5325-5337
WELFARE AND INSTITUTIONS CODE
SECTION 5325-5337
5325. Each person involuntarily detained for evaluation or
treatment under provisions of this part, each person admitted as a
voluntary patient for psychiatric evaluation or treatment to any
health facility, as defined in Section 1250 of the Health and Safety
Code, in which psychiatric evaluation or treatment is offered, and
each mentally retarded person committed to a state hospital pursuant
to Article 5 (commencing with Section 6500) of Chapter 2 of Part 2 of
Division 6 shall have the following rights, a list of which shall be
prominently posted in the predominant languages of the community and
explained in a language or modality accessible to the patient in all
facilities providing such services and otherwise brought to his or
her attention by such additional means as the Director of Mental
Health may designate by regulation:
(a) To wear his or her own clothes; to keep and use his or her own
personal possessions including his or her toilet articles; and to
keep and be allowed to spend a reasonable sum of his or her own money
for canteen expenses and small purchases.
(b) To have access to individual storage space for his or her
private use.
(c) To see visitors each day.
(d) To have reasonable access to telephones, both to make and
receive confidential calls or to have such calls made for them.
(e) To have ready access to letterwriting materials, including
stamps, and to mail and receive unopened correspondence.
(f) To refuse convulsive treatment including, but not limited to,
any electroconvulsive treatment, any treatment of the mental
condition which depends on the induction of a convulsion by any
means, and insulin coma treatment.
(g) To refuse psychosurgery. Psychosurgery is defined as those
operations currently referred to as lobotomy, psychiatric surgery,
and behavioral surgery and all other forms of brain surgery if the
surgery is performed for the purpose of any of the following:
(1) Modification or control of thoughts, feelings, actions, or
behavior rather than the treatment of a known and diagnosed physical
disease of the brain.
(2) Modification of normal brain function or normal brain tissue
in order to control thoughts, feelings, actions, or behavior.
(3) 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 does not include prefrontal sonic treatment wherein
there is no destruction of brain tissue. The Director of Mental
Health shall promulgate appropriate regulations to assure adequate
protection of patients' rights in such treatment.
(h) To see and receive the services of a patient advocate who has
no direct or indirect clinical or administrative responsibility for
the person receiving mental health services.
(i) Other rights, as specified by regulation.
Each patient shall also be given notification in a language or
modality accessible to the patient of other constitutional and
statutory rights which are found by the State Department of Mental
Health to be frequently misunderstood, ignored, or denied.
Upon admission to a facility each patient shall immediately be
given a copy of a State Department of Mental Health prepared patients'
rights handbook.
The State Department of Mental Health shall prepare and provide
the forms specified in this section and in Section 5157.
The rights specified in this section may not be waived by the
person's parent, guardian, or conservator.
5325.1. Persons with mental illness have the same legal rights and
responsibilities guaranteed all other persons by the Federal
Constitution and laws and the Constitution and laws of the State of
California, unless specifically limited by federal or state law or
regulations. No otherwise qualified person by reason of having been
involuntarily detained for evaluation or treatment under provisions
of this part or having been admitted as a voluntary patient to any
health facility, as defined in Section 1250 of the Health and Safety
Code, in which psychiatric evaluation or treatment is offered shall
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity, which
receives public funds.
It is the intent of the legislature that persons with mental
illness shall have rights including, but not limited to, the
following:
(a) 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.
(b) A right to dignity, privacy, and humane care.
(c) A right to be free from harm, including unnecessary or
excessive physical restraint, isolation, medication, abuse, or
neglect. Medication shall not be used as punishment, for the
convenience of staff, as a substitute for program, or in quantities
that interfere with the treatment program.
(d) A right to prompt medical care and treatment.
(e) A right to religious freedom and practice.
(f) A right to participate in appropriate programs of publicly
supported education.
(g) A right to social interaction and participation in community
activities.
(h) A right to physical exercise and recreational opportunities.
(i) A right to be free from hazardous procedures.
5325.2. Any person who is subject to detention pursuant to Section
5150, 5250, 5260, or 5270.15 shall have the right to refuse treatment
with antipsychotic medication subject to provisions set forth in
this chapter.
5326. The professional person in charge of the facility or his or
her designee may, for good cause, deny a person any of the rights
under Section 5325, except under subdivisions (g) and (h) and the
rights under subdivision (f) may be denied only under the conditions
specified in Section 5326.7. To ensure that these rights are denied
only for good cause, the Director of Mental Health shall adopt
regulations specifying the conditions under which they may be denied.
Denial of a person's rights shall in all cases be entered into the
person's treatment record.
5326.1. Quarterly, each local mental health director shall furnish
to the Director of Mental Health, the facility reports of the number
of persons whose rights were denied and the right or rights which
were denied. The content of the reports from facilities shall enable
the local mental health director and Director of Mental Health to
identify individual treatment records, if necessary, for further
analysis and investigation. These quarterly reports, except for the
identity of the person whose rights are denied, shall be available,
upon request, to Members of the State Legislature, or a member of a
county board of supervisors.
Notwithstanding any other provision of law, information pertaining
to denial of rights contained in the person's treatment record shall
be made available, on request, to the person, his or her attorney,
his or her conservator or guardian, the local mental health director,
or his or her designee, or the Patient's Rights Office of the State
Department of Mental Health. The information may include consent
forms, required documentation for convulsive treatment, documentation
regarding the use of restraints and seclusion, physician's orders,
nursing notes, and involuntary detention and conservatorship papers.
The information, except for the identity of the person whose rights
are denied, shall be made available to the Members of the State
Legislature or a member of a county board of supervisors.
