Amicus Brief — Parham v. JR

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

— BT eee + ————— LL PEE AE LA EO OE OF

2 1—

of Mental Health and W.

— Ars

TABLE OF CONTENTS

TABLE OF AUTHORITIES .... 0

INTEREST OF AMICUS CURIAE EE

QUESTION PRESENTED BY AMICUS—

STATEMENT OF THE CASE.

SUMMARY OF ARGUMENT ............................--------.

1. Placement in a mental institution is a constitu-

tionally significant deprivation of liberty and

carries with it other serious and important ad-

verse consequences

Confinement in a mental institution cannot be

constitutionally imposed by the state or under

the authority of state law without adequate pro-

cedural safe guard ꝗ ꝗ%

A. The Distriet Court properly recognized that

juveniles facing confinement in a mental

institution are entitled to notice and to

B. The right to counsel, in particular, has been

emphasized by the American Bar Associa-

tion as a matter of sound judicial adminis-

eee

C. The District Court was correct in finding

that the stricken Georgia Code provisions

for admission or commitment of children

do not satisfy the requirements enumerated

above

D. The labeling of juvenile mental disability

commitments as civil (rather than crimi-

nal), benevolent, or voluntary does not affect

the applicability of the due process clause

~] aS oS a

TABLE OF CONTENTS—Continued

E. The imposition of due process protections

upon the institutionalization decision is ne-

cessitated both by the risk of erroneous

psychiatric and other judgments and by

the need to ensure that less restrictive al-

ternatives are adequately explore

3. Children facing commitment on mental dis-

ability grounds are entitled to substantially

the same procedural protections afforded adults

under the due process claus

A. The decisions of this Court indicate that

parental authority is not without limits, and

that children, as well as adults, are entitled

to constitutional protection

B. This Court’s abortion decisicns refiect the

proper balancing of interests to be applied

C. The Distriet Court properly accommodated

the interests of the parent and child in re-

quiring due process safe guards

D. It cannot be assumed that parents, faced

with legitimate familial problems, will al-

ways act in the best interest of their chil-

dren with regard to commitment to a mental

E aN ok DES NERS TI See

E. Claims of alleged traumatizing or disrup-

tive effects of due process protections for

children are not supported by the record

. .

Page

TABLE OF AUTHORITIES

Cases: Page

Arnett v. Kennedy, 416 U.S. 134 (1974) 7

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973 11, 20

Bartley v. Kremens, 402 F.Supp. 1039 (E.D. Pa.

1975), rev’d on other grounds —— U.S. ——,

, AF mF ST ee Pa 15

Bazstrom v. Herold, 383 U.S. 107 (1966) ............. 7

Bell v. Burson, 402 U.S. 535 (19717 12

Bell v. Wayne County, 384 F.Supp. 1085 (E. D.

r 14, 15

Bellotti v. Baird, 428 US. 132 D 26, 29

Board of Regents v. Roth, 408 U.S. 564 (1972) 11

Boddie v. Connecticut, 401 U.S. 371 (1971) ........... 12

Breed v. Jones, 421 U.S. 519 (1975) 21, 26

Cafeteria Workers Union v. McElroy, 367 U.S. 886

| SEER ꝶm; ee ee eee, Se 12

In re Coleman, Cir. Ct. No. 76-639-949 AV (Cir.

Ct. Wayne County Mich., Feb. 23, 1977) 11

Covington v. Harris, 419 F.2d 617 (D.C. Cir.

C ˙ A BB PARC SE ED SE nce roa 23

Davis V. Watkins, 384 F.Supp. 1196 (N. D. Ohio

1974) b ²ͤ¹Vm T— 11

Denton v. Commonwealth, 383 S. W. 2d 681 (Ky.

rr Det I Ee re aN 14

Dizon v. Attorney General of the Commonwealth of

Pennsylvania, 325 F.Supp. 966 (M.D. Pa. 1971) 14

Dizon v. Weinberger, 405 F.Supp. 974 (D. D. C.

11771717 ——ͤ—— — nition 23

Doremus v. Farrell, 407 F.Supp. 509 (D. Neb.

/ ave CRED ET eee 14, 15

In re Gault, 387 U.S. 1 | EE 8, 11, 14, 21, 26

Ginsberg v. New York, 390 U.S. 629 (1968) 25

Goldberg v. Kelly, 397 U.S. 254 (1970) 12

Goldy v. Beal, 429 F.Supp. 640 (M.D. Pa. 1976) 14

Goss v. Lopez, 419 U.S. 565 (1975) 10, 11, 26

Greenwood v. United States, 350 U.S. 366 (1956) 22

Griswold v. Connecticut, 381 U.S. 479 (1965) 10

Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968). 15, 21,

TABLE OF AUTHORITIES—Continued

Page

Horacek v. Exon, 354 F.Supp. 71 (D. Neb. 1973),

order on consent No. 72-L-299 (D. Neb., Oct. 31,

DO A ——AAAAAVT—T———VT 11, 30

Humphrey v. Cady, 405 U.S. 504 (1972) —— 7

Ingraham v. Wright, —— U.S. ——, 97 S.Ct. 1401

r 13, 26

J. L. and J. R. v. Parham, 412 F.Supp. 112 (M.D.

6c passim

Kaimowitz v. Michigan Department of Mental

Health, No. 73-19434-AW (Cir. Ct. Wayne Coun-

ee EF eee 10

Kendall v. True, 391 F.Supp. 413 (W. D. Ky. 1975) 14

Kent v. United States, 401 F.2d 408 (D.C. Cir.

1 ˙ AAA AAA 30

Kidd v. Schmidt, 399 F. Supp. 301 (E. D. Wis.

| RES 15

Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973) 9

Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966) 23

Lessard v. Schmidt, 349 F.Supp. 1078 (E. D. Wis.

1972), vacated on procedural grounds 414 U.S.

473 (1974), on remand 379 F.Supp. 1376 (E. D.

Wis. 1974), vacated on procedural grounds 421

U.S. 957 (1975), on remand 413 F.Supp. 1318

IR.. 10, 14, 15, 23

In re Long, 25 N. C. App. 702, 214 S. E. 2d 626

e 7, 30

Lynch v. Bazley, 386 F.Supp. 378 (M. D. Ala.

1 ees

Mackey v. Procunier, 477 F. ad 877 (9th Cir. 1973) . “wee

Meyer v. Nebraska, 262 U.S. 390 (1923 25

Morrissey v. Brewer, 408 U.S. 471 (1972 12

Nelson v. Hudspeth, C.A. No. J75-40(R) (S..

Dr hrettetctie eater tclteteipwdbinion 10

TABLE OF AUTHORITIES—Continued

Page

New York State Association for Retarded Children

and Parisi v. Rockefeller, 2°7 F.Supp. 752

(E.D.N.Y. 1973), modified No. 72-C-356/357

(E.D.N.Y., May 23, 1973), order on consent sub

nom. New York State Association for Retarded

Children and Parisi v. Carey, No. 72-C-356/357

(E.D.N.Y., April 30, 1975), approved 393 F.

Supp. 715 (E.D.N.Y. 1975) —.............-..-.......- 11, 23, 30

O'Connor v. Donaldson, 422 U.S. 563 (1975) 8, 11, 14,

22, 23, 24

Paul v. Davis, 424 U.S. 693 (1976) 22 11

9 v. Burnick, 14 Cal. 3d 306, 121 Cal. Rptr.

ESR ̃ .... 0 20

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 25

Pima County Public Fiduciary v. Superior Court,

546 P.2d 354 (Ariz. Ct. App. 1970) 15

Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976) ................. 26, 27, 28, 29, 31

Price v. Sheppard, 239 N. W. 2d 905 (Minn. 1876) 10

Prince v. Massachusetts, 321 U.S. 158 (1944) 26

Rochin v. California, 342 U.S. 165 (19527 9

Roe v. Wade, 410 U.S. 113 (1973 —i. 10, 26

In re Roger S., Crim. 19558 (Cal., July 18, 1977) 10, 15,

Romeo v. Youngberg, C. A. No. 76-3429 (E.D. Pa.,

„„ eee 11

Saville v. Treadway, 404 F.Supp. 430 (M. D. Tenn.

%% 15, 30

Schmerber v. California, 384 U.S. 757 (1966) 9

Scott v. Plante, 532 F.2d 939 (3rd Cir. 19760)

Shelton v. Tucker, 364 U.S. 479 (1960):

In re Sippy, 97 A.2d 455 (D.C. Mun. App. 1953) 30

Smith v. Organization of Foster Families for

Equality and Reform, —— U.S. ——, 97 S.Ct.

eg RIECK Si aR eee One Mee. 13

Souder v. McGuire, 423 F.Supp. 830 * Pa.

1976) 9

Specht v. Patterson, 386 U.S. 605 (1967) 18, 21

TABLE OF AUTHORITIES—Continued

Page

Stamus v. Leonhardt, 414 F.Supp. 439 (S.D. Iowa

1 ˙——,i ides a clin ath aisliebiiibhettiaaiibiae 14

State ex rel. Hawks v. Lazaro, 202 S.E. 2d 109

ß . een 14

Suzuki v. Quisenberry, 411 F.Supp. 1113 (D.

rere 14, 15

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (19699 26

Vanderzeil v. Hudspeth, C.A. No. J76-262(R) (S.D.

