“We must scrupulously guard the civil rights and civil liberties of all our citizens, whatever their background. We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization.”
-FRANKLIN D. ROOSEVELT, greeting to the American Committee for Protection of Foreign-born, Jan. 9, 1940 and the quote on the cover of the 2016-2017 report entitled, “The State of Rights Protection in Michigan” from the Office of Recipient Rights.
What do you think about when you hear the term, “recipient rights?” There are many ways that “rights” may be defined. In the United States, we are familiar with concepts like civil rights and constitutional rights. These are legal rights that are applicable to all United States citizens. A right is defined by the Encyclopedia of American Law, edition 2. (2008). Retrieved January 3, 2019 from https://legal-dictionary.thefreedictionary.com/right):
- N. an entitlement to something, whether to concepts like justice and due
process, or to ownership of property or some interest in property, real or personal. These rights include various freedoms, protection against interference with enjoyment of life and property, civil rights enjoyed by citizens such as voting and access to the courts, natural rights accepted by civilized societies, human rights to protect people throughout the world from terror, torture, barbaric practices and deprivation of civil rights and profit from their labor, and such American constitutionals guarantees as the right to freedoms of speech, press, religion, assembly and petition.
- Adj. just, fair, correct. (See: civil rights, marital rights) right. (n.d.)
But the idea that people with brain disorders should be given psychiatric treatment in a way that is not only effective and scientifically based, but which is also free from mistreatment was a relatively new idea in the early 1970’s. Historically, persons with mental illnesses, developmental, cognitive and intellectual disabilities and physical disabilities (recipients) were often placed in large institutions known as “asylums”, “hospitals” or “training schools” where they were subjected to overcrowding, poor treatment and abuse and/or neglect. Due to the lack of effective mental health treatments that were not available until the mid-1950’s, people with brain disorders were warehoused in often inhumane conditions. It was not until the disability rights movement gained momentum in the mid-1970’s that the rights of individuals with brain disorders was a consideration.
It wasn’t until 1974 that the state of Michigan adopted a set of state laws known collectively as the “Michigan Mental Health Code.” In the “Michigan Mental Health Code” (also known as Act 258 of 1974), Chapter 7 and 7A are the parts of the law that addresses the rights that “recipients” of services have as they seek behavioral health treatment from the community mental health system. The rights system was officially created in 1977.
Of course, like so many great ideas, what is desired (to protect and promote the constitutional and statutory rights of recipients of public mental health serves and empower recipients to fully exercise these rights—State Office of Recipient Rights Mission Statement) and what happens are often two very different things. The protection of the constitutional and statutory rights of people receiving services from the community mental health system in Michigan is no different. In other words, it is difficult to have “rights protection” when the current structure is, quite literally, the “fox guarding the hen house.”
The law requires that each of the forty-six community mental health services providers (CMHSP) have an office of recipient rights. The rights office is charged with investigating complaints and allegations of the violation of recipient rights. The Executive Director of the CMHSP supervises the rights office. The current system, although well-intended, is not equitable, lacks transparency and is hamstrung by conflict of interest; lack of enforcement; lack of fair and impartial investigations; and a lack of understanding on the part of recipients and their families about how the rights process works among other things. For example, in its annual report for 2016-2017, “The State of Rights Protection in Michigan,” the State Office of Recipient Rights reports that in 2017, 16,929 complaints were received; 11,783 were investigated; and 5,237 were substantiated. Statistically, only 31% of all complaints received were substantiated. (Available online: https://www.michigan.gov/documents/mdhhs/ORR_Annual_Report_FY17_623371_7.pdf. Retrieved January 3, 2019).
We aren’t presuming that every complaint should be substantiated. But anyone with experience in the public mental health system has learned that many solid complaints are rejected. And among those substantiated, the question of remedies then comes in. At present, the power of CMH-owned recipient rights offices to craft remedies that are meaningful and satisfactory to the complainant is minuscule.
The deck is stacked against the person served and his/her family when they try to exercise their rights to file a complaint. If the person filing the complaint doesn’t like the result, he/she can, under certain circumstances, appeal the results of the report of investigative findings. However, it is difficult for the individual to be successful in the appeals process.
The Executive Director is responsible for the responses to rights investigations that are substantiated including looking for remedial action from his/her own agency and from contract agencies. The rights process itself can be fraught with problems. MHAM believes and has believed for a long time that the rights office should be a separate entity. The Rights Office should not be a part of the CMHSP and it should exist on its own and it should have the authority to do certain things that, currently, it is not given the authority to do.
When Gov. Granholm had a Mental Health Commission in 2004, the concept of independent CMH Recipient Rights was supported by a majority of the Commissioners, but that entity had a two-thirds support requirement for recommendations. And with nine of 29 voting Commissioners tied to CMH programs, we fell short of two-thirds.
More recently, Lt. Gov. Calley’s Mental Health & Wellness Commission report (2013) called for CMH rights offices to report to an independent third party (unspecified).
Then, in the Section 298 affinity groups that were held across the state a few years ago, consumers and families overwhelmingly supported independence of CMH rights matters. The state’s 298 Workgroup subsequently crafted several recommendations for improving dispute resolution in public mental health. To date, MDHHS has chosen to do nothing with those recommendations.
We aren’t trying to pick on CMHSPs here. But CMHSPs are where the vast majority of public system clients are, and therefore where the vast majority of complaints are involved. (In 2017, there were over 3,800 abuse-or-neglect complaints involving CMHSPs, compared to 327 for state-operated hospitals and 398 for licensed psychiatric hospital programs.)
One of the Mental Health Association in Michigan’s (MHAM) goals is to retool the current recipient rights system. As stated previously, MHAM believes that there are important changes that can and should be made to the recipient rights system that can address the conflict of interest; the lack of enforcement; the lack of fair and impartial investigations; and the lack of equity by making the rights office a separate entity.
MHAM’s Policy Initiative for retooling the recipient rights system includes:
- Making the State Office of Recipient Rights a Type I (semi-autonomous) agency within the Michigan Department of Health and Human Services (MDHHS) and require that local recipient rights offices belong and report to the State Office of Recipient Rights.
- Continue to push legislation that will create a viable early option for mediation in resolution of rights complaints. — As you may know, this was defeated last month when certain staff at the Department were criticizing the bill. (HB 5625)
- Advance the dispute resolution recommendations of the MDHHS Section 298 Facilitation Workgroup.
Stay tuned as MHAM works to create meaningful legislative changes to the Mental Health Code so that the rights of those that the public mental health system is intended to serve are preserved and protected in a meaningful way.
Everyone loves to talk about consumer empowerment. But when it comes to meaningful steps in something like recipient rights, the powers-that-be can’t run away fast enough. We will continue to hammer away at this and call out those who want the unacceptable status quo.