Code Section Group

Welfare and Institutions Code - WIC

DIVISION 4.5. SERVICES FOR THE DEVELOPMENTALLY DISABLED [4500 - 4885]

  ( Division 4.5 added by Stats. 1977, Ch. 1252. )

CHAPTER 10. Judicial Review [4800 - 4806]
  ( Chapter 10 added by Stats. 1977, Ch. 1252. )

4800.
  

(a) Every adult who is or has been admitted or committed to a state hospital, developmental center, community care facility, as defined in Section 1502 of the Health and Safety Code, health facility, as defined in Section 1250 of the Health and Safety Code, or any other appropriate placement permitted by law, as a developmentally disabled patient shall have a right to a hearing by writ of habeas corpus for his or her release from the hospital, developmental center, community care facility, or health facility after he or she or any person acting on his or her behalf makes a request for release to any member of the staff of the state hospital, developmental center, community care facility, or health facility or to any employee of a regional center.

(b) The member of the staff or regional center employee to whom a request for release is made shall promptly provide the person making the request for his or her signature or mark a copy of the form set forth below. The member of the staff, or regional center employee, as the case may be, shall fill in his or her own name and the date, and, if the person signs by mark, shall fill in the person’s name, and shall then deliver the completed copy to the medical director of the state hospital or developmental center, the administrator or director of the community care facility, or the administrator or director of the health facility, as the case may be, or his or her designee, notifying him or her of the request. As soon as possible, the person notified shall inform the superior court for the appropriate county, as indicated in Section 4801, of the request for release and shall transmit a copy of the request for release to the person’s parent or conservator together with a statement that notice of judicial proceedings taken pursuant to that request will be forwarded by the court. The copy of the request for release and the notice shall be sent by the person notified by registered or certified mail with proper postage prepaid, addressed to the addressee’s last known address, and with a return receipt requested. The person notified shall also transmit a copy of the request for release and the name and address of the person’s parent or conservator to the court.

(c) Any person who intentionally violates this section is guilty of a misdemeanor.

(d) The form for a request for release shall be substantially as follows:


(Name of the state hospital, developmental center, community care facility, or health facility or regional center) ____ day of ____ 19__

I, ____ (member of the staff of the state hospital, developmental center, community care facility, or health facility or employee of the regional center), have today received a request for the release from ____ (name of state hospital, developmental center, or community care facility) State Hospital, developmental center, community care facility, or health facility of ____ (name of patient) from the undersigned patient on his or her own behalf or from the undersigned person on behalf of the patient.

_____

_____

Signature or mark of patient making request
for release

_____

_____

Signature or mark of person making request
on behalf of patient

(Amended by Stats. 1996, Ch. 1076, Sec. 3. Effective January 1, 1997.)

4801.
  

(a) Judicial review shall be in the superior court for the county in which the state hospital, developmental center, community care facility, or health facility is located, except that, if the adult has been found incompetent to stand trial and has been committed pursuant to Chapter 6 (commencing with Section 1367) of Title 10 of Part 2 of the Penal Code, judicial review shall be in the superior court of the county that determined the question of the mental competence of the defendant. The adult requesting to be released shall be informed of his or her right to counsel by a member of the staff of the state hospital, developmental center, community care facility, or health facility and by the court; and if he or she does not have an attorney for the proceedings, the court shall immediately appoint the public defender or other attorney to assist him or her in the preparation of a petition for the writ of habeas corpus and to represent him or her in the proceedings. The person shall pay the costs of those legal services if he or she is able.

(b) At the time the petition for the writ of habeas corpus is filed with the court, the clerk of the court shall transmit a copy of the petition, together with notification as to the time and place of an evidentiary hearing in the matter, to the parent or conservator of the person seeking release or for whom release is sought and to the director and clients’ rights advocate of the appropriate regional center. Notice shall also be provided to the director of the appropriate developmental center if the person seeking release or for whom release is sought resides in a developmental center. The notice shall be sent by registered or certified mail with proper postage prepaid, addressed to the addressee’s last known address, and with a return receipt requested. The clients’ rights advocate of the appropriate regional center may attend any hearing pursuant to this section to assist in protecting the person’s rights.

(c) The court shall either release the adult or order an evidentiary hearing to be held not sooner than five judicial days nor more than 10 judicial days after the petition and notice described in subdivision (b) are deposited in the United States mail pursuant to this section.

(1) If the person seeking release or for whom release is sought resides in a developmental center or institution for mental disease, the regional center director or designee shall submit to the court, the person’s attorney, and all parties required to be noticed pursuant to subdivision (b) a copy of the most recent completed assessment required by subdivision (c) of Section 4418.25, subdivision (e) of Section 4418.7, or paragraph (9) of subdivision (a) of Section 4648. The regional center shall submit copies of these assessments within two working days of receiving the notice required pursuant to subdivision (b).