5326.15. (a) Quarterly, any doctor or facility which administers
convulsive treatments or psychosurgery, shall report to the local
mental health director, who shall transmit a copy to the Director of
Mental Health, 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.
(4) Voluntary patients deemed incapable of giving consent.
(b) Quarterly, the Director of Mental Health shall forward to the
Medical Board of California any records or information received from
such reports indicating violation of the law, and the regulations
which have been adopted thereto.
5326.2. To constitute voluntary informed consent, the following
information shall be given to the patient in a clear and explicit
manner:
(a) The reason for treatment, that is, the nature and seriousness
of the patient's illness, disorder or defect.
(b) The nature of the procedures to be used in the proposed
treatment, including its probable frequency and duration.
(c) The probable degree and duration (temporary or permanent) of
improvement or remission, expected with or without such treatment.
(d) The nature, degree, duration, and the probability of the side
effects and significant risks, commonly known by the medical
profession, of such treatment, including its adjuvants, especially
noting the degree and duration of memory loss (including its
irreversibility) and how and to what extent they may be controlled,
if at all.
(e) 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.
(f) The reasonable alternative treatments, and why the physician
is recommending this particular treatment.
(g) That the patient has the right to accept or refuse the
proposed treatment, and that if he or she consents, has the right to
revoke his or her consent for any reason, at any time prior to or
between treatments.
5326.3. The State Department of Mental Health shall promulgate a
standard written consent form, setting forth clearly and in detail
the matters listed in Section 5326.2, and such further information
with respect to each item as deemed generally appropriate to all
patients.
The treating physician shall utilize the standard written consent
form and in writing supplement it with those details which pertain to
the particular patient being treated.
5326.4. The treating physician shall then present to the patient
the supplemented form specified under Section 5326.3 and orally,
clearly, and in detail explain all of the above information to the
patient. The treating physician shall then administer the execution
by the patient of the total supplemented written consent form, which
shall be dated and witnessed.
The fact of the execution of such written consent form and of the
oral explanation shall be entered into the patient's treatment
record, as shall be a copy of the consent form itself. Should entry
of such latter information into the patient's treatment record be
deemed by any court an unlawful invasion of privacy, then such
consent form shall be maintained in a confidential manner and place.
The consent form shall be available to the person, and to his or
her attorney, guardian, and conservator and, if the patient consents,
to a responsible relative of the patient's choosing.
5326.5. (a) For purposes of this chapter, "written informed consent"
means that a person knowingly and intelligently, without duress or
coercion, clearly and explicitly manifests consent to the proposed
therapy to the treating physician and in writing on the standard
consent form prescribed in Section 5326.4.
(b) 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 hospital privileges. Nothing in this
subdivision shall be construed as in conflict with Section 5326.2. No
one shall be denied any benefits for refusing treatment.
(c) A person confined shall be deemed incapable of written
informed consent if such person cannot understand, or knowingly and
intelligently act upon, the information specified in Section 5326.2.
(d) A person confined shall not be deemed incapable of refusal
solely by virtue of being diagnosed as a mentally ill, disordered,
abnormal, or mentally defective person.
(e) Written informed consent shall be given only after 24 hours
have elapsed from the time the information in Section 5326.2 has been
given.
5326.55. Persons who serve on review committees shall not otherwise
be personally involved in the treatment of the patient whose case
they are reviewing.
5326.6. Psychosurgery, wherever administered, may be performed only
if:
(a) The patient gives written informed consent to the
psychosurgery.
(b) A responsible relative of the person's choosing and with the
person's consent, and the guardian or conservator if there is one,
has read the standard consent form as defined in Section 5326.4 and
has been given by the treating physician the information required in
Section 5326.2. Should the person desire not to inform a relative or
should such chosen relative be unavailable this requirement is
dispensed with.
(c) The attending physician gives adequate documentation entered
in the patient's treatment 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 the time. Such statement in the treatment record shall be signed
by the attending and treatment physician or physicians.
(d) Three physicians, one appointed by the facility and two
appointed by the local mental health director, two of whom shall be
either board-certified or eligible psychiatrists or board-certified
or eligible neurosurgeons, have personally examined the patient and
unanimously agree with the attending physicians' determinations
pursuant to subdivision (c) and agree that the patient has the
capacity to give informed consent. Such agreement shall be documented
in the patient's treatment record and signed by each such physician.
Psychosurgery shall in no case be performed for at least 72 hours
following the patient's written consent. Under no circumstances shall
psychosurgery be performed on a minor.
As used in this section and Sections 5326.4 and 5326.7
"responsible relative" includes the spouse, parent, adult child, or
adult brother or sister of the person.
The giving of consent to any of the treatments covered by this
chapter may not be construed as a waiver of the right to refuse
treatment at a future time. Consent may be withdrawn at any time.
Such withdrawal of consent may be either oral or written and shall be
given effect immediately.
Refusal of consent to undergo a psychosurgery shall be entered in
the patient's treatment record.
5326.7. Subject to the provisions of subdivision (f) of Section
5325, convulsive treatment may be administered to an involuntary
patient, including anyone under guardianship or conservatorship, only
if:
(a) The attending or treatment physician enters adequate
documentation in the patient's treatment 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. Such statement in the treatment record shall be signed by
the attending and treatment physician or physicians.
(b) A review of the patient's treatment record is conducted by a
committee of two physicians, at least one of whom shall have
personally examined the patient. One physician shall be appointed by
the facility and one shall be appointed by the local mental health
director. Both shall be either board-certified or board-eligible
psychiatrists or board-certified or board-eligible neurologists. This
review committee must unanimously agree with the treatment physician'
s determinations pursuant to subdivision (a). Such agreement shall be
documented in the patient's treatment record and signed by both
physicians.
