy of the signed form should be given to the patient;

the original should be retained by the hospital. If the person

requests a hearing at the time of discharge, the facility must

forward the form to the superior court, unless the person

states that he or she will submit the form. [Welfare and

Institutions Code Section 8103]

PROCEDURE FOR RETURN OF WEAPON

If a patient was detained or apprehended for examination

of his or her mental condition or was a person described

in B.“Persons Subject to the Prohibition,” page7.36, and

had a weapon confiscated by a law enforcement agency,

the hospital must notify the patient of the procedure for the

return of the weapon. When the patient is released, the

facility should have the patient sign a form stating that he

or she received this information. A form for this purpose,

“Notice to Patient: Procedure for Return of Confiscated

Weapon(s)” (CHA Form 13-5), is included at the end of

this manual. A copy of the signed form should be given to

the patient; the original should be retained by the hospital

[Welfare and Institutions Code Section 8102(b)].

E. Confidentiality Considerations

State and federal health information privacy laws permit

health facilities and practitioners to make reports that are

required by law [45 C.F.R. Section 164.512(a); Civil Code

Section 56.10(c)(14); see also 65 Ops. Cal. Atty. Gen. 345

(1982)].

Reports submitted to the DOJ regarding patients described

in paragraphs 1. and 2. under B.“Persons Subject to

the Prohibition,” page7.36, are confidential and may be

used only for court proceedings and by DOJ to determine

a patient’s eligibility to own, possess, control, receive, or

purchase a firearm [Welfare and Institutions Code Section

8103(f)(2)(A) and g(2)(A)]. Hospitals should retain copies of

reports made, but should consider keeping them separate

from the medical record or in a separate portion of the

medical record to prevent routine copying and disclosure

for purposes not related to the criminal justice system, and

to prevent improper release to unauthorized persons.

F. Immunity From Liability

Mental health facilities and treating health professionals are

immune from civil liability for making a report required or

authorized in the law [Welfare and Institutions Code Section

8108].

Chapter 8 — Contents

8 Adverse Events and Incident Reports

I. INTRODUCTION ....................................... 8.1

II. LEGAL ASPECTS OF INTERNAL INCIDENT

AND QUALITY REPORTING

....................... 8.1

A. Incident Reports ............................................8.1

B. Medical Staff Quality Assurance Reports ...8.1

C. Coordinating Incident and Quality

Assurance Reporting

....................................8.2

D. Patient Safety Organizations ........................8.2

E. Considerations in Developing the

Internal Reporting Process

...........................8.2

III. PREPARING CONFIDENTIAL INCIDENT

REPORTS ................................................ 8.3

A. General Principle ...........................................8.3

B. Maintaining the Privilege ..............................8.3

Disclosure to CDPH ..........................................8.3

C. Documenting Incident in the Medical

Record

...........................................................8.4

IV. REQUIRED PATIENT SAFETY PLAN ........... 8.4

A. Written Plan....................................................8.4

B. Patient Safety Committee ............................. 8.5

C. Patient Safety Event Definition ..................... 8.5

V. THE JOINT COMMISSION

REQUIREMENTS

...................................... 8.5

A. Sentinel Events ..............................................8.5

B. Periodic Performance Review ......................8.6

VI. NOTIFYING THE PATIENT OR FAMILY ........ 8.6

A. Outcomes of Care .........................................8.7

B. Statements of Sympathy/Apologies ............8.7

VII. CDPH ADVERSE EVENTS REPORTING ....... 8.7

A. Types of Events That Must be Reported .....8.7

Surgical Events ................................................. 8.8

Product or Device Events

..................................8.8

Patient Protection Events

.................................. 8.8

Care Management Events

................................. 8.8

Environmental Events

........................................8.9

Criminal Events

................................................. 8.9

Final Item

..........................................................8.9

B. Required Time Frame for Reporting ............8.9

C. How to Report ................................................ 8.9

D. Communication With Affected Patient(s) ....8.9

E. Relationship With Other Reporting

Requirements.................................................8.9

F. CDPH Investigations and Reports .............8.10

Ongoing Threat of Imminent Danger ................8.10

No Threat of Imminent Danger

........................8.10

Definition

........................................................8.10

Follow-Up

.......................................................8.10

CDPH Public Reporting of Adverse Events

...... 8.10

G. Penalties for Failure to Report ...................8.10

VIII. MEDICATION ERRORS .......................... 8.11

IX. REPORTS UNDER THE SAFE MEDICAL

DEVICES ACT OF 1990 .......................... 8.11

A. When and To Whom Reports of

Adverse Events Must be Made

...................8.11

Individual Reports ...........................................8.11

Annual Reports

............................................... 8.11

Where to Submit Reports

................................8.12

Definitions

.......................................................8.12

Forms to be Used

........................................... 8.12

Questions

....................................................... 8.12

Disclaimers

..................................................... 8.13

B. Restraints .....................................................8.13

C. Required Policies and Procedures ............8.13

Required Documentation ................................8.13

D. Request From FDA for Additional

Information

..................................................8.13

Chapter 8 — Contents

CHA Mental Health Law Manual 2019

FORMS & APPENDICES

20-1 Adverse Event Report Form — Sample

21-1 Incident Report

21-2 Report to Attorney

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

“S” denotes that the form is provided in English and Spanish.

E. Device Tracking ...........................................8.13

Patient Confidentiality Rights ...........................8.14

Device Tracking Records

.................................8.14

X. REPORTING REQUIREMENTS RELATED

TO RESTRAINT OR SECLUSION

.............. 8.14

XI. REPORTABLE “UNUSUAL

OCCURRENCES”

................................... 8.14

8 Adverse Events and Incident Reports

8.1

I. INTRODUCTION

This chapter describes the legal issues involved in

establishing incident report and quality improvement

systems that protect the sensitive information generated

from subpoena or other discovery attempts in a lawsuit

against the hospital. This chapter also describes the legal

and accreditation requirements for notifying patients of

adverse events, implementing patient safety plans, and

reporting adverse events to government agencies.

II. LEGAL ASPECTS OF INTERNAL INCIDENT

AND QUALITY REPORTING

Appropriate reporting of incidents within a facility is

important for many reasons. First, the proper personnel

within the hospital must be alerted to the fact that an

incident has occurred so that they may immediately act

to mitigate any potential negative effects of the incident.

In addition, appropriate personnel must investigate the

incident when memories and evidence are fresh, and then

take the necessary steps to revise systems, policies and

procedures as appropriate to improve quality.

The California Legislature has recognized that incident

reporting and related quality improvement activities

require a level of confidence on the part of hospital staff

that the documents and information they create will

not be used against them in litigation. Accordingly, the

California Legislature has adopted two legal protections

from discovery by plaintiffs’ lawyers for certain documents

and other information. These legal protections, the

attorney-client privilege and the peer review protection from

discovery, are discussed below. In addition, the United

States Congress has adopted protections described in

D.“Patient Safety Organizations,”page8.2.

It is always the obligation of the entity claiming the benefit

of a nondisclosure privilege to show that the privileges

and protections apply in that particular instance. The

legal issues governing the confidentiality of the reports

discussed in this chapter are complex, and intended

confidentiality is easily thwarted by inadvertent uses or

disclosures of the reports. Few areas of health care are as

rife with misconceptions as to the circumstances under

which the law provides protection. Because of this, it is

extremely important for providers to seek legal assistance

in the design of their reporting systems and legal review of

any modifications made to them.

A. Incident Reports

Many hospitals have used the traditional incident report

system whereby an “Incident Report” (CHA Form 21-1)

or similar form of report is prepared by nursing staff or

other hospital personnel with the intent that the report will

remain confidential and be transmitted to the hospital’s

attorney (perhaps through its insurance carrier) for use in

litigation that might arise out of an incident. One purpose

of the incident report is to alert the hospital attorney to

potential claims. Another is to document the facts and

circumstances of the incident in a record that is created

at the time the incident occurs. If properly prepared and

maintained, incident reports may be protected from

discovery by the attorney-client privilege. This means that

persons suing the hospital would not be able to obtain the

documents, even by use of a subpoena. The procedure for

preparing the reports and preserving their confidentiality

is discussed in III.“Preparing Confidential Incident

Reports,”page8.3. As noted above, legal counsel should

be consulted regarding the design and implementation of

an incident reporting system.

B. Medical Staff Quality Assurance Reports

An alternative or supplement to the incident report system

is a quality assurance reporting system operated through

the medical staff quality assurance process. Under

this approach, reports describing incidents potentially

affecting the quality of patient care are transmitted to the

medical staff committee that has responsibility for the

hospital’s quality assurance program, usually through

the hospital’s quality assurance coordinator. This report,

unlike the incident report, is not prepared for the hospital’s

attorney for use in litigation, and therefore does not claim

protection under the attorney-client privilege. It is, however,

prepared for the medical staff committee responsible

for quality assurance. As such, the report is intended

CHA Mental Health Law Manual 2019

8.2

to constitute a medical staff committee document and

to qualify for protection from discovery under the “peer

review” confidentiality of Evidence Code Section 1157 (if

properly prepared and maintained). The goal here is the

same as with the incident report — i.e., to protect the

document from compelled disclosure. Although there are

some exceptions to the confidentiality of Evidence Code

Section 1157, it protects against compelled disclosure

in malpractice and most other private civil actions. (See,

however, Arnett v. Dal Cielo, 14 Cal.4th 4 (1996) regarding

the exception to Evidence Code Section 1157 protection

for administrative investigative subpoenas used in

connection with government investigations.)

As with the incident report, the details of the system

through which the report is completed and distributed are

important. It is particularly important to show an acceptable

connection between the reporting process and the medical

staff committee structure.

C. Coordinating Incident and Quality Assurance

Reporting

It is possible for the quality assurance reporting system

to tie into the incident reporting system. To do this, the

coordinator who is responsible for receiving the quality

assurance report completes, when appropriate, a “Report

to Attorney” form (CHA Form 21-2) or similar report form.

Like the incident report, the “Report to Attorney” form is

transmitted to the hospital’s attorney (perhaps through its

insurance carrier) for use in litigation that might arise out of

an incident. The “Report to Attorney” form is intended to

be protected by the attorney-client privilege in the same

manner as the incident report. It bears repeating that since

the privileges and protections involved are somewhat

technical in nature, hospital legal counsel should be

consulted regarding the structure and implementation of

such a system.

D. Patient Safety Organizations

A hospital may participate in a Patient Safety Organization

(PSO) and develop a Patient Safety Evaluation System

(PSES). Data, reports, records, memoranda, analyses, and

other information developed as part of a PSES may be

considered patient safety work product (PSWP) under the

Patient Safety and Quality Improvement Act of 2005. PSWP

is protected from discovery or access by subpoena, court

order, administrative order, inspection processes and other

demands for access.

A complete discussion of PSOs, including the confidentiality

of PSWP, is included in CHA’s California Hospital

Compliance Manual.

E. Considerations in Developing the Internal

Reporting Process

A medical staff quality assurance reporting system that

is protected by Evidence Code Section 1157 should be

designed to achieve the goals of improving the quality of

care, correcting problems and protecting patients, whereas

the incident reporting process that is protected by the

attorney-client privilege should be designed to gather the

information that will be needed to defend against liability

claims.

The medical staff quality assurance system should be

designed so that the practitioners involved in any incident

that is reported will be given appropriate feedback about

the findings from the review and the aspects of any plan of

correction that is developed that will affect them in future

cases. This feedback should be given routinely when

the concerns are identified rather than accumulated in

a confidential file that is disclosed only in the context of

a hearing on disciplinary action. Care must be taken to

balance the confidentiality of the person submitting the

report with the need to know sufficient details regarding the

report to allow for a meaningful response.

It is also appropriate to plan for feedback to staff who

submit reports, so the health care professionals may

work cooperatively to improve care. Although it would be

inappropriate to disclose information about disciplinary

warnings or actions issued to any individual (medical staff

member, nurse or other member of the health care team), it

is appropriate to convey information about deficiencies that

were identified and the plan of correction to avoid future

deficiencies, and to encourage the staff to work together to

implement the plan of correction.

The peer review protections will allow the disclosure of

information in the course of a quality assurance and peer

review process that requires identification of issues and

development of plans of correction. They also will allow

disclosures of the information for the purpose of improving

care provided by nonmedical staff members. For example,

the information may be used to redesign a pharmacy

medication order protocol for a certain drug or for planning

a nurse education course in a particular subject such

as administration and monitoring of Pitocin during labor.

These alternate uses are fully protected as long as the

system is subject to the medical staff committee oversight.

As is noted above, care must be taken in designing the

programs to take advantage of the protections from

discovery that are available. A hospital-wide quality

assurance plan that has no medical staff committee

oversight or participation will not meet the requirements

for the protection from discovery that is available for the

Chapter 8 — Adverse Events and Incident Reports CHA

8.3

records and proceedings of medical staff committees

having the responsibility for evaluating and improving the

quality of care. However, a multidisciplinary process that

includes nonphysicians as well as medical staff members

can be fully protected when that process provides for the

proper medical staff committee oversight.

III. PREPARING CONFIDENTIAL INCIDENT

REPORTS

A. General Principle

California courts have held that incident reports may be

regarded as confidential attorney-client communications

if the hospital can show that the purpose and intent of the

reports is to provide a confidential communication between

the hospital and its attorney, even if they are communicated

through the hospital’s insurance carrier [Sierra Vista

Hospital v. Superior Court, 248 Cal.App.2d 359 (1967)]. In

the Sierra Vista case, the hospital was able to show that:

1. The employee who prepared the report knew it was

intended to be made as a confidential communication

to the hospital’s attorney;

2. The report form itself stated that it was confidential

and not to be made part of the patient’s medical

record; and

3. The hospital retained no copies of the form at the

hospital, and did not give a copy to the medical staff or

anyone else.

The holding of the Sierra Vista case was reaffirmed in

the decision in Scripps Health v. Superior Court, 109 Cal.

App.4th 529 (4th Dist. 2003). The Scripps Health case is

notable for hospitals and systems that collect such reports

for use by in-house counsel since the incident reports in

this case were prepared for the health system’s in-house

attorney who used them for the system’s self-insurance,

risk management and quality assurance programs, as

directed by the legal department.

B. Maintaining the Privilege

Privileges may be lost by disclosure of the privileged

material. In order to prevent any inadvertent disclosure of

incident reports, appropriate physical and/or electronic

security measures must be maintained. No copy of the

report should be included in the patient’s medical record

nor should a copy be reviewed or signed by the attending

physician or any other member of the medical staff.

If a report must be made to CDPH or The Joint

Commission, a separate document containing only that

information which must be reported should be submitted.

(See VII.“CDPH Adverse Events Reporting,”page8.7,

for adverse event reports that must be made to CDPH.

See V.“The Joint Commission Requirements,”page8.5

for more information about reporting to The Joint

Commission.)

DISCLOSURE TO CDPH

Peer Review Documents

CDPH and CMS take the position that they are legally

entitled to access peer review information, even if it is

protected from discovery during court proceedings by the

California Evidence Code. There is some legal support for

this position, as CDPH and CMS must assess whether

the hospital is complying with regulations governing the

medical staff, the hospital governing body, and quality

assurance. CMS, in particular, reminds hospitals that as

a federal government agency it need not recognize this

state law. Information that is protected from discovery

under Evidence Code 1157 may remain protected even if

it is disclosed to CDPH in the course of an investigation

by CDPH [Fox v. Kramer, 22 Cal.4th 531 (2000)]. If CMS

or CDPH requests peer review information protected

by Evidence Code Section 1157 during a survey, the

hospital should clearly indicate every report, document

and interview that is entitled to 1157 protection, ask

the surveyors to note this in their records and reports,

and inform them that the hospital intends to assert the

applicability of peer review protection. Generally, the

surveyors will not copy these documents.