(2) Except as provided in paragraph (3), if the court finds (A) that the adult requesting release or for whom release is requested is not developmentally disabled, or (B) that he or she is developmentally disabled and that he or she is able to provide safely for his or her basic personal needs for food, shelter, and clothing, he or she shall be released within 72 hours. If the court finds that he or she is developmentally disabled and that he or she is unable to provide safely for his or her basic personal needs for food, shelter, or clothing, but that a regional center or a willing responsible person or other public or private agency is able to provide for him or her, the court shall release the developmentally disabled adult to the responsible person, regional center, or other public or private agency, as the case may be, subject to any conditions that the court deems proper for the welfare of the developmentally disabled adult and that are consistent with the purposes of this division.

(3) If the person is charged with a violent felony and has been committed to his or her current placement pursuant to Section 1370.1 of the Penal Code or Section 6500, and the court finds (A) that the adult requesting release or for whom release is requested is not a person with a developmental or intellectual disability, or (B) that he or she is able to provide safely for his or her basic personal needs for food, shelter, and clothing, the court shall, before releasing the person, determine that the release will not pose a danger to the health or safety of others due to the person’s known behavior. If the court finds there is no danger pursuant to the finding required by subparagraph (D) of paragraph (1) of subdivision (a) of Section 1370.1 of the Penal Code, the person shall be released within 72 hours. If the person’s release poses a danger to the health or safety of others, the court may grant or deny the request, taking into account the danger to the health or safety of others posed by the person. If the court finds that release of the person can be made subject to conditions that the court deems proper for the preservation of public health and safety and the welfare of the person, the person shall be released subject to those conditions.

(d) If in a proceeding under this section, the court finds that the adult is developmentally disabled and has no parent or conservator, and is in need of a conservator, the court shall order the appropriate regional center or the state department to initiate, or cause to be initiated, proceedings for the appointment of a conservator for the developmentally disabled adult.

(e) This section shall become operative January 1, 1988.

(Amended by Stats. 2013, Ch. 25, Sec. 9. (AB 89) Effective June 27, 2013.)

4802.
  

This chapter shall not be construed to impair the right of a conservator of an adult developmentally disabled patient to remove the patient from the state hospital at any time pursuant to Section 4825.

(Amended by Stats. 1979, Ch. 730.)

4803.
  

If a regional center recommends that a person be admitted to a community care facility or health facility as a developmentally disabled resident, the employee or designee of the regional center responsible for making the recommendations shall certify in writing that neither the person recommended for admission to a community care facility or health facility, nor the parent of a minor or conservator of an adult, if appropriate, nor the person or agency appointed pursuant to subdivision (d) of Section 4548 or subdivision (e) of Section 4705 has made an objection to the admission to the person making the recommendation. The regional center shall transmit the certificate, or a copy thereof, to the community care facility or health facility.

A community care facility or health facility shall not admit any adult as a developmentally disabled patient on recommendation of a regional center unless a copy of the certificate has been transmitted pursuant to this section.

Any person who, knowing that objection to a community care facility or health facility admission has been made, certifies that no objection has been made, shall be guilty of a misdemeanor.

Objections to proposed placements shall be resolved by a fair hearing procedure pursuant to Section 4700.

(Amended by Stats. 2006, Ch. 399, Sec. 9. Effective January 1, 2007.)

4804.
  

Whenever a proceeding is held in a superior court under the provisions of this chapter, involving a person who has been placed in a state hospital located outside the county of residence of the person, the provisions of this section shall apply. The appropriate financial officer or other designated official of the county in which the proceeding is held may make out a statement of all of the costs incurred by the county for the investigation, preparation, and conduct of the proceedings, and the costs of appeal, if any. The statement may be certified by a judge of the superior court of the county. The statement may then be sent to the county of residence of the person, which shall reimburse the county providing the services. If it is not possible to determine the actual county of residence of the person, the statement may be sent to the county in which the person was originally detained, which shall reimburse the county providing the services.

(Amended by Stats. 2002, Ch. 221, Sec. 207. Effective January 1, 2003.)

4805.
  

Objections to proposed transfers between state hospitals shall be resolved pursuant to Chapter 7 (commencing with Section 4700).

(Added by Stats. 1981, Ch. 990, Sec. 4.)

4806.
  

This chapter shall be construed in a manner that affords the adult requesting release all rights under Section 4502, including the right to treatment and habilitation services and supports in the least restrictive environment, and the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.), including the right to receive services in the most integrated setting appropriate.

(Added by Stats. 2013, Ch. 25, Sec. 10. (AB 89) Effective June 27, 2013.)

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