Appendix — Secretary of Public Welfare of Pa. v. Institutionalized Juveniles
Supreme Court brief1979
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VOLUME II—Pages 435a-86% MiChar, RODAK, JR., CLERK
APPENDIX
in the Supreme Court of the
Ynjted States
October Term, 1978
No. 77-1715
SECRETARY OF PUBLIC WELFARE, Common-
wealth of Pennsylvania, ALDO COLAUTTI;
JOHN FONG, Director of Haverford State Hospi-
tal; NICHOLAS D’ALUISIO, Director of Polk
State School and Hospital; C. DUANE YOUNG-
BERG, Director of Pennhurst State School and
Hospital, sued as representative of all others
similarly situated,
Appellants
Vv
INSTITUTIONALIZED JUVENILES in Pennsyl-
vania Institutions for the mentally ill and mentally
retarded, namely, KEVIN S.; RICHARD S.;
JAMES PAUL M.; EDWARD B.; RAYMOND C-.;
WILLIAM B.; FRANCIS B.; MARIA L.; THOM-
AS W.; NANCY LOUISE D.; GINA S.; and
GEORGE S§., by their next friend and guardian ad
litem, David Ferleger, individually and on behalf
of all others similarly situated,
Appellees
Appeal From the Judgment of the United States
District Court for the Eastern District of
Pennsylvania
—————————————————
APPEAL DOCKETED MAY 31, 1978
JURISDICTION NOTED JUNE 19, 1978
TABLE OF CONTENTS
PAGE
Volume I
Relevant Docket Entries ..................... la
Complaint—November 16, 1972 .............. 8a
Er 24a
First Set of Interrogatories to Defendants ....... 25a
en ce seccevccecs 29a
Order Dated April 25, 1973 .................. 3la
Motion for Sealing of Affidavits and Protection of
eS EE on db ipcens 32a
ED EE Oe PE 34a
Pre-Trial Oral Examination of Dr. Barbara Arm-
strong:
Direct Examirfition ................. 42a
Cross-Examination .................. 108a
Redirect Examination ............... i21la
Recross-Examination ................ 130a
Exhibit A—Class Action Suit ............. 133a
Exhibit B—Individual Patient Summaries ... 135a
Exhibit C—Individual Patients Summaries ... 166a
Hearing, May 10, 1973 ................0205.. 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 .................. 232a
Order Dated April 29, 1974 .................. 269a
a ear OF Se ee 271a
Final Pre-Hearing Order .................... 274a
Summaries of Selected Patients ............... 317a
Pre-Trial Oral Examination of Dr. Max Sugar:
ER Liv uWeweceead 365a
eee 383a
Redirect Examination ............... 432a
Volume II
Redirect Examination (cont’d.) .............. 435a
Recross-Examination ................ 442a
Deposition of Dr. Joel S. Feiner, M.D.:
Se I oe CN ce a cw etees 465a
Cross-Examination .................. 484a
Order Dated August 21, 1974 ................ 521a
The Evidence:
Evidentiary Hearing, First Day ............ 525a
PLANTIFFS’ EVIDENCE:
Dr. Henry O. Kandler:
Direct Examination .....i........... 537a
Cross-Examination ................¢. 540a
EE ee 541a
ee ee 548a
Redirect Examination ............... 580a
Recross-Examination ................ 581la
Examined by the Court .............. 582a
ii
Dr. Michael A. Ingall:
re 6 Sb ost et ceceeewe 586a
EDs ons wedblecks eebs 597a
Dr. Eli Charles Messinger:
Direct Examination .......,.......--- 614a
Cs ata ew edccedee’s 633a
Examined by the Court .............. 636a
DEFENDANTS’ EVIDENCE:
Dr. Levon Donald Tashjian:
rr ee. . wos poedic oe ems 643a
eg. et cca eee se 659a
Evidentiary Hearing, Second Day:
DEFENDANTS’ EVIDENCE:
Dr. Levon Donald Tashiian:
rr ds. . . eeene et ene 662a
Redirect Examination ............... 671a
Examined by the Court .............. 672a
Dr. Derek Harry Miller:
Direct Examination ................. 673a
eee reeéhen se 704a
Dr. James F. Masterson:
Direct Examination ................. 717a
ID gc wc cc ccccececees 729a
Redirect Examination ............... 740a
Evidentiary Hearing, Third Day ............-.. 743a
Defendants’ Exhibit No. 1—Questionnaire ...... 772a
Defendants’ Exhibit No. 4#—Admission Note of D.D. 774a
Defendants’ Exhibit No. 5—Admission Note of
DT: oscecbntecoddh onwadban tie tees - 780a
re rer teers oe.