Attorney-Client Privileged Documents

CDPH and CMS do not assert that they are entitled

to access documents protected by the attorney-client

privilege. California courts have held that incident

reports may be regarded as confidential attorney-client

communications if the hospital can show that the purpose

and intent of the reports is to provide a confidential

communication between the hospital and its attorney.

Patient Safety Work Product Documents

The Patient Safety and Quality Improvement Act (PSQIA)

of 2005 was enacted to facilitate and accelerate

improvements in health care quality and patient safety. The

law encourages the voluntary and confidential reporting of

events that may adversely affect patients to Patient Safety

Organizations (PSOs). PSOs then aggregate and analyze

CHA Mental Health Law Manual 2019

8.4

the data to identify and better understand underlying

causes of risks or ham, and share those findings back to

participating providers.

The PSQIA alleviates health care providers’ fears that trial

lawyers, government agencies, or others might obtain

and misuse information about these events by providing

federal legal confidentiality protections to the information

that is assembled and reported by providers to a PSO. The

confidentiality protections preempt any state or local law

that allows or requires disclosure of information defined

as “patient safety work product.” Thus, surveyors should

not ask hospitals for access to patient safety work product

documents, and hospitals should not provide access to

these documents. This applies whether the surveyors are

conducting a state survey or a federal survey.

“Patient safety work product” means any data, reports,

records, memoranda, analyses (such as root cause

analyses), or written or oral statements (or copies of any of

this material):

1. Which could improve patient safety, health care quality,

or health care outcomes; and

a. Which are assembled or developed by a provider

for reporting to a PSO and are reported to a PSO,

which includes information that is documented

as within a patient safety evaluation system for

reporting to a PSO, and such documentation

includes the date the information entered the

patient safety evaluation system; or

b. Are developed by a PSO for the conduct of patient

safety activities; or

2. Which identify or constitute the deliberations or

analysis of, or identify the fact of reporting pursuant to,

a patient safety evaluation system.

However, patient safety work product does not include a

patient’s medical record, billing and discharge information,

or any other original patient or provider information; nor

does it include information that is collected, maintained, or

developed separately, or exists separately, from a patient

safety evaluation system. Such separate information or a

copy thereof reported to a PSO shall not by reason of its

reporting be considered patient safety work product.

A complete discussion of PSOs, including the confidentiality

of PSWP, is included in CHA’s California Hospital

Compliance Manual. Hospitals with questions about which

documents may or may not be released to surveyors

pursuant to the PSQIA should consult legal counsel.

C. Documenting Incident in the Medical Record

While a copy of the incident report or PSWP itself should

not be included in the patient’s medical record or reviewed

by the attending physician, this prohibition should not be

construed as a recommendation that the patient’s medical

record contain no information relating to an incident that

affects the patient or the patient’s care. The occurrence

of any such incident and its effect on the patient can and

must be included in the medical record for the use of the

attending physician in properly treating the patient as a

result of the occurrence. Such information should, however,

be recorded separately in the medical record and not be

recorded simply by inserting a copy of the incident report in

the record.

The incident report and/or PSWP contain additional,

more detailed information which is not necessary to the

continued treatment of the patient and which should

not be included in the patient’s medical record; it is this

more detailed information that is intended to be protected

from discovery.

Likewise, no documentation should be put in the medical

record regarding notification of risk management or

consultation with legal counsel.

IV. REQUIRED PATIENT SAFETY PLAN

California law requires general acute care hospitals, acute

psychiatric hospitals, and special hospitals to develop,

implement, and comply with a patient safety plan for the

purpose of improving the health and safety of patients and

reducing preventable patient safety events [Health and

Safety Code Sections 1279.6 and 1279.7].

A. Written Plan

The patient safety plan must be developed by the

hospital, in consultation with the hospital’s various health

care professionals. The plan must provide for at least

the following:

1. A patient safety committee or equivalent committee in

composition and function. The responsibilities of the

committee are described below.

2. A reporting system for patient safety events that allows

anyone involved, including, but not limited to, health

care practitioners, hospital employees, patients, and

visitors, to make a report of a patient safety event to

the hospital. Hospitals should work with their legal

counsel to integrate this reporting system with the

hospital’s incident reporting system and the medical

Chapter 8 — Adverse Events and Incident Reports CHA

8.5

staff quality assurance report system, as appropriate.

Reports by non-hospital employees (patients and

visitors) are likely not covered by the attorney-client

privilege or Evidence Code Section 1157, although

discussions and reports generated by the patient

safety committee in response to reports by patients

and visitors may enjoy these protections if the

committee is organized and operated properly. In

addition, hospitals should also work with their legal

counsel to integrate reports by patients and visitors

into their grievance process as appropriate.

3. A process for a team of hospital staff to conduct

analyses, including, but not limited to, root cause

analyses of patient safety events. The team must be

composed of the hospital’s various categories of health

care professionals, with the appropriate competencies

to conduct the required analyses. Again, hospitals

should work with their legal counsel to organize the

team/committee and its operations so that its reports

and deliberations may enjoy the protections of the

attorney-client privilege and Evidence Code Section

1157 as described in this chapter.

4. A reporting process that supports and encourages a

culture of safety and reporting patient safety events.

5. A process for providing ongoing patient safety training

for hospital personnel and health care practitioners.

6. Measures to prevent adverse events associated with

misconnecting enteral feeding and epidural lines. The

requirement to include these measures in the patient

safety plan ended on July 1, 2016 for enteral feeding

connectors, and Jan. 1, 2017 for epidural connectors.

As of those dates, health facilities are prohibited from

using a connection that would fit into a connection

port other than the type it was intended for, unless

an emergency or urgent situation exists and the

prohibition would impair the ability to provide health

care. If a hospital is not able to purchase a sufficient

supply of compliant tubing connectors, the hospital

should address this issue in its patient safety plan

and describe the measures it is taking to manage the

noncompliant tubing connectors, including training.

7. A facility-wide hand hygiene program.

B. Patient Safety Committee

The committee must be composed of the hospital’s various

health care professionals, including, but not limited to,

physicians, nurses, pharmacists, and administrators. The

committee must do all of the following:

1. Review and approve the patient safety plan.

2. Receive and review reports of patient safety events.

3. Monitor implementation of corrective actions for patient

safety events.

4. Make recommendations to eliminate future patient

safety events.

5. Review and revise the patient safety plan at least once

a year, but more often if necessary, to evaluate and

update the plan, and to incorporate advancements in

patient safety practices.

Hospitals should work with their legal counsel to maximize

the likelihood that the reports and deliberations of this

committee qualify for the attorney-client privilege and the

peer review confidentiality protections of Evidence Code

Section 1157 as described in this chapter.

C. Patient Safety Event Definition

Patient safety events must be defined by the patient safety

plan and must include, but not be limited to:

1. All adverse events or potential adverse events,

as described in Health and Safety Code

Section 1279.1 (see VII.“CDPH Adverse Events

Reporting,”page8.7), that are determined to be

preventable; and

2. Health care-associated infections, as defined in the

federal Centers for Disease Control and Prevention’s

National Healthcare Safety Network, or its successor,

that are determined to be preventable. CDPH may

instead accept the recommendation of the Healthcare

Associated Infection Advisory Committee, or its

successor.

Hospitals may wish to include “sentinel events” in the

definition of patient safety events (see A.“Sentinel

Events,”page8.5).

V. THE JOINT COMMISSION REQUIREMENTS

A. Sentinel Events

Under its policy on “sentinel events,” The Joint Commission

(TJC) asks hospitals to review all incidents that constitute

a sentinel event and, with some exceptions, to share with

TJC the results of this review (called a “root cause analysis”).

Hospitals are also expected to prepare action plans to

address any issues identified in the root cause analysis.

A “sentinel event” is defined as “an unexpected

occurrence involving death or serious physical or

CHA Mental Health Law Manual 2019

8.6

psychological injury or the risk thereof. The phrase ‘or

risk thereof’ includes any process variation for which

a recurrence would carry a significant chance of a

serious adverse outcome.” (See The Joint Commission

Comprehensive Accreditation Manual for Hospitals,

glossary.)

Since a sentinel event, by definition, involves an event

that could lead to litigation, hospitals have reason to be

concerned regarding the confidentiality of the information

generated by the root cause analysis process. Many

hospitals have sought to conduct their root cause analysis

through a medical staff committee process that may be

protected under Evidence Code Section 1157. Others

have used attorney-directed investigations in order to

bring the information under the attorney-client privilege or

attorney-work product privilege. Once such confidentiality

protection is established, the concern becomes whether

disclosing this information to TJC may waive whatever

privilege or legal protection would otherwise apply to the

information.

TJC asks (but does not require) that hospitals report their

sentinel events to TJC and share their root cause analyses

and action plans with them as well. TJC is aware of the

concerns about loss of confidentiality with respect to the

root cause analyses if they are shared with TJC. As a result,

TJC has offered hospitals several alternatives for handling

sentinel events and the root cause analysis process. These

alternatives cover a range of options for sharing information

with TJC, including the option (“alternative 4”) not to share

any information at all. Information on these alternatives

can be found at www.jointcommission.org/se_Alternatives.

Decisions on how best to protect sentinel event reviews

should be made in consultation with legal counsel.

CDPH has stated that sentinel events should be reported

to CDPH as adverse events or unusual occurrences,

whichever is appropriate.

B. Periodic Performance Review

In addition to the sentinel event process, TJC requires

that accredited organizations conduct a self-assessment

through a process called Periodic Performance Review

(PPR). PPR requires accredited organizations to assess

themselves against applicable TJC standards, to develop

plans of action to address areas of noncompliance and

to identify measures of success to demonstrate that the

identified deficiencies have been addressed and resolved.

Under the full PPR process, all information developed

by accredited organizations to comply with PPR is to

be shared with TJC, which will use the information in

connection with the survey and accreditation process.

As with the sentinel event process, hospitals have decisions

to make as to how to conduct these self-assessments

and the extent to which they wish to protect the results of

such assessments from compelled disclosure (such as a

subpoena in a medical malpractice case) and from waiver

of confidentiality protection. To address industry concerns

regarding the possible loss of confidentiality protection for

data shared with it, TJC has followed the approach it has

used with regard to sentinel events and developed several

options for hospital compliance with PPR requirements that

involve disclosure of varying amounts of information. (See

discussion under A.“Sentinel Events,”page8.5.)

NOTE: In order to use any of the alternatives to full

participation in the full PPR, the accredited organization

must affirm that it has made its decision not to do the full

PPR only after careful consideration with legal counsel.

VI. NOTIFYING THE PATIENT OR FAMILY

State law requires that patients be informed of specified

reportable adverse events. In addition, The Joint

Commission requires that patients be informed of the

outcomes of care, including unanticipated outcomes.

In addition to these requirements, there is a growing

consensus that disclosure of medical mistakes is ethically

appropriate. However, these conversations can be

very difficult.

The state law adverse event requirement is discussed

under VII.“CDPH Adverse Events Reporting,”page8.7.

The Joint Commission requirement is described below.

This section of the manual also describes California law

that permits health care providers to express sympathy to

patients, or to apologize, without admitting liability.

Many organizations have done considerable work outlining

how best to approach patients and their families about

negative outcomes, whether they are the result of a medical

error or not. For example, the Agency for Healthcare

Research and Quality has published a toolkit to help

hospital leaders and clinicians communicate accurately and

openly with patients and families when something goes

wrong with their care. The toolkit, called “Communication

and Optimal Resolution (CANDOR),” may be found at

https://www.ahrq.gov/professionals/quality-patient-safety/

patient-safety-resources/resources/candor/introduction.

html.

Chapter 8 — Adverse Events and Incident Reports CHA

8.7

A. Outcomes of Care

TJC requires that patients be informed of the outcomes

of care, including unanticipated outcomes (see The Joint

Commission Comprehensive Accreditation Manual for

Hospitals, RI.01.02.01, EP 20, 21, 22). According to this

standard, the hospital must provide the patient or surrogate

decision maker with the information about the outcomes

of care that the patient needs to participate in current and

future health care decisions.

The hospital must also inform the patient or surrogate

decision maker about unanticipated outcomes of care that

relate to sentinel events considered reviewable by TJC.

In addition, the licensed independent practitioner (usually

the physician) responsible for managing the patient’s

care, or his or her designee, must inform the patient about

unanticipated outcomes of care related to sentinel events

when the patient is not already aware of the occurrence or

when further discussion is needed.

B. Statements of Sympathy/Apologies

When discussing an unanticipated outcome or adverse

event, it is human nature to want to express sympathy

or sorrow. Sometimes people hesitate to express these

sentiments for fear they will be used against them in a

lawsuit. This fear is unwarranted. California law states that

the following is inadmissible as evidence of an admission

of liability in a civil or administrative action (such as a

malpractice lawsuit):

The portion of statements, writings, or benevolent

gestures expressing sympathy or a general sense of

benevolence relating to the pain, suffering or death of a

person involved in an accident and made to the person

or to the family of that person.

A statement of fault, however, is admissible.

“Accidents” include any occurrence not the result

of willful action. This includes medical errors and

alleged malpractice.

“Benevolent gestures” means actions that convey a

sense of compassion or commiseration emanating from

humane impulses.

“Family” means the spouse, parent, grandparent,

stepparent, child, grandchild, sibling, half-sibling or

spouse’s parent.

[Evidence Code Section 1160, Government Code Section

11440.45]

Hospitals may wish to keep this law in mind when

discussing unanticipated outcomes with patients.

VII. CDPH ADVERSE EVENTS REPORTING

In response to media attention on medical errors, the

California Legislature passed, and the Governor signed,

legislation requiring general acute care hospitals, acute

psychiatric hospitals, and special hospitals to report

specified adverse events to CDPH [Health and Safety Code

Sections 1279.1, 1279.2, 1279.3 and 1280.4]. Outpatient

settings must also report adverse events. “Outpatient

settings” are defined as:

1. Any facility, clinic, unlicensed clinic, center, office, or

other setting that is not part of a general acute care

facility, as defined in Health and Safety Code Section

1250, and where anesthesia, except local anesthesia or

peripheral nerve blocks, or both, is used in compliance

with the community standard of practice, in doses that,

when administered have the probability of placing a

patient at risk for loss of the patient’s life-preserving

protective reflexes. A clinic or ambulatory surgery

center that does not meet this definition — i.e., does

not use general anesthesia — is not subject to this

reporting requirement.

2. Facilities that offer in vitro fertilization, as defined in

Health and Safety Code Section 1374.55(b).

Outpatient settings do not include, among other

settings, any setting where anxiolytics and analgesics

are administered, when done so in compliance with the

community standard of practice, in doses that do not have

the probability of placing the patient at risk for loss of the

patient’s life-preserving protective reflexes.

[Health and Safety Code Sections 1248 and 1248.15]

CDPH has confirmed that distinct-part nursing facilities

(DP-NFs) need not report adverse events under this law.

However, other reporting requirements may apply (for

example, the “unusual occurrences” reporting requirement

may apply; see E.“Relationship With Other Reporting

Requirements,”page8.9).

A. Types of Events That Must be Reported

For purposes of this reporting requirement, “adverse

event” includes the surgical events, product or device

events, patient protection events, care management events,

environmental events, criminal events, and one other item

described below. The term “serious disability,” which is

used in many places in the list of adverse events, means:

a physical or mental impairment that substantially limits

one or more of the major life activities of an individual,

or the loss of bodily function, if the impairment or loss

lasts more than 7 days or is still present at the time of

discharge from an inpatient health facility, or the loss of

a body part.

CHA Mental Health Law Manual 2019

8.8

The complete list of reportable adverse events is included

below. Many do not apply in the mental health setting, such

as the list of surgical events. However, many of them can

occur in a psychiatric hospital or in the psychiatric unit of

a general acute care hospital, so employees should be

familiar with the list. The list of adverse events includes

the following.