OR ERE RE ee er ene 11

Welsch V. Likins, 373 F.Supp. 487 (D. Minn. 1974),

enforced No. 4-72-Civ. 451 (D.Minn., Oct. 1,

1974) aff'd in part Nos. 76-1473 and 76-1797

tes SG . . RES eee 11, 23

Wheeler v. Glass, 473 F.2d 983 (7th Cir. 1973) 11

In re Winship, 397 U.S. 358 (1970))0ʒ/ 7, 14, 26

Winters v. Miller, 446 F.2d 65 (2nd Cir. 1971),

cert. den. 404 U.S. 985 (19717 9

Wisconsin v. Constantineau, 400 U.S. 433 (1971) 11

Wisconsin V. Yoder, 406 U.S. 205 (1972)

Wolff v. McDonnell, 418 U.S. 589 (1974) 12

Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala.

1971), 334 F.Supp. 1341 (M.D. Ala. 1971), 344

F.Supp. 373 and 387 (M.D. Ala. 1972), aff d sub

nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.

1 ͤ — p eae aie 11, 12, 23

Wyatt v. Hardin, No. 3195-N (M.D. Ala., February

28, 1975, June 26, 1975, and July 1, 1975) 9,10

Constitution:

RE I SN Eee ag DEB 25

Fourteenth Amendment passim

Statutes

. ... 5

R,. NUERoeners 77 Fo 3

28 U.S.C. § 2281 — m 3

vil

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. § 2284 8 3

42 U.S.C. 8 1983 3

21 D.C. Code §§ 501 F. (1964 Hospitalization of the

Mentally Ill Act) 23

Ga. Code Ann. 58 88-503. 1 (a2 3, 4, 19

Ga. Act No. 331 (March 23, 197777 19, 20

1971 Ga. Law 709, Ga. Juvenile Court Code Title

24A 5

Regulations:

45 C. F. R. § 249.10(b) (16) (aj) —— 24

45 C. F. R. § 249.13 (a) (2) (iv) 24

Miscellaneous:

ABA Comm. on Standards of Judicial Admin.,

Standards Relating to Trial Courts, 88 2.20,

i a a a 17, 18

Barton, Institutional Neurosis (2d ed. 1966) 12

Comment, “Developments in the Law—Civil Com-

mitment of the Mentally Ill,” 87 Harv. L. Rev.

U 10

Department of Health, Education and Welfare,

National Center for Child Abuse and Neglect,

“Child Abuse and Neglect Statistical Information

Sheet” 29

“Due Process Limitations on Parental Rights to

Commit Children to Mental Institutions,” 48

U. Colo. L. Rev. 235 (1977) 8

Ellis, “Volunteering Children: Parental Commit-

ment of Minors to Mental Institutions,” 62 Calif.

E 22

Ennis & Litwack, Psychiatry and the Presumption

of Expertise: Flipping Coins in the Courtroom,“

62 Calif. L. Rev. 693 (1974) 20, 22

Friedman, Legal Regulation of Applied Behav-

ioral Analysis in Mental Institutions and Pris-

ons,” 17 Ariz. L. Rev. 39 (1975) 10

VII

TABLE OF AUTHORITIES—Continued

Glenn, “The Least Restrictive Alternative in Resi-

dential Care and the Principle of Normalization,”

in The Mentally Retarded Citizen and the Law,

¢ | (| cence Stn On NN Seen Sn

Goffman, Asylums (1967

Goldstein, Solnit & Freud, Beyond the Best Interest

of the Child, (1971ð8ͤẽ————

Gruenberg, “The Social Breakdown Syndrome—

Some Origins,” 123 Am. J. Psychiatry 12

| | '

Hobbs (ed.), Issues in the Classification of Chil-

deen 19785üüũéũ—6ͥ duo ——

IJA-ABA, Standards Relating to Counsel for Pri-

vate Parties (Tent. Draft, 19777

Joint Commission on Accreditation of Hospitals,

Accreditation Manual for Psychiatric Facilities

Serving Children and Adolescents (1974) -........

Joint Commission on the Mental Health of Chil-

dren, Crisis in Child Mental Health: Challenge

for the 1970’@ (9600üĩũñł⸗ç/½v

“Minors’ Right to Due Process: Does it Extend

to Commitment to Mental Institutions?” 52

Notre Dame Law. 136, (1976) -........--.....— 9,11

Panneton, “Children, Commitment and Consent:

A Constitutional Crisis,” 10 Family L.Q. 295

COUT). ceitirrescininencescninserscrcnerecannniiiinniinsiacaaammmanmareiies

Provence & Lipton, Infants in Institutions (1962) ..

Rosenhan, “On Being Sane in Insane Places,”

113 Santa Clara L. Rev. 379 (1973)

Shah, Dangerousness: Some Definitional, Con-

ceptual, and Publie Poliey Issues, in Perspec-

tives in Law and Psychology (B. Sales ed. 1977)

Shah, “Some Interactions of Law and Mental

Health in the Handling of Social Deviance,” 23

Catholic U.L. Rev. 647 (1974)

Wolfensberger, The Principle of Normalization in

Human Services (1972) ......-..

Page

9, 24

, 16, 30

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 75-1690

T. M. “Jim” PARHAM, Individually and as Commissioner

of the Department of Human Resources, W. DOUGLAS

SKELTON, Individually and as Director of the Division

of Mental Health and W. T. Surrn, Individually and

as Chief Medical Officer of Central State Hospital,

Appellants,

J. L. AND J. R., Minors, individually and os representatives

of a class of persons similarly situated,

Appellees.

On Appeal from the United States District Court

for the Middle District of Georgia

BRIEF OF THE

AMERICAN BAR ASSOCIATION

AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The American Bar Association is a national member-

ship organization of the legal profession. It counts as

members more than 220,000 lawyers from all states and

has, since 1944, maintained an active interest in the field

of mental disability law.’ This interest was intensified

in 1973 when the Board of Governors of the American

Bar Association established a Commission on the Men-

tally Disabled, a 17-member interdisciplinary body

charged with promoting effective legal assistance to the

mentally disabled, and with recommending and imple-

menting programs designed to correct pervasive deficien-

cies in the nation’s mental disability system. Since its

inception, the Commission on the Mentally Disabled has

focused its efforts toward, inter alia: mobilizing, activat-

ing, and awarding grants to local and state bar associa-

tions to encourage legal representation of the mentally

disabled (including appropriate substantive technical as-

sistance) ; establishing and publishing the Mental Dis-

ability Law Reporter (hereafter MDLR), an interdis-

ciplinary journal which reports significant developments

in the mental disability law field; operating a model in-

house patient advocacy project at Norristown State Hos-

pital (Pennsylvania) ; and developing model legislation

to secure rights and services for the developmentally

disabled.

The Association has taken the lead in establishing

standards for the administration of justice, such as its

Standards for the Administration of Criminal Justice

and its Standards Relating to Trial Courts (see part

2B, infra). The Association has also recently completed

a 23 volume tentative draft of juvenile justice standards.

1 The Association established a Special Committee on the Rights

of the Mentally III 33 years ago; this committee’s recommenda-

tions led ultimately to the publication of a number of path-breaking

studies by the American Bar Foundation, created by the Association

in 1952. See Lindman & Mcintyre, The Mentally Disabled and the

Law (1961); Rock, Jacobson, & Janopaul, Hospitalization and Dis-

charge of the Mentally IU (1968) ; Matthews, Mental Disability and

the Criminal Law (1970); Brakel & Rock, The Mentally Disabled

and the Law (rev. ed. 1971).

Thus, the Association is uniquely experienced and in-

terested in the question now before the Court.

With due consideration of the extended factual legal

analysis offered in the briefs of the parties and other

amici, the Association, with the written consent of the

parties, sets forth its views herein on the important

question of whether, and to what extent, the Constitu-

tion requires procedural safeguards for minors facing

civil commitment on the basis of alleged mental disability.

QUESTION PRESENTED BY AMICUS

Whether the due process clause of the Fourteenth

Amendment applies to the nominally voluntary but in fact

involuntary civil commitment of children on the basis of

alleged mental disability, and if so, whether due process

requires substantially the same procedural protections for

such children as it does for adults?

STATEMENT OF THE CASE

On October 10, 1975, J. L. and J. R., patients in

Georgia’s Central State Hospital at Milledgeville, filed

this class action pursuant to 28 U.S.C. § 1343 (3) and

42 U.S.C. § 1983 in the United States District Court for

the Middle District of Georgia. A three-judge court was

sought and convened pursuant to 28 U.S.C. §§ 2281 and

2284. The action was brought against the Commissioner

of the Department of Human Resources, the Director of

the Division of Mental Health, and the Chief Medical

Officer of Central State Hospital on behalf of all men-

tally ill children (younger than 18 years of age) in-

definitely admitted or committed to mental institutions

under Ga. Code Ann. § 88-503.1(a).

2 A copy of the joint letter indicating the parties’ consent has been

filed with the Clerk of the Court. :

The minor plaintiffs alleged that the Georgia statutory

procedure constituted a denial of due process of law under

the Fourteenth Amendment to the United States Con-

stitution. The challenged Georgia statute provides that

children may be “voluntarily” institutionalized for ex-

tended care and treatment without opportunity for a

hearing or assistance of counsel, upon a parent’s or guard-

ian’s application, and the facility superintendent’s find-

ing that the child has “evidence of mental illness and

. . fis] suitable for treatment.” Admission for observa-

tion and diagnosis requires merely parental application.

On February 26, 1976, the District Court ruled on

due process grounds that the voluntary admission and

commitment procedures of Ga. Code Ann. § 88-503.1 (a)

were unconstitutional as applied to children under 18

years of age. J. L. and J. R. v. Parham, 412 F. Supp.