Opinion of the United States District Court for the
Eastern District of Pennsylvania .......... 783a
Onder, july 24, 1975 ..... se decne ey Oe 813a
Dissenting Opinion, District Court ............ 8144
Court’s Proposed Order—September 16, 1975 .... 824a
Defendants’ Exceptions to Court’s Proposed
-Order—October 17, 1975...............4.. 833a
Final Order—November 17, 1975 ............. 843a
Notice of Appeal to the Supreme Court of the
SE Sc ce bundede sede esaselee san 853a
Reeceetias Gee OTM .n oo coc cecccsesceneses 856a
Western Union Telegram ...................- 864a
cape aneen bbadtad 865a
Volume IT!
ets: Datiies . 06.200 0deeKaens ds < kid ts oo 867a
Amended and Supplemental Complainti—November
MOU: .cskdceeeens <ul hed tedeonnbed 875a
EE Widnns bhedas 4b bnek bake eb ckdene eee 916a
Dees Hae Gate RGGN neck nccien ert ivncress 926a
Plaintiffs’ Interrogatories to Defendants ........ 930a
Defendants’ Answer to Plaintiffs’ Interrogatories .. 932a
Defendants’ Supplemental Answer to Plaintiffs’ In-
CI Ws EO eG hind ohn danse icgeej ess 936a
Response to Motion For Class Action .......... 941la
I Or IES ccccesseeteecvesessses 943a
Order—-Findings of Fact and Conclusions of Law
vee. PEs PELE E EC Eee .. 955a
Memorandum and Order—Defendant Class—
TE MEP os Gh. 6 Gs Ce becbeucbecese ea 956a
iv
Plaintiffs’ Offer of Proof and Request For Evi-
I i dee c ands 6 tbh eons 960a
Defendants’ Supplemental Memorandum and Af-
SE bb veuekd 4G ccdhWesiknese<suans 962a
Deposition of Linda L. Glenn—April 13, 1978 ... 972a
Opinion and Order—May 25, 1978 ........... 105la
SD SS Sais 66s eS SNS deeds cdeved 1101a
Vv
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 reasoris 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 | 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, whai
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 afitr 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-
velopmeat and growth where an adult could make his own
admissioa 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
are suffering emotional problems, and based upon how
doh 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:
4 Q. I see you are holding the entire Mental Health
ct.
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.
A. Whatever these are.
Q. If you could either—
A. I don’t know what you call these.
Q. Well, i can’t see what you are talking about.
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
interrogatorics 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 2! to 18.
MR. FERLEGER: Which was attached to an
exhibit, | believe, Exhibit A.
MR. ROTH: Toa Memorandum of Law which
was also revicwed 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 sec 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 I 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? f
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
I 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 js, 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 reasc..—
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 practicc—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, I treat my patients in
Dr. Max Sugar—Recross 45la
the office. If they are manageable for treatment, I 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
igcludes 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 eccur 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
im the hospital. He is in an institution where some con-
gpols ave offered and treatment is going on. He is in a
sefeguarded 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 in 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.
©. How long after institutionalization would they
typically begin?
A. Iam 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 thet.
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. I 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 I 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 @ 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 403
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. I
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. Idon’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 law to act in loco parentis.
(110) Q. And beyond that it was also your testi-
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. | have (111) said it at least six times
today.
BY MR. FERLEGER:
Q. And at six different ways.
A. No, [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 nefuse 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. 1 am 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 docs 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 applics 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. Ilam—
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 necds a certain procedure done, and where
jt is not a question of life or death, it is true, isn’t it, that
the paren.; 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 child 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 46la
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 taiking 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 detai! 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
I 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:
464a 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 2!, 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 | went to college at Yale University, I re-
ceived my M.D. at Albert Einstein College of Medicine.