SURGICAL EVENTS

1. Surgery performed on a wrong body part that is

inconsistent with the documented informed consent for

that patient. This does not include a situation requiring

prompt action that occurs in the course of surgery or

a situation that is so urgent as to preclude obtaining

informed consent.

2. Surgery performed on the wrong patient.

3. The wrong surgical procedure performed on a patient,

which is a surgical procedure performed on a patient

that is inconsistent with the documented informed

consent for that patient. This does not include a

situation requiring prompt action that occurs in the

course of surgery, or a situation that is so urgent as to

preclude the obtaining of informed consent.

4. Retention of a foreign object in a patient after surgery

or other procedure, excluding objects intentionally

implanted as part of a planned intervention and objects

present prior to surgery that are intentionally retained.

5. Death during or up to 24 hours after induction of

anesthesia after surgery of a normal, healthy patient

who has no organic, physiologic, biochemical, or

psychiatric disturbance and for whom the pathologic

processes for which the operation is to be performed

are localized and do not entail a systemic disturbance.

PRODUCT OR DEVICE EVENTS

1. Patient death or serious disability associated with

the use of a contaminated drug, device, or biologic

provided by the health facility when the contamination

is the result of generally detectable contaminants in the

drug, device, or biologic, regardless of the source of

the contamination or the product.

2. Patient death or serious disability associated with the

use or function of a device in patient care in which the

device is used or functions other than as intended. For

purposes of this requirement, “device” includes, but

it not limited to, a catheter, drain, or other specialized

tube, infusion pump, or ventilator.

3. Patient death or serious disability associated with

intravascular air embolism that occurs while being

cared for in a facility, excluding deaths associated with

neurosurgical procedures known to present a high risk

of intravascular air embolism.

PATIENT PROTECTION EVENTS

1. An infant discharged to the wrong person.

2. Patient death or serious disability associated

with patient disappearance for more than four

hours, excluding events involving adults who have

competency or decision-making capacity.

3. A patient suicide or attempted suicide resulting in

serious disability while being cared for in a health

facility due to patient actions after admission to

the health facility, excluding deaths resulting from

self-inflicted injuries that were the reason for the

admission to the health facility.

CARE MANAGEMENT EVENTS

1. A patient death or serious disability associated with a

medication error, including, but not limited to, an error

involving the wrong drug, the wrong dose, the wrong

patient, the wrong time, the wrong rate, the wrong

preparation, or the wrong route of administration,

excluding reasonable differences in clinical judgment

on drug selection and dose.

2. A patient death or serious disability associated with

a hemolytic reaction due to the administration of

ABO-incompatible blood or blood products.

3. Maternal death or serious disability associated with

labor or delivery in a low-risk pregnancy while being

cared for in a facility, including events that occur

within 42 days postdelivery and excluding deaths from

pulmonary or amniotic fluid embolism, acute fatty liver

of pregnancy, or cardiomyopathy.

4. Patient death or serious disability directly related to

hypoglycemia, the onset of which occurs while the

patient is being cared for in a health facility.

5. Death or serious disability, including kernicterus,

associated with failure to identify and treat

hyperbilirubinemia in neonates during the first

28 days of life. For purposes of this requirement,

“hyperbilirubinemia” means bilirubin levels greater

than 30 milligrams per deciliter.

6. A Stage 3 or 4 ulcer, acquired after admission to a

health facility, excluding progression from Stage 2 to

Chapter 8 — Adverse Events and Incident Reports CHA

8.9

Stage 3 if Stage 2 was recognized upon admission.

(See AFL 15-03.1 regarding unstageable pressure

ulcers, which may be found at https://www.cdph.

ca.gov/Programs/CHCQ/LCP/Pages/LNCAFL15.aspx.)

7. A patient death or serious disability due to spinal

manipulative therapy performed at the health facility.

ENVIRONMENTAL EVENTS

1. A patient death or serious disability associated with an

electric shock while being cared for in a health facility,

excluding events involving planned treatments, such as

electric countershock.

2. Any incident in which a line designated for oxygen

or other gas to be delivered to a patient contains the

wrong gas or is contaminated by a toxic substance.

3. A patient death or serious disability associated with

a burn incurred from any source while the patient is

being cared for in a health facility.

4. A patient death associated with a fall while the patient

is being cared for in a health facility.

5. A patient death or serious disability associated with the

use of restraints or bedrails while being cared for in a

health facility.

CRIMINAL EVENTS

1. Any instance of care ordered by or provided

by someone impersonating a physician, nurse,

pharmacist, or other licensed health care provider.

2. The abduction of a patient of any age.

3. The sexual assault of a patient within or on the grounds

of a health facility.

4. The death or significant injury of a patient or staff

member resulting from a physical assault that occurs

within or on the grounds of a facility.

FINAL ITEM

The list of adverse events specified in the law contains

a final item that contains a circular definition. The final

“catchall” category to be reported is “an adverse event or

series of adverse events that cause the death or serious

disability of a patient, personnel, or visitor.” However, an

“adverse event” is defined as those events listed in the

above sections (surgical events, product or device events,

patient protection events, care management events,

environmental events, and criminal events). Therefore,

the final category arguably does not capture any events

that are not already described in the law. Hospitals that

are considering reporting an event under the “catchall”

category should consult legal counsel to determine

whether a report under this law is required. Even if a report

under this law is determined not to be required, however,

hospitals may need to report the incident pursuant to

another reporting requirement. (See E.“Relationship With

Other Reporting Requirements,”page8.9.)

B. Required Time Frame for Reporting

The report must be made no later than five days after the

adverse event has been detected. However, if the adverse

event is an ongoing urgent or emergent threat to the

welfare, health, or safety of patients, personnel, or visitors,

the report must be made not later than 24 hours after the

adverse event has been detected.

C. How to Report

CDPH has developed a web-based reporting tool that

health care facilities may use to report adverse events, as

well as privacy breaches, called the “California Healthcare

Event and Reporting Tool” (CalHEART). Information about

the online reporting tool may be found in CDPH All Facility

Letter 13-12 at https://www.cdph.ca.gov/Programs/CHCQ/

LCP/Pages/LNCAFL2013.aspx. Hospitals are not required

to use this tool; a paper form may be submitted instead.

CHA has developed a form, “Adverse Event Report Form”

(CHA Form 20-1), that hospitals may use to report an

adverse event to CDPH. CDPH has stated it will accept the

CHA form.

D. Communication With Affected Patient(s)

The hospital must inform the patient or the party

responsible for the patient of the adverse event by the

time the report is made. In addition, The Joint Commission

requirement to inform the patient of unanticipated

outcomes of care may apply. (See VI.“Notifying the Patient

or Family,”page8.6.)

E. Relationship With Other Reporting

Requirements

This law does not change or otherwise affect other hospital

reporting requirements regarding reportable diseases or

unusual occurrences. Hospitals may also need to report

adverse events according to the following requirements:

CHA Mental Health Law Manual 2019

8.10

1. Unusual occurrences — see XI.“Reportable “Unusual

Occurrences”,”page8.14.

2. Safe Medical Devices Act — see IX.“Reports Under

the Safe Medical Devices Act of 1990,”page8.11.

3. Restraint/seclusion death reporting — see

X.“Reporting Requirements Related to Restraint or

Seclusion,”page8.14.

4. Medication errors — see VIII.“Medication

Errors,”page8.11.

5. Injuries by firearm or assaultive or abusive conduct —

see III.“Reporting Injuries by Firearm or Assaultive or

Abusive Conduct (“Suspicious Injuries”),”page7.3.

6. Violence against hospital personnel — see CHA’s

Healthcare Workplace Violence Prevention guidebook,

available to order online at www.calhospital.org/

wvp-guidebook.

7. Radiation overdoses — see CHA’s Consent Manual for

information about reporting radiation overdoses.

In addition, a root cause analysis pursuant to The Joint

Commission’s sentinel event requirements may be required.

(See A.“Sentinel Events,”page8.5)

F. CDPH Investigations and Reports

ONGOING THREAT OF IMMINENT DANGER

CDPH must make an on-site inspection or investigation

whenever it receives an adverse event report or a complaint

indicating an ongoing threat of imminent danger of death or

serious bodily harm. The on-site inspection or investigation

must take place within 48 hours or two business days

(whichever is greater) after receipt of the report or

complaint. The investigation must be completed within

45 days. If CDPH does not meet this time frame, it must

provide written notice to the facility and the complainant

(if any) of the basis for the extenuating circumstances

preventing it from meeting the time frame, and the

anticipated completion date. Until CDPH determines

by on-site inspection that the adverse event has been

resolved, CDPH must conduct an unannounced inspection

at least once per year of any hospital that has reported an

adverse event.

NO THREAT OF IMMINENT DANGER

If CDPH receives a complaint or report, but determines

from the information available to it that there is no threat

of imminent danger of death or serious bodily harm to

that patient or other patients, no on-site inspection is

required, but an investigation must be undertaken and

completed within 45 days. If CDPH does not meet this

time frame, it must provide written notice to the facility and

the complainant (if any) of the basis for the extenuating

circumstances preventing it from meeting the time frame,

and the anticipated completion date.

DEFINITION

For purposes of this law, a “complaint” means any oral or

written notice to CDPH (other than an adverse event report

from the hospital) of an alleged violation of any applicable

state or federal law, or an allegation of facts that might

constitute such a violation.

FOLLOW-UP

CDPH must notify the hospital and the complainant in

writing of its determination as a result of its investigation.

CDPH PUBLIC REPORTING OF ADVERSE EVENTS

CDPH provides information about substantiated adverse

events and the outcomes of inspections and investigations

on its website by posting the hospital’s statement of

Deficiencies (CDPH Form 2567) and the hospital’s plan of

correction.

The information provided by CDPH names individual

hospitals, and may include compliance information history.

The names of patients, health care professionals and health

care workers will not be divulged by CDPH.

G. Penalties for Failure to Report

The adverse event reporting law contains specific penalties

for failure to report. A hospital that fails to report an adverse

event may be assessed a civil penalty in an amount not

to exceed $100 per day for each day that the adverse

event is not reported following the initial five-day period

or 24-hour period, as applicable. If the hospital disputes

a determination by CDPH regarding an alleged failure to

report an adverse event, the hospital may, within 10 days,

request a hearing pursuant to Health and Safety Code

Section 100171. Penalties do not have to be paid until all

appeals have been exhausted.

CDPH has additional authority to fine hospitals for failing

to comply with hospital licensing requirements. It is unclear

whether both fines may apply, or if CDPH is limited to

assessing penalties under this provision.

Chapter 8 — Adverse Events and Incident Reports CHA

8.11

VIII. MEDICATION ERRORS

Several reporting requirements may be triggered if a

medication error occurs in a hospital.

A pharmacist is required to notify the prescriber and the

patient of a medication error, if the drug was administered

to or by the patient, or if the error resulted in a clinically

significant delay in therapy. The notification must include

the steps required to avoid injury or mitigate the error.

[Title 16, California Code of Regulations, Section 1711] (In

addition, Business and Professions Code Section 4125

requires that medication errors be documented, and

protects such documents from discovery in most cases.)

In addition, a medication error may be reportable under

the Safe Medical Devices Act if a device, such as an

infusion pump, was involved (see IX.“Reports Under the

Safe Medical Devices Act of 1990,”page8.11). Also, a

medication error may constitute an adverse event that

must be reported to CDPH (see VII.“CDPH Adverse

Events Reporting,”page8.7). Finally, a medication

error may constitute an “unusual occurrence” and thus

be reportable to CDPH under that reporting requirement

(see XI.“Reportable “Unusual Occurrences”,”page8.14),

depending on the facts and circumstances of the incident.

Hospitals must comply with all requirements of all

applicable reporting laws.

IX. REPORTS UNDER THE SAFE MEDICAL

DEVICES ACT OF 1990

The Safe Medical Devices Act requires hospitals and other

providers to report incidents involving medical devices

(including restraints) that have or may have caused or

contributed to the serious injury or death of a patient

[21 U.S.C. Section 360i(b)]. In addition to the individual

reports required, hospitals must provide the FDA with

annual summaries of the individual reports made during

the preceding year (see below). Regulations implementing

the reporting requirements are found at 21 C.F.R. part

803. Detailed information about this reporting requirement

may be found at www.fda.gov/MedicalDevices/Safety/

ReportaProblem/default.htm.

It is important to note that the requirement to report

incidents involving medical devices is not limited to

circumstances in which the device malfunctions. When an

incident is, or may be, the result of user error, it should be

reported. In addition, if an infection results, or may have

resulted, from the use of a medical device, that should be

reported also. The FDA monitors these types of events

to determine if different labeling, instructions, design, or

cleaning procedures are needed.

A. When and To Whom Reports of Adverse Events

Must be Made

INDIVIDUAL REPORTS

Hospitals and other health care providers (“device user

facilities”) must make individual (per-incident) reports when

they receive or otherwise become aware of information

reasonably suggesting that a medical device has or

may have caused or contributed to the death or serious

injury of a patient. Reports of individual adverse events

are to be made on FDA Form 3500A, also known as the

“MEDWATCH” form,” or an electronic equivalent approved

by the FDA [21 C.F.R. Section 803.11]. (See “Forms to be

Used,”page8.12.) The information required is specified in

the MEDWATCH form and described in 21 C.F.R. Section

803.32.

Reports of deaths are made to the FDA and to the device

manufacturer if the identity of the manufacturer is known

[21 C.F.R. Section 803.30(a)(1)].

Reports of serious injury are made to the device

manufacturer if the identity of the manufacturer is known;

if the identity of the manufacturer is not known, the report

must be made to the FDA [21 C.F.R. Section 803.30(a)(2)].

Reports must be made as soon as practicable but no later

than 10 work days after becoming aware of the information.

(“Work day” means Monday through Friday, excluding

federal holidays.)

Adverse events need not be reported if there is information

that would cause a person who is qualified to make a

medical judgment (e.g., a physician, nurse, risk manager

or biomedical engineer) to reach a reasonable conclusion

that a device did not cause or contribute to a death or

serious injury, or that a malfunction would not be likely to

cause or contribute to a death or serious injury if it were to

recur. Information which leads the qualified person to this

determination must be contained in the medical device

reporting (MDR) event file [21 C.F.R. Section 803.20(c)(2)].

ANNUAL REPORTS

Annual summaries of individual reports must be made to

the FDA by January 1 of each year using FDA Form 3419,

“Medical Device Reporting Semiannual User Facility Report,”

or an electronic equivalent as approved by the FDA. If no

reports were submitted to the FDA or device manufacturers

during the previous year, the hospital need not submit an

annual report. [21 C.F.R. Section 803.33]

CHA Mental Health Law Manual 2019

8.12

WHERE TO SUBMIT REPORTS

All reports made to the FDA (individual reports and annual

reports) should be sent to:

Food and Drug Administration

Center for Devices and Radiological Health

Medical Device Reporting

P. O. Box 3002

Rockville, MD 20847-3002

Each report and its envelope must be specifically identified

— e.g., as “User Facility Report” or “Annual Report.”

[21 C.F.R. Section 803.12]

DEFINITIONS

“Become aware” means than an employee of an entity

required to report has acquired information reasonably

suggesting a reportable adverse event has occurred.

Device user facilities are considered to have “become

aware” when medical personnel who are employed by,

or otherwise formally affiliated with (e.g., medical staff),

the facility, obtain information about a reportable event

[21 C.F.R. Section 803.3]. This requirement means that

hospitals and other covered providers must provide

appropriate training and notice to those employees and

other personnel whose knowledge of reportable events will

trigger the facility’s obligation to report, as well as the time

clock (10 work days) for making such reports.

In making reports, facilities must provide all information

specified in the law that is “reasonably known” to them.

