668 F.Supp. 597 (W.D.Ky. 1986), Civ. A. C 82-0738, Doe by Doe v. Austin

Docket Nº:Civ. A. C 82-0738
Citation:668 F.Supp. 597
Party Name:Doe by Doe v. Austin
Case Date:November 20, 1986
Court:United States District Courts, 6th Circuit, Western District of Kentucky
 
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Page 597

668 F.Supp. 597 (W.D.Ky. 1986)

Samuel DOE, by his mother and next friend, Mary DOE, Plaintiffs,

v.

Al AUSTIN, Secretary for Cabinet for Human Resources, Defendant.

Civ. A. No. C 82-0738-L(A).

United States District Court, W.D. Kentucky, Louisville Division.

Nov. 20, 1986

Page 598

Kelly A. Miller, Legal Aid Society, Inc., Louisville, Ky., Richard W. McHugh, Intern. Union, UAW, Detroit, Mich., Nicholas J. Harding, Western Ky. Legal Services, Inc., Paducah, Ky., for plaintiffs.

Robert L. Heleringer, Louisville, Ky., for amicus curiae.

R. Hughes Walker, Gen. Counsel, Stanley A. Stratford, Asst. Gen. Counsel, William K. Moore, Frankfort, Ky., for defendant.

MEMORANDUM OPINION

ALLEN, Senior District Judge.

This action is presented to the Court on the motion of the Plaintiff for preliminary injunction and summary judgment, and on the motion of the Defendant for the Court to reconsider its opinion and partial summary judgment of January 9, 1986.

Since the opinion of January 9, 1986 was rendered, the Kentucky legislature amended K.R.S. Chapter 202B dealing with the commitment of mentally retarded persons. 1986 Ky.Acts ch. 79 (HB 477) at p. 163. These amendments became effective on March 6, 1986 when approved by the Governor. Prior to the enactment of the amendments, the statute provided that "[a]ll rights guaranteed by K.R.S. Chapters 202A and 210 to mentally ill persons shall apply to mentally retarded persons." K.R.S. 202B.050 (1982). These rights included the procedural due process right to a preliminary and final judicial hearing in a district court of the Commonwealth of Kentucky to determine whether the mentally retarded individual should involuntarily be hospitalized in accordance with the applicable statutory criteria. K.R.S. 202A. 051 and K.R.S. 202B.040 (1982).

The 1986 amendments (HB 477) effectively eliminated the rights of mentally retarded persons to a judicial hearing prior to involuntary commitment. K.R.S. 202B.050, as amended, reads as follows:

All rights guaranteed by K.R.S. Chapters 202A (other than those rights enumerated in K.R.S. 202A. 026 and 202A. 051) and K.R.S. Chapter 210 to mentally ill persons shall apply to mentally retarded persons. Id.

Furthermore, a new subsection (5) was added to K.R.S. 202B.040 (1986), which now reads as follows:

When a person who is alleged to be mentally retarded is involuntarily committed, there shall be a determination that:

(1) He is a mentally retarded person;

(2) He presents a danger or a threat of danger to self or others;

(3) The least restrictive alternative mode of treatment requires placement in a hospital or mental retardation residential treatment center;

(4) Treatment that can reasonably benefit the individual is available in the hospital or mental retardation residential treatment center; and

(5) The application by parents or guardians for placement for their retarded family member or ward in any mental retardation treatment center shall not be considered an involuntary commitment under this section, provided the retarded family member's application has been evaluated by an interdisciplinary team as defined in K.R.S. 202B.010 and the subsequent

Page 599

admission fully complies with the provisions of K.R.S. Chapter 202B.

Thus, the statute now contemplates that many, if not most, commitments of the mentally retarded shall not even be considered involuntary. A new section, K.R.S. 202B.045 (1986), spells out the requirements for admission and discharge:

(1) Admission:

(a) Patients shall be admitted only upon the approval of a physician. The facility shall admit only persons who have a physical or mental condition which requires developmental nursing services and a planned program of active treatment;

(b) The interdisciplinary team shall:

1. Conduct a comprehensive evaluation of the individual, not more than three (3) months before admission, covering physical, emotional, social, and cognitive factors; and

2. Prior to admission define the need for service without regard to availability of those services. The team shall review all available and applicable programs of care, treatment, and training...

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