In 1964 | 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
4664 Dr. Joel S. Feiner—Direct
of Mental Health. I understand that I 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
Me non-supportive nature of a particular environment, the
igability 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 relationship 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 night 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 traditional 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 113.
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 I 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 gocs 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, | 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 anxicty in different ways. The
child’s anxiety may be expressed drematically, 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 ofterfQvery likely that
under circumstances of stress, families Wall 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. feel 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. Ihave 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. Joel 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. It 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. Feiner, 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, to 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. Joel S. Feiner—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 fac: 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 permanent and
environmental issues that I 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 ate
by now tried and true situations.
I will refer to one of them which is a study called
“The Treatment of Families in Crisis.” Im the results re-
ported in this book, which is by Drs. Donald Langsley and
David Kaplan, 75 patients who would rormaly 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 oftcn 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 sce what resources are available.” This
orked initially in 75 out of 75 and then over 6 months
y 17 percent of those 75 had to be hospitalized.
Q. Now, is this an accepted alternative, then, with-
put 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 imstitution, 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—i
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 .nean something else. Now, do you fee! 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 im this sttuation,
Dr. Joel S. Feiner—Dirett 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, I 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, | 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 herc, 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
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 peychiatric train-
ing in 1968.
Q. And you finished your residency im 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 im 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-
pial.
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—
ee
486a Dr. Joel S. Feiner—Cross
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. I am the Director of a Satellite Clinic, and re-
ene as well for all the child psychiatry that goes on
there. 7
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 ic 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 yeu 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
i uk ee ae
se
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 I
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.
a ~*~.
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: I 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, cither 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 10 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 ihere is a judicial
3
|
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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. I 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. | 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 insiances?
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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 people 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 refuctant 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 I 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. I
haven’t worked in Pennsylvania.
BY MR. ROTH:
Q. Okay. With regard to the procedural safeguards,
if you will that L.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.
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496a 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. 1 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 ar
institution?
MR. FERLEGER: I think the regulations speak
(43) for themselves. If Dr. Feiner wants, he car
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—€ross 497a
THE WITNESS: I do nat understggd—it does
not indicate the patient flow, if you will. & have sim-
ply been made awake that theg [are] # numigr of
juveniles who end up in a hoagital still against their
will regardless of what is presemted.
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, | would say in general that if I am asked
about—I mean if you want to ask me some specifics about
some specific (44) cases, I would be happy to comment
on them. I think I actually am, in testifying in regard to
the invobuntary 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. I did not say incorrectly.
Q. Inappropriately?
A. I said “Against their will.”
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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 | am con-
cerned, treatment begins the very first time that the pe-
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. 1 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-
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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 wil! 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 fourd some mies away from where
he lived. This was am 8 year ol@ child and taking the
history of the family situation, ® was diseavered that
this child was in fact not the child of this father, but
the child of another father whe ran away from the
family. This was a secret which the family (49) had
a tacit understanding of keepiamg. Nobody was al-
lowed to talk about it, but everyeody knew it, includ-
ing the child, because he was 3 years old and other
relatives had supported his sengs of what was going
on. The fact that the family couldn’t talk about it
meant the child had to act it owt, which he did and
this was his way of dealing with an issue that was
not allowed to be talked about im the famély, but had
to be acted out in terms of thie child beimg 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 comapli-
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
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502a Dr. Joel S. Feiner—Cross i
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. |
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? Dvcves 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 pey-
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 statwees and laws are be-
coming attacked as unconstitutional, why aren’t ether states
utilizing judicial procedures prior to admission of juve-
niles by parents, if this is so recent or if it has been going
om for ten years?
