House Bill No. 6573

Public Act No. 01-140

AN ACT CONCERNING THE RIGHTS OF PERSONS UNDER SUPERVISION OF THE COMMISSIONER OF MENTAL RETARDATION AND GUARDIANSHIP OF PERSONS WITH MENTAL RETARDATION.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 17a-210 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) There shall be a Department of Mental Retardation. The Department of Mental Retardation, with the advice of a Council on Mental Retardation, shall be responsible for the planning, development and administration of complete, comprehensive and integrated state-wide services for persons with mental retardation and persons medically diagnosed as having Prader-Willi syndrome. The Department of Mental Retardation shall be under the supervision of a Commissioner of Mental Retardation, who shall be appointed by the Governor in accordance with the provisions of sections 4-5 to 4-8, inclusive. The Council on Mental Retardation may advise the Governor on the appointment. The commissioner shall be a person who has background, training, education or experience in administering programs for the care, training, education, treatment and custody of persons with mental retardation. The commissioner shall be responsible, with the advice of the council, for: [planning] (1) Planning and developing complete, comprehensive and integrated state-wide services for persons with mental retardation; [for] (2) the implementation and where appropriate the funding of such services; and [for] (3) the coordination of the efforts of the Department of Mental Retardation with those of other state departments and agencies, municipal governments and private agencies concerned with and providing services for persons with mental retardation. The commissioner shall be responsible for the administration and operation of the state training school, state mental retardation regions and all state-operated community-based residential facilities established for the diagnosis, care and training of persons with mental retardation. The commissioner shall be responsible for establishing standards, providing technical assistance and exercising the requisite supervision of all state-supported residential, day and program support services for persons with mental retardation and work activity programs operated pursuant to section 17a-226. The commissioner shall conduct or monitor investigations into allegations of abuse and neglect and file reports as requested by state agencies having statutory responsibility for the conduct and oversight of such investigations. The commissioner shall stimulate research by public and private agencies, institutions of higher learning and hospitals, in the interest of the elimination and amelioration of retardation and care and training of persons with mental retardation.

(b) The commissioner shall be responsible for the development of criteria as to the eligibility of any person with mental retardation for residential care in any public or state-supported private institution and, after considering the recommendation of a properly designated diagnostic agency, may assign such person to a public or state-supported private institution. [He] The commissioner may transfer such persons from one such institution to another when necessary and desirable for their welfare, provided such person and such person's parent, conservator, guardian or other legal representative [receives] receive written notice of their right to object to such transfer at least ten days prior to the proposed transfer of such person from any such institution or facility. Such prior notice shall not be required when transfers are made between residential units within the training school or a state mental retardation region or when necessary to avoid a serious and immediate threat to the life or physical or mental health of such person or others residing in such institution or facility. The notice required by this subsection shall notify the recipient of his or her right to [request a hearing in accordance with subsection (c) of this section] object to such transfer, except in the case of an emergency transfer as provided in this subsection, and shall include the name, address and telephone number of the Office of Protection and Advocacy for Persons with Disabilities. In the event of an emergency transfer, [such notice] the notice required by this subsection shall notify the recipient of his or her right to request a hearing in accordance with subsection (c) of this section and shall be given within ten days following [said] the emergency transfer. In the event [that a hearing is requested prior] of an objection to the proposed transfer, the commissioner shall conduct a hearing in accordance with subsection (c) of this section and the transfer shall be stayed pending final disposition of the hearing, provided no such hearing shall be required if the commissioner withdraws such proposed transfer.