This includes information found in documents in the

possession of the device user facility and any information

that becomes available as a result of reasonable follow-up

within the facility. However, a device user facility is not

required to evaluate or investigate the event by obtaining

or evaluating information that is not reasonably known to

it [21 C.F.R. Section 803.30(b)]. (There may, of course, be

other reasons to conduct such investigations, and in such

instances the information discovered would be considered

to be reasonably known to the facility. The medical

device reporting law, however, does not require such

investigations.)

“Caused or contributed” means that a death or serious

injury was or may have been attributed to a medical device,

or that a medical device was or may have been a factor in

a death or serious injury, including events occurring as a

result of failure, malfunction, improper or inadequate design,

manufacture, labeling or user error [21 C.F.R. Section

803.3].

The reporting obligations apply to “device user facilities,”

which includes hospitals, ambulatory surgical facilities,

nursing homes, and outpatient diagnostic and treatment

facilities (but not physicians’ offices) [21 C.F.R. Section

803.3].

“Serious injury” means an illness or injury that:

1. Is life threatening;

2. Results in permanent impairment of a body function or

permanent damage to the body structure; or

3. Necessitates medical or surgical intervention to

preclude impairment of a body function or permanent

damage to a body structure [21 C.F.R. Section 803.3].

FORMS TO BE USED

Forms may be obtained from:

Food and Drug Administration

Division of International and Consumer Education

Center for Devices and Radiological Health

10903 New Hampshire Ave., Bldg. 66, Rm. 4621

Silver Spring, MD 20993-0002

(800) 638-2041

www.fda.gov/medwatch/getforms.htm

email: [email protected]

The MEDWATCH Medical Device Reporting Code

Instruction Manual contains adverse event codes for use

with FDA Form 3500A [21 C.F.R. Section 803.21]. The

manual is available at www.fda.gov/medicaldevices/

deviceregulationandguidance/guidancedocuments/

ucm106737.htm.

QUESTIONS

The FDA asks that questions about reporting be mailed or

faxed to the FDA at the following address:

Food and Drug Administration

Reporting Systems Monitoring Branch (HFZ-533)

Center for Devices and Radiological Health

Medical Devices Reporting Inquiries

1350 Piccard Drive

Rockville, MD 20850

Phone: (240) 276-3464

Fax: (240) 276-3454

The FDA prefers that questions be faxed; however,

questions about medical device reporting may also be

asked by phone, (240) 276-3464. To report a public health

emergency, call the FDA office of Emergency Operations

at (866) 300-4374 and follow with an email to emergency.

[email protected] or a fax to (301) 847-8544.

Chapter 8 — Adverse Events and Incident Reports CHA

8.13

DISCLAIMERS

A report or other information submitted by a reporting entity

under this law, and any release by the FDA of that report or

information, does not necessarily reflect an admission that

the device, or the reporting entity or its employees, caused

or contributed to the reportable event. The reporting entity

need not admit and may deny that the report or information

submitted under this law constitutes an admission that

the device, the party submitting the report, or employees

thereof, caused or contributed to a reportable event.

[21 C.F.R. Section 803.16]

B. Restraints

FDA regulates restraint devices as it regulates other

medical devices. Thus, hospitals and other device user

facilities must report incidents involving restraints that have

or may have caused or contributed to the serious injury or

death of a patient.

For purposes of this reporting law, it should be noted that

the FDA uses a different definition of restraint than does

the Centers for Medicare & Medicaid Services Conditions

of Participation or California law. The FDA defines a

“protective restraint” as:

a device, including but not limited to a wristlet, anklet,

vest, mitt, straight jacket, body/limb holder, or other type

of strap, that is intended for medical purposes and that

limits the patient’s movements to the extent necessary

for treatment, examination, or protection of the patient or

others [21 C.F.R. Section 880.6760].

Whereas the CMS definition of restraint could include

a geri-chair, a tray table, a side rail, a sheet, or even a

staff member holding a patient, the FDA definition does

not. Therefore, this reporting requirement is somewhat

more narrow than the CMS reporting requirement for

deaths associated with seclusion or restraints discussed

under X.“Reporting Requirements Related to Restraint or

Seclusion,”page8.14.

C. Required Policies and Procedures

Hospitals must develop and implement written policies and

procedures that provide for the following:

1. Timely and effective identification, communication and

evaluation of events that may be subject to medical

device reporting requirements;

2. A standardized review process/procedure for

determining when an event meets the criteria for

reporting to the FDA; and

3. Timely transmission of complete medical device reports

to the FDA and/or the device manufacturer.

The policies and procedures must also include

documentation and record keeping requirements as

described under “Required Documentation” below,

including information that was evaluated to determine if an

event was reportable [21 C.F.R. Section 803.17].

REQUIRED DOCUMENTATION

Facilities must establish and maintain medical device

reporting (MDR) event files. MDR event files must be

prominently identified as such and filed to facilitate timely

access. The files may be written or electronic, and may

incorporate references to other information, such as

medical records or engineering reports, in lieu of copying

and maintaining duplicates in this file. MDR event files must

include the following:

1. Information related to adverse events, including all

documentation of the hospital’s deliberations and

decision-making processes used to determine if a

device-related death, serious injury or malfunction was

or was not reportable under this part; and

2. Copies of all Safe Medical Devices Act forms and other

information related to the event that was submitted to

the FDA or manufacturer.

MDR event files must be retained for two years following

an adverse event. Hospitals must permit FDA employees to

access, copy and verify the records noted above [21 C.F.R.

Sections 803.13, 803.17 and 803.18].

D. Request From FDA for Additional Information

The FDA may determine that protection of the public

health requires additional or clarifying information for the

medical device reports submitted to the FDA under this

law. In these instances, and in cases when the additional

information is beyond the scope of FDA reporting forms or

is not readily accessible, the agency will notify the reporting

entity in writing of the additional information that is required.

Any request from the FDA must state the reason or

purpose for which the information is being requested,

specify the due date for submitting the information and

clearly identify the reported event. All verbal requests will be

confirmed in writing by the FDA. [21 C.F.R. Section 803.15]

E. Device Tracking

Device manufacturers and distributors are required to

develop formal schemes for tracking specified (“tracked”)

CHA Mental Health Law Manual 2019

8.14

medical devices [21 U.S.C. Section 360i(e)]. Hospitals,

licensed practitioners, retail pharmacists and other types

of device user facilities are considered “final distributors”

[21 C.F.R. Section 821.3].

Under the regulations, a final distributor must provide the

manufacturer with specified information at the time that it

purchases a tracked device [21 C.F.R. Section 821.30(a)]

and at the time that a tracked device is implanted in or

provided to a patient [21 C.F.R. Section 821.30(b)].

At the time that the device is implanted in or provided

to the patient, the hospital must provide to the device

manufacturer the following information:

1. The name and address of the final distributor (i.e., the

hospital itself).

2. The unique device identifier (UDI), lot number, batch

number, model number or serial number of the device,

or other identifier used by the manufacturer to track

the device.

3. The name, address, telephone number and Social

Security number (if available) of the patient receiving

the device unless not released by the patient (see

“Patient Confidentiality Rights,”page8.14).

4. The date the device was provided to the patient or for

use in the patient.

5. The name, mailing address and telephone number of

the prescribing physician.

6. The name, mailing address and telephone number of

the physician regularly following the patient if different

from the prescribing physician.

7. When applicable, the date the device was explanted,

and the name, mailing address and telephone

number of the explanting physician, the date of the

patient’s death, or the date the device was returned

to the manufacturer, permanently retired from use or

otherwise permanently disposed of.

[21 C.F.R. Section 821.30(b)]

PATIENT CONFIDENTIALITY RIGHTS

A patient receiving a device subject to tracking may refuse

to release, or refuse permission to release, his or her name,

address, telephone number and Social Security number,

or other identifying information for the purpose of tracking

[21 CFR Section 821.55]. FDA guidance states that

hospitals must document the refusal and the forwarding of

such documentation back to the device manufacturer.

DEVICE TRACKING RECORDS

Hospitals must permit FDA employees to access, copy and

verify device tracking records, as well as all other records

and information related to the events and persons identified

in such records [21 C.F.R. Section 821.50]. In addition,

hospitals must make any records required to be kept by

the device tracking law available to the manufacturer of

the tracked device for audit upon written request by an

authorized representative of the manufacturer [21 C.F.R.

Section 821.30(d)].

Device tracking records must be maintained for the useful

life of the tracked device. The useful life of a device is

the time a device is in use or in distribution for use. A

record may be retired if the person maintaining the record

becomes aware that the device is no longer in use, has

been explanted, returned to the manufacturer or the patient

has died. [21 C.F.R. Section 821.60]

Records required to be kept by the device tracking law

must be kept in a centralized point [21 C.F.R. Section

821.50].

X. REPORTING REQUIREMENTS RELATED TO

RESTRAINT OR SECLUSION

There are several state and federal reporting requirements

potentially implicated when an adverse event occurs to

a patient who is, or has been, in restraints or seclusion.

These reporting requirements are described in chapter 5.

XI. REPORTABLE “UNUSUAL OCCURRENCES”

Hospitals are required to notify CDPH immediately, via

telephone, of the following:

1. Any discontinuance or disruption of services;

2. Upon the threat of a walkout of a substantial number of

employees; or

3. An earthquake, fire, power outage or other calamity

that causes damage to the facility or threatens the

safety or welfare of patients or clients.

[Title 22, California Code of Regulations, Sections 70746

(general acute care hospitals) and 71544 (acute psychiatric

hospitals)]

Title 22 also requires general acute care hospitals and

acute psychiatric hospitals to report any occurrence such

as an epidemic outbreak, poisoning, fire, major accident,

disaster, other catastrophe or unusual occurrence

which threatens the welfare, safety, or health of patients,

personnel, or visitors, as soon as reasonably practicable,

Chapter 8 — Adverse Events and Incident Reports CHA

8.15

by telephone or telegraph, to the local health officer

and to CDPH. The hospital must furnish other pertinent

information related to the occurrence as may be requested

by the local health officer or CDPH [Title 22, California

Code of Regulations, Sections 70737 (general acute care

hospital), 71535 (acute psychiatric hospital) and 72541

(skilled nursing facility)].

Exactly which types of incidents constitute an “unusual

occurrence” has not been further clarified by CDPH. CDPH

is aware that its employees as well as hospital employees

have inconsistent interpretations of this requirement. CDPH

has indicated that sentinel events should be considered

unusual occurrences, and reported to CDPH even if the

hospital does not report to The Joint Commission. (See

A.“Sentinel Events,”page8.5, regarding sentinel

events.) CDPH has also indicated that a patient death

that occurs while a patient is restrained or in seclusion for

behavior management is a reportable unusual occurrence.

In addition, CDPH has indicated that incidents that are

covered by the news media constitute unusual occurrences

that should be reported to CDPH. However, CDPH has

not promulgated regulations regarding these informal

interpretations. There are no financial penalties for a late

report or failure to report under this law.

Chapter 9 — Contents

9 Payment for Medi-Cal Emergency

and Post-Stabilization Mental Health

Services

I. INTRODUCTION ....................................... 9.1

A. Background ....................................................9.1

B. Scope of This Chapter ..................................9.1

II. MEDI-CAL PAYMENT FOR MENTAL

HEALTH SERVICES

.................................. 9.2

A. What Mental Health Services Are

Covered by MHPs?

........................................9.2

B. What Mental Health Services Are

Covered by MCPs?

........................................9.4

C. Must MHPs and MCPs Pay for

Emergency and Post-Stabilization

Services Rendered by Non-Contracted

Providers?

......................................................9.5

Emergency Services .........................................9.5

Post-Stabilization Services

................................ 9.5

D. Important Definitions ....................................9.6

E. How Do MHPs and MCPs Coordinate

Their Payment and Care Management

Obligations?

...................................................9.6

III. HOW HOSPITALS CAN GET REIMBURSED:

A CASE-BY-CASE ANALYSIS

..................... 9.7

FORMS & APPENDICES

MH 9-A Medical Necessity for MHP Coverage

MH 9-B Types of MCPs and MHPs

MH 9-C Pertinent DHCS Plan Letters

MH 9-D DHCS Chart: Medi-Cal Mental Health Services

MH 9-E Pertinent Legal Deﬁnitions of Emergency

Psychiatric Conditions

Forms and Appendices can be found at the back of the manual and

online for CHA members at www.calhospital.org/free-resources.

9.1

9 Payment for Medi-Cal Emergency

and Post-Stabilization Mental Health

Services

I. INTRODUCTION

Consider this scenario: A Medi-Cal patient

presents to a hospital’s emergency department

(ED) complaining of chest pain. The hospital does

not have an inpatient psychiatric unit. The hospital

provides a medical screening exam and further

evaluation and treatment; cardiac conditions are

ruled out. The patient is diagnosed with a severe

anxiety disorder. The patient’s anxiety disorder is

treated and the patient is discharged home.

Question: Who is responsible for paying for the

services rendered to rule out cardiac conditions?

Who is responsible for paying for the services

rendered to diagnose and treat the mental

health conditions?

California hospitals struggle with situations like this every

day, trying to determine who is responsible for paying for

the various services rendered — those related to “physical

health” conditions, and those related to mental health

conditions. Does the hospital bill the Medi-Cal managed

care plan (MCP) only? Or the county mental health plan

(MHP) only? Both the MCP and the MHP for different

services rendered? Or do other factors affect the analysis?

What can the hospital do when both the MCP and MHP

deny financial responsibility?

This chapter analyzes the various and sometimes

conflicting laws governing who is responsible to pay for

services rendered in an ED to Medi-Cal patients with

mental health conditions.

A. Background

The State of California administers the Medi-Cal program

through the Department of Health Care Services (DHCS).

DHCS contracts with both MCPs and MHPs to serve

Medi-Cal patients. MCPs provide care for the patients’

physical conditions, as well as for specified, lower-acuity

mental health conditions.

Because counties have

historically played an important role in providing access to

mental health services for Medi-Cal beneficiaries, DHCS

delegates payment for other mental health services

to MHPs.

Due to the various co-morbidities associated with mental

health patients, the line delineating payment responsibility

between MCPs and MHPs is often blurred. For example,

when a patient presents with multiple diagnoses, especially

both mental and physical in nature, both a MCP and MHP

may be responsible for payment.

While reading this chapter, it’s important to keep in mind

that the federal Emergency Medical Treatment and Labor

Act (EMTALA) and state hospital licensing requirements

to provide emergency services to psychiatric patients, are

different from the Medi-Cal requirements to pay for those

services. As a result, hospitals are often not reimbursed for

all the services they’re required to provide.

Hospitals should know that MHPs are not licensed under

the Knox-Keene Health Care Service Plan Act, and are

not regulated by the California Department of Managed

Health Care (DMHC). Most MCPs are licensed under the

Knox-Keene Act and are regulated by DMHC, except

for county operated health systems with respect to their

Medi-Cal lines of service.

B. Scope of This Chapter

This chapter reviews the laws and DHCS interpretations

about payment for ED services, including emergency

medical services, emergency psychiatric services, and

non-emergency services. This chapter also provides

1 This chapter focuses on the typical allocation of payment responsibilities

between MCPs and MHPs in California. Certain counties, such as Solano

County, and plans, such as Kaiser Geographic Managed Care, are different

and not the focus of this chapter. This chapter also does not focus on the

responsibility of other types of managed care, such as PACE programs, SCAN

programs or the San Francisco Family Mosaic Project.

CHA Mental Health Law Manual 2019

9.2

some arguments that may help hospitals obtain improved

reimbursement for mental health services rendered to

Medi-Cal patients presenting to the ED with a mental

health condition.

Due to the complexities of reimbursement for mental health

conditions, this chapter is not fully comprehensive. For

example, this chapter does not address the memoranda

of understanding (MOU) that DHCS requires between

MCPs and MHPs to coordinate mental health services for

Medi-Cal patients.

