CLRP Wins Connecticut Supreme Court Challenging Immunity of Conservators, Attorneys and Nursing Homes

In 2005, Daniel Gross, a resident of New York, visited his daughter in Connecticut. He required hospital treatment in Connecticut and hospital staff filed a petition to have Mr. Gross conserved. His court-appointed attorney noted that Mr. Gross was able to take care of himself and had family and a home in New York, but failed to zealously advocate against the appointment of a conservator. After he was conserved, his conservator placed him in a nursing facility, prohibited visitation with his daughter and sold much of his property in New York. An appeal to the Superior Court overturned the conservatorship, describing the probate proceedings as “a terrible miscarriage of justice.”

A lawsuit was filed in federal court against state officers, the probate judge, the court-appointed attorney, conservator and the nursing facility. The federal judge ultimately dismissed all claims against all defendants, primarily on the theory that the probate judge had judicial immunity and everyone else operated under his orders and therefore had quasi-judicial immunity. CLRP appealed the case to the United States Court of Appeals for the Second Circuit, which held that the probate judge has judicial immunity, but the state law on the immunity of other parties was not clear. The federal court asked the Connecticut Supreme Court to rule on these questions.

On October 24th CLRP Staff Attorney Sally Zanger presented her argument before the Connecticut Supreme Court in the case of Gross v Rell, which raised the legal question of the extent of immunity that should be given to conservators and attorneys when they violate the rights of conserved persons. The court issued a decision in the case. The Court found lawyers have a fiduciary duty to their clients, not the court and the court stressed that attorneys do not have immunity and must be zealous advocates for the client’s expressed preferences, even if the client has a disability and even if the attorney does not believe it is in the client’s best interests. They found that exceptions to this can be made only in extraordinary circumstances. This ethical responsibility of attorneys has been a recurring source of tension and sometimes conflict between CLRP attorneys and paralegals and DMHAS funded clinical professionals who have asserted that CLRP should advance the “best interests” of our clients.

Two other significant elements of this ruling will have dramatic repercussions for CLRP clients. First, the court held that conservators have immunity for their actions only to the extent that those actions are specifically authorized or subsequently ratified by the Probate Court. Second, the court found no legal basis for the frequent practice of Probate Courts of “committing” a person to the locked ward of a nursing home. The decision stressed that the role of a nursing home is to provide care, not to interfere with the individual liberty of the persons under their care, and has no immunity for violating the rights of their residents with conservators.

This decision reinforces the importance of educating conservators, attorneys and Probate Court judges about recovery and the rights of persons with mental illness. CLRP hopes to collaborate with DMHAS and others to conduct outreach and education to accomplish this goal.