CLIENT RIGHTS AND GRIEVANCES
Facility managers and owners are continuously challenged to stay abreast of regulatory requirements. Training staff members to respect clients’ rights not only meets one of the regulatory requirements, but it also ensures quality client care and high client satisfaction. This course provides information related to client rights within a facility. Upon completion of the course, the learner will be able to define the concept of client rights, provide examples of client rights, and identify pertinent regulatory and training requirements.
Client rights encompass legal and ethical issues in the provider-client relationship, including a person’s right to privacy, the right to quality medical care without prejudice, the right to make informed decisions about care and treatment options, and the right to refuse treatment. The purpose of delineating client rights is to ensure the ethical treatment of persons receiving medical or other professional health care services. Without exception, all persons in all health care settings are entitled to receive ethical treatment. There are three main components of client rights: the right to autonomy and self-determination, the right to privacy, and the right to receive treatment, regardless of one’s ability to pay.
THE RIGHT TO AUTONOMY AND SELF-DETERMINATION
This is the most important and fundamental of all clients’ rights and is the foundation of all medical decision making. Under this basic right, clients have the ability to make their own choices and decisions about their medical care as long as those decisions are within the boundaries of the law. This right encompasses such concepts as advance directives and informed consent. Advanced directives are legal documents that inform health care providers of the type of care or treatment clients would like to receive if they become unable to communicate those desires. Advance directives include living wills, durable power of attorney, health care (medical) power of attorney, mental health power of attorney, and do-not-resuscitate orders.
The American Medical Association (AMA) defines informed consent as communication between a client and physician that results in the client’s agreement to undergo a specific medical procedure. A signed consent form verifies that the physician and the client have had a discussion related to diagnosis, prognosis, proposed treatment, risks, benefits, and alternative treatments. The lack of informed consent can be construed as battery and has been the basis of arguments in cases of medical malpractice. In such cases, the only negligence that needed to be shown was the failure to obtain informed consent. To reduce risk to the Facility, we suggest following these steps:
The Facility and/or individual performing the procedure must obtain the consent. The duty to obtain consent cannot be delegated.
- Informed consent begins as a written agreement between the Facility and client after a discussion that includes the condition, recommended treatment or procedure, and the risks, complications, benefits, and alternatives. The discussion should also include the consequences of refusing the treatment or procedure. Client risk factors that might result in a complication or poor outcome should be part of the discussion.
- The client’s medical record and the informed consent form should document the discussion. If the discussion was in a language other than English, document the language.
- Any materials the client was shown or provided to explain the procedure should be noted in the client’s medical record.
- The client should sign a procedure-specific consent form to document and verify that the informed consent discussion occurred. The document should not be signed until after the discussion.
- The original consent form should remain in the medical record, and the client should be offered a copy of the form.
- Consent forms are never to be presented after a client has received sedation. Furthermore, the validity of informed consent has been challenged in cases in which clients’ eyes had been dilated before the presentation of the form for signature. In this situation, the informed consent form should be read to the client (and family member, if applicable) before asking the client to sign. The form should document the name and title of the reader and a notation that the client had the opportunity to have questions answered before signing.
The Joint Commission and DCF require that the client “be fully informed about a treatment or procedure and the expected outcome before it is performed.” This includes information pertaining to health status, diagnosis, prognosis, and the client’s participation in the plan of care. Informed consent must be obtained and the form placed in the client’s medical record before they can be admitted to a program. The Facility must “ensure that the client’s informed consent is secured prior to the start of the program and that this consent is documented in the client’s medical record.” Treatment risks and benefits should be part of the informed consent process.
THE RIGHT TO PRIVACY
Privacy is a fundamental right guaranteed under the Fifth and Fourteenth Amendments to the U.S. Constitution, protecting against unwarranted invasions of privacy by federal or state entities. The right to privacy includes information obtained by a doctor during communications with a client or examination and extends to documents and forms contained in the medical record. The most far-reaching piece of legislation regarding client privacy has been the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA is a federal law enacted to protect the privacy of a client’s personal and health information, provide for the physical and electronic security of personal health information (PHI), simplify billing and other transactions, and specify new rights of clients to approve access and use of their medical information. Furthermore, the Health Information Technology for Economic and Clinical Health (HITECH) Act, passed as part of the American Recovery and Reinvestment Act of 2009 (ARRA), makes specific provisions to ensure the accountability of health care entities for the proper safeguarding of protected health information. The Breach Notification Rule is part of the HITECH Act and defines a breach of confidential health information as a situation in which unauthorized use or disclosure of PHI has taken place to the extent that the breach may result in significant risk of financial, reputational, or other harm to the affected individual. HIPAA requires that a facility train all members of its workforce about policies and procedures required by HIPAA that may affect the work one does for the Facility.