(c) A responsible relative of the person's choosing and the person'
s guardian or conservator, if there is one, have been given the oral
explanation by the attending physician as required by Section 5326.
2. Should the person desire not to inform a relative or should such
chosen relative be unavailable, this requirement is dispensed with.
(d) The patient gives written informed consent as defined in
Section 5326.5 to the convulsive treatment. Such consent shall be for
a specified maximum number of treatments over a specified maximum
period of time not to exceed 30 days, and shall be revocable at any
time before or between treatments. Such withdrawal of consent may be
either oral or written and shall be given effect immediately.
Additional treatments in number or time, not to exceed 30 days, shall
require a renewed written informed consent.
(e) The patient's attorney, or if none, a public defender
appointed by the court, agrees as to the patient's capacity or
incapacity to give written informed consent and that the patient who
has capacity has given written informed consent.
(f) If either the attending physician or the attorney believes
that the patient does not have the capacity to give a written
informed consent, then a petition shall be filed in superior court to
determine the patient's capacity to give written informed consent.
The court shall hold an evidentiary hearing after giving appropriate
notice to the patient, and within three judicial days after the
petition is filed. At such hearing the patient shall be present and
represented by legal counsel. If the court deems the above-mentioned
attorney to have a conflict of interest, such attorney shall not
represent the patient in this proceeding.
(g) If the court determines that the patient does not have the
capacity to give written informed consent, then treatment may be
performed upon gaining the written informed consent as defined in
Sections 5326.2 and 5326.5 from the responsible relative or the
guardian or the conservator of the patient.
(h) At any time during the course of treatment of a person who has
been deemed incompetent, that person shall have the right to claim
regained competency. Should he do so, the person's competency must be
reevaluated according to subdivisions (e), (f), and (g).
5326.75. Convulsive treatment for all other patients including but
not limited to those voluntarily admitted to a facility, or receiving
the treatment in a physician's office, clinic or private home, may
be administered only if:
(a) The requirements of subdivisions (a), (c), and (d) of Section
5326.7 are met.
(b) A board-certified or board-eligible psychiatrist or a
board-certified or board-eligible neurologist other than the patient'
s attending or treating physician has examined the patient and
verifies that the patient has the capacity to give and has given
written informed consent. Such verification shall be documented in
the patient's treatment record and signed by the treating physician.
(c) If there is not the verification required by subdivision (b)
of this section or if the patient has not the capacity to give
informed consent, then subdivisions (b), (e), (f), (g), and (h) of
Section 5326.7 shall also be met.
5326.8. Under no circumstances shall convulsive treatment be
performed on a minor under 12 years of age. Persons 16 and 17 years
of age shall personally have and exercise the rights under this
article.
Persons 12 years of age and over, and under 16, may be
administered convulsive treatment only if all the other provisions of
this law are complied with and in addition:
(a) It is an emergency situation and convulsive treatment is
deemed a lifesaving treatment.
(b) This fact and the need for and appropriateness of the
treatment are unanimously certified to by a review board of three
board-eligible or board-certified child psychiatrists appointed by
the local mental health director.
(c) It is otherwise performed in full compliance with regulations
promulgated by the Director of Mental Health under Section 5326.95.
(d) It is thoroughly documented and reported immediately to the
Director of Mental Health.
5326.85. No convulsive treatment shall 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 shall indicate in the treatment record that the
treatment was refused despite the physician's advice and that he has
explained to the patient the patient's responsibility for any
untoward consequences of his refusal.
5326.9. (a) Any alleged or suspected violation of the rights
described in Chapter 2 (commencing with Section 5150) shall be
investigated by the local director of mental health, or his or her
designee. Violations of Sections 5326.2 to 5326.8, inclusive, shall
also be investigated by the Director of Mental Health, or his or her
designee. If it is determined by the local director of mental health
or Director of Mental Health that a right has been violated, a formal
notice of violation shall be issued.
(b) Either the local director of mental health or the Director of
Mental Health upon issuing a notice of violation may take any or all
of the following action:
(1) Assign a specified time period during which the violation
shall be corrected.
(2) Referral to the Medical Board of California or other
professional licensing agency. Such board shall investigate further,
if warranted, and shall subject the individual practitioner to any
penalty the board finds necessary and is authorized to impose.
(3) Revoke a facility's designation and authorization under
Section 5404 to evaluate and treat persons detained involuntarily.
(4) Refer any violation of law to a local district attorney or the
Attorney General for prosecution in any court with jurisdiction.
(c) Any physician who intentionally violates Sections 5326.2 to
5326.8, inclusive, shall be subject to a civil penalty of not more
than five thousand dollars ($5,000) for each violation. Such penalty
may be assessed and collected in a civil action brought by the
Attorney General in a superior court. Such intentional violation
shall be grounds for revocation of license.
(d) Any person or facility found to have knowingly violated the
provisions of the first paragraph of Section 5325.1 or to have denied
without good cause any of the rights specified in Section 5325 shall
pay a civil penalty, as determined by the court, of fifty dollars
($50) per day during the time in which the violation is not
corrected, commencing on the day on which a notice of violation was
issued, not to exceed one thousand dollars ($1,000), for each and
every violation, except that any liability under this provision shall
be offset by an amount equal to a fine or penalty imposed for the
same violation under the provisions of Sections 1423 to 1425,
inclusive, or 1428 of the Health and Safety Code. These penalties
shall be deposited in the general fund of the county in which the
violation occurred. The local district attorney or the Attorney
General shall enforce this section in any court with jurisdiction.
Where the State Department of Health Services, under the provisions
of Sections 1423 to 1425, inclusive, of the Health and Safety Code,
determines that no violation has occurred, the provisions of
paragraph (4) of subdivision (b) shall not apply.
