Fresh Air as a Human Right for Psychiatric Patients

The first five rights were established in 1997 (here). The sixth is the so-called “Fresh Air” right. It was established in 2015 (here) and stylized as the right to “reasonable daily access to the outdoors … in a manner consistent with the person’s clinical condition.”

The DMH was tasked with promulgating regulations around the new law. It published these regulations in 2016. The centerpiece of the plan was the requirement that each facility produce a a written plan (a “6fc Plan”) for how they would implement the law, what capital improvements they might need to undertake, and any limitations that they felt were insurmountable. The DMH had to approve the facility’s determinations, and the facility had to revisit its plan annually for the DMH. Since the 6fc Plan is the key to DMH’s vision of compliance, I treat it separately, here.

The remainder of the regulations are straightforward:

“Reasonable daily access shall mean supervised or unsupervised daily access to the outdoors, individually or in groups.

a. i. [Facilities are not:] … prohibited … 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 [this law] during one or more of the scheduled or designated times;

ii. [Facilities are not] required … to conduct clinical programming outdoors; [and]

iii. [Facilities are not] required … 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. 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 nonsecure space;

f. level of supervision required to ensure safety;

g. ability of the facility to meet the patient’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 … 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 … 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.

c. In the event a change in circumstances that may affect the patient's ability to safely access the outdoors occurs outside of normal business hours, an on-duty clinician acting on behalf of the treating clinician may restrict or authorize such access as indicated by the change in circumstances.