# Appendix — Kremens v. Bartley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 431 U.S. 119 ## Text eal VOLUME Il—Pages 435a-865a APPENDIX iu the Supreme Court of the Bujted States October Term, 1975 No. 75-1064 JACK B. KREMENS, Individually and as ital Director of Haverford State tal; FRANK 8S. B Individual- ly and as Secretary Public Welfare of the Common- wealth of “yy 7 WILLIAM B. BEACH, JR., Indi- vidually and as Secretary for Mental Health and t of Public Welfare Commonwealth of Pennsylvania, Appellants v. KEVIN BARTLEY; STEVE GENTILE; LESLIE LEVINE; VICKI MATHEWS; MARK WEAND: Minors, Through Their Next Friend, Individually and on Behalf of All Others Similarly Situated, Appellees APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRIC1 COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA APPEAL DOCKETED JANUARY 27, 1976 JURISDICTION NOTED MARCH 22, 1976 _—— -& ep | 76 Or POs TABLE OF CONTENTS Volume I PAGE PI TID, TIED 0. icicsinctnctictntnemnmnpenninennndneindings la Complaint—November 16, 1972 .0.........ccccccceceeeeeeeees 8a I I ila ahi tcialaaeialidaia 24a First Set of Interrogatories to Defendants ................ 25a US a i eects 29a GS, 31a Motion for Sealing of Affidavits and Protection of I icinihescinredininntabiissitteceeiatbieiaiariaeriaiscisdiaidibiteaiiniaieeiiaianss 32a EE SC ae nD ee Ta Ae 34a Pre-Trial Oral Examination of Dr. Barbara Arm- strong: BPEUOGR TEUIIIOED cccsccccdeccscccccccscncsesseseses 42a TTT RET 108a Redirect Examination ..............0ccccccccccssss. i21a RROCTOSS-EERAMMIMATIOR «2.00. ccccccccccccccccscccccceees 130a Exhibit A—Class Action Suit ..................000... 133a Exhibit B—Individual Patient Summaries ...... 135a Exhibit C—Individual Patient Summaries ...... 166a Te TEA, CG ccnenssnintpntsnsiensnisnvtsnitstetiornnnes 18la Incarcerated Juveniles—Why? The Mental Institu- tionalization of Juveniles in Pennsylvania ........ 210a Argument on Plaintiffs’ Motion for a Class Action Determination and on Defendants’ Motion To Dismiss, April 16, 1974 ..........ccccceseeeeeeeneneeeeeees 232a Order Dated April 29, 1974 ........cccccsseeeeeeeeereneneeenenees 269a ARE icciereniiiiniminmunnitinianuaianntn 27la Final Pre-Hearing Order ...............csecesesesssrsnseeeeeeees 247a Summaries of Selected Patients .............:cecceeeeeeeeeeees 317a Pre-Trial Oral Examination of Dr. Max Sugar: Direct Examimation ............::ccccegeceeeeerees 365a TE 383a Redirect Examination ..............cccccccsecsseees 432a Volume Il Redirect Examination (cont’d.) ............:..:ccceeeeeeeeeeees 435a Recross-Examimation ............c.cccccccscceceseees 442a Deposition of Dr. Joel S. Feiner, M.D.: Digect Examnimation § .......cccccccsccscescsssssesecees 465a Comte eGR ccccevccccccnscecccssesscescenesees 484a Order Dated August 21, 1974 .0.......:cccceseeeeeesneeeeeees 521a The Evidence: Evidentiary Hearing, First Day ................:::cceeeeeeeeees 525a PLAINTIFFS’ EVIDENCE: Dr. Henry O. Kandler: ee i ....... . sccccbscdsnacsuctuiebenniens 537a I - . .. cinsinianaenniatiebinailiil 540a ee I a... sncsiscsccnestndeneumenteiens 541a ii EEL Na ONS HP er 548a Redirect Examination ........................0000+. 580a eae 581a Examined by the Court .................::ccc00000 582a Dr. Michael A. Ingall: Sr cease 586a cisions 597a _ Dr. Eli Charles Messinger: Direct Examination Examined by the Court ................sccssscesss 636a DEFENDANTS’ EVIDENCE: Dr. Levon Donald Tashjian: Direct Examination ................ccccccccccocccsce. 643a ETE cee aT 659a Evidentiary Hearing, Second Day: DEFENDANTS’ EVIDENCE Dr. Levon Donald Tashjian: IID occcctnccccscccscéscoccns <> ccesees 662a Redirect Examination ...............cccccccccceceeees 671la Examined by the Court ................ccccccceeees 672a Dr. Derek Harry Miller: Direct Examination ...............ccccccccceeeeeeeeee 673a CIID | occceccccevesiscsnszctccccccssserece 704a Dr. James F. Masterson: Direct Examination ..................ccccccccccee-00. 717a eee 729a Redirect Examination ...................0000006..-.. 740a iti Evidentiary Hearing, Third Day ...........ccccccceeeeeees 743a Defendants’ Exhibit No. 1—Questionnaire ............ 772a Defendants’ Exhibit No. 4—Admission Note of D. D. 774a Defendants’ Exhibit No. 5—Admission Note of A. M. 780a Opinion of the United States District Court for the Eastern District of Pennsylvania ..............0 . 783a Order, Jelly 24, 1975 ..ccccccccccsccscercrscsceccoccossccscccoreosese 8i3a Dissenting Opinion, District Court .........cccceeeeen 8i4a Court's Proposed Order—September 16, 1975 ...... 824a Defendants’ Exceptions to Court's Proposed Order— Gabober FF, BOTS cerisececsescacscsssssccnscesesssesecocvess 833a Final Order—November 17, 1975 ........ccccsccssessreeees 843a Notice of Appeal to the Supreme Court of the Uerltedd GORGES .ccccccecesccccccscccccsevcccscecencncccecenvevescees 853a Application for © Geay ....cccerccssrcccsreccccsessecccscscssececcees 856a Western Union Telegram .............ccccccserssssssssseseseees 864a Cpar Gomme GAR .cccccecccccccccssscsccssecesscsccsecsseesevese 865a iv Dr. Max Sugar—Redirect 435a MR. FERLEGER: There is no indication that the Director cannot then have the examination under 402 (b) or the examination done by the referring fa- cility. A. I would think that quite unlikely in view of the wording of this. BY MR. ROTH: Q. Doctor, Mr. Ferleger questioned you whether or not you have any objection to the Court working harmo- niously with the psychiatrist, and then he sort of led you down the primrose path (86) of questioning whether or not facts should be presumed to the Court. In essence, viewing the purpose of this lawsuit and knowing full well what is sought in the way of relief, I am questioning whether you feel that juveniles should be allowed to admit and release themselves at will as adults are? A. No. Q. And could you—I’m sorry if we have to be re- petitive. We just have to clarify this. Could you indicate why? A. For the reasons of the incomplete emotional, in- tellectual, physical, hormonal things that the adolescent has not achieved yet and that he is under the care and re- sponsibility of the parents, and the parents are the responsi- ble parties. So, if a youngster feels so threatened, so dis- turbed that he feels he wants to be admitted and somehow he hasn’t gotten the message across to his parents and he presents himself for admission at a psychiatric facility and the proper examination is done, and the diagnosis is made indicating he needs admission, then in that case the ad- mission could be followed through with parental approval. If not, then approval of the law would be sought. 436a Dr. Max Sugar—Redirect In other words, if a youngster needs to be admitted because he is a threat to himself and society and the par- ents say no, then the physician has a choice of contacting the law and saying make a judicial hearing to admit in spite of the (87) parents’ objection. Q. That goes along with the example before if a child wanted assistance and came to you, and even though the parents did not want to institutionalize the child, and even under our current safeguards, if you will, that would not likely happen in that there would be a referral to the institution, but nonetheless, assuming a child came to the institution and was begging for help and you, in your opinion, felt that the child needed help, although you may like to institutionalize a child at that point, you would be precluded from that, according to the law, correct? A. Right. Q. Now, however, that would not preclude you from seeking—from petitioning the Court? A. Yes. Q. In order to have the guardianship of the parents relieved? A. Yes. Q. With regard to the determination of adults and how they are admitted involuntarily into Pennsylvania and since we have not addressed ourselves to this section be- cause, as you say, and we discussed, we were questioning your professional opinion in connection with juveniles and the treatment of juveniles and adults, Doctor, under Civil Court commitmments in Pennsylvania, and I state under Section 406 so you have a better understanding in terms of the questions that were asked of you before “When- ever a person is believed to be mentally disabled and in need of care (88) or treatment by reason of such mental Dr. Max Sugar—Redirect 437a disability, an examination of such person has been made by a physician or physicians or for any reason the exam- ination of such person shall not be made, a petition may be presented to the Court of Common Pleas of the county in which the person resides or is afforded a medical ex- amination or commitment to an appropriate facility for examination, observation and diagnosis.”’ Then it goes on to say “By whom the petition can be made which may be a guardian, friend, individual stand- ing in loco parentis or by an executive officer or authorized agent of a governmental or recognized non-profit health and welfare organization, or any responsible person.” Now, the petition sets forth the facts upon which the petitioner bases his belief of mental disability and the ef- forts made to secure an examination of the person by a physician. Then, the Court, upon consideration of the pe- tition, issues a warrant requiring that the person be brought before the Court; fixes a date for the hearing and notifies the parties in interest. After the hearing the Court can order an immediate examination by two physicians or order the commitment of the person believed to be mentally disabled. However, that commitment will not occur for longer than 10 days and there will be a report back to the Court and another hearing will be held. Now, that is basically the way a Civil Court commit- ment occurs for an involuntary, committed adult in Penn- sylvania. (89) MR. FERLEGER: Is that a question? BY MR. ROTH: Q. And the question which I am leading up to is do you feel that juveniles who do not wish to be institution- alized ought to be afforded the same procedures as adults? 438a Dr. Max Sugar—Redirect A. No. You are viewing the issue that someone is taking the responsibility for him which is the parents, and you are abrogating their responsibility, and you are abrogating the considered opinion of psychiatrists who have made an as- sessment and a diagnosis and recommendation. Q. Now, Doctor, in connection with a juvenile who does not want to be admitted to an institution and he is objecting, as the plaintiffs are saying, well, you may ren- der an opinion saying that the child needed this institution- alization and some other doctor may say he does not, and there should be a finder of fact and that we should go to the Court then and have a judicial proceeding. How would you resolve that type of conflict? A. I'm afraid I missed the first or the second part. Q. If you feel that you have seen a child and the parents have explained the history, et cetera and you feel that the child warrants institutionalization— A. Yes. Q. —and the child is objecting and another psy- chiatrist evaluates the child, my question is whether or not the child (90) needs institutionalization at that point, what would you feel ought to be done at that point? Do you feel that it is necessary then to go before the Court as the plaintiffs would like to do, or do you feel that any other avenue could be resolved? A. Well, there may be a different slant. The second psychiatrist got from some bit of data that was admitted or that was not stressed or brought in- significantly in the first evaluation. So, if there is some kind of difference of opinion it might be useful for the two psychiatrists to come together to discuss what they feel and have a conference about it to see where they differ, or it Dr. Max Sugar—Redirect 439a might be useful to have a third psychiatrist assess the two situations and evaluate the child and see what he thinks about it because there can be a difference of opinion. There are differences in theory and differences in approach in various situations. So, if the parents are interested in handling the pa- tient suitably they will have that further evaluation and check it out and have an opinion rendered that assesses all the possible facts. Q. In other words, you feel that it can be handled by the psychiatrists? A. Yes. Psychiatrists can call for consultation or the parents can call for consultations of another person. Q. Doctor, in connection with the harmonious work- ing together (91) of the Court and psychiatrists, it is my understanding now that you feel the Court can come into play after the commitment. However, it is imperative that in order to preclude any delay of treatment of the juve- nile, and it is based upon his chronological age which is imperative and indicative of his developmental state, et cetera, et cetera, that it is necessary to render treatment as quickly as possible; is that not correct? A. Yes. Q. And then if a judicial proceeding were to occur it would occur after admission; is that correct? A. Yes. Q. Assuming that children were allowed to admit and release themselves, would you find a lot of children who would engage in the use of drugs to be institution- alizing themselves on a Friday night late and then asking out early Saturday morning? Do you think that would oc- cur? 440a Dr. Max Sugar—Redirect A. Yes, unfortunately. It might again be sort of a parody of utilizing the youngster to be his own physician instead of the physician making an assessment for which they are trained to do and do what is needed for the youngster because if he just admits himself and he says I want to go out tomorrow without an assessment, what has been accomplished? Also where is the parents’ responsibility? Are they being allowed responsibility for looking after the best in- terests (92) of their child since we assume in this society that the parents are interested in their children and look after their interests to the best of their ability? If the youngster said “I want to go in the hospital tonight,” it might be because he is afraid of coming home to see his parents which doesn’t mean that he shouldn’t be afraid. It means that the hospital may not be the place for him or the hospital might be the place for him. If it is, he should not be allowed to go out the next day and consider that what he went in there for 12 hours before is all suddenly vanished. Q. Would you feel that juveniles whether admitted to State institutions or general hospitals, ought to be given hearings prior thereto if a child has, for example, an ap- pendectomy to be performed and the parents want to place his child in a general hospital for the appendectomy, but the child refutes that? Do you think a hearing should be set up beforehand? A. No. Q. Why not? A. Well, you might end up with a dead child or a child who has a ruptured gangrenous appendix or peri- tonitis instead of saving his life and avoiding the morbidi- ty that peritonitis carries with it. You would have had the Dr. Max Sugar—Redirect 44la whole thing dealt with properly in a couple of hours if the parent and the doctor were allowed to proceed, so that it would be to the child’s interest and ultimate displeasure to have his wishes accepted since he (93) is not in a posi- tion to assess the fact that his pain in his abdomen is what it really is. He is not trained to assess it and he doesn’t know the consequences, and the parents do have some idea about it, and the doctor makes a diagnosis saying surgery is indicated even though the youngster is frightened, which is the usual thing to be, and the usual thing is to object to it. The needed course is what the recommendation should be in spite of the child’s objection to it. Q. Similarly then, juveniles would really be un- aware of the degree of their emotional problem? A. Just like adults, only more so. Q. But there is enough of a distinction based on de- velopment and growth where an adult could make his own admission as is allowed by the law and released? A. Yes, but it is still not on his own. It is still based on his feeling in his admission and psychiatrist’s saying yes, you do have this condition. This diagnosis requires you to be in the hospital. This is still not the patient be- ing his own doctor. Q. Doctor, there has been some discussion about offspring of parents who suffer from severe emotional problems. Now, whether or not the parents have suffered or are suffering emotional problems, and based upon how a child becomes institutionalized in Pennsylvania, do you not feel that there is enough (94) of a review prior to the admission of any juvenile in order to determine whether the parent is using the child or whether or not the child actually needs institutionalization? 