(e) The remedies provided by this subdivision shall be in addition
to and not in substitution for any other remedies which an
individual may have under law.
5326.91. In any facility in which convulsive treatment is performed
on a person whether admitted to the facility as an involuntary or
voluntary patient, the facility will designate a qualified committee
to review all such treatments and to verify the appropriateness and
need for such treatment. The local mental health director shall
establish a postaudit review committee for convulsive treatments
administered anywhere other than in any facility as defined in
Section 1250 of the Health and Safety Code in which psychiatric
evaluation or treatment is offered. Records of these committees will
be subject to availability in the same manner as are the records of
other hospital utilization and audit committees and to such other
regulations as are promulgated by the Director of Mental Health.
Persons serving on such review committees will enjoy the same
immunities as other persons serving on utilization, peer review, and
audit committees of health care facilities.
5326.95. The Director of Mental Health shall adopt regulations to
carry out the provisions of this chapter, including standards
defining excessive use of convulsive treatment which shall be
developed in consultation with the conference of local mental health
directors.
5327. Every person involuntarily detained under provisions of this
part or under certification for intensive treatment or
postcertification treatment in any public or private mental
institution or hospital, including a conservatee placed in any
medical, psychiatric or nursing facility, shall be entitled to all
rights set forth in this part and shall retain all rights not
specifically denied him under this part.
5328. All information and records obtained in the course of
providing services under Division 4 (commencing with Section 4000),
Division 4.1 (commencing with Section 4400), Division 4.5 (commencing
with Section 4500), Division 5 (commencing with Section 5000),
Division 6 (commencing with Section 6000), or Division 7 (commencing
with Section 7100), to either voluntary or involuntary recipients of
services shall be confidential. Information and records obtained in
the course of providing similar services to either voluntary or
involuntary recipients prior to 1969 shall also be confidential.
Information and records shall be disclosed only in any of the
following cases:
(a) In communications between qualified professional persons in
the provision of services or appropriate referrals, or in the course
of conservatorship proceedings. The consent of the patient, or his or
her guardian or conservator, shall be obtained before information or
records may be disclosed by a professional person employed by a
facility to a professional person not employed by the facility who
does not have the medical or psychological responsibility for the
patient's care.
(b) When the patient, with the approval of the physician, licensed
psychologist, social worker with a master's degree in social work,
or licensed marriage and family therapist, who is in charge of the
patient, designates persons to whom information or records may be
released, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family. Nothing in this subdivision shall be
construed to authorize a licensed marriage and family therapist to
provide services or to be in charge of a patient's care beyond his or
her lawful scope of practice.
(c) To the extent necessary for a recipient to make a claim, or
for a claim to be made on behalf of a recipient for aid, insurance,
or medical assistance to which he or she may be entitled.
(d) If the recipient of services is a minor, ward, or conservatee,
and his or her parent, guardian, guardian ad litem, or conservator
designates, in writing, persons to whom records or information may be
disclosed, except that nothing in this article shall be construed to
compel a physician, licensed psychologist, social worker with a
master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(e) For research, provided that the Director of Mental Health or
the Director of Developmental Services designates by regulation,
rules for the conduct of research and requires the research to be
first reviewed by the appropriate institutional review board or
boards. The rules shall include, but need not be limited to, the
requirement that all researchers shall sign an oath of
confidentiality as follows:
Date
As a condition of doing research concerning persons who have
received services from ____ (fill in the facility, agency or person),
I, ____, agree to obtain the prior informed consent of such persons
who have received services to the maximum degree possible as
determined by the appropriate institutional review board or boards
for protection of human subjects reviewing my research, and I further
agree not to divulge any information obtained in the course of such
research to unauthorized persons, and not to publish or otherwise
make public any information regarding persons who have received
services such that the person who received services is identifiable.
I recognize that the unauthorized release of confidential
information may make me subject to a civil action under provisions of
the Welfare and Institutions Code.
(f) To the courts, as necessary to the administration of justice.
(g) To governmental law enforcement agencies as needed for the
protection of federal and state elective constitutional officers and
their families.
(h) To the Senate Committee on Rules or the Assembly Committee on
Rules for the purposes of legislative investigation authorized by the
committee.
(i) If the recipient of services who applies for life or
disability insurance designates in writing the insurer to which
records or information may be disclosed.
(j) To the attorney for the patient in any and all proceedings
upon presentation of a release of information signed by the patient,
except that when the patient is unable to sign the release, the staff
of the facility, upon satisfying itself of the identity of the
attorney, and of the fact that the attorney does represent the
interests of the patient, may release all information and records
relating to the patient except that nothing in this article shall be
construed to compel a physician, licensed psychologist, social worker
with a master's degree in social work, licensed marriage and family
therapist, nurse, attorney, or other professional person to reveal
information that has been given to him or her in confidence by
members of a patient's family.
(k) Upon written agreement by a person previously confined in or
otherwise treated by a facility, the professional person in charge of
the facility or his or her designee may release any information,
except information that has been given in confidence by members of
the person's family, requested by a probation officer charged with
the evaluation of the person after his or her conviction of a crime
if the professional person in charge of the facility determines that
the information is relevant to the evaluation. The agreement shall
only be operative until sentence is passed on the crime of which the
person was convicted. The confidential information released pursuant
to this subdivision shall be transmitted to the court separately from
the probation report and shall not be placed in the probation
report. The confidential information shall remain confidential except
for purposes of sentencing. After sentencing, the confidential
information shall be sealed.
