Attorney General: Honorable John J. Armstrong, Department of Correction, 1997-016 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General Richard Blumenthal

September 26, 1997

Honorable John J. Armstrong
Commissioner
Department of Correction
24 Wolcott Hill Road
Wethersfield, Connecticut 06109

Dear Commissioner Armstrong:

You have asked the advice of the Office of the Attorney General as to "whether Connecticut General Statute 17a-543 includes the Connecticut Department of Correction and/or whether Connecticut General Statute 17a-540(a) definition of 'facility' includes the Connecticut Department of Correction." It is our opinion that the term "facility" as defined in Conn. Gen. Stat.  17-540(a) does not include correctional facilities, and that the provisions of Conn. Gen. Stat.  17a-543 do not apply to mental health units located within the Department of Correction ("DOC") facilities.

The statutes in question are part of what has become known as the "patients' bill of rights" statutes which include Conn. Gen. Stat.  17a-540 through 17a-550. The term "facility" in Conn. Gen. Stat.  17a-540 is defined as "any inpatient or outpatient hospital, clinic or other facility for the diagnosis, observation or treatment of persons with psychiatric disabilities." The term "patient" is defined in that statute as "any person being treated in a facility." Conn. Gen. Stat.  17a-543 sets forth various procedures governing the medication and treatment of "patients" in "facilities". A review of the statutes contained in the patients' bill of rights and an examination of the relevant legislative history and caselaw, makes it clear that these statutes were not intended to govern the care of inmates in prison mental health units. A sampling of the statutory provisions that lead to this conclusion is as follows:

1. Conn. Gen. Stat.  17a-541 provides that no patient treated in such a "facility" shall be deprived of any personal, property or civil rights, including the right to vote. Inmates are not allowed to exercise most of their property, personal and civil rights, including the right to vote. See, e.g., Conn. Gen. Stat.  9-46 and 9-46a, 18-45a and DOC Administrative Directive 6.10.

2. Conn. Gen. Stat.  17a-542 provides that patients shall actively participate in discharge planning and appropriate aftercare. Inmates who are discharged from prison mental health units are told where they will be transferred to following their discharge and they are not invited to actively participate in that determination. See, e.g., Conn. Gen. Stat.  18-86, 18-86a and 18-91 and DOC Administrative Directive 9.1.

3. Conn. Gen. Stat.  17a-546 contains extensive provisions regarding a patient's mail and telephone calls. The Department of Correction has far more restrictive directives regarding mail and telephone privileges which have been upheld by the Connecticut Supreme Court. See DOC Administrative Directive 10.7; Washington v. Meachum, 238 Conn. 692 (1996).

4. Conn. Gen. Stat.  17a-547 contains provisions relating to a patient's right to receive visitors. In prisons, it is well established that visits are a privilege and not a right. Even visits with lawyers and clergy are regulated for safety and security reasons. See DOC Administrative Directive 10.6; Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227 (1984).

5. Conn. Gen. Stat.  17a-548 allows patients to wear their own clothes, keep their own personal possessions, be present during any search of their possessions and have access to individual storage space. Inmates have not been allowed any of these "rights" except that they may keep a very limited number of strictly regulated personal items. See DOC Administrative Directives 6.8 and 6.10; Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984). It is interesting to note in this section that an exception is made for patients at the Whiting Forensic Division which is a facility operated by the Department of Mental Health. If correctional facilities had been intended to be included within these bill of rights statutes, it would seem that the legislature surely would have specifically exempted them from many of these statutory requirements.

Our position is buttressed by case law examining the origins of the patients' bill of rights. In Mahoney v. Lensink, 213 Conn. 548 (1990), the Connecticut Supreme Court noted that "the act was intended to remedy the then prevailing conditions at state mental health facilities." Id. at 559. Of particular concern to the legislature at the time the act was passed was a task force report on conditions at Fairfield Hills Hospital which " 'inherently must result in violations and limitations of both human and civil rights.' " Id. at 560-561 (emphasis in original).

The legislative history of more recent amendments to the patients' bill of rights provides additional support for our position. During the debate on the floor of the House of Representatives concerning Public Act 93-119, An Act Concerning Searches of Personal Belongings in Mental Health Facilities, Representative Chase described a proposed amendment in the following terms:

Very simply what this amendment does is to make an exception to the rule that someone who has been put into one of our institutions for criminal behavior would not have to be present in order to search their belongings of their room. This would limit it strictly to those individuals who are incarcerated at Whiting or under the jurisdiction of the Whiting Forensic Institute.

36 Conn. H.R. Proc., pt. 8, 1993 Sess. 2895 (April 28, 1993) (remarks of Rep. Chase).

With respect to the same bill, Senator Przybysz stated that "what this bill now does is state that any person except those people that are hospitalized in Whiting Forensic Institute, any person who is in a Department of Mental Health facility must be present during any search of his personal possessions." 36 Conn. Sen. Proc., pt. 6, 1993 Sess. 2116 (May 18, 1993) (remarks of Sen. Przybysz). The focus of the legislature clearly was mental health hospitals, not correctional facilities. The specific exception for individuals in Whiting, without any mention of inmates in mental health units of Department of Correction facilities, makes sense only if it is concluded that the patients' bill of rights does not apply to correctional facilities.

As you correctly noted in your letter of February 7, 1997, the procedures governing the involuntary administration of psychotropic medications in DOC facilities are as outlined by the U.S. Supreme Court in Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028 (1990). As long as DOC continues to comply with the requirements of Washington v. Harper, the due process rights of inmates receiving involuntary psychotropic medication should be satisfied.

Based upon all of the foregoing, it is our opinion that the provisions of Conn. Gen. Stat.  17a-540 and 17a-543 do not apply to Department of Correction facilities.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Richard T. Couture
Assistant Attorney General

RB/RTC/td


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