Right to Fresh Air: The 6th Fundamental Right

In 2015, the state of Massachusetts added a 6th ‘Fundamental Right’ to the five that were already in existence (click here to read about the other 5). All six Fundamental Rights apply only in the state of Massachusetts, and only to facilities (hospitals, group homes, etc.) where people live or stay and that are contracted, licensed or funded by the Department of Mental Health.

 

Specifically, the 6th right is called the ‘Right to Fresh Air’ and refers to the right of people hospitalized in Massachusetts psychiatric units to have access to the outdoors. There have now been two rounds of input from the public on how to fine tune and implement this right. Unfortunately, although seeing the 6th Fundamental Right added was a huge success, our voice has gone largely unheard in the implementation stage.

 

Following those two feedback rounds, the law remains full of loopholes and ways to avoid actually ensuring that people who are hospitalized can have regular access to the outdoors. Nonetheless, it does create a document with legal validity to which we can point, and an obvious place to build upon with our advocacy.

 

You can check out the full text of the 6th Fundamental Right below. However, perhaps even more importantly, we cannot emphasize enough how critical it is for you to find a way to speak up when you see this (and other Fundamental Rights) being violated, especially since some hospitals are already speaking out

publicly against this new law. (See this article published on July 5 for more: https://www.statnews.com/2016/07/05/mental-health-patients-fresh-air/

 

You can help educate people (both staff working in these facilities and those staying in them) about these rights, and you can also support people (if they choose) to file formal complaints with facility Human Rights Officers and directly with the Department of Mental Health. Additionally, if someone does not want to file a complaint themselves (because they fear retaliation or that it may delay their discharge, etc.), then you can also file a more general complaint without naming them.

 

Below is the actual text of the ‘Fresh Air’ law as it currently exists.

 

“In addition to the foregoing, a patient of a facility:

Shall have reasonable daily access to the outdoors, as weather conditions reasonably permit, in a manner consistent with the person’s clinical condition and safety as determined by the treating clinician and with the ability of the facility to safely provide access.

1.   For purposes of 104 CMR 27.13(5)(f) reasonable daily access shall mean supervised or unsupervised daily access to the outdoors, individually or in groups.

a.   Nothing in 104 CMR 27.13(5)(f) shall be construed to:

i. prohibit a facility from establishing reasonable schedules or designated times for the provision of access to the outdoors, as long as each patient has a reasonable opportunity to access the outdoors on a daily basis, consistent with the provisions of 104 CMR 27.13(5)(f), during one or more of the scheduled or designated times;

ii.   require a facility to conduct clinical programming outdoors;

iii. require a facility to provide access to the outdoors “on demand.”

b. No patient shall be compelled to participate in clinical programming as a condition of accessing the outdoors.

2.   For purposes of 104 CMR 27.13(5)(f), outdoors shall mean a space or area outside of a building, which may include a porch, courtyard, roof deck or open space surrounded by a building, and may be fenced, locked or otherwise secured.

3.   A patient’s initial psychiatric examination conducted within 24 hours of admission shall include a written assessment of the patient’s ability to access the outdoors consistent with his or her clinical condition and safety. Factors that may be considered in such assessments may include, but are not necessarily limited to:

a.   acuity of symptoms;

b.   medical conditions;

c   forensic legal status, including pending charges

     and bail status;

d.   risk of elopement;

e.   need for secure or non-secure space;

f.   level of supervision required to ensure safety;

g.   ability of the facility to meet the individual’s requirements for safety; and

h.   adequacy of historical or observational data upon which to make a determination.

4. A patient’s status regarding access to the outdoors shall be reviewed at treatment team meetings and reassessed by the treating clinician whenever it appears that there has been a change in circumstances that may affect the patient’s ability to safely access the outdoors.

a. A decision made in accordance with 104 CMR 27.13(5)(f)(3) to restrict a patient’s access to the outdoors shall be reviewed daily to determine whether there is a change relative to the factors that resulted in the restriction. If such a determination is made, a new assessment shall be conducted.

b. A patient whose access to the outdoors has been restricted in accordance with 104 CMR 27.13(5)(f)(3), may request a new assessment at any time. Such assessment shall be conducted within a reasonable   period of time; provided however there shall be no requirement to provide more than one assessment in a 24 hour period.

5.   The facility shall have a written plan to implement its obligation to provide patients access to the outdoors.

a.   The plan shall include the following:

i.   procedures, including staffing and other safety requirements, to allow for access to non-secure outdoor space for patients who have been assessed as clinically appropriate and safe to exercise this option;

ii.   procedures, including staffing and other safety requirements, to allow for access to secure outdoor space, if available, for patients who have been assessed as clinically appropriate and safe to exercise this option.

b.   Reasonable efforts to safely provide access to outdoor space, may include but shall not be limited to:

i.   reasonable capital expenditures to develop, construct or otherwise acquire outdoor space;

ii.   reasonable modifications of staffing patterns to permit staff escorts; or

iii. reasonable modifications to building access policies to permit patient access to common areas of the facility or proximate to the facility not normally dedicated as patient areas.

c.   If the facility determines that it cannot safely provide secure outdoor access due to staffing or physical plant limitations, it shall:

i.   identify and document such limitations in the plan;

ii.   identify what actions the facility will take to address these limitations and the timeframe for the actions. If the facility determines that the limitations cannot be reasonably remedied, the facility shall identify the reasons for such determination. Such reasons shall be documented with sufficient detail to enable the Department to determine whether they constitute reasonable justification.

d. Upon request of the Department, but no less frequently than in its application for licensure or license renewal, the facility shall demonstrate to the Department’s satisfaction that its plan is current and that it has identified, considered and implemented all reasonable actions to safely provide access to outdoor space.

6.  The Facility shall have procedures intended to ensure patient and staff safety at such times that patients are exercising their right of access to the outdoors. Such procedures may include, but are not necessarily limited to:

a.   availability of electronic communication for staff supervising patients or for patients accessing the outdoors without staff supervision;

b.   application of appropriate patient to staff ratios, including staffing requirements for patients not accessing the outdoors, taking into account the number of patients accessing the outdoors and any provisions for supervision determined by the treating clinician;  

c.   use of security cameras to monitor outdoor areas; and

d.   provisions for altering designated times for access to accommodate inclement weather.”