Sec. 17a-274. (Formerly Sec. 19a-448). Involuntary placements with the Department of Developmental Services. Application. Notice and hearing. Rights of respondent. Examination by psychologist. Tempora - Connecticut Statutes

      Sec. 17a-274. (Formerly Sec. 19a-448). Involuntary placements with the Department of Developmental Services. Application. Notice and hearing. Rights of respondent. Examination by psychologist. Temporary placement. Evaluation of needs. Fraudulent or malicious applications. (a) Any court of probate shall have the power to place any person residing in its district whom it finds to be a mentally retarded person with the Department of Developmental Services for placement in any appropriate setting which meets his individual habilitative needs in the least restrictive environment available or which can be created within existing resources of the department, in accordance with the provisions of this section and section 17a-276. No person shall be so placed unless the court has found the person is mentally retarded and (1) is unable to provide for himself at least one of the following: Education, habilitation, care for personal health and mental health needs, meals, clothing, safe shelter or protection from harm; (2) has no family or guardian to care for him or his family or guardian can no longer provide adequate care for him; (3) is unable to obtain adequate, appropriate services which would enable him to receive care, treatment and education or habilitation without placement by a court of probate; and (4) is not willing to be placed under the custody and control of the Department of Developmental Services or its agents or voluntary admission has been sought by the guardian or limited guardian of such person appointed pursuant to chapter 779a or the provisions of sections 45a-711 to 45a-725, inclusive, and such voluntary admission has been opposed by the ward or his next of kin.

      (b) Application to the Probate Court for placement under this section may be made by any interested party. The application and all records of Probate Court proceedings held as a result of the filing of such application, except for the name of any guardian of the respondent, shall be sealed and shall be made available only to the respondent or the respondent's counsel or guardian, and to the Commissioner of Developmental Services or the commissioner's designee, unless the Probate Court, after hearing held with notice to the respondent or the respondent's counsel or guardian, and to the commissioner or the commissioner's designee, determines that such application and records should be disclosed for cause shown. The application shall allege that the respondent is a person with mental retardation and (1) is unable to provide for himself at least one of the following: Education, habilitation, care for personal health and mental health needs, meals, clothing, safe shelter or protection from harm; (2) has no family or guardian to care for the respondent or the respondent's family or guardian can no longer provide adequate care for the respondent; (3) is unable to obtain adequate, appropriate services which would enable the respondent to receive care, treatment and education or habilitation without placement by a court of probate; and (4) is not willing to be placed under the custody and control of the Department of Developmental Services or its agents or voluntary admission has been sought by the guardian or limited guardian of the respondent appointed pursuant to chapter 779a or the provisions of sections 45a-711 to 45a-725, inclusive, and such voluntary admission has been opposed by the ward or the ward's next of kin.

      (c) Immediately upon the filing of the application, the Probate Court shall assign a time, date and place for a hearing, such hearing to be held not later than thirty business days from the date of receipt of the application. The court shall give notice of the hearing to the respondent, the respondent's guardian or conservator, the respondent's spouse or, if none, the respondent's children or, if none, the respondent's parents or, if none, the respondent's siblings, the Commissioner of Developmental Services, the director of the Office of Protection and Advocacy for Persons with Disabilities, and any other person who has shown an interest in the respondent.

      (d) Notice to the respondent and Commissioner of Developmental Services shall include: The names of all persons filing the application, the allegations made in the application, the time, date and place of the hearing, and the name, address and telephone number of the attorney who will represent the respondent. The notice shall state the right of the respondent to be present at the hearing, to present evidence, to cross-examine witnesses who testify at the hearing, and to an independent diagnostic and evaluative examination by a licensed psychologist of his own choice, who may testify on his behalf. If the court finds the respondent is indigent, the notice shall further state the respondent may be represented by counsel of his own choosing, and, if the court finds the respondent is indigent, that counsel shall be provided without cost. The reasonable compensation for counsel provided to indigent respondents shall be established by, and paid from funds appropriated to, the Judicial Department, however, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund.

      (e) Unless the respondent is represented by counsel, the court shall immediately appoint an attorney to represent the respondent from a list of attorneys admitted to practice in this state provided by the Probate Court Administrator in accordance with regulations adopted by the Probate Court Administrator in accordance with section 45a-77. Such attorney may, unless replaced, attend all examinations preceding the hearing and may copy or inspect any and all reports concerning the respondent.