A guide to HIPAA compliance is covered in a separate course and is interdependent with respect to a client’s privacy.
The confidentiality of clinical records is the Joint Commission and DCF standard that addresses HIPAA compliance. The standard states, “The Facility must comply with the Department’s rules for privacy and security of individually identifiable health information, as specified at 45 CFT parts 160 and 164 (HIPAA). The Privacy Rule under HIPAA requires facilities to:
- Provide notification to clients about their rights and how their information may be used.
- Develop and maintain privacy procedures.
- Train employees on privacy procedures.
- Designate an individual to ensure that privacy procedures are followed within the Facility.
- Secure client records containing PHI.
The Security Rule under HIPAA establishes standards for the security of health information. This rule applies to PHI in electronic form only and specifies administrative, technical, and physical security standards that a facility must meet to ensure the confidentiality, integrity, and availability of all electronic PHI.
Joint Commission and DCF standard states, “The client have the right to personal privacy” with the underlying principle that the client has the basic right to respect, dignity, and comfort. This means that clients should be afforded privacy during hygiene activities, during treatment, when staff members visit the client to discuss clinical care issues, and when requested. Clients should not be videotaped without their consent.
All states have different statute and requirements for client rights. Please check your individual state if it is not listed here. This is a sampling of a few to see how you can see how they are similar and different.
According to Ohio Department of Mental Health (ODMH) and the Ohio Administrative Code 5122:2-1-02 each client has all of the following rights as listed below:
- The right to be treated with consideration and respect for personal dignity, autonomy, and privacy;
- The right to service in a humane setting which is the least restrictive feasible as defined in the treatment plan;
- The right to be informed of one’s own condition, of proposed or current services, treatment or therapies, and of the alternatives;
- The right to consent to or refuse any service, treatment or therapy upon full explanation of the expected consequences of such consent or refusal. A parent or guardian must consent to or refuse any service, treatment or therapy on behalf of a minor client;
- The right to a current, written, individualized service plan (ISP) that addresses one’s own mental health, physical health, social and economic needs, and that specifies the provision of appropriate and adequate services, as available, either directly or by referral;
- The right to active and informed participation in the establishment, periodic review, and re-assessment of the service plan (ISP);
- The right to freedom from unnecessary or excessive medication;
- The right to freedom from unnecessary restraint or seclusion;
- The right to participate in any appropriate and available agency service, regardless of refusal of one or more other services, treatments, or therapies, or regardless of relapse from earlier treatment in that or another service, unless there is a valid and specific necessity which precludes and/or requires the client’s participation in other services. This necessity shall be explained to the client and written in the client’s current service plan (ISP);
- The right to be informed of and refuse any unusual or hazardous treatment procedures;
- The right to be advised of and refuse observation by techniques such as a one-way vision mirrors, tape recorders, televisions, movies, or photographs;
- The right to have the opportunity to consult with independent treatment specialists or legal counsel, at one’s own expense;
- The right to confidentiality of communications and of all personally identifying information within the limitations and requirements for disclosure of various funding and/or certifying sources, state or federal statutes, unless release of information is specifically authorized by the client or parent or legal guardian of a minor client or court-appointed guardian of the person of an adult client in accordance with rule 5122:2-3-11 of the Administrative Code;
- The right to have access to one’s own psychiatric, medical or other treatment records, unless access to particular identified items of information is specifically restricted for that individual client for clear treatment reasons in the client’s treatment plan (ISP). “Clear treatment reasons” shall be understood to mean only severe emotional damage to the client such that dangerous or self-injurious behavior is an imminent risk. The person restricting the information shall explain to the client and other persons authorized by the client the factual information about the individual client that necessitates the restriction. The restriction must be renewed at least annually to retain validity. Any person authorized by the client has unrestricted access to all information. Clients shall be informed in writing of agency policies and procedures for viewing or obtaining copies of personal records;
- The right to be informed in advance of the reason(s) for discontinuance of service provision, and to be involved in planning for the consequences of that event;
- The right to receive an explanation of the reasons for denial of service;
- The right not to be discriminated against in the provision of service on the basis of religion, race, color, creed, sex, national origin, age, lifestyle, physical or mental handicap, developmental disability or inability to pay;
- The right to know the cost of services;
- The right to be fully informed of all rights;
- The right to exercise any and all rights without reprisal in any form including continued and uncompromised access to services;
- The right to file a grievance; and
- The right to have oral and written instructions for filing a grievance.
- 394.459, F.S. Ch. 65E-5.140, FAC
The Florida Mental Health Act, better known as the Baker Act, was passed in 1971 by the Florida Legislature. It dramatically reformed the 97-year old laws by ensuring that persons with mental illnesses were assured of their civil and due process rights when seeking treatment or when examination or treatment was sought involuntarily on their behalf.
The Baker Act guaranteed the following rights:
Individual Dignity: Ensures all constitutional rights and requires that persons be treated in a humane way while transported or treated for mental illness.
Treatment: Prohibits the delay or denial of treatment due to inability to pay and requires prompt physical examination after arrival; requires treatment planning to involve the person; and requires the least restrictive appropriate available treatment be based on the individual needs of each person.
Express and Informed Consent: Encourages people to voluntarily apply for mental health services when competent to do so, to choose their own treatment, and to decide when they want to stop treatment. The law requires that consent be voluntarily given in writing after sufficient explanation to enable the person to make a knowing and willful decision without any coercion.
Quality of Treatment: Requires medical, vocational, social, educational, and rehabilitative services suited to each person’s needs to be administered skillfully, safely, and humanely. Use of restraint, seclusion, isolation, emergency treatment orders, physical management techniques, and elevated levels of supervision are regulated. Complaint resolution is required.
Communication, Abuse Reporting, and Visits: Guarantees persons in mental health facilities the right to communicate freely and privately with persons outside the facilities by phone, mail, or visitation. If communication is restricted, written notice must be provided. No restriction of calls to the Abuse Registry or to the person’s attorney is permitted under any circumstances.
Care and Custody of Personal Effects: Ensures that persons may keep their own clothing and personal effects unless they are removed for safety or medical reasons. If removed, a witnessed inventory is required.
Voting in Public Elections: Persons are guaranteed the right to register and to vote in any elections for which they are qualified voters.
Habeas Corpus: Guarantees persons the right to ask the court to review the cause and legality of the person’s detention or unjust denial of a legal right or privilege or an authorized procedure.
State of Florida Department of Children and Families Mental Health Program Office
Treatment and Discharge Planning: Guarantees the opportunity to participate in treatment and discharge planning and to seek treatment from the professional or agency of a person’s choice upon discharge.
Designation of Representative
Requires that a person admitted to or held in a facility involuntarily be allowed to designate a representative to be advised of the admission, receive all legal notices, and notices of any restriction of rights.
Assures that a person’s clinical record remain confidential and not be disclosed to others without consent, except by court order, to the person’s attorney, after a threat of harm to others, and other limited circumstances. A person has the right to waive privacy of his or her admission to a facility
Access to One’s Own Record
Assures that persons have reasonable access to their clinical records unless determined by a physician to be harmful to the person.
The federal government has established conditions of participation for hospitals that accept Medicare or Medicaid payments to follow regarding Patient’s Rights. The rights include:
- A hospital must protect and promote each patient’s rights, including informing each person of their rights in advance of providing or discontinuing care whenever possible. This may include use of interpreters or large print materials.
- Hospitals must establish a process for prompt resolution of grievances, a procedure for submission of written or verbal grievances, and must inform each person whom to contact to file a grievance. This must be approved by the hospital’s governing body, which must review and resolve grievances. Persons must be given written notice of the hospital’s decision about the grievance, including a contact person, the steps taken to investigate the grievance, the results, and the date of completion.
- Persons must have the right to participate in the development and implementation of his or her plan of care.
- Persons, or their legally authorized substitute decision-makers have the right to make informed decisions about his or her care, including consulting the person’s advance directives. Persons have the right to request or refuse treatment.
- Persons have the right to have a person of his or her choice and his or her own physician notified promptly of the hospital admission.
- Person has the right to privacy during personal hygiene activities, during medical/nursing treatments, and when requested, as appropriate. Privacy may be limited only where a person may be at immediate and serious risk of harm to self or others.
- Persons have the right to receive care in a safe setting and to be free from all forms of abuse or harassment.
- Persons have the right to the confidentiality of his or her clinical records and to access information contacted in his or her records, within a reasonable time frame. Few limits to this access exist, including that access could be reasonably likely to endanger the life or physical safety of the person or anyone else. Hospitals must actively seek to meet requests to access records as quickly as the record-keeping system permits.
Patients and residents in North Carolina facilities are afforded all state and federal civil rights including rights under:
Article 3 of North Carolina General Statutes Chapter 122C
Human Rights for Clients in State Facilities
The Individuals with Disabilities Education Act (IDEA)
The Americans with Disabilities Act (ADA)
The Rehabilitation ActOpen PDF
The Civil Rights of Institutionalized Persons Act
Title VI of the Civil Rights Act
To view all of the client rights click on the links above. A summation of the most general rights are below.
§ 122C-51. Declaration of policy on clients’ rights.
It is the policy of the State to assure basic human rights to each client of a facility. These rights include the right to dignity, privacy, humane care, and freedom from mental and physical abuse, neglect, and exploitation. Each facility shall assure to each client the right to live as normally as possible while receiving care and treatment.
It is further the policy of this State that each client who is admitted to and is receiving services from a facility has the right to treatment, including access to medical care and habilitation, regardless of age or degree of mental illness, developmental disabilities, or substance abuse. Each client has the right to an individualized written treatment or habilitation plan setting forth a program to maximize the development or restoration of his capabilities.
§ 122C-52. Right to confidentiality.
(a) Except as provided in G.S. 132-5 and G.S. 122C-31(h), confidential information acquired in attending or treating a client is not a public record under Chapter 132 of the General Statutes.
(b) Except as authorized by G.S. 122C-53 through G.S. 122C-56, no individual having access to confidential information may disclose this information, provided, however, a HIPAA covered entity or business associate receiving confidential information that has been disclosed pursuant to G.S. 122C-53 through G.S. 122C-56 may use and disclose such information as permitted or required under 45 Code of Federal Regulations Part 164, Subpart E.
(c) Except as provided by G.S. 122C-53 through G.S. 122C-56, each client has the right that no confidential information acquired be disclosed by the facility.
(d) No provision of G.S. 122C-205 and G.S. 122C-53 through G.S. 122C-56 permitting disclosure of confidential information may apply to the records of a client when federal statutes or regulations applicable to that client prohibit the disclosure of this information.
(e) Except as required or permitted by law, disclosure of confidential information to someone not authorized to receive the information is a Class 3 misdemeanor and is punishable only by a fine, not to exceed five hundred dollars ($500.00).
§ 122C-57. Right to treatment and consent to treatment.
(a) Each client who is admitted to and is receiving services from a facility has the right to receive age-appropriate treatment for a mental illness, an intellectual or other developmental disability, substance abuse, or a combination thereof. Each client within 30 days of admission to a facility shall have an individual written treatment or habilitation plan implemented by the facility. The client and the client’s legally responsible person shall be informed in advance of the potential risks and alleged benefits of the treatment choices.
(b) Each client has the right to be free from unnecessary or excessive medication. Medication shall not be used for punishment, discipline, or staff convenience.
(c) Medication shall be administered in accordance with accepted medical standards and only upon the order of a physician as documented in the client’s record.
(d) Each voluntarily admitted client or the client’s legally responsible person (including a health care agent named pursuant to a valid health care power of attorney) has the right to consent to or refuse any treatment offered by the facility. Consent may be withdrawn at any time by the person who gave the consent. If treatment is refused, the qualified professional shall determine whether treatment in some other modality is possible. If all appropriate treatment modalities are refused, the voluntarily admitted client may be discharged. In an emergency, a voluntarily admitted client may be administered treatment or medication, other than those specified in subsection (f) of this section, despite the refusal of the client or the client’s legally responsible person, even if the client’s refusal is expressed in a valid advance instruction for mental health treatment. The Commission may adopt rules to provide a procedure to be followed when a voluntarily admitted client refuses treatment.
(d1) Except as provided in G.S. 90-21.4, discharge of a voluntarily admitted minor from treatment shall include notice to and consultation with the minor’s legally responsible person and in no event shall a minor be discharged from treatment upon the minor’s request alone.
(e) In the case of an involuntarily committed client, treatment measures other than those requiring express written consent as specified in subsection (f) of this section may be given despite the refusal of the client, the client’s legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client’s refusal expressed in a valid advance instruction for mental health treatment in the event of an emergency or when consideration of side effects related to the specific treatment measure is given and in the professional judgment, as documented in the client’s record, of the treating physician and a second physician, who is either the director of clinical services of the facility, or the director’s designee, that any of the following is true:
(1) The client, without the benefit of the specific treatment measure, is incapable of participating in any available treatment plan which will give the client a realistic opportunity of improving the client’s condition.
(2) There is, without the benefit of the specific treatment measure, a significant possibility that the client will harm self or others before improvement of the client’s condition is realized.
(f) Treatment involving electroshock therapy, the use of experimental drugs or procedures, or surgery other than emergency surgery may not be given without the express and informed written consent of the client, the client’s legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client’s consent expressed in a valid advance instruction for mental health treatment. This consent may be withdrawn at any time by the person who gave the consent. The Commission may adopt rules specifying other therapeutic and diagnostic procedures that require the express and informed written consent of the client, the client’s legally responsible person, or a health care agent named pursuant to a valid health care power of attorney.
Californians with mental illnesses who are receiving treatment in mental health facilities, including those persons subject to involuntary commitment, are guaranteed numerous rights under Welfare and Institutions code (W&I Code), Section 5325, including the right to be free from abuse and neglect, the right to privacy, dignity, and humane care, and the right to basic procedural protections in the commitment process.
The following link will take you to the California Department of Health Care Services handbook:
NOTICE OF CLIENT RIGHTS
The Joint Commission states, “The Facility must inform the client or the client’s representative of the client’s rights and must protect and promote the exercise of such rights.” The interpretive guideline for this condition simply states that the Facility must provide a notice of rights to its clients or the client’s representative. Facility policies and procedures must be consistent with the protection of the rights of clients.
The standards under this condition of coverage are as follows:
- Notice of Rights
a. Notice of rights must be verbal and written b. Must be provided in advance of the date of the procedure
c. Must be in a language and manner that the client or client’s representative understand
d. The notice must be provided regardless of the type of procedure
- Notice of Rights
a. Written notice must be posted in a place(s) with the Facilities name readily visible to clients or their representatives.
b. Notice must include the name, address, and telephone number of a state agency representative to whom clients can report complaints.
- Written notice of client rights must be posted in one or more areas of Facility, such as lobbies and waiting rooms, where it is readily visible to clients or client representatives. Posting only one notice meets the standard so long as it is in a place where it is “likely to be seen.”
- Standard: Exercise of rights and respect for property and person
a. The client has the right to:
I. Exercise his or her rights without being subject to discrimination or reprisal. This must be reflected in the Facilities policies and procedures.
II. Voice grievances regarding treatment or care that is given or not given. The grievance may be filed verbally or in writing, and there is no time limit as to when it may be submitted.
The following is an example of a Facility Notice of Client Rights document.
The Facility recognizes the basic human rights of each client. The following are the list of client rights while in the care of our organization. As a client of the Facility, you have the right to:
- To be informed of your rights, both verbally and in writing, in a language and manner that you understand.
- To exercise your rights without being subjected to discrimination or reprisal.
- To receive respectful care given by competent personnel.
- To be free from all forms of abuse and harassment.
- Upon request, to be given the name of your attending physician, therapist, the names of all other individuals directly participating in your care, and the names and functions of other health care persons having direct contact with you.
- The consideration of privacy concerning your treatment program. Case discussion, consultation, examination, and treatment are considered confidential and shall be conducted discreetly.
- To have records pertaining to your medical care treated as confidential except as otherwise provided by law or third-party contractual arrangements.