Also, this chapter does not address

coordination of benefits between Medi-Cal and other

health coverage, e.g., where a Medi-Cal patient has private

insurance, or is enrolled in Medi-Cal managed care and

Medicare fee-for-service or Medicare Advantage, or for a

patient enrolled in a Cal MediConnect plan. Nor does this

chapter address payment responsibility for a patient who

is enrolled in Medi-Cal fee-for-service instead of Medi-Cal

managed care. Hospitals may wish to seek separate

guidance for these fact-specific issues.

This chapter is organized as follows:

• Section II — Medi-Cal Payment for Mental Health

Services. Section II describes the mental health services

covered by MHPs and MCPs; the respective obligations

of MHPs and MCPs to pay for emergency and

post-stabilization services rendered by non-contracted

providers; and coordination of payment and care

management between MHPs and MCPs.

• Section III — How Hospitals Can Get Reimbursed:

A Case-by-Case Analysis. Section III applies the

general payment principles described in Section II to

eight scenarios where a patient presents to an ED with a

complaint that includes a psychiatric condition.

• Appendix MH 9-A, “Medical Necessity for MHP

Coverage.” This appendix contains the state regulations

describing medical necessity for MHP coverage of

psychiatric inpatient, emergency and outpatient specialty

mental health services.

2 Boilerplate MCP Contract, Exh. A, Attachment 11, Provision

6.B, available at www.dhcs.ca.gov/provgovpart/Documents/

ImpRegSB2PlanBp32014.pdf (accessed May 25, 2019). Citations to the

boilerplate contracts are to the two plan model contracts, but parallel

provisions are found in the county operated health system and geographic

managed care model boilerplate contracts.

If an MOU is not posted on the MCP or MHP’s website and is not readily

available upon request from the MCP, MHP or county behavioral health

department, a hospital may make a formal request for it under the California

Public Records Act.

• Appendix MH 9-B, “Types of MCPs and MHPs.” This

appendix briefly describes the types of MCPs and MHPs

throughout the state and their governing authorities.

• Appendix MH 9-C, “Pertinent DHCS Plan Letters.”

This appendix contains excerpts of DHCS plan

letters related to emergency services for mental

health conditions.

• Appendix MH 9-D, “DHCS Chart: Medi-Cal Mental

Health Services.” This appendix contains a DHCS chart

describing MCP and MHP financial responsibilities for

mental health services for Medi-Cal patients.

• Appendix MH 9-E, “Pertinent Legal Definitions of

Emergency Psychiatric Conditions.” This appendix

compares Medicaid, Medi-Cal, licensing and EMTALA

definitions that apply to emergency psychiatric conditions.

II. MEDI-CAL PAYMENT FOR MENTAL HEALTH

SERVICES

A. What Mental Health Services Are Covered by

MHPs?

The state contracts with a MHP in each county to provide

or arrange for, and pay for, all medically necessary,

covered Specialty Mental Health Services (SMHS) for

Medi-Cal patients who reside in that county.

“Covered

SMHS” means specified health services, including

psychiatric health facility services, psychiatric inpatient

hospital services, and other mental health services, that

meet the criteria for “medical necessity” set forth in MHP

regulations at Title 9, California Code of Regulations

(CCR) Sections 1820.205, 1830.205 or 1830.210. These

criteria are outlined in Appendix MH 9-A, “Medical

Necessity for MHP Coverage.” Many counties have

informational documents on their website which may be

helpful to hospitals. (See www.file.lacounty.gov/SDSInter/

dmh/159129_MediCalGuide_English_July2013.pdf for an

example.)

Historically, the state contractually required MHPs to

pay for “services for emergency psychiatric conditions

received by a beneficiary from providers, whether or not

3 Boilerplate MHP Contract 2017-22, Exh. A, Attachment 2, available

at https://www.dhcs.ca.gov/services/MH/Documents/PPQA%20Pages/

Boilerplate_2017-2022_MHP_Contract-Exhibits_A_B_and_E.pdf (accessed

May 25, 2019). While this contract is identiﬁed on the DHCS website as

effective July 1, 2017, through June 30, 2022, the contract was not made

publicly accessible on the DHCS website until 2018. Thus, it is unclear as to

when this contract actually became effective.

Chapter 9 — Payment for Medi-Cal Emergency and Post-Stabilization Mental Health Services CHA

9.3

the provider has a subcontract” with the MHP.

The prior

contract between the state and the MHP does not define

the term “emergency psychiatric condition,” but required

the MHP to consider certain ICD-9 diagnosis codes as

included. While not defined in the prior contract, the term

“emergency psychiatric condition” is defined in Title 9,

CCR Section 1810.216 as a condition meeting the medical

necessity criteria in Title 9, CCR, Section 1820.205 when

the patient, “due to a mental disorder, is a current danger

to self or others, or immediately unable to provide for or

utilize, food, shelter or clothing, and requires psychiatric

inpatient hospital or psychiatric health facility services.”

Unfortunately, there is little explanation in the contract,

the regulations or other guidance that detail the precise

parameters of the MHP’s obligation to cover services for

emergency psychiatric conditions.

As discussed in footnote 4, CHA believes that the State

amended its contract with MHPs in or around 2018. That

version of the contract specifies that the MHP “shall

authorize out of network services when a beneficiary with

an emergency psychiatric condition is admitted on an

emergency basis for psychiatric inpatient hospital services

or psychiatric health facility services.”

The more recent

version of the contract is silent as to what Medi-Cal payor

is responsible to pay for emergency services associated

with a severe mental health diagnosis in the absence of an

admission to a psychiatric inpatient hospital or psychiatric

health facility.

4 Boilerplate MHP Contract 2013-18, Exh. A, Attachment I, Provision 3,

available at https://www.dhcs.ca.gov/services/MH/Documents/2013-2018_

MHP_Contract.pdf. Even though the DHCS website identiﬁes this contract

as effective July 1, 2013, through June 30, 2017, the title of the document

suggests that it may have been effective through 2018, which would be

consistent with the timing of the more recent contract becoming uploaded to

the DHCS website.

5 As shown in Appendix E, the deﬁnition of “emergency psychiatric

condition” in the MHP regulations varies from the deﬁnition of “psychiatric

emergency medical condition” in the California emergency services licensing

laws (Health & Safety Code Section 1317.1). The licensing laws, which govern

the emergency care that a hospital must provide, do not require “medical

necessity” or that a hospital maintain a psychiatric service, in order for a

psychiatric condition to be deemed an “emergency condition” that the hospital

must treat or effectuate a transfer.

6 Boilerplate MHP Contract 2017-22, Exh. A, Attachment 6, Provision G.

7 However, as recently as Sept. 26, 2018, DHCS issued All Plan Letter

18-043, which requires MHPs to state in their member handbooks that “prior

authorization is not required for emergency services and the beneﬁciary has

the right to use the hospital or other setting for emergency care.” Pages 58-59

of the template handbook available at https://www.dhcs.ca.gov/services/

MH/Documents/Information%20Notices/IN_18-043_Beneﬁciary_Handbook/

MHP_Beneﬁciary_Handbook.pdf (accessed May 25, 2019) states that the

MHP is required to… [p]rovide timely access to care, including making

services available 24 hours a day, seven days a week, when medically

necessary to treat an emergency psychiatric condition or an urgent or crisis

condition.” This is consistent with the statement on page 16 of the handbook

that “[e]mergency services are covered 24 hours a day, seven days a week for

Medi-Cal beneﬁciaries.”

California regulations also require a MHP to cover services

rendered when a patient with an emergency psychiatric

condition is admitted for psychiatric inpatient hospital

services to the extent provided in Title 9, CCR Section

1820.225 (an “emergency admission”) or admitted for

psychiatric health facility services under the conditions

described in Title 9, CCR Section 1830.245, whether

in-network or out-of-network. Approval for payment for

such services associated with an emergency psychiatric

condition may be subject to the patient meeting certain

medical necessity and other criteria, as well as timely

notification by the hospital or psychiatric health facility to

the MHP. [Title 9, CCR Sections 1820.225 and 1830.245]

DHCS has issued several plan letters, including Medi-Cal

Managed Care Policy Letter (MMCD) 00-01 and All Plan

Letter (APL) 13-021, excerpts of which are included in

Appendices MH 9-C, “Pertinent DHCS Plan Letters” and

MH 9-D, “DHCS Chart: Medi-Cal Mental Health Services,”

respectively. These DHCS documents attempt to clarify

when the MCP is responsible for payment, and when the

MHP is responsible for payment, but the documents are

not entirely consistent. However, based on these letters, it

is likely DHCS’ position that the MHP is responsible for the

following emergency, inpatient and outpatient services:

1. Emergency/inpatient services if the patient:

a. Has an included diagnosis;

b. Cannot be safely treated at lower level of care; and

c. Requires inpatient hospital services due to

one of the following as a result of an included

mental disorder:

• Symptoms or behaviors that represent a

current danger to self or others, or significant

property destruction;

• Symptoms or behaviors that prevent the

beneficiary from providing for, or utilizing, food,

clothing, or shelter;

• Symptoms or behaviors that present a severe

risk to the beneficiary’s physical health;

• Symptoms or behaviors that represent a recent,

significant deterioration in ability to function;

• Psychiatric evaluation or treatment can only

be performed in an acute psychiatric inpatient

setting or through urgent or emergency

intervention provided in the community or

clinic; and

CHA Mental Health Law Manual 2019

9.4

• Serious adverse reactions to medications,

procedures or therapies requiring continued

hospitalization.

d. Facility charges for emergency services when

the patient meets medical necessity criteria and

is admitted for psychiatric inpatient services at

the same facility that provided the emergency

services.

e. Facility charges directly related to the professional

services of a mental health specialist provided

in the ED when the services do not result in

the patient’s admission for psychiatric inpatient

hospital services in the same or another facility.

f. Professional services of a mental health specialist

provided in an ED of any hospital to a patient

whose condition meets medical necessity criteria

or when required to assess whether medical

necessity is met.

2. Outpatient services if:

a. The patient has an included mental

health diagnosis;

b. The patient has a significant impairment in an

important area of life function, or a reasonable

probability of deterioration in an important area

of life function, or a reasonable probability

of not progressing developmentally as

individually appropriate;

c. The focus of treatment is to address impairment;

d. The expectation that proposed treatment will

significantly diminish impairment, prevent

significant deterioration; and

e. The condition would not be responsive to physical

health care-based treatment.

B. What Mental Health Services Are Covered by

MCPs?

The state contracts with MCPs to provide or arrange

for medically necessary covered services for Medi-Cal

patients assigned to them, including outpatient mental

health services. “Outpatient mental health services” are

defined as:

8 APL 13-021.

9 Medi-Cal Managed Care Policy Letter (MMCD) 00-01.

10 Id.

11 Id.

12 Id.

outpatient services that [the MCP] will provide for

Members with mild to moderate mental health conditions

including: individual or group mental health evaluation

and treatment (psychotherapy); psychological testing

when clinically indicated to evaluate a mental health

condition; psychiatric consultation for medication

management; and outpatient laboratory, supplies, and

supplements.

SMHS are excluded from the scope of MCP services.

MCPs are required to pay for certain medically necessary

mental health services, such as “[e]mergency room

professional services as described in Title 22, CCR

Section 53855, except services provided by psychiatrists,

psychologists, licensed clinical social workers, marriage,

family and child counselors [now called marriage and family

therapists], or other specialty mental health providers” and

“[f]acility charges for emergency room visits which do not

result in a psychiatric admission.”

DHCS has stated that the MHP is responsible for the

following emergency and outpatient services:

1. Emergency Services:

a. All professional services except the professional

services of a mental health specialist when

required for the emergency services and care of a

patient, regardless of whether the condition meets

MHP medical necessity criteria

; and

b. All facility and professional charges for emergency

services and care of a patient when such services

do not result in admission. This includes patients

with an excluded diagnosis or whose condition

does not meet medical necessity criteria.

2. Outpatient Services:

a. When the patient has been diagnosed with

a mental health disorder as defined by the

DSM

resulting in mild to moderate distress or

impairment of mental, emotional or behavioral

functioning.

13 Boilerplate MCP Contract, Exh. E, Attachment 1.

14 Boilerplate MCP Contract, Exh. A, Attachment 11, Provision 6.

15 Boilerplate MCP Contract, Exh. A, Attachment 10, Provision 8.E.

16 MMCD 00-01.

17 MMCD 00-01; see also Dual Plan Letter 15-006, p. 5.

18 “DSM” refers to the Diagnostic and Statistical Manual of Mental

Disorders, Fourth Edition, DSM-IVE (1994), published by the American

Psychiatric Association.

APL 13-021.

Chapter 9 — Payment for Medi-Cal Emergency and Post-Stabilization Mental Health Services CHA

9.5

C. Must MHPs and MCPs Pay for Emergency and

Post-Stabilization Services Rendered by Non-

Contracted Providers?

EMERGENCY SERVICES

Under federal Medicaid law and the waivers governing the

MCP and MHP programs,

MCPs and MHPs are required

to pay for emergency services and post-stabilization

services regardless of whether the provider has a contract

with the plan.

The Centers for Medicare & Medicaid

Services (CMS) has stated that this obligation applies only

if the patient has an “emergency medical condition” as

defined below.

If a psychiatric condition does not give rise to an

“emergency medical condition” within the definition below

— that is, there is no risk of serious jeopardy to the health

of the patient — then the patient is not considered to have

an emergency medical condition under federal law and the

MCP or MHP is not required to pay. [67 Fed. Reg. 40989,

41030 (June 14, 2002)] However, DHCS has suggested

that the scope of emergency services required to be

covered under California law may expand to “screening,

examination, and evaluation to determine if a psychiatric

emergency medical condition exists, and the care and

treatment necessary to relieve or eliminate the psychiatric

medical condition, within the capability of the facility.”

Federal Medicaid law defines an emergency medical

condition as a medical condition manifesting itself by acute

symptoms of sufficient severity (including severe pain)

such that a prudent layperson, with an average knowledge

of health and medicine, could reasonably expect the

absence of immediate medical attention to result in: serious

jeopardy to the health of the individual or, in the case of a

pregnant woman, the health of the woman or her unborn

child; serious impairment to bodily functions; or serious

dysfunction of any bodily organ or part. [42 C.F.R. Section

422.113(b)(1)(i)] (See D.“Important Definitions,”page9.6

as to variances in the definition of “emergency medical

condition” in the federal Medicaid law and in the federal

EMTALA regulations (42 C.F.R. Section 489.24(b)).)

Emergency services are defined as covered inpatient and

outpatient services that are rendered by a provider qualiﬁed

to furnish emergency services; and needed to evaluate

or stabilize an emergency medical condition [42 C.F.R.

Section 422.113(b)(1)(ii)].

20 The MHP program is governed by the 1915(b) waiver while the MCP

program is governed by the 1115 waiver. These citations are to the sections of

the Social Security Act authorizing the waivers.

2 U.S.C. Section 1396u-2(b)(2); 42 C.F.R. Section 438.114(c); Title 9,

CCR Section 1810.345(e); Boilerplate MHP Contract, Exh. A, Attachment I,

Provision 3; Boilerplate MCP Contract, Exh. A, Attachment 8, Provision 13.

MCD Policy Letter No. 00-01 Rev., excerpted in Appendix C.

The most recent version of the boilerplate MHP contract

appears to exempt MHPs from the requirements of

42 C.F.R. section 422.113.

The legal impact of this

exemption for emergency services is unclear as it appears

to be inconsistent with both the 1915(b) waiver and state

law at California Code of Regulations, Title 9, Section

1810.345(e).

POST-STABILIZATION SERVICES

Federal Medicaid law defines “post-stabilization services”

as covered services that are:

1. Related to an emergency medical condition;

2. Provided after an enrollee is stabilized; and

3. Provided either to maintain the stabilized condition, or

under certain circumstances, to improve or resolve the

enrollee’s condition.

