Richard E. MAHONEY, Sr., Administrator (ESTATE OF Richard E. MAHONEY, Jr.), et al.
Brian LENSINK, Commissioner of Mental Retardation, et al.
Argued Oct. 31, 1989.
[213 Conn. 549] Paul J. Lahey, Asst. Atty. Gen., with whom were Richard J. Lynch, Asst. Atty. Gen., and, on the brief, Clarine Nardi Riddle, Atty. Gen., Carl J. Schuman, Former Asst. Atty. Gen., and Andrea Gaines, Asst. Atty. Gen., for appellants-appellees (defendants).
William B. Wynne, for appellees-appellants (plaintiffs).
Lawrence W. Berliner filed a brief for the Office of Protection and Advocacy for Handicapped and Developmentally Disabled Persons as amicus curiae.
Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.
[213 Conn. 550] PETERS, Chief Justice.
This appeal concerns the availability and the scope of the remedy afforded by General Statutes § 17-206k to a voluntary patient in a state mental hospital who claims a deprivation of personal, property and civil rights under General Statutes § 17-206b and a violation of his right to humane and dignified treatment under General Statutes § 17-206c.  The plaintiffs, Richard E. Mahoney, individually and in his capacity as administrator of his son's estate,  and Barbara [213 Conn. 551] Mahoney, individually, brought an action against the commissioners of mental health, state police and mental retardation  upon the death of their son while a patient at Norwich Hospital.  The trial court dismissed this action for lack of subject matter jurisdiction. On appeal, the Appellate Court set aside the judgment of dismissal insofar as the plaintiffs had alleged a violation of § 17-206c but upheld the dismissal with respect to the alleged violation of § 17-206b  and remanded the case for further proceedings. Mahoney v. Lensink, 17 Conn.App. 130, 550 A.2d 1088 (1988). We granted both the defendants' petition for certification; Mahoney v. Lensink, 210 Conn. 806, 554 A.2d 742 (1989); and the plaintiffs' cross petition for certification.  Mahoney v. Lensink, 210 Conn. 806, 554 A.2d 743 (1989). We affirm the Appellate Court's construction of § 17-206k as a waiver of the state's sovereign immunity, but conclude that the administrative and public history of the patients' bill of rights; General Statutes §§ 17-206a [213 Conn. 552] through 17-206k; compels a broader construction of the statutory causes of action thereby created. Accordingly, we now reverse in part.
The Appellate Court's opinion reveals the following factual and procedural history derived from the allegations in the plaintiffs' complaint. The plaintiffs' son, Richard Mahoney, Jr., "was killed when he
jumped from an oil tank reserve located on the grounds of [Norwich] hospital." Mahoney v. Lensink, supra, 17 Conn. App. at 132, 550 A.2d 1088. The decedent was a "voluntary admission patient" at Norwich Hospital; id; alleged to be suffering "from a mental illness that included suicidal tendencies." Id., at 138, 550 A.2d 1088. The plaintiffs alleged that the defendants' failure "to provide proper counseling, medication, supervision or suicide precautions, so as to prevent the decedent from acting on his suicidal tendencies"; id., at 138-39, 550 A.2d 1088; amounted to "negligent, wanton, and willful misconduct" which caused the death of their son. Id., at 132, 550 A.2d 1088. Count ten of the amended complaint, to which this appeal is limited,  claims that this alleged misconduct violated both §§ 17-206b and 17-206c, but it fails to specify what factual allegations are applicable to either statute. Id., at 137-38, 550 A.2d 1088.
Asserting that the doctrine of sovereign immunity barred the plaintiffs from bringing this action against the state or its commissioners, the defendants moved to dismiss the complaint in its entirety on the ground that the trial court lacked subject matter jurisdiction. Id., at 132, 550 A.2d 1088. Because any statutory waiver of sovereign immunity must be narrowly construed, the defendants [213 Conn. 553] argued that § 17-206k's provision for "[a]ny person aggrieved" to "bring a civil action for damages" does not constitute the type of express authorization that signals legislative abrogation of sovereign immunity. Persuaded by this argument, the trial court concluded that " § 17-206k does not constitute legislative consent to a suit for damages against the state or its commissioners," and granted the motion to dismiss. Id., at 133, 550 A.2d 1088.
In the plaintiffs' appeal to the Appellate Court, the defendants did not contest the proposition that patients in state mental health facilities are entitled to the substantive rights afforded by §§ 17-206b and 17-206c. The defendants argued, however, that whatever remedial rights might be afforded to patients in private mental hospitals, patients in state hospitals could pursue their statutory remedies only through recourse to the claims commissioner.  Id., at 135, 550 A.2d 1088. The Appellate Court rejected this distinction. Having determined that patients in state mental health facilities are included among the class of individuals potentially aggrieved by violations of §§ 17-206b and 17-206c, the Appellate Court construed § 17-206k in light of the rights for which it provides remedies. Id., at 135-36, 550 A.2d 1088. Because § 17-206k does not distinguish between remedies available to state facility patients and private facility patients, the Appellate Court concluded that the legislature intended § 17-206k to authorize direct civil actions against the state or its commissioners by patients of state mental health facilities aggrieved by violations of §§ 17-206b and 17-206c. Id., at 136, 550 A.2d 1088.
[213 Conn. 554] The Appellate Court went on to hold, however, that the plaintiffs' complaint failed to allege a cause of action under § 17-206b. Id., at 138, 550 A.2d 1088. The Appellate Court opined that § 17-206b guarantees only that hospitalization or treatment in a mental health facility cannot be used as justification for depriving a patient of a right that a patient otherwise enjoys. Id., at 137-38, 550 A.2d 1088. Because the claimed rights to proper counseling,
medication, and suicide precautions are not rights held absent hospitalization, but instead arise, if at all, as a result of hospitalization, the Appellate Court found no error in the judgment of dismissal with respect to the alleged violations of § 17-206b. Id., at 138, 550 A.2d 1088.
The Appellate Court came to a different conclusion with respect to the plaintiffs' allegations pursuant to § 17-206c. Id., at 140-41, 550 A.2d 1088. Unpersuaded by the defendants' assertion that the guarantee of humane and dignified treatment contemplates only the protection of personal dignity and privacy, such as the right to refuse medication; id., at 138, 550 A.2d 1088; the Appellate Court held that § 17-206c accords a patient a positive right to treatment. Id. The Appellate Court also rejected the defendants' contention that, because a merely negligent failure to afford proper treatment does not constitute a cause of action under 42 U.S.C. § 1983; § 17-206c similarly requires allegations rising above negligence. Id., at 139-40, 550 A.2d 1088. Noting that the federal due process clause is the source for the right to treatment recognized by the federal courts; id.; the Appellate Court reasoned that a right to humane and dignified treatment conferred by statute; § 17-206c; does not necessarily embody federal constraints on an actionable right to treatment. Id., at 140, 550 A.2d 1088. The Appellate Court thus concluded that "[s]ection 17-206c creates a new tort liability based upon a specified course of conduct that is not dependent upon common law negligence." Id.
[213 Conn. 555] The present appeal requires us to resolve three issues. On the defendants' appeal, we must decide whether the Appellate Court erred in construing § 17-206k as an abrogation of the state's sovereign immunity, and in construing § 17-206c to encompass the allegations in the plaintiffs' complaint. On the plaintiffs' cross appeal, we must determine whether their complaint properly invokes the rights conferred upon the decedent by § 17-206b. We affirm the Appellate Court's ruling on the appeal, and reverse its ruling on the cross appeal.
We turn first to the jurisdictional issue, whether § 17-206k, in providing a statutory remedy for those persons aggrieved by violations of any specific provisions of the patients' bill of rights, §§ 17-206a through 17-206k, constitutes an abrogation of sovereign immunity so as to authorize a voluntary patient in a state mental facility to sue the state or its commissioners.  "It is settled law in Connecticut that the state is immune from suit unless, by appropriate legislation, it authorizes or consents to suit." Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 684, 553 A.2d 1104 (1989). A legislative decision to waive sovereign immunity must be manifested either " ' "by the use of express terms or by force of a necessary implication." ' " Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987), quoting Murphy v. Ives, 151 Conn. 259, 262-63, 196 A.2d 596 (1963). Moreover, because such statutes are in derogation of the common law, " '[a]ny statutory waiver of immunity must be narrowly construed'; Struckman v. Burns, supra; and its scope must be confined strictly to the [213 Conn. 556] extent the statute provides. Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979)...." Owner-Operators Independent Drivers Assn. of America v. State, supra, 209 Conn. at 685, 553 A.2d 1104.
In reliance on these accepted principles, the defendants assert that the Appellate Court erred in construing § 17-206k to abrogate the state's sovereign immunity. The defendants maintain that the use of such generalized language as "any person aggrieved" in § 17-206k evinces neither an express intention nor the force of implication necessary to ...