Transcript Privacy and Personal Relationships in Facilities October

Privacy and Personal
Relationships in Facilities
October 30, 2008
Kevin Bayley, Staff Attorney
Disability Rights California
[email protected]
1
Do People In Facilities Have Sex?
Yes.
(just wanted to get that out of the way before we
begin)
2
Historically, Attitudes Were Not
Sympathetic
We have seen more than once that the public welfare
may call upon the best citizens for their lives. It would be
strange if it could not call upon those who already sap
the strength of the State for these lesser sacrifices, often
not felt to be such by those concerned, in order to
prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute
degenerate offspring for crime, or to let them starve for
their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The principle
that sustains compulsory vaccination is broad enough to
cover cutting the Fallopian tubes. Three generations of
imbeciles are enough.
– Justice Oliver Wendell Holmes, Buck v. Bell, 274 U.S. 200
(1927).
3
And May Remain So…
“Cuyahoga judge wants strict
guidelines against sex at mental
hospital”
– "I am appalled that you think sex is a
freedom they deserve," [Judge Nancy
Margaret] Russo said. "I believe it's a
betrayal of the trust I placed in you" to
treat the mentally ill woman.
– Cleveland Plain Dealer, May 23, 2008
4
Foy v. Greenblott
141 Cal. App. 3d 1 (1983)
– Institutionalized persons possess the right to engage
in consensual sex and to reproduce if they so choose.
– Institutionalized persons have a fundamental right to
be free from unwarranted governmental intrusion with
respect to reproductive rights.
– Institutionalized persons have the right to be free from
institutional interference with their individual
autonomy, including their personal privacy and social
interaction.
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Foy, cont.
“we do not indicate that mental health personnel can
never restrict consensual sexual activities of a patient or
prescribe contraceptives over a patient's objections
without infringing civil rights.”
“Nonetheless, the statutes and case law discussed
above do more than define the minimum patients' rights,
which mental health professionals are obliged to respect;
they also express a public policy of maximizing patients'
individual autonomy, reproductive choice, and rights of
informed consent. Within the considerable range of
discretion left to them, mental health professionals are
expected to opt for the treatments and conditions of
confinement least restrictive of patients' personal
liberties.
6
Lawrence v. Texas
123 S. Ct. 2472 (2003)
– Although this case addressed the validity of criminalizing certain
sexual behaviors, the Court repeatedly relied on Casey, Roe,
and others in affirming an individual’s right to privacy and
freedom from governmental intrusion upon private sexual
conduct.
– The right to make decisions regarding sexual behavior
transcends the marital relationship. The right of privacy means
that an individual must be free from unwarranted governmental
intrusion into matters so fundamentally affecting a person as the
decision whether to reproduce.
– The Constitution protects the liberty of unmarried persons to
make decisions concerning the intimacies of their physical
relationships, even when the relationship is not intended to
produce offspring.
7
Planned Parenthood of
Southeastern Pennsylvania v.
Casey
505 U.S. 833 (1992)
– Liberty includes a freedom from all purposeless restraints and
which also recognizes that certain interests require particularly
careful scrutiny of the state needs asserted to justify their
abridgment.
– A state's interest in the protection of life does not outweigh
individual liberty claims.
– Among the decisions an individual may make without unjustified
governmental interference are personal decisions relating to
marriage, procreation, contraception, etc.
– The Constitution protects all individuals, male or female, married
or not, from the abuse of governmental power, even where that
power is employed for the supposed benefit of a member of the
individual's family.
8
Roe v. Wade
410 U.S. 113 (1973)
– The Court found a right to privacy for
reproductive choice exists under the U.S.
Constitution.
– “Fundamental” rights such as marriage,
procreation, contraception, family
relationships, etc. are included in the
guarantee of personal privacy.
9
Additional U.S. Supreme Court
Cases
Right to privacy involving
– Contraception
Griswold v. Connecticut, 381 U.S. 479 (1964).
– Marriage
Loving v. Virginia, 388 U.S. 1 (1967).
– Family relationships
Moore v. City of East Cleveland, 431 U.S. 494
(1977).
10
California Constitution
Guarantees the right of privacy in Article 1,
Section 1:
– “All people are by nature free and
independent and have inalienable rights.
Among these are enjoying and defending life
and liberty, acquiring, possessing, and
protecting property, and pursuing and
obtaining safety, happiness, and privacy.”
11
Welfare & Institutions Code §
5325.1
Persons with mental illness have the same legal rights and responsibilities
guaranteed all other persons by the Federal Constitution and laws and the
Constitution and laws of the State of California, unless specifically limited by
federal or state law or regulations.
It is the intent of the legislature that persons with mental illness shall
have rights including, but not limited to, the following:
– (a) A right to treatment services which promote the potential of the
person to function independently. Treatment should be provided in ways
that are least restrictive of the personal liberty of the individual.
– (b) A right to dignity, privacy, and humane care.
– (c) A right to be free from harm, including unnecessary or excessive
physical restraint, isolation, medication, abuse, or neglect. Medication
shall not be used as punishment, for the convenience of staff, as a
substitute for program, or in quantities that interfere with the treatment
program.
– (d) A right to prompt medical care and treatment.
– (g) A right to social interaction and participation in community activities.
– (h) A right to physical exercise and recreational opportunities.
12
Facility Policies
What is typical?
What is legal?
What are best practices?
13
Presumption of Incompetence
Any presumption of incompetence by
facility residents to make decisions
concerning sexual relationships is
unconstitutional.
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Blanket prohibition
A blanket policy may be an unwritten one,
that is implicitly understood or carried out
by the staff.
A blanket prohibition is not constitutional.
However, facilities may choose to impose
reasonable restrictions on sexual activity.
15
Best Practices
Does anyone visit facilities which they
believe have good policies?
Discuss model policies?
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Discussion Questions
How often do these kinds of questions
come up?
Who brings them to you?
– Residents?
– Staff?
– Family members?
What are some ways you deal with the
issue?
17