[42 C.F.R. Section 422.113(c)(1)]

The physician treating the enrollee must decide when the

enrollee is considered stabilized for transfer or discharge,

and that decision is binding on an MCP or MHP [42 C.F.R.

Section 422.113(b)(3)].

Under the federal Medicaid regulations, a MCP or MHP

is financially responsible for post-stabilization services

obtained within, or outside, the plan network that meet one

of the following:

1. Are pre-approved by a plan provider or other plan

representative; or

2. Are not pre-approved by a plan provider or other

plan representative, but are administered to maintain

the patient’s stabilized condition within one hour

of a request to the plan for pre-approval of further

post-stabilization care; or

3. Are not pre-approved by a plan provider or other plan

representative, but administered to maintain, improve,

or resolve the patient’s stabilized condition if:

a. The plan does not respond to a request for

pre-approval within one hour;

b. The plan cannot be contacted; or

c. The plan representative and the treating physician

cannot reach an agreement concerning the

patient’s care, and a plan physician is not available

for consultation. In this situation, the plan must

give the treating physician the opportunity to

consult with a plan physician. The treating

physician may continue with care of the patient

23 Boilerplate MHP Contract 2017-22, Exh. E, Provision 7.D.

CHA Mental Health Law Manual 2019

9.6

until a plan physician is reached or one of the

criteria below is met.

[42 C.F.R. Section 422.113(c)(2)]

If no pre-approval has been obtained, the MCP or MHP’s

ﬁnancial responsibility for post-stabilization services ends

when one of the following has occurred:

1. A plan physician with privileges at the treating hospital

assumes responsibility for the patient’s care; or

2. A plan physician assumes responsibility for the

patient’s care through transfer; or

3. A MCP or MHP plan representative and the treating

physician reach an agreement concerning the patient’s

care; or

4. The patient is discharged.

[42 C.F.R. Section 422.113(c)(3)]

Again, the law is unsettled as to the impact of the 2018

amendment to the state MHP contract on the obligation of

MHPs to cover post-stabilization care.

In summary, psychiatric emergency services are covered

to the extent that a mental health diagnosis is such that a

prudent layperson could reasonably expect the absence of

immediate medical attention to result in serious jeopardy

to the health of the individual; serious impairment to bodily

functions; or serious dysfunction of any bodily organ or part,

inpatient and outpatient services needed to evaluate or

stabilize the condition would constitute covered emergency

services. Post-stabilization psychiatric services are covered

if provided after the patient’s psychiatric condition is

stabilized in order to maintain the stabilized condition or to

improve or resolve the enrollee’s condition.

D. Important Definitions

A question that frequently arises is whether the terms

“emergency medical condition” and “psychiatric emergency

medical condition” for Medi-Cal reimbursement purposes

have the same definition as these terms as applied under

EMTALA or state licensing laws for emergency psychiatric

medical conditions? The answer is “no.”

As shown in Appendix MH 9-E, “Pertinent Legal Definitions

of Emergency Psychiatric Conditions,” the definition of

“emergency medical condition” in the federal Medicaid

law [42 U.S.C. Section 1396u-2(b)(2)(C)] varies from

the definition of “emergency medical condition” in the

federal EMTALA regulations (42 C.F.R. Section 489.24(b)).

The EMTALA regulations explicitly include “psychiatric

disturbances” and “symptoms of substance abuse” in

the definition of “emergency medical condition” —

“a medical condition manifesting itself by acute symptoms

of sufficient severity (including severe pain, psychiatric

disturbances and/or symptoms of substance abuse)

such that the absence of immediate medical attention

could reasonably be expected to” jeopardize the health of

the patient. The federal Medicaid law does not mention

psychiatric disturbances.

The mental health parity law [42 U.S.C. Section 300gg]

requires a Medicaid managed care plan to provide

out-of-network benefits for mental health/substance use

disorders if it provides out-of-network benefits for medical/

surgical conditions. However, this requirement is applied

across a state’s Medicaid program, and does not mean that

the same plan that might be liable for the medical/surgical

benefit is necessarily liable for the mental health/substance

use benefit. [42 C.F.R. Section 438.920(b)]

At the state level, the definition of “psychiatric emergency

medical condition” in the MHP regulations varies from the

definition of “psychiatric emergency medical condition” in

the California emergency services licensing law (Health and

Safety Code Section 1317.1). The MHP regulations require

“medical necessity” and psychiatric hospital services in order

for the psychiatric condition to be deemed an “emergency

condition.” The licensing definition does not impose either

requirement for a psychiatric condition to be deemed an

emergency condition.

It is noted that all of the definitions of “emergency medical

condition” and “psychiatric emergency medical condition”

apply when the patient may be a danger to himself/herself,

which may include grave disability; however, the Medicaid

definition does not include a situation where a patient may

be a danger to others, but not to himself/herself.

E. How Do MHPs and MCPs Coordinate Their

Payment and Care Management Obligations?

MCPs and MHPs are required to execute memoranda of

understanding (MOUs) to coordinate care between them.

There have been over 100 MOUs executed in the State of

California.

Each MOU should include the following topics:

1. Basic requirements

2. Covered services and populations

3. Oversight responsibilities of the MCP and MHP

4. Screening, assessment and referral

5. Care coordination

24 Title 9, CCR Sections 1810.370, 1810.415, 1850.505, 1850.515,

1850.525; MCP Boilerplate Contracts, Exh. A, Attachment 11 and Attachment

12; All Plan Letter 13-018.

Lewis, K. and Coursolle, A., National Health Law Program, Mental Health

Services in Medi-Cal, p. 7 (Jan. 12, 2017).

Chapter 9 — Payment for Medi-Cal Emergency and Post-Stabilization Mental Health Services CHA

9.7

6. Information exchange

7. Reporting and quality improvement requirements

8. Dispute resolution

9. After-hours policies and procedures, and

10. Member and provider education.

However, the National Health Law Program study cited in

footnote 26 reported that many MOUs fail to include some

of these required topics.

Review of a MOU may help a hospital understand how

its local MCP and MHP have agreed to coordinate care,

including screening, assessment and referral of ED patients.

Accordingly, hospitals may wish to review their local MOU(s)

in connection with their review of the analysis in this

chapter, which does not include any analysis of the MOUs

across the state. Hospitals may be able to rely on promises

from MCPs and MHPs to each other in order to effectuate

better care coordination for patients who present at their

ED with mental health conditions.

If a MOU is not available on the Internet, a hospital may

wish to request a copy of the agreement from the MHP

pursuant to the California Public Records Act.

III. HOW HOSPITALS CAN GET REIMBURSED: A

CASE-BY-CASE ANALYSIS

CHA has applied the general principles of the various

laws and DHCS interpretations described above to the

following eight scenarios to help hospitals identify which

type of plan likely is responsible for reimbursing the hospital

for emergency psychiatric services. However, individual

circumstances may affect the outcome of each scenario.

For example, a contract between a hospital and a specific

plan may set forth the payment responsibilities by that plan

to the hospital. If there is no contract between a hospital

and a specific plan, the facts, such as whether notice of

stabilization was given or whether the plan pre-approved

the care, will determine whether there may be an implied

contract between the hospital and the plan.

Each scenario below begins with a patient presenting to a

hospital ED, either voluntarily or involuntarily. However, the

scenarios differ as to whether the hospital has inpatient

psychiatric beds, whether the patient has a psychiatric

emergency condition, whether the patient’s psychiatric

condition is stabilized in the ED, whether the patient

is stabilized when admitted to a psychiatric inpatient

bed, whether the patient is transferred to an inpatient

psychiatric facility, whether the patient is actually admitted

26 Ibid.

to a psychiatric inpatient bed and whether the patient is

discharged to the community.

Scenario

Hospital

w/Psych.

Inpt.

Pt. has

Psych.

Emgcy

Stabilized

in ED

Trans-

ferred

Psych

Inpt.

Admitted

to Psych

Inpt.

Final

Status

Yes Either Yes Yes No

Discharged

Comm.

Yes Either No NA No

Discharged

Comm.

3.a Yes Yes Yes Possible Yes

Transferred

Another

Hospital

3.b NA Yes Yes Possible No

Yes

Admitted

Yes Yes Yes No No

Yes

Admitted

5.a Yes No Yes

Sufﬁcient

for

Transfer

Yes

See

5.b.1/

5.b.2

Transferred

Another

Hospital

5.b.1 NA Yes Yes

Received

Transfer No

Yes

Admitted

5.b.2 NA Yes Yes

Received

Transfer No

Discharged

Comm.

Each scenario assumes that the patient is given a medical

screening examination to assess the emergent nature

of the patient’s medical or psychiatric condition. In most

instances, the MCP is likely responsible to pay for the

medical screening examination.

Scenario 1: Patient presents at the ED of a hospital

with or without inpatient psychiatric services. The

patient is experiencing depression and suicidal

ideation. The patient is determined by a physician

or other professional to have an emergency

psychiatric condition. The patient’s psychiatric

condition is stabilized in the ED after a licensed

clinical social worker consults with the patient and

obtains information from family members about a

recent break-up with a girlfriend. After several hours,

the patient is discharged home with a referral for

follow-up outpatient care.

This patient required a level of care that did not require

an acute inpatient stay. Accordingly, consistent with the

27 The involvement or intervention in the emergency services process by

county-designated mental health professionals does not affect which plan is

responsible for payment.

In other words, the patient is determined by a physician or other

professional to have an emergency psychiatric condition within the meaning

of EMTALA and the California hospital licensing laws [Health & Safety Code

Section 1317.1].

CHA Mental Health Law Manual 2019

9.8

MCP-State contract, MMCD 00-01 and APL 13-021, it is

likely that the MCP is responsible for paying for the ED visit,

including both the facility and professional charges. The

MCP will not pay for services provided by mental health

specialists, such as the consult with the LCSW.

Instead,

it is the MHP’s responsibility to pay for the professional

services of mental health specialists provided in the ED

to patients meeting MHP medical necessity criteria or

required to assess whether MHP criteria are met, and any

facility charges directly related to mental health specialists’

services.

It is likely that the MCP is responsible for mental

health specialists’ services required for the emergency

services and care of a patient with an excluded diagnosis.

Hospitals should have a billing policy in place to ensure

that facility fees are not inadvertently collected from

both the MHP and the MCP in those instances where

both may be responsible for facility fees for professional

services provided.

Scenario 2: Patient presents at the ED of a hospital

without inpatient psychiatric services. Although the

patient is experiencing auditory hallucinations, and

it is determined by a physician or other professional

that the patient has a psychiatric condition, the

patient does not have an emergency psychiatric

condition. The patient is provided further evaluation

and treatment and is subsequently discharged

without an inpatient admission.

The analysis for this scenario is likely the same as Scenario

1 because the patient’s condition and level of care did not

require an acute inpatient stay.

Scenarios 3.a and 3.b: Patient presents to the ED

of a hospital with inpatient psychiatric services. The

patient has suicidal ideation with a specific plan.

The patient is determined by a physician or other

professional to have an emergency psychiatric

condition, and is transferred to another facility that

provides acute inpatient psychiatric services due to

its lack of capacity or capability to admit the patient

(e.g., transfer of an adolescent or child from a

psychiatric facility that does not admit minors).

29 Specialty mental health providers include psychiatrists, psychologists,

licensed clinical social workers, and marriage and family therapists (previously

called marriage, family and child counselors).

MMCD 00-01. This includes hospitals that provide and do not provide

acute psychiatric services.

3.a. Sending hospital. Both the MCP and the MHP may

be responsible for reimbursement for hospital charges.

More specifically, pursuant to the MMCD 00-01, the MCP

may be responsible for facility charges incurred by the

sending hospital. However, because the patient’s condition

ultimately resulted in a psychiatric admission and because

the service was “for an emergency psychiatric condition,”

the MHP may also be responsible for the facility charges for

services rendered by the sending hospital to the extent that

the patient meets the medical necessity criteria. Hospitals

may wish to review their contracts with the local MHP or

MCP (if applicable) or the MOU between their local MHP

and MCP for further clarification. Some MOUs have a gap

where:

1. Patients that are admitted at the same hospital are the

responsibility of the MHP,

2. Patients that are not admitted for inpatient psychiatric

services are the responsibility of the MCP, and

3. No provision identifies responsibility where the patient

is admitted for inpatient psychiatric services at another

facility.

Our experience has indicated that there is no standard

between counties as to MHP or MCP reimbursement to

sending hospitals as in this scenario for services rendered

in the emergency department.

With respect to professional fees, the MHP likely is

responsible for professional services of mental health

specialists provided in the ED to patients meeting MHP

medical necessity criteria or required to assess whether

MHP criteria are met.

The MCP is likely responsible for

other professional charges, including professional services

not provided by mental health specialists and services

provided by mental health specialists to patients who do

not meet the medical necessity criteria.

3.b. Receiving hospital. Pursuant to the MHP-State

contract and MMCD 00-01 and APL 13-021, the MHP

is responsible for the inpatient acute psychiatric care

rendered to this patient if the patient meets medical

necessity criteria. The MCP continues to have responsibility

for professional services necessary to meet the physical

needs of the patient while admitted at the receiving

hospital

, although the MHP may be responsible for

routine hospital services and certain ancillary services.

To the extent that the patient does not have a diagnosis

listed in Appendix MH 9-A, “Medical Necessity for MHP

Coverage,” but requires inpatient acute psychiatric care,

31 Ibid.

32 Ibid.

33 Welfare and Institutions Code Section 14722; Cal. Code Regs., Title 9,

Section 1810.350; MMCD 00-01.

Chapter 9 — Payment for Medi-Cal Emergency and Post-Stabilization Mental Health Services CHA

9.9

the hospital should consult its legal counsel to pursue

payment options for the services rendered.

Scenario 4: Patient presents to the ED of a hospital

with inpatient psychiatric services. The patient has

suicidal ideation with a specific plan. The patient

is determined by a physician or other professional

to have an emergency psychiatric condition, and is

admitted to the same hospital.

Pursuant to the MHP-State contract and MMCD 00-01

and APL 13-021, if the patient meets the medical necessity

criteria for MHP coverage, the MHP should be responsible

for the care rendered to this patient as an emergency

admission. The emergency charges are likely to be

incorporated into the reimbursement for the inpatient stay.

However, the MCP may be responsible for professional

services not rendered by a mental health specialist

when required for the emergency services and care of

the member.

MHPs may take the position that specific notice is required

in order for emergency admissions to be reimbursable

[California Code of Regulations, Title 9, Section 1820.225].

Non-contract hospitals with psychiatric lines of service

should familiarize themselves with the expectations of their

counties. Even if the requirements imposed by a county

may not be legally valid (e.g., some of these requirements

may constitute non-quantitative limitations in violation of

the mental health parity law [42 U.S.C. Section 300gg]),

compliance with the MHP expectations will remove a

potential obstacle to claim payment.

If the patient does not have a diagnosis listed in Appendix

MH 9-A, “Medical Necessity for MHP Coverage,” the

hospital should consult its legal counsel to pursue payment

options for the services rendered.

Scenarios 5.a, 5.b.1 and 5.b.2: Patient presents to

the ED of a hospital that does not provide inpatient

psychiatric services. The patient has suicidal ideation

with a specific plan. The patient is determined by

the ED physician or other professional to have an

emergency psychiatric condition and is transferred

to a hospital that provides inpatient psychiatric

services, with the expectation of an admission.

5.a. Sending hospital. Pursuant to the MMCD 00-01, the

MCP may be responsible for facility charges incurred by the

sending hospital. However, because the patient’s condition

may have required a psychiatric admission and because

the service was “for an emergency psychiatric condition,”

the MHP may also be responsible for the facility charges for

services rendered by the sending hospital to the extent that

the patient meets the medical necessity criteria. Hospitals

may wish to consult their contracts with their local MHP or

MCP (if applicable) or the MOU between their local MHP

and MCP for further clarification.

