Privacy and Personal Relationships in Facilities October 30, 2008

1. Privacy and Personal Relationships in FacilitiesOctober 30, 2008 Kevin Bayley, Staff Attorney Disability Rights California kevin.bayley@disabilityrightsca.org

2. Do People In Facilities Have Sex? • Yes. (just wanted to get that out of the way before we begin)

3. 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).

4. 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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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).

11. 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.”

12. 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.

13. Facility Policies • What is typical? • What is legal? • What are best practices?

14. Presumption of Incompetence • Any presumption of incompetence by facility residents to make decisions concerning sexual relationships is unconstitutional.

15. 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.

16. Best Practices • Does anyone visit facilities which they believe have good policies? • Discuss model policies?

17. 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?