Petition — O'Connor v. Donaldson

Supreme Court brief1974

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—

Supreine Cour U. S.

BIiLED

JUL 25 1574

IN THE mic pat, 2

SUPREME COURT OF THE UNITED ee

OCTOBER TERM, 1973

NO. 74-8 ,

J. B. O'CONNOR, M. D.,

Petitioner,

-Ve-

KENNETH DONALDSON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT L. SHEVIN

Attorney General

DANIEL S. DEARING

Chief Trial Counsel

RAYMOND W. GEAREY

Assistant Attorney General

The Capitol

Tallahassee, Florida 32304

SUBJECT INDEX

Opinion Below . . « « « © « e

Sumpageseesec «© 6 eo oe ee 6

Questions Presented .....

Constitutional Provisions

oN ee ee a

Statutory Provisions

EmwolweG. «© se ee eee

Statement of the Case ....

Reasons for Granting the Writ

Gemeemeeee. «ss se 6 6 6 6 8

Page

14

45

TABLE OF AUTHORITIES

Cases

Anonymous, People ex rel v.

LaBurt, 369 U.S. 428 (1962). .

Anonymous, People ex rel v.

LaBurt, 385 U.S. 936 (1966). .

Beverly's Case, 4 Co.Rep. 123(b),

76 Eng.Rep. 1118 (K.D. 1603) .

Burnham v. Department of Public

Health, 349 F.Supp. 1335 (N.D.

Ga. 1972), appeal docketed,

No. 72-3110 (5th Cir. 10/4/72}

Collins v. Hardyman,

341 U.S. 651 (1951). . . . . .

Collins v. Schoonfield,

363 F.Supp. 1152 (D.Md. 1973).

Donaldson, In re,

364 U.S. 808 (1960). . 7 . ° -

Donaldson v. Florida,

371 U.S. 806 (1963). . . 7 . .

Donaldson v. O'Connor,

390 U.S. 971 (1968). . . . . .

Donaldson v. O'Connor,

400 U.S. 869 (1970). .... -

Eslinger v. Thomas,

476 F.2d 225 (4th Cir. 1973) .

ii

23

34

39

ll

ll

ll

ll

39

TABLE OF AUTHORITIES

Fleming v.

389 U.S.

Fullington

500 (D.Colo.

404 U.S.

Greenwood v.

350 U.S.

Hammer v. Rosen,

216, 181

Hoffman v.

268 F.2d

Humphrey v.

405 U.S.

Jacobson v.

197 U.S.

Lake v. Cameron,

Cases (Cont.)

Adams, 377 F.2d 975,

977 (10th Cir. 1967); cert.

898 (1967). .

den.

v. Shea, 320 F.Supp.

963 (1970). .

366 (1956). .

United States,

7 App.Div.

1970), affirmed

2d

N.Y. S. 2d 805 (1959)

Halden,

280 (9th Cir.

Cady,

504 (1972).

1959)

Massachusetts,

11 (1905) ..

124 U.S.App.D.C.

264, 364 F.2d 657, 663 (1966).

McGowan v.

366 U.S.

McKinney v.

Maryland,

420 (1961). .

DeBord,

.

324 F.Supp. 928 (E.D.Cal.

Niklaus v.

Simmons,

196 F.Supp. 691 (D.Neb.

Oakes, In re Josiah,

8 L.Rep.

123 (1845-46)

iii

1970).

1961).

35

34

28

30

40

14

33

25

34

39

34

18

Sa

TABLE OF AUTHORITIES

Cases (Cont.)

Ogden v. Saunders,

12 Wheat. 213, 281-82 (1827) ..

Penn Dairies v. Milk Control

Commission, 318 U.S. 261 (1943).

Pierson v. Ray,

386 U.S. 547, 555-557

(1967. * : * o . 7 . . . . . - 39,

Prince v. Massachusetts,

3213 U8. 196 (1966). « © © eo 2

Rouse v. Cameron, 373 F.2d 451,

457, n. 30 (D.C. Cir. 1966)

. * = 7 . - > 22, 23, 28, 30, 35,

Skinner v. Spellman,

480 F.2d 539 (4th Cir. 1973) ..

Smith v. Clapp, 436 F.2d 590,

(3rd Cir. 1970) . . . . . . . . .

Southern Pacific R.R. Co. v.

United States, 189 U.S. 447,

450 (1903) . . . . - ’ . . . . .

Stachulak v. Coughlin,

364 F.Supp. 686 (N.D. Ill. 1973)

Stephens, United States ex rel v.

LaBurt, 373 U.S. 928 (1963)...

Taylor v. Perini,

365 F.Supp. 557 (N.D.Ohio 1972).

iv

43

33

40

33

44

39

31

39

23

ll

39

TABLE OF AUTHORITIES

Cases (Cont.)

United States v. Klein,

325 F.2d 283, 286 (2nd Cir. 1963). 27

Welsch v. Likins,

373 F.Supp. 487 (D.Minn. 1974) . . 23

Westberry v. Fisher,

309 F.Supp. 12 (D.Me. 1970). ... 39

Wyatt v. Stickney, 325 F.Supp. 781

(M.D.Ala. 1971), on submission

eof proposed standards, 334 F.Supp.

1341, enforced, 344 F.Supp. 373,

387, Appeal docketed sub non,

Wyatt v. Aderhold, No. 72-2634

(Sth Cir. 8/1/73). . . . « 23, 26, 44

United States Constitution

Amendment XIV, §l. > e = * . . . >. 2

Federal Statutes

28 U.S.C. §1254(1) . 2. 2 w= we we ew we 2

28 U.S.C. §1343(3) . .-. « « 3, 12, 34

28 U.S.C. §§2281, 2284 . . . . »- « « 12

42 U.S.C. §1983. . ... 3, 12, 34, 39

TABLE OF AUTHORITIES

State Statutes and Codes

§47.30.130, Alaska Statutes

(1969 Supp.)

§7104, California Wel.

Code (1969 Supp.).

>.

& Inst.

Law Reviews, Books and Articles

American Psychiatric Association,

A Position Statement in the

Question of Treatment,

Psychiatry 1458, 1459, 1460

(1967) ..

Bazelon, Implementing the Right

to Treatment, 36 U.Chi.L. Rev.

742 (1969)

Birnbaum,

Right,

Birnbaum,

123 Am.J.

A Rationale for the

57 Geo.L.J.

752 (1969).

Some Remarks on the

Right to Treatment, 23 Ala.L.Rev.

623,

235-636 (1971).

1 W. Blackstone, Commentaries,

303-307 (9th ed. 1783)

Cameron, Nonmedical Judgment of

Medical Matters,

716 (1969)

57 Geo.L.J.

vi

10,

24,

42

43

29

28

37

37

16

ae

TABLE OF AUTHORITIES

Law Reviews, Books and Articles (cont.)

J. Frank, Persuasion and Healing --

A Comparative Study of

Psychotherapy (1961) ...... 42

Halpern, A Practicing Lawyer

Views the Right to Treatment,

57 Geo.L.J. 782, 786-787, n. 19,

O01 (1969) . «© «© «© © © © © 0 @ Shy 43

Holmes, Uncollected

Letters, 66. _ . . . . . . . . * 43

J. Katz, Psychoanalysis,

Psychiatry and Law, 728-

752 (1967) « we e we eee wee 30

Katz, The Right to Treatment --

An Enchanting Legal Fiction?

36 U. of Chi. L.R. 755 (1969). 24, 43

M. Levine, Psychotherapy in

Medical Practice 17-19 (1942). . 24

A. Miles, An Introduction to

Public Welfare, 79 (1949)... . 17

Miller, Cases and Materials on

Criminal Justice, Administration

and Related Processes -- The

Mental Health Process, 1663 (1971).42

vii

TABLE OF AUTHORITIES

Law Reviews, Books and Articles (Cont.)

Note, Guaranteeing Treatment for

the Committed Mental Patient:

The Troubled Enforcement’ of an

Elusive Right, 32 Md.L.Rev. 42

(1972) «© e ec eevee e ee eee 24

Note, The Nascent Right to

Treatment, 53 Va.L.Rev. 1134,

1140 (1967). . . «© «© « © «© « « 19, 43

2F. Pollack, The History of

English Law (2nd ed. 1911) ... 16

Reisner, Psychiatric Hospitalization

and the Constitution: Some

Observation on Emerging Trends . 31

Ross, Commitment of the

Mentally Ill: Problems of

Law and Policy, 57 Mich.L. Rev.

945 (3999) «© se ec eee ec eese 19

Szasz, The Right to Health,

57 Geo.L.J. 734, 741, 743 (1969) 25

Szasz, The Right to Psychiatric

Treatment: Rhetoric and Reality,

57 L.J. 740 (1969) . o . . . . . 24

I Winthrops Journal, p. 144,

Reprinted in the History of New

England 1630-1649, by the

Massachusetts Historical

Society. «cesses ee 8 © @ ®@ 17

viii

TABLE OF AUTHORITIES

Law Reviews, Books and Articles (Cont.)

G. Zolborg, A History of

Medical Psychology (1941)... . 19

1-4, Current Psychiatric

Therapies, (J. Masserman ed.

1961-64) .- .-_ © . « -_ © © #© « 24

5 Records of the Governor and

Company of the Massachusetts

Bay in New England

SO (1854). . «© © ee ee eevee 17

Civil Commitment of the Mentally

Ill: Theories and Procedures

79 Harv.L.Rev. 1288 (1966) ... 19

IX

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1973

No.

J. B. O'CONNOR, M. D.,

Petitioner,

-V-

KENNETH DONALDSON,

Respondent.

The Petitioner, J. B. O'Connor,

M. D., respectfully prays that a writ

of certiorari issue to review the

judgment and opinion of the United

States Court of Appeals for the Fifth

Circuit entered in the above case on

April 26, 1974.

Opinion Below

The Opinion of the Court of Appeals

is reported at 493 F.2d 507. No

opinion was rendered by the District

Court for the Northern District of

Florida.

Jurisdiction

The opinion and judgment of the Court

of Appeals for the Fifth Circuit were

entered on April 26, 1974, and copies

thereof are appended to this Petition

in the Appendix. This Petition was

filed within ninety days of the above

date. The jurisdiction of this

Court is invoked under 28 U.S.C.

§1254(1).

Questions Presented

(1) Whether there is a constitutional

right to treatment for persons invol-

untarily committed to a state mental

hospital.

(2) Whether, assuming there is a

constitutional right to treatment,

staff members at a state mental

hospital are liable for monetary

damages in a suit under the civil

rights act.

(3) Whether, assuming there is a

constitutional right to treatment,

the patient in this case waived

that right.

Constitutional Provisions Involved

Constitution of the United States of

America, Amendment XIV, §1:

All persons born or naturalized

in the United States, and

subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No State

42

28

shall make or enforce any law

which shall abridge the privi-

leges or immunities of citizens

of the United States; nor shall

any State deprive any person

of life, liberty, or property,

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

Statutory Provisions Involved

U.S.C. §1983:

Every person, who, under color

of any statute, ordinance,

regulation, custom, or usage,

of any State or Territory,

subjects, or causes to be

subjected, any citizen of the

United States or other person

within the jurisdiction there-

of to the deprivation of any

rights, privileges, or immun-

ities secured by the Constitu-

tion and laws, shall be liable

to the party injured in an

action at law, suit in equity,

or other proper proceeding

for redress.

U.S.C. §1343(3):

To redress the deprivation,

under color of any State law,

statute, ordinance, regulation,

custom or usage, of any right,

privilege or immunity secured

Donaldson was examined by a Dr. Clark

Adair. The examination revealed that

Donaldson expressed delusions of perse-

by the Constitution of the United

States or by any Act of Congress

providing for equal rights of

citizens or of all persons within cution for which he blamed "rich Repub-

the jurisdiction of the United licans" and believed that the "Foreign

States. Policy Association" had attempted to

poison him by placing chemicals in his

food. The diagnosis was Schizophrenia,

Statement of the Case Paranoid Type.

At the time of his admission, Donald-

Kenneth Donaldson, the Respondent, was son, a Christian Scientist, requested

involuntarily committed to the Florida that no medicine or shock therapy be

State Hospital, Chattahoochee, Florida, administered and he consistently refused

on January 3, 1957, by a county court repeated offers of such forms of therapy

judge of Pinellas County, Florida, during his commitment. In addition,

pursuant to Chapter 394, Florida he frequently refused offers of other

Statutes. The commitment order stated non-medical forms of therapy as well.

his incompetency was due to paranoid ; ,

schizophrenia with auditory and visual At the time Donaldson was admitted to

hallucinations and delusions. The the hospital in 1957, the Petitioner,

order further stated that Donaldson, Dr. O'Connor, was Assistant Clinical

age 50, a resident of four years, Director. He was in charge of the

required restraint to prevent self- ward where Donaldson was assigned upon

injury or violence to others. Two admission. In that position, Dr.

physicians served as the investigating O'Connor was Donaldson's attending

committee for the proceedings. physician. Dr. Gumanis, a co-defendant

below, was a staff physician.

Prior to the Florida commitment,

Donaldson had been a patient at Marcy On July 1, 1959, Dr. O'Connor became

State Hospital in New York from March 12, Clinical Director of the hospital, and

1943, to June 26, 1943. At that time, later that year, Dr. Gumanis succeeded

his problems were described as auditory | him as Donaldson's attending physician.

hallacinations, ideas of reference, Dr. O'Connor was subsequently promoted

and jelusions of persecution. The med- to Superintendent of the hospital on

ical description was Dementia Praecox, July 30, 1963, and served in that

Paranoid Type, presently called capacity until he retired February l,

Schizophrenic Reac ion, Paranoid Type. 1971. Dr. Gumanis served as Donaldson's

attending physician until April 18, 1967.

In January, 1957, at the time of his At that time, Dr. Israel Hanenson became

admission to Florida State Hospital, Donaldson's attending physician until

Dr. Hanenson's death in the fall of 1970.

From that time until his release on

July 31, 1971, Donaldson was treated by

Dr. Jesus Rodriquez.

In 1959, Florida State Hospital at

Chattahoochee provided services for

1,736,540 patient days per year. In 1970,

Florida State Hospital provided services

for 1,351,000 patient days per year,

compared to 21,790 patient days in the

psychiatric section of one of Florida's

largest, non-government hospitals, Tampa

General Hospital, for the fiscal year

1967-1968.

During Mr. Donaldson's assignment to

Department A of Florida State Hospital,

there were two doctors available; making

a doctor patient ratio, at times, of

560/1000 patients for each doctor. In

1960, two doctors were responsible for

1000 patients. Previously, only one

doctor had this responsibility. During

Donaldson's stay in Department C of the

hospital, there was one physician and one

psychiatrist for approximately 800

patients.

In 1970, Florida State Hospital

provided services for 1,351,000 patient

days per year with a staff of 17

psychiatrists, seven physicians, and

four psychologists, a total of 28

legislatively approved treating-type

positions. Only 50% of each doctor's

time was available for psychiatry. The

remainder had to be devoted to medical

matters and administration.

The American Psychological Association

describes the optimum doctor-patient ratio

to be one psychiatrist for each 50 acutely

ill patients and one psychiatrist for

each 125 chronically ill patients. There

were approximately 200-500 acutely ill

patients alone at Florida State Hospital

during the time in question here.

Throughout the time Dr. O'Connor was

Donaldson's attending physician, Donald-

son continued to refuse to receive

medication and shock treatment due to

religious views. It should be noted

that a prior exposure to such treatment

in New York had been somewhat successful.

This refusal continued when Dr. Gumanis

assumed responsibility in 1959. During

the approximately six and one-half years

Donaldson was in Dr. Gumanis' care,

written notes indicate he had consultation

with staff doctors at least 51 times.

Testimony at trial indicated that many

other consultations probably occurred,

but were not recorded.

Psychological examinations conducted

in 1960 and 1961 showed no significant

change from previous findings of

incompetancy. During June, 1963,

Helping Hands, a Minneapolis group,

requested information about Donaldson and

sought his release. Dr. Gumanis and

Dr. O'Connor denied the suggested

release because Donaldson continued to

require strict supervision. Psychological

tests administered in 1964 continued to

show no significant changes in Donaldson's

condition. An earlier test, scheduled

late in 1963, had been refused by

Donaldson.

During January, 1964, a meeting of

nine members of the staff recommended

continued hospitalization. The written

opinion of the staff, issued following

the meeting with Donaldson, found him

dangerous to others and recommended

further hospitalization. Donaldson

complained to a member of the state

legislature who subsequently arranged

an interview and examination by an

independent psychiatrist, Dr. Franklin J.

Calhoun. Dr. Calhoun concluded:

That the results of my

examination were in complete

accord with the diagnostic

evaluation of the hospital

staff. This man has the type

of mental illness that is most

difficult for lay persons to

detect. Even a psychologist

or psychiatrist could be

‘fooled' by Mr. Donaldson un-

less certain types of psy-

chological tests are included

in the evaluation. Unless his

condition has greatly improved

since my examination, I still

feel very strongly that Mr.

Donaldson is ill, dangerous

to society, and should remain

hospitalized.

During the summer of 1964, a Mr. John

Lembcke, a certified public accountant,

in Binghamton, New York, and a former

classmate of Donaldson's at Syracuse

University in the 1920's, began seeking

Donaldson's release. Mr. Lembcke made

four attempts between 1964 and 1968 to

obtain Donaldson's release. All requests

for release were denied due to the

Opinion of the staff that Donaldson was

dangerous to himself and others, and

required strict supervision and treatment

which they believed Mr. Lembecke would be

unable to provide.

During 1966, Donaldson again refused

a psychological examination and continued

to refuse traditional forms of medication

and shock therapy, but did participate

in mileau therapy, religious therapy and

recreational therapy.

On April 18, 1967, Donaldson was

placed under the care of Dr. Hanenson who

ordered another set of psychological

tests. The examination, conducted July

13, 1967, showed no significant improve-

ment in Donaldson's condition. Dr.

Hanenson ordered another test sequence

on March 13, 1968, at which time

Donaldson showed the first signs of

improvement since 1957. Possible trial

visits were suggested. On March 21, 1968,

Dr. Hanenson presented Donaldson to a

staff meeting. The staff found improve-

ment in his condition and suggested trial

visits. Although Donaldson was approved

for trial visits, Dr. O'Connor

rejected Mr. Lembcke's suggestions of a

complete release.

