Session of 1999
SENATE BILL No. 105
By Committee on Public Health and Welfare
(By Request of the Health Care Reform
Legislative Oversight Committee)
11 AN ACT concerning rights of persons; amending K.S.A. 59-3018 and 76-
12 12b10 and K.S.A. 1998 Supp. 59-2978 and repealing the existing
15 Be it enacted by the Legislature of the State of Kansas:
16 Section 1. K.S.A. 1998 Supp. 59-2978 is hereby amended to read as
17 follows: 59-2978. (a) Every patient being treated in any treatment facility,
18 in addition to all other rights preserved by the provisions of this act, shall
19 have the following rights:
20 (1) To wear the patient's own clothes, keep and use the patient's own
21 personal possessions including toilet articles and keep and be allowed to
22 spend the patient's own money;
23 (2) to communicate by all reasonable means with a reasonable num-
24 ber of persons at reasonable hours of the day and night, including both
25 to make and receive confidential telephone calls, and by letter, both to
26 mail and receive unopened correspondence, except that if the head of
27 the treatment facility should deny a patient's right to mail or to receive
28 unopened correspondence under the provisions of subsection (b), such
29 correspondence shall be opened and examined in the presence of the
31 (3) to conjugal visits if facilities are available for such visits;
32 (4) to receive visitors in reasonable numbers and at reasonable times
33 each day;
34 (5) to refuse involuntary labor other than the housekeeping of the
35 patient's own bedroom and bathroom, provided that nothing herein shall
36 be construed so as to prohibit a patient from performing labor as a part
37 of a therapeutic program to which the patient has given their written
38 consent and for which the patient receives reasonable compensation;
39 (6) not to be subject to such procedures as
40 shock therapy, experimental medication, aversion therapy or hazardous
41 treatment procedures without the written consent of the patient or the
42 written consent of a parent or legal guardian, if such patient is a minor
43 or has a legal guardian provided that the guardian has obtained authority
44 to consent to such from the court which has venue over the guardianship
45 following a hearing held for that purpose;
46 (7) to have explained, the nature of all medications prescribed, the
47 reason for the prescription and the most common side effects and, if
48 requested, the nature of any other treatments ordered;
49 (8) to communicate by letter with the secretary of social and reha-
50 bilitation services, the head of the treatment facility and any court, attor-
51 ney, physician, psychologist, or minister of religion, including a Christian
52 Science practitioner. All such communications shall be forwarded at once
53 to the addressee without examination and communications from such
54 persons shall be delivered to the patient without examination;
55 (9) to contact or consult privately with the patient's physician or psy-
56 chologist, minister of religion, including a Christian Science practitioner,
57 legal guardian or attorney at any time and if the patient is a minor, their
59 (10) to be visited by the patient's physician, psychologist, minister of
60 religion, including a Christian Science practitioner, legal guardian or at-
61 torney at any time and if the patient is a minor, their parent;
62 (11) to be informed orally and in writing of their rights under this
63 section upon admission to a treatment facility; and
64 (12) to be treated humanely consistent with generally accepted ethics
65 and practices.
66 (b) The head of the treatment facility may, for good cause only, re-
67 strict a patient's rights under this section, except that the rights enumer-
68 ated in subsections (a)(5) through (a)(12), and the right to mail any cor-
69 respondence which does not violate postal regulations, shall not be
70 restricted by the head of the treatment facility under any circumstances.
71 Each treatment facility shall adopt regulations governing the conduct of
72 all patients being treated in such treatment facility, which regulations shall
73 be consistent with the provisions of this section. A statement explaining
74 the reasons for any restriction of a patient's rights shall be immediately
75 entered on such patient's medical record and copies of such statement
76 shall be made available to the patient or to the parent, or legal guardian
77 if such patient is a minor or has a legal guardian, and to the patient's
78 attorney. In addition, notice of any restriction of a patient's rights shall
79 be communicated to the patient in a timely fashion.
80 (c) Any person willfully depriving any patient of the rights protected
81 by this section, except for the restriction of such rights in accordance with
82 the provisions of subsection (b) or in accordance with a properly obtained
83 court order, shall be guilty of a class C misdemeanor.
84 Sec. 2. K.S.A. 59-3018 is hereby amended to read as follows: 59-
85 3018. (a) A guardian shall be subject to the control and direction of the
86 court at all times and in all things. It is the general duty of an individual
87 or corporation appointed to serve as a guardian to carry out diligently and
88 in good faith the specific duties and powers assigned by the court. In
89 carrying out these duties and powers, the guardian shall assure that per-
90 sonal, civil and human rights of the ward or minor whom the guardian
91 services are protected.
92 (b) The guardian of a minor shall be entitled to the custody and con-
93 trol of the ward and shall provide for the ward's education, support and
95 (c) A limited guardian shall have only such of the general duties and
96 powers herein set out as shall be specifically set forth in the dispositional
97 order pursuant to K.S.A. 59-3013 and amendments thereto and as shall
98 also be specifically set forth in "Letters of Limited Guardianship" pur-
99 suant to K.S.A. 59-3014 and amendments thereto.
100 (d) A guardian shall have all of the general duties and powers as set
101 out herein and as also set out in the dispositional order and in the letters
102 of guardianship.
103 (e) The general powers and duties of a guardian shall be to take
104 charge of the person of the ward and to provide for the ward's care,
105 treatment, habilitation, education, support and maintenance and to file
106 an annual accounting. The powers and duties shall include, but not be
107 limited to, the following:
108 (1) Assuring that the ward resides in the least restrictive setting rea-
109 sonably available;
110 (2) assuring that the ward receives medical care or nonmedical re-
111 medial care and other services that are needed;
112 (3) promoting and protecting the care, comfort, safety, health and
113 welfare of the ward;
114 (4) providing required consents on behalf of the ward;
115 (5) exercising all powers and discharging all duties necessary or
116 proper to implement the provisions of this section.