(c) The parent, guardian, conservator or other legal representative of any person with mental retardation who resides at any institution or facility operated by the Department of Mental Retardation, or any person with mental retardation himself or herself, who is eighteen years of age or older and who resides at any such institution or facility, may [make a request, in writing, to the Commissioner of Mental Retardation for a hearing on] object to any transfer of such person from one institution or facility to another for any reason other than a medical reason or an emergency, or may request such a transfer. In the event of any such objection or request, the commissioner shall conduct a hearing on such proposed transfer, provided no such hearing shall be required if the commissioner withdraws such proposed transfer. In any such transfer hearing, the proponent of a transfer shall have the burden of showing, by clear and convincing evidence, that the proposed transfer is in the best interest of the resident being considered for transfer and that the facility and programs to which transfer is proposed (1) are safe and effectively supervised and monitored, and (2) provide a greater opportunity for personal development than the resident's present setting. Such hearing shall be conducted in accordance with the provisions of [sections 4-176e to 4-184, inclusive] chapter 54.

(d) The parent, guardian, conservator or other legal representative of a person, or the person himself or herself, may request a hearing for any final determination by the department which [(1)] denies such person eligibility for programs and services of the department. [, (2) approves a program for such person which includes the use of behavior-modifying medications or aversive procedures, or (3) determines that community placement is inappropriate for such person placed under the direction of the commissioner.] A request for a hearing shall be made in writing to the commissioner. Such hearing shall be conducted in accordance with the provisions of [sections 4-176e to 4-184, inclusive] chapter 54.

(e) The parent, guardian, conservator or other legal representative of a person, or the person himself or herself, may object to (1) a proposed approval by the department of a program for such person which includes the use of behavior-modifying medications or aversive procedures, or (2) a proposed determination of the department that community placement is inappropriate for such person placed under the direction of the commissioner. The department shall provide written notice of any such proposed approval or determination to the parent, guardian, conservator or other legal representative of such person, or the person himself or herself, at least ten days prior to making such approval or determination. In the event of an objection to such proposed approval or determination, the commissioner shall conduct a hearing in accordance with the provisions of chapter 54, provided no such hearing shall be required if the commissioner withdraws such proposed approval or determination.

Sec. 2. Section 17a-238 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) No person placed or treated under the direction of the Commissioner of Mental Retardation in any public or private facility shall be deprived of any personal, property or civil rights, except in accordance with due process of law.

(b) Each person placed or treated under the direction of the Commissioner of Mental Retardation in any public or private facility shall be protected from harm and receive humane and dignified treatment which is adequate for [his] such person's needs and for [his] the development [to his] of such person's full potential at all times, with full respect for [his] such person's personal dignity and right to privacy consistent with [his] such person's treatment plan as determined by the commissioner. No treatment plan or course of treatment for any person placed or treated under the direction of the commissioner shall include the use of an aversive device which has not been tested for safety and efficacy and approved by the federal Food and Drug Administration except for any treatment plan or course of treatment including the use of such devices which was initiated prior to October 1, 1993. No treatment plan or course of treatment prescribed for any person placed or treated under the direction of the commissioner shall include the use of aversive procedures except in accordance with procedures established by the Commissioner of Mental Retardation. For purposes of this subsection, "aversive procedure" means the contingent use of an event which may be unpleasant, noxious or otherwise cause discomfort to alter the occurrence of a specific behavior or to protect an individual from injuring himself or herself or others and may include the use of physical isolation and mechanical and physical restraint. Nothing in this subsection shall prohibit persons who are not placed or treated under the direction of the Commissioner of Mental Retardation from independently pursuing and obtaining any treatment plan or course of treatment as may otherwise be authorized by law. The commissioner shall adopt regulations, in accordance with chapter 54, to carry out the provisions of this subsection.

(c) The Commissioner of Mental Retardation shall adopt regulations, in accordance with the provisions of [sections 4-166 to 4-176, inclusive] chapter 54, with respect to each facility or institution under [his] the jurisdiction of the commissioner, with regard to the following: (1) Prohibiting the use of corporal punishment; (2) when and by whom therapies may be used; (3) which therapies may be used; and (4) when a person may be placed in restraint or seclusion or when force may be used upon a person.

(d) A copy of any order prescribing the use of therapy, restraint or seclusion in accordance with the regulations adopted [in] under subsection (c) of this section shall be made a part of the person's permanent clinical record together with the reasons for each such order and made available in compliance with existing statutes relating to the right to know.

(e) The Commissioner of Mental Retardation shall ensure that each person placed or treated under [his] the commissioner's direction in any public or private facility is afforded the following rights and privileges: (1) The right to prompt, sufficient and appropriate medical and dental treatment; (2) the right to communicate freely and privately with any person, including, but not limited to, an attorney or other legal representative of [his] the person's choosing; (3) the right to reasonable access to a telephone, both to make and receive calls in private, unless such access is used in violation of any federal or state statute; (4) the right to send and receive unopened mail and to make reasonable requests for assistance in the preparation of correspondence; (5) the safety of each person's personal effects shall be assured including the provision of reasonably accessible individual storage space; (6) the right to be free from unnecessary or excessive physical restraint; (7) the right to voice grievances without interference; (8) the right to a nourishing and well-balanced diet; (9) the right to be employed outside a facility and to receive assistance in his or her efforts to secure suitable employment. The department shall encourage the employment of such persons and shall promote the training of such persons for gainful employment, and all benefits of such employment shall accrue solely to the person employed; (10) the right to have the complete record maintained by the Department of Mental Retardation concerning such person released for review, inspection and copying to such person's attorney or other legal representative notwithstanding any provisions of subsection (g) of section 4-193 or section 4-194; and (11) the right to receive or purchase his or her own clothing and personal effects, including toilet articles, and the right to wear such clothing and use such personal effects except where determined to be dangerous to the health or safety of the individual or others.

(f) The Commissioner of Mental Retardation shall require the attending physician of any person placed or treated under [his] the direction of the commissioner to obtain informed written consent from the following persons prior to authorizing any surgical procedure or any medical treatment, excluding routine medical treatment which is necessary to maintain the general health of a resident or to prevent the spread of any communicable disease: (1) The resident if [he] such resident is eighteen years of age or over or is legally emancipated and competent to give such consent; (2) the parent of a resident under eighteen years of age who is not legally emancipated; or (3) the legal guardian or conservator of a resident of any age who is adjudicated unable to make informed decisions about matters relating to [his] such resident's medical care. The person whose consent is required shall be informed of the nature and consequences of the particular treatment or surgical procedure, the reasonable risks, benefits and purpose of such treatment or surgical procedure and any alternative treatment or surgical procedures which are available. The consent of any resident or of any parent, guardian or conservator of any resident may be withdrawn at any time prior to the commencement of the treatment or surgical procedure. The regional or training school director having custody and control of a resident of any facility may authorize necessary surgery for [any] such resident where, in the opinion of the resident's attending physician, the surgery is of an emergency nature and there is insufficient time to obtain the required written consent provided for in this section. The attending physician shall prepare a report describing the nature of the emergency which necessitated such surgery and shall file a copy of such report in the patient's record.

(g) The commissioner's oversight and monitoring of the medical care of persons placed or treated under the direction of the commissioner does not include the authority to make treatment decisions, except in limited circumstances in accordance with statutory procedures. In the exercise of such oversight and monitoring responsibilities, the commissioner shall not impede or seek to impede a properly executed medical order to withhold cardiopulmonary resuscitation. For purposes of this subsection, [a] "properly executed medical order to withhold cardiopulmonary resuscitation" means (1) a written order by the attending physician; (2) in consultation and with the consent of the patient or a person authorized by law; (3) when the attending physician is of the opinion that the patient is in a terminal condition, as defined in [subsection] subdivision (3) of section 19a-570, which condition will result in death within days or weeks; and (4) when such physician has requested and obtained a second opinion from a Connecticut licensed physician in the appropriate specialty that confirms the patient's terminal condition; [. A "properly executed medical order to withhold cardiopulmonary resuscitation" also] and includes the entry of such an order when the attending physician is of the opinion that the patient is in the final stage of a terminal condition but cannot state that the patient may be expected to expire during the next several days or weeks, or, in consultation with a physician qualified to make a neurological diagnosis, deems the patient to be permanently unconscious, provided the commissioner has reviewed the decision with the department's director of community medical services, the family and guardian of the patient and others who the commissioner deems appropriate, and determines that the order is a medically acceptable decision.

