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.