630.635. Procedure when consent not given--review panel to be named--notice and hearing required--appeal--emergency transfers may be made. - Missouri Statutes

Procedure when consent not given--review panel to be named--notice andhearing required--appeal--emergency transfers may be made.

630.635. 1. If a resident in a mental retardation facility,or his parent if he is a minor, or his legal guardian refuses toconsent to the proposed placement, the head of the mentalretardation facility may petition, under the procedures insection 633.135, RSMo, the director of the division of mentalretardation and developmental disabilities to determine whetherthe proposed placement is appropriate under chapter 633, RSMo.

2. If a patient in a mental health facility, or his parentif he is a minor, or his legal guardian refuses to consent to theproposed placement, the head of the mental health facility maypetition the director of the division of comprehensivepsychiatric services to determine whether the proposed placementis appropriate under sections 630.610, 630.615 and 630.620.

3. The director of the division of comprehensive psychiatricservices shall refer the petition to the chairman of the stateadvisory council for his division who shall appoint and convene areview panel composed of three members. At least one member ofthe panel shall be a family member or guardian of a patient whoresides in a mental health facility operated by the department.The remaining members of the panel shall be persons who are fromnongovernmental organizations or groups concerned with theprevention of mental disorders, evaluation, care, treatment orrehabilitation of persons affected by the same conditions as thepatient the department seeks to place and who are familiar withservices and service needs of persons in mental health facilitiesoperated by the department. No member of the panel shall be anofficer or employee of the department.

4. After prompt notice and hearing, the panel shalldetermine whether the proposed placement is appropriate undersections 630.610, 630.615 and 630.620. The hearing shall beelectronically recorded for purposes of obtaining a transcript.The council shall forward the tape recording, recommendedfindings of fact, conclusions of law, and decision to thedirector who shall enter findings of fact, conclusions of law,and the final decision. Notice of the director's decision shallbe sent to the patient, or his parent if he is a minor, or hisguardian by registered mail, return receipt requested. Thedirector shall expedite this review in all respects.

5. If the patient, or his parent if he is a minor, or hisguardian disagrees with the decision of the director, he mayappeal the decision, within thirty days after notice of thedecision is sent, to the circuit court of the county where thepatient or resident, or his parent if he is a minor, or hisguardian resides. The court shall review the record, proceedingsand decision of the director not only under the provisions ofchapter 536, RSMo, but also as to whether or not the head of thefacility or the department sustained its burden of proof that theproposed placement is appropriate under sections 630.110, 630.115and 630.120. The court shall expedite this review in allrespects. Notwithstanding the provisions of section 536.140,RSMo, a court may, for good cause shown, hear and consideradditional competent and material evidence.

6. The notice and procedure for the hearing by the panelshall be in accordance with chapter 536, RSMo.

7. In all proceedings either before the panel or before thecircuit court, the burden of proof shall be upon the head of thefacility to demonstrate by a preponderance of evidence that theproposed placement is appropriate under the criteria set forth insections 630.610, 630.615 and 630.120.

8. Pending the convening of the hearing panel and the finaldecision of the director or the court if the director's decisionis appealed, the department shall not place or discharge thepatient from a facility except that the department maytemporarily transfer such patient in the case of a medicalemergency.

9. There shall be no retaliation against any state employeeas the result of a good faith decision to place the patientwhich is appealed and who testifies during a hearing or otherwiseprovides information or evidence in regard to a proposedplacement.

(L. 1980 H.B. 1724)