112, 189 (M.D. Ga. 1976). Central to the court’s hold-

ing was its determination that due process “necessarily

includes procedural safeguards to see that even parents

do not use the power to indefinitely hospitalize children

in an arbitrary manner.” 412 F. Supp. at 138.

The District Court specifically rejected defendants’ ar-

gument that due process protections should not apply

because the state is acting as parens patriae and not as

an adversary in the admission/commitment of children

(412 F.Supp. at 137-38), and because the admission/

commitment proceedings are civil, not criminal, in na-

ture. 412 F.Supp. at 187. The court held that defen-

dants’ reasoning ignored the fact that the child in ques-

tion is not merely bodily restrained, but is denied the

freedom “of an ordinary, every-day child in these United

States of America” to be “a normal child in a normal

household cared for by normal parents”; ignores the pos-

sibility of social ostracism and severe emotional and

psychic harm resulting from commitment; and ignores

the fact that some parents abuse their parental authority

by abandoning their children to the state under the guise

of a mental hospital admission. 412 F.Supp. at 136-138.

The procedural regularity called for by due process,

the court stressed, is flexible and such as the particular

situation demands, and traditionally includes “at least

the right after notice to be heard before an impartial

tribunal.” 412 F.Supp. at 137. The District Court ruled

however, that the statute supplied “absolutely no due

process” (412 F.Supp. at 139), and therefore violated

the Fourteenth Amendment. It then ordered defendants

either “to commence [as to every child under eighteen

years of age in their custody] proceedings under Georgia’s

Juvenile Court Act or other mental health laws not found

unconstitutional” or else “to completely remove the child

from the custody of the defendants” (412 F.Supp. at

140), and permanently enjoined and restrained defen-

dants from further detaining children under 18 years of

age under the statute. Id. 8

While the court did not enumerate specific procedural

guarantees, it did endorse existing Georgia juvenile court

procedures which require that any child alleged to be

in need of treatment or commitment as mentally ill or

mentally retarded be provided notice of a hearing, right

to counsel (including appointed counsel where undue fi-

nancial hardship exists), and recordation of the hearing.

The defendants appealed the judgment of the District

Court to this Court pursuant to 28 U.S.C. § 1253, and

made application for a stay pending appeal. A stay was

denied by the trial court, but was subsequently granted

1971 Ga. Laws 709, Ga. Juvenile Court Code Title 24A provides

that the juvenile courts “shall have exclusive original jurisdiction

over juvenile matters and shall be the sole court for initiating -

action: (1) Concerning any child . . . alleged to be in need of treat-

ment or commitment as a mentally ill or mentally retarded

child. . . 412 F.Supp. at 181. Subsequent to the decision below, the

Georgia Assembly recited recognition of the juvenile courts’ primary

jurisdiction. See footnote 17, infra.

by this Court on April 5, 1976. Probable jurisdiction

was noted by this Court on May 31, 1977.

SUMMARY OF ARGUMENT

Civil commitment of an individual on grounds of al-

leged mental illness is a constitutionally significant de-

privation of personal liberty which carries with it serious

adverse consequences and disabilities. Such deprivations

and disabilities may not constitutionally be imposed with-

out adequate procedural safeguards where the commit-

ment of the individual is involuntary, in fact or in law.

Fact finding procedures are particularly important where,

as here, the risk of error is substantial, and where, as

here, identification of appropriate less restrictive alterna-

tives may obviate the need for commitment to a mental

institution.

The asserted interest of the state in providing treat-

ment to mentally disabled juveniles and in preserving

the family unit does not justify a substantially different

or less stringent application of the due process clause

when committing juveniles on mental disability grounds

than when committing adults on such grounds. While

parents, of course, can and should be involved in any

decision to institutionalize a child, it cannot be assumed

in every case that the parent is acting in the best in-

terest of the child. Thus the final commitment decision

should be made, pursuant to appropriate procedures, by

an objective and unbiased tribunal.

ARGUMENT

1. Placement in a Mental Institution Is a Constitutionally

Significant Deprivation of Liberty and Carries With It

Other Serious and Important Adverse Consequences.

Loss of liberty. Commitment to a mental institution

necessarily entails a “massive curtailment of liberty,”

Humphrey v. Cady, 405 U.S. 504, 509 (1972), and in-

evitably affects “fundamental rights.” Baæstrom v.

Herold, 383 U.S. 107, 118 (1966). Perhaps the most

basic aspect of constitutional liberty is the right to be

free from unwarranted physical confinement. Arnett v.

Kennedy, 416 U.S. 184, 157 (1974). Avoiding extreme

restrictions on personal liberty such as those imposed

by involuntary civil commitment has been held by this

Court to be an interest of “transcending value.” In re

Winship, 397 U.S. 358, 364 (1970).

Although there may be differences between the invol-

untary commitment of an adult, where the state may

assume a more active role, and the commitment of a

minor, in which the parents are more directly involved,*

As of 1976 the following states had voluntary commitment

statutes allowing parents or guardians to commit minors: Alaska,

Arizona, Arkansas, California, Colorado, Connecticut, District of

Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas,

Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri,

Nevada (due process rights, including right to counsel and a hear-

ing, are not forfeited when children are admitted by their parents),

New Jersey (modified by state Supreme Court rule November 12,

1974), New Mexico (repealed and replaced by H.R. 472 (April 8,

1977) ), New York (minor may effect his own release), North

Carolina (statute declared unconstitutional in In re Long, 25 N.C.

App. 702, 214 S.E.2d 626 (1975)), North Dakota, Ohio, Oklahoma,

Oregon, South Carolina (minor under age 16 may apply for his own

release), Tennessee (child may apply for his own release), Utah,

Virginia, Washington (consent of minor over age 13 required),

West Virginia (minor age 12 and over may apply for his own

— Wisconsin (consent of minor over age 13 required), and

yoming.

[Footnote continued on page 8]

the results in terms of physical and emotional depriva-

tions are, if different in kind, at least equal in impact and

severity.’ Adults and children alike are deprived of their

basic right to personal liberty; all are removed from

their homes, communities, and normal daily activities,

and are subjected to the custody and control of persons

(usually agents of the state) not of their own choosing.

The commitment of a minor to an institution is a

traumatizing disruption of his life which cannot fail to

have far-reaching consequences. A committed child is

separated from a known environment of family, friends,

and school and plunged into a frightening, unfamiliar

world. See In re Gault, 387 U.S. 1, 27 (1967). As one

expert witness testified below:

[I]t seems to [me] the hospitalization . . . [is]

really . . like a sentence of death [A. 803)

I think that this is one of the frightening aspects

of hospitalization, that once the child is put behind

doors, he is forgotten, . and that trauma at

that point is really followed by the trauma that per-

haps nobody else will care for him, and no matter

how therapeutic the hospital may be, some link to

the outside world still would be very important to

have. A. 810.

¢ [Continued ]

The following states had no age distinction in their voluntary

commitment statutes: Iowa, Louisiana, Idaho (but if a parent ad-

mits a minor, consent of the parent is required for release), Min-

nesota, Nebraska, and Rhode Island. A child’s consent is required

in Delaware, Maine, Montana, and Texas. Alabama considers com-

mitment of a child by his parents to be involuntary commitment.

New Hampshire and Vermont specifically exclude children from

voluntary commitment precedures. South Dakota has no voluntary

commitment statute. “Due Process Limitations on Parental Rights

to Commit Children to Mental Institutions,” 48 U. Colo. L. Rev. 235,

236 (1977).

5 Parental or familial involvement is not uncommon in the civil

commitment of adults. See O’Connor v. Donaldson, 422 U.S. 563,

565 (1975), where the petitioner was committed at the instance

of his parents and spent 15 years in the Florida State Hospital for

the mentally ill.

Testimony in this case further established the diffi-

culty of subsequent reintegration of the child into his

once familiar world (A. 176-177). See also, A. 904;

‘Minors’ Right to Due Process: Does it Extend to Com-

mitment to Mental Institutions?” 52 Notre Dame Law.

136, 140 (1976). The feeling of abandonment occasioned

by institutionalization is especially intense for younger

children who are adversely affected by such feelings

sooner than other children. Goldstein, Solnit & Freud,

Beyond the Best Interest of the Child, 40-49 (1973).

Institutionalization may also retard the normal intel-

lectual and emotional development of a child.“ Thus

there is no reason to assume that the institutionalization

decision, and the fact of institutionalization, are of any

less consequence for minors than for adults (A. 177-

178). If anything, the opposite appears to be the case.

Involuntary treatment. In addition to the deprivation

of liberty inherent in an indefinite commitment, such

commitment carries with it the risk of physically in-

trusive treatment which, especially if unwarranted, may

violate the committed individual’s right to bodily in-

tegrity. See Schmerber v. California, 384 U.S. 757, 772

(1966) ; Rochin v. California, 342 U.S. 165 (1952). Such

treatment modalities may include forced administration

of psychotropic medication, see Winters v. Miller, 446

F.2d 65 (2nd Cir. 1971), cert. den, 404 U.S. 985 (1971) ;

Scott v. Plante, 532 F. 2d 939 (8rd Cir. 1976) ; Souder

v. McGuire, 423 F.Supp. 830 (M.D. Pa. 1976); aversive

conditioning, see Knecht v. Gillman, 488 F.2d 1136 (8th

Cir. 1973); Mackey v. Procunier, 477 F.2d 877 (9th

Cir. 1973); Wyatt v. Hardin, No. 3195-N (M.D. Ala.,

„ Glenn, The Least Restrictive Alternative in Residential Care

and the Principle of Normalization,” in The Mentally Retarded .

Citizen and the Law, at 499-501 (1976); Hobbs (ed.), Issues in the

Classification of Children, at 136, 142-143 (1975); Joint Commis-

sion on the Mental Health of Children, Crisis in Child Mental

Health: Challenge for the 1970's, at 321-324, 330-331 (1970);

Provence & Lipton, Infants in Institutions, at 19 (1962).

February 28, 1975, June 26, 1975, and July 1, 1975),

1 MDLR 55; convulsive therapy, see Wyatt v. Hardin,

supra, Price v. Sheppard, 289 N.W. 2d 905 (Minn. 1976),

1 MDLR 120; Nelson v. Hudspeth, C.A. No. J75-40(R)

(S.D. Miss., May 16, 1977) ; and even psychosurgery, see

Kaimowitz v. Michigan Department of Mental Health,

No. 73-19434-AW (Cir. Ct. Wayne County, Mich., July

10, 1973), 1 MDLR 147.’

Of course, not every institutionalized minor will be

subjected to hazardous or intrusive procedures, but the

fact is that institutionalization, to some degree, confers

upon the state the power to impose treatment upon an

institutionalized individual—treatment which by its very

nature may involve “impermissible tinkering with mental

processes,” Mackey v. Procunier, supra, 477 F.2d at 877,

or a violation of the right of privacy. See Roe v. Wade,

410 U.S. 113 (1973) ; Griswold v. Connecticut, 381 U.S.

479 (1965). Obviously, no one, especially a child, should

be exposed to the risk of such treatment without a prior

determination that it is warranted and appropriate.

Stigmatization. As courts have noted,“ institutionaliza-

tion on mental disability grounds almost inevitably stig-

matizes the individuals involved in a way that adversely

affects them the rest of their lives. Such stigmatization

may result in or be accompanied by the scorn or obloquy

of one’s peers, loss of employment possibilities and educa-

tion benefits, and other civil disabilities (A. 784).“ In

See generally Friedman, “Legal Regulation of Applied Be-

havioral Analysis in Mental Instituvions and Prisons,” 17 Ariz. L.

Rev. 39 (1975).

s E. g.. Lessard v. Schmidt, 349 F.Supp. 1078, 1088-90 (E. D.

Wis. 1972), vacated on procedural grounds 414 U.S. 473 (1974),

on remand 379 F.Supp. 1376 (E.D. Wis. 1974), vacated on procedural

grounds 421 U.S. 957 (1975), on remand 413 F.Supp. 1318 (E. D.

Wis. 1976); In re Roger S., Crim. 19558, slip op. at 7 (Cal., July

18, 1977).

» Cf. Comment, Developments in the Law—Civil Commitment of

the Mentally Ill,” 87 Harv. L. Rev. 1190, 1198-1201 (1974); Goss

these circumstances, see Paul v. Davis, 424 U.S. 693,

701-705 (1976), an individual’s interest in his good

reputation is a liberty (or property) interest entitled

to constitutional protection. Board of Regents v. Roth,

408 U.S. 564, 573 (1972); Wisconsin v. Constantineau,

400 U.S. 433 (1971).

Possibility of inhwmane or inadequate treatment. It is

unfortunate but true that many of our nation’s public

mental institutions do not provide minimally adequate

habilitative or rehabilitative programming, but in fact

may subject their patients or residents to inhumane and

unsafe living conditions, destructive psychological pres-

sures, and even physical abuse by other patients or resi-

dents or by staff members, all in violation of constitu-

tional guarantees. As in In re Gault, supra, 387 US.

at 15-21, this Court should take note of such possibility,

which has been well documented by lower Federal courts,”

v. Lopez, 419 U.S. 565, 579 (1975) [Charges of misconduct]

could seriously damage the students’ standing with their fellow

pupils and teachers as well as interfere with later opportunities

for higher education and employment [footnote omitted].” In re

Ballay, 482 F.2d 648, 667-669 (D.C. Cir. 1973). In re Coleman,

Cir. Ct. No. 76-639-949 AV (Cir. Ct. Wayne County, Mich., Feb. 23,

1977). See also, “Minors’ Right to Due Process,” swpra, 52 Notre

Dame Law. at 140.

10 E. g., O’Connor v. Donaldson, supra; Wheeler v. Glass, 473 F. ad

983 (7th Cir. 1973); Davis v. Watkins, 384 F.Supp. 1196 (N.D.

Ohio 1974); Welsch v. Likins, 373 F.Supp. 487 (D. Minn. 1974),

enforced No. 4-72-Civ. 451 (D. Minn., October 1, 1974), 1 MDLR

193, aff'd in part Nos. 76-1473 and 76-1797 (8th Cir., March 9,

1977), 1 MDLR 334; New York State Association for Retarded

Children and Parisi v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.

1973), modified No. 72-C-356/357 (E.D.N.Y., May 23, 1973), order

on consent sub nom. New York State Association for Retarded

Children and Parisi v. Carey, No. 72-C-356/357 (E.D.N.Y., April

30, 1975), approved 393 F.Supp. 715 (E.D.N.Y. 1975), 1 MDLR

58; Romeo Youngberg, C.A. No. 76-3429 (E.D. Pa., June 6, 1977) ;

Vanderzeil v. Hudspeth, C.A. No. J76-262(R) (S.D. Miss., Feb. 11,

1977) ; Horacek v. Exon, 354 F.Supp. 71 (D. Neb. 1973), order on

consent No. 72-L-299 (D. Neb., October 31, 1975); Wyatt v. Stick-

in determining the procedural protections which should

attend the commitment of anyone, especially a child, to

a mental institution. In those jurisdictions where sub-

standard conditions exist, the consequences of erroneous

institutionalization decisions are especially grave.

As with all the other types of deprivations and ad-

verse consequences cited in this part, no reason appears

why such infringments of constitutionally protected rights

are of any less consequence in the case of children than

they are in the case of adults (A. 177-178).

2. Confinement in a Mental Institution Cannot Be Constitu-

tionally Imposed by the State or Under the Authority of

State Law Without Adequate Procedural Safeguards.

This Court has repeatedly determined that prior to a

deprivation of a constitutionally protected interest, the

due process clause demands that procedures be estab-

lished to determine the necessity and legal justification

for the proposed deprivation. This Court has adopted a

flexible approach by tailoring the procedural require-

ments according to the weight of the competing indi-

vidual and governmental or societal interests at stake.

See, ¢.g., Wolff v. McDonnell, 418 US. 539 (1974) ;

Morrissey v. Brewer, 408 U.S. 471, 481-90 (1972);

Bell v. Burson, 402 U.S. 585, 589-42 (1971); Boddie v.

Connecticut, 401 U.S. 371 (1971); Goldberg v. Kelly,

397 U.S. 254, 263-71 (1970); Cafeteria Workers Union

v. McElroy, 367 U.S. 886, 895 (1961).

ney, 325 F.Supp. 781 (M.D. Ala. 1971), 334 F.Supp. 1341 (M.D.

Ala. 1971), 344 F.Supp. 373 and 387 (M.D. Ala. 1972), aff'd sub

nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Cf. Gruen-

berg, “The Social Breakdown Syndrome—Some Origins,” 123 Am. J.

Psychiatry 12 (1967); Barton, Institutional Neurosis (2d ed.

1966); Goffman, Asylums (1961).

11 Defendants in their brief rely heavily upon two recent decisions

of this Court to establish that Georgia’s procedures comport with

due process. See defendant’s brief’s pp. 28-43. However, both de-

While this Court has not ruled directly on the pro-

cedural requirements for civil mental disability commit-

ments, it has mandated strict procedural safeguards in

the analogous areas of quasi-criminal commitments,

Specht v. Patterson, 886 U.S. 605 (1967), and institu-

cisions, Ingraham v. Wright, —— U.S. ——, 97 S.Ct. 1401 (1977),

and Smith v. Organization of Foster Families for Equality and

Reform, —— U.S. ——, 97 S.Ct. 2094 (1977) (hereinafter cited as

OFFER), are clearly distinguishable from the present case.

In OFFER, this Court, facing difficult and complex questions

concerning the constitutional adequacy of the procedure protecting

foster parents from removal of their foster children, found the

New York system to comport with due process. Unlike the Georgia

commitment procedures, the New York procedures included a 10-day

advance notice of removal; an opportunity for a conference; an

opportunity for judicial review; and in certain cases, a full adminis-

trative hearing with the right to judicial review. These pro-

cedures clearly offer more protection than the Georgia procedures,

under which the named plaintiffs herein were institutionalized

for six years without any hearing whatsoever.

Further, the nature of the interest in OF FER differs from that

in the instant case. As this Court noted in OFFER, the distinctive

features of foster care are first, ‘that it is care in a family, it is

noninstitutional substitute care,’ and second ‘that it is for a

planned period—either temporary or extended (97 S.Ct. 2099)

(emphasis in original). Commitment of a child in Georgia to a

mental hospital results in care in an institutional setting for an

indefinite period. Thus, the two situations are not comparable.

In Ingraham v. Wright, this Court held that the infliction of

reasonable corporal punishment on public school children by teachers

could be accomplished without first resorting to an administrative

hearing. This case is also distinguishable froin the case at hand.

First, there is a significant constitutional difference between pad-

dling a child, and indefinitely committing him to a mental hospital.

Furthermore, as this Court noted in Ingraham:

Were it not for the common law privilege permitting teachers

to inflict reasonable corporal punishment on children in their

care, and the availability of the traditional remedies for abuse,

the case fo~ requiring advanced procedural safeguards would be

strong indeed. 97 S.Ct. 1414.