With respect to professional services, the MHP is

responsible for professional services of mental health

specialists provided in the ED to patients meeting MHP

medical necessity criteria or required to assess whether

MHP criteria are met.

The MCP is likely responsible for

other professional charges, including professional services

not provided by mental health specialists and services

provided by mental health specialists to patients who do

not meet the medical necessity criteria.

5.b.1. Receiving hospital that admits the patient.

Pursuant to the MHP-State contract and MMCD 00-01

and APL 13-021, the MHP is responsible for the inpatient

psychiatric services rendered if the patient meets medical

necessity criteria. The MCP continues to have responsibility

for professional services necessary to meet the physical

needs of the patient while admitted at the receiving

hospital.

To the extent that the patient does not have a

diagnosis listed in Appendix MH 9-A, “Medical Necessity

for MHP Coverage,” but requires inpatient psychiatric care,

the hospital may wish to consult its legal counsel to pursue

payment options for the services rendered.

Receiving hospital that does not admit the patient. In

some instances, the receiving hospital will determine that

the patient does not require inpatient psychiatric care. In

these cases, the payment responsibility for the services

rendered by the receiving hospital should follow the

rationale set forth in Scenarios 1 and 2.

34 MMCD 00-01.

35 Ibid.

1-1

Consent to Surgery or Special Procedure*

1-2

Informed Consent to Surgery or Special

Procedure*

2-1

Self-Sufﬁcient Minor Information

2-2

Caregiver’s Authorization Afﬁdavit

2-3

Authorization for Third Party to Consent to

Treatment of Minor Lacking Capacity to Consent

2-A Decision Makers for Medical Treatment of Adults

2-B Consent Requirements for Medical Treatment of

Minors*

2-D Health Care Decisions for Unrepresented Patients

2-E Considerations for Revising the Hospital’s Policy

and Procedure Regarding Decision Making for

Unrepresented Patients

4-7

Consent to Receive Antipsychotic Medications

8-1

Conditions of Admission

MH 9-A Medical Necessity for MHP Coverage

MH 9-B Types of MCPs and MHPs

MH 9-C Pertinent DHCS Plan Letters

MH 9-D DHCS Chart: Medi-Cal Mental Health Services

MH 9-E Pertinent Legal Deﬁnitions of Emergency

Psychiatric Conditions

12-1

Request for Voluntary Admission and Authorization

for Treatment

12-2 Statement of Professional Person Responsible for

Minor’s Admission

12-3

Notice to Minors

12-4 Certiﬁcation of Admitting Physician

12-5 Application for Involuntary Admission — Inebriates

12-6

Notice of Certiﬁcation for Intensive Treatment

12-7

Advisement of Rights — Involuntary Patient

12-8

Leave of Absence from Psychiatric Service

12-9

Request for Release From Involuntary Treatment

12-10

Notice of Certiﬁcation for Second Involuntary

14-Day Period for Intensive Treatment — Suicidal

Patient

12-11 Petition for Postcertiﬁcation Treatment of

Imminently Dangerous Person

12-12 Detention of Patient With Psychiatric Emergency in

a Nondesignated Health Facility (Health and Safety

Code Section 1799.111)

12-A Summary of Lanterman-Petris-Short Act’s

Provision for Involuntary Evaluation and Treatment

and Right of Review

13-3

Aftercare Plan

13-4 Notice to Law Enforcement Agency: Release of

Person From Hospital From Whom a Firearm or

Other Deadly Weapon Was Conﬁscated

13-5

Notice to Patient: Procedure for Return of

Conﬁscated Weapon(s)

16-1

Authorization for Use or Disclosure of Health

Information*

16-2

Request to Withhold Public Release of Information

19-2 Employee Acknowledgment of Child Abuse and

Neglect Reporting Obligations

19-4 Employee Acknowledgment of Elder and

Dependent Adult Abuse Reporting Obligations

19-A Assault and Abuse Reporting Requirements

20-1 Adverse Event Report Form — Sample

21-1 Incident Report

21-2 Report to Attorney

23-1

Consent for the HIV Test

25-A Report of a Hospital Death Associated With

Restraint or Seclusion

These documents are provided in English in the back of the manual. All forms, including Spanish versions, when available,

can be found online for CHA members at www.calhospital.org/free-resources. “S” denotes that the form is provided in

English and Spanish.

List of Forms and Appendices

* Indicates forms that are new or revised in this edition.

(03/19)

Page 1 of 4

FORM 1-1

Consent to Surgery or Special Procedure

1. Your doctors have recommended the following operation or procedure:

and the following type of anesthesia:

Upon your authorization and consent, this operation or procedure, together with any diﬀerent

or further procedures which, in the opinion of the doctor(s) performing the procedure, may

be indicated due to an emergency or newly-discovered information, will be performed on

you. The operations or procedures will be performed by the doctor named below (or in

the event the doctor is unable to perform or complete the procedure, a qualiﬁed substitute

doctor), together with associates and assistants, including anesthesiologists, pathologists,

and radiologists from the medical staﬀ of (name of hospital)

to whom the doctor(s) performing

the procedure may assign designated responsibilities.

2. Name of the practitioner who is performing the procedure or administering the medical

treatment

The hospital maintains personnel and facilities to assist your doctors in their performance of

various surgical operations and other special diagnostic or therapeutic procedures. However,

your doctors, surgeons, and the persons in attendance for the purpose of performing

specialized medical services such as anesthesia, radiology, or pathology are not employees,

representatives or agents of the hospital or of doctor(s) performing the procedure. They are

independent medical practitioners.

3. All operations and procedures carry the risk of unsuccessful results, complications, injury, or

even death, from both known and unforeseen causes, and no warranty or guarantee is made

as to result or cure. You have the right to be informed of:

• The nature of the operation or procedure, including other care, treatment or medications;

• Potential beneﬁts, risks or side eﬀects of the operation or procedure, including potential

problems that might occur with the anesthesia to be used and during recuperation;

• The likelihood of achieving treatment goals;

• Reasonable alternatives and the relevant risks, beneﬁts and side eﬀects related to such

alternatives, including the possible results of not receiving care or treatment; and

• Any independent medical research or signiﬁcant economic interests your doctor may

have related to the performance of the proposed operation or procedure.

Except in cases of emergency, operations or procedures are not performed until you have

had the opportunity to receive this information and have given your consent. You have the

right to give or refuse consent to any proposed operation or procedure at any time prior to its

performance.

1 CMS recommends that consent forms state, if applicable, that physicians other than the operating practitioner, including but not limited to

residents, will be performing important tasks related to the surgery, in accordance with the hospital’s policies (and, in the case of residents,

based on their skill set and under the supervision of the responsible practitioner) and that qualiﬁed medical practitioners who are not physicians

will perform important parts of the surgery or administration of anesthesia within their scope of practice, as determined under state law, and for

which they have been granted privileges by the hospital.

Form 1-1 Consent to Surgery or Special Procedure

Page 2 of 4

(03/19)

4. If your doctor determines that there is a reasonable possibility that you may need a blood

transfusion as a result of the surgery or procedure to which you are consenting, your doctor

will inform you of this and will provide you with information concerning the beneﬁts and risks

of the various options for blood transfusion, including predonation by yourself or others. You

also have the right to have adequate time before your procedure to arrange for predonation,

but you can waive this right if you do not wish to wait.

Transfusion of blood or blood products involves certain risks, including the transmission of

disease such as hepatitis or Human Immunodeﬁciency Virus (HIV), and you have a right to

consent or refuse consent to any transfusion. You should discuss any questions that you may

have about transfusions with your doctor.

5. By your signature below, you authorize the pathologist to use his or her discretion in

disposition or use of any cells, tissue, body part, hardware or foreign object removed from

your person during the operation or procedure set forth above, subject to the following

conditions (if any):

6. Your signature on this form indicates that:

• You have read and understand the information provided in this form;

• Your doctor has adequately explained to you the operation or procedure and the

anesthesia set forth above, along with the risks, beneﬁts, and alternatives, and the other

information described above in this form;

• You have had a chance to ask your doctors questions;

• You have received all of the information you desire concerning the operation or

procedure and the anesthesia; and

• You authorize and consent to the performance of the operation or procedure and the

anesthesia.

Date:

Time: AM / PM

Signature:

(patient/legal representative)

If signed by someone other than patient, indicate relationship:

Print name:

(legal representative)

Form 1-1 Consent to Surgery or Special Procedure

(03/19)

Page 3 of 4

Physician Certification

I, the undersigned physician, hereby certify that I have discussed the procedure described in this

consent form with this patient (or the patient’s legal representative), including:

1. The risks and beneﬁts of the procedure;

2. Any adverse reactions that may reasonably be expected to occur;

3. Reasonable alternatives and the relevant risks, beneﬁts and side eﬀects related to such

alternatives, including the possible results of not receiving care or treatment;

4. The potential problems that may occur during recuperation; and

5. Any research or economic interest I may have regarding this treatment.

I understand that I am responsible for ﬁlling in all blanks in paragraphs 1. and 2. above. I further

certify that the patient was encouraged to ask questions and that all questions were answered.

Date: Time: AM / PM

Signature:

(physician)

Print name:

(legal representative)

Consent to Blood Transfusion

Your signature below indicates that:

1. You have received a copy of the brochure, A Patient’s Guide to Blood Transfusion.

2. You have received information from your doctor concerning the risks and beneﬁts of blood

transfusion and of any alternative therapies and their risks and beneﬁts.

3. You have had the opportunity to discuss this matter with your doctor, including predonation.

4. Subject to any special instructions listed below, you consent to such blood transfusion

as your doctor may order in connection with the operation or procedure described in this

consent form.

2 The Physician Certiﬁcation is not a required element of this form, but is one way of providing for physician documentation of the consent

process. Other options include a progress note in the patient’s medical record, a note in the patient’s history and physical, or documentation

provided from the physician’s ofﬁce (e.g., an informed consent form signed by both the patient and the physician). NOTE: Even if the physician

provides a copy of a consent form signed in the physician’s ofﬁce, the patient should still be asked to sign the hospital’s consent form.

Form 1-1 Consent to Surgery or Special Procedure

Page 4 of 4

(03/19)

Special Instructions:

(Describe here any speciﬁc instructions for patient’s blood transfusion, e.g., predonation, direct do-

nation, etc.)

Date: Time: AM / PM

Signature:

(patient/legal representative)

If signed by someone other than patient, indicate relationship:

Print name:

(legal representative)

Interpreter’s Statement

I have accurately and completely read the foregoing document to (patient or patient’s legal

representative) in the

patient’s or legal representative’s primary language (identify language) .

He/she understood all of the terms and conditions and acknowledged his/her agreement by signing

the document in my presence.

Date: Time: AM / PM

Signature:

(interpreter)

Print name:

(interpreter)

NOTE: This form should include taglines as required by the Aﬀordable Care Act.

(See www.calhospital.org/taglines, for detailed information.)

Reference: CoP Interpretive Guidelines, Tags A-0466 and A-0955

(03/19)

Page 1 of 4

FORM 1-1S

Consentimiento Para Effectuar Cirugía o

Procedimiento Especial

1. Sus doctores han recomendado la siguiente operación o procedimiento:

y el siguiente tipo de anestesia:

Trassu autorización y consentimiento, se le realizará esta operación o procedimiento,

junto con cualquier otroprocedimiento diferente o añadido que, en la opinión del médico

o médicos que realizan el procedimiento pueda estar indicadodebido a una emergencia

o nueva información. Las operaciones o procedimientos serán efectuados por el doctor o

doctores que se nombran más abajo (o en caso de que alguno de estos doctores no pueda

efectuar o completar el procedimiento, por un doctor sustituto caliﬁcado), junto a otros

asociados y asistentes, entre ellos, anestesistas, patólogos y radiólogos del cuerpo médico

(nombre del hospital) , a quienes el o los

doctores que realicen el procedimiento podrían asignar responsabilidades designadas.

2. Nombre del médico que realiza la intervención o administra el tratamiento:

El hospital mantiene personal e instalaciones para ayudar a los doctores en el desempeño

de las diferentes operaciones quirúrgicas y otros procedimientos terapéuticos o diagnósticos

especiales. No obstante, sus médicos, cirujanos y las personas que asisten con el ﬁn de

prestar servicios médicos especializados, tales como anestesia, radiología o patología, no

son empleados, representantes ni agentes del hospital ni del doctor o doctores que realizan

el procedimiento, sino que son profesionales médicos independientes.

3. Todas las operaciones y procedimientos conllevan el riesgo de resultados fallidos,

complicaciones, lesiones o incluso la muerte, tanto por causas conocidas como imprevistas,

y no se otorga ninguna garantía respecto al resultado o la curación. Usted tiene derecho a

que se le informe acerca de:

• La naturaleza de la operación o procedimiento, incluidos otros cuidados médicos,

tratamientos o medicamentos;

• Los beneﬁcios, riesgos o efectos secundarios potenciales de la operación o

procedimiento, incluidos los problemas potenciales que podrían presentarse durante la

recuperación por la anestesia utilizada;

• Las alternativas razonables y los riesgos, beneﬁcios y efectos secundarios pertinentes

relacionados con dichas alternativas, incluidos los posibles resultados de no recibir

atención o tratamiento, y

• Cualquier interés en investigaciones médicas independientes u otros intereses

signiﬁcativos que su doctor pueda tener en relación con la realización de la operación o

procedimiento propuesto.

Page 2 of 4

(03/19)

Form 1-1S Consent to Surgery or Special Procedure

Excepto en casos de emergencia, las operaciones y los procedimientos no se efectúan

sino hasta que usted haya tenido la oportunidad de recibir esta información y otorgar su

consentimiento. Usted tiene derecho a dar o rehusar su consentimiento para toda operación

o procedimiento que se proponga en cualquier momento, antes de que éstos se efectúen.

4. Si su doctor determina que existe la posibilidad razonable de que usted requerirá una

transfusión de sangre como resultado de la cirugía o procedimiento para el cual está

otorgando su consentimiento, se lo informará y se le proporcionará información sobre los

beneﬁcios y los riesgos de las diversas opciones de transfusión de sangre, incluida la

donación adelantada realizada por usted u otras personas. Usted también tiene derecho

a contar con suﬁciente tiempo antes de su procedimiento para gestionar la donación

adelantada, pero puede renunciar a este derecho si no desea esperar.

La transfusión de sangre o derivados sanguíneos conlleva ciertos riesgos, incluyendo la

transmisión de enfermedades como la hepatitis o el virus de la inmunodeﬁciencia humana

(VIH), y usted tiene derecho a dar o rehusar el consentimiento para cualquier transfusión. Si

tiene preguntas sobre las transfusiones, debe consultarlas con su doctor.

5. Al ﬁrmar a continuación, usted autoriza al patólogo a hacer uso de su criterio en la

eliminación o uso de células, tejidos, partes del cuerpo, dispositivos o cuerpos extraños

extraídos de su persona durante la operación o procedimiento expuesto anteriormente,

sujeto a las siguientes condiciones (si las hubiere):

6. Su ﬁrma en este formulario indica que:

• Leyó y entendió la información provista en este formulario;

• Su doctor le explicó adecuadamente la operación o procedimiento y la anestesia que

se utilizará, arriba mencionados, así como los riesgos, beneﬁcios, alternativas y la otra

información descrita en este formulario;

• Tuvo oportunidad de hacerle preguntas a sus doctores;

• Recibió toda la información que desea sobre la operación o procedimiento y la

anestesia, y

• Autoriza y otorga su consentimiento para la realización de la operación o procedimiento

y la anestesia.