442a Dr. Max Sugar—Recross A. I think there is sufficient review and considera- tion of the total situation and proper safeguards by what the law currently has arranged. MR. ROTH: I have no further questions. BY MR. FERLEGER: Q. Dr. Sugar, can you tell us what parts of the Pennsylvania Mental Health Law you became familiar with or read prior to this hearing? A. These. Q. All right. Can you either indicate what they are or hand them to me, and I will indicate for the record. The papers you are holding— MR. ROTH: Will you ask which portions of it you have? BY MR. FERLEGER: Q. I see you are holding the entire Mental Health Act. Did you read the entire thing? A. Yes, I looked through it. Q. What other legal documents in preparation for this deposition did you read? A. Exhibit A. (95) Q. There are no such exhibits in the record. Whatever these are. If you could either— I don’t know what you call these. Well, I can’t see what you are talking about. Oro MR. ROTH: He read the results of the State Hospital Analysis. Colloquy 443a MR. FERLEGER: I don’t know what you are talking about. MR. ROTH: The Summary Sheets. MR. FERLEGER: The Summary Sheets to the interrogatories which were submitted to the Court in this case? MR. ROTH: Right. MR. FERLEGER: Okay. MR. ROTH: This was about the new law low- ering the age from 21 to 18. MR. FERLEGER: Which was attached to an exhibit, I believe, Exhibit A. MR. ROTH: Toa Memorandum of Law which was also reviewed by him to your Complaint. This was to my answer to your Complaint, a Memorandum of Law of Sovereign immunity which was sent. This was in answer to interrogatories of the Court Order. The additional regulations and our most recent Memorandum of Law— (96) The last thing you referred to, the Memo- randum of Law with regard— MR. FERLEGER: That is—is it filed of record in this case? MR. ROTH: Yes. MR. FERLEGER: Well, the last memorandum you referred to, can you tell me what that is or let me see it instead of keeping it away from me? 444a Dr. Max Sugar—Recross MR. ROTH: Mr. Ferleger, I object to your ob- noxious attitude, but I will be more than happy to give them to you. MR. FERLEGER: May | see it? MR. ROTH: It is a Memorandum of Law that was filed—we are trying to find a date on it. I think this may have been one of the first ones filed. MR. FERLEGER: May I see it? MR. ROTH: Yes. BY MR. FERLEGER: Q. So you have not seen any of the Memoranda of Law of the plaintiffs expressing their position; is that cor- rect? A. Just what I have seen. Q. You have not seen anything with my signature at the end giving our opinion on the merits of the law- suit, have you? MR. ROTH: Just the Complaint. THE WITNESS: This is what I have seen. (97) BY MR. FERLEGER: . Q. Do you recall reading any memoranda or briefs with my signature at the end expressing our position of the plaintiffs on the merits? A. I will look through it and see. MR. ROTH: I object to this whole line of ques- tioning in that it is irrelevant. BY MR. FERLEGER: Q. Is that also your answer, Dr. Sugar? A. Yes. Dr. Max Sugar—Recross 445a Q. Dr. Sugar, you testified just now to Mr. Roth that juveniles shouldn’t be allowed to admit and release themselves to institutions. What ages were you talking about when you used the word “juveniles” in that con- text? A. The specification here being under 18. Q. Do you believe that 19-year old adolescents ought to be allowed to admit and release themselves? A. They are treated as adults. They have the ma- jority. That is the law. Q. I am not talking about the law. I am talking about their mental condition. A. Yes. They are in a much more mature condi- tion. Q. Much more than the 18-year olds? A. Yes. Q. So, it is your psychiatric opinion that 19-year olds (98) ought to be allowed to admit and release them- selves? A. From a psychiatric evaluation. Q. So your answer is yes? A. It is not yes. It should be on the basis of a psy- chiatric evaluation. Q. And it is your psychiatric opinion that with psy- chiatric evaluations 18-year olds should not be allowed to admit and release themselves? A. Yes. Q. I thought, Dr. Sugar, that you had testified ear- lier that adolescents, 15, 16, 17 or 18 ought to be allowed to admit themselves with a psychiatrist’s evaluation. A. Yes, I did. Excuse me. I had a lapse in what you were saying. 446a Dr. Max Sugar—Recross Q. What is your opinion then? Should they or shouldn’t they? A. They should be allowed to admit themselves if the psychiatrist agrees that they need admission. Q. So then what you testified to Mr. Roth then was incorrect? A. I testified to the same thing. Q. Well, I believe the record will show that you testified that they should not be allowed to admit or re- lease themselves. A. I said they would be allowed to release them- selves. I said if they need to be admitted and they present themselves at a facility and they say “I am disturbed, I want help,” and the psychiatrist concurs in making the diagnosis and he suggests (99) an admission would be the best course, then they should contact the parents and then the procedures should be arranged for the youngster to be admitted. The youngster has a right to say “I hurt,” and then somebody responds. So, the psychiatrist, if he is the first one, he makes a diagnosis and then he contacts the par- ents or guardians and they take— Q. Suppose the parents don’t agree? A. I took up that point earlier with Mr. Roth. Q. What is the answer if they don’t agree? A. The physician has the choice then of contacting the law to institute proper proceedings; to admit this youngster because he is a danger to himself or others. Q. Interms of your expert opinion on what the law should provide, the law now provides that people above the age of 18 may make applications to mental institutions. Do you feel that children between the ages of 13 and 18 ought to be allowed to make that application understand- ing that after the application there will be an examination? Dr. Max Sugar—Recross 447a A. I think I just answered that question. Q. Do you feel that they should be allowed to make that application? A. I think I just answered that question. Q. Can you answer my question? MR. ROTH: I object. (100) BY MR. FERLEGER: Q. Do you feel that children between the ages of 13 and 18 should be allowed to make application to an institution? A. By “application,” what do you mean? Q. Under the statute that you are familiar with. A. I want to know exactly what you are referring to when you say ‘‘make application”’. . I just answered the question of the youngster if he is disturbed and he presents himself at an institution or a psy- chiatrist’s office and says “I am upset. I want to be in the hospital.” Then the psychiatrist may make an evaluation and then follow the procedure I just mentioned. Does that answer your question? MR. ROTH: I object to this on the basis that Dr. Sugar has already replied to the Act and indicat- ed that parents admit their juveniles up until 18 and has indicated when you tried to question and indicate whether or not he was saying juveniles should be able to apply for admission. Dr. Sugar responded to that by saying no, that juveniles, if they need help, can seek help, but the application still goes through the parents. . I can’t understand why you are harassing him with this question four or five times. 448a Dr. Max Sugar—Recross MR. FERLEGER: He has testified in both di- rections (101) on this question. MR. ROTH: He has not. MR. FERLEGER: He said himself that he mis- spoke. We are talking about the word “application”. THE WITNESS: Does that clarify the fact that 1 do not understand what your question was and that, therefore, | corrected it? BY MR. FERLEGER: Q. Dr. Sugar, we are talking about Section 402 of the Mental Health Act. The word “application” is used in that section. That section states: “Application for voluntary admission to a facility for examination, treatment and care may be made by (1) any person over 18 years of age.” For people under 18, we understand the provisions are the parents or the guardian and that they have to make the application. MR. ROTH: Or individuals standing in loco parentis. BY MR. FERLEGER: Q. After the application then comes the examina- tion. My question is, and this has not been asked before at all: Is it your expert opinion that that application should not be allowed to be made by a person between 13 and 18 or should the person between 13 and18 be allowed to make that application? (102) A. What does “application” cover? Dr. Max Sugar—Recross 449a Q. Application is a request to the institution to ad- mit and/or examine. A. I just said that he could make application. Q. The reason— A. Excuse me. I am going to have to be getting back. I would like to have some idea of where we are in terms of completing. Q. I probably have another 20 minutes or so. The reason that I wanted to clarify that is because the Complaint that you have read, that the plaintiffs have filed, are asking that people below the age of 18 ought to be permitted to make that application. A. Well, if it is in the law already, how can there be a complaint? Q. It is not in the law, and the law states that peo- ple below the age of 18 cannot make an application. A. I see. Q. You have testified for some people below the age of 18 that they ought to be allowed. A. Okay. Q. Now, Dr. Sugar, in the past year or so can you tell us how many occasions you participated in a judicial proceeding for a mental health commitment? A. In the past year? Q. Yes. (103) A. I really don’t know offhand. Q. Can you estimate? A. Very few. Q. More than five? A. No. Q. In the past five years, what has been your aver- age number? 450a Dr. Max Sugar—Recross A. I do very little hospital work. I have partici- pated in this very little in the last few years. Q. When was the last time, if ever, that you worked as an institutional psychiatrist? A. Ihave worked in institutions and I have been a consultant to a variety of institutions, and I still am. Q. When you state ‘I do very little hospital work,” what do you mean by that? A. By that I mean direct, primary care being the responsible physician for the immediate day-to-day care of the individual. Q. When was the last time, if ever, that you had responsibility for direct, primary care in an in-patient fa- cility? A. Yesterday. The day before yesterday. Q. How many days of the past year have you been involved in that? A. Perhaps a week. Q. So it is correct that your main experience does not involve such? (104) A. My main recent experience involves office practice rather than hospital practice. Q. When was the last time that your major re- sponsibilities involved hospital practice? A. I just told you, the day before yesterday. Q. Has there been a period of time during which you have been involved as a hospital physician rather than an office physician? A. I think that I'd better clarify what I am saying. In my private practice—lI at one time did a good deal of hospital work as well as office psychiatry. In recent years I have not been doing very much hos- pital psychiatry. In other words, | treat my patients in Dr. Max Sugar—Recross $5la the office. If they are manageable for treatment, | treat them in the office. If not, then I refer them to someone else. Q. You said “at one time”. How long ago was that? A. Qh, some eight years ago, I guess. Maybe 10 years ago. Q. Now, Doctor, you testified at the end of a long question from Mr. Roth during which you read Section 406 of the Act, and you felt that those procedures would be bad for children. Those procedures required notice and a hearing and counsel and all that. Is that your opinion, Doctor? A. If I rendered it a few minutes ago, I think that states the facts for something. Q. And the reasons that procedure would be bad includes the trauma of a judicial proceeding and the other factors that (105) you mentioned earlier? A. I stated my reasons earlier. Q. Now, can you explain why those procedures should occur under the regulations which Mr. Roth re- ferred to because those regulations, you know, require that when a juvenile objects that all these 406 procedures that you just testified are bad be followed through. A. He was already under care of a psychiatrist and in the hospital. He is in an institution where some con- trols are offered and treatment is going on. He is in a safeguarded situation of a medical facility to look after him. So, when he is having a hearing, that isn’t in that kind of context. Q. The hearing in court would be before a judicial officer? 452a Dr. Max Sugar—Recross A. But he is essentially ir. a hospital and—the hear- ing may sometimes be held in the hospital. Q. So the difference is that the juvenile is already in the hospital and at that point you feel that the Section 406 procedures are okay or at least not objectionable? A. He is getting treatment. He has had the recom- mendations of admission and treatment and already start- ed on that. Q. How long does that usually take, those recom- mendations and decisions to begin treating? How long after institutionalization? A. Well, once he is in the hospital that is part of the treatment. (106) Removal from the home—removal from the home for any adolescent is treatment in and of itself. It takes him away from some pressures at times that they have within the family or within their neighborhood or wherever the problem may be. Q. But hospitals also offer individualized treatment; is that correct? A. Yes. Q. How long after institutionalization would they typically begin? A. lam pointing out the treatment is already under way when the individual is in the hospital. Q. But I am talking about the additional individu- alized treatment. A. Ihave no figure to provide for that. Q. Usually it takes more than a couple of days, doesn't it? A. It may be the same evening. It may be the next morning. There is no usual kind of figure that I can pro- vide you with. Dr. Max Sugar—Recross 453a Q. Now, Doctor, you testified about this revolving door idea that if juveniles could institutionalize themselves they could sort of go in and then request to leave and then if they got out could come right back in again. I want to check whether or not that it is still your opinion because you have now testified that juveniles should be allowed to apply for institutionalization on their own. (107) If juveniles would be, as you wish them to be, allowed to apply for their own institutionalization, would we still have this problem with them going in and out? A. 1 think I clarified that point in my earlier testi- mony that if they do apply, they are admitted. Then they should be admitted to stay for as long as the psychiatrist needs them there. Q. But the Pennsylvania Mental Health Act for vol- untary commitment doesn’t allow that, does it? A. Possibly. Q. You testified that you are familiar with the vol- untary sections of the Act. As a matter of fact, you testi- fied that that is the main part that you are familiar with. A. I did not say I was an expert on Pennsylvania Law. I said I read it. So now if you are making a point about some aspect of it, | would appreciate you clarifying what you are discussing. Q. First let me get your position. Your position is— MR. ROTH: Why don’t you first explain it. Let me object at this point. He is being misled. MR. FERLEGER: I will do my best to be as clear as | can. 454a Dr. Max Sugar—Recross BY MR. FERLEGER: Q. Your position is if a juvenile is allowed to admit himself or herself that it should be for as long as the psy- chiatrist (108) deems necessary; is that your testimony just now? A. Yes. It should be on the basis of a psychiatric evaluation for admission. Q. Now, for voluntary admission in Pennsylvania, the law, for your information, provides that under Section 402 a person can leave at anytime; and under Section 405 the commitment can be for no longer than 30 days with a provision that the person can give notice and then leave after 10 days, so those provisions would not satisfy what you see the needs of juveniles to be; is that correct? MR. ROTH: This is an incorrect interpreta- tion. MR. FERLEGER: We will take a minute and let the doctor read the statute. THE WITNESS: I really am getting tired. | think there has been a lot of redundancy in the ques- tions that I have been asked, and I would like to take a break for coffee. MR. FERLEGER: That's fine with me. (Whereupon, a short recess was taken at 12:12 o'clock P.M.) (Deposition continuing at 12:24 o'clock P.M.) BY MR. FERLEGER: Q. Doctor, with reference to this signing in and out of institutions, I believe the last question that I asked, which was not answered, was whether it was your opinion Dr. Max Sugar—Recross 455a that the voluntary commitment provisions of the law would not be appropriate for (109) juveniles since they do not allow what you said is the right procedure for the commit- ment to be as long as the doctor wants. Is it your opinion then that the Pennsylvania volun- tary sections would not be appropriate for juveniles? A. I don't know what your question is yet since the question seems to be escaping me. Q. Let's break it down into parts. A. You're asking me to render an opinion about law in your state, and I’m only here to render an opinion about psychiatry. Q. I am not asking you about an opinion about law. You stated that it was your opinion that when juve- niles, let’s say, between 13 and 18 sign themselves into an institution or make that application, which you are in favor of, that that should be for as long as the psychiatrist thinks it is medically necessary; is that right? A. And you told me that is the law. Q. Is that right? A. I said that a youngster should be able to tell somebody he is distressed, in pain and needs to be ad- mitted, and then if that person is a psychiatrist that per- son should contact the parents or the guardians to take the proper procedure for admission. If the parents object and don't want the youngster admitted and the parents re- fuse to cooperate and the psychiatrist feels it is necessary, then he can call! on the iaw to act in loco parentis. (110) Q. And beyond that it was also your tesii- mony that a child between 13 and 18 ought to be allowed to make the decision under Section 402 and 403? A. By “application” I meant what I just said. 456a Dr. Max Sugar—Recross MR. ROTH: I have an objection on the basis that I don’t think Dr. Sugar fully understood what you meant by “application’’ as far as the juvenile making the application or, as he stated numerous times, that if the juvenile is in need, then he should be able, the psychiatrist, after the evaluation, he should be able to indicate to the parents or guardian that an application should be made. I think there has been some confusion with that, and that is what we are trying to clear up. MR. FERLEGER: Well, we read the section of the Mental Health Act defining “application” and describing it, and Dr. Sugar— MR. ROTH: I think he has clarified that point. MR. FERLEGER: Well, your testimony is that if the juvenile’s parents agree, then the juvenile should be allowed to get himself admitted with the psychia- trist’s agreement to an institution; is that correct? MR. ROTH: I object to that. He has not said that at all. THE WITNESS: Well, I think you are mis- understanding and you are misphrasing what I just finished saying. I have (111) said it at least six times today. BY MR. FERLEGER: Q. And at six different ways. A. No, I have not. I have said it explicit each time. I think this is unnecessary. MR. ROTH: I object. Dr. Max Sugar—Recross 457a BY MR. FERLEGER: Q. The Mental Health Act allows application to be made for admission to an institution by any person over the age of 18; for any person under 18 that application has to be made by other people. MR. ROTH: That is exactly what I have just finished explaining, and I think you are asking a re- dundant question. I object. You are harassing the witness. BY MR. FERLEGER: Q. For people under 18, should that application— can that application, in your opinion, be in the best medi- cal sense made by the juvenile himself? A. I think I have just answered your question. I refuse to answer your question again. I think it is in the record. If you want to read it, fine. I don’t think I need to be going over the same ground again. Q. Now, you testified to Mr. Roth that there would be a (112) problem if juveniles could admit and ask for their own release. There would be a problem with them going in and out of the institution; is that your testimony? A. I said that if there were no psychiatric evalua- tions, this is not suitable. I just finished clarifying that a moment ago that it had to be on the basis of psychiatric evaluation, diagnosis, recommendation; not on the basis of the juvenile being his own doctor. I think I said that explicitly just 20 minutes ago. Q. If there is an evaluation, do you feel it would be anti-therapeutic to allow the child to request to leave 458a Dr. Max Sugar—Recross when the psychiatrist’s opinion would be that he or she should stay; is that correct? A. Yes; but there is the availability of the law to have a hearing. Q. Don’t we have that same anti-therapeutic effect when an adult voluntarily requests to leave and the psy- chiatrist is in opposition? A. Yes. The patient still goes out quite disturbed if he is not ready to leave yet. Q. Now, Dr. Sugar, you testified with regard to operations in medicine or surgical procedures or physical problems that the child may understand and would be frightened, but that even if the child doesn’t want the pro- cedure that it should just be up (113) to the parents and the doctor whether or not the child gets the procedure; is that your testimony? A. That’s what I said. Q. Are you aware at all of any legal provisions or limits which make it impossible for parents and doctors acting without regard to getting permission from the Court to make it impossible for them to decide on medical op- erations or surgical operations for children? A. You're asking me for a point of law. Q. Iam asking you whether or not you are familiar with any legal principle which operates to limit the right of the parents to decide with the doctor as to what opera- tions their children should get. A. You're talking about ethical procedures or un- ethical procedures? Q. I am talking about whether or not you have heard of any such legal principles. A. I think you’d better clarify what you are asking me about. Dr. Max Sugar—Recross 459a Q. Have you heard of any such legal principles? A. (Can you clarify that? Q. The legal principles I am talking about are those principles which prohibit or limit the right of parents act- ing with doctors to decide in their sole discretion what medical or surgical procedures are performed on children. A. Where does that apply? (114) Q. Excuse me? A. Where does that apply? Q. I don’t understand your question. A. Well, I am just rephrasing it to ask you to clari- fy what you are asking me. Q. It applies to the situation where there are medi- cal or surgical procedures which are contemplated. Are you familiar with any legal principles in that re- gard? A. You're asking me for a point of law— Q. Iam— A. —and not medicine. Q. I am asking you whether you are familiar, whether you have heard of any of those legal principles. A. I have heard of situations where a youngster needed a tranfusion and, because of the parents’ religious feelings, they would not. They would let the child die, and the Court would step in and have the medical procedure that was designated, the approved ethical procedure. Q. Now, in a situation where an adult is advised in a medical, surgical context where an adult has advised that he or she needs a certain procedure done, and where it is not a question of life or death, it is true, isn’t it, that the parents could refuse that procedure? A. You are talking about an adult wanting to not go ahead (115) with the procedure that has been recom- mended? 460a Dr. Max Sugar—Recross Q. That’s correct. A. And you’re asking if he has the right to refuse? Q. In your medical judgment, what is your opin- ion? A. Yes, he has a right to refuse. Q. Even though one or two or 20 doctors may ex- plain that it would be best to have that? A. He has the right to refuse. Q. Now, if that adult is told by one or two or 20 psychiatrists that the best medical procedure would be for him to be institutionalized, is it also your opinion that he has the right to refuse? A. That is a question where the patient may not be capable of exercising proper judgment. If you are talking about a physical condition and the assumption is made through the inference that the patient has his proper faculties for judging the situation and he refuses, it is a different situation from the very condition that needs to be tendered to as the one that is impairing his judgment and thinking processes. Then he is not in a position to exercise proper judgment about his condition and the need for treatment for that condition. So, it is not comparable to the physical situation. Q. Is it your position that in a situation where a doctor counsels a certain surgical or medical procedure to be performed (116) on a chiid and with the parent agreeing that that should be outside the scrutiny of the law? A. In the ordinary circumstances, yes. Q. So, for example, if a young child had a healthy kidney which his parents and the doctor felt could be transplanted to another child who needed a kidney, is it your opinion that that removal of the organ should be just between the parent and the doctor? Dr. Max Sugar—Recross 461la A. That is not the ordinary circumstance. Q. What is your opinion? A. I would not render an opinion. It is outside of my field and specialization. I don’t do kidney transplants. Q. Well, you have rendered opinions about other medical procedures. Why is it this one that you decide not to render an opinion on? MR. ROTH: Objection. He has not rendered an opinion as to medical procedures. He has rendered opinions in terms of need and emergency for a condition that so warrants it. MR. FERLEGER: I don’t understand that. THE WITNESS: I think what you are talking about is beside the point. I do not render opinions about medical procedures. BY MR. FERLEGER: Q. I agree that the medical procedures are beside the point. (117) Mr. Roth brought them up in the ques- tioning of you. A. I was talking about these procedures that you are talking about of a kidney transplant being done on a child without his understanding and just because the doc- tor said so—that is not an ordinary circumstance. . I have already clarified my point. You are ask- ing me to go into detail about a condition which is not in my area of specialization. 