(l) (1) Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to subdivision (d) of
Section 18951. The information and records sought to be disclosed
shall be relevant to the provision of child welfare services or the
investigation, prevention, identification, management, or treatment
of child abuse or neglect pursuant to Chapter 11 (commencing with
Section 18950) of Part 6 of Division 9. Information obtained pursuant
to this subdivision shall not be used in any criminal or delinquency
proceeding. Nothing in this subdivision shall prohibit evidence
identical to that contained within the records from being admissible
in a criminal or delinquency proceeding, if the evidence is derived
solely from means other than this subdivision, as permitted by law.
(2) As used in this subdivision, "child welfare services" means
those services that are directed at preventing child abuse or
neglect.
(m) 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.
(n) To a committee established in compliance with Section 4070.
(o) In providing information as described in Section 7325.5.
Nothing in this subdivision shall permit the release of any
information other than that described in Section 7325.5.
(p) To the county mental health director or the director's
designee, or to a law enforcement officer, or to the person
designated by a law enforcement agency, pursuant to Sections 5152.1
and 5250.1.
(q) If the patient gives his or her consent, information
specifically pertaining to the existence of genetically handicapping
conditions, as defined in Section 125135 of the Health and Safety
Code, may be released to qualified professional persons for purposes
of genetic counseling for blood relatives upon request of the blood
relative. For purposes of this subdivision, "qualified professional
persons" means those persons with the qualifications necessary to
carry out the genetic counseling duties under this subdivision as
determined by the genetic disease unit established in the State
Department of Health Care Services under Section 125000 of the Health
and Safety Code. If the patient does not respond or cannot respond
to a request for permission to release information pursuant to this
subdivision after reasonable attempts have been made over a two-week
period to get a response, the information may be released upon
request of the blood relative.
(r) When the patient, in the opinion of his or her
psychotherapist, presents a serious danger of violence to a
reasonably foreseeable victim or victims, then any of the information
or records specified in this section may be released to that person
or persons and to law enforcement agencies and county child welfare
agencies as the psychotherapist determines is needed for the
protection of that person or persons. For purposes of this
subdivision, "psychotherapist" means anyone so defined within Section
1010 of the Evidence Code.
(s) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
(t) (1) To a law enforcement officer who personally lodges with a
facility, as defined in paragraph (2), 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 Section 1192.7 of the Penal Code,
or a violent felony, as defined in Section 667.5 of the Penal Code.
The information sought and released shall be limited to whether or
not the person named in the arrest warrant is presently confined in
the facility. This paragraph shall be implemented with minimum
disruption to health facility operations and patients, in accordance
with Section 5212. If the law enforcement officer is informed that
the person named in the warrant is confined in the facility, the
officer may not enter the facility to arrest the person without
obtaining a valid search warrant or the permission of staff of the
facility.
(2) For purposes of paragraph (1), a facility means all of the
following:
(A) A state hospital, as defined in Section 4001.
(B) A general acute care hospital, as defined in subdivision (a)
of Section 1250 of the Health and Safety Code, solely with regard to
information pertaining to a mentally disordered person subject to
this section.
(C) An acute psychiatric hospital, as defined in subdivision (b)
of Section 1250 of the Health and Safety Code.
(D) A psychiatric health facility, as described in Section 1250.2
of the Health and Safety Code.
(E) A mental health rehabilitation center, as described in Section
5675.
(F) A skilled nursing facility with a special treatment program
for chronically mentally disordered patients, as described in
Sections 51335 and 72445 to 72475, inclusive, of Title 22 of the
California Code of Regulations.
(u) Between persons who are trained and qualified to serve on
multidisciplinary personnel teams pursuant to Section 15610.55,
15753.5, or 15761. The information and records sought to be disclosed
shall be relevant to the prevention, identification, management, or
treatment of an abused elder or dependent adult pursuant to Chapter
13 (commencing with Section 15750) of Part 3 of Division 9.
(v) The amendment of subdivision (d) enacted at the 1970 Regular
Session of the Legislature does not constitute a change in, but is
declaratory of, the preexisting law.
(w) This section shall not be limited by Section 5150.05 or 5332.
(x) (1) When an employee is served with a notice of adverse
action, as defined in Section 19570 of the Government Code, the
following information and records may be released:
(A) All information and records that the appointing authority
relied upon in issuing the notice of adverse action.
(B) All other information and records that are relevant to the
adverse action, or that would constitute relevant evidence as defined
in Section 210 of the Evidence Code.
(C) The information described in subparagraphs (A) and (B) may be
released only if both of the following conditions are met:
(i) The appointing authority has provided written notice to the
consumer and the consumer's legal representative or, if the consumer
has no legal representative or if the legal representative is a state
agency, to the clients' rights advocate, and the consumer, the
consumer's legal representative, or the clients' rights advocate has
not objected in writing to the appointing authority within five
business days of receipt of the notice, or the appointing authority,
upon review of the objection has determined that the circumstances on
which the adverse action is based are egregious or threaten the
health, safety, or life of the consumer or other consumers and
without the information the adverse action could not be taken.
(ii) The appointing authority, the person against whom the adverse
action has been taken, and the person's representative, if any, have
entered into a stipulation that does all of the following:
(I) Prohibits the parties from disclosing or using the information
or records for any purpose other than the proceedings for which the
information or records were requested or provided.
(II) Requires the employee and the employee's legal representative
to return to the appointing authority all records provided to them
under this subdivision, including, but not limited to, all records
and documents from any source containing confidential information
protected by this section, and all copies of those records and
documents, within 10 days of the date that the adverse action becomes
final except for the actual records and documents or copies thereof
that are no longer in the possession of the employee or the employee'
s legal representative because they were submitted to the
administrative tribunal as a component of an appeal from the adverse
action.
(III) Requires the parties to submit the stipulation to the
administrative tribunal with jurisdiction over the adverse action at
the earliest possible opportunity.
(2) For the purposes of this subdivision, the State Personnel
Board may, prior to any appeal from adverse action being filed with
it, issue a protective order, upon application by the appointing
authority, for the limited purpose of prohibiting the parties from
disclosing or using information or records for any purpose other than
the proceeding for which the information or records were requested
or provided, and to require the employee or the employee's legal
representative to return to the appointing authority all records
provided to them under this subdivision, including, but not limited
to, all records and documents from any source containing confidential
information protected by this section, and all copies of those
records and documents, within 10 days of the date that the adverse
action becomes final, except for the actual records and documents or
copies thereof that are no longer in the possession of the employee
or the employee's legal representatives because they were submitted
to the administrative tribunal as a component of an appeal from the
adverse action.
(3) Individual identifiers, including, but not limited to, names,
social security numbers, and hospital numbers, that are not necessary
for the prosecution or defense of the adverse action, shall not be
disclosed.
(4) All records, documents, or other materials containing
confidential information protected by this section that have been
submitted or otherwise disclosed to the administrative agency or
other person as a component of an appeal from an adverse action
shall, upon proper motion by the appointing authority to the
administrative tribunal, be placed under administrative seal and
shall not, thereafter, be subject to disclosure to any person or
entity except upon the issuance of an order of a court of competent
jurisdiction.
(5) For purposes of this subdivision, an adverse action becomes
final when the employee fails to answer within the time specified in
Section 19575 of the Government Code, or, after filing an answer,
withdraws the appeal, or, upon exhaustion of the administrative
appeal or of the judicial review remedies as otherwise provided by
law.
5328.01. Notwithstanding Section 5328, all information and records
made confidential under the first paragraph of Section 5328 shall
also be disclosed to governmental law enforcement agencies
investigating evidence of a crime where the records relate to a
patient who is confined or has been confined as a mentally disordered
sex offender or pursuant to Section 1026 or 1368 of the Penal Code
and the records are in the possession or under the control of any
state hospital serving the mentally disabled, as follows:
(a) In accordance with the written consent of the patient; or
(b) If authorized by an appropriate order of a court of competent
jurisdiction in the county where the records are located compelling a
party to produce in court specified records and specifically
describing the records being sought, when the order is granted after
an application showing probable cause therefor. In assessing probable
cause, the court shall do all of the following:
(1) Weigh the public interest and the need for disclosure against
the injury to the patient, to the physician-patient relationship, and
to the treatment services.
(2) Determine that there is a reasonable likelihood that the
records in question will disclose material information or evidence of
substantial value in connection with the investigation or
prosecution.
(3) Determine that the crime involves the causing of, or direct
threatening of, the loss of life or serious bodily injury.
(4) In granting or denying a subpoena, the court shall state on
the record the reasons for its decision and the facts which the court
considered in making such a ruling.
(5) If a court grants an order permitting disclosure of such
records, the court shall issue all orders necessary to protect, to
the maximum extent possible, the patient's privacy and the privacy
and confidentiality of the physician-patient relationship.
(6) Any records disclosed pursuant to the provisions of this
subdivision and any copies thereof shall be returned to the facility
at the completion of the investigation or prosecution unless they
have been made a part of the court record.
(c) A governmental law enforcement agency applying for disclosure
of patient records under this subdivision may petition the court for
an order, upon a showing of probable cause to believe that delay
would seriously impede the investigation, which requires the ordered
party to produce the records forthwith.
(d) Records obtained by a governmental law enforcement agency
pursuant to this section shall not be disseminated to any other
agency or person unless such dissemination relates to the criminal
investigation for which the records were obtained by the governmental
law enforcement agency. The willful dissemination of any record in
violation of this paragraph shall constitute a misdemeanor.
(e) If any records obtained pursuant to this section are of a
patient presently receiving treatment at the state hospital serving
the mentally disabled, the law enforcement agency shall only receive
copies of the original records.
5328.02. Notwithstanding Section 5328, all information and records
made confidential under the first paragraph of Section 5328 shall
also be disclosed to the Youth Authority and Adult Correctional
Agency or any component thereof, as necessary to the administration
of justice.
5328.04. (a) Notwithstanding Section 5328, information and records
made confidential under that section may be disclosed to a county
social worker, a probation officer, or any other person who is
legally authorized to have custody or care of a minor, for the
purpose of coordinating health care services and medical treatment,
as defined in subdivision (b) of Section 56.103 of the Civil Code,
mental health services, or services for developmental disabilities,
for the minor.
(b) Information disclosed under subdivision (a) shall not be
further disclosed by the recipient unless the disclosure is for the
purpose of coordinating health care services and medical treatment,
or mental health or developmental disability services, for the minor
and only to a person who would otherwise be able to obtain the
information under subdivision (a) or any other provision of law.
(c) Information disclosed pursuant to this section shall not be
admitted into evidence in any criminal or delinquency proceeding
against the minor. Nothing in this subdivision shall prohibit
identical evidence from being admissible in a criminal proceeding if
that evidence is derived solely from lawful means other than this
section and is permitted by law.
(d) Nothing in this section shall be construed to compel a
physician, licensed psychologist, social worker with a master's
degree in social work, licensed marriage and family therapist, nurse,
attorney, or other professional person to reveal information,
including notes, that has been given to him or her in confidence by
the minor or members of the minor's family.
(e) The disclosure of information pursuant to this section is not
intended to limit disclosure of information when that disclosure is
otherwise required by law.
(f) Nothing in this section shall be construed to expand the
authority of a social worker, probation officer, or custodial
caregiver beyond the authority provided under existing law to a
parent or a patient representative regarding access to confidential
information.