No readily apparent authority reveals an analogous common law

privilege allowing a parent to commit a child to a state mental

hospital. See, Panneton, “Children, Commitment and Consent: A

tionalization of juvenile delinquents, e.g., In re Winship,

supra; In re Gault, supra. Indeed, the Chief Justice

noted in his concurring opinion in O’Connor v. Donaldson,

supra, 422 U.S at 580, that

[there can be no doubt that involuntary commit-

ment to a mental institution, like involuntary con-

finement of an individual for any reason, is a

deprivation of liberty which the State cannot ac-

complish without due process of law. . Commit-

ment must be justified on the basis of legitimate

state interest, and the reason for committing a par-

ticular individual must be established in an appro-

priate proceeding. (Citations omitted.)

Numerous lower Federal courts, relying in part on the

above-cited cases, have struck down civil commitment

statutes found to be deficient in procedural safeguards.

Stamus v. Leonhardt, 414 F.Supp. 439 (S. D. Iowa 1976) ;

Suzuki v. Quisenberry, 411 F.Supp. 1113 (D. Hawaii

1976), 1 MDLR 46; Goldy v. Beal, 429 F.Supp. 640

(M.D. Pa. 1976), 1 MDLR 137; Doremus v. Farrell,

407 F.Supp. 509 (D. Neb. 1975); Kendall v. True, 391

F.Supp. 413 (W.D. Ky. 1975); Lynch v. Baxley, 386

F.Supp. 378 (M.D. Ala. 1974); Bell v. Wayne County,

384 F.Supp. 1085 (E.D. Mich. 1974) ; Lessard v. Schmidt,

supra; Dixon v. Attorney Genera’ of the Commonwealth

of Pennsylvania, 325 F.Supp. 966 (M.D. Pa. 1971). Cf.

State ex rel. Hawks v. Lazaro, 202 S.E. 2d 109 (W. Va.

1974); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky.

1964).

—

Constitutional Crisis,” 10 Family L.Q. 295 (1977). Nor is an

analogous remedy for abuse available to the inappropriately com-

mitted child (A. 789-790) .

Thus, neither OF FER nor Ingraham diminish the district court’s

finding that children are entitled to due process protections when

faced with the possibility of the grievous loss of liberty involved

in an indefinite commitment to a state mental institution.

Indeed, many courts other than the District Court in

the instant case have similarly held due process require-

ments to be specifically applicable to mental disability

commitments of children. Bartley v. Kremens, 402 F.

Supp. 1039 (E.D. Pa. 1975), rev’d on other grounds

— US. ——, 97 S.Ct. 1709 (1977); In re Roger S.,

supra; Saville v. Treadway, 404 F.Supp. 430 (M.D.

Tenn. 1974); Kidd v. Schmidt, 399 F.Supp. 301 (E. D.

Wis. 1975). Cf. Pima County Public Fiduciary v.

Superior Court, 546 P.2d 354 (Ariz. Ct. App. 1976).

A. The District Court Properly Recognized That Juveniles

Facing Confinement in a Mental Institution are Entitled

to Adequate Notice and to Counsel.

The lower court cases have concluded, in particular,

that the requirements of due process include the right to

meaningful notice given sufficiently in advance of any

proceedings so as to apprise the individual of the grounds

for the proposed commitment along with the procedural

and substantive rights .fforded him. Suzuki v. Quisen-

berry, supra, 411 F.Supp. at 1127; Doremus v. Farrell,

supra, 407 F.Supp. at 515; Lynch v. Baxley, supra, 386

F.Supp. at 388; Bell v. Wayne County, supra, 384 F.Supp.

at 1092; Lessard v. Schmidt, supra, 349 F.Supp. at 1092.

In addition, lower court opinions have uniformly held

that an individual faced with the prospect of involuntary

commitment for an indefinite period is entitled to the

effective assistance of counsel, including the appointment

of counsel if the individual cannot afford retained counsel,

and that counsel must be made available far enough in

advance of any hearing to provide adequate opportunity

for preparation. Suzuki v. Quisenberry, supra, 411 F.

Supp. at 1129; Doremus v. Farrell, supra, 407 F.Supp.

at 515; Lynch v. Baxley, supra, 386 F.Supp. at 389; Bell

v. Wayne County, supra, 384 F.Supp. at 1093-94; Lessard

v. Schmidt, supra, 349 F.Supp. at 1097-98. Cf. Heryford

v. Parker, 396 F.2d 393, 396 (10th Cir. 1968).

In the instant case, the court below ordered due process

proceedings to be commenced under statutory provisions

not found to be unconstitutional, specifically mentioning

the Georgia Juvenile Court Act which confers jurisdiction

over any child “alleged to be in need of treatment or com-

mitment as a mentally ill or mentally retarded chile.

412 F.Supp. at 131. That act explicitly provides for no-

tice of a hearing, right to counsel or appointed counsel

(where financial hardship exists), and a recorded, non-

jury hearing. The unique aspects of a juvenile mental

disability commitment, where the child may in certain

situations be more subject to implicit or explicit coercion

(A. 903) and less likely to appreciate or comprehend the

nature of the proceedings, are taken into account by en-

suring these rights. Indeed, consultation with counsel

may, in some cases, lead to dispensing with other formal

procedures and would protect a child from unwarranted

waiver of his rights.”

Supplementing the legal authority for the appointment

of counsel” was expert testimony below which agreed

that counsel played a beneficial role in the proceedings for

all involved. The testimony indicated that the advocate

for the child is perceived by the child as representing his

interests in the commitment proceedings (A. 180). De-

spite assurances to the contrary from parents or the psy-

chiatrists, the child is likely to perceive their role as

adversarial. Appointment of counsel for the child thus

12 Of course, it should be recognized that a hearing may not

be held in every case. The experience of the New Jersey Depart-

ment of the Public Advocate indicates that often juvenile commit-

ment cases are concluded before a hearing is held. See Sec. I(c),

Brief of Amicus, New Jersey Department of the Public Advocate.

18 See also, “Minors’ Right to Due Process,” supra, 52 Notre

Dame Law. at 142, 144, which advocates “(t]he appointment of

medical and legal advocates . . [as] an appropriate means of

ensuring that the child’s interests are given full judicial considera-

tion” (at 144, emphasis added).

——

decreases the chance that the child will feel “railroaded”

and makes him more amenable to treatment if commit-

ment is ordered (A. 180-181, 183).

B. The Right to Counsel, in Particular, Has Been Emphasized

by the American Bar Association as a Matter of Sound

Judicial Administration.

Appointment of counsel along the lines of the lower

court’s order has been incorporated into the Standards

Relating to Trial Courts drafted by the American Bar

Association Commission on Standards of Judicial Admin-

istration and adopted by the Association’s House of Dele-

gates at its mid-year meeting in February, 1976. Section

2.72 of the trial court standards,“ which sets forth the

procedural requirements for civil commitment proceedings,

specifically provides that persons subject lo such proceed-

ings are entitled to the assistance of counsel as provided

in Section 2.20. That section, in addition to permitting

a litigant to employ counsel in any judicial proceeding,

requires that counsel be appointed for persons unable to

afford their own counsel when they are “subject to a

civil proceeding in which the result may be detention for

a period longer than 72 hours.”

In its commentary with regard to Section 2.20, the

Commission on Standards of Judicial Administration

noted:

In addition to representation in criminal cases, coun-

sel should be appointed to represent any person

who is the subject of a civil proceeding in which

the result may be his physical commitment or deten-

tion for any period beyond brief emergency deten-

tion. Such p include commitment of the

mentally ill, mentally deficient, narcotics addicts,

alcoholics, “defective delinquents,” “sexual psycho-

paths,” and similarly defined persons. The distinc-

1 The complete text of Section 2.72 and accompanying Commen-

tary are attached as the appendix to this brief.

tion between these procedures and criminal prose-

cution is often more theoretical than real, for the

state plays an adversary role, as in criminal cases,

and the consequence of adjudication may be long

confinement—sometimes for an indefinite period—

in an institution where the conditions of custody

to a greater or lesser degree resemble a prison. A

like necessity for counsel exists in deportation and

contempt proceedings. Where the individual in-

volved is mentally disturbed or deficient, or lacks

facility in speaking English, the need for counsel

is all the more urgent because the person cannot

speak effectively for himself.

Clearly, the commitment of a minor falls within the

type of situation contemplated by Standard 2.20.“

As previously developed, the court below implicitly re-

quired procedural rights other than counsel for children

facing commitment, all of which find support in some or

all of the authorities supporting amicus’ arguments here-

in.* Amicus would point out also that Section 2.72 of

the Association’s trial court standards and the procedural

safeguards required by the court below (i.e. Ga. Juvenile

Court Code Title 24A) are very similar, in that both

contemplate the right to notice, counsel, and personal

presence at such hearings, along with the rights of con-

15 The critical role of counsel for children is also discussed at

length in draft standards relating to the juvenile justice system

which were recently published by the Juvenile Justice Standards

Project. The Project, a joint venture of the Institute of Judicial

Administration and the American Bar Association, has produced a

draft twenty-three volume series covering the entire field of juvenile

justice administration. At present, the standards have not been

approved by the American Bar Association, but are scheduled to be

considered at the Association’s 1978 mid-year meeting. IJA-ABA,

Standards Relating to Counsel for Private Parties (Tent. Draft,

1977).

16 The utility of particular procedural safeguards may vary to

some extent depending on the age and maturity of the child

involved.

frontation, cross-examination, and presenting evidence on

one’s own behalf.

C. The District Court Was Correct in Finding That the

Stricken Georgia Code Provisions for Admission or Com-

mitment of Children Do Not Satisfy the Requirements

Enumerated Above.