A. What I am suggesting is that what is going on
fr 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 Pennevl-
venia. 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 instigu-
tion and the director, then, according to the laws as you
have read them in Pennsylvania has another independant
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 treatmen: 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 —
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
. © interpose this procedure before the child is admitted
seems that it’ will afford more alternatives in case the
child’s position is upheld. It will decrease the amount of
alienation, and those 48 hours are more in which the child
hes 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
fn his request, it is not inevitable that they are going to
agree—I would assume that all of the recommendations
@e 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
wntil after institutionalization and that isn’t necessarily
ap?
A. I don’t understand that.
Q. In other words when a person is being evaluated,
either in New York—lI’m sure through your ceunty health
mental retardation units or in Pennsylvania, | woubd as-
sume that psychiatrists, when they see that the problem
exists are going to establish procedures to he@p the puve-
wile—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 aii 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
Pennsy]lvania.
Dr. Joel $8. 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 necessari#y the case, and | am
saying if in fact a person does receive treatmest, compinu-
Ous treatment, arcn’t those needs of the persom met?
A. Mr. Roth, I’d Kike to correct a miscenception |
think you are implying, that is a person does not receive
treatmem, 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 camnot
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-
DRE 6 POR Br
yelling and I am sorry you are so sensitive that you
can’t listen.
THE WITNESS: I am 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—
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 thet there are differences
508a Dr. Joel S. Feiner—Cross Dr. Joel 8. Feiner—Cross 5098
mitted suicide because they weren’t able to get into the MR. FERLEGER: Your questions are becom- 4
institution right (58) away? ing a bit redundant and far afield from the case. Dr. "4
A. Weil, I— Feiner has to leave in about two minutes in order to zs
; J, make a train, and if you have any relevant questions a
MR. FERLEGER: I don't see how that is rele- to ask, I wish you’d ask them now so that the deposi- a
vant. That procedure is for children. When we have ; gh
ener af vampires tion can be concluded. a
judicial proceedings in Pennsylvania for adults, and a
if Mr. Roth is suggesting that adults be treated as MR. ROTH: Mr. Ferleger, with all due respect, 4
children in Pennsylvania, that question is irrelevant. I have many more questions to ask of Dr. Feiner. 4
MR. ROTH: Notwithstanding Mr. Ferleger’s With regard to that, the Notice of Deposition 4
gratuitous remarks— says ‘‘Is expected to be completed within two hours.” 5
THE WITNESS: I would like to add. if you Subsequent to that time, we had correspondence with 5
are hypothesizing an emergency situation, that isn’t oe oe staff indicating that we a = additional ‘
the statute under question. time, and there was no objection to thy. "i
MR. ROTH: I am not asking you about this MR. FERLEGER: If we need additional time i:
statute under question, I am asking you in your pro- for relevant questions, I have no problem with that. %
fessional opinion, or in your knowledge, have you MR. ROTH: Well, I think the Court can very =
ever heard of situations where a person perhaps died well determine what questions are relevant and ir- 2
with their rights on? selouant *%
. “34
a See Could you lower your voice, MR. FERLEGER: You are asking irrelevant -
Mr. Roth? You are yelling. questions. They don’t seem to me to be appropriated =
MR. ROTH: Mr. Ferleger, I am sorry, I am not if we can’t conclude by the time that Dr. Feiner has E
between juveniles and adults in terms of their self-aware-
MR. ROTH: Mr. Ferleger, I would li .
Om, 1 wouts Hike to com ness regarding use of institutions, of they needed to?
tinue with the examination.
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 institutious,
and I suggested—
Q. In regards to their awareness, I am sorry?
A. In regards to their awareness, [ think they are
individualized, and I wouldn’t be repared 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.
©. 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 releasé 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 41 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 vear 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
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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. I am 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 npt 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. I 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 S. Feiner—Cross 513a
A. Yes.
Q. And how did that occur?
A. That occurred by my following the procedures
that were available to me at that time and operating under
the guide lines which the institution functioned. I have
since been able to participate in changing that situation
to make it more flexible, and to decrease the possibility
of a child being admitted under those cizcumstances.
Q. Do you admit many children to instrutions?
A. No. I have not admitted a child to an institution
personally in some time.
