Safe Choices 14 – State seeks protection from lawsuit

by Paul Lefebvre

copyright the Chronicle June 24, 2009

NEWPORT — An attempt by the state to allow a client of Safe Choices his freedom on the condition he waive his right to bring a suit against it appeared to gain little traction here in a hearing last week in Family Court.
Judge Robert Bent questioned if anyone has authority to prevent someone from suing the state.
“I think the law frowns on the extraction of those kind of requirements,” he said.
The hearing last Wednesday, June 17, was the latest chapter in a struggle by George St. Francis to be released from the supervision of a state guardian and put into the hands of one of his own choosing.
The case involves a 31-year-old man who has been a participant in the Safe Choices program for roughly 12 years. The program, which includes residential treatment centers like the Lowell House, was founded about 15 years ago as a way to deal with sex offenders who, because of low intelligence, are incompetent to stand trial in a criminal court.
The program has grown to include men, like Mr. St. Francis, who at the time of their placement in the program had not been charged with a sex crime, but were deemed to be at risk of offending.
Mr. St. Francis stepped into the public eye last fall when the probate court ordered the Office of the Public Guardian and much of the staff of the Safe Choices program to “refrain from any and all acts constituting abuse, retaliation, intimidation, humiliation, ridicule, exploitation, threat, or harassment” of him.
Since his case became public, others familiar with the program, including former clients and staff, have sharply criticized the way the program is being run and its failure to reintegrate clients into the community.
Assistant attorney general Jennifer Myka, representing the Department of Disabilities, Aging and Independent Living (DAIL), has fought against opening the case to public scrutiny on grounds of protecting Mr. St. Francis’ confidentiality as a client of the state.
Last week she told the court she would agree to a guardian transfer only if Mr. Francis complies with certain conditions.
Just what those conditions are — and who should see them — formed much of the basis for the court hearing last week.
The most controversial of the conditions was an insistence by Ms. Myka that the transfer of guardians would only be permissible if Mr. St. Francis agreed not to sue the state.
“We feel it is not in Mr. St. Francis’ interest to continue to live a life of continued litigation regarding perceived negative actions by the state,” said Ms. Myka, after telling the court that litigation between the two parties has been going on for five or six years.
“There have been a host of statements and allegations made,” she said, characterizing some of them as inflammatory.
Tim Yarrow, who represents Mr. St. Francis, said he opposed any condition that prevented his client from suing the state.
“I’m not sure as his attorney I have the authority to make such a stipulation on his behalf,” he said at one point during the hearing. “I don’t believe the court has that authority either.”
Also at issue before the court was what records in the case should be made available to the public.
Through its attorney, Phil White, the Chronicle has requested access to files and continued access to hearings before Orleans County Family Court.
At an earlier hearing in February, the newspaper said it was not seeking access to confidential records dealing with Mr. St. Francis’ medical or mental health, or any evaluations stemming from his developmental disabilities.
In a recent written order, Judge Bent noted that the court is prohibited from disclosing any confidential information without Mr. St. Francis’ permission. The judge also found it would be “contrary to law” for the court to disclose an assessment prepared by a mental health official to determine the “degree of risk” Mr. St. Francis poses to the public.
As for other documents in the file, the court was uncertain how to proceed. Writing in March, Judge Bent said it was unclear in the case what the “appropriate balance is between disclosure and confidentiality.”
There were no rulings in last week’s hearing to clear up the uncertainty. What did emerge were instructions for the parties to sit down and have a face-to-face meeting on what issues still stand in the way of granting Mr. St. Francis a guardian of his own choosing.
The judge said that within two weeks he wants either a stipulation that would settle the matter or an outline of the issues the parties want the court to decide. Among those issues is the matter of public access, and what information in Mr. St. Francis’ case file may be sensitive enough to be redacted before making it public.
The paper wants access to any files concerning the transfer of guardianship and any conditions imposed on the proposed transfer.
Also present at the hearing last week was Janet Reed, the proposed private guardian for Mr. St. Francis; her attorney, Dan Keenan; and Connie Daigle, the guardian ad litem for Mr. St. Francis in any legal proceeding. Also present was Mr. St. Francis himself.
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