(h) Any person applying for services from the Commissioner of Mental Retardation or any person placed by a probate court under the direction of the Commissioner of Mental Retardation, and such person's parents or guardian, shall be informed orally and in writing at the time of application or placement of the rights guaranteed by this section and the provisions of subdivision (5) of section 46a-11. A summary of [these] such rights shall be posted conspicuously in the public areas of every public or private facility providing services to persons under the care of the Commissioner of Mental Retardation.

Sec. 3. Section 45a-677 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) The court may assign to a limited guardian of [the] a mentally retarded person any portion of the duties and powers listed in subsection (d) of this section for those particular areas in which the respondent lacks the capacity to meet the essential requirements for [his] such respondent's physical or mental health or safety.

(b) A limited guardian may also be assigned the duty to assist the respondent in those particular areas in which the capacity of [such person] the respondent to meet the essential requirements of [his] such respondent's physical or mental health or safety, protect [his] such respondent's rights, obtain necessary services, or to fulfill [his] such respondent's civil duties is impaired, as well as in other ways not specifically prohibited by sections 45a-668 to 45a-684, inclusive.

(c) A limited guardian of [the] a mentally retarded person shall have only such of the duties and responsibilities and powers of a guardian of [the] a mentally retarded person under subsection (d) of this section as the court shall specify based upon its findings with regard to the individual need of the respondent for supervision. The guardian shall have the duty to report to the probate court which appointed such limited guardian at least annually the condition of the respondent. The preceding duties, responsibilities and powers shall be carried out within the limitations of the resources available to the ward, either through [his] the ward's own estate or by reason of private or public assistance.

(d) The court may assign to a limited guardian the custody of the ward for the purpose of exercising any, but not all, of the following limited duties and powers, in order to assist the ward in achieving self-reliance: (1) To assure and consent to a place of abode outside the natural family home, (2) to consent to specifically designed educational, vocational or behavioral programs, (3) to consent to the release of clinical records and photographs, (4) to assure and consent to routine, elective and emergency medical and dental care, and (5) other specific limited powers to assure and consent to services necessary to develop or regain to the maximum extent possible the ward's capacity to meet essential requirements. All plenary guardians and limited guardians appointed pursuant to sections 45a-668 to 45a-684, inclusive, shall also have a duty to assure the care and comfort of the ward within the limitations of their appointment, and within the limitations of the resources available to the ward either through [his] the ward's own estate or by reason of private or public assistance.

(e) A plenary guardian or limited guardian of [the] a mentally retarded person shall not have the power or authority: (1) To cause the ward to be admitted to any institution for treatment of the mentally ill, except in accordance with the provisions of sections 17a-75 to 17a-83, inclusive, 17a-456 to 17a-484, inclusive, 17a-495 to 17a-528, inclusive, 17a-540 to 17a-550, inclusive, 17a-560 to 17a-576, inclusive, 17a-615 to 17a-618, inclusive, and 17a-621 to 17a-664, inclusive, and chapter 420b; (2) to cause the ward to be admitted to any training school or other facility provided for the care and training of the mentally retarded if there is a conflict concerning such admission between the guardian and the mentally retarded person or next of kin, except in accordance with the provisions of sections 17a-274 and 17a-275; (3) to consent on behalf of the ward to a sterilization, except in accordance with the provisions of sections 45a-690 to 45a-700, inclusive; (4) to consent on behalf of the ward to psychosurgery, except in accordance with the provisions of section 17a-543; (5) to consent on behalf of the ward to the termination of [that person's] the ward's parental rights, except in accordance with the provisions of sections 45a-706 to 45a-709, inclusive, 45a-715 to 45a-718, inclusive, 45a-724 to 45a-737, inclusive, and 45a-743 to 45a-757, inclusive; (6) to consent on behalf of the ward to the performance of any experimental biomedical or behavioral medical procedure or participation in any biomedical or behavioral experiment, unless it is intended to preserve the life or prevent serious impairment of the physical health of the ward or it is intended to assist the ward to regain [his] the ward's abilities and has been approved for [that person] the ward by the court; (7) to admit the ward to any residential facility operated by an organization by whom such guardian is employed, except in accordance with the provisions of section 17a-274; (8) to prohibit the marriage or divorce of the ward; and (9) to consent on behalf of the ward to an abortion or removal of a body organ, except in accordance with applicable statutory procedures when necessary to preserve the life or prevent serious impairment of the physical or mental health of the [respondent] ward.