Q. Are you opposed to institutions?
A. Absolutely not. Absolutely not. I am not talking
against admitting children to institutions, I think they serve
useful ‘unctions, serve a useful function when used ap-
peopriately. I will mention another alternative which is
being used as well, and that is day treatment centers where
children spend their days in a community setting living at
' (65) Just to add another alternative to the family of
peychiatrists.
Q. When a juvenile comes to your facility, how long
— occurs in terms of making a recommendation of
her or not the juvenile needs an alternative type of
care?
A. What procedure usually occurs?
MR. FERLEGER: That has already been tes-
tified to, Mr. Roth.
THE WITNESS: It has been testified to.
We will gather as much information as we can,
and as many contexts as we caa involving as many
people who can provide information and opinions.
514a Dr. Joel S. Feiner—Cross
BY MR. ROTH:
Q. In the clinic where you work, how many psy-
chiatrists are therc and how many patients come in daily?
MR. FERLEGER: Objection, Mr. Roth. Dr.
Feiner has to leave in—as a matter of fact right now
for a train. If you have relevant questions, I wish
you'd ask them quickly so we can conclude the depo-
sition today rather than continuing it. If you want
to submit Interrogatories, if you have any relevant
questions left, that is fine, but the number of patients
at his institution is irrelevant.
BY MR. ROTH:
(66) Q. How many patients come into your facility
daily?
A. Maybe 50. I—you know, I really have to leave.
I have an important and professional commitment in New
York.
Q. Dr. Feiner, I have still several questions.
Do you often testify?
A. No, not often at all.
Q. How many times have you testified in the pest
year?
A. None.
Q. In the past 3 years?
A. Once or twice.
Q. Are you being compensated for your testimony?
A. No, I am not.
Q. In your opinion, if a methodology of treatment
occurred once the juvenile was seen by whomever in terms
of psychiatric evaluation, if a treatment plan were estab-
lished at that point, and if there were any alteration of
that treatment plan in terms of either having the patient
be seen at a facility many times a week or having the pe-
Dr. Joel S. Feiner—Cross 515a
tient institutionalized or anything of that sort, do you think
at that point a judicial hearing should occur?
A. I think a judicial hearing should be available to
a person at any time they chose to request it, and I think
that it is the mental health person’s legitimate responsi-
bility (67) to explore that request, but when—lI don’t
think he can do more than explore it, and under its mean-
ing and the reason for it occurring at that particular point.
Q. What would happen if—if you started a treat-
ment program for a juvenile and the juvenile objected to
that treatment program, do you think a hearing should be
afforded at that time and that the treatment program should
stop?
A. No. I think the juvenile would—I would try to
persuade, I’d try to prescribe, and if the juvenile then chose
not to participate in treatment, despite all of the technical
maneuvers available to me, I would not be able to treat
that person, nor would I want to coerce them into treat-
ment, because I would think that I would lose them for
the possibility of treatment forever.
There are often occasions where juveniles will want
a taste treatment, a little bit to see what it is like when they
are brought there—they want to see who is this doctor,
what is it all about, and then they will leave, because they
want to come in on their own, and I have segn this hap-
pen a number of times where a juvenile has terminated
treatment orally; they have said “Fine.” They have gone
out, they have done what they have had to do and they
have come back on their own and treatment has really be-
gun at that pomt.
(68) Q. But the question still. remains, you feel if
a juvenile objects to any point and wants a jadicial hear-
ing, that a judicial hearing should ooeur; is that correet?
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516a Dr. Joel S. Feiner—Cross
A. Are you talking about a juvenile in a hospital?
Q. No, I am talking about when you establish a
plan, if the juvenile doesn’t want to participate in the
plan—
A. Oh, if I am an outpatient therapist for this ju-
venile, I regard that completely as a voluntary contract.
We use the term “contract” not in your terms, but we have
established very early an understanding between us that
this is completely voluntary; that it is completely confi-
dential and at any time either one of us feels that things
aren’t working out and I reserve that right myself, to say
that this is a situation that I don’t think I can deal with,
I reserve—we each reserve the right to terminate that re-
lationship.
Q. But with regard to the question itself, if, in the
best interests, in your professional opinion as a psychiatrist
you feel that the juvenile should be treated, either on an
outpatient basis or any other basis and the juvenile objects
at that time, you feel that a heartng should be afforded the
juvenile?
MR. FERLEGER: He testified—
MR. ROTH: He didn’t answer the question.
(69) MR. FERLEGER: —that that implies the
institutionalization, not outpatient treatment.
THE WITNESS: I have never heard of a sites
tion—
MR. ROTH: I am aot asking you what you
have heard, I am asking you your professional optn-
ion, Doctor.
MR. FERLEGER: Well, an opinion about
something that doesn’t happen is sort of useless.
Dr. Joel S. Feiner—Cross 517a
THE WITNESS: I would have serious feelings
that if a court determined the juvenile had to stay in
treatment that anything useful could be accomplished
under those circumstances.
BY MR. ROTH:
Q. Well, don’t you feel that juveniles could be nega-
tive to admissions anywhere to institutions or day care pro-
grams but nonetheless be still co-operative in the treat-
ment program itself?
A. Well, maybe. Maybe. Maybe a certain percent-
age are, but not certainly not a hundred percent.
Q. Do you find that juvenilese—just by the mere
chronological age are recalcitrant and as a resu&t object to
agy type of methodology?
: A. Oh, no, I find that recalcitrant is part of the pro-
gram (70) and part of the give and take that people deal
with kids have to learn to understand.
Q. Yes, but as that being part of the charm, isn’t
that part of the effect of objecting to anything?
A. It is not for me to coerce. I am a service em-
ployer::.! am a therapist.
Q:.. Based on your experience, don’t you find that
juveniles generally object to confinement of any sort?
MR. FERLEGER: Most adults, I know object
to confinement of any sort.
MR. ROTH: I am sorry, I am asking the ques-
tion to Dr. Feiner.
; “THE WITNESS: That is the kind of idea I was
trying to phrase. I think that we have @ue process
situations, because most human beings o€$ect to con-
finement. If you will excuse nm, I really have te go.
518a Dr. Joel S. Feiner—Cross
MR. ROTH: Well, I still have many questions.
MR. FERLEGER: How many questions?
MR. ROTH: Several.
MR. FERLEGER: Three?
MR. ROTH: Several.
MR. FERLEGER: Is several three or twenty?
MR. ROTH: It would also depend upon (71)
Dr. Feiner’s responses.
MR. FERLEGER: Well, at this point do you
have three or twenty?
MR. ROTH: I have several.
MR. FERLEGER: Well then, we will have to
conclude the deposition.
Would you like to continue the deposition to
another date?
MR. ROTH: I would like to finish.
MR. FERLEGER: Or one mare minete or @,
if you have several we can get them done.
MR. ROTH: Mr. Ferleger, it t a shame that
when you sent out the notice you seld it was going
to be at least two hours, and then in contact with
your own staff members, if asked if we could go be-
yond that because we knew we would need time, we
were assured of that.
MR. FERLEGER: At that point, we didn’t
know that Dr. Feiner ha@ another commitment at
5:00, and we heave, of course the same problem thet
Dr. Joel S. Feiner—Cross 519a
we had when you wanted the deposition of Dr. Sugar
restricted, because he had to go give a speech and I
cooperated at that point, and we finished the deposi-
tion in time for him to make the speech.
MR. ROTH: Oh, Mr. Ferleger, you showed up
(72) 45 minutes late. How cam you say you coop-
erated?
Dr. Feiner, let me ask you this, now, you have
‘testified on direct examination that you think con-
finement to a general hospital is different, for example
you brought up the illustration about someone who
is affected with tuberculosis would be different than
a mental illness, if you will. Why don’t you think a
hearing, prior to admission of a general hospital
should occur? 3
- THE WITNESS: As far as I know, I meen I
can’t be specific about the law, but I think that there
are probably Jehovah’s Witnesses who do avail them-
selves of those opportunities.
BY MR. ROTH:
Q. Well, I am asking you, though, in epnfinement
of any person to an institution, be it a general hospital or
a state institution, don’t you think—gou know—for ¢ ju-
venile that a due process hearing should occur?
A. Iam looking—
Q. