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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