Health and Safety
CHAPTER 51. The Department of Health and Social Services
Subchapter V. Mental Health Patients’ Bill of Rights
(a) As used in this section:
(1) “Department ” means the Department of Health and Social Services, except that Department means the Department of Services for Children, Youth and Their Families for facilities certified under §§ 5025(a) and 5001(9) of this title.
(2) “Protection and advocacy agency” means the Community Legal Aid Society, Inc. or successor agency designated the state protection and advocacy system pursuant to the following:
a. Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. § 10801 et seq.);
b. Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 15001 et seq.); or
c. Protection and Advocacy for Individual Rights (29 U.S.C. § 794e).
(3) For purposes of persons admitted pursuant to Chapter 55 of this title, the term “treatment” includes habilitation and the term “patient” means resident.
(b) Any hospital or residential center that admits persons pursuant to Chapter 50, 51, or 55 of this title shall prominently post in English and Spanish the list of patient rights set forth in this subsection. In addition to the posting, the Department shall distribute a copy of the list to each patient and to other persons, as provided in Department regulations. Each patient shall have the rights listed below, which shall be liberally construed to fulfill their beneficial purposes. Furthermore, in defining the scope or extent of any duty imposed by this section, higher or more comprehensive obligations established by otherwise applicable federal, state, or local enactments as well as certification standards of accrediting agencies may be considered.
(1) Each patient shall receive care and treatment suited to the patient’s needs, skillfully, safely and humanely administered with full respect for the patient’s dignity and personal integrity. The care and treatment shall be provided in a setting and under conditions that restrict the patient’s personal liberty only to the extent required by the patient’s treatment needs, applicable law and judicial orders.
(2) Each patient shall have an outcome-oriented, individualized, written treatment plan; treatment based on such plan; periodic review or revision of the plan consistent with treatment progress; and a description of treatment and other support services that may be needed upon discharge.
(3) Each patient, and, if the patient is a minor, the patient’s parents or legal guardian shall have the right to ongoing participation in a manner appropriate to the patient’s capabilities, in the development and revision of an individualized treatment plan. In furtherance of this right, each patient, and, if the patient is a minor, the patient’s parents or legal guardian shall minimally be provided with a reasonable explanation of the following:
a. The patient’s general mental condition and, if a facility has provided a physical examination, the patient’s general physical condition;
b. The objectives of treatment and the reasons why a particular treatment is considered appropriate;
c. The expected benefits and risks of recommended treatments, including all significant potential adverse effects and the steps which may be taken to obviate or ameliorate such effects;
d. The nature, duration and expected benefits and risks of any alternative treatments that are available.
(4) Prior to discharge, the facility shall prepare a written continuing care plan developed in consultation with interdisciplinary staff, anticipated post-discharge providers and the patient, and, if the patient is a minor, with the patient’s parents or legal guardian. At a minimum, Departmental community-based services staff shall be consulted for adult patients in Departmental facilities. The continuing care plan shall include:
a. A realistic assessment of the patient’s post-discharge social, financial, vocational, housing and treatment needs;
b. Identification of available support services and provider linkages necessary to meet the assessed needs; and
c. Identification and a timetable of discrete, predischarge activities necessary to promote the patient’s successful transition to the community-based services system or to another appropriate post-discharge setting.
(5) Absent a patient’s informed, voluntary, written consent to a mode or course of treatment, each patient shall have the right not to receive the mode or course of treatment established pursuant to a treatment plan, except as follows:
a. During an emergency situation, if such treatment is pursuant to and documented contemporaneously by the written order of a physician; or
b. As authorized under applicable law or court order in the case of a person involuntarily committed to the facility; or
c. In the case of a minor, as authorized by a parent or legal guardian.
(6) Each patient shall have the right to be free from the following:
a. Abuse, mistreatment and neglect, as proscribed by Chapters 9 and 11 of this title.
b. Unjustifiable force, as defined by § 468 of Title 11;
c. Seclusion, physical restraint, drugs or other interventions administered primarily for purposes of staff convenience; provided, however, that restraint or seclusion may be administered pursuant to and documented contemporaneously by the written order of an authorized, licensed mental health professional to the extent necessary to prevent physical harm to self or others. Administration of restraint under this subsection shall include the following safeguards:
1. Authorizing orders shall specify the form, duration, and conditions of restraint based on a deliberative determination that the restraint is the least restrictive alternative intervention to prevent physical harm to the patient or others;
2. The patient shall receive a medical examination within an hour of initiation of restraint by a physician, or, if a physician is not available, a nurse;
3. During the course of restraint the patient shall be closely monitored to assess well-being and facilitate prompt discontinuation of restraint when no longer necessary to prevent physical harm to the patient or others;
4. Subsequent to administration of restraint, an interactive clinical assessment shall be undertaken, which includes the patient, and, at the request of the patient, a representative of the protection and advocacy agency, to review catalysts resulting in the necessity of the restraint and appropriateness of revision to the individualized treatment plan.
(7) Each patient shall be advised of the availability of any internal and external systems for reporting abuse, neglect and mistreatment, including those established by Chapters 9 and 11 of this title and the protection and advocacy agency.
(8) The hospital or residential center shall require:
a. Careful reexamination and evaluation of each patient not less than every 6 months;
b. Periodic physical examination of each patient by a physician at least once a year;
c. An order of a staff member, operating within the scope of a professional authority and based upon appropriate examination, before any treatment is administered;
d. Written, informed consent by the patient, or, if the patient is a minor, a parent or legal guardian, for surgery, electro-convulsive therapy, major medical treatment in the nature of surgery or the use of research, investigational or experimental drugs or procedures; and
e. Notation in the patient’s clinical record, signed by the personnel involved, of periodic examinations, individualized treatment programs, evaluations, reevaluations and of orders for treatment and specific therapies.
(9) Each patient shall be entitled to communicate freely and privately with persons and groups inside and outside the facility, consistent with the safety and welfare of other patients and with avoiding serious harassment of others. Correspondence initiated to others by the patient shall be sent along promptly without being opened. The facility shall establish procedures to insure that patients have a full opportunity to conduct correspondence, to have reasonable and confidential access to telephones, and, subject to treatment team limitation based on a clinical determination of serious patient harm, to have frequent and convenient opportunities to meet with visitors. Any treatment team’s limitation of such patient communication shall be documented in the patient’s treatment plan and shall include the team’s specific rationale.
(10) A patient’s right to retain reasonable personal belongings shall be respected, except that the facility may temporarily retain custody of a patient’s personal property for the patient’s protection; provided, that such property is used or conserved for the support of the patient. The patient is entitled to a receipt for any personal property over which the facility retains temporary custody. Nothing in this paragraph shall be construed to relieve any patient from the obligations arising out of § 5019 of this title.
(11) Each patient shall have the right to participate in available vocational rehabilitation, community care or release programs consistent with the patient’s treatment plan. It is recognized that work programs can be therapeutic and, therefore, may be included in a patient’s individualized treatment plan provided that the following conditions are met:
a. The facility must document in the individualized treatment plan the patient’s need or desire for work;
b. The individualized treatment plan must specify the nature of the work to be performed and whether the work is to be voluntary or paid;
c. The patient must consent to the work program described in the treatment plan; and
d. The patient must be aware that the patient may withdraw consent to the work program at any time.
To the extent specifically authorized by the Department of Labor, workers’ compensation law and unemployment insurance law shall not apply to any patient engaged in work programs pursuant to this paragraph.
(12) Each patient who, but for a mental disability, would be entitled to attend a public school shall receive the same training and education that the patient would otherwise be entitled to receive in the patient’s local school district. The facility shall arrange for such training and education, which shall be consistent with the mental ability of the patient, and shall arrange for suitable resources and equipment to address the needs of those patients with visual or hearing impairments.
(13) The hospital or residential center shall maintain a clinical record for each patient admitted. The clinical record shall contain complete information on all matters relating to the admission, legal status, care and treatment of the patient, and shall include all pertinent documents relating to the patient. Copies of informed consent forms signed by patients or guardians pursuant to paragraph (b)(8)d. of this section shall be kept with each patient’s ward chart. The Department shall, by regulation, determine the scope and method of recording information maintained on the clinical records. Those regulations shall ensure the completeness and accuracy of data pertaining to admission, legal matters affecting the patient, records and notations of the course of care and treatment, therapies, the patient’s progress if in research and adverse or other reactions thereto, restrictions on the patient’s rights, periodic examinations and other information required by the Department.
No information reported to the Department and no clinical records maintained with respect to patients shall be public records. Such information and records shall not be released to any person or agency outside of the Department except in conformity with existing law and as follows:
a. To patients, or, if the patient is a minor, to a parent or legal guardian, except that access to specific records may be refused when a clinical determination is made and documented in the patient’s individualized treatment plan that such access would be seriously detrimental to the patient’s health or treatment progress. In the latter case, such material may be made available to a licensed mental health professional selected by the patient, and that professional may, in the exercise of professional judgment, provide the patient with access to any or all parts of the denied material or otherwise disclose the information contained therein. Whenever records are released in accordance with this paragraph, the recipient shall have the right to review the record with a mental health professional furnished by the facility;
b. Pursuant to an order of a court of record;
c. To attorneys representing the patient;
d. To rights-protection agencies otherwise entitled to access under applicable federal or state law or implementing interagency agreement, including the Office of the Long-Term Care Ombudsperson and the protection and advocacy agency;
e. With the consent of the patient, or, if the patient is a minor, with the consent of a parent or legal guardian;
f. To Departmental contractors to the extent necessary for professional consultation or services;
g. To the State Bureau of Identification pursuant to § 8509 of Title 11 and to the Federal Bureau of Investigation, National Instant Criminal Background Check System pursuant to § 1448A of Title 11; and
h. As requested by the Child Death Review Commission, the Child Protection Accountability Commission, or the Drug Overdose Fatality Commission pursuant to an investigation or review; and
i. As otherwise required by law.
(14) The Delaware Psychiatric Center and any other hospital as defined in § 5001(9) of this title shall, pursuant to § 1448A of Title 11, cause to be submitted to the Federal Bureau of Investigation, National Instant Criminal Background Check System such information as may be required to comply with federal laws and regulations relating to background checks for the purchase or transfer of firearms. Such information shall include only names and other nonclinical identifying information of persons so committed.
(15) Each patient, and, if the patient is a minor, the minor’s parent or legal guardian, shall have the right to assert grievances with respect to infringement of the rights described in this section, including the right to have such grievances considered in a fair, timely and impartial grievance procedure provided for or by the facility. Without diminution of such right, the facility may also establish a supplemental mediation system to resolve grievances. The Department shall establish the grievance system for the Delaware Psychiatric Center, through regulation, which shall include the following features:
a. Availability of patient assistance in preparation and submission of grievance;
b. Right to present grievance in person or with the assistance of a representative, including the protection and advocacy agency, to an individual or group impartial decision maker;
c. Right to decision on routine grievance within reasonable time not to exceed 15 calendar days;
d. Availability of expedited processing for urgent or time-sensitive grievance; and
e. Availability of patient appeal to impartial review officer selected by the Department from an approved list compiled by the State Council for Persons with Disabilities and submitted to the Department.
(16) Each patient, and, if the patient is a minor, the minor’s parent or legal guardian, shall have a right to confidential access to any internal rights protection office established by the facility and to any state or federally authorized mental health ombudsperson or rights protection agency.
(17) Each patient shall have the right to exercise the rights described in this section without reprisal, including reprisal in the form of denial of any appropriate, available treatment.
(18) Nothing in this section or in any rule or regulation adopted pursuant thereto shall be construed to deny treatment by spiritual means through prayer for any patient detained for evaluation or treatment who desires spiritual treatment, or to a minor, if the minor’s parent or guardian desires such treatment.
(19) Consistent with the nature of the right and applicable law, a right may devolve to the patient’s guardian.
(20) The rights described above are in addition to, and not in derogation of, any other statutory or constitutional rights.59 Del. Laws, c. 571, § 1; 60 Del. Laws, c. 204, § 1; 64 Del. Laws, c. 421, §§ 1, 2; 64 Del. Laws, c. 467, § 2; 66 Del. Laws, c. 424, § 11; 69 Del. Laws, c. 224, §§ 1, 4; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 222, § 1; 70 Del. Laws, c. 550, § 1; 75 Del. Laws, c. 361, § 8; 77 Del. Laws, c. 386, §§ 1-7; 78 Del. Laws, c. 137, §§ 1, 2; 79 Del. Laws, c. 442, §§ 1, 2; 80 Del. Laws, c. 187, § 13; 81 Del. Laws, c. 79, § 27; 81 Del. Laws, c. 94, § 3; 81 Del. Laws, c. 206, § 35;
(a) As used in this section:
(1) “Covered facility” means a hospital or residential center as defined in § 5161 of this title.
(2) “Critical incident” means the occurrence, within a covered facility, of the following events:
a. Attempted suicide;
b. Seclusion exceeding 15 minutes;
c. Physical restraint exceeding 5 minutes or involving injury; and
d. Victimization prompting solicitation of police intervention or investigation.
(3) “Death” means the demise of a current patient or resident of a covered facility. “Death” shall also include the demise of such a patient or resident within 14 calendar days of transfer to a medical or hospice facility.
(4) “Protection and advocacy agency” means the Community Legal Aid Society, Inc., or successor agency designated the state protection and advocacy system pursuant to the following:
a. Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. § 10801 et seq.);
b. Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. § 15001 et seq.); or
c. Protection and advocacy for individual rights (29 U.S.C. § 794e).
(b) Notwithstanding any other provision of law, each covered facility shall notify the protection and advocacy agency in writing or electronically within 72 hours of all critical incidents and, upon request, facilitate protection and advocacy agency contact with the patient, resident, or authorized representative of the patient or resident.
(c) Notwithstanding any other provision of law, each covered facility shall notify the protection and advocacy agency within 72 hours of the date of any patient or resident death. Such notice shall include brief identifying information; contact information for the next of kin, administrator, or estate executor; the age of the patient or resident; the condition of the patient’s or resident’s health prior to death; and apparent cause of death.
(d) No person or covered facility shall be liable in any civil action by reason of provision of notice of a critical incident or death to the protection and advocacy agency in conformity with this section.
(e) Each covered facility shall cooperate with any assessment or investigation of a critical incident or death by the protection and advocacy agency. In furtherance of this duty, no covered facility shall discharge, discriminate, or retaliate against any person who provides the protection and advocacy agency with information or assistance in connection with an assessment or investigation of a critical incident or death.77 Del. Laws, c. 202, § 1;
This subchapter shall be enforceable by the Attorney General or by any interested citizen. Within the meaning of this section, “interested citizen” shall include any individual, voluntary association of individuals or corporate body having a bona fide interest in furthering enforcement of the rights created by this subchapter. Notwithstanding 10 Del. C. § 342, the Court of Chancery shall have jurisdiction over all actions, including those requesting declaratory relief, to enforce or resolve disputes concerning the rights arising out of this subchapter.59 Del. Laws, c. 571, § 1; 70 Del. Laws, c. 222, § 2; 77 Del. Laws, c. 202, § 1;