On September 9, 1968, Donaldson was

given to a work assignment and granted

grounds privileges. Testing conducted

during November, 1969, indicated release

at an early date. A report was submitted

to Dr. O'Connor on February 6, 1970, and

another, summarizing all psychological

testing was submitted on March 27, 1970.

Another physician, Dr. F. D. Walls,

eee, eee

10 ll

examined Donaldson and reported un- denied certiorari. In re Donaldson, 364

favorably on March 27, 1970. During U.S. 808 (1960). Similar denials of a

the fall of 1970, at the death writ of habeas corpus were also

of Dr. Hanenson, Dr. Jesus Rodriquez brought before this Court in 1963.

assumed the position of Donaldson's and 1968. Donaldson v. Florida, 371

attending physician. He evaluated U.S. 806 (1963); Donaldson v. O'Connor,

Donaldson and noted that he had again 390 U.S. 971 (1968).

refused to work, had refused group

therapy and refused other suggested In 1970, Donaldson, represented by

forms of therapy. counsel, again sought review of his case.

Certiorari was again denied. Donaldson

On March 4, 1971, Donaldson was again v. O'Connor, 400 U.S. 869 (1970). During

assigned to a general routine work — this same period, at least three other

assignment. On July 1, 1971, Dr. Milton cases in which various courts had refused

J. Hirshberg assumed the post of to rule on the issue of whether there

Superintendent of Florida State Hospital. exists a constitutional right to treatment

He examined Donaldson on July 26, 1971, were brought before this Court. In each

and declared him to be a schizophrenic, case, certiorari was denied. People ex

paranoid type, in remission and rec- rel Anonymous v. LaBurt, 385 UE o%e

ommended his release. Kenneth Donaldson (1966); United States ex rel Stephens v.

was released from Florida State Hospital LaBurt, 373 J.S. 928 (1963); People ex

on July 31, 1971. rel Anonymous v. LaBurt, 369 U.S. 428

1962).

Prior to the present case, Kenneth ' '

Donaldson had brought fifteen separate This suit was initiated in the District

petitions for a writ of habeas corpus Court for the Northern District of Florida

in the state coyrts of Florida and lower prior to Donaldson's release on July 31,

federal courts.“ All petitions were 1971. The initial complaint was styled

unsuccessful and on four occasions a class action on behalf of all patients

Donaldson petitioned this Court for a in Department C of the Hospital. In

writ of certiorari. addition to damages, for Donaldson and

; ; : the class, the complaint sought habeas

The series began in 1960 when the corpus relief as to Donaldson and the

Florida Supreme Court denied a writ of class, and injunctive relief requiring

habeas corpus refusing to openly state the hospital to provide adequate treat-

whether there is, or is not, a consti- ment. After Donaldson's release, the

tutional right to treatment. This Court District Court dismissed the case as to

the class action allegations, and

the first amended complaint was filed

on August 30, 1971. The amended complaint

1 Birnbaum, Some Remarks on the Right to

Treatment, 23 Ala.L.Rev. 623, 635-636 (1971).

12

sought individual damages and renewed

Donaldson's prayers for declaratory and

injunctive relief to restrain the enforce-

ment of Florida's civil commitment

statutes unless Florida provided adequate

treatment to its civilly committed mental

patients. Jurisdiction was alleged

pursuant to 42 U.S.C. §1983, 28 U.S.C.

§1343(3), and 28 U.S.C. §§ 2281, 2284.

The amended complaint also asked the

district court to convene a three-judge

court to consider the plaintiff's attack

on the constitutionality of the civil

commitment statutes as they then operated.

On November 30, however, the plaintiff

in a memorandum brief, abandoned the

prayer that a three-judge court be

convened. The prayers for injunctive

and declaratory relief were eliminated

from the case.

The key allegation in the amended

complaint charged that the defendants

O'Connor and Walls had “acted in bad

faith toward Plaintiff and with inten-

tional, malicious, and reckless dis-

regard of his constitutional rights."

The complaint alleged examples “%f such

actions, including the denial to

Donaldson of grounds privileges; the

refusal of the psychiatrists to speak

with him, even at his own request;

refusal or obstruction of his opportunities

for out-of-state discharge, despite a

recommendation by a staff conference

that he be given such a discharge, and

despite the presentation of a signed

parental consent to such a discharge.

The core of the charge, however, was

that Walls and O'Connor acted intentionally

and maliciously in "confining Donaldson

-

13

against his will, knowing that [he]

was not physically dangerous to himself

or others"; in confining him “knowing

that [he] was not receiving adequate

treatment, and knowing that absent such

treatment the period of his hospitaliza-

tion would be prolonged"; and that they

“intentionally limit[ed] [his] 'treat-

ment’ program to ‘custodial care' for

the greater part of his hospitalization."

Corresponding to these allegations,

the complaint sought $100,000 damages

against Walls and O'Connor.

The trial began November 21, 1972, and

continued for four days. The jury

returned a verdict awarding Donaldson

$17,000 in compensatory damages and

$5,000 in punitive damages against

O'Connor, and $11,500 in compensatory

damages and $5,000 in punitive damages

against Gumanis. The jury returned

verdicts in favor of the cther three

defendants. From the judgment entered

on that verdict, Gumanis and O'Connor

separately appealed to the United States

Court of Appeals for the Fifth Circuit.

The Judgment of the District Court was

affirmed on April 26, 1974. Appellant

Gumanis filed a timely Motion for

Rehearing which had not been ruled on

by the Court as of the time this

Petition was filed.

14

Reasons for Granting the Writ

I

CERTIORARI SHOULD BE GRANTED TO

DECIDE WHETHER THERE IS A CON-

STITUTIONAL RIGHT TO TREATMENT

FOR PERSONS INVOLUNTARILY

COMMITTED TO STATE MENTAL

HOSPITALS.

The Court of Appeals held that a

person involuntarily civilly committed

to a state mental hospital has a consti-

tutional right to receive such individual

treatment as will give him a reasonable

opportunity to be cured or to improve his

mental condition. The Court of Appeals

‘found that civil commitment entails a

"massive curtailment of liberty” in the

constitutional sense, citing H hrey v.

Cady, 405 U.S. 504 (1972), and noted that

e due process clause of the Fourteenth

Amendment to the United States Constitu-

tion guarantees a right to treatment

upon a two-part theory.

The first part of the theory is

concerned with the rationale for confine-

ment. In its discussion, the Court of

Appeals noted that three distinct

grounds are recognized by state statutes:

danger to self; danger to others; and

need for treatment, or for "care,"

"custody," or "supervision." The Court

placed these grounds into two categories;

one a “police power" rationale for

confinement, the other a "“parens patriae”"

i

15

rationale. Danger to others was

considered a “police power" rationale;

need for care or treatment a "parens

atriae" rationale; and danger to

self aS an area combining elements of

both. The Court reasoned that where,

as in Donaldson's case, the basis for

confinement evokes the parens patriae

rationale, that the patient is in need

of treatment, the due process clause

requires that the deprivation of liberty

brought on by commitment be accompanied

by treatment. It was this theory the

Court applied in this case although there

was considerable evidence that numerous

physicians felt Donaldson was dangerous

to himself and others, which would bring

elements of the police power rationale

into consideration.

The second part of the theory is

concerned with the traditional limita-

tions on a government's right to

confine -- that confinement be in

retribution for a specific offense;

that it be limited to a fixed term; and

that it follow a proceeding where

fundamental due process safeguards are

present. Ignoring the due process pro-

tections inherent in the initial commit-

ment hearing, the Court of Appeals found

that where such limitations are absent,

such as in an involuntary civil commitment

to a state mental hospital, there must be

a guid pro guo extended by the government

to justify confinement. The Court then

noted that the guid pro guo most common ly

recognized is the provision of rehabili-

tative treatment.

16

A discussion of whether there exists

a constitutional right to treatment re-

quires a brief examination of the histor-

ical basis for involuntary hospitalization

of the mentally ill.

In 1603, Lord Coke described the

law of insanity as it had developed in

England and discussed the Statute de

Praerogation Regis, which explicated

the King's authority over the property

of the mentally ill and outlined the

King's duty to care for them in

Beverly's Case, 4 Co.Rep. 123(b), 76

ng. Rep. (K.D. 1603). Later,

during the Eighteenth century, confine-

ment was a privilege reserved for the

more affluent. According to Blackstone,

one applied for confinement when the

disorder was regarded as permanent and

the individual could afford the cost of

such confinement.

During the Colonial period in the

United States, families were expected

to care for the mentally ill. n the

absence of family the colonial community

would not provide care, but would attempt

to send the individual back to where he

or she came from. In Governor Winthrop's

Journal, it is reported that on December

ll, 1634, “{o]ne Abigail Gifford, sent

by ship into this ccuntry, and being

found to be somewhat distracted, and

a very burdensome woman, the governor

2 1 W. Blackstone, Commentaries,

303-07 (9th ed. 1783); 2 F. Pollack &

F. Maitland, The History of English Law

(2nd ed. 1911).

Welfare 79 (1549).

17

returned her back by warrant to the

same parrish, in the ship Rebecca."?

Some years later, the Massachusetts Bay

Company enacted legislation for the

detention of violent persons so “that

they do not damnify others,"4 the

rationale being that if the individual

was a threat to the community, the

community could act accordingly.

The emergence of the idea of danger

within the purview of organized medicine

appears to have been accomplished in

1769 when the first institution for the

insane was opened at Williamsburg,

Virginia. The chartering act made

specific reference to the need for

restraining those “who may be dangerous

to society.” The community's role in

providing for the violent and insane who

could not be maintained properly by

their families was clearly established

at that early time. The emphasis

3 Winthrop's Journal, p. 144, Re-

SS in the Histo of New England

1649, by the Messachusettee

Historical Society.

4

5 Records of the Governor and company

of the Massachusetts Bay in New Englan

80 (1854).

5 A. Miles, An Introduction to Public

18

remained on detention, rather than

treatment.

Detention was apparently rarely

challenged in the early days of our

nation. One of the first cases was

brought in 1845 when Josiah Oakes

petitioned the Massachusetts Supreme

Court by writ of habeas corpus to

determine the legality of his confinement.

In re Josiah Oakes, 8 L.Rep. 123 (1845-

46). Aithough the attending

physician could not predict with

any degree of certainty that Oakes would

indeed engage in a dangerous act were

he not confined, the Court relied on

the ssibility of danger as a decisive

factor against him. The Court ruled

that restraint was permissible because

"the right to restrain an insane

person of his liberty is found in

that great law of humanity, which makes

it necessary to confine those who goings

at large would be dangerous to them-

selves and others." The Court further

states:

The necessity which creates the

law, creates the limitations or

the law. The question mvst then

arise in each particular case,

whether a patient's own safety

or that of others requires that

he should be maintained for a certain

time, and whether restraint

is necessary for his restoration

or will be conducive thereto.

The restraint can continue

as long as the necessity continues.

That is the limitation and the

proper limitation.

19

The basis of a state's right to confine

mentally ill persons against their will

rests upon the dual reasons of (1) the

power of the state in its role of

parens patriae, and ({2) its duty to

protect under the police power. A

state has an obvious interest in the

safety of all citizens and the maintenance

of a healthy and productive citizenry.

It might be argued that the parens

patriae theory alone cannot SStify

confinement without bengfit to or treat-

ment of the individual,’ but it cannot

be reasonably or responsibly argued that

society does not have the right to

confine mentally ill persons with a

propensity for dangerous behavior, with

or without accompanying treatment.

Treatment, as a goal of confinement

of mentally ill persons, emerged with the

development of psychiatry as a medical

specialty and the successful development

of drug and shock therapy during the first

half of this century. At this point,

the states began to provide such care as

was possible witpin the limitations of

state resources.

6 Ross, Commitment of the Mentally Ill:

Problems of Law and Policy, 57 AichoL- Rev.

we

Note, Civil Commitment of the Mentall

Ill: Theories and Procedures, 79 Harv.L.

Rev. 1288 (1966).

7 Note, The Nascent Right & Treatment,

53 Va.L.Rev. 1134 (1967).

. G. Zolborg, A History of Medical

Psychology (1941).

20

The idea that there exists a consti-

tutional right to treatment for the

involuntarily committed mental patient

was first announced in 1960 in an

editoriag in the American Bar Association

Journal. The editorial had as its

impetus an article of Dr. Morton Birnbaum,

of the New Ygrk Bar, appearing in the

same issue.

In his initial article, Dr. Birnbaum

suggested the need for recognition of a

right to treatment and based his

suggestion on the realization that care

in state mental hospitals is often

substandard. Dr. Birnbaum recognized

that inadequate treatment does not

often result from individual action by

the medical staff, but from inadequate

legislative funding:

As the law has not recognized

this right, the state can, and

generally does, compel the

public mental institution to

give inadequate medical treat-

ment to its inmates. The

state does this: (A) by com-

pelling the institutionalization

of those persons whom it considers

to be sufficiently mentally

ill to require institutionaliza-

tion for care and treatment;

9 Editorial, A New Right, 46 A.B.A.J.

516 (1960).

10 Birnbaum, The Right to Treatment, 46

A.B.A.J. 499 (1960).

21

and, (B) by not appropriating

sufficient funds to enable the

public mental institution to

obtain the number of competent

personnel and to maintain the

adequate physical plant that

is necessary to provide ther-

apeutic, rather than custodial,

care for these sick people.

x & &

In too many cases, the efficacy

of modern medicine is depend-

ent upon a legislative decision

rather than upon medical know-

ledge. If the legislature

appropriates sufficient funds

to enable the public mental

institution to provide proper

medical care, the effect of

institutionalization is

decided to a great extent

by the limitations of medical

knowledge. If the legislature

appropriates insufficient

funds, the effect of institu-

tionalization is decided to a

great extent by legislative

fiat.

The article further suggests that

assuming recognition of a right to

treatment, that the proper form of

remedy would be release, pursuant to

habeas corpus proceedings, for those

receiving inadequate care. It was

thought that the prospect of wide-scale

release of mentally ill persons would

force the states to either provide

adequate care or abandon public mental

1ealth institutions altogether. Dr.

22

Birnbaum noted the obvious threat to

the health and welfare of the general

citizenry and patients, but felt that

such action was justified by the eventual

improvement of public institutions.

At the conclusion of his article,

Dr. Birnbaum noted several problems

with the recognition and enforcement

of a right to treatment. The most

important of these was the practical

realization that in order to avoid the

problem of wide-scale release of

mentally ill persons and other injustices,

that the courts should provide a

reasonable interim period between

recognition of the right and enforcement

of the right.

There is no judicial recognition of

a constitutional right to treatment for

several years following Dr. Birnbaum's

suggestion of such a right. In 1966,

the Court of Appeals for the District

of Columbia held in Rouse v. Cameron,

373 F.2d 451 (D.C. Cir. 1966), that a

patient committed involuntarily to

a mental hospital under a District of

Columbia Statute had a statutory right

to treatment pursuant to the District

of Columbia 1964 Hospjfalization of

the Mentally I1l Act. In addition,

Judge Bazelon, writing for the

majority, stated that, even absent

such a statute, forced confinement

in a public mental hospital without

treatment might violate either the

11 pb. c. Code Ann. §21-562 (1967).

23

due process clause, the equal protection

clause, or the Eighth Amendment.

Since the decision in Rouse v. Cameron,

Supra, two District Courts have held

that there is a right to treatment for

civilly committed mentally ill persons. 2

A third District Court has completely

rejected the theory as unworkable.

A fourth case has recently extended a

right to treatment to civilly committed

mentally re*arded persons.

However ractive the theory of a

right to psychiatric treatment may be

to all persons concerned with the

preservation of individual liberties,

12 Stachulak v. Coughlin, 364 F.Supp.

686 (N.D.111. 1973); Wyatt v. Stickne P

325 F.Supp. 781 (M.D. Ata 1971), on

submission of proposed standards, 334

F.Supp. 1341, enforced, 344 F.Supp.

373, 387, Appeal docketed sub non,

Wyatt v. Aderhold, No. 72-2634 (5th

Cir. 8/1/73).

13° Burnham v. Department of Public Health,

349 F.Supp. 1335 (N.D.Ga. 1972), appeal

docket, No. 72-3110 (5th Cir. 10/4/72).

14 Welsch v. Likins, 373 F.Supp. 487

(D.Minn. 1974).

24

serious problems arise from the attempted

application and enforcement of such a

right. These problems are of both a

legal and medical nature and have been

the subject of considerable commentary. 1°

The overriding problem in defining

and applying a right to treatment lies

in the problem of judges and juries

untrained in medicine and the highly

specialized field of psychiatry attempt-

ing to second guess the judgment of

trained physicians and psychologists

concerning what constitutes “adequate

treatment.”

As early as 1942, over forty (40)

distinct methods of psychotherapy were

accepted by the medical profession.

These methods listed by Levine range

from active physical treatment such as

15 Szasz, The Right to Psychiatric

Treatment: Rhetoric and Reality, 57

Geo.L.J. 740 (1969); Cameron, Non-

Medical Judgment of Medical Matters,

57 Geo.L.J. 716 (1909); Note, Guarantee-

ing Treatment for the Committed Mental

Patient: The Troubled Enforcement of an

Elusive Right, 32 Md.L.Rev. 42 (1972);

Katz, The Right to Treatment--An Enchant-

ing Lega iction, 36 U. of Chi. L.R.

69).

16 M. Levine, Psychothera in Medical

Practice, 17-19 earor ot Current

Psychiatric Therapies (J. Masserman ed.

1961-64).

25

“shock therapy" to more subtle forms of

therapy such as ignoring certain symptoms

and attitudes. Dr. Thomas S. Szasz

observes the difficulties involved in

presently defining what constitutes

“illness," “treatment,” and “patient”

without confusing injection of an

indefinable right to treatment. 1+ As

Dr. Szasz points out that it is extremely

difficult to determine not only whether

certain behavior constitutes “illness”

but to determine what constitutes the

best method of treatment or whether the

chosen treatment is "adequate."

Dr. Szasz believes that what is termed

a “right" to treatment should be labelled

a “claim" for treatment and points out

that a “right" to treatment for the

patients would seriously impair a

physician's prerogatives of choosing

his patients and methods of treatment.

This conflict is heightened in a state

mental hospital where a physician

cannot choose his patients.

The impossibilities of judicial

definition and application of a right to

treatment were discussed by now Chief

Justice Burger in Lake v. Cameron, 124

U.S.App.D.C. 264, 364 F.2d 657, 663

(1966):

-..this Court now orders the

District Court to perform functions

17 Szasz, The Right to Health, 57 Geo.

L.J. 734, 741, 743.