(g) As used in this section, "minor" means a minor taken into
temporary custody or for whom a petition has been filed with the
court, or who has been adjudged a dependent child or ward of juvenile
court pursuant to Section 300 or 601.
(h) Information and records that may be disclosed pursuant to this
section do not include psychotherapy notes, as defined in Section
164.501 of Title 45 of the Code of Federal Regulations.
5328.05. (a) Notwithstanding Section 5328, information and records
may be disclosed when an older adult client, in the opinion of a
designee of a human service agency serving older adults through an
established multidisciplinary team, presents signs or symptoms of
elder abuse or neglect, whether inflicted by another or
self-inflicted, the agency designee to the multidisciplinary team
may, with the older adult's consent, obtain information from other
county agencies regarding, and limited to, whether or not a client is
receiving services from any other county agency.
(b) The information obtained pursuant to subdivision (a) shall not
include information regarding the nature of the treatment or
services provided, and shall be shared among multidisciplinary team
members for multidisciplinary team activities pursuant to this
section.
(c) The county agencies which may cooperate and share information
under this section shall have staff designated as members of an
established multidisciplinary team, and include, but not be limited
to, the county departments of public social services, health, mental
health, and alcohol and drug abuse, the public guardian, and the area
agencies on aging.
(d) The county patient's rights advocate shall report any negative
consequences of the implementation of this exception to
confidentiality requirements to the local mental health director.
5328.06. (a) Notwithstanding Section 5328, information and records
shall be disclosed to the protection and advocacy agency established
in this state to fulfill the requirements and assurances of the
federal Protection and Advocacy for the Mentally Ill Individuals
Amendments Act of 1991, contained in Chapter 114 (commencing with
Section 10801) of Title 42 of the United States Code, for the
protection and advocacy of the rights of people with mental
disabilities, including people with mental illness, as defined in
Section 10802(4) of Title 42 of the United States Code.
(b) Access to information and records to which subdivision (a)
applies shall be in accord with Division 4.7 (commencing with Section
4900).
5328.1. (a) Upon request of a member of the family of a patient, or
other person designated by the patient, a public or private
treatment facility shall give the family member or the designee
notification of the patient's diagnosis, the prognosis, the
medications prescribed, the side effects of medications prescribed,
if any, and the progress of the patient, if, after notification of
the patient that this information is requested, the patient
authorizes its disclosure. If, when initially informed of the request
for notification, the patient is unable to authorize the release of
such information, notation of the attempt shall be made into the
patient's treatment record, and daily efforts shall be made to secure
the patient's consent or refusal of authorization. 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 requester shall be given
notification of the patient's presence in the facility, except to the
extent prohibited by federal law.
(b) Upon the admission of any mental health patient to a 24-hour
public or private health facility licensed pursuant to Section 1250
of the Health and Safety Code, the facility shall make reasonable
attempts to notify the patient's next of kin or any other person
designated by the patient, of the patient's admission, unless the
patient requests that this information not be provided. The facility
shall make reasonable attempts to notify the patient's next of kin or
any other person designated by the patient, of the patient's
release, transfer, serious illness, injury, or death only upon
request of the family member, unless the patient requests that this
information not be provided. The patient shall be advised by the
facility that he or she has the right to request that this
information not be provided.
(c) No public or private entity or public or private employee
shall be liable for damages caused or alleged to be caused by the
release of information or the omission to release information
pursuant to this section.
Nothing in this section shall be construed to require photocopying
of a patient's medical records in order to satisfy its provisions.
5328.15. All information and records obtained in the course of
providing services under Division 5 (commencing with Section 5000),
Division 6 (commencing with Section 6000), or Division 7 (commencing
with Section 7000), to either voluntary or involuntary recipients of
services shall be confidential. Information and records may be
disclosed, however, notwithstanding any other provision of law, as
follows:
(a) To authorized licensing personnel who are employed by, or who
are authorized representatives of, the State Department of Health
Services, and who are licensed or registered health professionals,
and to authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
health facilities and community care facilities and to ensure that
the standards of care and services provided in such facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facility is subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 2
(commencing with Section 1250) of, and Chapter 3 (commencing with
Section 1500) of, Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Health Services or the State Department of Social Services in a
criminal, civil, or administrative proceeding. The confidential
information shall be available only to the judge or hearing officer
and to the parties to the case. Names which are confidential shall be
listed in attachments separate to the general pleadings. The
confidential information shall be sealed after the conclusion of the
criminal, civil, or administrative hearings, and shall not
subsequently be released except in accordance with this subdivision.
If the confidential information does not result in a criminal, civil,
or administrative proceeding, it shall be sealed after the State
Department of Health Services or the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Health Services or the State Department of Social
Services shall not contain the name of the patient.
(b) To any board which licenses and certifies professionals in the
fields of mental health pursuant to state law, when the Director of
Mental Health has reasonable cause to believe that there has occurred
a violation of any provision of law subject to the jurisdiction of
that board and the records are relevant to the violation. This
information shall be sealed after a decision is reached in the matter
of the suspected violation, and shall not subsequently be released
except in accordance with this subdivision. Confidential information
in the possession of the board shall not contain the name of the
patient.
5328.2. Notwithstanding Section 5328, movement and identification
information and records regarding a patient who is committed to the
department, state hospital, or any other public or private mental
health facility approved by the county mental health director for
observation or for an indeterminate period as a mentally disordered
sex offender, or for a person who is civilly committed as a sexually
violent predator pursuant to Article 4 (commencing with Section 6600)
of Chapter 2 of Part 2 of Division 6, or regarding a patient who is
committed to the department, to a state hospital, or any other public
or private mental health facility approved by the county mental
health director under Section 1026 or 1370 of the Penal Code or
receiving treatment pursuant to Section 5300 of this code, shall be
forwarded immediately without prior request to the Department of
Justice. Except as otherwise provided by law, information
automatically reported under this section shall be restricted to
name, address, fingerprints, date of admission, date of discharge,
date of escape or return from escape, date of any home leave, parole
or leave of absence and, if known, the county in which the person
will reside upon release. The Department of Justice may in turn
furnish information reported under this section pursuant to Section
11105 or 11105.1 of the Penal Code. It shall be a misdemeanor for
recipients furnished with this information to in turn furnish the
information to any person or agency other than those specified in
Section 11105 or 11105.1 of the Penal Code.
5328.3. (a) When a voluntary patient would otherwise be subject to
the provisions of Section 5150 of this part and disclosure is
necessary for the protection of the patient or others due to the
patient's disappearance from, without prior notice to, a designated
facility and his or her whereabouts is unknown, notice of the
disappearance may be made to relatives and governmental law
enforcement agencies designated by the physician in charge of the
patient or the professional person in charge of the facility or his
or her designee.
(b) (1) When an involuntary patient is gravely disabled, as
defined in subparagraph (B) of paragraph (1) of subdivision (h) of
Section 5008, and the patient has disappeared from a designated
facility, or is transferred between state hospitals, notice of the
disappearance or transfer shall be made to the court initially
ordering the patient's commitment pursuant to Section 1370 of the
Penal Code, the district attorney for the county that ordered the
commitment, and governmental law enforcement agencies designated by
the physician in charge of the patient or the professional person in
charge of the facility or his or her designee. This notice shall be
made within 24 hours of the patient's disappearance or transfer from
the facility.
(2) A designated facility shall not permit the release of an
involuntary patient who is gravely disabled, as defined in
subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008,
without prior written authorization of the court pursuant to
paragraph (2) of subdivision (d) of Section 5358. The court may
approve the pending release without a hearing unless a party notified
pursuant to subdivision (d) of Section 5358 objects to the pending
release within 10 days after receiving notice. This paragraph does
not apply to the transfer of persons between state hospitals.
5328.35. The State Department of Mental Health shall develop
policies and procedures no later than 30 days after the effective
date of the Budget Act of 1998, at each state hospital, to notify
Members of the Legislature who represent the district in which the
state hospital is located, local law enforcement, and designated
local government officials in the event of a patient escape or
walkaway.
5328.4. The physician in charge of the patient, or the professional
person in charge of the facility or his or her designee, when he or
she has probable cause to believe that a patient while hospitalized
has committed, or has been the victim of, murder, manslaughter,
mayhem, aggravated mayhem, kidnapping, carjacking, robbery, assault
with intent to commit a felony, arson, extortion, rape, forcible
sodomy, forcible oral copulation, unlawful possession of a weapon as
provided in Section 12020 of the Penal Code, or escape from a
hospital by a mentally disordered sex offender as provided in Section
6330 of the Welfare and Institutions Code, shall release information
about the patient to governmental law enforcement agencies.
The physician in charge of the patient, or the professional person
in charge of the facility or his or her designee, when he or she has
probable cause to believe that a patient, while hospitalized has
committed, or has been the victim of assault or battery may release
information about the patient to governmental law enforcement
agencies.
This section shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
voluntary or involuntary admission, commitment, or treatment.
This section shall not be construed as an exception to or in any
other way affecting the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code.
5328.4. The physician in charge of the patient, or the professional
person in charge of the facility or his or her designee, when he or
she has probable cause to believe that a patient while hospitalized
has committed, or has been the victim of, murder, manslaughter,
mayhem, aggravated mayhem, kidnapping, carjacking, robbery, assault
with intent to commit a felony, arson, extortion, rape, forcible
sodomy, forcible oral copulation, unlawful possession of a weapon as
provided in any provision listed in Section 16590 of the Penal Code,
or escape from a hospital by a mentally disordered sex offender as
provided in Section 6330 of the Welfare and Institutions Code, shall
release information about the patient to governmental law enforcement
agencies.
The physician in charge of the patient, or the professional person
in charge of the facility or his or her designee, when he or she has
probable cause to believe that a patient, while hospitalized has
committed, or has been the victim of assault or battery may release
information about the patient to governmental law enforcement
agencies.
This section shall be limited solely to information directly
relating to the factual circumstances of the commission of the
enumerated offenses and shall not include any information relating to
the mental state of the patient or the circumstances of his or her
voluntary or involuntary admission, commitment, or treatment.
This section shall not be construed as an exception to or in any
other way affecting the provisions of Article 7 (commencing with
Section 1010) of Chapter 4 of Division 8 of the Evidence Code.
5328.5. Information and records described in Section 5328 may be
disclosed in communications relating to the prevention,
investigation, or treatment of elder abuse or dependent adult abuse
pursuant to Chapter 11 (commencing with Section 15600) and Chapter 13
(commencing with Section 15750), of Part 3 of Division 9.
5328.6. When any disclosure of information or records is made as
authorized by the provisions of Section 11878 or 11879 of the Health
and Safety Code, subdivision (a) or (d) of Section 5328, Sections
5328.1, 5328.3, or 5328.4, the physician in charge of the patient or
the professional person in charge of the facility shall promptly
cause to be entered into the patient's medical record: the date and
circumstances under which such disclosure was made; the names and
relationships to the patient if any, of persons or agencies to whom
such disclosure was made; and the specific information disclosed.
5328.7. Signed consent forms by a patient for release of any
information to which such patient is required to consent under the
provisions of Sections 11878 or 11879 of the Health and Safety Code
or subdivision (a) or (d) of Section 5328 shall be obtained for each
separate use with the use specified, the information