Fecha:

Hora: AM / PM

Firma:

(paciente o representante legal)

Si no lo ﬁrma el paciente, indique la relación con éste:

Nombre en letra de imprenta:

(representante legal)

(03/19)

Page 3 of 4

Form 1-1S Consent to Surgery or Special Procedure

Physician Certification

I, the undersigned physician, hereby certify that I have discussed the procedure described in this

consent form with this patient (or the patient’s legal representative), including:

• The risks and beneﬁts of the procedure;

• Any adverse reactions that may reasonably be expected to occur;

• Reasonable alternatives and the relevant risks, beneﬁts and side eﬀects related to such

alternatives, including the possible results of not receiving care or treatment;

• The potential problems that may occur during recuperation;

• The likelihood of achieving treatment goals; and

• Any research or economic interest I may have regarding this treatment.

I understand that I am responsible for ﬁlling in all blanks in paragraphs 1. and 2. above. I further

certify that the patient was encouraged to ask questions and that all questions were answered.

Date:

Time: AM / PM

Signature:

(physician)

Print name:

(physician)

Consentimiento para Transfusión de Sangre

Su ﬁrma al pie indica que:

1. Recibió una copia del folleto “Guía de Transfusión de Sangre para Pacientes.”

2. Recibió información de su doctor sobre los riesgos y beneﬁcios de las transfusiones de

sangre y de otras terapias alternativas con sus riesgos y beneﬁcios.

3. Tuvo oportunidad de conversar con su doctor sobre este asunto, incluyendo el tema de la

donación adelantada.

4. Sujeto a las instrucciones especiales que se detallan a continuación, otorga su

consentimiento para cualquier transfusión de sangre que su doctor indique en relación con

la operación o procedimiento que se describe en este formulario de consentimiento.

Instrucciones especiales:

(Describa en este espacio cualquier instrucción especíﬁca relacionada con la transfusión de sangre

del paciente; por ejemplo, donación adelantada, donación directa, etc.)

Page 4 of 4

(03/19)

Form 1-1S Consent to Surgery or Special Procedure

Fecha: Hora: AM / PM

Firma:

(paciente o representante legal)

Si no lo ﬁrma el paciente, indique la relación con éste:

Nombre en letra de imprenta:

(representante legal)

Interpreter’s Statement

I have accurately and completely read the foregoing document to (patient or patient’s legal

representative) in

the patient’s or legal representative’s primary language (identify language)

. He/she understood all of the terms and conditions

and acknowledged his/her agreement by signing the document in my presence.

Date: Time: AM / PM

Signature:

(interpreter)

Print name:

(interpreter)

NOTE: This form should include taglines as required by the Aﬀordable Care Act.

(See www.calhospital.org/taglines, for detailed information.)

Reference: CoP Interpretive Guidelines, Tags A-0466 and A-0955

(03/19)

Page 1 of 4

FORM 1-2

Informed Consent to Surgery or Special

Procedure

1. This form is called an “Informed Consent Form.” It is your doctor’s obligation to provide you

with the information you need in order to decide whether to consent to the surgery or special

procedure that your doctors have recommended. The purpose of this form is to verify that

you have received this information and have given your consent to the surgery or special

procedure recommended to you. You should read this form carefully and ask questions of

your doctors so that you understand the operation or procedure before you decide whether

or not to give your consent. If you have questions, you are encouraged and expected to ask

them before you sign this form. Your doctors are not employees or agents of the hospital.

They are independent medical practitioners.

2. Your doctors have recommended the following operation or procedure:

and

the following type of anesthesia:

Upon your authorization and consent, this operation or procedure, together with any diﬀerent

or further procedures which, in the opinion of the doctor(s) performing the procedure, may

be indicated due to an emergency or newly-discovered information, will be performed on

you. The operations or procedures will be performed by the doctor named below (or, in

the event the doctor is unable to perform or complete the procedure, a qualiﬁed substitute

doctor), together with associates and assistants, including anesthesiologists, pathologists,

and radiologists from the medical staﬀ of (name of hospital)

to whom the doctor(s) performing the procedure

may assign designated responsibilities.

3. Name of the practitioner who is performing the procedure or administering the medical

treatment

The hospital maintains personnel and facilities to assist your doctors in their performance of

various surgical operations and other special diagnostic or therapeutic procedures. However,

your doctors, surgeons and the persons in attendance for the purpose of performing

specialized medical services such as anesthesia, radiology, or pathology are not employees,

representatives or agents of the hospital or of doctor(s) performing the procedure. They are

independent medical practitioners.

4. All operations and procedures carry the risk of unsuccessful results, complications, injury or

even death, from both known and unforeseen causes, and no warranty or guarantee is made

as to result or cure. You have the right to be informed of:

• The nature of the operation or procedure, including other care, treatment or medications;

• Potential beneﬁts, risks or side eﬀects of the operation or procedure, including potential

problems that might occur with the anesthesia to be used and during recuperation;

1 CMS recommends that consent forms state, if applicable, that physicians other than the operating practitioner, including but not limited to

residents, will be performing important tasks related to the surgery, in accordance with the hospital’s policies (and, in the case of residents,

based on their skill set and under the supervision of the responsible practitioner) and that qualiﬁed medical practitioners who are not physicians

will perform important parts of the surgery or administration of anesthesia within their scope of practice, as determined under state law, and for

which they have been granted privileges by the hospital.

Form 1-2 — Informed Consent to Surgery or Special Procedure

Page 2 of 4

(03/19)

• The likelihood of achieving treatment goals;

• Reasonable alternatives and the relevant risks, beneﬁts and side eﬀects related to such

alternatives, including the possible results of not receiving care or treatment; and

• Any independent medical research or signiﬁcant economic interests your doctor may have

related to the performance of the proposed operation or procedure.

Except in cases of emergency, operations or procedures are not performed until you have

had the opportunity to receive this information and have given your consent. You have the

right to give or refuse consent to any proposed operation or procedure at any time prior to its

performance.

5. By your signature below, you authorize the pathologist to use his or her discretion in

disposition or use of any cells, tissue, body part, hardware or foreign object removed from

your person during the operation or procedure set forth above, subject to the following

conditions (if any):

6. Your doctor will discuss with you the risks and beneﬁts of the recommended operation or

procedure, including the following (the patient’s doctor is responsible for the content of the

information provided below):

a. The nature of the operation or procedure and the anesthesia, including the surgical site

and laterality if applicable:

b. The expected beneﬁts or eﬀects of the operation or procedure and anesthesia:

c. The possible risks and/or complications of the operation or procedure and anesthesia,

including potential problems that might occur during recuperation include, but are not

limited to:

d. Due to the following speciﬁc medical condition(s):

, additional risks and/or

complications of the operation or procedure and anesthesia include, but are not limited

to:

e. Alternative methods of treatment, including the nature of such treatments, their expected

beneﬁts or eﬀects, and their possible risks and complications include:

f. Other issues discussed with the patient:

7. If your doctor determines that there is a reasonable possibility that you may need a blood

transfusion as a result of the surgery or procedure to which you are consenting, your doctor

will inform you of this and will provide you with information concerning the beneﬁts and risks

of the various options for blood transfusion, including predonation by yourself or others. You

also have the right to have adequate time before your procedure to arrange for predonation,

but you can waive this right if you do not wish to wait.

Transfusion of blood or blood products involves certain risks, including the transmission of

disease such as hepatitis or Human Immunodeﬁciency Virus (HIV), and you have a right to

Form 1-2 — Informed Consent to Surgery or Special Procedure

(03/19)

Page 3 of 4

consent or refuse consent to any transfusion. You should discuss any questions that you may

have about transfusions with your doctor.

8. Your signature on this form indicates that:

a. You have read and understand the information provided in this form;

b. Your doctor has adequately explained to you the operation or procedure and the

anesthesia set forth above, along with the risks, beneﬁts, and the other information

described above in this form;

c. You have had a chance to ask your doctors questions;

d. You have received all of the information you desire concerning the operation or

procedure and the anesthesia; and

e. You authorize and consent to the performance of the operation or procedure and the

anesthesia.

Date:

Time: AM / PM

Signature:

(patient/legal representative)

If signed by someone other than patient, indicate name and relationship:

Print name:

(legal representative)

Physician Certification

I, the undersigned physician, hereby certify that I have discussed the procedure described in this

consent form with this patient (or the patient’s legal representative), including:

• The risks and beneﬁts of the procedure;

• Any adverse reactions that may reasonably be expected to occur;

• Reasonable alternatives and the relevant risks, beneﬁts and side eﬀects related to such

alternatives, including the possible results of not receiving care or treatment; and

• The potential problems that may occur during recuperation; and

• Any research or economic interest I may have regarding this treatment.

I understand that I am responsible for ﬁlling in all blanks in paragraphs 2, 3 and 6. I further certify

that the patient was encouraged to ask questions and that all questions were answered.

Date:

Time: AM / PM

Signature:

(physician)

Print name:

(physician)

2 While the Physician Certiﬁcation is optional for the Consent to Surgery or Special Procedure (CHA Form 1-1), CHA recommends that it be

included in this Informed Consent form containing medical information for which the physician is responsible.

Form 1-2 — Informed Consent to Surgery or Special Procedure

Page 4 of 4

(03/19)

Consent to Blood Transfusion

Your signature below indicates that:

1. You have received a copy of the brochure, A Patient’s Guide to Blood Transfusion.

2. You have received information from your doctor concerning the risks and beneﬁts of blood

transfusion and of any alternative therapies and their risks and beneﬁts.

3. You have had the opportunity to discuss this matter with your doctor, including predonation.

4. Subject to any special instructions listed below, you consent to such blood transfusion

as your doctor may order in connection with the operation or procedure described in this

consent form.

Special Instructions:

(Describe here any speciﬁc instructions for patient’s blood transfusion, e.g., predonation, direct

donation, etc.)

Date: Time: AM / PM

Signature:

(patient/legal representative)

If signed by someone other than patient, indicate relationship:

Print name:

(legal representative)

Interpreter’s Statement

I have accurately and completely read the foregoing document to (patient or patient’s legal

representative)

in the patient’s or legal

representative’s primary language (identify language) . He/

she understood all of the terms and conditions and acknowledged his/her agreement by signing the

document in my presence.

Date: Time: AM / PM

Signature:

(interpreter)

Print name:

(interpreter)

NOTE: This form should include taglines as required by the Aﬀordable Care Act.

(See www.calhospital.org/taglines, for detailed information.)

Reference: CoP Interpretive Guidelines, Tags A-0466 and A-0955

(03/19)

Page 1 of 5

FORM 1-2S

Consentimiento Informado Para Effectuar Cirugía

o Procedimiento Especial

1. Este formulario se llama “Formulario de consentimiento informado”. Su doctor tiene

la obligación de darle toda la información necesaria para que usted pueda decidir si

quiere dar su consentimiento para la cirugía o procedimiento especial que sus doctores

le recomendaron. El propósito de este formulario es veriﬁcar que usted recibió esta

información y dio su consentimiento para la cirugía o procedimiento especial que le

recomendaron. Debe leer este formulario detenidamente y hacerle preguntas a sus

doctores para que entienda la operación o procedimiento antes de decidir si dará o no su

consentimiento. Si tiene preguntas, se le anima y se espera que las haga antes de ﬁrmar

este formulario. Sus doctores no son empleados ni agentes del hospital. Son profesionales

médicos independientes.

2. Sus doctores han recomendado la siguiente operación o procedimiento:

y el siguiente tipo de anestesia:

Trassu autorización y consentimiento, se le realizará esta operación o procedimiento,

junto con cualquier otroprocedimiento diferente o añadido que, en la opinión del médico

o médicos que realizan el procedimiento pueda estar indicadodebido a una emergencia

o nueva información. Las operaciones o procedimientos serán efectuados por el doctor o

doctores que se nombran más abajo (o en caso de que alguno de estos doctores no pueda

efectuar o completar el procedimiento, por un doctor sustituto caliﬁcado), junto a otros

asociados y asistentes, entre ellos, anestesistas, patólogos y radiólogos del cuerpo médico

(nombre del hospital) , a quienes el o los

doctores que realicen el procedimiento podrían asignar responsabilidades designadas.

3. Nombre del médico que realiza la intervención o administra el tratamiento:

El hospital mantiene personal e instalaciones para ayudar a los doctores en el desempeño

de las diferentes operaciones quirúrgicas y otros procedimientos terapéuticos o diagnósticos

especiales. No obstante, sus médicos, cirujanos y las personas que asisten con el ﬁn de

prestar servicios médicos especializados, tales como anestesia, radiología o patología, no

son empleados, representantes ni agentes del hospital ni del doctor o doctores que realizan

el procedimiento, sino que son profesionales médicos independientes.

4. Todas las operaciones y procedimientos conllevan el riesgo de resultados fallidos,

complicaciones, lesiones o incluso la muerte, tanto por causas conocidas como imprevistas,

y no se otorga ninguna garantía respecto al resultado o la curación. Usted tiene derecho a

que se le informe acerca de:

• La naturaleza de la operación o procedimiento, incluidos otros cuidados médicos,

tratamientos o medicamentos;

• Los beneﬁcios, riesgos o efectos secundarios potenciales de la operación o procedimiento,

incluidos los problemas potenciales que podrían presentarse durante la recuperación por

la anestesia utilizada;

Page 2 of 5

(03/19)

Form 1-2S — Informed Consent to Surgery or Special Procedure

• La probabilidad para lograr las metas del tratamiento;

• Las alternativas razonables y los riesgos, beneﬁcios y efectos secundarios pertinentes

relacionados con dichas alternativas, incluidos los posibles resultados de no recibir

atención o tratamiento, y

• Cualquier interés en investigaciones médicas independientes u otros intereses signiﬁcativos

que su doctor pueda tener en relación con la realización de la operación o procedimiento

propuesto.

Excepto en casos de emergencia, las operaciones y los procedimientos no se efectúan

sino hasta que usted haya tenido la oportunidad de recibir esta información y otorgar su

consentimiento. Usted tiene derecho a dar o rehusar su consentimiento para toda operación

o procedimiento que se proponga en cualquier momento, antes de que éstos se efectúen.

5. Al ﬁrmar a continuación, usted autoriza al patólogo a hacer uso de su criterio en la

eliminación o uso de células, tejidos, partes del cuerpo, dispositivos o cuerpos extraños

extraídos de su persona durante la operación o procedimiento expuesto anteriormente,

sujeto a las siguientes condiciones (si las hubiere):

6. Su doctor conversará con usted sobre los riesgos y beneﬁcios de la operación o

procedimiento recomendando, incluidos los siguientes puntos (El médico del paciente es

responsable del contenido de la información proporcionada abajo):

a. La naturaleza de la operación o procedimiento y la anestesia, incluyendo el lugar y lado

del cuerpo donde se realizará la operación, si corresponde:

b. Los beneﬁcios o efectos esperados de la operación o procedimiento y de la anestesia:

Entre los posibles riesgos y complicaciones de la operación o procedimiento y de la

anestesia, incluyendo los problemas potenciales que podrían presentarse durante la

recuperación, están los siguientes (sin limitarse a ellos):

c. Debido a la o las siguientes afecciones médicas especiales:

otros

riesgos y complicaciones adicionales de la operación o procedimiento y de la anestesia,

incluyen, sin limitarse a ellos:

d. Entre los métodos alternativos de tratamiento, incluyendo la naturaleza de dichos

tratamientos, sus beneﬁcios o efectos esperados y sus posibles riesgos y

complicaciones, están los siguientes:

e. Otros asuntos que se discutieron con el paciente:

7. Si su doctor determina que existe la posibilidad razonable de que usted requerirá una

transfusión de sangre como resultado de la cirugía o procedimiento para el cual está

otorgando su consentimiento, se lo informará y se le proporcionará información sobre los

beneﬁcios y los riesgos de las diversas opciones de transfusión de sangre, incluida la

(03/19)

Page 3 of 5