In this article, we explain mental health patient rights in Illinois. We’ll answer questions like, “What is the Mental Health and Developmental Disability Act?” and “What basic rights are covered under the Mental Health and Developmental Disabilities Code?”
Once a person receives mental health services, he or she cannot be denied any rights, benefits, or privileges guaranteed by law, the Illinois State Constitution, or the Constitution of the United States solely because he or she is receiving mental health services. Being admitted to a mental health facility doesn’t automatically mean a person is legally incompetent. Legal competency is determined by a separate hearing, and if a person is determined legally incompetent, a guardian is appointed to assist that person to make life decisions and manage assets.
In an effort to promote and safeguard the rights of people receiving mental health services, the Division of Mental Health has developed comprehensive rules to take into account clinical, social and administrative factors that may affect an individual receiving care.
The Mental Health and Developmental Disability Act is an Illinois law that establishes the rights of persons who are recipients of services from mental health facilities and developmental disability facilities. These rules apply to all agencies licensed by the Department of Mental Health and Mental Retardation, as well as all public or private inpatient psychiatric institutes and units, including state-operated mental health institutions.
As a recipient of mental health treatment or developmental disability habilitation services, you have rights under the Mental Health and Developmental Disabilities Code. These rights apply to you whether you are receiving inpatient or outpatient care, and regardless of whether your care and treatment are received from a private or a state-operated facility.
Under the Mental Health and Developmental Disabilities Code (MHDDC), recipients of mental health treatment or developmental disability rehabilitation services have legal rights to the following:
· No presumption of legal disability. Recipients of mental health or developmental disability services are not considered legally disabled solely because they are receiving care. An individual can only be determined legally disabled by a court in a guardianship proceeding, which must be held separately from any legal proceeding to involuntarily admit you to a mental health or developmental disability facility.
· Appropriate and humane care. Every recipient is entitled to receive the level of care necessary to meet his or her needs, free from abuse or neglect, in the least restrictive environment possible. For example, if outpatient care will safely meet your needs, you should not receive inpatient care. If you receive residential care, the facility has to develop an individual plan for you to ensure proper care.
· Uncensored, private communication. Recipients have the right to openly communicate with other people. This includes receiving mail, phone calls, and visitors. If you live in a mental health or developmental disability facility, the facility staff cannot read your mail, listen to your phone calls, or supervise visits. In some instances, the facility staff may be able to restrict your communication with others if the restriction is reasonably necessary to protect you or others from harm, harassment, or intimidation. However, the facility has to inform you of these restrictions.
· Personal property. Recipients are entitled to have personal belongings. Each facility has to provide storage space for recipients to keep and use their things. However, facilities have the right to prohibit recipients from having or using items that can cause harm to the recipient or others. Unlawful items can be confiscated, and any lawful prohibited items have to be returned to the recipient upon discharge.
· Money. Recipients have the right to use, deposit, and store money in the facility. Any money deposited within the facility has to be returned to the recipient at discharge with earned interest. If you are under the age of 18, your parents do have the right to control your money.
· Informed consent. Recipients and their guardians are both entitled to be fully informed before the recipient undergoes or participates in a medical or surgical procedure, receives any medication, or takes part in an experimental study. This means the recipient and/or guardian has been told and completely understands the risks and benefits of the treatment or procedure and any alternatives to it.
· Right to refuse treatment and services. Recipients over the age of 18 have the right to refuse medical treatment, mental health treatment, or developmental disability habilitation services, even if they previously gave consent to the procedure or care. Legal guardians cannot grant consent on the recipient’s behalf if the recipient refuses treatment. However, there are a few exceptions to this right. Recipients may be forced to receive unwanted treatment if the care is an absolute emergency or a court-ordered procedure. (For more on this, check out: Emergency Involuntary Commitment to a Mental Health Facility in Illinois.)
· Right to petition for discharge. Individuals who are receiving court-ordered mental health care services have the right to file a petition for discharge. Once a petition is filed, the court has to set a hearing within 5 days, excluding Saturdays, Sundays, and holidays.
· Right to petition for a facility or program transfer. Any recipient who has been involuntarily committed by a court order may file a petition in court to be transferred to a different facility, a program of alternative treatment, or to undergo the care and custody of another person.
· Right to object to discharge. As long as a person is clinically suitable for discharge, a facility can discharge him or her at any time. Once a facility decides to discharge someone, the facility director has to give the recipient 7 days notice of the discharge date. The recipient can object the discharge by filing a written objection to the facility director before the scheduled discharge date. Within 7 days of receiving the objection, the facility director has to schedule a hearing before the facility’s utilization review committee. The recipient cannot be discharged during that time period. At the conclusion of the hearing, the utilization review committee decides if the recipient is suitable for discharge or not. Recipients can also be transferred to a more appropriate facility.
· Right to notify others of location. A facility staff member has to contact at least two people of the person with a disability’s choice and inform them of the recipient’s circumstances. The facility staff member also has to provide information on how to contact the recipient. Recipients have the right to withhold the details of their location with others, too.
· Right to notify others of emergency forced medication, restraint, and seclusion. Recipients have the right to request outside notification in the cases of medication, seclusion, restraint, or any other restriction of rights. The MHDDC requires facilities to allow you to notify others of certain events, so they may take action to protect your rights on your behalf. Facilities have to attempt to notify at least two of the people or organizations you designate, whether by mail or by phone, within 24 hours of the event requiring notice.
In regards to recipients of mental health or developmental disability services, no, smoking is not considered a right. Most facilities are smoke-free, and others place restrictions on when and where recipients may smoke. However, recipients may request treatment to stop smoking, like a nicotine patch or chewing gum.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: