Legislature(2007 - 2008)BELTZ 211

04/30/2007 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 8 MENTAL HEALTH PATIENT RIGHTS:STAFF GENDER TELECONFERENCED
Moved CSSB 8(JUD) Out of Committee
*+ SB 157 TRAFFICKING/PROSTITUTION/SEXUAL ABUSE TELECONFERENCED
Scheduled But Not Heard
+ SB 145 MUNIS IMPOUND/FORFEIT MOTOR VEHICLE TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 128 ALCOHOL LOCAL OPTION PROVISIONS
Moved CSSB 128(JUD) Out of Committee
       SB   8-MENTAL HEALTH PATIENT RIGHTS: STAFF GENDER                                                                    
                                                                                                                                
CHAIR FRENCH  announced the  consideration of  SB 8,  by Senators                                                               
Davis, Ellis, and Elton.                                                                                                        
                                                                                                                                
2:05:53 PM                                                                                                                    
TOM OBERMEYER,  Staff to Senator  Davis, explained that  the bill                                                               
will give  mental health  hospital patients who  are 18  years of                                                               
age or older the  right to request intimate care by  a nurse of a                                                               
specific gender. Many such patients  have had traumatic sexual or                                                               
physical experiences  that would  be aggravated  if they  were to                                                               
receive  treatment  by   a  nurse  of  a   specific  gender.  The                                                               
supervisor of  the facility  will be required  to post  notice of                                                               
the right in  a conspicuous place so the patients  will know that                                                               
they may exercise the right.  While the bill recognizes that such                                                               
requests can not  always be fulfilled, any  non-compliance to the                                                               
request  must be  documented  in the  patient's  file. This  will                                                               
prevent  the information  from  being ignored  or  lost and  will                                                               
provide  a record  in case  of resulting  trauma. Also,  the bill                                                               
will preserve  information for inquiry into  grievance procedures                                                               
at mental health facilities under Title 47.                                                                                     
                                                                                                                                
MR. OBERMEYER  referred to written testimony  from the Disability                                                               
Law Center  of Alaska, which says  that the bill would  codify an                                                               
existing constitutional right that  is not being acknowledged and                                                               
protected  and that  the Alaska  constitution clearly  recognizes                                                               
that the right  to privacy is important under  Article 1, Section                                                               
22.  Case  law  indicates  that  by necessity  there  will  be  a                                                               
relinquishment of  privacy when someone  is admitted to  a mental                                                               
health  facility,  but  that  doesn't mean  that  all  rights  to                                                               
privacy  are  relinquished. Furthermore,  it  is  noted that  the                                                               
privacy protections  provided in  SB 8  are already  available to                                                               
people  who  are incarcerated.  Mental  health  patients are  not                                                               
convicted  criminals  and  their  right to  privacy  may  not  be                                                               
abrogated by virtue of their confinement.                                                                                       
                                                                                                                                
MR. OBERMEYER highlighted written  testimony from Andrea Schmook,                                                               
Chair of the  Alaska Mental Health Board. She  indicates that the                                                               
board supports  the notion that psychiatric  patients should have                                                               
the right to choose the gender  of a person who provides intimate                                                               
care.  She notes  that  although the  board  was instrumental  in                                                               
convincing Alaska  Psychiatric Institute to promote  this policy,                                                               
it  believes  that  an  isolated  policy  is  not  sufficient  to                                                               
safeguard the  rights of all  psychiatric patients.  Placing this                                                               
provision in statute will ensure  that all mental health patients                                                               
will be afforded this basic right.  Ms. Schmook says that AMHB is                                                               
sensitive  to  the  issue  of  creating  a  financial  burden  on                                                               
psychiatric  hospitals,  but  language  in the  bill  provides  a                                                               
method for  dealing with this issue.  "If the patient can  not be                                                               
served by  someone of the  gender they choose, the  hospital must                                                               
simply document that a request was  made and that it was not able                                                               
to be honored." SB 8 has a zero fiscal note, he said.                                                                           
                                                                                                                                
MR. OBERMEYER relayed that the  bill offers a balance between the                                                               
right of  a patient  for privacy and  choice and  the physician's                                                               
duty to  provide responsible care.  If the  treating psychiatrist                                                               
determines that  the choice the patient  made is not in  the best                                                               
interest of the patient's treatment,  he or she may override that                                                               
choice.                                                                                                                         
                                                                                                                                
2:12:17 PM                                                                                                                    
SENATOR  McGUIRE described  the provision  as important  and said                                                               
she  supports  the bill.  Referring  to  page  1, line  7,  which                                                               
describes "a  patient 18  years of  age or  older" she  asked how                                                               
minors are treated.  "I just wouldn't want to  exclude them," she                                                               
said.                                                                                                                           
                                                                                                                                
MR. OBERMEYER said  he doesn't know, but  people on-line probably                                                               
have the answer.                                                                                                                
                                                                                                                                
SENATOR  THERRIAULT  asked if  this  would  afford mental  health                                                               
patients  a  higher  privacy  right  than someone  who  is  in  a                                                               
hospital for medical care.                                                                                                      
                                                                                                                                
MR.  OBERMEYER said  yes, but  only because  these rights  can be                                                               
abrogated in  an involuntary commitment.  This has been  an issue                                                               
many  times, most  recently  in two  Anchorage  cases brought  by                                                               
attorney James Gottstein.                                                                                                       
                                                                                                                                
2:14:23 PM                                                                                                                    
SENATOR THERRIAULT  questioned a  situation where a  male patient                                                               
requests a female caregiver.                                                                                                    
                                                                                                                                
MR. OBERMEYER explained  that there could be  the situation where                                                               
a  person  was abused  by  a  person of  the  same  sex. In  that                                                               
circumstance  the   patient  might  feel   comfortable  receiving                                                               
intimate  care from  a person  of  the opposite  sex. "There  are                                                               
unusual  circumstances  particularly  relating to  mental  health                                                               
patients that  cause additional concern  in this regard  that you                                                               
wouldn't  find in  normal hospital  settings," he  stated. That's                                                               
why the bill was drafted in this fashion.                                                                                       
                                                                                                                                
CHAIR FRENCH  asked if anything in  the bill requires a  nurse of                                                               
either  gender to  put him  or herself  in a  potentially harmful                                                               
situation by providing care.                                                                                                    
                                                                                                                                
MR.  OBERMEYER  said  he  anticipates   that  the  mental  health                                                               
facility would  be familiar with a  patient's particular problems                                                               
before acknowledging and accommodating his or her request.                                                                      
                                                                                                                                
CHAIR FRENCH asked Mr. Adler to give his perspective.                                                                           
                                                                                                                                
2:16:39 PM                                                                                                                    
RON ADLER,  CEO, Alaska Psychiatric Institute  (API), Division of                                                               
Behavioral  Health, Department  of  Health  and Social  Services,                                                               
explained  that generally  in the  assessment phase  of an  acute                                                               
care stay,  the treating psychiatrist  would become aware  of any                                                               
issues related  to intimate  care. The bill  makes it  very clear                                                               
that if  the patient's choice is  to his or her  detriment in any                                                               
way, the treating  psychiatrist would override the  choice with a                                                               
doctor's order.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH  added  that  in that  situation  the  bill  simply                                                               
requires the doctor to document the decision.                                                                                   
                                                                                                                                
MR. ADLER agreed.                                                                                                               
                                                                                                                                
SENATOR THERRIAULT referred to the  circumstance of a patient who                                                               
derives  perverse pleasure  from receiving  intimate care  from a                                                               
particular gender. He  asked if that would be  detrimental to the                                                               
patient by feeding that potential perversion.                                                                                   
                                                                                                                                
MR.  ADLER  said absolutely.  He  explained  that the  admissions                                                               
process  includes  a  screening,  which is  the  beginning  of  a                                                               
comprehensive  psychiatric   evaluation.  After  the   person  is                                                               
admitted to a unit, a  nursing assessment usually follows. Within                                                               
probably 24-hours a  nurse practitioner or medical  doctor does a                                                               
medical history and physical, which  is followed by an evaluation                                                               
by   both    a   psychiatrist   and   a    social   worker.   Any                                                               
contraindications related  to intimate care  usually come  out in                                                               
that evaluation  period. A psychiatrist would  absolutely pick up                                                               
on  that  and  do  what  is in  the  patient's  best  therapeutic                                                               
interest, he stated.                                                                                                            
                                                                                                                                
2:19:40 PM                                                                                                                    
FAITH  MEYERS,  Mental  Health Advocate  from  Anchorage,  stated                                                               
support for SB  8 as written. She said she  has had experience as                                                               
a   patient  in   mental  health   care  facilities   in  Alaska,                                                               
Washington,  and  Nevada. As  an  advocate  she has  spoken  with                                                               
hospital administrators  in a number  of states  including Alaska                                                               
looking for  best practices. Unnecessary  trauma is a  reality in                                                               
health care  facilities, and gender  choice needs to  be provided                                                               
when  the patient  is reasonably  cooperative. The  percentage of                                                               
women in  acute care psychiatric  facilities with a  sexual abuse                                                               
past is  very high;  people can  feel re-victimized  when treated                                                               
intimately by  a person of a  certain gender. Change needs  to be                                                               
made in state statute rather  than in individual hospital policy.                                                               
She   cited  several   letters  from   people  and   institutions                                                               
supporting gender  choice in  intimate psychiatric  care. [Copies                                                               
may be found in the bill file.]                                                                                                 
                                                                                                                                
MS. MEYERS said, "SB 8  only requires psychiatric institutions to                                                               
make a good  faith effort at giving gender choice  of staff." She                                                               
asked the committee to pass the bill.                                                                                           
                                                                                                                                
2:24:15 PM                                                                                                                    
DORRANCE COLLINS,  Mental Health Advocate from  Anchorage, stated                                                               
support  for SB  8 as  written.  Not providing  gender choice  in                                                               
psychiatric  in-patient  settings  can  be  traumatizing  to  the                                                               
patient and add to their  illness. Many other states require such                                                               
a   choice  in   their   hospitals   and  psychiatric   treatment                                                               
facilities.  He cited  a  recent court  decision  that says  that                                                               
there is  a clear unavoidable tension  between hospital economics                                                               
and patient  rights. This can  manifest itself in  patient abuse.                                                               
The   court  saw   that  without   regulation  this   would  deny                                                               
psychiatric patients their rights.  The court and the legislature                                                               
will force psychiatric hospitals to  do the right thing, he said.                                                               
Many  psychiatric  patients  have  been  sexually  or  physically                                                               
abused, and being  denied gender choice in  intimate care creates                                                               
trauma all over again. Passing SB  8 will return to the patient a                                                               
small amount of  dignity and control that was  lost when entering                                                               
a psychiatric facility.                                                                                                         
                                                                                                                                
MR. COLLINS said "SB 8  only requires psychiatric institutions to                                                               
make a good faith effort at  providing gender choice of staff for                                                               
intimate  care." He  asked  the  committee to  pass  the bill  as                                                               
written.                                                                                                                        
                                                                                                                                
2:27:29 PM                                                                                                                    
JIM  GOTTSTEIN, President  and CEO,  Law Project  for Psychiatric                                                               
Rights (Psych Rights),  said its mission is  to launch litigation                                                               
against  forced psychiatric  drugging.  He said  he couldn't  add                                                               
much  to what  has already  been said,  but he  wants to  add his                                                               
supporting voice.  It's a  case of basic  human dignity  to allow                                                               
gender choice  for intimate  care. Causing a  person to  relive a                                                               
previous  trauma  is  counter-therapeutic.  There  isn't  a  good                                                               
reason for  not accommodating a  request when possible,  he said.                                                               
He asked members to pass SB 8 from committee.                                                                                   
                                                                                                                                
2:29:21 PM                                                                                                                    
ANDREA SCHMOOK,  Chair, Alaska Mental  Health Board,  Division of                                                               
Behavioral  Health, Department  of  Health  and Social  Services,                                                               
voiced support for  SB 8. She relayed her  personal experience as                                                               
a  mental  patient  and  her  previous  work  experience  as  the                                                               
Illinois director of consumer affairs  for the division of mental                                                               
health. Drawing on her experience,  she said that mental patients                                                               
need to have  the right to make gender choices  for intimate care                                                               
when  they   are  in  an   in-patient  setting.   Flashbacks  are                                                               
detrimental  to  a  patient's  mental  health  and  may  cause  a                                                               
relapse. I am  here to support this bill personally  and as chair                                                               
of the board, she concluded.                                                                                                    
                                                                                                                                
MR. OBERMEYER  suggested that Mr.  Adler might be able  to answer                                                               
Senator McGuire's question about patient age.                                                                                   
                                                                                                                                
SENATOR McGUIRE referred to page 1,  line 7, and asked how minors                                                               
would be treated as a result of being excluded under this bill.                                                                 
                                                                                                                                
2:32:41 PM                                                                                                                    
MR.  ADLER explained  that  a minor  who is  admitted  to an  in-                                                               
patient  unit  generally  has  a parent  or  guardian  who  would                                                               
resolve the issue.                                                                                                              
                                                                                                                                
SENATOR McGUIRE asked  if simply referring to  "a patient" rather                                                               
than specifying "a patient 18 years  of age or older" would raise                                                               
age of majority issues.                                                                                                         
                                                                                                                                
MR. ADLER  said he  believes that  when this  issue came  up last                                                               
year,  Northstar Behavioral  Health  Hospital  argued that  state                                                               
statute  does not  override parental  consent. He  suggested that                                                               
the  sponsor would  need  to  consult the  Department  of Law  to                                                               
verify that point.                                                                                                              
                                                                                                                                