26

normally reserved to social agencies

by commanding search for a judi-

cially approved course of treatment

or custodial care for this mentally

ill person who is plainly unable

to care for herself. Neither this

Court nor the District Court is

equipped to carry out the broad

geriatric inquiry proposed or to

resolve the social and economic

issued involved.

It has been strenuously argued in

this and preceding cases that expert

testimony is sufficient to guide a

judge or jury to a proper determination

as to what constitutes proper and

adequate treatment in any specific

case. The Court of Appeals accepted

and applied that theroy in this case.

While the testimony of experts and

guidelines formulated by professional

associations may be helpful in deter-

Mining the adequacy of care provided

by an entire hospital or system such as in

an inquiry as in Wyatt v. Stickney, 325

F.Supp. 781, 784 (M.D.Ala. IS7I), 344

F.Supp. 373, 375-376 (M.D.Ala. 1972),

it cannot be easily applied to an

individual patient. To attempt such

application is to subject the profession-

al judgment and decisions of a trained

physician to the scrutiny of untrained

laymen. It is common knowledge that

any two physicians rarely treat any

individual in the identical manner. One

physician may consider some form of

active treatment essential while another

may choose to treat the symptoms by

ignoring them.

27

A graphic illustration of a court

faced with two widely divergent expert

views on proper treatment, raised in

the context of incompetence to stand

trial, is provided in United States v.

Klein, 325 F.2d 283, 286 (2nd Cir. 196

wherein the Court lamented:

3),

Mental disorders being what they are,

it is not surprising that eminent

psychiatrists differ as to methods

of treatment. Here Dr. Shoefield

believed Klein would respond to

a more psychoanalytic form of

therapy; Dr. Douglas, by his own

testimony, favored a more physio-

logical approach. Courts of law,

unschooled in the intricacies of

what may be the most perplexing of

medical sciences, are ill-equipped

to choose among such divergent but

responsible views. In a case like

this, where a man's life may

literally hang in the balance, a

judge ought not undertake the

hazardous venture of changing the

course of psychiatric treatment without,

at the least, a much fuller hearing

and a greater preponderance of

expert testimony than existed here.

Advocates of the right to treatment

tend to ignore the difficulties of

laymen sitting in judgment of the

decisions of trained physicians with

the argument that any judge who can

allocate AM radio frequencies to avoid

electronic interference is capable of

28

determining, with the aid of experts,

which manner, 9f treatment is “adequate”

or “proper." This Court recognized

the dilemma in Greenwood v. United States,

350 U.S. 366 (1 , wherein Justice

Frankfurter noted the transiency of

psychiatry when reviewing the testimony

of two psychiatrists, declaring:

-.-their testimony illustrates the

uncertainty of diagnosis in this

field and the tentativeness of

professional judgment. The only

certain thing that can be said

about the present state of

knowledge and therapy regarding

mental disease is that science

has not reached finality of

judgment...

This argument ignores the difference

between the more exact science of

electronics and the vague, fluid theories

of psychotherapy. While it may be

possible to determine whether one radio

station will interfere with another with

some degree of certainty, it has been

demonstrated above that it cannot be said

with equal certainty that one method of

treatment is superior to another in any

particular case.

Following the decision in Rouse v.

Cameron, the American Psychiatric

18

Bazelon, Implementing the Right to

Treatment, 36~U.Chi.L.hRev. 742 TiSey-

29

Association released a policy gtatement

on the adequacy of treatment.

The A.P.A. statement contends that

"(t]he definition of treatment and the

appraisal of its adcqguucy are matters for

medical determination," hut sets forth

seven considerations relevant to a

determination of whether a patient is

receiving adequate care: (1) The

purpose of hospitalization, and differences

between long-term and short-term treatment

programs; (2) the degree to which treat-

ment is changed as diagnosis develops

during institutionalization; (3) the need

to protect the patient from self-inflicted

harm; (4) the importance of interrupting

the disease process, as in separating the

psychotic from his family stress

situation; (5) the effective use of

physical therapies; (6) efforts to

change the emotional climate around

the patient meaning “mileau therapy"

and related measures; and (7) the

availability of ggnvent ional psycholo-

gical therapies. The statement strongly

stresses the importance of considering

the limitations of the staff and

facilities at hand, and the absolute

need for cooperation by the patient in

his treatment program. 1

19 American Psychiatric Association, A

Position Statement in the Question of

Treatment, 123 Am. J. Psychiatry, 1458

20 Id. at 1458-1459.

21 td. at 1459-1460.

30

It has been suggested that it is no

more difficult for a judge or jury to

determine whether a patient has received

"adequate" treatment than to hear a 22

traditional medical malpractice case.

However, the analogy is not accurate.

Physical medicine has a relative certain-

ty compared with psychotherapy, both in

diagnosis and in the efficacy of

particular treatments. In the psy-

chiatric malpractice field, the courts

have exhibited extreme reluctance to

examine issues of treatment and great

confusion in trying to decide when

negligence has occurred. Most of the

cases involve such matters as discharge

or failure to prevent escape from an

institution, not the superiority of

one form gf treatment or therapy over

another. @ When a pat.ent sues the

doctor or hospital for negligent

treatment, as in shock therapy injury

cases, there is no comparison of treat-

ments, but rather an examination of

how the partigylar treatment was

administered.

22 Rouse v. Cameron, 373 F.2d at 457,

n. 30.

23 J. Katz, J. Goldstein, & J. Dershowitz,

Psychoanalysis, Psychiatry, and Law, 728-

75Ll (1967).

24 CF. Hammer v. Rosen, 7 App.Div. 2d

216, 181 N.Y. S. 2d 805 (1959).

31

Negligence, a traditional guiding

point for courts and juries in medical

malpractice litigation will be missing

from federal cases seeking to enforce

a constitutional right to treatment

because negligence cannot form the basis

of jurisdiction under the Civil Rights

Acts. Smith v. Clapp, 436 F.2d 590

(3rd Cir. ; Isenberg v. Prasse,

433 F.2d 449 (3rd Cir. de

The difficulties of one District

Judge in attempting to define and apply

a right to treatment are described in

Burnham v. Department of Public Health,

349 F.Supp. 1335 (N.D.Ga. 1972),

wherein Chief Judge Smith explored the

requirements of civil rights jurisdiction,

the nature of the asserted right to

treatment, and the impossibilities of

its definition and responsible applica-

tion. Judge Smith concluded that there

exists no affirmative federal constitu-

tional right to treatment. Recent

commentary 5gcommends the approach taken

in Burnham. Professor Reisner notes

that while objective standards might be

judicially developed tc be applied to

institutions as a whole, he concludes

that judicial attempts to gauge the

appropriateness of treatment offered to

individual patients cannot help but

encounter the difficulties foreseen by

the Burnham court.

25 Reisner, Psychiatric Hospitalization

and the Constitution: Some Observation

on Emerging Trends.

26 Id.

32

The Court of Appeals for the Fifth

Circuit brushed aside objections that

courts are incapable of determining what

constitutes “adequate” treatment with

the view that since other courts had

attempted to do so, it must be that the

judiciary is perfectly capable of

sitting in judgment of the professional

decisions of trained physicians. The

Court also noted that there were

cases, declaring the case at bar to be

one, where the jury could determine

whether a patient has been denied his

“rights” by comparing the care he

received under one physician to that

he received under another. Both theories

place laymen in the shoes of psychiatrists

and the latter does not, as the Court

of Appeals suggests, avoid the deter-

mination of which treatment or therapy

is “adequate” or "proper" in any

particular case.

The Court of Appeals argued further

that a jury would be justified in

finding a denial of “rights" by con-

cluding that the defendants below

obstructed the release of a patient

even though they knew he was not

receiving treatment. This theory

ignores the fact that physicians in a

state mental hospital are required to

accept all patients committed to their

care and are not empowered to release

a patient until he is "cured." Even

though a doctor may realize that a

patient is not receiving treatment, or

does not benefit from the available

treatment, due to lack of available

33

staff, facilities, operating funds

or other reasons, a doctor in a state

institution simply lacks the statutory

authority to release a mentally ill

patient.

The Court of Appeals held that a guid

pro quo, in the form of adequate treat-

ment, must be advanced by the state in

exchange for the liberty of the invol-

untarily committed mental patient. This

theory ignores the realities providing

the basic justification for involuntary

confinement of the mentally ill. Invol-

untary commitment rests upon two inter-

related foundations: (1) the “police

power" of the state; and (2) the state's

role as “parens patriae". The two are

not easily separated in this setting.

Basically, when the state provides

mental health facilities for its citizens

it acts in parens patriae. When the

state involuntarily commits a citizen

to a state mental health institution,

it acts pursuant to its traditional

police powers to protect the general

public. A state has a strong interest

ina healthy, productive, educated

society. Accordingly, for the benefit

and protection of society, the state

provides for state custody and mainte-

nance of incompetent persons. The

27 Penn Dairies v. Miik Control Com-

mission, 318 U.S. 261 (1943).

28 prince v. Massachusetts, 321 U.S.

158 (1944).

29° Jacobson v. Massachusetts, 197 U.S.

11 (1905).

34

state undertakes to care for those persons

whose mental illness makes it difficult

or impossible for them to care for them-

selves or to be cared for by their

families, until such time as the patient

is considered well enough to return to

society. The state does that and

nothing more.

The nature of treatment supplied beyond

custodial care is a question for the

states, not the federal courts. Whether

a state shall provide a particular

governmental service, and if so in

what amount (qualitatively and quantita-

tively) are generally questions for the

states and do not raise federal consti-

tutional issues cognizable under 42 U.S.C.

§1983, the Civil Rights Act of 1871, and

28 U.S.C. §1343(3). It must be

remembered that not every governmental

function implies a corresponding right

or “quid pro guo" as it has been termed

by the Court of Appeals. Collins v.

Hardyman, 341 U.S. 651 (1951);

Niklaus v. Simmons, 196 F.Supp. 691

D.Neb. °

An analogous situation might be that

of the public schools. School] attendance

is compulsory so it might be argued that

there must, therefore, be a constitutional

right to an adequate education as the

30 Fullington v. Shea, 320 F.Supp. 500

(D.Colo. 1970), affirmed 404 U.S. 963

(1970). CF. McGowan v. Maryland, 366

U.S. 420 (1961).

35

guid pro quo to those persons forced

to attend school. Definition of such a

right might be equally incapable of

accurate definition. However, the

quid pro quo theory has not been extended

to the p 1c schools. There is no

right to an education even though

attendance is involuntarily compelled. 31

It was admitted by Respondent, in the

pleadings, that there is no statutory

right to treatment in Florida, as in the

District of Columbia statute before

the court in Rouse v. Cameron. Petitioner

further believes, that there can be no

federal constitutional right to treatment,

as demonstrated above. Petitioner has

shown that aside from the problem of

determining what constitutes mental illness,

that there is a bewildering array of

accepted methods of therapy and a wide

divergence of opinion between respected

experts as to which method may be

proper in a particular case. A right

must be capable of definition. The

proposed right of treatment defies

definition; its application and enforce-

ment are impossible in the absence of a

definition.

This Court should grant certiorari to

resolve the issue of whether there exists

a constitutional right to treatment for

persons involuntarily committed to a state

mental hospital. This case presents

the first opportunity for this Court to

examine the issue presented, resolve

31 Pleming v. Adams, 377 F.2d 975,

977, th Cir. ), cert. den. 389

U.S. 898 (1967).

36

the issue of whether such a right exists,

and, in so doing, provide necessary guidance

for state administrators, patients, physi-

cians and the lower federal courts.

II

CERTIORARI SHOULD BE GRANTED TO

REVIEW THE HOLDING OF THE COURT

OF APPEALS TiiAT, ASSUMING THE

EXISTENCE OF A RIGHT TO ADEQUATE

TREATMENT, ATTENDING PHYSICIANS

AT A STATE MENTAL HOSPITAL MAY

BE HELD PERSONALLY LIABLE, IN THE

ABSENCE OF BAD-FAITH OR MALICE,

FOR A DEPRIVATION OF THAT RIGHT.

The Court of Appeals for the Fifth

Circuit held that the Petitioner and Dr.

Gumanis, the other Appellant below,

could properly be held personally

liable for an alleged deprivation of

the right to treatment.

Petitioner submits that a doctor in

a state mental hospital should not be

held personally liable for the depri-

vation of a constitutional right,

whees® existence and enforcement could

not have been reasonably foreseen.

Furthermore, doctors in a state hospital

should not be held liable for depriva-

tion of a constitutional right to

adequate treatment, when they have no

control over the number or nature of

the patients they must treat, the

facilities and resources available to

them, or the statutory right to either

refuse to treat a particular patient

37

or release a patient before he is restored

to his mental health. The Court of Appeals

found such considerations without merit.

It has been known for many years that

state mental hospitals are woefully

inadequate in terms of physical facilities,

staff, and financing. 2 State mental

hospitals are a creature and occasional

victim of legislative fiat. They exist

and operate on the funds made available

by the legislature, and have only as

many staff members as allowed by the

annual appropriations bill. The admin-

istrator and staff have no meaningful

control over the facilities and resources

at their disposal. Likewise, they must

accept every patient sent to them under

a valid commitment order. They are not

statutorily empowered to refuse any

patient committed for care or discharge

any patient who has not regained his

mental health.

Against that set of facts, the Court

of Appeals found that a doctor ina

32 Birnbaum, Some Remarks on the Right

to Treatment, 23 Ala.L. Rev. 623 TIS 74)

Birnbaum, A Rationale for the Right, 57

Geo. L.J. 752 (1969); Birnbaum, The Right

to-Treatment, 46 A.B.A.J. 499 (1960);

Editorial, A New Right, 46 A.B.A.J.

516 (1960).

38

state institution using the limited

resources available to him, could be

held personally liable for failing to

give adequate treatment, as determined

by a court.

If the situation were not as serious

as it is, it would be ludicrous to imagine

a federal court finding that an over-

worked, under-paid, staff psychiatrist in

an over-crowded state hospital, working

with a patient-staff ratio averaging five

hundred patients per physician, using

the meager facilities available to

him, could be held personally liable

in the amount of $23,000, to a former

patient, for failing to foresee the

existence of a previously unestablished

constitutional right and failing to pro-

vide each and every patient witu “adequate

treatment", as determined by a group of

laymen.

The controversy in this case centers

around the effort to establish a right

to treatment and demonstrate that

Kenneth Donaldson was denied that right.

The inequity arises when the right, if

established, is applied retroactively

to create monetary liability on the

part of Petitioner and Dr. Gumanis. In

essence, their wrongful acts, if any,

consisted of the violation of a pro-

spective right, assuming the present

existence of a right to treatment.

Justice Holmes once defined a prospective

right as follows:

A prospective right is not yet

a right. It is only an expectation

having certain intensity of

39

reasonableness. ??

The extreme difficulty of predicting

the emergence of a new right or change

in the law has been judicially recognized

with increasing frequency in the past

few years. Certainly, state officers

and employees are not entitled to the

absolute immunity accorded the judiciary,

because that would frustrate the

intent of Title 42 U.S.C. §1983. However,

this Court has found that there is limited

immunity for acts done in good faith by

state officers, within fhe scope of

their official duties.?

State employees and administrators

should be required to act as reasonable

and responsible men, but “they neither

can nor should be expected to be seers

in the crystal ball of constitutional

doctrine. They are not charged with

predicting the future course of consti-

tutional law." The Court of Appeals

33 Southern Pacific R. R. Co. v. United

States, 189 U.S. 447, 450 (1903).

34 Pierson v. Ray, 386 U.S. 547, 555-

557 (1967).

35 Westberry v. Fisher, 309 F.Supp. 12

(D.Me. 1970); See also: Eslinger v. Thomas

1973)

476 F.2d 225 (4th Cir. ; Taylor v.

Perini, 365 F.Supp. 557 (N.D.Ohio 1972);

Skinner v. Spellman, 480 F.2d 539 (4th

Cir. 1973); Collins v. Schoonfield, 363

F.Supp. 1152 (D.Md. 1973); McKinney v.

DeBord, 324 F.Supp. 928 (E.D.Cal. ).

40

for the Fifth Circuit noted that it

was in conflict with the Ninth Circuit

in Hoffman v. Halden, 268 F.2d 280

(9th Cir. 1959), but felt that the

Hoffman rule was in error. The Court

of Appeals believed that in the absence

of such immunity, the District Judge's

instruction to the jury on the good

faith defense alone was sufficient.

Petitioner submits that he should be

immune from damages in a situation where

he was acting in good faith, according

to accepted institutional policy and

procedures, and could not reasonably be

expected to foresee the future emergence

and enforcement of a constitutional

right to treatment. State employees

should not be exposed to personal

monetary liability for acts subsequent-

ly condemned as unconstitutional by

the regogni tion of a new constitutional

right. 6

This Court should grant certiorari

to determine whether it is proper for

state-employed physicians at state

mental hospitals to be held personally

liable for deprivation of the proposed

right to treatment even though such

doctors have no control over the number

of patients they must treat or the quality

and quantity of treatment facilities

available to them. Sq too, the

Court should grant certiorari to resolve

the apparent conflict between the

Court of Appeals for the Fifth Circuit

36 Pierson v. Ray, supra, note 34,

41

and other Courts of Appeal on the issue

of whether state employees and officers

may be held personally liable for past

actions, made in good faith, subsequently

declared unconstitutional by the

recognition of a new constitutional

right.

Iil

CERTIORARI SHOULD BE GRANTED

TO DETERMINE WHETHER, ASSUMING

THERE IS A CONSTITUTIONAL RIGHT

TO TREATMENT, THE RESPONDENT

WAIVED THAT RIGHT.

In its opinion, the Court of Appeals

for the Fifth Circuit noted that the

Respondent, Donaldson, a Christian

Scientist, refused to submit to either

medication or shock therapy during his

confinement at Florida State Hospital.

The Court mentioned that recreational

therapy, religious therapy and mileau

therapy were substituted, but promptly

dismissed all three forms of therapy

as, in the opinion of the Court,

inadequate. The Court emphasized their

displeasure with "“mileau therapy" citing

a law review article, written by an

attorney, as support for the notion

that "mileau therapy" is an excuse used

by psychiatrists to gover up a lack of

adequate treatment. 3

69).

37 Halpern, A Practicing Lawyer Views the

sage to Treatment, 5/ Geo.L.J. 2,

ad ’ nN.

42

Articles by physicians and psychiatrists

take the opposite view that "mileau therapy"

is often an excellent alternative or 38

companion to medical or shock therapy.

Assuming arguendo that there exists

a constitutional right to treatment,

is there a corresponding right to refuse

treatment? Commentators suggest that a

right to refuse treatment may be a

necessary adjypct to the proposed right

to treatment. Statutes in Alaska

and California expressly recognize a

right to Refuse on religious and other

grounds. 4

A natural question arises as to

whether persons committed for reasons

related to mental competency should be

considered competent to consent to, or

refuse offered treatment. Califor-

nia and Alaska statutes grant the

38 Cameron, Nonmedical Judgment of

Medical Matters, 57 Geo.L.J. 710 (1969);

J. Frank, Persuasion and Healing--A

Comparative Study of Psychotherapy (1961).

39 Miller, Dawson, Dix and Parnas,

Cases and Materials on Criminal Justice

Administration and Related Processes -

The Mental Health Process, 1663 (1971).

40 §7104, California Wel. & Inst. Code,

(1969 Supp.); §47.30.130, Alaska Statutes,

(1969 Supp.).

43

patient the right to decide so long as

the administrators determine that he

is in such a “condition of mind as to

render him gompetent to make the

decision." 4 Law review proponents

of a right to treatment generally

refuse, in their zealous protection

of the patient's right to treatment,

to recognize the right of a patient

to refuse treatment. Some suggest

that a right to treatment imposes a

duty to be treated.43 Justice Holmes

supported that view stating:

While there are in some cases

legal duties without a correspond-

ing right; we never see a legal

right without either a corre-

sponding duty or compulsion

stronger than duty.

Whether there is a right to refuse

treatment or a duty to be treated, the

evidence in this case demonstrates

41 §7104 California Wel. & Inst. Code.

42 Halpen, A Practicing Lawyer Views

the Right to Treatment, 57 Geo.L.J.

° ); Note, The Nascent

Right to Treatment, 53 Va.L.Rev. 1134,

146 (15967).

43 Katz, The Right to Treatment--An

Enchanting Legal Fiction?, 36 U. of

CRie Le Re Ee (1969).

44 Holmes, Uncollected Letters, 66.

See also: den v. Saunders, 12 Wheat.

213, 281-82 2/).

44

conclusively that either Donaldson

exercised his right not to be treated

or he utterly failed in his duty to be

treated. The record is replete with

evidence that he not only continually

refused medicine and shock therapy, but

that he refused, at times, to participate

in occupational and group therapies.

The Court in Rouse v. Cameron suggested

that patient refusal to cooperate in

therapy does not excuse lack of adequate

treatment, but rather is a further

indictment of the treatment facilities

and staff. This attitude was prompted

primarily by the requirements of the

District of Columbia statute involved.

However, the Court in Wyatt v. Stickney

suggested that the same attitude should

apply to the constitutional right to

treatment. The Wyatt standard ignores

the patient who refuses §reatment or is

unamenable to treatment.

While the courts and commentators do

not believe patient cooperation is a

key element of adequate treatment, the

American Psychiatric Association believes

patient cooperation is a necessity.

45 325 F.Supp. 781, 784 (M.D.Ala. 1971).

46 american Psychiatric Association,

Position Statement on the Question of

Raoquacy of Treatment, 123 Am.J.psycniatry

).

45

Donaldson, having continued to refuse

numerous types of treatment, including

shock treatment which had apparently

been a successful element of his New

York treatment, should not have been

heard to complain of the “inadequacy” of

his treatment. Therefore, even assuming

the existence of a right to treatment,

Donaldson could not present a valid

claim. His actions should have been

construed as an effective waiver or

repudiation of any right to treatment.

He failed to uphold his corresponding

duty to be treated.

Certiorari should be granted to resolve

the issue of whether, assuming the exist-

ence of a constitutional right to treat-

ment, the Respondent, Donaldson, by his

actions, effectively waived his right to

treatment.

Conclusion

For the aforesaid reasons, it is

respectfully prayed that a writ of

certiorari be granted to review the

judgment of the United States Court

of Appeals for the Fifth Circuit.

46

Respectfully submitted,

ROBERT L. SHEVIN

Attorney General

APPENDIX

NIEL S. DEARING

ief Trial Counsel

Dept. of Legal Affairs

The Capitol

Tallahassee, Florida

Counsel for Petitioner.

July 25, 1974.

3127

Kenneth DONALDSON, Plaintiff-Appellee,

v.

J. B. OCONNOR, M.D. and John Gumanis, M. D.,

Defendants-Appellants.

No. 73 1843.

United States Court of Appeals, vn

Fifth Circuit. AVES

OFFICE

April 26, 1974.

Former patient who had been involuntarily committed,

under civil commitment procedures, to state mental hospital

brought action against attending physicians and others for

deprivation of alleged constitutional right to receive treat-

ment or be released from the hospital. The United States

District Court for the Northern District of Florida, David L.

Middlebrooks, Jr., J., rendered judgment apainst the attend-

ing physicians and they appealed. The Court of Appeals,

Wisdom, Circuil Judge. neld Lal pauient nad consuiuuOnai

right to such treatment as would help him to be cured or to

improve his mental condition; that evidence supported finding

that attending physicians had acted in bad faith with respect

vo their treatment of patient and were personally liable for his

injvries or deprivations of his constitutional rights; and that

limitation period did not begin to run until patient’s release

from the hospital.

Affirmed.

1. Appeal and Error ©233(2)

Defendants’ objections to instructions given at plaintiff's

request were properly before the court on review of judgment

in favor of plaintiff even though defendants did not object to

Synopecs, Syllatn and Key Number Classification

COPYRIGHT © 1974, by WEST PUBLISHING CO

The Syropses, Syllabi and Key Number Classifi- —_—

cation constitute no part of the opinion of the court ' INDEX ED

BESL_GOPY AVAILABLE

3128 DONALDSON v. O'CONNOR

tie instructions when they were discussed in chambers or

after charge was read to jury where defendants did object to

the instructions in a pretrial brief.

2. Constitutional Law ©-255(5)

Where nondungerous patient is involuntarily committed

under civil commitment procedures to state mental hospital,

only constitutionally permissible purpose of confinement is to

provide treatment and patient has due process right to such

treatment as will help him to be cured or to improve his

mental condition. U.S.C.A-Const. Amend. 14; 42 U.S.C.A.

§ 1983.

3. Constitutional Law 255(1)

Generally, as matter of duc process, long-term detention

is permitted only when an individual is proved, ina proceeding

subject to limitations of due process clause, to have committed

a specifie act defined as an offense against the state and such

detention is allowed only for period of time explicitly fixed by

sentence. U.S.C.AConst Amend 14

4. Constitutional Law ©255(1)

Where detention of individual is not in retribution for a

specific offense, is not limited to fixed term and has not been

preceded by proceeding in which fundamental procedural safe-

guards have been observed, there must be a quid pro quo, such

as rehabilitative treatment or minimally adequate habilitation

and care where rehabilitation is impossible, in order to justify

confinement. U.S.C.A.Const. Amend. 14.

5. Civil Rights =» 13.13(3)

In action by former mental patient who had been involun-

tarily committed under civil procedures to state mental hospi-

tal against attending physicians for deprivation of rieht to

receive treatment or be released, evidence concerning with-

holding of treatment, blocking of efforts to have patient

released, confinement of pationt even though he was not

dangerous or with reckless disregard as to whether he was

dangerous and failure to do best that could have been done

with availabie resources sustained determination that attend-

DONALDSON vy. O'CONNOR 3129

ing physicians had aeted in bad farch and were personally

liable for injuries sustained by patient and for deprivation of

pacient’s right to reecive treatment. U.S.C.A.Const. Amend,

14; 42 U.S.C.A. § 1983.

6. Vederal Civil Procedure => 2096

Objection to composition of jury was not timely raised

where it was not mentioned until after jury was impanelled.,

28 U.S.C.A. § 1868()(5).

7. Federal Civil Procedure 2092

Jury selection plan allowing certain specified classes of

persons, including actively engaged members of the clergy

and actively practicing attorneys, physicians, dentists and

nurses to be excused from jury duty if they desired was in

compliance with Jury Selection and Service Act. 28 U.S.C.A.

§ 1863(b)(5); U.S.C.A.Const. Amend. 7.

8. Limitation of Actions 58(1)

Limitation period applicable to civil rights action brought

by former patient of state mental hospital against attending

Ros om . ’ wes es . - ZB? sak ss 6 $ @ .«5 @ se . a

preety ewes atee sawpre ee cewanses ‘4a gear s epyeee YY PRARRETR HER EEE EE

.

be released did not begin to run until patient’s release from

hospital; period did not begin to run on date patient was

taken from care of defendant physician. 42 U.S.C.A. § 1983;

F.S.A. § 95.11(4), (5)(a), (6).

9. Limitation of Actions o55(6)

When tort involves continuing injury, cause of action

accrues and limitation period begins to run at time tortious

conduct ceases.

10. Limitation of \ctions =55(6)

Cause of action for false imprisonment does not accrue

until release of imprisoned party.

11. Courts @=375(4)

In a civil rights suit, even though state statute of limita-

tion is applicable, question of when cause of action has ac-

crued is a matter of federal rather than state law. 42

US.C.A. § 1983.

3hsu DONALDSON v. O'CONNOR

le Civil Rights ~- 40)

Attending physician was not entitled to immunity from

lixbility under Civil Rights Act for deprivation of right of

patient at state mental hospital to receive treatment absent

finding that he had aeted in good faith. 42 U.S.C_A. § 1983.

14. Civil Rights 13.80)

Full range of officials’ immunities available at common

law does not apply in actions brought under Civil Rights Act.

42 US.C.A. § 1983.

14. Civil Rights © 13.1303)

Evidence that physicians who attended patient who had

been involuntarily committed to state mental hospital had

acted maliciously, wantonly or oppressively was sufficient to

sustain award of punitive damages for deprivation of patient's

right to receive treatment or be released. 42 U.S.C_A. § 1983.

15. Civil Rights 13.10

Failure of patient who had been involuntarily committed

tn etatea ecnme@entd La<e.” «3 . ° ate? cr ‘ .* ew 4

=~ eee eee ee eBee Bek ree | ee be te ee mLoevracmit Vi tip

competency did not preclude determination that attending

physicians had deprived patient of his right to receive treat-

ment or to be released where state law did not permit person

adjudged incompetent to petition on his own for restoration of

competency. F.S.A. § 394.22.

Appeals from the United States District Court for the

Northern District of Florida.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

This case requires us to decide for the first time the

far-reaching question Whether the Fourteenth Amendment

guarantees a right to treatment to persons involuntarily civil-

ly committed to state mental hospitals. The plaintiff-appel-

lee, Kenneth Donaldson, was civilly committed to the Florida

State Hospital at Chattahootehee in January 1957, diapnosed

as a “paranoid schizophrenic”. He remained in that hospital!

acct fOPY AVAILABLE

DONALDSON v. O'CONNOR 3131

for the next fourteen and a half years. During that time he

received little or no psychiatric care or treatment.

Donaldson contends that he had a constitutional right to

receive treatment or to be released from the state hospital.

In this action, filed February 24, 1971, he seeks damages

under 42 U.S.C. § 1983 ' against five hospital and state mental

hea!th officials who allegedly deprived him of this constitu-

tional right. A jury returned a verdict of $28,500 in compen-

satory damages, and $10,000 in punitive damages against the

two defendants-appellants, Dr. J. B. O'Connor and Dr. John

Gumanis. Dr. O'Connor, as Acting Clinical Director of the

Hospital, was Donaldson's attending physician from the time

of his admission until mid-1959. He was Clinical Director of

the Hospital from mid-1959 until late 1963, and Superinvend-

ent thereafter until his retirement February 1, 1971. | Dr.

John Gumanis was Donaldson's attending physician from the

eu of WaT cemseid eh. mwesesesce «fF INLD ai coon se ell

~uwew “ee wee ~~ gee ial } . awwete _/' ** see, aon0tae se cow «eo

defendant by an amended complaint filed April 20, 1972. The _

jury returned a verdict.in favor of the other three defendants.

Gumanis and O'Connor bring separate appeals to this Court.

They chatienge the sufficiency of the evidence to support the

1. 42 USC. § 1983 provides:

Every person who, under color of any statute, ordinance, regu-

lation, custom, or usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be hable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

2. Except when the text clearly indicates otherwise, we use the term

“defendants” in this opinion to refer to Dr. Gumanis and Dr.

O'Connor, against whom judgments were rendered. The other three

who were sued were: Dr. Francis G. Walls, who became Acting

Supermtendent of the Hospital when O'Connor retired from that

position in February 1971, and who held that position for about four

months, Dr. Milton J. Hirschberg, who became permanent Superin-

tendent, succeeding O'Connor, in June 1971, and kimmett 5. Rob-

erts, Secretary of the Department of Health and Rehabilitative

Services in Florida at the time Donaldson filed his First Ainended

Complaint August 30, 1971.

ez DONALDISON +. OCONNOR

jury verdiet? and they contend that the Constitution does not

yuarantes a right to treatment to mental pationts involuntari-

ly civilly committed. Both argue, therefore, that the trial

judge erred in denying a motion to dismiss for failure to state

a claim and in instructing the jury that civilly committed

mental patients have a constitutional right to treatment. In

addition, Gumanis raises a number of lesser issues. We hold

that the Fourteenth Amendment guarantees involuntarily eiv-

ily committed mental patients a right to weatment, and that

the evidence was sufficient to support the verdict. We also

reject the numerous lesser contentions advanced by Gumanis.

Accordingly, we affirm the judgment in Donaldson's favor.

I.

To put the legal issues in proper context as well as to

discuss the defendants’ challenge to the sufficieney of the

evidence, it is essential to review the facts in unusual detail.

Donaldson was committed January 3, 1957, on the petition

AF hon Fenthinne «0 3 . Fe ' * @s . . 2 ,

we thee AAR Ree Meeeee Gee ERE Gh AE EA Grete tip PCLOTE a COUNLY Uae

of Pinellas County, Florida. He was admitted to the Florida

State Hospital twelve days later, and soon thereafter was

diagnosed as a “paranoid schizophrenic”. The committing

judge told Donaldson that he was being sent to the hospital

for “a few weeks” to “take some of this new medication”,

after which the judge said that he was certain that Donaldson

would be “all right” and would “come back here”. Donaldson

‘as not released until July 31, 1971, after he had instituted

this suit.

3. The defendants raised the question of the sufficiency of the

evidence on a motion for directed verdict made at the close of the

plaintiff's evidence, and renewed at the close of all evidence. The

defendants apparently did not move for judgment notwithstanding

the verdict after the verdict was returned, but they did move for a

new trial. The first ground they asserted in their motion for new

trial was that “[t}he verdict is contrary to the clear weight of the

evidence, which evidence showed that Defendants reasonably be-

lieved in pood faith that due to his mental illness and need of

treatment Plainuff was properly confined’.

DONALDSON vy. O'CONNOR 3133

There is little dispute about the general nature of the

conditions under which Donaldson was confined for almost

fifteen years. Donaldson received no commonly accepted

psychiatric treatment. Shortly after his first mental exami-

nation, Donaldson, a Christian Scientist, refused to take any

medication or to submit to electroshock treatments, and he

consistently refused to submit to either of these forms of

therapy. No other therapy was offered. At trial, Gumanis

mentioned “recreational” and “religious” therapy as forms of

therapy given Donaldson; but this amounted to allowing

Donaldson to attend church and to engage in recreational

activities, privileges he probably would have been allowed in a

prison. In the oral argument on appeal the appellants’ coun-

sel made much of what they called “milicu therapy”, which

they said was given Donaldson. This was nothing more than

keeping Donaldson in a sheltered hospital “milieu” with other

mental patients; the defendants did not refer to anything

“ ‘ ° 28 ose co

irs ee cs 0)

Specinn aire ie senssenee

therapeutic.’ Donaldson was usually confined in a locked

room, Where, according to his testimony, there were about

sixty beds, with little more room between beds than was

necessary for a chair; his possessions were kept under the bed.

At night he was often wakened by some who had fits and

by some “who would torment other patients, screaming and

hollering”. Then there was “the fear, always the fear you

have in your heart, | suppose, when you go to sleep that

maybe somebody would jump on you during the night”, A

4. “Milieu therapy” is a frequent response by doctors and hospitals

to claims by patients that they are receiving inadequate treatment.

See Halpern, A Practicing Lawyer Views the Right to Treatment,

1969, 57 Geow.J. 782, 786-87, n. 19. Halpern discusses “milieu

therapy” in discussing Rouse v. Cameron, 1966, 125 U.S App.D.C.

366. 373 F 2d 451, in which the District of Columbia Court of

Appeals held that there was a statutory right to treatment, He

notes that “milieu therapy” is an “amorphous and intangible”

concept, “the easiest therapeutic claim for an institution to assert

and the most difficult for a patient to refute”, Halpern, supra, at 787

n. 19.

jut DONALDSON vo O'CONNOR

third of the patients in the ward were criminals. Indeed,

Donaldson testified, “The entire operation of the ward was

geared to criminal patients.”

Some of Donaldson's testinion’ relating the conditions under

which he lived is worth quoting:

“Q. Now, in the buildings you lived in Department A, were those

biildiny's locked?

ICS, Sir.

Were the wards you hved on locked?

Yes.

Vere there metal enclosures on the windows?

Yes, padiocks on cach window.

Approximately how many beds were there in the rooms

where you slept?

A. Sixty some beds.

Q. How close together were they?

A. Some of the beds were touching, the sides touched, and

‘otHfers there was room enough to put a straight chair if we had

had a chair.

Q. Did you have chairs in the room you were in?

A. There wasn't a chair in the room I was in.

Q. All right, was there an outside exercise yard for your

department?

A. Yes, there was one period in particular when nobody went

~ “0 fe-

~e erry Jui.

OPO>O>

S ivuw, iit. WONaIason, you were civilly committed. You had

not been charged with any crime, is that right?

A. That is right.

Q. Were there criminal patients on your ward?

A. There were criminal patients ,on the ward.

Q. Approximately what percent of the population on your ward

were criminals?

A. Looking back, roughly, | would say a third. 1 do not know

the figures for the whole department.

Q. Let's just talk about your ward.

A. Okay, | would say about a third in the wards I was in

Q. Now, did you sleep in the same rooms as the criminal

patients?

A. Yes.

Q. Did you get up at the same time?

A. Yes.

Q. Did you eat the same food?

A. Yes.

Q. In the same dining room?

A. Yes.

2 Did you wear the same clothes?

Yes. The entire operation of the wards I was on was geared

to the criminal patients.

DONALDSON v. O'CONNOR 3135

During his first ten years at the hospital, progress reports

on his condition were irregularly entered at intervals averag-

ing about one every two and a half months. During those

first ten years, he requested grounds privileges anu oecupa-

tional therapy; his requests were denied. In short, he re-

ceived only the kind of subsistence level custodial care he

would have received in a prison, and perhaps less psychiatric

treatment than a criminally committed inmate would have

received.

At the time Donaldson was admitted to the hospital in 1957,

O'Connor was Assistant Clinical Direetor of the hospital. As

Assistant Clinieal Director, he was in charge of the hospital’s

Department A, then the white male ward, where Donaldson

was assigned upon his admission to the hospital. In that

Q. Let me ask you, were you treated any differently from the

criminal patients?

A Po wae tested wove Una cue Colmar pauents.

2. tow tak oc seoe were you treated worse?

A. The criminal patients got the attention of the doctors.

Generally a docter makes a report to the court every month.

Q. For the criminal?

A. On the criminal patients, and that would be a pretty heavy

case load. It didn't give them time to see the ones who weren't

criminal patients.

Q. Was there a place on the ward you had access to for

keeping personal possessions?

A. No, not at that time.

Q. What did you do with your personal possessions?

A. I kept mine in a cedar box under the mattress of my bed.

Q. Was there a place in the wards where you could get some

privacy? .

A. No, not anytime in all of the years | was locked up.

Q. Were you able to get a good nights sleep?

A. No.

Q. Why not?

A. On ail of the wards there was the same mixture of patients.

There were some patients who had fits during the night. There

were some pationts who would torment other patients, screaming

and hollering, and the fear, always the fear you have in your

mind, | suppose, when you go to sleep that maybe som body wall

jump on you during the night.

They never did, but you think about those things. It was a

lunatic asylum. °

3136 DONALDSON +. OCONNOR

position, O'Connor was Donaldson's attending physician. At

that time, Gumanis was a staff physician in Department A.

Qn July 1, 1959, O'Connor became Clinical Director of the

hospital, and in the fall of 1959, Gumanis was placed in charge

of Department A, and became Donaldson's attending physi-

cian. O'Connor was promoted from the position of Clinical

Director to the position of Superintendent July 30, 1963, and

served as Superintendent until he retired February 1, 1971.

Gumanis served as Donaldson's attending physician until April

18, 1967, when Donaldson was transferred to Department C,

until that time the Negro male ward. After the transfer,.

Donaldson's attending physician was Dr. Israel Hanenson, the

head of Department C until Dr. Hanenson’s death in the fall

of 1970. After that, until his release, Donaldson's attending

physician was Dr. Jesus Rodriguez.

Donaldson brought this suit while he was still a patient at

the hospital. In his original complaint, Donaldson sought to

bring this suit as a class action on behalf of all patients in the

esepnats Terarteent C. fn séditiscs ts damama t th

plainuiit and to the class, the complaint sought habeas corpus

relief directing the release of Donaldson and of the entire

class, and sought broad declaratory and injurictive relief re-

quiring the hospital to provide adequate psychiatric treat-

ment.

After Donaldson's release, and after the district court dis-

missed the action as a class suit, Donaldson, on August 30,

1971, filed his First Amended Complaint. This complaint

sought individual damages and renewed Donaldson's prayers

for declaratory and injunctive relief to restrain the enforce-

ment of Florida's civil commitment statutes unless Florida

provided adequate treatment to its civilly committed mental

patients. The complaint asked the district court to convene a

three-judge distriet court to consider the plaintiff's attack on

the constitutionality of the civil commitment statutes as they

then operated. On November 30 however, the plaintiff in a

memorandum brief abandoned the prayer that a three-judge

BEST_COPY_AVAILABLE

DONALDSON v. O'CONNOR 3137

court be convened. The prayers for injunctive and declarato-

ry relief therefore were effectively eliminated from the case.

The key allegation in the amended complaint charged that

the defendants O'Connor and Walls had “acted in bad faith

toward plaintiff and with intentjonal, malicious, and reckless

disregard of his constitutional rights”. The complaint alleged

examples of such actions, including the denial to Donaldson of

grounds privileges; the refusal of the psychiatrists to speak -

with him, even at his own request; refusal or obstruction of

his opportunities for out-of-state discharge, despite a recom-

mendation by a staff conference that he be given such a

discharge, and despite the presentation of a signed parental

consent to such a discharge. The core of the charge, however,

was that Walls and O'Connor acted intentionally and mali-

ciously in “confining Donaldson against his will, kiwwing that

[he] was not physically dangerous to himself or others”; in

Owen bes cet ev eed Pee ncorsecce 64.6.6 «8

rere Serra n,

od of his hospitalization would be prolonged”; and that they

“intentionally limit{cd] [his] ‘treatment’ program to ‘custodial

car’ for the greater part of his hospitalization”. Correspond-

ing to these allegations, the complaint sought $100,000 dam-

ages against Walls and O'Connor.

The trial began November 21, 1972, and continued for four

days. The jury returned a verdict awarding Donaldson $17,-

000 in compensatory damages and $5,000 in punitive damages

against O'Connor, and $11,500 in compensatory damages and -

$5,000 in punitive damages against Gumanis. The jury re-

turned verdicts in favor of the other three defendants. From

the judgment entered on this verdict, Gumanis and O'Connor

appeal.

The trial centered, of course, upon the conditions of Donald-

son's confinement and upon the defendants’ behavior toward

Donaldson. On the record as a whole, there was ample

3138 DONALDSON v. OCONNOR

evidence to support the jury’s reaching any or all of the

conclusions set forth in the following subsections in Part I of

this opinion.

A. The deferdants unjustifiably withheld from Donaldson

specific forms of weatynent.

The evidence establishes that there were at least three

forms of treatment the defendants withheld from Donaldson.

First, he was denied grounds privileges. Since the purpose

of hospitalization is to restore the eapacity for independent

community living, one of the most base modes of treatment is

giving a patient an increasing degree of independence and

personal responsibility. One of the plaintiff's expert witness-

es was Dr. Walter Pox, Director of the Arizona Mental Health

Department and former president of the Associa‘ion of Medi-

cal Superintendents of Mental Hospitals. He had interviewed

Donaldson and examined his hospital record. Fox testified

that confining Doraldson to a locked building with na anno

‘funity for piGumdo prisueges was mor consistent with a

treatinent plan for a patient with Donaldson's history.

Gumanis denied Donaldson a privilege card, even after

Donaldson had asked him for one. Fox‘testified that it would

have been “standard psychiatric practice” to extend grounds

privileges to a paticnt of Donaldson's background, condition,

and history. Gumanis, in his testimony at trial, could not give

a convincing explanation for his refusal of grounds privileges

to Donaldson.£ At one point he sought to shift the responsibil-

ity for the refusal to O'Connor's shoulders, saying that he

recalled having denied. privileges after consultation with

O'Connor. Later, he testified that at the time in question

Donaldson had appeured to him to be “really upset”, and that

6. Donaldson testified that he had once escaped from the hospital!

This occurred around Christmastime 1957, shortly before the end of

the first year Donaldson had spent at Florida State. The hospital

records, however, did not show that a fear Donaldson would at-

tempt to escape again motivated the denial of grounds privileges:

nor have Gumanis and O'Connor asserted before this Court that

such a fear was their reason for denying Donaldson a card.

DONALDSON vy. O'CONNOR 3139

he had “probably” made the decision to deny Donaldson a

privilege card on his own.

Donaldson testified that soon after his transfer to Depart-

ment C, Dr. Hanenson, the physician in charge of that depart-

ment, gave him a privilege card.

The second form of treatment denied Donaldson was occu-

pational therapy. Donaldson testified that Gumanis consist-

ently refused to allow him to enter occupational therapy.

This testimony was borne out by a progress note entered in

Donaldson's hospital record January 17, 1964. Again, Fox

testified that given what he called Donaldson's “social histo-

ry", Dénaldson would have been ideally suited to benefit from

occupational therapy. According to Donaldson, Gumanis did

not want him to go into occupational therapy, because Gu-

manis feared that he would learn touch-typing and would use

this skill, in Donaldson's words, to “write writs”, that is, to

prepare habeas corpus petitions. Gumanis gave no reason

why he denied Donaldson occupational therapy, although in

ine course OF Mis testimony he did allurta te the foot that he

had done so. Not until Donaldson was transferred to Dr.

Hanenson's care was he allowed to enter occupational therapy.

Third, the simplest and most routine form of psychiatric

treatment is to have a patient talk with a psychiatrist. Don-

aldson testified that in the eighteen months O’Connor was in

direct charge of his case, he spoke with O'Connor “not more

than six times”, and that the total time he spent talking to

O'Connor did not consume more than one hour. He testified

that in the eight and one-half years he spent under Gumanis’

care, he did not speak with Gumanis more than a total of two

hours—an average of about fourteen minutes a year. He

testified that neither Gumanis nor O'Connor ever heeded his

requests to discuss his case. On one oecasion Gumuanis said

that he “talked only to patients that he wanted to”. Gumanis

did not recall that conversation. Once again, there was evi-

Site DONALDSON +s. O'CONNOR

dence to show that the situation improved when Donaldson

was transferred to Dr. Hanenson’s care. Donaldson testified

that Hanenson managed to speak with him once a week, even

though, according to Donaldson, patients were more numer-

ous, psvchiatrists fewer, and conditions worse in Hanenson's

Department © than they had been in Guinanis’ Department A.

B. The defendants recklessly failed to attend to and treat

Donaldson at precisely those junctures when treatment

could have most helped Donaldson recover and there-

fore be released.

The jury could have concluded that Donaldson should have

leen marked, at his entrance to the hospital, as a prime

candidate for an early release, and that the defendants acted

recklessly in failing to treat or attend to him during the early

stage of his confinement. Fox testified that, given Donald-

son's history,’ he should have been “pegged” for an “early

discharge”. Moreover, a progress note entered by Gumanis

after his first diagnostic interview with Donaldson. March 25.

wer 2. st..4 a) 4s vee

AYU Hy ERRUESER SE Rhee AFUETCAENED UI appeareu

sion”. Gumanis defined “remission” for the jury as a state

“when the patient does not express delusions or paranoid

ideas”, and told the jury that it was hospital practice to

release patients who were in remission. He testified that

Donaldson was not released because he wanted to “observe

[Donaldson] further”. But after that interview the first

progress note entered in Donaldson's hospital record is dated

four months later; and the next report five months after that.

Asked about this, Gumanis first replied, “When you have 900

patients you do that”; later, he insisted that he had seen

Donaldson frequently, but had not recorded progress notes

after cach observation. The jury, however, could have dis-

' .

tv tm ith PMID

7. Fourteen years before he was hospitalized in Florida, Donaldson

had been hospitalized at the Marcy State Hospital in New York,

with the same diagnosis as that made by the Florida doctors—"par-

anoid schizophrenic’. On that occasion, Donaldson was released

after three months

BEST_COPY_AVAILABLE

Brion.

DONALDSON vy. O'CONNOR 3141

counted this testimony and concluded that Gumanis acted

wantonly in giving «a patient who had appeared to be “in

remission” the same treatment he gave his 900 other patients.

C. The defendants wantonly, maliciously, or oppressively

blocked efferts by responsible and interested friends

and organizations to have Donaldson released to their

custody. .

At issue here are two efforts made to secure Donaldson's

release, one by Helping Hands, Inc., a Minneapolis organiza-

tion which runs halfway houses for mental patients and John

H. Lembcke, a college friend of Donaldson.

1. The Helping Hands’ attempt to obtain Donaldson’s re-

lease.

Helping Hands made an inquiry to the hospital concerning

the possibility of releasing Donaldson to its custody by a letter

dated June 6, 1963:

We are interested in the possibility of signing ot your

patient, Kenneth Donaldson, and taking him as a resident at

our hallway house at 4800 Columbus Avenne Minneanolis

A maximum of six people live here, including our house -

mother, and myself, as president. At this time we have a

room for Kenneth, who has interested us very much

through his letters.

Enclosed with the letter was a brochure describing Helping

Hands and a letter from the Minneapolis Clinic of Psychiatry

and Ne rology, stating that “it would be impossible in any of

our State Hospitals for a patient to receive the type of

attention and care” provided at Helping Hands. The author

of this letter pointed out that the woman identified by the

letterhead as the fennder and director of Helpings Hands had

“rehabilitated well over a thousend over the years”. The

letter requested information concerning Donaldson's age,

health, and “qualifications for work”.

The hospital responded June 17, 1973, in a letter signed by

O’Connor, then Clinical Director of the hospite!. It gave

3142 DONALDSON v. O'CONNOR

Donaldson's age, and answered inquiries concerning his health

and quilifieations for work with the bare statement that

Donaldson was “nentally incompetent at the present time.”

The crisp concluding paragraph read:

Should he [Donaldson] be released from this Hospital, he

will require very strict supervision, which he would not

tolerate. Such a release would be to the parents. We sce

no prospects of his release to any third party at any time in

the near future.

The jury could have decided that Gumanis and O'Connor

acted wantonly and maliciously in issuing this response, and

that this conduct foreclosed an opportunity for Donaldson to

win back at least a part of his frecdom, and to gain access to a

level of psychiatric treatment unavailable to him at the Flori-

da Hospital. Each of the defendants sough. to shift the

responsibility for sending this curt reply to the other’s shoul-

ders. They discussed the question in terms of whether hospi-

a patient could be furloughed by the attending physician, or

the Superintendent or Clinical Director; they did not discuss

it in terms of their recollections of the particular event. The

jury would have been justified in finding the two jointly

responsible for the incident.

2. The Lembcke attempt to obtain Donaldson’s release.

John H. Lembcke, a certified public accountant, in Bing-

hamton, New York, who is married and has three children,

had been a classmate of Donaldson's at Syracuse University in

the 1920's. On four dccasions, Lembeke sought to have Don-

aldson released to his custody. The first was on July 3, 1964,

when Lembcke informed the hospital that Donaldson was a

friend of his, and inquired whether there were “any corditions

under which he would be released so that I could bring him

back to New York State”. The same day the hospital received

the letter, O’Connor pencilled a note to Gumanis that is

BESL_GOPL_AVAILABLE |

DONALDSON v. O'CONNOR 3143

attached to the letter in Donaldson’s hospital record. The

note said:

'

This man must not be well himself to want to get involved

with someone like this patient, who even the recent visiting

psychologist considered dangerous—Recommend turn it

down.

Rich, the new Clinical Director, wrote Lembcke saying that

Donaldson had “shown no particular changes mentally”, and -

that if released he would “require complete supervision”.

The second inquiry came by letter of November 27, 1964.

Again O'Connor appended a note to Gumanis that is in the

hospital records. This note gave three reasons for denying

Lembcke’s request to have Donaldson released to him: paren-

tal consent would be required; the patient “would not stay

with party mentioned”; and “we don’t know anything about

party”. Gumanis prepared a letter, dated November 27 and

: sivwesseed bee TY Tink 66. -B..2.05.. -.9 8 .8 et .2 '

SOS SIGN SY ah. awry ee Oper y RAR HEARNE Chee AZEIann

son would “require further hospitalization”. The reply did not

mention the three reasons for the denial set out in O’Connor’s

note, and did not request any further information from

Lembeke, even though Lembcke in his November 23 letter had

offered to provide any information the hospital should re-

quest.

The third attempt by Lembcke began with another letter to

the hospital, dated December 21, 1965. According to

Lembeke’s testimony, the hospital responded by saying Don-

aldson could be released on two conditions: (1) that Lembeke °

would give Donaldson “adequate supervision” so that the

release would not be detrimental to his mental health; and (2)

that Lembcke would secure parental permission for Donaldson

to go to New York with Lembcke. In May 1966, Lembcke

went to Florida, and met with Gumanis and O’Connor. While

in Florida he saw Donaldson and obtained from Donaldson's

parents a letter dated May 14, 1966, giving their convent to

Donaldson's being released to him. Nothing happened. In his

3Hit DONALDSON v. O'CONNOR

testimony Lembcke did not explain how or why he came to

abandon this 1966 effort to sccure his friend's release.

Lembecke’s final and most important cffort to secure Don-

aldson’s release began in March 1968. On March 21, the

General Staff, at a meeting attended by Gumanis and Hanen-

son but not by O'Connor, recommended Donaldson's release on

a trial visit or out-of-state discharge. On March 24, Lambeke

wrote the hospital renewing his offer to take Donaldson. On

March 28, the hospital responded, imposing three conditions on

Donaldson's release: (1) that Lembecke be willing to come for

Donaldson; (2) that he be willing to supervise Donaldson; and

(3) that he be willing to take Donaldson to a psychiatrist if

Donaldson needed treatment. By letter of March 3),

Lembcke acceded to these conditions. On April 4, the hospital

replied with a letter imposing two additional conditions: (1) a

detailed statement concerning the home s: pervision Donald-

son would be given; and (2) written authorization for the

release from Donaldson's parents. Lembeke wrote back giv-

ing the hacer ‘tal the infarmatinn ahant hame srnervision it

requested. ine hospital replied by again saying it woulda ve

necessary to obtain the written consent of Donaldson's par-

ents.

On September 18, 1968, Lembcke wrote the hospital, enclos-

ing a photocopy of the notarized written permission Donald-

son’s parents had signed May 14, 1966. The hospital respond-

ed in a letter dated September 24, signed by Dr. Rich. The

letter informed Lembcke that Donaldson had been mentally ill

for many years, that he “still express[ed} delusional thinking”

and that “it would not be fair to you or to him to release him

from the hospital at this time without adequate planning”.

The letter added, in its final paragraph, that it would be

necessary for the hospital to have more recent authorization

from Donaldson’s nearest relative than the one Lembeke had

proffered. At that point, Lembcke gave up; whenever he

met the conditions imposed by the hospital! officials, new

ee

-» Be ghee ere

oe Fe

DONALDSON v. O'CONNOR 3145

conditions were imposed. As he put it, “after requirements

were met, requirements were increased”.

One other facet of Lembcke’s last attempt to secure Donald-

son’s release bears mention. As noted, O’Connor did not

attend the Staff Conference which had recommended Donald-

son's release March 21. O’Connor first learned of the hospi-

tal’s recommendation in June, when Donaldson wrote to the

Division Director of the hospital concerning the effort being —

made to release him. The division director forwarded the

letter to O'Connor, who in turn forwarded it to Hanenson,

asking for information concerning the proposed release. Han-

enson responded with a memorandum dated June 17. Across

the bottom of this memorandum, O’Connor pencilled in the

remark, “the record will show, I believe, we have been

through this before and decided Mr. Lembcke would not

properly supervise the patient”. It was not clear when O’Con-

nor supposed this “decision” to have been made, and in his

donagition VCannar was unahle ta lneata any reecard of it in

tue hospital recora. Moreover, tnere were suggestions in tne

record that Dr. O’Connor’s conduct, in this and other respects,

was influenced by his knowledge of Donaldson’s history of

writing letters to the press and to outside officials. From all

of this evidence, the jury would have been justified in conclud-

ing that the frustration of Lembcke’s effort to secure Donald-

son’s release in 1968 was entirely or primarily the result of

O’Connor’s bad faith intervention or, at the least, that the

intervention was in reckless disregard of Donaldson’s rights.

D. The defendants continued to confine Donaidson know-

ing he was not dangerous, or with reckless disregard

for whether he was dangerous.

Three of the plaintiff's expert witnesses—Fox, Raymond D.

Flowler, Jr., Chairman of the Psychology Department at the

University of Alabama and former President of both the

Alabama and Southern Psychological Associations, and Julian

Davis, Director of the Psychology Department at the florida

State Hospital—-testified that they did not believe Donaldson

3146 DONALDSON v. O'CONNOK

was dangerous. Fox's and Flowler’s opinions were based

upon readings of the hospital records, Donaldson's psychologi-

cal reports, Donaldson's past history, and raw data from his

psychological examination. Lembecke testified that in his half

century of having known Donaldson, he had never known

Donaldson to be “violent”, “agyressive’, or “belligerent”;

that, on the contrary, he knew Donaldson to be a “gentle”

man. Dr. Walls testified that he did not believe Donaldson

was physically dangerous; Gumanis himself conceded that he

did not think Donaldson dangerous while Donaldson was in

the hospital, although he said he could not predict what

Donaldson would be like outside the hospital. There was no

evidence in the record of Donaldson's ever having been violent

in any way.

On the basis of this testimony the jury would have been

justified in finding that Donaldson was not dangerous, and in

inferring that the defendants knew him to be so.

E. The defendants did not do the best they could with

available resources.

Ac thay did in tho district court, Uhe detemuanio on appeal

pitch their defense in substantial part on their contention that

they did the best they could with limited resources available to

the state psychiatric hospital. Donaldson rebuts this conten-

tion, first, by pointing out the contrast between the treatment

he received from the defendants and that he received from

Hanenson. Hanenson allowed him grounds privileges and

occupational therapy, spoke with him frequently, and within a

year of taking charge of his case arranged a staff conference

that recommended his release. Second, he relies on the testi-

mony of Fox and the other experts to the effect that Gumanis

and O’Connor failed to take steps that would have been open

to them to take, even given the admittedly stark limitations

on the resources available to them. We agree that these two

considerations were a sufficient basis for the jury to reject the

defendants’ defense that they did the best they could with

available resources.

DONALDSON v. O'CONNOR 3147

We turn now to the novel and important question whether

civilly committed mental patients have a constitutional right

to treatment.

Il.

{1} The theory of Donaldson’s cause of action under sec-

tion 1983 was set forth in three of the instructions given by

the trial judge. The first, instruction number 34, was a

variation of a standard form “boiler plate” instruction found °

in 2 Dewitt & Blackmer’s Federal Jury Practice & Instruc-

tions, 1970, § 87.05 (2d ed.) This instruction stated that there

were four basic elements Donaldson had to prove to make out

a claim under § 1983: (1) that the defendants “confined

plaintiff against his will, knowing that he was not mentally ill

or dangerous, and knowing that if mentally ill he was not

receiving treatment for his mental illness”; (2) that defend-

ants “then and there acted under the color of state law”; (3)

that defendants’ “acts and conduct deprived the plaintiff of

hie fadorn! conctituticnal Tight not to we acme ie very

without due process of law as that phrase is defined and

explained in these instructions”: and (4) that the defendants’

“acts and conduct were the proximate cause of injury and

consequent damage to the plaintiff”. The other two instruc-

tions, 37 and 38, were the relevant instructions “defin{ing] and

explain[ing]” the “phrase”, “federal constitutional right not to

be denied or deprived of his liberty without due process of

law”, within the meaning of instruction 34. These instruc-

tions told the jury:

37. You are instructed that a person who is involuntarily |

civilly committed to a mental hospital does have a

constitutional right to receive such individual treat-

ment as will give him a realistic opportunity to be

cured or to improve his mental condition.

38. The purpose of involuntary hospitalization is treatment

and not mere custodial care or punishment if a patient

is not dangerous to himself or others. Without such

3148 DONALDSON v. O'CONNOR

treatment there is no justification, from a constitution-

al standpoint, for continued confinement.

The propriety of these two instructions is the heart of the

question raised by both O'Connor and Gumanis in their ap-

peals.*

{2} The question for decision, whether patients involuntar-

ily civilly committed in state mental hospitals have a constitu-

tional right to treatment, has never been addressed by any of

the federal courts of appeals. Three district courts, however,

have decided the question within the last three years, two of

which held that there is a constitutional right to treatment.’

8. Asa threshold matter, Donaldson suggests that the objections to

these instructions are not properly before this Court. He notes that

the defendants did not object to that instruction either when the

proposed instructions were discussed in chambers, or after the

charge was read to the jury. The defendants did, however, object to

what were then the plaintiff's proposed instructions 37 and 38 in a

pretrial brief filed before the Court. There they asked that those

inctrnetinne he rantoood with on insists cae pysuu are msiruct-

ed that o pi.co wie bs CommmeecU LO a Mental nospital has a right

to be released through judicial process when through no fault of his

own treatment is not afforded and he is not dangerous to society or

te himself”. The trial judge refused this request, and gave the two

instructions as the plaintiffs had proposed them. It is settled that

a failure to object may be disregarded if a party's position has

previously been made clear to the court and it is plain that a further

objection would be unavailing”. 9 C. Wright & A. Miller, Federal

Practice & Procedure § 2553 at 639-40; see, ec. g., Mays v. Dealers

Transit, 7 Cir. 1971, 441 F.2d 1344; Steinhauser v. Hertz Corp., 2

Cir. 1970, 421 F.2d 1169. We find that’ was the case here, and

therefore we consider that the objections are properly before the

Court.

9. Two cases he'd that there is a right to treatment for civilly

committed mentally ill patients. Wyatt v. Stickney, M.D.Ala.197),

325 F.Supp. 781, on submission of proposed standards by defend-

ants, 334 F.Supp. 1341, enforced, 1972, 344 F.Supp. 373, 387, appeal

docketed sub nom., Wyatt v. Aderholt, No. 72. 2634, 5 Cir. Aug. 1,

1972; Stachulak v. Coughlin, N.D.HL, 1973, 364 F.Supp. 686. One

has held civilly committed mentally ill patients enjoy no right to

treatment. Burnham v. Department of Public Health, N.D.Ga.1972,

349 F.Supp. 1335, appeal docketed, No. 72--3110, 5 Cir., Oct. 4, 1972

A fourth case has recently held that civilly committed mentally

retarded patients have a right to treatment. Welsch v. Likins, No.

4 72-Civ. 451, D.Minn. Feb. 15, 1974, — F.Supp. —.

ee ee on ee ee een ae ae

DONALDSON v. O'CONNOR 3149

The Court of Appeals for the District of Columbia Cireuit, ina

case decided eight years ago, took note in dictum of the

existence and scriousness of the question, although in the

same case the court held that the Hospitalization of the

Mentally Ill Act of 1964” creates a statutory right to treat-

ment on the part of mental patients in the District of Colum-

bia." The idea of a constitutional right to treatment has

received an unusual amount of scholarly discussion and sup-

port,” and there is now an enormous range of precedent -

10. D.C.Code Ann. § 21-501.

It. Rouse v. Cameron, 1966, 125 U.S.App.D.C. 366, 373 F.2d 451.

Chief Judge Bazelon wrote for the Court:

Absence of treatment “might draw into question ‘the constitu-

tionality of [this] mandatory commitment section’ as applied.”

(1) Lack of improvement raises a question of procedural due

process where the commitment is under D.C.Code § 24-301 rather

than under the civil commitment statute, for under § 24 301

commitment is summary, in contrast with civil commitment safe-

guards. It dovs not rest on any finding of present insanity and

ey eye but, on the contrary, on a jury's reasonable doubt

wi The Guia was sate wren ne Committed the act chareed.

Comunnient On LOIS DasIs ts permissible because of its humane

therapeutic goals. (2) Had appellant been found criminally re-

sponsible, he could have been confined a year, at most, however

dangerous he might have been. He has heen coutined four years

and the end is not in sight. Since thi. difference rests ouiy on

need for treatment, a failure to supply treatment may raise a

question of due process of law. It has also been suggested that a

failure to supply treatment may violate the equal protection

clause. (3) Indefinite commitment without treatment of one who

has been found not criminally responsible may be so inhumane as

to be “cruel and unusual punishment.” [Footnotes and citations

omitted]

Id. at 453.

12. The landmark article in the field is Birnbaum, The P:ght to

Treatment, 1960, 46 A.B.A. Journal 499. Much of the commentary

in the area was stimulated by the Rouse decision. E. g., S. npasi-

um-—The Right to Treatment, 1969, 57 Geo.L.J. 673 (11 artic! -s, 218

pages), Bazelon, Implementing the Right to Treatment, 1559, 36

U.Chibl. Rev. 742; Birnbaum, Some Remarks on “The Ristht to

Treatment,” 1971, 23 Ala.L.Rev. 623; Chaimbers, Alternatives to

Civil Commitment of the Mentally Uk Practical Guides and Consti-

tutional Imperatives, 1969, 70 Mich.L.Rev. 1105; Katz, The © ght to

Treatment—-An Enchanting Legal Fiction? 1969, ULChiLL.R: v. 755;

Drake, Enforcing the Right to Treatment: Wyatt v. Stickney, 1972,

10 Am.Crim.L. Rev. 557; Morris, “Criminality” and the Ki tht to

3150 DONALDSON v. O'CONNOR

relevant to, although not squarely in point with, the issue.”

The idea has been current at least since 1960, since the

publication in the May 1960 issue of the American Bar Associ.

ation Journal of an article by Dr. Morton Birnbaum, a forensic

medical doctor now generally evedited with being the father

of the idea of a right to treatment." The A.B.A. Journal

editoriaily endorsed the idea shortly after the publication of

Dr. Birnbaum’s article.”

We hold that a person involuntarily civilly committed to a

state mental hospital has a constitutional rijht to receive such

individual treatment as will give him a reasonable opportunity

to be cured or to improve his mental condition.

In reaching this result, we begin by noting the indisputable

fact that civil commitment entails a “massive curtailment of

liberty” in the constitutional sense. Humphrey v. Cady, 1972,

405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394. The destruc-

wu ul an individuals personal freedame offootod ry iG

commitment is scarcely less total than that effected by con-

finement in a penitentiary. Indeed, civil commitment, be-

cause it is for an indefinite term, may in some ways involve a

more serious abridgement of personal freedom than imprison-

ment for commission of a crime usually does. Civil commit-

ment involves stigmatizing the affected individuals, and the

stigma attached, though in theory less severe than the stigma

attached to criminal conviction, may in reality be as severe, or

more so. Since civil commitment involves deprivations of

Treatment, 1969, U.Chi.L.Rev. 7814, Note, The Nascent Right to

Treatment, 1967, 53 Va.L.Rev. 1134; Note, Civil Restraint, Mental

Iiness, and the Right to Treatment, 1967, 77 Yale L.J. &7; 80

Harv.L.Rev. 898 (1967).

13. See cases cited at nn. 23-44 infra.

14. Birnbaum, The Right to Treatment, 1960, 46 A.B.A.J. 499.

15. Editorial, A New Right, 1960, 46 A.B.AJ 516.

16. On the recognition that stigmatization constitutes a deprivation

of liberty in the constitutional sense, sce Board of Regents v. Roth,

1972, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548, 558 555

ee ene Cee ee ee er Se er hoe

DONALDSON v. O'CONNOR 3151

liberty of the kind with which the due process clause is

frequently concerned, that clause has the major role in regu-

lating government actions in this area.

Beyond this, the conclusion that the due process clause

guarantees a right to treatment rests upon a two-part theory.

The first part begins with the fundamental, and all but

universally accepted, proposition that “any nontrivial govern-

mental abridgement of [any] freedom [which is part of the

‘liberty’ the Fourteenth Amendment says shall not be denied

without due process of law] must be justified in terms of some

‘permissible governmental goal.’ Tribe, Foreword—Toward

a Model of Roles in the Due Process of Life and Law, 86

Harv.L.Rev. 1, 17 (1973). Once this “fairly sweeping concept

of substantive due process” is assumed, id. at 5 n. 26,” the

next step is to ask precisely what government interests justify

the massive abridgement of liberty civil commitment entails.

Typically, three distinct grounds for civil commitment are

roonmniacd by state olaiuics. danger LO sell: danger to oth.

ers; and need for treatment, or for “care”, “custody”, or

“supervision”. Jackson v. Indiana, 1972, 406 U.S. 715, 737, 92

S.Ct. 1845, 32 L.Ed.2d 435; see Note, Civil Commitment of the

Mentally Ill: Theories and Procedures, 1906, 79 Harv.l.Rev.

1288, 1289-97; Note, 1967, The Nascent Right to Treatment,

53 Va.L.Rev. 1134, 1138-39." It is analytically useful to

conceive of these grounds as falling into two categories; one a

17. See also Ely, The Wages of Crying Wolf: A Comment on Roe v.

Wade, 1973, 82 Yale L.J. 920, 935 & n. 91; Roe v. Wade, 1973, 410

U.S. 113, 172-173, 93 S.Ct. 705, 35 L.Ed2d 147 (Rehnquist, J.,

dissenting); Doe v. Bolton, 1973, 410 U.S. 179, 223, 93 S.Ct. 739, 35

L.Ed.2d 201 (White, J., dissenting).

18. In Jackson, the Supreme Court, relying upon an American Bar

Foundation study, found that in nine states the sole criterion for

involuntary commitment was the danger to self or others; that in 18

other states the patient's need for care or treatment was an alterna-

tive basis; that the need for care.or treatment was the sole basis in

six other states; and a few states had no statutory criteria at all and

“presumably le[ft] the determination to judicial discretion”. 106

U.S. at 737 n. 19, citing American Bar Foundation, The Mentally

Disabled and the Law (rev. ed. 1971) at 36 49.

SbS2 DONALDSON v. OCONNOK

“police power” rationale for confinement, the other a “parens

patriae” rationale.” Danger to others is a “police power”

rationale; need for eare or treatment a “parens patriae™

rationale. Danger to self combines clements of both.

The key point of the first part of the theory of a due

process right to treatment is that where, as in Donaldson's

case, the rationale for confinement is the “parens patriae”

rationale that the patient is in need of treatment, the due

process clause requires that minimally adequate treatment be

in fact provided. This in turn requires that, at least for the

nondangerous patient, constitutionally minimum standards of

treatment be estaolished and enforced. As Judge Johnson

expressed in the Wyatt case: “To deprive any citizen of his or

her liberty upon the altruistic theory that the confinement is

for humane therapeutic reasons and then fail to provide

adequate treatment violates the very fundamentals of due

process.” Wyatt v. Stickney, supra, 325 F.Supp. at 785. Or as

Justice Cutter, speaking for the Supreme Judicial Court of

Massachusetts, put it: “Confinement of mentally ill persons,

emt Ba.cee D0 nc. 280.. OP ocscieces cvese®. of ce ~ at ‘ ‘1

BANFE BRAT ENE BL MAOF Ry SFR RH EETER gy OPP RAEN FRR CORA E NETHER BEEN EFS BR CHET THERE TEN

treatment also raises serious questions of deprivation of liber-

ty without due process of law. As we said in the Page cuse

[citation omitted], of a statute permitting comparable confine-

ment, ‘to be sustained as a nonpenal statute . . | it is

necessary that the remedial aspect of confinement

have foundation in fact.’” Nason v. Superintendent, Bridge-

water Hospital, 1968, 353 Mass. 604, 612, 233 N.E.2d 908, 913.

This key step in the theory also draws considerable support

from, if indeed it is not compelled by, the Supreme Court's

recent decision in Jackson v. Indiana, 1972, 406 U.S. 715, 92

S.Ct. 1845, 32 L.Ed.2d 435. In Jackson, the Supreme Court

established he rule that “[aJt the least, due process requircs

that the nature and duration of commitment bear some rea-

sonable relation to the purposes for which the individual is

19. See Note, The Nascent Right to Treatment, 1967, 53 Va.L.Rev.

1134, 1138 39.

4

ee

Hehe

DONALDSON v. O'CONNOR 3153

committed”. 406 U.S. at 738.” If the “purpose” of commit-

ment is treatment, and treatment is not provided, then the

“nature” of the commitment bears no “reasonable relation” to

its “purpose”, and the constitutional rule of Jackson is violat-

ed.

[3,4] This much represents the first part of the theory of

a due process right to treatment; persons committed under

what we have termed a parens patrive ground for commit-

ment must be given treatment lest the involuntary commit-

ment amount to an arbitrary exercise of government power

proscribed by the due process clause. The second part of the

theory draws no distinctions between persons committed un-

der “parens patriae” rationales an. those committed under

“police power” rationales. This part begins with the reeogni-

tion that, under our system of justice, long-term detention is,

as a matter of due process, generally permitted only when an

individual is (1) proved, in a proceeding subject to the rigorous

CousLiLuional limitaceus of tue due process clause oF une

fourteenth amendment and the Bill of Rights, (2) to have

committed a specific act defined as an offense uguinst the

state. Scc Powell v. Texas, 1968, 392 U.S. 514, 533, 542--543,

88 S.Ct. 2145, 20 L.Ed.2d 1254 (Black, J., concurring). More-

over, detention, under the criminal process, is usually allowed

only for a period of time explicitly fixed by the prisoner’s

20. Jackson involved a mentally defective deaf mute who was com-

mitted after the court determined that he was incompetent to stand

trial. Since the mental and physical defects which were the cause

of his inalvlity were not susceptible to treatment and not likely to

improve during his confinement, it was unlikely that he would cver

beccine competent to stand ‘rial. In the circumstances, the Su-

preme Court held that its rule that “the nature and duration of

conimitment bear some reasonable relation to the purpose for which

the individual is committed” permitted the state to confine Jackson

under the provisions for the commitment of those found incompe-

tent to stand trial oniy for “the reasonable period of tire necessary

to devernune Whether there is a- substantial probability thar he will

attain that capecity [to stand trial] in the foreseeable future’. It

held turther that even if it were determined that he was lke » to

become able to stand trial, “his continued commitment [would have

to be] justified by progress toward that goal”. 406 US. at 738.

°

-

31h DONALDSON v. O'CONNOR

sentence, The second part of the theory of a due process

right to treatment is based on the principle that when the

three central limitations on the government's power to de-

tain - that detention be in retribution for a specific offense;

that it be limited to a fixed term; and that it be permitted

after a preceeding where fundamental procedural safeguards

are observed--are absent, there must be a quid pro quo

extended by the government to justify confinement.” And

the quid pro quo most commonly recognized is the provision of

rehabilitative treatment, or, where rehabilitation is impo..ible,

minimally adequate habilitation and care, beyond the subsist-

ence level eustodial cave that would be provided in a peniten-

tiary.”

21. One theory is that commitment pursuant to civil statutes general-

lv lacks the procedural safepuards afforded those charged with

criminal offense. The constitutional justification for this abridg-

ment of proc. dural rights is that the purpose of commitment is

treatment. (Lmphasis supplied).

Welsch v. Likins, No. 4.72 Civ. 451, D.Minn., Feb. 15, 1974, --

F.Supp. —— at - See also Inmates of Boys’ Training School v.

Affleck, D.R.1.1972, 346 F.Supp. 1354, 1365; Rouse v. Cameron,

aes WOR ITS AwN NC 366. 373 F.2d 45), 453 (Bazelon, C. J.);

Nou, Gavil Poctrotet, Mental Hiness and the Kight to treaunen,

1967, 77 Yale L.J. 87, 90-91, 102-03 & nn. 62 63.

22. Adequate and effective treatment is constitutionally required be-

cause, absent treatment, the hospital is transformed “into a

penitentiary where one could be held indefinitely for no convicted

offense.”

Wyatt v. Stickney, M.D.Ala.1971, 325 F.Supp. 781, 784, quoting

Ragsdale v. Overholser, 1960, 108 U.S.App.D.C. 308, 281 F.2d 943,

950 (Fahy, J., concurring). See also cases cited in nn. 23-24 infra.

Of the various formulations of this “quid pro quo” theory we have

found, perhaps the most successful ‘is that made by Professor

Nicholas Kittrie, writing specifically about confinement of juveniles,

but articulating a theory equally applicable to civil commitment of

mentally ill persons:

Our society has increasingly divested certain groups from the

traditional criminal justice court and, acting under its asserted

role of parens patriae, subsiituted new therapeutic controls.

s o ° o ° oe s a so o

A new concept of substantive due process is evolving in [this]

therapeutic realm. This concept is founded upon a recognition of

the concurrency between the state's exercise of sanctioning pow-

ers and its assumption of the duties of social responsibility. Its

implication is that effective treatment must be the quid pro quo

DONALDSON v. O'CONNOR 3155

This second part of the theory draws a wide range of

support from a variety of precedents. The relevant cases

have arisen in five major procedural contexts.

The earliest group of relevant cases consists of cases decided

on habeas corpus petitions brought by citizens held under

provisions for various kinds of “nonpenal” confinement, who

were being held in correctional facilities for prisoners conviet-

ed of crimes. These cases uniformly held that, where deten-

tion is “nonpenal” in theory, the very least that is required is

that the persons be confined in a facility other than a prison.”

Later cases expand the view of these cases by holding not

only that persons held under provisions for “nonpenal” con-

finement be held elsewhere than in a prison, but that they

must be held in places where the conditions are actually

therapeutic.”

The third line of relevant cases are those where the conti

tutionality af wortens Toxin “aunpenai statules—notably

sex-offender and defective-delinquent statutes—provide for

the confinement of habitual criminal offenders to protect

for society's right ic caercise its parens patriae controls. Wheth-

er specifically recognized by statutory enactment or implicitly

derived from the constitutional requirements of due process, the

right to treatment exists.

Kittrie, Can the Right to Treatinent Remedy the Ills of the Juvenile

Process? 1969, 57 Geo.L.J. 851-52, 870.

23. Benton v. Reid, 1956, 98 U.S.App.D.C. 27, 231 F.2d 780; Com-

monwealth v. Page, 1958, 339 Mass. 313, 159 N.E.2d 82; In re

Maddox, 1958, 351 Mich. 358, 88 N.W.2d 470; cf. Miller v. Overhol-

ser, 1953, 92 U.S.App.D.C. 110, 206 F.2d 415.

24. But this mandatory commitment provision rests upon a supposi-

tion, namely, the necessity for treatment of the mental condition

which led to the acquittal by reason of insanity. And this

necessity for treatment presupposes in turn that treatment will be

accorded.

Ragsdale v. Overholser, 1960, 108 U.S.App.D.C. 308, 281 F.2d 943,

950 (Fahy, J., concurring), quoted with approval, Darnell v. Camer-

on, 1965, 12) U.S.App.D.C. 58, 348 F.2d G1, 67 68, (Bazelon, C. J.);

Sas v. Marsiand, 4 Cir. 1964, 334 F.2d 506, 517, cert. dismissed as

improvicently granted sub nom., Murel v. Baltimore City Crim. Ct,

1972, 407 U.S. 355, 92 S.Ct. 2091, 32 L-Ed.2d 791; Commonwealth v.

Page, 1959, 339 Mass. 313, 317, 159 N.E.2d 82, 85.

3156 DONALDSON v. O'CONNOR

sociely and to provide rehabilitative care. The decision. have

upheld such statutes, but the courts have usually added the

proviso that the constitutionality of the statute is conditioned

upon the realization of the statutory promise of rehabilitative

treatment.”

The fourth set of cases, highlighted by Rouse v. Cameron “

and Neson v. Superintendent of Bridvewater State Hospital”

consists of cases where individuals under confinement have

brought habeas corpus petitions challenging their confinement

on the ground that they were not receiving treatment. This

is a diverse group of causes; ir most of them, the challenge to

confinement for lack of treatment has been combined with

challenges brought on other grounds, and often the other

grounds are the subject of the decisions. Among these cases,

25. For those in the category [of defective delinquents] it [the defec-

tive delinquents statute] would substitute psychiatric treatment

for punishment in the conventional sense and would free them

from confinement, not when they have “paid their debt to socie-

ty, Uul wien they Have Leen surliciemuy Culea LO make 1

reasonably sate to reicase them. With this humanitarian and

_progress've approach to the problem no person who has deplored

the inadequacies of conventional penological practices can com-

plain. But a statute though “fair on its face and impartial in

appearance” may be frayyzht with the possibility of abuse in that

if not administered in the spirit in which it is conceived it can

become a mere device for warchousing the obnoxious and antiso-

cial elements of society. . . . Deficiencies in staff. facilities,

and finances would undermine the efficacy of the Institution and

the justification for the law, and ultimately the constitutionality of

its application. [Footnotes omitted]

Sas v. Maryland, 4 Cir. 1964, 334 F.2d 506, 517, cert. dismissed as

improvidently granted sub nom. Murel v. Baltimore City Crim. Ct.,

1972, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (emphasis sup-

plied). See also Davy v. Sullivan, M.D.Ala.1973, 354 F.Supp. 1320,

(sex offender statute) (three-judge court).

26. 1966, 125 U.S.App.D.C. 366, 373 F.2d 451 (Bazelon, C. J.). The

District of Columbia Circuit has reaffirmed its Rouse holding on

numerous occasions. See, e. g., In re Curry, 1971, 147 U.S_App.D.C

28, 452 F.2d 1360; Covington v. Harris, 1969, 136 U.S.App.D.C. 35,

419 F.2d 617; Tribby v. Cameron, 1967, 126 U.S.App.D.C. 327, 379

F.2d 104; Dobson v. Cameren, 127 U.S.App.D.C. 324, 383 F.2d 519;

Millard v. Cameron, 1966, 125 U.S.App.D.C. 383, 373 F.2d 468.

27. 353 Mass. 604, 233 N.E.2d 908 (1968) (Cutter, J.).

DONALDSON vy. O'CONNOR 3157

however, we have found none where any court has declared

that no right to treatment exists, and we have found none

explicitly recognizing a constitutional right to treatment.

When they hold that there is a right to treatment, the cases

usually cither rest on statutory grounds, or are ambiguous as

to whether they are resting upon statutory or constitutione!

grounds.” But in all cases, the courts have at least sustained

the right of a petitioner to a hearing to develop the facts

supporting his claim that he is not receiving treatment.”

Fifth, and last, among the groups of cases is the spate of

recent cases brought as class actions in federal court, seeking

broad forms of injunctive and declaratory relief requiring that

adequate treatment be provided in state-run facilities. The

cases have included attacks on conditions in many types of

facilities—ineluding facilities for the mentally ill,” the mental-

ly retarded,” juvenile delinquents ® or nondelinquent juveniles

eid as vein persons in need Ol supervision .~

28. But see Stachulak v. Coughlin, N.D.11|.1973, 364 F.Supp. 686, a

case of this kind, citing Wvatt and holding there is a constitutional

right to treatment.

29. E. g., Humphrey v. Cady, 1972, 405 U.S. 504, 92 S.Ct. 1048, 31

L.Ed.2d 394 (characterizing committed sex offender's claim that he

was not receiving treatment a “substantial constitutional claim”,

and remanding for a hearing on, inter alia, that issue).

30. See cases cited in note 9 supra. . 2

31. Wyatt v. Stickney, M.D.Ala.1972, 344 F.Supp. 387; Welsch v.

Likins, No. 4-72-Civ. 451, D.Minn. Feb. 15, 1974, —- F.Supp. —.

Contra, New York State Ass'n for Retarded Children, Inc. v. Rocke-

feller, E.D.N.Y.1973, 357 F.Supp. 752.

32. Nelson v. Heyne, 7 Cir. 1974, 491 F.2d 352, aff'g N.D.Ind.1972,

355 F.Supp. 451; Inmates of Boys’ Training School v. Affleck,

D.R.1.1972, 346 F.Supp. 1354; Morales v. Turman, E.D.Tex.1973, 364

F.Supp. 166.

33. Martarella v. Kelley, S.D.N.Y.1972, 349 F.Supp. 575, enforced,

359 F.Supp. 478.

The closest the Supreme Court has come to speaking directly on

the second, more smportant part of the due process right to treat-

ment theory we articulate, came in In re Gault, 1967, 387 U.S. 1, 22

3158 DONALDSON v. O'CONNOR

Taken together, these five sets of cases constitute a near

unanimous recognition that governments must afford a quid

pro quo when they confine citizens in circumstances where the

conventional limitations of the criminal process are inapplica-

ble. These five groups include cases decided by all levels of

courts—the Supreme Court,™ the courts of appeals,” the fed-

eral district courts,” and the state courts.” One or another of

them concerns cach of the major forms of “nonpenal confine-

ment: from those with a heavy police power emphasis, such as

n. 30, 87 S.Ct. 1428, 18 L.Ed.2d 527, in which the Court, discussing

the context of juvenile confinement, wrote:

While we are concerned only with procedure before the juvenile

court in this case, it should be noted that to the extent that the

special procedures for juveniles are thought to be justified by the

special consideration and treatment afforded them, there is reason

to doubt that juveniles always receive the benetits of such a quid

proquo . ._.._ The high rate of juvenile recidivism casts some

doubt upon the adequacy of treatment afforded juveniles

In fact some courts have recently indicated that appropriate

treatment is essentiat tO Wie ~vaiiuny Ut juvemice Custody, O02

therefore that a juvenile may challenge tne vanaity o1 nis Cusiuus

on the ground that he is not in fact receiving any special

treatment.

34. Jackson v. Indiana, 1972, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d

435; Humphrey v. Cady, 1972, 405 U.S. 504, 92 S.Ct. 1048, 31

L.Ed.2d 394; McNeil v. Director, Patuxent Institution, 1972, 407 U.S.

245, 92 S.Ct. 2083, 32 L.Ed.2d 719.

35. E. g., Nelson v. Heyne, supra note 39; Sas v. Maryland, 4 Cir.

1964, 334 F.2d 506, cert. dismissed as improvidently granted sub

nom., Murel v. Baltimore City Crim. Ct., 1972, 407 U.S. 355, 92 S.Ct.

2091, 32 L.Ed.2d 791; Rouse v. Cameron, 1966, 125 U.S.App.D.C.

366, 373 F.2d 541.

36. E. g., cases cited in nn. 9, 31-33, supra.

37. E. g., Nason v. Superintendent, Bridgewater Hospital, 1968, 353

Mass. 604, 233 N.E.2d 908; Commonwealth v. Page, 1959, 339 Mass.

313, 159 N.E.2d 82; In re Maddox, 1958, 351 Mich. 358, 88 N.W.2d

470. ;,

DONALDSON v. O'CONNOR 3159

confinement of sex offenders™ or defective delinquents,” of

persons acquitted by reason of insanity,” or of persons held

incompetent to stand trial;“ those with a heavy parens

patriae emphasis, such as confinement of the mentally retard-

ed,® or of juveniles; ® and those—such as civil commitment of

the mentally ill ““—-with elements of both rationales behind

them.

The appellants argue strenuously that a right to constitu-—

tionally adequate treatment should not be recognized, because

such a right cannot be governed by judicially manageable or

ascertainable standards. In making the argument, they rely

heavily upon the Northern District of Georgia's decision in

Burnham v. Department of Public Health, 1972, 349 F.Supp.

1335, 1341-1343. In Burnham, the district judge held that a

class action seeking declaratory and injunctive relief requiring

the Georgia Department of Public Meaith to nravide troat-

ment at Geercin ricuiai Hospitals presented a nonjusticiable

controversy. He quoted Baker v. Carr, 1962, 369 U.S. 186,

38. E. g., Humphrey v. Cady, 1972, 405 U.S 504, 92 S.Ct. 1048, 31

L.Ed.2d 394; Davy v. Sullivan, M.D.Ala.1973, 354 F.Supp. 1320

(three-judge court); Commonwealth v. Page, 1959, 339 Mass. 313,

159 N.E.2d 82.

39. E. g.. Sas v. Maryland, 4 Cir. 1964, 334 F.2d 506, cert. dismissed

as improvidently granted sub nom., Murel v. Baltimore City Crim.

Ct., 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791.

40. E. g., Rouse v. Cameron, 1966, 125 U.S.App.D.C. 366, 373 F.2d

451 (Bazelon, C. J.); Darnell v. Cameron, 1965, 121 U.S.App.D.C. 58,

348 F.2d 64 (Bazeton, C. J.); Ragsdale v. Overholser, 1960, 108

U.S.App.D.C. 308, 28) F.2d 943 (Burger, J.).

41. Jackson v. indiana, 1972, 406 U.S. 715, 92 S.Ct. 1845, 32 L.FEd.2d

435. Sze also Greenwood v. United States, 1956, 350 U.S. 366. 76

S.Ct. 410, 100 L.Ed. 412; United States v. Pardue, D.Conn.1973, 354

F.Supp i377; United States v. Jackson, N.D.Cal.1969, 306 F.Supp.

4.

42. E. y., Wyatt v. Stickney, M.D.Aia.1972, 344 F.Supp. 387: Welsh

v. Likins, No. 4-72 Civ. 451, D.Minn. Feb. 15, 1974, noted, 42

U.S.L.W. 1141-42. |

43. Cases cited in notes 32-33. \

44. Cases cited in note 9 supra.

3160 DONALDSON vy. O'CONNOR

198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663, for the proposition that

determining whether a suit was justiciable requires determin-

ing whether “the duty asserted can be judicially identified and

its breach judicially determined, and whether protection for

the right asserted can be judicially molded”. 349 F.Supp. at

1341, quoting 369 U.S. at 198. He then ciced the ambiguity of

the dictionary definition of treatment, a passage from a las

review article noting the fact that there are as many as forty

different methods of psychotherapy,® and a passage from the

Supreme Court's decision in Greenwood v. United States, 1956,

350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412, concerning the

“tentativeness” and “uncertainty” of “professional judgment”

in the mental health field.“ He concluded: “(T]he claimed

duty (i. e. to ‘adequately’ or ‘constitutionally treat’) defies

judicial identity and therefore prohibits its breach from being

judicially defined.” 349 F.Supp. at 1342.

Tne defendants argument can be answered on two levels.

First, we doubt whether, even if we were to concede that

courts are incapable of formulating standards of adequate

45. Levine [M. Levine, Psychotherapy in Medical Practice] lists 40

methods of psychotherapy. Among these, he includes physical

treatment, medicinal treatment, reassurance, authoritative firm-

ness, hospitalization, ignoring of certain sympioms and attitudes,

satisfaction of neurotic needs and bibliotherapy. In addition,

there are physical methods of psychiatric therapy, such as the

prescription of sedatives and tranquilizers, the induction of con-

vulsions by drugs and electricity, and brain surgery. Obviously,

the term “psychiatr.c treatment" covers everything that may be

done under medical auspices—and more.

If mental treatment is all the things Levine and others tell us it

is, how are we to determine whether or not patients in mental!

hospitals receive adequate amounts of it?

Szasz, The Right to Psychiatric Treatment: Rhetoric and Reality,

1969, 57 Geo.L.J. 740, 741.

46. . . [T)heir [two court-appointed psychiatrists} testimony

illustrates the uncertainty of diagnosis in this field and the

tentativeness of professional judgment. The only certain thing

that can be said about the present state of knowledge and therapy

regarding mental disease is that science has not reached finality of

judgment.

Greenwood v. United ‘tates, 1956, 350 U.S. 366, 375, 76 S.Ct. 410,

415, 100 L.Ed. 412.

DONALDSON v. O'CONNOR 3161

treatment in the abstract, that we could or should for that

reason alone hold that no right to treatment can be recognized

or enforced. There will be cases—and the case at bar is

one—where it will be possible to make determination whether

a given individual has been denied his right to treatment

without formulating in the abstract what constitutes “ade-

quate” treatment. In this case, the jury properly could have

concluded that Donaldson had been denied his rights simply

by comparing the treatment he received while he was under

Gumanis’s and O’Connor’s care with that he received while

under Hanenson’s care; or it could have concluded that Don-

aldson’s rights had been violated on the basis of the evidence

that the defendants obstructed his release even though they

knew he was receiving no treatment. Neither judgment

required any a priori determination of what constitutes or

would have constituted adequate treatment, and of course no

such determination was made.

We do not, however, concede that determining what consti-

tomnmte in b.- a at

tntac adonuatec ereetwmcnt ww sey Gann t oS UHC Lee vi che

judiciary. In deciding in individual cases whether treatment

is adequate, there are a number of devices open to the courts,

as Judge Bazelon noted in discussing the implementation of

the statutory right to treatment in the landmark case of

Rouse v. Cameron:

But lack of finality [of professional judgment] cannot re-

lieve the court of its duty to render an informed decision.

Counsel for the patient and the government can be helpful

in presenting pertinent data concerning standards for men-

tal care, and, particularly when the patient is indigent and

cannot present experts of his own, the court may appoint

independent experts. Assistance might be obtained from

such sources as the American Psychiatric Association, which

has published standards and, is continually engaged

studying the problems of mental care. The court could also

consider inviting the psychiatric and legal communities to

3162 DONALDSON vy. O'CONNOR

establish procedures by which expert assistance can be best

provided. [Footnotes omitted].

373 F.2d at 457. ‘’here are by now many cases where courts

have undertaken to determine whether treatment in an indi-

vidual case is adequate or have ordered that determination to

be made by a trial court.” Even in cases like Wyatt and

Burnham, when courts are asked to undertake the more

difficult task of fashioning institution-wide standards of acde-

quacy, the task should not be beyond them. The experience

of the Wyatt case bears this out. In Wyatt, agreement was

reached among the partics on almost all of the minimum

standards for adequate treatment ordered by the district

court, and the defendants joined in submitting the standards

to the district court. These stipulated standards were sup-

ported and supplemented by testimony from numerous expert

witnesses. Moreover, there was a striking degree of consen-

sus among the experts, including the experts presented by the

3-f-.. 1 Om 6 2 Om the minrmnm etandarde for adequate treat-

ment. ‘The standards deveioped nave now been chaiienyed vy

the defendants in the appeal now pending before this Court.

See Wyatt v. Stickney, M.D.Ala.1972, 344 F.Supp. 373,

375-376.

In summary, we hold that where a nondangerous patient is

involuntarily civilly committed to a state mental hospital, the

only constitutionally permissible purpose of confinement is to

47. See, e. g, Humphrey v. Cady, 1972, 405 U.S. 504, 92 S.Ct. 1048,

31 L.Ed.2d 394; In re Curry, 1971, 147 U.S.App.D.C. 28, 452 F id

1360; United States v. Waters, 1970, 141 U.S.App.D.C. 289, 437 F.2d

722; Dobson v. Cameron, 1967, 127 U.S.App.D.C. 324, 383 F.2d 519,

Tribby v. Cameron, 126 U.S.App.D.C. 327, 379 F.2d 104; Millard v

Cameron, 1966, 125 U.S.App.D.C. 383, 373 F.2d 468; Sas v. Mary-

land, 4 Cir. 1964, 334 F.2d 506, remanding, D Md., 1969, 295 F Supp.

389, aff'd sub nom., Tippett v. Maryland, 1971, 436 F.2d 1153, cert.

dismissed as improvidently granted sub nom. Murel v. Baltimore

City Crim. Ct., 1972, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 79);

Dixon v. Atty. Gen’! of Pennsylvania, M.D.Pa.197}, 325 F.Supp. 966

(three-judge), In re Jones, D.D.C.1972, 338 F Supp. 428; Clatter-

buck v. Harris, D.D.C.1968, 295 F.Supp. 84; Nason v. Supt. of

Bridgewater State Hospital, 1968, 353 Mass. 604, 233 N.E.2d 908.

ee ee ee

DONALDSON v. O'CONNOR 3163

provide treatment, and that such a patient has a constitutional

right to such treatment as will help him to be cured or to

improve his mental condition. We hold that the district court

did not err in so instructing the jury.

{5} Gumanis and O’Connor join in contending that the

evidence at trial did not permit the jury to find that they

acted in bad faith, and that therefore they cannot be held

personally liable for Donaldson's injuries or the deprivations

of his constitutional rights: Gumanis’s arguments concern

primarily his role in deciding whether Donaldson could or

should be released. He asserts that he acted throughout in

good faith and in the reasonable belicf that Donaldson was

mentally ill and required further confinement. O’Connor’s

argument is directed not only toward his acts affecting the

GcciSiwik wheiiver iy release, DUL also LO Lhe entirety of hie

conduct while Donaldson was held at Florida State. O’Connor

argues that both he and Gumanis did the best they could with

available resources, and therefore should not be held personal-

ly liable for whatever was done to Donaldson. He cites in his

brief the various limitations of staff and funds available to

the state psychiatrists at Florida State, the difficulties hospi-

tal administrators have had in winning approval of their

budgets from the state legislatures, and similar matters; and

he argues, on that basis, that the denial of whatever right to

treatment Donaldson had was the product of the actions of

the legislature and of the realities of the budgetary situation,

and not of the actions of the state psychiatrists to whose care

Donaldson was entrusted.

We find the appellants’ objection, in all of its various forms,

without merit.

The trial judge instructed the jury:

The defendants in this action rely on the defense that

they acted in good faith. Simply put, defendants contend

they in good faith believed it was necessary to detain

3164 DONALDSON v. O'CONNOR

plaintiff in the Florida State Hospital for treatment for the

length of time he was se confined. If the jury should

believe from a preponderance of the evidence that defend-

ants reasonably believed in good faith the detention of

plaintiff was proper for the length of time he was confined

then a verdict for defendants should be entered even

though the jury may find the detention to have been

unlawful.

However, mere good intentions which do not give rise to a

reasonable belief that detention is lawfully required cannot

justify plaintiff's confinement in the Florida State Hosj tal.

As a corollary plaintiff here need not show malice or ill-will

to prove his action under the Civil Rights Act. All that is

required is that he demonstrate state action which amounts

te an actual deprivation of constitutional rights or other

rights guaranteed by law.

The detendants aid not onject Lo Unis instruction, ana ao not

challenge its correctness here” The instruction was proper,

and that there was sufficient evidence to support a jury

finding that the defendanis did not act at all times in a good

faith and reasonable belicf that Donaldson needed continued

confinement and that centinued confinement was lawful. In

effect, the jury found, on the facts, that Donaldson's right to

treatment was denied not, or not only by the limitations of

funds and staff and resources under which the hospital oper-

ated, but also by the actions of Gumanis and O'Connor them-

selves.

We are “duty bound to accept all evidence in favor of the

verdict as true and to give such evidence the benefit of all

permissible inferences that would help sustain the jury's deci-

{

48. Dowsey v. Wilkins, 5 Cir. 1972, 467 F.2d 1022, 1025-1026.

dee an”

DONALDSON v. O'CONNOR 3165

sion”. Little v. Green, 6 Cir. 1970, 428 F.2d 1061, cert. denied,

400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384; Grey v. First

National Bank, 5 Cir. 1968, 393 F.2d 371, 381. We hold

therefore that the evidence supported the jury’s finding that

the defendants did not act in good faith.

IV.

The first contention made by Gumanis alone is that the

Northern District of Florida’s jury selection plan operated to

abridge his right to a jury trial under the seventh amendment

and under 28 U.S.C. §§ 1861, 1862, by permitting the “system-

atic exclusion” of physicians from the jury rolls. Gumanis

raised his objection to the composition of the jury on the first

day of the trial, but after the jury had been impanelled and

sworn. The Northern District selection plan allows certain

specified classes of person, including “actively engaged mem-

bers of the clergy” and “actively practicing attorneys, physi-

cians, and dentists, and registered nurses”, to be excused from

jusy Suily of Uwy ov desire. The autnorityv tor these even.

tions is an express provision of the Jury Selection and Service

Act. 28 U.S.C. § 1863(b)(5) provides that a jury selection plan

shall “specify those groups of persons or occupational classes

whose member shall, on individual request therefore be ex-

cused from jury service. if the district court finds,

and the plan states, that jury service by such class or group

would entail undue hardship or extreme inconvenience.

”

.

[6,7] There is no merit to the defendant's contention. The

trial court correctly held that the objection was not timely

saised, since the defendants had not mentioned it until after

the jury was impanelled. Sce Brooks v. United States, 5 Cir.

1969, 416 F.2d 1044, 1047. We also agree with his ruling that

the jury selection plan was in compliance with the statute.

3166 DONALDSON ¥v. O'CONNOR

V.

Gumanis next objects to the trial court's refusal to instruct

the jury that Donaldson's claim was barred by the statute of

limitations.” This contention is premised upon the fact that

Donaldson was taken out of his care April 18, 1967, more than

four years before the filing of the First Amended Complaint

in this ease, and about five years before the complaint was

amended to add Gumanis as a defendant.

Since there is no statute of limitations provided under

§ 1983, federal courts adopt the statute of limitations of the

state where the action aruse,” and apply the “resemblance

test” to decide which state statute is an appropriate one to

apply." In this case, the parties agree that the limitation

period should be taken from one of three state statutes: the

two-year statute applicable to both false imprisonment actions

and to actions for medical malpractice; or the three-year

statsts applicabic to actions upor Nahititics crested Uy stat-

ute; or the four-year statute applicable to miscellaneous ac-

tions not specifically provided for elsewhere in the Florida

statute of limitations chapter.” Gumanis argues that it is

irrelevant which of these 3 periods we apply, since even if the

49. The instruction in question read:

You are instructed that the statute of limitations for the wrongs

alleged in the complaint are for the period of four (4) years, and

that the defendants should not be held accountable for any

damages which occurred trom wrongs occurring prior to the four

(4) year period preceding the complaint.

Donaldson argues that the defendants’ objection to the trial

judge’s refusal to give this instruction is not properly before this

Court, again because ‘no objection was made to the trial judge's

failure to give the instruction either at the charge conference or

after the charge was read to the jury. See note 8 supra. Again,

however, defendants’ pretrial brief advised the court of the defend-

ants’ position, and again we hold that that sufficed to excuse the

failure to object. See note 8 supra.

50. Campbell v. Haverhill, 1895, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed.

280.

51. See, e. g. Smith v. Cremins, 9 Cir. 1962, 308 F.2d 187.

52. Fila. Stat. § 95.11(4), (5)(a), (6), F.S.A.

BEST GOPL_AVAILABLE |

—

ee

DONALDSON v. O'CONNOR 3167

longest, the four-year statute, is applied, the period of limita-

tions had clapsed by the time Gumanis was added as a

defendant in this suit. Donaldson agrees that it is irrelevant

which statute is chosen, since the limitation did not begin to

run until July 31, 1971, the date Donaldson was released from

the hospital. Donaldson therefore argues that the suit was

timely brought, even if the two-year limitation period applies.

[8-10] We agree with Donaldson that the limitation peri-

od, be it two, three, or four years, did not begin to run until

July 31; Donaldson’s cause of action did not accrue until that

time. When a tort involves continuing injury, the cause of

action accrues, and the limitation period begins to run, at the

time the tortious conduct ceases. See, e. g., Fowkes v. Penn-

sylvania R. R. Co., 3 Cir. 1959, 264 F.2d 397. In the case of

false imprisonment, the tort action this case most resembles,

the cause of action does -not accrue until the release of the

imprisoned party.®

{11} We have found no Florida decision addressing the

anestion when a cance af antion fae Falen beens. ‘

- - 22 see wewes eM) Cee

crues. Bul in a g LYBS suit, even though a state statute is

applied, the question when a federal cause of action acerues is

a matter of federal, not state law.“ The state statute is

applied in the first place not as a matter of legal compulsion,

but merely as a matter of convenience; there is no other

period of limitation available.* We hold that in a case such as

53. See, e. g. Bronaugh v. Harding Hospital, Inc., 1 Ohio

App.2d 110, 231 N.E.2d 487; Mobley v. Broome, rien. bes Pa 54

102 S.E.2d 407; Matovina v. Hult, 1955, 125 Ind.App. 236, 244, 123

N.E.2d 893; Belflower v. Blackshere, OkI.1955, 281 P.2d 423, 425:

Oosterwyk v. Bucholtz, 1947, 250 Wis. 521, 525, 27 N.W.2d 361:

Jedzierowski v. Jordan, 1961, 157 Me. 352, 172 A.2d 636.

54. See, e. g, Rawlings v. Ray, 1941, 312 U.S. 96, 61 S.Ct. 472, 85

L.Ed. 605; Cope v. Anderson, 1947, 331 U.S. 461, 67 S.Ct. 1340, 91

L.ed. 1602; Sandidge v. Rogers, S.D.Ind.1958, 167 F.Supp. 553, 556;

2 Moore's Federal Practice ‘ 3.07(2) at 750.

55. See McAllister v. Magnolia Petroleum Co., 1958, 357 U.S. 221,

228. 230, 78 S.Ct. 1201, 2 L.Ed.2d 1272 (Brennan, J., concurring); 2

Moore's Federal Practice © 3.07(2).

3168 DONALDSEN vy. O'CONNOR

this one, where a tort causing continuing injury is alleged, a

patient’s cause of action does not accrue until the date of nis

release.

Vi.

{12} Gumanis next contends * that the district court erred

in refusing to instruct the jury that he and the other defend-

ants were entitled to a defense of quasi-judicial immunity

under the Civil Rights Acts. At issue is defendant's proposed

instruction number 11, which read: “If you find that the

defendants were operating in a quasi-judicial function, in that

they, under state law, were making a judgment as to whether

or not plaintiff should be released, defendants are immune

from liability under the Civil Rights Act.”

Gumanis relies primarily upon three Ninth Circuit cases.

The firet and mact imnnrtant ic Hoffman v. Haldon, 2000, 262

F.2d 280, in which the Ninth Circuit held that the superintend-

ent of a state mental hospital, who allegedly had wrongfully

detained a patient committed under a valid judicial commit-

ment order, was immune from liability. The superintendent

was empowered to release the patient when, in his own

judgment, he found the patient no longer in need of confine-

ment. The Court held that because he had been exercising a

“discretionary” function, the Superintendent was immune

from liability. The other two Ninth Circuit cases, Silver v.

Dickson, 1968, 403 F.2d 642, and Keeton vy. Procunier, 1971,

468 F.2d 810, held that members of state parole boards are

immune from § 1983 liability, on the ground that the threat of

liability would “exert a restricting influence on the overall

functioning of the agency”. Silver, 403 F.2d at 643.

56. Once again, Donaldson argues that the objection to the refusal to

give the instruction is not properly before the Court. Sce noves 8,

49 supra. Once again, we hold that the trial judge was sufficiently

apprised of the defendants’ objections for us to consider the objec-

tion as having been preserved. See notes 8, 49 supra.

57. The full instruction is quoted in part III supra.

ee eee ef ll

DONALDSON vy. O'CONNOR 3169

{13} Gumanis’s argument is essentially that he is entitled

to the defense, available to state officials in most common law

jurisdictions, of absolute immunity for acts done in the per-

formance of a “discretionary” —as opposed to a “ministerial”

~-function. See, e. g, Barr v. Matteo, 1959, 360 U.S. 564, 79

S.Ct. 1335, 3 L.£d.2d 1434 (immunity for federal officials as a

matter of federal common law). For discussions of the com-

mon law rule, see Norton v. McShane, 5 Cir. 1964, 332 F.2d

855, 857-861 (Rives, J.); Anderson y. Nosser, 5 Cir. 1971, 438

F.2d 183, 198-200 (Goldberg, J.); modified en bane on other

grounds, 1972, 456 F.2d 835; Carter v. Carlson, 1971, 144

U.S.App.D.C. 388, 447 F.2d 358, 361.365; 2 F. Harper & F.

James, The Law of Torts § 29.10 at 1688 46 (1956). We must

reject Gumanis’s argument, however, because we have consist-

ently held that the full range of officials immunities available

at common law do not apply in actions brought under § 1983.

Roberts v. Williams, 5 Cir. 1972, 456 F.2d 819, 830; Anderson,

supra, 438 F.2d at 201; Norton, supra, 332 F.2d at 860-861

(chetum) In taking thie nacition wo have hoon jsincd be of

the other circuits that have considered the question. Carter,

supra, 447 F.2d at 365; Dale v. Hahn, 2 Cir. 1971, 440 F.2d

633; Kletschka v. Driver, 2 Cir. 1969, 411 F.2d 436, 448;

Jobson v. Henne, 2 Cir. 1966, 355 F.2d 129, 133-134;

McLaughlin v. Tilendis, 7 Cir. 1968, 398 F.2d 287; Donovan v.

Reinbeki, 9 Cir. 1970, 433 F.2d 738.

Official immunity has been restricted under § 1983, because

that provision is directed at actions “under color of any

statute, ordinance, regulation, custom, or usage of any State

or Territory”, and provides that “every person” subjecting

another to a deprivation of constitutional rights shall be liable.

See Francis v. Lyman, 1 Cir, 1954, 216 F.2d 583, 587; Jobson,

supra, 355 F.2d at 133; Anderson, supra, 438 F.2d at 201;

Hoffman, supra, 268 F.2d at 300. It has been the view of the

courts that recognizing broad judicial immunities “would prac-

3170 DONALDSON vy. O'CONNOR

tically constitute a judicial repeal” of § 1983, since state

officers are iikely to be the primary persons found acting

“under color of” law. Hoffman, supra, at 300; Jobson, supra,

355 F.2d at 134. Accordingly, the courts have repudiated

what the district court for the District of Nevada has called

the “discretionary act test” for determining when official

immunity is appropriate in § 1983 cases. Adamian v. Univer-

sity of Nevada, 1973, 359 F.Supp. 825, 834. Instead, we and

other courts have applicd what the Adamian court called the

“good faith for qualified governmental immunity” test, allow-

ing immunity when (1) the officer’s acts were discretionary;

and (2) the officer was acting in good faith. Here, as noted

above, the trial judge instructed the jury to find for the

defendants if it found the defendants acted in good faith;

and, again as noted above, the defendants have not challenged

the propricty or phrasing of this instruction. That instruction

was all that was required by this Court’s version of the

doctrine of “quasi-judicial” or “official” immunity from Civil

Rights Act liability.”

58. It is appropriate to say in this context that we do not view the

Hoffman, Silver, and Keeton cases as sound authority for a contrary

result. The Ninth Circuit has made it clear that Hoffman and Silver

do not “stand for the broad principle that all public officials are

immune from Civil

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