Professional Issues

Patient Bill of Rights

Legislative Committee Issues Preliminary Objection to New Client Bill of Rights (Sept. 2003) By NHPA Lobbyist, Timothy Fortier, McLane Law Firm (retrieved 12/6/03 from www.nhpaonline.org)

On September 18th, the Joint Legislative Committee on Administrative Rules (JLCAR) held a public hearing on the new Patient's Bill of Rights, drafted by the NH Board of Mental Health Practice. JLCAR voted unanimously to file a preliminary objection against the final proposal. JLCAR's preliminary objection was based on staff comments and public input, specifically concerning the lack of any reference in the rules to 'informed consent,' and the lack of any reference in the rules to the right to 'safe' and 'effective' treatment.

JLCAR also discussed the issue of one bill of rights versus five different bills of rights. JLCAR staff pointed out to the Committee the proposed final rule might be 'contrary to legislative intent by conflicting with RSA 330-A:15.' Although JLCAR contemplated the Merrimack Superior Court ruling, which based its order on its own interpretation that 5 separate bills of rights were required under RSA 330-A:15, JLCAR members unanimously agreed that one bill of rights was sufficient, and more would do nothing but create confusion among patients. All public testimony, from both consumers and BMHP representatives spoke in favor of just one bill of rights. At this time, the issue appears to be resolved and of no further concern to interested parties or JLCAR members.

Regarding 'informed consent,' consumer Charles Proulx testified that other statutes governing informed consent are more specific (i.e. providers shall provide their clients with a written copy) than that of the BMHP's. BMHP member Mary Ellen Nicholls, MSW, however, spoke against the need for further clarification based on the fact that informed consent is already 'enveloped' by the proposed bill of rights. Nicholls also stated that 'We have done it for years without a written statement and now we are being asked to formalize this.'

There appears to be consensus among JLCAR members that new language regarding 'informed consent' needs to be added for this provision to be more consistent with other similar provider notification requirements and other state statutes.

In addition to requesting greater clarification and a mandate that the bill of rights be disseminated to each client by a provider, consumers also requested JLCAR's consideration of a bill of rights to be printed on fine paper (certificate-like), with a state seal, and be distributed by the BMHP to providers and the bill be prominently displayed in an office setting. All parties agreed this issue is not a legislative decision but one for the BMHP to decide.

The second reason for JLCAR's preliminary objection is the lack of the words 'safe' and 'effective' treatment in the proposed final rules. John Brown, Ph.D. offered testimony that the proposed final rule is rendered relatively ineffective unless JLCAR adds language explicitly informing patients of 'their right to safe and effective treatment.' Brown's testimony centered around 'pseudoscience' and 'leaving consumers unwittingly vulnerable to ineffective or even harmful but professionally popular services.' Brown spoke of recovered memory loss theories, attachment disorders and holding therapies as fads that have proven to be harmful to patients.

BMHP Chair Ron Dieter, D.Min explained that the BMHP had previously heard these concerns and agreed safety is the primary purpose of the BMHP's calling, but that these issues are already captured or implied in the ethical standards required by the BMHP. Dieter said that all patients have a right to a 'safe setting.'

In response to a question regarding the exposure of patients to unsound practices, Dieter explained that providers cannot practice outside their range of competency. For instance, it would be an unsound practice for a provider to market his services towards working with children if in fact the provider has not worked with children. Similarly, Dieter further explained, a practitioner not providing 'normal, usual and customary diagnosis and treatment' might be vulnerable to patient complaint for providing a type of uncommon therapy.

There appears to be consensus among JLCAR members to address this issue. Staff attorneys suggested modifying Mhp 502.02 (a) (1) by adding new language which reflects the legislative intent and purpose as contained in RSA 330-A.

In closing, the BMHP will now take into consideration the comments provided by the public, JLCAR attorneys, and the committee discussions on these issues. It remains to be seen whether or not the BMHP will incorporate these suggestions and offer a 'revised' proposed bill of rights in the future addressing specifically the issues of 'informed consent' and 'safe' and 'effective' treatment.

Review the article from the NH Psychological Association's Web site at http://www.nhpaonline.org/jlcararticle.htm.