Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 28.00 - Licensing and Operational Standards for Community Services
Subpart A - STANDARDS FOR COMMUNITY SERVICES
Section 28.03 - Legal and Human Rights

Universal Citation: 104 CMR 28.00 MA Code of Regs 28.03

Current through Register 1531, September 27, 2024

(1) The utmost care shall be taken to protect the legal and human rights of all persons who receive services. These rights shall not be exercised in a manner as to infringe on the rights of other persons and staff. No person shall be subjected to retaliation as a result of the exercise of any right under any provision of the Department's regulations or other provision of law. These rights include, but are not limited to, the following:

(a) The right to be free from unlawful discrimination on the basis of race, creed, national origin, color, ethnicity, religion, sex, sexual orientation, gender identity, age, physical or mental disability or degree of disability, or such other bases as may be prohibited by law. However, classifications based on age, sex, or category or degree of disability shall not be considered discriminatory if based on written criteria developed by a provider and approved by the Department.

(b) The right to religious freedom and practice without compulsion according to the preference of the person;

(c) The right to vote, unless a minor or under guardianship which expressly restricts such right. Persons shall receive reasonable assistance when desired in registering and voting, and accessing voter registration information. Such assistance shall be provided in a non-partisan and non-coercive manner;

(d) The right to communicate, including:
1. The right to have reasonable access to a telephone and to make and receive confidential calls and to assistance, when desired and necessary to implement this right, provided that such calls do not constitute a criminal act or represent an unreasonable infringement of another person's rights to make and receive telephone calls;

2. The unrestricted right to send and receive uncensored and unopened mail, to be provided with writing materials and postage in reasonable amounts and to reasonable assistance when desired and necessary in writing, addressing and posting letters and other documents; and

3. The right to receive or refuse visits and telephone calls from an attorney or legal advocate, physician, psychologist, clergy or social worker at any reasonable time, regardless of whether the person initiated or requested the visit or telephone call.

(e) The right to be represented by an attorney or advocate of the person's own choice, including for persons receiving services in a residential site, the right to meet in a private area at the residential site with an attorney or advocate;

(f) The right to be protected from commercial exploitation;

(g) The right to be visited and visit with others, daily and in private, provided that reasonable restrictions may be placed on the time and place of the visit, but only to protect the privacy of other persons or to avoid serious disruptions in the normal functioning of the service. Hours during which visitors may be received shall be sufficiently flexible as to accommodate individual needs and desires of persons and their visitors;

(h) The right to a humane psychological and physical environment. Where applicable to the service, persons shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing, and in toileting. 104 CMR 28.03 shall not be interpreted as requiring individual sleeping quarters;

(i) The right to file complaints and to have complaints responded to in accordance with 104 CMR 32.00: Investigation and Reporting Responsibilities;

(j) The right to informed consent. Informed consent means knowing consent, voluntarily given by a person who has the capacity to weigh the risks and benefits of the particular treatment being proposed. If a person does not have the capacity to provide informed consent, authorization for treatment may be obtained from a court of competent jurisdiction or the person's legally authorized representative, with the following exceptions:
1. Extraordinary medical care as it is defined by statute or court decision including, but not limited to, treatment with antipsychotic medication and electroconvulsive treatment (ECT), shall only be provided:
a. pursuant to a court order;

b. in the case of a minor, upon the consent of a legally authorized representative with authority to authorize such medical care; or

c. in the case of a duly activated health care proxy, upon the consent of the health care agent acting within the scope of such proxy.

2. If the person has no legally authorized representative, the Director may consent to routine or preventive medical care, including standard medical examinations, clinical tests, standard immunizations and treatment for minor illnesses and injuries. However, such medical care shall only be authorized upon recommendation of the treating physician that such care is necessary and appropriate, and provided the person agrees to such care, the person is not a minor or under guardianship, and has been found to lack capacity to make informed decisions about his or her medical care at his or her last service planning review.

3. Prior to an adjudication of incapacity, and court approval of a treatment plan, if applicable, a person retains the right to accept or refuse treatment as prescribed.

(k) The protections afforded to persons in certain residential sites under M.G.L. c. 186, § 17A commonly known as the Community Residence Tenancy Law.

(2) A notice of the human rights as set forth in 104 CMR 28.03(1)(a) through (k) shall be posted in appropriate and conspicuous places to which persons and family members have access in each service site, and available to any person upon request. The notice shall be written in language that is easy to understand and, to the extent practicable, translated into the requesting person's preferred language.

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