117 (f) A guardian of a ward is not obligated by virtue of the guardian's
118 appointment to use the guardian's own financial resources for the support
119 of the ward.
120 (g) A guardian shall not have the power:
121 (1) To place a ward in a facility or institution, other than a treatment
122 facility, unless the placement of the ward has been approved by the court.
123 (2) To place a ward in a treatment facility unless approved by the
124 court, except that a ward shall not be placed in a state psychiatric hospital
125 or state institution for the mentally retarded unless authorized by the
126 court pursuant to K.S.A. 59-3018a.
127 (3) To consent, on behalf of a ward, to
psychosurgery, removal of a
128 bodily organ, or amputation of a limb unless the procedure is first ap-
129 proved by order of the court or is necessary, in an emergency situation,
130 to preserve the life or prevent serious impairment of the physical health
131 of the ward.
132 (4) To consent on behalf of the ward to the withholding of life-saving
133 medical procedures, except in accordance with provisions of K.S.A. 65-
134 28,101 through 65-28,109, and amendments thereto.
135 (5) To consent on behalf of a ward to the performance of any exper-
136 imental biomedical or behavioral procedure or to participation in any
137 biomedical or behavioral experiment without the review and approval by
138 an institutional review board under title 45, part 46 of the code of federal
139 regulations, where title 45, part 46 of the code of federal regulations
140 applies, or by a review committee where title 45, part 46, of the code of
141 federal regulations does not apply unless:
142 (A) It is intended to preserve the life or prevent serious impairment
143 of the physical health of the ward and it does not involve the application
144 of aversive stimulation; or
145 (B) it involves a behavioral procedure or experiment that does not
146 involve the application of aversive stimulation; or
147 (C) it is intended to assist the ward to develop or regain that person's
148 abilities and has been approved for that person by the court; and
149 (D) in the case of any procedure or experiment involving the appli-
150 cation of aversive stimulation, the procedure or experiment has been ap-
151 proved by the court.
152 No public or private entity or agency shall require or allow a ward to
153 perform any experimental biomedical or behavioral procedure or to par-
154 ticipate in any biomedical or behavioral experiment without the consent
155 of the guardian.
156 (6) To prohibit the marriage or divorce of a ward.
157 (7) To consent, on behalf of a ward, to the termination of the ward's
158 parental rights.
159 (8) To consent, on behalf of a ward, to sterilization of the ward, unless
160 the procedure is first approved by order of the court after a full due
161 process hearing where the ward is represented by a guardian ad litem.
162 (h) The guardian shall at least annually file a report concerning the
163 personal status of the ward as provided by K.S.A. 59-3029 and amend-
164 ments thereto.
165 Sec. 3. K.S.A. 76-12b10 is hereby amended to read as follows: 76-
166 12b10. (a) Every person admitted to an institution, in addition to all other
167 rights preserved by the provisions of this act, shall have the following
169 (1) To be fully informed of all rights and responsibilities available to
170 or required of persons admitted to the institution;
171 (2) to have the natural guardian or guardian of the person fully in-
172 formed of all rights and responsibilities available to or required of persons
173 admitted to the institution;
174 (3) to be fully informed of and offered the opportunity to participate
175 in an individual plan of care and training;
176 (4) to communicate by letter with the secretary, commissioner of
177 mental health and developmental disabilities, superintendent of the in-
178 stitution, any court, physician, attorney, natural guardian or guardian, and
179 all such communication shall be forwarded at once to the addressee with-
180 out examination and communications from such persons shall be deliv-
181 ered to the person without examination;
182 (5) to manage personal and financial affairs to the extent possible;
183 (6) to be free from mental and physical abuse;
184 (7) not to be subject to such procedures as
185 shock therapy, experimental medication, aversion therapy or hazardous
186 treatment procedures without the written consent of the person or the
187 written consent, as appropriate, of a parent or guardian;
188 (8) to be treated with respect and full recognition of dignity and in-
189 dividuality including privacy and confidentiality;
190 (9) to be free from involuntary labor and to be paid for any work
191 performed other than personal housekeeping;
192 (10) to be free to communicate, associate and meet privately with
193 individuals of choice including sending and receiving mail unopened;
194 (11) to participate in social, religious and community group activities
195 to the extent possible; and
196 (12) to retain and use personal possessions and clothing.
197 (b) The superintendent of an institution may, for good cause only,
198 restrict a person's rights under this section, except that the rights enu-
199 merated in subsections (a) (1), (2), (3), (4), (6) and (8), and the right to
200 mail any correspondence which does not violate postal regulations, shall
201 not be restricted by the superintendent of an institution under any cir-
202 cumstances. A statement explaining the reasons for any restriction of a
203 person's rights shall be immediately entered on such person's treatment
204 record and copies of such statement shall be sent to the person and the
205 natural guardian or guardian of the person.
206 (c) Each institution shall adopt policies governing the conduct of all
207 persons receiving care and training in such institution, which policies shall
208 be consistent with the provisions of this section.
209 (d) Any person willfully depriving any person of the rights protected
210 by this section, except for the restriction of such rights in accordance with
211 the provisions of subsection (b), shall be guilty of a class C misdemeanor.
212 Sec. 4. K.S.A. 59-3018 and 76-12b10 and K.S.A. 1998 Supp. 59-2978
213 are hereby repealed.
214 Sec. 5. This act shall take effect and be in force from and after its
215 publication in the statute book.