      (f) The court shall appoint a licensed psychologist from a panel of psychologists provided by the Office of the Probate Court Administrator to examine the respondent. The psychologist shall prepare a report on a form provided by the Probate Court. Such report shall include a statement as to whether the respondent is mentally retarded and an explanation of how the determination was reached. The explanation shall include the results of a psychological assessment within the past year, an interview or observation of the respondent, and an evaluation of adaptive behavior. Such report shall include a statement of the respondent's needs. Duplicate copies of the report shall be filed with the Commissioner of Developmental Services and all attorneys of record at least five days prior to the hearing. The court shall order the psychologist to appear for cross-examination at the request of the respondent if the respondent makes such request at least three days before the hearing.

      (g) If the court, after hearing, finds there is clear and convincing evidence that the respondent is mentally retarded and meets the criteria set out in subsection (a) of this section, it shall order the respondent placed with the Department of Developmental Services for placement in the least restrictive environment available or which can be created within existing resources of the department.

      (h) If, after hearing, the court determines that the respondent's need for placement is so critical as to require immediate placement, the court shall order the respondent to be temporarily placed in the most appropriate available placement. The Department of Developmental Services upon receipt of such order shall place the respondent in such setting and shall proceed according to subsection (i) of this section.

      (i) The Department of Developmental Services, upon receipt of an order pursuant to subsection (g) of this section, shall arrange for an interdisciplinary team to evaluate the respondent, determine the respondent's priority needs for programming and determine the least restrictive environments in which those needs could be met. The Department of Developmental Services shall place the respondent on the waiting list for all facilities which have been identified. If no placement has become available within sixty days, the Commissioner of Developmental Services shall so advise the court and shall continue to report to the court every thirty days thereafter until an appropriate placement is available.

      (j) Upon receipt of a report under subsection (i) of this section, the Court of Probate, if it determines that the respondent's need is so critical as to require immediate placement, shall order the respondent to be temporarily placed in the most appropriate available placement.

      (k) Any person or agency having reasonable cause to believe that a person is mentally retarded and in need of immediate care and treatment for his safety and welfare, which care and treatment is not being provided by his family or guardian, shall make a written report to the Commissioner of Developmental Services. The report shall contain the name and address of the person believed to be mentally retarded and in need of immediate care and treatment, and his parent or other person responsible for his care, and all evidence forming the basis for such belief and shall be signed and dated by the person making such report. The Commissioner of Developmental Services shall promptly determine whether there is reasonable cause to believe that the person named in the report is mentally retarded and in need of immediate care and treatment, which care and treatment is not being provided by such person's family or guardian, and if the commissioner so determines, shall assume the care and custody of such person. The commissioner or his designee shall, within twenty-four hours, excluding Saturdays, Sundays and legal holidays, after assuming the care and custody of such person, (1) notify the office of protection and advocacy and (2) file an application pursuant to subsection (b) of this section in the court of probate for the district in which such person resided prior to emergency placement. The court of probate in which such application is filed shall assign a time and place for a hearing pursuant to subsection (c) of this section.

      (l) In the event that any person placed under the provisions of this section is recommended for transfer by the Department of Developmental Services, the department shall proceed as required by subsection (c) of section 17a-210 and shall in addition notify the probate court which made the placement.

      (m) Any person who wilfully files or attempts to file, or conspires with any person to file a fraudulent or malicious application for the placement of any person pursuant to this section, shall be fined not more than one thousand dollars or imprisoned not more than five years or both.

      (n) For the purposes of this section, (1) "interdisciplinary team" means a group of persons appointed by the Commissioner of Developmental Services, including a social worker, psychologist, nurse, residential programmer, educational or vocational programmer and such other persons as may be appropriate; (2) "mentally retarded person" means a person who has mental retardation as defined in section 1-1g; (3) "respondent" means a person alleged to be a mentally retarded person for whom an application for placement has been filed; (4) "placement" means placement in a community training home, group home, regional facility or other residential facility for mentally retarded persons.