A plain reading of the Georgia statute here in question,

Ga. Code Ann. § 88-503.1(a), demonstrates that it affords

children subject to institutionalization none of the proce-

dural protections mandated by the above-cited constitu-

tional decisions or endorsed by the American Bar Asso-

ciation.” The fact that the state’s custom is to screen

1? Shortly before this Court noted probable jurisdiction herein,

Georgia enacted alternate procedures for admitting minors which

are “cumulative and. . . not to be used in lieu of present methods

of providing treatment for mentally ill children either under this

Title or under Code Chapters 88-4, 88-5, and 88-25, but. . [are]

only to be used in the event that these other methods are not

available.” Act No. 331 (March 23, 1977).

The alternate statute allows any legal custodian (or physical

custodian if the legal custodian cannot be contacted) to initiate

voluntary admission of his or her ward (under 17 years of age)

to a mental health facility by bringing the ward to an emergency

receiving facility for examination. Upon the examining physician’s

determination that the child is mentally ill or retarded, is in need

of immediate medical assistance, and is in need of hospitalization,

the child will be admitted to the facility. The statute requires

that the child’s parents or guardian be notified immediately of such

admission, and that a petition be filed in juvenile court by the person

seeking the child’s hospitalization within 24 hours of such admis-

sion. A finding of probable cause at the juvenile court hearing

required to be held within three days of the filing of the petition

enables the hospital to confine the child until a full hearing on his

mental status is held.

The full hearing must be held within ten days of the filing of

the petition. Commitment is authorized only if the juvenile court

judge, at the final hearing, determines that the child is mentally

ill or mentally retarded and is in need of hospitalization. Other-

wise, the petition must be dismissed and the child discharged from

the facility. The order authorizing commitment is effective for

six months, but may be extended. The statute prohibits hospitali-

children at a community mental health center and at the

receiving facility does not cure this total lack of due

process safeguards.“ Even assuming that each case is

screened by the best-intentioned psychiatrist, inappropri-

ate commitments are possible. 2

Psychiatrists themselves would be the first to admit

that however desirable an infallible erystal ball

might be, it is not among the tools of their profes-

sion. It must be conceded that phychiatrists still ex-

perience considerable difficulty in confidently and

accurately diagnosing mental illness. People v. Bur-

nick, 14 Cal. 3d 306, at 326-27, 121 Cal. Rptr. 488,

at 501 (1975).

See also In re Ballay, supra, 482 F.2d at 665; In re Roger

S., supra, slip op. at 7; Ennis & Litwack, “Psychiatry

and the Presumption of Expertise: Flipping Coins in the

Courtroom,” 62 Calif. L. Rev. 693, 719 (1974); A. 171-

172, 173-175, 792-793, 714, 805, 806. See also discussion

of reliability of psychiatric judgement at pages 21-24,

infra.

Expert testimony below corroborated the view that

placing sole reliance on a psychiatric diagnosis, without

recourse to review by an unbiased tribunal, will not

suffice to prevent unnecessary or inappropriate commit-

ments (A. 174-175, 808, 809).

zation when treatment can be provided most appropriately in a less

restrictive setting.

(The enactment also recites the General Assembly’s recognition

that the Juvenile Court may make disposition of mentally /

retarded children under Code Section 24A-2601, and recognition that

the Juvenile Court has primary jurisdiction over the commitment

of juveniles who meet the criteria of Code Chapters 88-4, 88-5, and

88-25.)

18 Indeed, the testimony of the Director of the Office of Child

and Adolescent Mental Health Services, Atlanta Division, indicates

not only that such practice is not mandatory (A. 757), but that it

can be ignored entirely (A. 757-758). (See also defendants’ brief,

p. 3.) This same testimony further indicates that even at the state

hospital level, no statewide regulations exist (A. 781-783) to ensure

that every child receives even a uniformly minimum screening.

D. The Labeling of Juvenile Mental Disability Commitments

As Civil (Rather Than Criminal), Benevolent, or Volun-

tary Does Not Affect the Applicability of the Due Process

Clause.

This Court has long avoided the labeling of a par-

ticular proceeding as “civil” rather than “criminal” and

has repeatedly imposed due process requirements when it

was clear that the potential existed for serious deprivation

of constitutionally protected interests. E.g., Breed v.

Jones, 421 U.S. 519, 530 (1975); In re Gault, supra;

Specht v. Patterson, swpra; cf. Heryford v. Parker, supra,

396 F.2d at 396. The same deprivations threatened in

these juvenile and quasi-criminal “civil” cases are present

here, and the same reasoning should apply. This Court

should affirm the District Court’s rejection of the defen-

dants’ argument that the benevolent (habilitative or re-

habilitative) purpose of juvenile mental disability com-

mitments insulates them from due process requirements.

See 412 F.Supp. at 137-138. The statutory characteriza-

tion of these admissions and commitments as “voluntary”

should not mask the fact that they are voluntary on the

part of the parent (or other person or agency seeking in-

stitutionalization), but not on the part of the child being

deprived of his liberty. Thus the requirements of due

process should apply.

E. The Imposition of Due Process Protections Upon the

Institutionalization Decision Is Necessitated Both by the

Risk of Erroneous Psychiatric and Other Judgments and

by the Need to Ensure That Less Restrictive Alternatives

Are Adequately Explored.

The deprivations and consequences of institutionaliza-

tion described in the first part of amicus’ argument

would, in themselves, require that institutionalization de-

cisions made by or through the authority of the state be

subject to the requirements of the due process clause.

The special nature of the admission/commitment decision,

however, demands the type of procedural safeguards man-

dated by the District Court for at least two further

reasons—the uncertainty of psychiatric (and other)

diagnoses, and the need, from both a professional and

constitutional standpoint, to place an allegedly mentally

disabled person in the least restrietive setting which will

meet his treatment needs.

The Chief Justice has recently noted the “uncertain-

ties” of diagnosis and therapy in the “baffling” field of

psychiatry, and has observed, correctly, that “the re-

ported cases are replete with evidence of the divergence

of medical opinion in this vexing area.” O’Connor V.

Donaldson, supra, 422 U.S. at 579 (Burger, C.J., con-

curring). This Court has previously remarked upon “the

uncertainty of diagnosis in this field and the tentative-

ness of professional judgment.” Greenwood v. United

States, 350 U.S. 366, 375 (1956) ; ef. Ennis & Litwack,

supra.

An admission /commitment hearing would serve to check

this uncertainty. The pendency of a hearing would also

dilute the tendency of some psychiatrists to overdiagnose

or to err on the side of caution, assuming disease over

health. See Ellis, “Volunteering Children: Parental

Commitment of Minors to Mental Institutions,” 62 Calif.

L. Rev. 840, 865 (1974); Rosenhan, “On Being Sane in

Insane Places? 113 Santa Clara L. Rev. 379 (1973).

Given the uncertainties in the field of mental disability,

and the difficulty in relating psychiatric or psychological

diagnoses to legal standards for commitment,” proper

fact-finding procedures are a practical and constitutional

necessity in the civil commitment process.

10 Shah, “Dangerousness: Some Definitional, Conceptual, and

Public Policy Issues,” in Perspectives in Law and Psychology

(B. Sales ed. 1977); Shah, “Some Interactions of Law and Mental

Health in the Handling of Social Deviance,” 23 Catholic U.L. Rev.

647 (1974).

Moreover, it is no longer open to serious question that

state-imposed deprivation of personal liberty for pur-

poses of mental disability treatment, or ary other such

incursion on constitutionally protected liberties, must be

only to the limited extent necessary to accomplish the

legitimate purpose of the deprivation or limitation in

question. Shelton v. Tucker, 364 US. 479, 488-490

(1960). Numerous lower Federal courts have recognized

the applicability of this “least restrictive alternative”

doctrine to commitment and treatment of the mentally

disabled. New York State Association for Retarded

Children and Parisi v. Carey, supra, Order of April 30,

1975, 1 MDLR 58; Lynch v. Baxley, supra, 386 F.Supp.

at 392; Welsch v. Likins, supra, 373 F.Supp. at 501

502; Lessard v. Schmidt, supra, 349 F.Supp. at 1096;

Wyatt v. Stickney, supra, 344 F.Supp. at 379, 396; cf.

Dizon v. Weinberger, 405 F.Supp. 974 (D.D.C. 1975),

1 MDLR 12; Covington v. Harris, 419 F.2d 617 (D.C. Cir.

1969) ; Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966).

Indeed, this Court has specifically applied this rationale

to mental disability commitments in O’Connor v. Donald-

son, swpra, 422 U.S. at 575:

“May the State confine the mentally ill merely to

ensure them a living standard superior to that they

enjoy in the private community? That the State

disqualify a person

the comforts of an institution. Moreover, while the

State may arguably confine a person to save him

2 In this case, based on the 1964 Hospitalization of the Mentally

Ill Act, 21 D.C. Code §§ 501f., the District Court, in endorsing

the least restrictive approach to both commitment and treatment,

that some patients in the District of Columbia

mental hospital could fare as well in the community, but also that

the treatment needs of 48% of the patients required them to be in

the community. 405 F.Supp. at 976.

from harm, incarceration is rarely if ever a neces-

sary condition for raising the living standards of

those capable of surviving safely in freedom on

their own or with the help of family or friends. See

Shelton v. Tucker, 364 U.S. 479, 488-490.”

