# Petition — O'Connor v. Donaldson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0147%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1974 - **Citation:** 419 U.S. 991 ## Text — 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 LaO> 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 super [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0147%3A01. Public record. Not legal advice.