462a Dr. Max Sugar—Recross Does that clarify my comment? MR. FERLEGER: No further questions. MR. ROTH: I have no further questions. MR. FERLEGER: Just for the record, since I came after Mr. Roth started the deposition, because | was later than I expected to be, I have not agreed to any stipulations with regard to signing or certifica- tion or filing or objections, and reserve the right to make any objections before the testimony is intro- duced. MR. ROTH: You might want to show for the record what time the deposition began and what time it stops. MR. FERLEGER: And the fact that Mr. Roth knew that I would be late. MR. ROTH: By ten minutes, when he was late by 35 minutes. MR. FERLEGER: I don’t know of any pro- ceedings in (118) the rules which allow counsel to begin a deposition without the other side being present. MR. ROTH: Well, my understanding of the rules is that you are invited to attend, and the time is set forth, and as a result, we questioned Dr. Sugar about his qualifications and history and then the questions were read back to you prior to getting into the substance of the deposition, so we feel there was no prejudice whatsoever. Dr. Max Sugar—Recross 463a (Whereupon, the deposition concluded at 12:38 o’clock P.M.) Reported by: Marvin Dinter Official Court Reporter Dr. Max Sugar Dated: 404a Appearances IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 72-2272 Kevin Bartley, et al, Plaintiff VS. Haverford State Hospital, et al, Defendants DEPOSITION OF DR. JOEL S. FEINER, M.D. Philadelphia, Pennsylvania August 21, 1974 Oral deposition of DR. JOEL S. FEINER, M.D., held on August 21, 1974 at the office of DAVID FERLEGER, ESQUIRE, 1315 Walnut Street, Philadelphia, Pennsyl- vania commencing at 2:00 p.m., before Michael H. Step- hany, Approved Court Reporter. Appearances For the Plaintiff: David Ferleger, Esquire For the Defendant: Barry Roth, Esquire, Room 323, Health and Welfare Building, Harrisburg, Pennsylvania 17120 Dr. Joel S. Feiner—Direct 465a (2) DR. JOEL S. FEINER, M.D., having been duly sworn, was examined and testified as follows: Examination BY MR. FERLEGER: Q. Dr. Feiner, what is your occupation? A. I am a Physician-Psychiatrist by speciality, Child Psychiatry by sub-speciality. Q. Where are you employed? A. I’m employed by Mott Haven Unit of the Lin- coln Community Mental Health Center at the Albert Ein- stein College of Medicine. Q. What city is that in? A. Bronx, New York. Q. Will you please tell us where you received your medical and psychiatric training? A. After I went to college at Yale University, I re- ceived my M.D. at Albert Einstein College of Medicine. In 1964 I was a Pediatric Intern at Bronx Municipal Hos- pital Center, and took my residency in Child Psychiatry Fellowship at Bronx Municipal Hospital Center of the Albert Einstein College of Medicine. Completed my train- ing in 1970. Q. Since then have you been involved in any aca- demic work involving Child Psychiatry or related fields? A. Since that time, I have been both a service pro- vider, (3) working with children and adolescents in the Lincoln Hospital, Department of Psychiatry and a faculty member of the Albert Einstein College of Medicine, cur- rently holding the rank of Assistant Professor on a full- time academic faculty. Through the years 1972 to 1974, I held a career teaching award recommended by the National Institute 466a Dr. Joel S. Feiner—Direct of Mental Health. I understand that | was one of two recipients of that award from the country. My work during these two years was to teach in the areas of community Child Psychiatry, which I proceeded to do, for a variety of personnel from medical students to psychiatrists in training, social workers, et cetera. Q. Have you delivered any papers with regard to children or child psychiatry? A. Yes. I delivered a number of papers concerned with adolescent phenomenon, particularly related to those phenomenon observed in the South Bronx area that I have worked. I have talked about street gangs in the South Bronx and graffiti phenomenon. I have also talked about children in the context of their schools, recently having delivered a paper at the American Ortho-Psychiatric Con- vention in April, 1974. Q. Does your work involve treatment as a psychia- trist of children with emotional problems? (4) A. Yes, it does. Q. And also families of children with emotional problems? A. That is correct. MR. FERLEGER: Could this be marked as Plaintiff's Exhibit No. 1, please? (Curriculum Vitae marked as Plaintiff's Exhibit No. 1 for identification.) BY MR. FERLEGER: Q. Dr. Feiner, could you identify Plaintiff's Exhibit No. 1, please? A. Yes. That is a Curriculum Vitae which I have submitted. Q. This is your resume? Dr. Joel S. Feiner—Direct 467a A. My resume. Q. And this resume includes your academic appoint- ments and professional activities and papers and a review of your experiences? A. That’s right. MR. FERLEGER: Will you please attach to the deposition that so we won’t have to go over the rest of your qualifications? BY MR. FERLEGER: Q. Dr. Feiner, can you please give us a brief review of the kinds of emotional and psychiatric problems that children have (5) and then have those problems fit in with their relations with their families and other social agen- cies? A. Well, the vitae is enormous, and ranges from everything from severely withdrawn and clearly psychotic children, who are virtually unable to relate to other people to the kinds of problems which we would consider to be situationally based. There are problems which result from the non-supportive nature of a particular environment, the inability of the environment and the child to mesh in a way that is conducive to the child’s development. In between there are a variety of problems, various degrees of severi- ty. What I, and any others certainly in the past five years have become extremely aware of is the relationsuip of a child’s behavior and really his psychiatric symptoms to the entire context of that child’s life. The usual context is the child’s family, and what we talked about in recent years is rather than the kind of diagnostic approach where a child is diagnosed quite apart from the context of his life, and really in a kind of one-to-one interview. We are now very concerned with looking at the child from what we 468a Dr. Joel S. Feiner—Direct might call an ecological context, taking into account all of the factors in the child’s life, what that includes is recog- nition of the fact that children are extremely responsive to what goes on in families. (6) Perhaps the most responsive element to the child’s communication is hidden agendas, overt and covert needs of all of the members of the family, and since the early '40’s we have known that parents can induce certain types of behavior in children based upon their own unconscious needs. I guess a very simple analogy might be for the need to have a child behave in a particular way might be the need that is commonly recognized, for example for the public to go to football games or boxing matches. It is often said that this is an outlet, and it provides—it serves the need for people to funnel off some of their aggression, some of their excitement, much in the same way one might suppose that this need is ongoing, and a child is often the most easily available person to continually act out for the parents. Another example of this would be the following— there certainly are certain families where the parents are simply not responsive to the usual kinds of—one might say good behavior or positive behavior. That behavior is simply ignored not acknowledged, and a child is not—does not receive any attention for that behavior. All of us need attention, and a good part of our life goes into ways in which we can receive attention from important people, and so a child finds ways that this attention is forthcom- ing, and very often that is what is (7) so-called bad be- havior. Q. Does that include behavior that in other context might give you this delinquent behavior? Dr. Joel S. Feiner—Direct 469a A. That’s right. Q. So that a child’s emotional problems or the stresses in the family situation could result in children acting in ways that might be considered delinquent or crim- inal as well as traditiona) mental health type systems? A. Absolutely, and we might say after moralistically that bad attention is better than no attention at all. Q. From the child’s point of view? A. From the child’s point of view. Q. Dr. Feiner, are you aware of any commission or any other psychiatric reports on the needs of children that have any conclusions that relate to the kinds of problems that you were just discussing? A. Yes. There is, in recent years, a very important commission called the Joint-Commission on Mental Health of Children, and I have a rather extended quotation from a section of that that I would like to read. It is from the report of Task Force-2, which is “Studies of Children from Kindergarten Age through Eighth Grade.” It is in the Joint-Commission on Mental Health of Children, Mental Health from infancy through adolescence published by Harper and Rowe, New York, 1973. This (8) is pages 112 and 117. Q. But Dr. Feiner, is that report considered an im- portant one in the field of Child Psychiatry? A. Yes. It is an important one and one which has been widely discussed and written about in various sources. Q. Doctor, do you have a copy of that report? A. I don’t have a copy with me. MR. ROTH: Pardon? THE WITNESS: I don’t have a copy with me. 470a Dr. Joel S. Feiner—Direct MR. ROTH: Where is it actually located? THE WITNESS: It is located in any library which contains psychiatric references. MR. ROTH: May | just register an objection on the basis of his reading it without seeing a copy of the report prior thereto? BY MR. FERLEGER: Q. Will you please read us the quotation that you have? A. The quotation is as follows: “The intervener ought to recognize the close interrelation interrelationships between the individu- al and his surroundings and deal with the factors that impinge upon the individual from the outside as well as from within the individual himself. When the surroundings are not taken into ac- count, there is, (9) for example, insufficient under- standing of the social conditions of diagnosis, that is that psychiatric labels tend to stigmatize.”’ It goes on “All of these children are plunged from their natural environments and introduced to a different setting for a cure. If the child is treated successfully in this new environment, it is assumed that he can be sent back to his old environment to make a clean start. Unfor- fortunately, however one could not remove psychopatholo- gy like an appendix. This traditional approach disregards the unfortunate fact that children often tend to conform to the niche in which they have been placed. A child la- beled ‘delinquent’ may begin to consider himself a delin- quent, and act accordingly. Furthermore, if the environ- Dr. Joel S. Feiner—Direct 47la ment to which the cured child is returned has remained the same or perhaps even organized itself more firmly around old lines of interaction with the absent child seen as the only ‘family problem’, it seems highly unrealistic to expect the child to maintain this cure in the face of re- exposure to the elements which caused his disturbance.” Q. But Dr. Feiner, do you agree with those observa- tions which you have just read? A. Yes, I do. (10) Q. And you would adopt them as your own? A. Ido try to put them into the practice of my own work. Q. Dr. Feiner, from what you have said, I under- stand that there might be situations where the family’s problems might result in the institutionalization of chil- dren; is that the case? A. Absolutely. Q. How would that happen? A. Well, that would happen in a number of ways. The family is under stress from a number of different sources, often there are some intercurrent tragedies, such as separations, deaths, illnesses and the child, as part of that family is also under the stress. The child—everybody in the family experiences anxiety in different ways. The child’s anxiety may be expressed dramatically, in which case the family, being overwhelmed to begin with, feels that their lot may be somewhat better if the child is simply out of the picture for a while. It is often very likely that under circumstances of stress, families will approach— what they consider experts, professionals of some sort or another, physicians, school personnel and so on and ask for some help, whereupon the advice that they get is that the child should be hospitalized. 472a Dr. Joel S. Feiner—Direct They reluctantly follow that advice, feel guilty as a (11) result and the snowball effect continues as the fami- ly does not ultimately really receive help for its problems. Q. Well, why would it be the child that would be scapegoated or institutionalized rather than another mem- ber of the family? A. Well, the child is quite susceptible, and often it isn’t the child—I mean there are many situations where the child does not go on, but the child has some intrinsic vulnerability based upon the fact the child is dependent to begin with, the child is more controllable in certain ways, the child is also often a newcomer to the setting, the last to be present in this little system, often unwanted, and un—not chosen. There also is the important fact that children do rep- resent for the adults a replay of their own childhood, and a re-experiencing of their own problems when they were children, so that the child is—the repository of the pro- jected bad feelings of some parents towards their own childhood. Q. So that the result in parent misunderstanding, the actions or feelings of the child? A. Absolutely. Absolutely. I mean I would go on to say that this is certainly not unusual for parents to mis- understand or act in ways that are inappropriate towards their children. Q. Well, do you feel, then that parents can be re- lied on to act in the best interests of their children? (12) A. Well, I am sorry to say that the increasing statistics about child abuse and child neglect, the over- worked bureaus of Child Welfare, I think speak to the point that parents do not always act in the best interests of their children. Dr. Joel S. Feiner—Direct 473a I can recount tragic cases where that simply was not so. Q. Now Dr. Feiner, the orientation of psychiatry that you have been discussing, has that always been the orientation of psychiatry or is that a recent change in the past 10 or 20 years? A. Well, it is really within the past 10 years. There has been an increasing attention paid to the—what we might call the context of children’s lives or the ecology of their lives, and this is so in part because we have just be- come technically more proficient as understanding group behavior and family behavior, and we now recognize how that behavior can be looked upon rather than isolating one element of that situation and assuming that all behavior and all symptoms are somehow self generated. Q. Dr. Feiner, are you familiar with and have you examined the deposition in this case of Dr. Max Sugar, of Louisiana? A. I have looked at some of it, yes. Q. Now, not with reference to his entire deposition, but only with reference to those parts examined discussing his general (13) orientation in child psychiatry, how would you place him in terms of this change in orienta- tion that you just discussed? A. Well, I would say that he takes a traditional point of view, which isolates a child from the environment and discusses the child’s behavior and symptomatology in very specific individual terms. Q. By “traditional” you mean that orientation would be prior to the developments of the last 10 years? A. Right. I would also say, if I might that there is, in his testi- mony a kind of—what I would consider an inappropriate 474a Dr. Joe! S. Feiner—Direct sense that institutions can be taken for granted, that par- ents, schools, police and so on are institutions of good will. I wish that that were so, and maybe 20 or 30 years ago it was felt to be so in general ways. Our experience certainly working in poverty neigh- borhoods is simply that these institutions cannot be taken for granted; that, as I have mentioned, parents do abuse and neglect their children and schools often do not even fulfill the mandate of teaching their students, let alone are they able to evaluate behavior. Q. Dr. Feiner, you mentioned working in poverty neighborhoods. Now, in terms of the social class of chil- dren who are likely to (14) be institutionalized, what class would that be? A. It very often is children of lower class— Q. Is it correct that in terms of the various state hospital systems in the country, that it is more likely that lower class or lower middle class are patients there rather than the upper class? A. li is my understanding that that is so, and in fact that often—the professionals who do the evaluations are at some great distance culturally, class wise and geo- graphically from the situation in which these children are living, and misperceive behavior. Q. Dr. Fe er, will you please tell us the general ef- fects of institutionalization in mental institutions and es- pecially how they may affect children? A. Well, institutionalization is an extremely serious matter, especially mental institutionalization, extremely serious. First of all, there are no good studies, ts. my knowl- edge that really long range benefits are achieved from treatment. That, traditionally upon re-emergence into the community children are often, as I have said earlier, placed Dr. joe! S. Femer—Direct 475a in the same circumstances which they left, and the mental hospital has either done a sequestering of them from the real problems of their lives or an opportunity to partici- pate (15) in some unreal world. Also the fact that prob- lems have been dealt with by hospitalization has—is very often a first resort solution establishes mental hospitaliza- tion as an Ongoing way that people should deal with their problems or that this child should deal with his problems in the future. Certainly we have to be very aware that there is a stigma that remains to mental hospitalization, and that a child at some point in his life will have to apply for licenses, have to apply for jobs, will have to account for this period of his life in some way, and we know that the reality is that the public does not look upon mental hospitalization as a benevolent benign situation. The family is often stigmatized, and feels guilty as a result and looks, then for this person to behave in similar ways. After all, a mental patient, in our society is some- one who has been in a hospital, someone who is psychotic and not in a hospital is not considered a mental patient. The operational definition of a mental patient is someone who has been in a mental hospital, and that brings with it certain expectations of the people around; moreover hos- pitalization sometimes obscures the kinds of permaneni and environmental issues that | mentioned, it just tucks them away, and may never deal with them, and one may often get one child hospitalized (16) for family reasons, and then low and behold the family classes the next child in line in the family to start to deal with its problems. Q. Has that happened in your experience? A. Yes, it has happened. Q. So that once one child in a family is institution- alized, you wouldn't be surprised, if, after a period of time, 476a Dr. Joel S. Feiner—Direct the next child develops some problems and becomes insti- tutionalized? A. It has happened in my experience, when the family has not been dealt with. Q. Dr. Feiner, it seems from your testimony, then, that you consider treatment by physicians in mental hos- pitals to be somehow different than treatment for physical problems of children in community or even in a general hospital such as a tonsilectomy or some disease that re- quires hospitalization in a regular hospital? A. Well, I do, because if one were to bring a child with tuberculosis to a doctor—and this is really a similari- ty, in a way, one would test all of the people in that family for tuberculosis and treat them, if one found tuberculosis. I feel that taking a child to a psychiatrist for treatment is different in part because there are qualities of this child having a contagious disease that needs the entire situation, as I (17) mentioned previously, that needs to be looked at, and the response of the environment or of the psychi- atric institution has many alternatives. Q. Dr. Feiner, since this lawsuit involves an attempt to attain judicial hearings to explore alternatives to insti- tutionalization and the needs for institutionalization, are there alternatives for treatment of children who need men- tal problems that a court could explore or is hospitaliza- tion the only possibility? A. No. There are alternatives that I would expect ought to be used even before it gets to a court. These are by now tried and true situations. 1 will refer to one of them which is a study called “The Treatment of Families in Crisis.” In the results re- ported in this book, which is by Drs. Donald Langsley and David Kaplan, 75 patients who would normally be ad- Dr. Joel S. Feiner—Direct 477a mitted to a hospital were matched with 75 controls, all of whom were admitted to hospitals according to usual pro- cedure. The 75 patients who were treated in a family context with intensive rapid intervention of a variety of various ways showed 85 percent less hospitalization over 6 months than those who would have been hospitalized in the regular way. This saved all of the problems of being hospitalized and is a dramatic way of (18) relieving stress in a family and working in a problem oriented way to- wards the supportive and human and quite appropriate resolution of family problems. After all, the family often comes in in panic, has— they have exhausted their own repertoire of behaviors and solutions, and often it is common in and of itself for some- one to say “Calm down, I think we will be able to help, let’s see what the problem is. Maybe all you need is a good night’s sleep, which I can help you have, and let’s talk about it and see what resources are available.” This worked initially in 75 out of 75 and then over 6 months only 17 percent of those 75 had to be hospitalized. Q. Now, is this an accepted alternative, then, with- out hospitalization? A. Absolutely. It is an accepted alternative which requires a vigorous effort on the part of mental health personnel. Q. Now doctor, the calming effect that you just de- scribed reminds me of Dr. Sugar’s testimony where he tes- tified that when a child is brought into an institution, a mental institution, there is very often a sudden, you know, relief of stress, and the child—almost says—feels good to be there. Now, is there any other explanation besides the beneifts of hospitalization that might explain that relief? 478a Dr. Joel S. Feiner—Direct (19) A. Well, in an ironic way that in part may speak to the situational nature of the child’s problems— that the child hasn’t gotten any therapy yet, there hasn’t been any internal reorganization of his character structure, he just has had a situational environmental manipulation, and what I am suggesting is that can be done while the child is still there with an objective parent, who is human and sensitive to the needs of this family, and I would say that calming effect could in fact be just a non-specific re- lief that somebody is doing something about a situation. Q. Dr. Feiner, most often—and you can confirm or deny whether this is actually true, but it appears to me that most often psychiatrists to whom parents bring their chil- dren or parents are directed to bring their children learn of the symptoms and the background of the behavior of the children from the parents, and I wondered if you could dis- cuss, as you have peripherally earlier, whether or not par- ents are reliable sources for that sort of information? A. Well, I am not sure that anybody who is experi- encing tremendous anxiety is reliable for this source of in- formation. I think that they, too, are very much in the situation and obviously can’t be objective reporters of the situation. Clearly what they have to say is important—l wouldn’t deny (20) that their information is important, if not crucial; however, it is only one of the part of the whole thing. Very often we see a child, mental health profession- als will see a child on one occasion and make an evalua- tion that really needs to be thought about, because a child is going to be either overly anxious and show behavioral manifestations or withdrawal, because of the unfamiliarity of the setting, the kinds of feelings that the child has that this interview is going to determine the child’s fate for a good period of time, and there is no sense that this—that Dr. Joel S. Feiner—Direct 479a this situation is in the child’s best interest. So likely what a psychiatrist would observe is artifact, to some extent. Q. So then the kind of brief evaluation that patient Or potential patient would get, as under the state’s regula- tions and the statute involved here, either at the hospital upon admission or by a referring agency, that kind of ex- amination might not be the best way to really find out what is happening with this child? A. It might not be the best way. Q. Now doctor, there is some dispute in this case as to who should determine the facts involved in a particular child’s situation. In other words if the child is accused of behaving in a certain way, if that is true, it might mean one thing to (21) a psychiatrist, and if it is not true it might mean something else. Now, do you feel that psy- chiatrists are social agents who are best qualified to make those kind of judgments or should it be a judicial or other sort of thing—partial agency? A. Well, I think that when it comes to the point of determining facts for the purpose of making major and dramatic alterations in a person’s life, that we need help, that we are—the facts that we are used to gathering are often the psychological facts which require some interpre- tation and some subsequent validation. We do not always have the access to the facts, although in some contexts, such as crisis intervention were, we try to get it by im- mediately making home visits, by immediately going to schools, by trying to gather as much information as quick- ly as we can, but we are really taught to evaluate emotion- al experience, which often is the person’s interpretation of the outside world, and not the outside world itself. Q. Doctor, from what you have said, and based on your professional experience, do you feel that for children 480a Dr. Joel S. Feiner—Direct 19 years of age and under that a pre-commitment hearing to determine the need for hospitalization is appropriate? A. Well, let me say, if it comes to that, it is appro- priate. (22) From my point of view it would certainly would be that there are many things to be tried first, and many ways of responding to paying, and—but if it comes to that, it certainly is appropriate. Q. Doctor, do you feel that a requirement by the law that there be a pre-commitment hearing rather than parents being able to apply for institutionalization that that requirement would encourage psychiatrists or parents to explore those alternatives? A. I would certainly hope that it would, that this would underscore the serious nature of hospitalization and cause people to have second thoughts, and to search out various alternatives such as one that I have mentioned ear- lier. Of course there are others. Q. Now Doctor, can you explain why, for both the children involved and for the family a judicial hearing might actually be therapeutic or beneficial? A. Well, I think if it reaches that point, it is very likely that the child—if the child is the one that is refusing the hospitalization is feeling rather helpless and hopeless, and feeeling rather abused, and unable to turn to anyone, I would say at this point, being very crucial that the child have a Advocate to diminish the possibilities of the hope- less and (23) helpless feeling. After all, an important rea- son why many children set up, set out, and do whatever they do that may have caused them to get into the hospital is because they feel hopeless and helpless, and to be forced into a situation in a similar way is reinforcing this feel- ing. Then, if they get into the hospital in this situation, Dr. Joel S. Feiner—Direct 48la they have been coerced, and it is extremely difficult to treat anybody who is being in treatment under all the mayhem or coercion. Now, for parents they often are hospitalizing the child because of other people’s suggestion, and ongoing support for this procedure. It may in fact be very supportive for them to submit the situation to an independent kind of evaluation, which would then relieve them somewhat of the subsequent feelings of guilt that they may have. Q. And that independent evaluation could be the testimony of a psychiatrist before someone appointed by a court or a court and an airing of both sides of the story? A. Yes. Q. In the courtroom? A. Yes. Q. Dr. Feiner, have you read the Pennsylvania stat- utes that are involved in this case? A. Yes, I have. (24) Q. And have you read the regulations recently promulgated by the state regarding conditional safeguards for children? A. Yes, I have. Q. Do you have a copy of those regulations with you there? A. Yes, I have. Q. These regulations are the regulations that I pub- lished in the Pennsylvania Bulletin, Volume 3, number 37, page 1840 and they are part of the record of this case with reference to these regulations, which only apply in some parts to children between 13 and 18, do you—will you please comment on the appropriateness of the notice to children of those ages which are read to them. Do you feel that that notice is likely to be understood by children or misunderstood? 482a Dr. Joel S. Feiner—Direct A. Well, {| think for two reasons, essentially it is likely to be misunderstood. One it will be read to a child when there will be many other things on the child’s mind—getting used to a new environment, “What am | doing here, I feel abandoned, I feel helpless—’’ and so on. Secondly it is in language which is extremely difficult for an adolescent to understand. If this is to be read to children at least let it be read in such language that is at- tentive to their level of comprehension. Q. Now Dr. Feiner, if a child who is admitted to an (25) institution in the manner now under the law object- ed under these regulations and then after a court hearing was released back home and found not in need of hospitali- zation, could that have any bad or negative effects on the child? A. Yes, clearly if the parents have gone to this length, they will be resentful. They are likely to take it out on the child, who is the most immediately available scapegoat. The child will feel resentful. There has been no communication established between them, and it is like- ly to have a very destructive effect. I would also say that none of the other possibilities or alternatives are elaborat- ed in this statement, so the child may simply say “I want to remain here, because this is known, I am already here,”’ and the other alternative is “I don’t know, I’m going to take the safest place for now, because I am already here.”’ Q. So that would be a reason that children who really do object wouldn’t want to say so? A. Yes, it would be. Q. Now, the negative effects of getting to the hos- pital and then leaving after a hearing which results in a finding in favor of the child, is it your opinion that that A my ee Dr. Joel S. Feiner—Direct 483a would be a reason to have the hearing prior to the commit- ment? A. I think that there is good reason for having it prior, (26) so that other alternatives can be looked upon without having any more steps interposed. Q. Dr. Feiner, for children under 13, do you feel there is any need or reason to have an Advocate or some procedure to examine the institutionalization of those chil- dren? A. Well, we often do have Advocates for children under 13. Bureau of Child Welfare is an Advocate in our city for children under 13. Q. You mean in other contexts? A. In other contexts, right, and I think that con- texts can be extended. As I said, there may be the per- ception or the experience, rather of feeling hopeless and helpless in this situation if the child’s needs are not being met. I would also say about school age kids, and adoles- cents, that there is particular attention that they pay to issues of fairness, that fairness and what is just is a very important issue in the development of children—of school age and of adolescents, and we often see children being able to repeat rules and to have clubs with very elaborate guide lines to follow so that they are very sensitive to is- sues of fairness, and it has been said that some children would rather be fair than be loved. So, there is a sense that a judicial hearing responds to in children. (27) Q. Dr. Feiner, with reference to the need or the desirability for having judicial commitment hearing for mental hospitalization, could you tell us whether you think there is any special difference in the psychological make- up of adults, vis-a-vis children which would mean that it 484a Dr. Joel S. Feiner—Cross is appropriate for adults to have hearings but for children not to have hearings? A. Well, I would see some differences, but I could see them even in answering the reasons for children to have hearings—I mean adolescence is a period of life where—in which the person experiences the feeling of be- ing an outsider. One can see this in the kinds of identifi- cations that adolescence makes of minority groups or out- laws, all kinds of outsiders, so the adolescent often has the outsiders view of injustice, of being alone, of being iso- lated, of needing some kind of contact and so forth, and if it is not readily forthcoming from one’s immediate en- vironment, which it often is not, then one needs it from someone else, and the presence of a lawyer or at least a court hearing, as that possibility can be reassuring. MR. FERLEGER: You may cross-examine. Cross-Examination BY MR. ROTH: Q. Dr. Feiner, now it is my understanding that you became a psychiatrist in 1970; is that correct? (28) A. No. I finished my adult psychiatric train- ing in 1968. Q. And you finished your residency in 68? A. 67 and ’68, right. I combined the third year of my residency with the first year of my Child Psychiatry sub-specialty training. Q. Have you offered any articles in the field of Child Psychiatry? A. I have given professional papers, but I currently have not offered articles. Dr. Joel S. Feiner—Cross 485a If I may say so, I have been working providing a ser- vice for 12 hours a day over the past—at least 5 years. Q. But you haven’t offered any articles; is that cor- rect? A. That’s correct. Q. Doctor, now when you finished in—did you com- plete this course of Child Psychiatry in 1970, then? A. That’s correct. I took an extra year of Child Psychiatry so I could work half-time for 2 years in a hos- pital in a ghetto area of New York City. Q. When you completed in 1970, did you become affiliated at that time with Lincoln Hospital? A. That’s correct. Q. What was your role at the Lincoln Hospital? A. At that time I was the only Child Psychiatrist on the (29) staff, and was responsible for service and super- vision of children on an outpatient basis. Q. Now, is Lincoln Hospital a private hospital? A. No, Lincoln Hospital is a New York City hos- ital. 7 Q. You were responsible for children on an outpa- tient basis; is that correct? A. That’s correct. Children and adolescents. Q. But the hospital, I assume also maintained insti- tutionalization on an inpatient basis; is that correct? A. There were institutional facilities available, but not in the hospital itself. The hospital is located in a very poor area and needs to go elsewhere for its inpatient beds. It is a sad fact of life. Q. How would a patient come to you at Lincoln Hospital? A. The patient would— Q. In terms of— 486a Dr. Joel S. Feiner—Cros. A. You mean child? Q. Child, yes. A. Most of the time the patients were sent by the schools. Over 90 percent of the children were referred from the schools. Occasionally they would be referred from other agencies or from pediatric departments, and very occasionally would they be self-referred. (30) Q. And these children are from a ghetto area, I take it? A. That’s correct. Q. Are you still associated with Lincoln Hospital? A. Iam currently associated with the Lincoln Com- munity Mental Health Center, which is a different facility. Q. And what is your role at the Lincoln Community Mental Health Center? A. Iam the Director of a Satellite Clinic, and re- sponsible as well for all the child psychiatry that goes on there. Q. And in terms of your role, how does a patient come to you at that Mental Health Clinic, a child? A. Exactly the same way, only in this case I have developed programs which have more outreach possibili- ty—potential. Q. Do you ever have a situation occurring where your evaluation of a juvenile requires institutionalization? A. Very occasionally, we do. Q. And what is the process, then? A. The process is first to work in terms of the child of an approach that I described earlier, that we have on our staff a number of people who are from the community. We are located right in the community. It is extremely easy, and important to us that we go to the source of the complaint—if it is the school, we may go there or request Dr. Joel S. Feiner—Cross 487a that the (31) school personnel come to our clinic. If it is the family, we will likely make a home visit. We will ex- tend ourselves in every way possible under the constraints of time and personnel that we have there to try to resolve the problem in ways that will avoid hospitalization. Q. Now, assuming you have explored all those other alternatives, what occurs then, where it has not been suc- cessful to utilize another avenue for treatment? A. Occasionally there will be need for hospitaliza- tion. | am not denying it. Q. And then what happens, who admits the juve- nile in New York? A. There is an admitting hospital, which is another City hospital, and there are—actually there are a couple of ways that this can be accomplished. There are occa- sional needs for emergency hospitalization. Q. I am not talking about emergency hospitaliza- tion. MR. FERLEGER: Mr. Roth, can you let him finish his answer before you interrupt? MR. ROTH: Well, I will rephrase the question, Doctor, so we won't have to go on avenues that we don’t know because of time. BY MR. ROTH: (32) Q. With regard to non-emergency— A. With regard to non-emergencies, we usually have a variety of treatment facilities available to us. We then participate with the family and the child in investigating those facilities. We make a visit with them. We talk to the people there, and we go through a procedure in which the family and the child have the opportunity to freely dis- cuss their opinions of this particular place. We have some 488a Dr. Joel S. Feiner—Cross residential treatment centers. We have a children’s hos- pital, which is part of the state system, but what we do is we participate with the family and the child in this proce- dure. Q. In terms of admitting a juvenile to an institution, who can do it in New York? A. In terms of admitting, on an emergency basis? Q. On a non-emergency basis? A. On a non-emergency basis, a community physi- cian can do it, I believe and the psychiatrist in the receiv- ing hospital. Q. Isn’t it a fact true, then, under New York law only the parent, legal guardian or next of kin or the ap- plication of the director of the institute can admit the ju- venile? MR. FERLEGER: I believe that New York statutes on which the court can take judicial notice would answer that question. I don’t think that Dr. Feiner is (33) qualified to speak authoritatively on what the New York statutes say. I think the statutes speak for themselves. THE WITNESS: What I would like to say— BY MR. ROTH: Q. Doctor, with regard to that question now, you have already testified as to admitting procedures, and | am questioning your familiarity with New York law on these procedures. Now, is that not in fact the case on how a juvenile can be admitted? A. I believe that it is. Q. What is the distinction? Dr. Joel S. Feiner—Cross 489a MR. FERLEGER: Excuse me, have you finished your answer, Dr. Feiner? THE WITNESS: Well, I want to suggest op- erationally that we proceed very much as the child and parent advocates. We consider ourselves to have an ongoing relationship with them, in pursuit of a proper treatment for the situation, and we will have exhausted other community based possibilities before we pursue any kind of hospitalization. BY MR. ROTH: Q. Now, in terms of juveniles and their admission process in New York, is it similar to the laws of Pennsyl- vania? (34) A. For 16 to 18, the patient has been given notice in writing to the director that they desire to leave. Q. What about the admission of? A. An admission, under 16, they can be received as voluntary, on the application of the parents, guardian or next of kin? Q. And after 16? A. After 16 the director of the hospital may use his discretion in deciding whether to admit or not. Q. With regard to release? A. With regard to release, my understanding is that the patient gives notice in writing to the director of their desire to leave. They must be relieved unless they are— it is an involuntary commitment, at that point they can apply—the hospital can apply for a court order within 72 hours, the date for the hearing must be given no later than 3 days from the time the court order is received and the patient, if the decision is made to commit them, the patient is committed for a period not exceeding 60 days. 490a Dr. Joel S. Feiner—Cross Q. Doctor, now with regard to that, is it your un- derstanding of the New York law that if a patient is under 16 years of age that patient may notify the director of his release? A. That is my understanding. (35) Q. And the patient—is it finally your under- standing that the patient can be detained at the institution for 72 hours during which time a county court or the Su- preme Court should be notified? Is that correct? MR. FERLEGER: |! have to object, again to this whole line of questioning in Mr. Roth’s attempt to get the New York statutes into the record through the words of somebody who is not a lawyer, who is not familiar with the case law in New York; not fa- miliar with amendments which may have been enact- ed now or a year ago or 2 years ago under the New York statute. I see Mr. Roth has a copy of the New York statute, and I am sure if he wants to introduce that as an exhibit to save Dr. Feiner’s time and to ac- knowledge the fact that he is not an expert in the law, I wouldn’t object to the New York statute being introduced as an exhibit. I don’t see any necessity for Dr. Feiner to contend to be an expert in the law. He is a Child Psychiatrist, not a lawyer. BY MR. ROTH: Q. Dr. Feiner, with regard to the questioning that I have been imposing, in terms of the release provisions, now, you have already testified that you are somewhat fa- miliar with the admission and release procedures, I would assume, in New York with regard to the release provision. Is it your understanding (36) that a patient can be de- tained 72 hours? Dr. Joel S. Feiner—Cross 49la A. That is my understanding. Q. And thereafter, according to court order, could be detained as long as how many days? A. No longer than 3 days from the time the court receives the notice. Q. And then when does the hearing occur, do you know? MR. FERLEGER: The record will show that Dr. Feiner raised his hands in a shrug of speculation. MR. ROTH: I think Dr. Feiner is capable of answering, either yes or no or explain it. THE WITNESS: I am not sure of the answer to that question. BY MR. ROTH: Q. Have you ever been involved in any of these proceedings? A. With the court? No, I haven't. Q. With regard to—I notice in answering some of our questions on the admission and release procedures you were reading from something. Could you explain what you were reading from? A. I happen to take down some notes from Section 3113 of the New York State statute. Q. Dr. Feiner, are you aware of any judicial pro- ceeding in (37) New York prior to the admission of a ju- venile by his parent under 16 years of age? MR. FERLEGER: That is totally irrelevant to this case whether or not Dr. Feiner agrees with or disagrees with New York law. He, of course like all of us obeys the law in New York and doesn’t make his own laws, and whether or not there is a judicial 492a Dr. Joel S. Feiner—Cross proceeding in New York doesn’t matter in terms of his testimony, just as his testimony isn’t affected by the fact that in Tennessee similar laws are ruled un- constitutional. BY MR. ROTH: Q. Not withstanding the testimony by opposing counsel, his objection is noted, would you answer that question? A. I would simply say that I follow the law as I understand it when the situation arises. I—if you are ask- ing me my opinion of the law— Q. Iam not. | am asking you if there are any ju- dicial proceedings afforded a juvenile prior to admission by a parent in New York. MR. FERLEGER: The law speaks for itself. THE WITNESS: I would agree. MR. ROTH: I would appreciate, Mr. Ferleger, if you would allow your client and your witness to answer or if (38) you would object accordingly. THE WITNESS: I have availed myself of im- mediate access to legal advice as a condition of my work. I have a number of lawyers who are quite fa- miliar with this law, immediately available to me for advice when these matters arise. BY MR. ROTH: Q. Doctor, now you testified, and I will come back to the admission procedure, but with regard to some other things, you testified that the children’s behavior, in many instances is a result of the environment in which he is lo- cated. Now, is it your testimony that many juveniles are Dr. Joel S. Feiner—Cross 493a the scapegoats of familial problems, and as a result find themselves in institutions? A. Yes, I will. Q. And how do you arrive at that opinion? A. I arrived at that opinion by making an evalua- tion of a family situation, which I think has as much or if not more legitimacy as any valuation of any individual child. We simply do it by an evaluation of a family, of a family setting with the child often in his family, and we do the interview on occasion with the entire family. Q. Well, how many juveniles have you seen insti- tutionalized (39) in New York incorrectly as a result of family problems? A. Many. I would indicate at the same time that the diagnostic interview is not only a diagnostic inter- view, the interview is an attempt to defuse a potentially explosive situation. This family has come in crisis. We do not set ourselves apart. and do a detached kind of inter- view. We are very active, and very much desirous of de- fusing this situation and orienting ourselves to this family’s problem. Q. Okay. You practiced, I recall in a ghetto area; is that correct? A. That is where I—that is where my clinic is, that’s correct. Q. Do you find that most of the people in that area avail themselves of either the law or medicine when they need it? A. I don’t know what that means. Q. I mean do they make use of contacting their neighborhood legal service attorney or their community oriented physician or are they afraid to, in many instances? 