§ 10-701. Enumerated

   (a) Definitions. --

   (1) In this subtitle the following words have the meanings indicated.

   (2) (i) "Advocate" means a person who provides support and guidance to an individual in a facility.

      (ii) "Advocate" includes a family member or friend.

      (iii) "Advocate" does not include an attorney acting in the capacity of legal counsel to an individual in a facility during the treatment planning and discharge planning process.

   (3) "Facility" does not include an acute general care hospital that does not have a separately identified inpatient psychiatric service.

   (4) (i) "Mental abuse" means any persistent course of conduct resulting in or maliciously intended to produce emotional harm.

      (ii) "Mental abuse" does not include the performance of an accepted clinical procedure.

   (5) (i) "Prone restraint" means restricting the free movement of all or a portion of an individual's body through the use of physical force or mechanical devices while the individual is in a prone position.

      (ii) "Prone restraint" does not include a technique for transitioning an individual to a restraint position that involves momentarily placing the individual face down.

   (6) "State facility" means a facility that is maintained under the direction of the Mental Hygiene Administration.

   (7) "Trauma-informed care" means mental health treatment that includes:

      (i) An appreciation for the high prevalence of trauma experienced by individuals receiving mental health services;

      (ii) An understanding of the neurological, biological, psychological, and social effects of trauma and violence, including sexual abuse and exploitation, on an individual; and

      (iii) An understanding of the environment, practices, and treatments that may need to be modified to address trauma issues.

(b) State policy. -- It is the policy of this State that each individual with a mental disorder who receives any service in a facility has, in addition to any other rights, the rights provided in this subtitle.

(c) Rights enumerated. -- Each individual in a facility shall:

   (1) Receive appropriate humane treatment and services in a manner that restricts the individual's personal liberty within a facility only to the extent necessary and consistent with the individual's treatment needs and applicable legal requirements;

   (2) Receive treatment in accordance with the applicable individualized plan of rehabilitation or the individualized treatment plan provided for in § 10-706 of this subtitle;

   (3) Be free from restraints or seclusions except for restraints or seclusions that are:

      (i) Used only during an emergency in which the behavior of the individual places the individual or others at serious threat of violence or injury; and

      (ii) 1. Ordered by a physician in writing; or

         2. Directed by a registered nurse if a physician's order is obtained within 2 hours of the action;

   (4) Be free from prone restraint;

   (5) Be free from restraint that:

      (i) Applies pressure to the individual's back;

      (ii) Obstructs the airway of the individual or impairs the individual's ability to breathe;

      (iii) Obstructs a staff member's view of the individual's face; or

      (iv) Restricts the individual's ability to communicate distress;

   (6) Be free from mental abuse;

   (7) Be protected from harm or abuse as provided in this subtitle;

   (8) Except as provided in subsection (e) of this section, and subject to subsection (k) of this section, have the right to an advocate of the individual's choice to participate in the treatment planning and discharge planning process; and

   (9) Subject to the provisions of § 10-708 of this subtitle, if the individual has an advance directive for mental health services provided for in § 5-602.1 of this article, receive treatment in accordance with the preferences in the advance directive.

(d) Trauma-informed care services. -- A State facility shall ensure that:

   (1) All clinical, direct care, and other designated staff with regular patient interaction receive training in trauma-informed care and demonstrate competency in providing trauma-informed care services within 3 months of being hired and on an annual basis;

   (2) Any policy or practice followed by the facility is reviewed and revised to conform with trauma-informed care principles; and

   (3) The physical environment of the facility is assessed at least annually and modified if the modifications:

      (i) Are necessary to ensure conformity with trauma-informed care principles; and

      (ii) Can be funded through the State's operating budget or capital budget.

(e) Prohibition of advocate. -- Notwithstanding the provisions of subsection (c)(8) of this section, a facility may prohibit an advocate from participating in the treatment planning or discharge planning process for an individual if:

   (1) (i) The individual is a minor or an adult under guardianship in accordance with § 13-705 of the Estates and Trusts Article; and

      (ii) The parent of the minor or the legal guardian of the individual has requested that the advocate not participate; or

   (2) The advocate has engaged in behavior that:

      (i) Is disruptive to the individual, other patients, or staff at the facility; or

      (ii) Poses a threat to the safety of the individual, other patients, or staff at the facility.

(f) Written policy for nonverbal communication of distress during physical restraint; staff training. -- A facility shall:

   (1) Have a written policy specifying the method used to ensure that an individual whose primary language or method of communication is nonverbal is able to effectively communicate distress during a physical restraint or hold; and

   (2) Ensure that all staff at the facility who are authorized to participate in a physical restraint or hold of individuals are trained in the method specified in the written policy required under item (1) of this subsection.

(g) Confidentiality of records. -- Subject to the provisions of § 4-301 through 4-309 of this article, the records of each individual in a facility are confidential.

(h) State designated protection and advocacy agency. --

   (1) Notwithstanding any other provision of law, when the State designated protection and advocacy agency has received and documented a request for an investigation of a possible violation of the rights of an individual in a facility that is owned and operated by the Department or under contract to the Department to provide mental health services in the community under this subtitle, the executive director of the protection and advocacy agency or the executive director's designee:

      (i) Before pursuing any investigation:

         1. Shall interview the individual whose rights have been allegedly violated; and

         2. Shall attempt to obtain written consent from the individual; and

      (ii) If the individual is unable to give written consent but does not object to the investigation:

         1. Shall document this fact; and

         2. Shall request, in writing, access to the individual's records from the Director of the Mental Hygiene Administration.

   (2) On receipt of the request for access to the individual's records, the Director of the Mental Hygiene Administration shall authorize access to the individual's records.

   (3) After satisfying the provisions of paragraphs (1) and (2) of this subsection, the executive director of the protection and advocacy agency, or the executive director's designee, may pursue an investigation and, as part of that investigation, shall continue to have access to the records of the individual whose rights have been allegedly violated.

(i) Informing individuals of rights upon admission to facility. --

   (1) On admission to a facility, an individual shall be informed of the rights provided in this subtitle in language and terms that are appropriate to the individual's condition and ability to understand.

   (2) A facility shall post notices in locations accessible to the individual and to visitors describing the rights provided in this subtitle in language and terms that may be readily understood.

(j) Complaint procedure. -- A facility shall implement an impartial, timely complaint procedure that affords an individual the ability to exercise the rights provided in this subtitle.

(k) Construction of section. -- This section may not be construed to:

   (1) Grant the advocate of an individual legal authority that the advocate does not otherwise have under law to make decisions on behalf of the individual regarding treatment or discharge;

   (2) Grant the advocate access to the medical records of the individual or other confidential information that the advocate does not otherwise have access to under law; or

   (3) Limit the legal authority that an attorney or other person otherwise has under law to participate in the treatment planning and discharge planning process or to otherwise act on behalf of an individual in a facility.

HISTORY: 1983, ch. 405, § 2; 1984, chs. 255, 429, 481; 1985, ch. 10, § 3; ch. 695; 1986, ch. 232; 1990, ch. 480, § 2; 2007, chs. 172, 173; 2009, chs. 620, 621; 2010, ch. 71, § 1; ch. 72; 2011, chs. 248, 249.