(f) A plenary guardian or limited guardian shall submit a report to the court: (1) Annually; (2) when the court orders additional reports to be filed; or (3) when there is a significant change in the capacity of the ward to meet the essential requirements for [his] the ward's physical health or safety; (4) when the plenary guardian or limited guardian resigns or is removed; and (5) when the guardianship is terminated.

(g) Such reports shall be submitted on a form provided by the Office of the Probate Court Administrator and shall contain the following information: (1) Significant changes in the capacity of the ward to meet the essential requirements for [his] the ward's physical health or safety; (2) the services being provided to the ward and the relationship of those services to the individual guardianship plan; (3) the significant actions taken by the limited guardian of [the] a mentally retarded person or plenary guardian of [the] a mentally retarded person during the reporting period; (4) any significant problems relating to the guardianship which have arisen during the reporting period; and (5) whether such guardianship, in the opinion of the guardian, should continue, be modified, or be terminated, and the reasons therefor.

(h) When any mentally retarded person for whom a guardian has been appointed becomes a resident of any town in the state in a probate district other than the one in which a guardian was appointed, or becomes a resident of any town in the state to which the guardianship file has been transferred under this section, such court in that district may, upon motion of any person deemed by the court to have sufficient interest in the welfare of the respondent, including, but not limited to, the guardian, the Commissioner of Mental Retardation or [his] the commissioner's designee, or a relative of the person under guardianship, transfer the file to the probate district in which the person under guardianship resides at the time of the application, provided the transfer is in the best interest of the mentally retarded person. A transfer of the file shall be accomplished by the probate court in which the guardianship matter is on file by making copies of all documents in the court and certifying each of them and then causing them to be delivered to the court for the district in which the person under guardianship resides. When the transfer is made, the court of probate in which the person under guardianship resides at the time of transfer shall thereupon assume jurisdiction over the guardianship and all further accounts shall be filed with such court.

(i) A plenary guardian or limited guardian of a mentally retarded person and, to the extent appropriate, such person shall be the primary decision maker with respect to programs needed by such person and policies and practices affecting the well-being of such person within the authority granted by the court pursuant to this section, provided any such decision does not conflict with the requirements of section 17a-238, as amended by this act. In making any such decision, the plenary guardian or limited guardian shall consult with the ward and appropriate members of the ward's family, where possible. A limited guardian shall be the primary decision maker only with respect to such duties assigned to the limited guardian by the court. The provisions of this subsection shall be included in any court order appointing a plenary guardian or limited guardian of a mentally retarded person.

Sec. 4. The Commissioner of Mental Retardation shall conduct a study of the law regarding guardianship of persons with mental retardation. Such study shall be conducted in collaboration with the Probate Court Administrator, or the Probate Court Administrator's designee, the director of the Office of Protection and Advocacy for Persons with Disabilities, or the director's designee, a representative of the Association for Retarded Citizens-Connecticut (ARC-CT) and a representative of the Friends of Retarded Citizens of Connecticut (FORConn). Not later than January 1, 2003, the commissioner shall submit a report containing the commissioner's findings and recommendations to the joint standing committee of the General Assembly having cognizance of matters relating to public health, in accordance with section 11-4a of the general statutes.

Approved June 28, 2001