Legislature(2007 - 2008)BELTZ 211
04/30/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB128 | |
| SB8 | |
| SB145 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 8 | TELECONFERENCED | |
| *+ | SB 157 | TELECONFERENCED | |
| + | SB 145 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 128 | ||
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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