- To know what Facility rules and regulations apply to your conduct as a client.
- To expect emergency procedures to be implemented without unnecessary delay.
- To high-quality care and high professional standards that are continually maintained and reviewed.
The following is a sample of a client responsibility document that ambulatory surgery centers might want to provide clients to ensure the clients understand the expectations of each party.
The Facility expects the client to assume certain responsibilities.
As the client, you are responsible:
- For providing accurate and complete information or instructions, or if you do not believe you can follow through with the treatment prescribed by the physician.
- To be considerate of the rights of other clients and the staff by assisting in the control of noise, not smoking, and limiting the number of visitors.
- To ensure your financial obligations are fulfilled as promptly as possible.
- For the results of your actions, should you refuse treatment or not follow the physician’s orders.
Emphasis on patient-centered care has increased, as have called for transparency of patient satisfaction data. These trends in healthcare make seeking and responding to patient feedback, increasingly important components of programs. Patients have the right to file complaints and grievances with the organization when they are unsatisfied with the treatment received, and healthcare organizations should have processes in place for handling both in a timely manner. In addition, tracking and trending of patient complaints and grievances may call attention to systems or individual performance problems and suggest quality improvement opportunities. For example, patient complaints are associated with both clinical complications and increased risk of malpractice litigation.
Healthcare organizations must develop processes for addressing patient complaints and grievances in order to comply with regulations and accreditation standards, as well as to protect patients and reduce liability. Complaints stem from minor issues that can typically be resolved by staff present at the time the concern is voiced, while grievances are more serious and generally require investigation into allegations regarding the quality of patient care.
The Joint Commission and other accreditors’ complaint resolution standards also require that accredited facilities address and resolve complaints from patients and their families.
The law also requires that these programs continually educate their staff on the importance of their specific grievance system.
Each program should provide meaningful procedures for the timely hearing or and resolution of grievances. Clients should be told upon admission to a program on how to initiate a grievance if it should become necessary. The process should be covered in employee orientation.
Action Recommendations for Programs:
- Design a process to capture and address all complaints and grievances.
- Ensure the involvement of the organization’s governing body or its designated grievance committee.
- Implement policies, procedures, and processes for investigation and resolution of patient complaints and grievances.
- Educate all physicians and staff on grievance processes.
- Train all staff to listen effectively and manage patient and family expectations.
- Use the dedicated staff to solve small problems before they escalate.
- Employ a proactive approach to customer service.
- Empower frontline staff to act as the first line of defense against complaints.
- Track complaints, grievances, and patient satisfaction surveys and implement improvement initiatives to address trends identified.
- Verify that the grievance process is effective.
The process should provide a clear method for clients to report grievances. Clients should be told:
- You have the right to use a facility’s internal grievance or complaint process any time you believe your rights have been violated.
- If you have been abused or neglected, you have the right to call the Florida Abuse Hotline at 1-800-962-2873.
- You also have the right to file a Writ of Habeas corpus or a Petition for Redress of Grievance to question:
- being placed in a facility
- being denied a right or privilege
- being treated in a way that does not follow a proper procedure
You may ask staff members at a facility to give you a copy of a Writ and help you file it with the Clerk of the County Court.
- You also have the right to contact an attorney to request assistance.
The Facility has the right to refuse care or to dismiss a client from care in the event he or she is disruptive, uncooperative, and belligerent or physically threatening to the physician, staff, other clients, or visitors. Additionally, the Facility has the right to refuse care or to dismiss a client from care in the event the designated responsible driver is incapacitated, disruptive, uncooperative, belligerent, or physically threatening to the staff, other clients, or any other party.
Client rights are the cornerstone of providing services in the Facility. There are three main areas of client rights:
2) privacy, and
3) the right to receive treatment.
Advance directives and informed consent are two of the main components to a client’s right to self-determination. Federal legislation under HIPAA ensures that a client’s right to privacy is maintained. Every client must be informed of his or her rights and responsibilities prior to undergoing any procedure within the Facility, no matter how brief or minor. The Joint Commission and DCF require that the Facility provide all clients with a notice of rights, both written and verbal, in advance of the day of the procedure. Facility staff must be educated at orientation and annually thereafter regarding the Facility’s client rights, policies, and procedures.
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