      (1961, P.A. 489, S. 2; P.A. 75-5, S. 1; 75-420, S. 4, 6; 75-638, S. 6, 23; P.A. 76-153, S. 3; P.A. 77-614, S. 521, 610; P.A. 79-583, S. 1; P.A. 80-311, S. 2, 5; 80-476, S. 351, 352; 80-483, S. 84, 186; P.A. 82-363, S. 1; P.A. 83-295, S. 23; 83-420, S. 4; P.A. 86-41, S. 3, 11; P.A. 88-28, S. 1, 8; P.A. 89-326, S. 6, 7; P.A. 96-170, S. 4, 23; P.A. 97-90, S. 5, 6; P.A. 00-22, S. 1; P.A. 03-278, S. 122; P.A. 07-73, S. 2(a), (b).)

      History: P.A. 75-5 removed references to commitment of epileptic persons and deleted two-year residency requirement for commitment eligibility; P.A. 75-420 replaced welfare commissioner with commissioner of social services; P.A. 75-638 replaced mental retardation office and deputy commissioner with department and commissioner of mental retardation; P.A. 76-153 replaced "certified" psychologist with "licensed" psychologist; Sec. 17-172d transferred to Sec. 19-569d in 1977; P.A. 77-614 replaced commissioner of social services with commissioner of human resources, effective January 1, 1979; P.A. 79-583 essentially rewrote provisions in greater detail, dividing section into Subsecs., referring to placement rather than commitment, broadening eligibility for placement, stating application contents, providing for legal counsel, detailing notice contents, and setting forth respondent's right to relevant information; P.A. 80-311 allowed mental retardation commissioner to make application in Subsec. (a), required commissioner to be notified of application and hearing, placed deadline for holding hearing, required judicial department to compensate counsel of indigent respondent in Subsec. (b) and otherwise merged Subsec. (c) into Subsec. (b), inserted new Subsecs. (c) and (d) re hearing to determine whether person is mentally retarded and in need of care, redesignating former Subsec. (d) as Subsec. (e), deleted former Subsec. (e) re placements and added Subsecs. (f) to (i) re hearing to determine proper placement and other matters regarding placement; P.A. 80-476 repealed amendments enacted in P.A. 80-311; P.A. 80-483 confirmed repeal of amendments enacted in P.A. 80-311; P.A. 82-363 revised criteria and procedures for involuntary placement of mentally retarded persons and provided for placement of such persons with the department of mental retardation; Sec. 19-569d transferred to Sec. 19a-448 in 1983; P.A. 83-295 amended Subsec. (d) to provide that the reasonable compensation for counsel provided to indigent respondents shall be established and paid by the judicial department; P.A. 83-420 amended Subsecs. (a)(4) and (b)(4) by adding language re voluntary admission and opposition to such admission by ward or next of kin, deleting references to placement "being sought or contested"; P.A. 86-41 made technical change in Subsec. (n); P.A. 88-28 made a technical change; P.A. 89-326 amended Subsec. (d) to provide that a psychologist who testifies on behalf of the respondent shall be compensated from the probate court administration fund, rather than by funds appropriated to the judicial department, and that the compensation of counsel provided to indigent respondents shall be established by the probate court administrator, rather than by the judicial department, and be paid from the probate court administration fund, rather than from funds appropriated the judicial department; Sec. 19a-448 transferred to Sec. 17a-274 in 1991; P.A. 96-170 amended Subsec. (d) by changing funding of compensation of counsel from Probate Court Administration Fund to funds appropriated to Judicial Department, unless funds are not included in budget of Judicial Department for such purpose, effective July 1, 1998; (Revisor's note: In codifying Subsec. (d) the Revisors editorially inserted the word "and" in the phrase "... who testify at the hearing, and to an independent diagnostic ..."); P.A. 97-90 revised effective date of P.A. 96-170 but without affecting this section; P.A. 00-22 amended Subsec. (b) by making technical changes and adding provisions re disclosure of the application and records of Probate Court proceedings; P.A. 03-278 made technical changes in Subsec. (c), effective July 9, 2003; pursuant to P.A. 07-73 "Commissioner of Mental Retardation" and "Department of Mental Retardation" were changed editorially by the Revisors to "Commissioner of Developmental Services" and "Department of Developmental Services", effective October 1, 2007.

      See Secs. 17a-280 and 17a-282 re recommitment and transfers of committed mentally retarded persons.

      See Sec. 17a-474 re release and transfer of inmates of humane institutions.

      See Sec. 17b-732 re uniform forms for commitment of minors.

      See Secs. 53a-168, 53a-171 and 53a-171a re penalties for offenses of escape from custody and assisting escape.