2:34:15 PM                                                                                                                    
SENATOR McGUIRE asked  Mr. Obermeyer to look into  that because a                                                               
minor who is abused by a  parent wouldn't really have an advocate                                                               
in  this  sort   of  situation.  She  said  she   would  be  more                                                               
comfortable not specifying an age.                                                                                              
                                                                                                                                
2:35:08 PM                                                                                                                    
CHAIR FRENCH said his thinking is  along the same lines. He asked                                                               
if changing  the age to 16,  the age of consent  in Alaska, would                                                               
create any problems for API.                                                                                                    
                                                                                                                                
MR.  ADLER  said  he  would   need  to  research  that  with  the                                                               
Department of Law.                                                                                                              
                                                                                                                                
2:35:47 PM                                                                                                                    
CHAIR FRENCH moved Amendment 1.                                                                                                 
                                                                                                                                
                          AMENDMENT 1                                                                                       
                                                                                                                                
     Page 1, line 7                                                                                                             
          Delete "18"                                                                                                           
          Insert "16"                                                                                                       
                                                                                                                                
CHAIR FRENCH,  finding no objection,  announced that  Amendment 1                                                               
is adopted.                                                                                                                     
                                                                                                                                
MR. ADLER stated that his only  concern with the bill is that the                                                               
patient record  should not be  used to document  anything related                                                               
to a  compliance issue.  Mr. Gottstein said  that the  mission of                                                               
Psych Rights is  to reform the mental health  care system through                                                               
litigation and  when noncompliance  is documented in  the patient                                                               
record, it opens door to  potential litigation. He suggested that                                                               
there should  be an  alternative such  as the  unusual occurrence                                                               
report that API uses.                                                                                                           
                                                                                                                                
2:37:55 PM                                                                                                                    
CHAIR FRENCH said that sounds reasonable  and if he were to offer                                                               
language to a subsequent committee,  it would be given a thorough                                                               
vetting.                                                                                                                        
                                                                                                                                
2:38:24 PM                                                                                                                    
MR.  OBERMEYER  said  the   sponsor  statement  anticipated  this                                                               
request.  It  indicates  that  the   information  is  useful  for                                                               
confirming  the good-faith  effort to  comply with  the patient's                                                               
request as  well as for medical  purposes. The real issue  is the                                                               
fact  that  patient  records  are permanent,  he  said.  In  some                                                               
instances the  record will be  used for litigation  purposes, but                                                               
it  will  also  be  used  medically in  terms  of  the  patient's                                                               
outcome.                                                                                                                        
                                                                                                                                
SENATOR McGUIRE  referred to Senator Therriault's  question about                                                               
patient  rights  and  said  she  respectfully  disagrees.  Mental                                                               
patients   don't  choose   that   path  and   it's  the   state's                                                               
responsibility to provide protection,  she said. Intimate care is                                                               
a very  personal issue  and she believes  that the  recurrence of                                                               
this bill  and the mental health  advocates who go out  on a limb                                                               
to  testify  are  responsible  for  forcing  API  to  change  its                                                               
policies.  This  is  a  healthy   and  important  public  process                                                               
focusing on the rights of the mentally ill, she stated.                                                                         
                                                                                                                                
CHAIR  FRENCH, finding  no further  questions  or debate,  closed                                                               
public testimony.                                                                                                               
                                                                                                                                
2:41:36 PM                                                                                                                    
SENATOR  THERRIAULT  asked  about   the  penalty  for  inadequate                                                               
documentation of a patient's request.                                                                                           
                                                                                                                                
MR.  OBERMEYER  said  there  is  no penalty.  It's  a  matter  of                                                               
documentation   and    patient   protection   comes    from   the                                                               
documentation. Documenting  the request  in the  permanent record                                                               
will encourage  facilities to  give patients  the right  to chose                                                               
gender for intimate care.                                                                                                       
                                                                                                                                
SENATOR   THERRIAULT  asked   if  improper   documentation  would                                                               
establish   the  potential   for  a   civil  claim   against  the                                                               
institution.                                                                                                                    
                                                                                                                                
MR.  OBERMEYER said  it would  be a  matter of  evidence that  an                                                               
attorney could look into that might otherwise be unavailable.                                                                   
                                                                                                                                
SENATOR  McGUIRE  motioned  to  report CSSB  8  as  amended  from                                                               
committee  with individual  recommendations  and attached  fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
CHAIR FRENCH  announced that without objection  CSSB 8(JUD) moves                                                               
from committee.                                                                                                                 

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