Expert testimony in this case (A. 180) and the pro-

fessional literature are in accord with the foregoing

legal analysis.“ Thus, perhaps the most vital function

of procedures such as those required by the court below

is to prod the parents, professionals, and others involved

in the admission/commitment process to avoid unneces-

sary and inappropriate institutionalization and, if neces-

sary, to invest the resources of other social agencies and

the committing tribunal in identifying or creating treat-

ment alternatives which will not unduly limit the per-

sonal freedom (or the therapeutic prognosis) of the in-

dividual facing commitment.

3. Children Facing Commitment on Mental Disability

Grounds are Entitled to Substantially the Same Proce-

dural Protections Afforded Adults Under the Due Process

Clause.

As noted above, admission/commitment of children to

mental institutions involves at least an equivalent degree

of deprivation and risk, and is subject to the same

Normalization in Human Services (1972); Joint Commission on

Accreditation of Hospitals, Accreditation Manual for Psychiatric

Facilities Serving Children and Adolescents, at 55 (1974). This

legal and professional consensus is reflected in the Federal Medi-

caid regulations governing under-21 inpatient psychiatric services

(45 C. F. R. 8249.10 (b) (16) (iii), 41 F. R. 2198 (January 14, 1976),

and institutional care and treatment of the mentally retarded

(45 C. F. R. §§ 249.13 (a) (2) (iv), 39 F.R. 2220. 2227 (January 17,

1974)).

22 The Georgia General Assembly has recognized the necessity of

the least restrictive alternative in the juvenile commitment con-

text. See footnote 17, supra.

possibility of erroneous or inappropriate diagnosis or

placement decisions, as the involuntary commitment of

adults. In the instant case, the only asserted basis for

denying to such children the procedural protections due

adults relates to a somewhat vaguely defined state in-

terest in preserving parental authority and family unity.

However, the parents’ legitimate concerns can be accom-

modated without vesting in them and state authorities

unfettered control over the institutionalization of chil-

dren. The asserted state interest cannot justify the de-

privation of children’s personal liberty without due process

of law.

A. The Decisions of This Court Indicate That Parental

Authority Is Not Without Limits, and That Children,

As Well As Adults, Are Entitled to Constitutional

Protections. ;

terest has been demonstrated, this Court has not hesi-

tated to condone intrusion into the parent-child relation-

23 Moreover, Wisconsin v. Yoder turned on First Amendment

freedom of religion questions which have no parallel in the instant

case.

ship, primarily in a situation where the child’s welfare

could be jeopardized:

But the family itself is not beyond regulation in the

public interest. Acting to guard the general

interest in youth’s well being, the state as parens

patriae may restrict the parent’s control by requir-

ing school attendance, reguiating or prohibiting the

child’s labor and in many other ways. Prince V.

Massachusetts, 321 U.S. 158, 166 (1944).

At the same time, this Court has recognized that minors

are entitled to many of the same constitutional rights

and protections that adults enjoy, Tinker v. Des M oines

Independent Community School District, 393 U.S. 503

(1969), particularly with regard to procedural due pro-

cess. Minors facing the possibility of institutionalization

as a result of delinquent behavior have been accorded al-

most all the procedural safeguards as adult defendants.

See Breed v. Jones, supra; In re Winship, supra; In re

Gault, supra. Due process protections have even been ac-

corded to students facing suspensions from school of ten

days or less. Goss v. Lopez, supra. Against this back-

ground, it would be anomalous to hold that procedural due

process protections should not apply as well to indefinite

commitment of minors to mental institutions.

B. This Court’s Abortion Decisions Reflect the Proper Bal-

ancing of Interests to Be Applied in the Instant Case.

In Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976), and Bellotti v. Baird, 428 US.

132 (1976), this Court was confronted with the question,

inter alia, of whether parents could constitutionally pre-

vent their minor daughters from obtaining abortions un-

der circumstances in which, pursuant to Roe v. Wade,

2 This Court’s ruling in Ingraham v. Wright, supra, does not

undercut due process requirements in the context of the present

case. See footnote 11, supra.

supra, adult women would have an absolute right to ter-

minate unwanted pregnancies.

“Constitutional rights,” this Court observed, “do not

mature and come into being magically only when one at-

tains the state-defined age of majority. Minors, as well

as adults, are protected by the Constitution and possess

constitutional rights.” Planned Parenthood of Central

Missouri v. Danforth, supra, 428 U.S. at 74. Given that

in some instances, the state’s authority to regulate

children may be broader than its authority with respect

to adults, the Court continued, it is necessary

to examine whether there is any significant state

interest in conditioning an abortion on the consent

of a parent or person in loco parentis that is not

present in the case of an adult.

One suggested interest is the safeguarding of the

family unit and of parental authority. [Citation

omitted.] It is difficult, however, to conclude that

providing a parent with absolute power to overrule a

determination, made by the physician and his minor

patient, to terminate the patient’s pregnancy will

serve to strengthen the family unit. Neither is it

likely that such veto power will enhance parental

authority or control where the minor and the non-

consenting parent are so fundamentally in conflict

and the very existence of the pregnancy already has

fractured the family structure. Any independent in-

terest the parent may have in the termination of

the minor daughter’s pregnancy is no more weighty

than the right of privacy of the competent minor

mature enough to have become pregnant. Planned

Parenthood of Central Missouri v. Danforth, supra,

428 U.S. at 75.

The Court's holding in the Planned Parenthood case

leads directly to the conclusion that the existence of a con-

flict between parent and child does not mean the consti-

tutional rights of the child must inevitably give way.

he . ——- Ve eS . ow * N 23

Certainly, a child’s interest in avoiding a wrongful, inap-

propriate, and potentially lifelong commitment to a mental

institution is equivalent in gravity and importance to

a minor’s right to obtain an abortion, and the same bal-

ancing of interests is required. So examined, the child’s

interest in not being improperly institutionalized out-

weighs the parent’s (or guardian’s) interest in having

absolute (or near-absolute) control over the commitment

decision.

Moreover, if the state, qua state, cannot institutional-

ize an individual without proper procedural protections,

such authority cannot constitutionally be delegated to a

parent or other third party. Planned Parenthood of

Central Missouri v. Danforth, supra, 428 U.S. at 69.

C. The District Court Properly Accommodated the Interests

of the Parent and Child in Requiring Due Process Safe-

guards.

It must be recalled that the District Court in the in-

stant case did not exclude parents or guardians from par-

ticipation in the institutionalization decision, but merely

required procedural protections such as were already

afforded under the state’s Juvenile Code, as a check on

parental (and professional) authority in this area.

for prompt (i) judicial resolution of any disagreement

between the parent and the minor, or (ii) judicial deter-

mination that the minor is mature enough to give an in-

formed consent without parental concurrence or that abor-

tion in any event is in the minor’s best interest.”

Such a provision, said the concurring opinion, “would

not impose parental approval as an absolute condition

upon the minor’s right but would assure in most instances

consultation between the parent and child.” Planned

Parenthood of Central Missouri V. Danforth, supra, 428

U.S. at 91 (Stewart and Powell, JJ., concurring) ; cf.

Bellotti v. Baird, supra, 428 U.S. at 147.

This Court’s opinions thus contemplate that in situa-

tions such as the case at bar, an acceptable formulation

ean be achieved which allows for parental involvement to

an appropriate extent while preserving the rights of the

minor child involved, and which utilizes a neutral body

to resolve these different and potentially conflicting in-

terests. The order of the court below does no more and,

indeed, could do no less.

problem is part of a larger familial problem, and that the

entire family should be treated as a whole rather than

isolating one member of ihe family in an institution. But

familial problems may produce such a level of frustration

and anxiety that parents are simply incapable of ob-

jectively considering the child’s interests when they make

the critical decision of institutionalization (A. 163-165,

482, 801, 804, 805; “Minors’ Right to Due Process,”

supra, 52 Notre Dame Law. at 140-141).

In other words, children are likely to suffer or be blamed

for problems that plague the entire family and for sit-

uations that require help for the family as a unit, not just

for the child. See 412 F.Supp. at 133; A. 168, 371, 482-

483, 749, 798-799. This being the case, the District Court

rightly concluded, parents should not be in a position to

make institutionalization decisions virtually on their own.

412 F.Supp at 188. Nor should they be in a position to

waive a child’s constitutional rights under such circum-

stances. 412 F.Supp. at 137, n. 54.

Other courts have also recognized that a child’s best

interest is not always the motivating factor behind the

institutionalization decision. See, e.g., Heryford v. Parker,

supra; Saville v. Treadway, supra, 404 F.Supp. at 432;

Horacek v. Exon, supra, Order of June 4, 1974; New

York State Association for Retarded Children and Parisi

v. Rockefeller, supra, 257 F.Supp. at 762; In re Long,

supra; In re Sippy, 97 A.2d 455 (D.C. Mun. App. 1953).

As the Chief Justice put it several years ago,

(l]awmakers in recent years have been sensitive

to the need to make civil commitment difficult, rec-

ognizing the dangers of relatives “farming” out

their kindred into mental institutions for motives

not always worthy. Kent v. United States, 401

F.2d 408, 416 n. 4 (1968) (Burger, J., dissenting) .**

26 See also testimony of John Paton Filley, Director of Child

and Adolescent Mental Health Services, Atlanta Division: “The

problem here in part is the history and tradition of mental hospitals

which have been dumping grounds in the past” (A. 767-768).

Children, especially those who cannot speak for them-

selves, must be protected from the risk of such inappro-

priate and harmful decisions.

E. Claims of Alleged Traumatizing or Disruptive Effects of

Due Process Protections for Children Are Not Supported

by the Record.