494a Dr. Joel S. Feiner—Cross MR. FERLEGER: That question is sO vague. Of course sometimes people do. Sometimes people don’t. MR. ROTH: Mr. Ferleger, if you want to ob- ject, I don’t like the idea of your testifying on behalf of the (40) doctor. THE WITNESS: Obviously sometimes people do, because all of us that work there in any service capacity are overwhelmed, and whether we reach as many peopie as need our services, I can’t tell you and I seriously doubt it. BY MR. ROTH: Q. Do you find that because—obviously I would think you would have some understanding of the environ- ment in which you work that either people are hesitant or reluctant to contact attorneys or doctors. A. Or people are simply demoralized and over- whelmed with such a variety of problems, that it is hard to set priorities, and their experience with service agencies is so demoralizing that they seek other solutions, often desperate ones. Q. Do you feel that by having a juvenile participate in a judicial proceeding prior to any admission, that this may cause a reluctance on the part of any parent to utilize this system in that area? A. I think it would certainly dignify the whole sys- tem to the juvenile. Q. I didn’t ask you that, I asked you whether or not it would? A. I would tend to think not, because my experience often is, (41) as I have mentioned, that parents very often are there at the behest of another agency, such as the Dr. Joel S. Feiner—Cross 495a school, and they are doing it because somebody who they have been led to believe has their interest in heart has sent them to a facility, and they are going ahead with it, because they feel that the consequences of not going ahead with it are worse, and they have been led to believe that hospitalization can be a benign situation, so | would say that very often availability of legal help in these situations is a tremendous relief to everybody involved. Q. Now, in Pennsylvania are you aware of how a juvenile may end up at an institution? MR. FERLEGER: The question is not clear as to whether you mean whether the statutes are in the doctor’s awareness. MR. ROTH: I am asking the doctor—of course he is aware of the sections being questioned, and | am also asking practically if you had any awareness. THE WITNESS: No practically I haven’t. | haven’t worked in Pennsylvania. BY MR. ROTH: Q. Okay. With regard to the procedural safeguards, if you will that I attached to a juvenile— (42) MR. FERLEGER: Are you referring to the regulations? MR. ROTH: Yes. I believe there was a statement made earlier by your attorney— MR. FERLEGER: I! am not Dr. Feiner’s attor- ney. 49a Dr. Joel S. Feiner—Cross MR. ROTH: By counsel for Plaintiffs, who is using you as a witness, that there was a brief evalua- tion done prior to admission of juveniles in institu- tions. Now, according to your reading of the regula- tions, do you find that necessarily—do you find any words in there that say “Brief evaluation’’? THE WITNESS: No. BY MR. ROTH: Q. Now, with regard to the process in Pennsylvania, there are base service units. Do you know what base ser- vice units are? A. I do not. Q. With regard to the procedure in Pennsylvania whereby a juvenile is—well, let me ask you this, strike that. What is your understanding, based upon your reading of the regulations of how a juvenile would arrive at an institution? MR. FERLEGER: I think the regulations speak (43) for themselves. If Dr. Feiner wants, he can read them, because the only thing he has to base his understanding on is a text of the regulations, so any interpretation of that would be irrelevant and super- fluous. MR. ROTH: Well, the question remains doc- tor, and it is essential, as you know, Mr. Ferleger that Dr. Feiner knows what is in question, and his opin- ion of the same, and I am asking you, based on your reading of the regulations and so forth, can you tell me what your understanding of Pennsylvania proce- dures are for the commitment of a juvenile? Dr. Joel S. Feiner—Cross 497a THE WITNESS: I do not understand—it does not indicate the patient flow, if you will. I have sim- ply been made aware that there [are] a number of juveniles who end up in a hospital still against their will regardless of what is presented. BY MR. ROTH: Q. And how did you arrive at that factor that ju- veniles are hospitalized against their will in Pennsylvania? A. I have been apprised through the material fur- nished regarding this case. Q. What specific instances are you referring to? A. Well, I would say in general that if | am asked about—I mean if you want to ask me some specifics about some specific (44) cases, | would be happy to comment on them. I think I actually am, in testifying in regard to the involuntary hospitalization of juveniles. MR. FERLEGER: I might note for the record that Mr. Roth has stipulated to tables and statistics which were written with his assistance and help indi- cating that juveniles do in fact on occasion object to commitment, and that, it seems to me, is not a dis- puted aspect of this case. We know that some chil- dren don’t want to be in hospitals and some children do. BY MR. ROTH: Q. There is no dispute as to the objection. The question remains as to how you know that juveniles are incorrectly admitted to institutions in Pennsylvania? A. 1 did not say incorrectly. Q. Inappropriately? A. I said “Against their will.” 498a Dr. Joel S. Feiner—Cross Q. Now Doctor, with regard to some of the com- ments you made of Dr. Max Sugar’s deposition, did you ever hear of Dr. Max Sugar? A. I believe I read something that he has written. I have seen his name. Q. Do you know, in review of that deposition, which you (45) said you have done— A. I said that I did not do an entire review of it. Q. What parts of it did you review? A. I read about half. I read his depostion and you were questioning of him. Q. Pardon me? A. I read his statement with your questioning. | did not get beyond that. MR. FERLEGER: You are referring to the di- rect examination of Dr. Sugar by Mr. Roth? THE WITNESS: That’s correct. MR. FERLEGER: You read that? THE WITNESS: That’s right. BY MR. ROTH: Q. Do you recall Dr. Sugar testifying as to the problems that would occur if a judicial hearing were af- forded prior to admission? A. Yes. I recall that. Q. With regard especially to the delay in treatment? A. Yes. Q. Do you feel that is an incorrect response? A. Because—yes, I do, because as far as I am con- cerned, treatment begins the very first time that the pa- tient, and/or (46) family steps foot in any mental health facility; that, to me is when treatment starts, not at some point at which somebody enters the ultimate door. Dr. Joel S. Feiner—Cross 499a Q. But again, Doctor, taking into account, if you will the procedures in Pennsylvania whereby children are just not placed on doorsteps of institutions, but have been subpoenaed and evaluated by several psychiatrists prior to the ultimate detention of them— A. Yes. Q. Don’t you feel that there has been adequate safe- guards provided at that point? A. No, because I question the evaluation, and as to whether it takes into account the entire context of the child’s life. According to Dr. Sugar, he would evaluate the child and he does not seem in the testimony to be entirely re- sponsive to the kinds of communications that go on in the family, and he seems to assume in his testimony that par- ents exist all the time for the good will and the best inter- ests of their children. I question that seriously. Q. Now Doctor, you did not read the cross-exami- nation, I take it of Dr. Sugar’s cross-examination? A. No. Q. In which questions were asked by Mr. Ferleger, regarding (47) the whole familial situation? A. Yes. Q. So then I guess it would be difficult to ask you questions with regard to Dr. Sugar’s responses? A. I think so. Q. Since he did take into account the entire family situation at that point? A. My only response to that would be that it can’t be a primary importance to him if he did not mention that on initial or direct examination. Q. Well, there are some things in regard to it on direct, but let me ask you, as a professional, do most psy- 500a Dr. Joel S. Feiner—Cross chiatrists just evaluate a child, a juvenile without evaluat- ing the familial situation? A. There are different ways of evaluating the fa- milial situation, very often it will be done discreetly—that is one person will evaluate the child, one person will evalu- ate the parent, another person will interview the other parent. This is a traditional way that is often done in child guidance clinics. What I am suggesting is myself and many other peo- ple see everyone together in the family, whereby different kinds of information are forthcoming. (48) Q. Are you saying, then, that it is not cus- tomary for a psychiatrist to evaluate the entire situation from whence a patient comes, a prospective patient? MR. FERLEGER: That has already been an- swered. MR. ROTH: I am asking you that question. THE WITNESS: That it is customary to evalu- ate the entire situation to develop supportive evidence for the disturbance of this child? It often is done to get history of this child, which the child himself can- not furnish, but very often it is done in order to get an understanding of a parent’s own life and a parent current situation. I can give you some examples. BY MR. ROTH: Q. Well, that is all right. MR. FERLEGER: He is concluding his answer to your question. THE WITNESS: Let me give you one example. Dr. Joel S. Feiner—Cross 501a A child that I saw ran away—brought in to see me when he was found some miles away from where he lived. This was an 8 year old child and taking the history of the family situation, it was discovered that this child was in fact not the child of this father, but the child of another father who ran away from the family. This was a secret which the family (49) had a tacit understanding of keeping. Nobody was al- lowed to talk about it, but everybody knew it, includ- ing the child, because he was 3 years old and other relatives had supported his sense of what was going on. The fact that the family couldn’t talk about it meant the child had to act it out, which he did and this was his way of dealing with an issue that was not allowed to be talked about in the family, but had to be acted out in terms of this child being like his original father, trying to find his original father and so on. As soon as this issue was opened up and dis- cussed openly, the running away ceased. There is an example of a child whose behavior was induced by the collusion of his current parents. BY MR. ROTH: Q. Are you saying that is a normal, that generally parents and psychiatrists act in collusion or conspiracy to institutionalize an individual? A. No, not at all. I am saying that very often for their own needs and their own anxieties and the compli- cated aspects of their own nature, parents may in fact be unable to talk about certain aspects of their lives openly, and I would say that it is not always recognized that these situations occur, and even if it is recognized, I am saying it is not always dealt (50) with—you see that is the other 502a Dr. Joel S. Feiner—Cross part of this, you see even if the psychiatrist does do an evaluation of the situation, it still does not lead to the im- plementation of a treatment plan that includes the entire family or that includes a psychiatrist orientation, in part because many facilities are just not tooled up to do crisis work, and they only have one alternative, which is to hos- pitalize. I am suggesting that it is important that clinics and emergency rooms and other facilities be tooled up to in- tervene immediately so that whatever facts they do discover can be included in an appropriate treatment plan. Q. Well, you said that when any great alteration occurs and you felt that psychiatry should not be able to make the determination, that they should submit their evaluation. Would that also occur for any other treatment plan other than institutionalization, in your mind? MR. FERLEGER: I object to that question. I believe he has already testified that institutionaliza- tion is a much different, more serious process than other kinds of treatment. THE WITNESS: I will consider Mr. Ferleger’s objection to be consistent with my belief. BY MR. ROTH: (51) Q. Now, you stated that Dr. Sugar talks about the traditional point of view and that your point of view is more innovative; is that correct—or better? A. I'd say that. Q. Based on your experience, I mean? A. I'd say that my point of view offers more alterna- tives. Q. Is your point of view better, based on your three years of experience? Dr. Joel S. Feiner—Cross 503a A. Does it help me for people? Does it work for me? Does it work for others that have used it? Does the literature say that it works? I’d have to answer yes. Q. Well, where do you arrive at this new innova- tion? MR. FERLEGER: Excuse me, that is a total misstatement of his testimony. THE WITNESS: Absolutely. I have no—I’m sorry— MR. FERLEGER: He stated on the report that this is a development in the total field of child psy- chiatry over the past ten years. Dr. Feiner didn’t think it up, it was taught to him and every other person who studied child psychiatry in the past ten years. It is Dr. Sugar who is behind the times. We are not talking about innovations, we are talking about regu- lar practice established—accepted (52) practice. BY MR. ROTH: Q. Well Doctor, let me ask you this: If this is established practice, why is the first state or one of the few states whose statutes and laws are be- coming attacked as unconstitutional, why aren’t other states utilizing judicial procedures prior to admission of juve- niles by parents, if this is so recent or if it has been going on for ten years? A. What I am suggesting is that what is going on for ten years is a treatment motility that I am suggesting be applied for more situations than it currently is. It is likely that it is being applied in many places in Pennsyl- vania. I simply am reflecting to you the current state of the art as I know it, from what I read and the meetings that I attend and the colleagues | consult. 