Defendants-appellants contend that a due process hear-

ing prior to institutionalization will have a traumatiz-

ing effect on the child or divide and disrupt the family in-

volved (defendants brief, p. 38). However, in proceed-

ings below, experts testified that a hearing may be bene-

ficial for both parent and child (A. 179, 808). Properly

administered, a hearing can impart to the child a sense

that he is being dealt with fairly. A hearing may also

help to relieve parents’ anxiety or guilt by removing from

them the necessity of making the final decision. Even as-

suming some unpleasantness or familial discord, it is hard

to conceive of these effects as more traumatizing than

the effects of indefinite commitment, especially if the

institutionalization turns out to be inappropriate or un-

necessary. Further, there may be cases where there is

little or no family harmony left to preserve and where

a hearing will hardly make matters worse. See the above

quoted passage from Planned Parenthood of Central

Missouri v. Danforth, supra, 428 U.S. at 75.

Thus the reasons advanced for preserving a system in

which the child’s interests are not assured of representa-

tion cannot be supported on the basis of the record in this

case, and, even on their face, do not justify the risk of in-

appropriate or unnecessary institutionalization.

„It should be remembered, again, that a formal hearing will

not necessarily be held in every case as a result of the District

Court’s decision.

Byes aye pee Oe RS ee ee eek E 3

FJ. ² ¹˙e1nñnnnßnßß Le Ae See ae ED ae Sen

CONCLUSION

For the reasons set forth above, the American Bar

Association urges this Court to affirm the judgment and

decree of the District Court.

Respectfully submitted,

WILLIAM B. SPANN, In., President

September, 1977

are | er

eee ie.

a 5

APPENDIX

ABA COMMISSION ON STANDARDS OF

JUDICIAL ADMINISTRATION

Standards Relating to Trial Courts.“

2.72 PROCEEDINGS CONCERNING INVOLUNTARY CARE AND

TREATMENT.

In civil proceedings for commitment of the mentally ill,

and in all other proceedings in which a disposition of a

person may be made on account of his mental or physical

condition, the court should ensure that the disposition is

made on the basis of adequate information, in accordance

with applicable law, and with due regard for the rights of

the individual and of the public.

(a) Procedural Requirements.

(1) The person who is subject to the proceeding and

his family or others immediately concerned for his welfare

should be given adequate notice and an opportunity to be

heard.

(2) The court should formulate clearly the issues to

be resolved, with particular regard for the matters to be

considered in the course of medical, psychological, or psy-

chiatric examination and to be made the subject of expert

(3) Clinical evaluation should be made by profession-

ally qualified persons on the basis of examination and

should be required to testify as to the extent of their

examination and the grounds for their conclusions. Ex-

cept on stipulation of both parties, the testimony of all

witnesses, including expert witnesses, should be presented

in open court, subject to cross-examination, and included

in the record of the proceeding.

(4) The person subject to the proceeding should be

entitled to the assistance of counsel as provided in Section

2.20.

(5) In exercising its power to order care and treat-

ment, the court should consider possible alternative dis-

positions, imposing only as much restraint as is necessary

for protection of the individual, his family, or the public,

or for accomplishment of required treatment.

(6) When commitment is ordered, the court should

specify its purposes, the terms and conditions of any cus-

tody or restraint that may be directed, and a time limit,

upon the expiration of which the matter is to be brought

before the court for further consideration unless the per-

son has been discharged prior to that time according to

law.

(7) Whenever a person is found to be mentally ill

or mentally retarded or is committed to an institution

where he may be unable to take an active part in man-

agement of his property or business interests, and it

appears that the commitment may be of long duration,

the court should inquire into the nature of such interests

and the possibility that guardianship of his property or

like safeguards should be established to protect them.

(8) Observational commitments. Involuntary commit-

ments for the purposes of observing the individual’s men-

tal or physical condition should be to the least restrictive

environment in which the observation can be conducted

and only for that period of time which is reasonably neces-

sary to complete such observation.

(9) Emergency commitments. Emergency commit-

ments without judicial proceedings should be permitted

only in cases of extreme physical danger to human life,

health, or safety, and should not be continued beyond the

time reasonably necessary to arrange for a prelimina

hearing before a judge. |

(b) Staff Assistance. The court should have sufficient

supporting staff and access to psychiatrists and other pro-

fessionally qualified experts to carry out its responsibili-

ties under this Section.

COMMENTARY

In recent years the traditional procedures for civil com-

mitment of the mentally impaired, and procedures involv-

ing defendants in criminal cases who plead insanity or

whose competence to stand trial is in question, have been

augmented by an array of statutory procedures for com-

mitment of narcotics addicts, alcoholics, and persons mani-

festing such types of statutorily defined social deviance as

“sexual psychopathy” and “defective delinquency.” Be-

cause these proceedings are generally termed civil rather

than criminal, even when they arise out of criminal prose-

cution, fewer procedural protections are generally afforded

the persons subject to them. The distinction between civil

and criminal in many of these cases, however, is more

apparent than real. Commitment to an institution on the

ground of mental or physical condition is a deprivation of

liberty and has many of the characteristics of penal sanc-

tions: confinement (often under harsh conditions), isola-

tion from family and friends, inability to earn a living,

persisting social stigma, and sometimes loss of civil and

professional rights. Like criminal prosecution, it is often

the result of an alleged offense against the law or mores

of the community. Procedural safeguards in these cases

should not depend on mechanical application of a dichot-

omy between civil and criminal procedures.

The role of the court in commitment and related pro-

cedures should be clearly understood as including respon-

sibility for determining the legal and factual issues that

may be presented. The court should not simply ratify rec-

ommendations of medical examiners on the assumption

that the question is one of medical diagnosis. Statutory

definitions of the classes of persons subject to these pro-

ceedings do not necessarily correspond to any generally

accepted medical diagnostic category. Moreover, psychi-

atric diagnosis by one diagnostician may differ greatly

from that by another who is equally well qualified, and

may sometimes be influenced by irrelevant or insubstan-

tial therapeutic, social, or institutional considerations.

The lack of precise criteria for determining the potential

dangerousness of an individual should be taken into ac-

count, as should the tendency of medical witnesses to over-

predict dangerous behavior. The medical expert must

provide the court with the medical facts and medical opin-

ions essential to a decision, including diagnosis, prognosis,

suitability of proposed treatment, prospect of improvement

under possible alternative dispositions, and the like. How-

ever, the ultimate decision is not essentially a medical one

and involves a substantial element of legal discretion. The

special problems encountered in these cases make it desir-

able that judges have been prepared by experience or

training for their role. [Reference omitted.]

Notice and an opportunity to be heard should be pro-

vided even though the person subject to the proceeding

appears to be mentally incapable of acting upon them.

Notice may be delivered by a social worker or other

trained person acting on behalf of the court who can

explain its meaning and offer assistance in obtaining coun-

sel and making preparations for the hearing. Notice of

the hearing should also be given to relatives or friends

who may assist the respondent or act in his behalf. No-

tice should be given sufficiently in advance of scheduled

court proceedings to afford a reasonable opportunity for

preparation, and should inform the person with particu-

larity of the basis for his detention, his right to counsel

and to trial by jury (where available) and the standard

upon which he may be detained.

The person who is subject to commitment should be per-

sonally present, except where the court finds that he is

incapable of attending the hearing or that attending the

hearing would worsen his condition or might incite him

to injure someone else as a result of hearing the testi-

mony. He should in any event be represented by counsel.

See Section 2.20.

Where the respondent is in such a condition that he

cannot be present at the hearing, a conference with the

judge may allow him to state his case without being re-

quired to be present at the formal hearing, but such a

conference should not take the place of an evidentiary

hearing. Disposition should be made only upon a hearing

at which medical and other witnesses are present and cub-

ject to cross-examination by counsel and questioning by

the court unless the parties agree to presentation on the

basis of written documents. Hearings should be on a

2 record and decisions based on written findings of

acts.

Hearings under sex-psychopath and similar quasi-crim-

inal statutes should provide all the procedural safeguards

of a criminal trial. In cases where determination of men-

tal condition is related to criminal proceedings, a separate

hearing should be held on mental condition, with adequate

notice to the defendant of the questions at issue and the

possible consequences of the determination.

The usefulness of medical reports and testimony can

often be greatly improved if the court advises examiners

and witnesses in advance of the kinds of information it

requires for an informed decision. This can be done

through examination forms stating the legal questions be-

fore the court (for example, whether the individual is

competent to stand trial), and indicating the facts re-

quired for a finding on the question at issue (for example,

whether he could cooperate with counsel in his own de-

fense). Examiners should be required to state the nature

and extent of their examination and the grounds on which

they base their findings and conclusions.

Counsel for the respondent should be afforded sufficient

time and resources to consult with his client, secure inde-

pendent professional examination if desired, and inform

himself about possible alternatives to commitment. Special

training for counsel in mental illness cases can be helpful

in improving the quality of representation.

In reaching a disposition, courts should consider all

reasonable alternatives such as voluntary hospitalization

and treatment in the community without full-time hospi-

talization. Dispositions should provide for the minimum

amount of restraint consistent with accomplishing the

purposes of the law.

Commitments should be limited to a relatively short

period, at the end of which the necessity of further com-

mitment should be judicially determined. Periodic review

of the status of committed persons should be initiated by

the court unless a public guardian or defender agency can

assume responsibility for doing so. The review should in-

volve notice and formal hearing, with the respondent rep-

resented by counsel and medical witnesses subject to cross-

examination as in the original commitment proceeding. All

reasonable alternatives to commitment should again be

considered, and a realistic assessment made of the likeli-

hood of accomplishing further therapeutic objectives by

commitment.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.