504a Dr. Joel S. Feiner—Cross Q. Let me ask you this, in terms of what goes on in Pennsylvania and for example if I had a child and were having that child admitted to an institution, as the ulti- mate, if you will and so I went through—let’s take it, if I were from a poor socio-economic background, could not afford a private psychiatrist at the outset to evaluate my child, et cetera, et cetera, including home life or anything which you might think was relevant which goes on in Pennsylvania and I went to this (53) base service unit where I evaluated my child, made recommendations they went through their entire process, okay, and then there was a recommendation that the best alternative, after mak- ing other recommendations of other outpatients through the county mental health mental retardation unit, of which there are numerous ones throughout the state, if they found in the best interest of the child that institutionaliza- tion would be a paramount and then I went to the institu- tion and the director, then, according to the laws as you have read them in Pennsylvania has another independent psychiatric examination made to make certain that the child does not need institutionalization and that occurs and the child is detained in the institution receiving treatment, knowing full well that according to the safeguards that he objects at any time within 48 hours thereafter he is going to be afforded counsel and go through a hearing, do you find that to be inappropriate? A. You say so much that, first of all I question the child is already receiving treatment. I think a child strong- ly believes that he is not—that he does not feel that it is necessary for him to be in an institution is not likely to acquiesce to the kinds of appropriate treatment within the first 48 hours, so I can certainly question that aspect of your assumption. Dr. Joel S. Feiner-—Cross 505a (54) Q. Well, Doctor let me clarify something, so you don’t misunderstand this. It is not necessarily within the first 48 hours, it is within 48 hours whenever he makes the objection, if he makes the objection at admission or subsequent thereto— we are talking about within 48 hours after that objection counsel will be afforded him? A. Yes. I simply am saying I do not see why it can’t be done before hand. After all, you have talked about an elaborate procedure that goes from one place to another to interpose this procedure before the child is admitted seems that it will afford more alternatives ini case the child’s position is upheld. It will decrease the amount of alienation, and those 48 hours are more in which the child has to stew and will afford the opportunity for a recon- ciliation if that is going to be the fact—I mean after all, if we say that there is going to be a judicial hearing and we recognize the fact that the child in fact may be upheld in his request, it is not inevitable that they are going to agree—I would assume that all of the recommendations are to be adhered to. Q. But doctor, that assumes that when a juvenile is evaluated through the base service unit and implemen- tation of (55) any programs as to occur, it doesn’t occur until after institutionalization and that isn’t necessarily so? A. I don’t understand that. Q. Inother words when a person is being evaluated, either in New York—I’m sure through your county health mental retardation units or in Pennsylvania, I would as- sume that psychiatrists, when they see that the problem exists are going to establish procedures to help the juve- nile—they are not just going to sit by and not help them? 506a Dr. Joel S. Feiner—Cross A. Yes, I think that is probably true, but I think we can’t presuppose that amount of good will all of the time when we are dealing with somebody’s rights, and I would assume that during this time the psychiatrist would be attempting to establish a rapport with this client, to perhaps do some persuasion to feed back observations, to make recommendations, and so on and even if that isn’t— and if that isn’t taken up by the child, I think the child should still have resource to other avenues before he is hospitalized. Q. Well, what about the fact that when the child is hospitalized, that treatment begins when he becomes hospitalized? A. What treatment are you talking about? MR. FERLEGER: Objection. MR. ROTH: I am talking about the fact that (56) recommendation and treatment plans that have been initiated prior to his institutionalization have occurred and the treatment program continues. MR. FERLEGER: Objection, that question must be objected to on the basis of Mr. Roth is tes- tifying about some treatment plans that are estab- lished for some unknown patients. That is not part of the record in this case. If Mr. Roth wants to ask the doctor about his experience as director of his mental health center, then he can testify about whether or treatment takes place there, but you certainly can’t testify and Mr. Roth can’t testify about some alleged treatment in Pennsylvania. Dr. Joel S. Feiner—Cross 507a BY MR. ROTH: Q. Now Doctor, you have testified that rather than having someone stew for 48 hours—and I am merely ad- vising you that that is not necessarily the case, and I am saying if in fact a person does receive treatment, continu- ous treatment, aren’t those needs of the person met? A. Mr. Roth, I’d like to correct a misconception I think you are implying, that is a person does not receive treatment, a treatment is a collaborative effort, and a per- son does not have treatment poured into him. Psychiatric treatment is a long arduous affair which involves the de- velopment of a (57) relationship of trust, and it cannot be done in a coercive way, so when you say “treatment,” I question what in fact you mean. Q. Well, when I say “treatment,” of course not be- ing a psychiatrist | am saying that some plan has been es- tablished by a psychiatrist that of evaluating the juvenile prior to as well as at admission, and that that plan, what- ever it be is continuing, and I am saying assuming that were to occur, how—why do you feel, then that a hearing subsequent thereto, if necessary could not be held? A. Because I question the possibility of treatment occurring under those circumstances, and I question the possibility that we are not, by enforcing this coercive situa- tion, ruling out this patient for any subsequent treatment, at any opportunity in the future to voluntarily seek help from a mental health facility. My feeling is that this ex- perience is more likely than not to be a negative one. Q. Doctor, are you ever aware of situations where, because of reliance upon a judicial system, whether it be for an emergency hearing—no, I am sorry, whether it be for an emergency or non-emergency that the judicial proc- ess has been slowed to the extent that the person has com- Dr. Joel S. Feiner—Cross mitted suicide because they weren’t able to get into the institution right (58) away? A. Well, I— MR. FERLEGER: I don’t see how that is rele- vant. That procedure is for children. When we have judicial proceedings in Pennsylvania for adults, and if Mr. Roth is suggesting that adults be treated as children in Pennsylvania, that question is irrelevant. MR. ROTH: Notwithstanding Mr. Ferleger’s gratuitous remarks— THE WITNESS: I would like to add, if you are hypothesizing an emergency situation, that isn’t the statute under question. MR. ROTH: I am not asking you about this statute under question, I am asking you in your pro- fessional opinion, or in your knowledge, have you ever heard of situations where a person perhaps died with their rights on? MR. FERLEGER: Could you lower your voice, Mr. Roth? You are yelling. MR. ROTH: Mr. Ferleger, I am sorry, I am not yelling and I am sorry you are so sensitive that you can’t listen. THE WITNESS: I ami amazed that that—at your hypotheses, but I won’t question that, but I have not (59) heard of such a case, quite frankly. MR. FERLEGER: Mr. Roth— MR. ROTH: Mr. Ferleger, I would like to con- tinue with the examination. Dr. Joel S. Feiner—Cross 509a MR. FERLEGER: Your questions are becom- ing a bit redundant and far afield from the case. Dr. Feiner has to leave in about two minutes in order to make a train, and if you have any relevant questions to ask, I wish you’d ask them now so that the deposi- tion can be concluded. MR. ROTH: Mr. Ferleger, with all due respect, I have many more questions to ask of Dr. Feiner. With regard to that, the Notice of Deposition says “‘Is expected to be completed within two hours.” Subsequent to that time, we had correspondence with our own staff indicating that we may need additional time, and there was no objection to that. MR. FERLEGER: If we need additional time for relevant questions, I have no problem with that. MR. ROTH: Well, I think the Court can very well determine what questions are relevant and ir- relevant. MR. FERLEGER: You are asking irrelevant questions. They don’t seem to me to be appropriated if we can’t conclude by the time that Dr. Feiner has to make his (60) train, then we will be glad to con- tinue it to another day. MR. ROTH: Well, I have numerous questions for you, Dr. Feiner. BY MR. ROTH: Q. Dr. Feiner, do you feel that there are differences between juveniles and adults in terms of their self-aware- ness regarding use of institutions, of they needed to? 510a Dr. Joel S. Feiner—Cross A. No. Q. In other words you read Dr. Sugar’s deposition and he felt that youngsters have a lot of hormonal changes, secondary changes, growth changes—he felt that these do not become complete at the late adolescent years, and he felt that there was very much a distinction between adults and juveniles in terms of development? A. Well, you didn’t ask me that question. Of course there are. You asked me regarding the use of institutions, and I suggested— Q. In regards to their awareness, I am sorry? A. In regards to their awareness, I think they are individualized, and I wouldn’t be prepared to make a gen- eralization. I have seen numerous adults who were not prepared to take advantage of the institutions available to them in this society. (61) Q. Well, one of the thrusts of this lawsuit is to have sections under the act declared unconstitutional which treat juveniles differently from adults. Is that your understanding? A. Yes. Q. And there is a possibility that if that were so done, that juveniles would be afforded the same rights as adults to admit and release themselves? A. That’s correct. Q. Now, do you feel a child aged 5 would have any capacity at all to even make that determination whereas an adult aged 19—where are the differences? A. Obviously there are significant differences, but if—I can foresee a child with an Advocate participating in a situation in which the child is realized into another situation or home. Dr. Joel S. Feiner—Cross Sila Q. Do you think it is feasible that that occur, if— you know—for juveniles to admit and release themselves as adults do in Pennsylvania? A. Do I think it is feasible? Q. In your professional opinion? A. I would not be here if I did not think it was feasible. Q. How would a 3 year old even approach that? MR. FERLEGER: Mr. Roth, your questions— (62) and I am waiting for you to ask about the 314 and 414 and the 4 and % year old—your questions are just prolonging this deposition in a ridiculous man- ner. Obviously—and your own Dr. Sugar testified that 13, 14, 15, 16 and 17 year old kids could go in and out of institutions. We are not talking about— MR. ROTH: Do you have an objection? MR. FERLEGER: For younger children— MR. ROTH: Are you testifying or do you want to object? MR. FERLEGER: This is my objection, Mr. Roth, for younger children as the doctor testified, an Advocate is the one who would be speaking to the court, not the 3 year old and for a 17 year old severe- ly retarded person it would be an Advocate or a guardian ad litem. Your questions are just absurd. BY MR. ROTH: Q. The question still remains, Doctor, in terms of the procedures which plaintiffs seek. A. I cannot foresee that possibility of the child speaking for himself, but should the possibility ever come up, I would think that those rights would extend—I mean 512a Dr. Joel S. Feiner—Cross —it is certainly unlikely, if not impossible that that would occur (63) with a 3 or 5 year old, but where are you going to draw the line? There are certainly some sophisti- cated 9 and 10 year olds, just as there are some very naive 30 and 40 year olds. Q. Well, do juveniles who need hospitalization nec- essarily recognize it? A. I think that juveniles need hospitalization on oc- casion, and often do recognize it. I think that adults who need hospitalization often do not recognize it, also. Q. Iam asking about juveniles. Do you have juve- niles that tend to avoid reflection and introspection? A. Juveniles may make their needs known through behavior. Q. Let me ask you this. Is it your testimony in part that you feel parents really do not operate in context of this situation for the well- being of their children? A. No. Q. Do you feel by and large parents do? A. 1 think it is a very mixed bag. I am suggesting where there are enough indications where they don’t re- quire some protection, and I hope to work in a situation where we see numerous cases of child abuse and neglect— I am quite sensitized to that possibility. We are not talking about one case. (64) Q. Have you ever admitted a child to an in- stitution? A. Yes, I have. Q. To which institution? A. Ihave admitted a child to Bronx Municipal Hos- pital Center. Q. Were you the admitting physician? Dr. Joel [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_2178%3A04. Public record. Not legal advice.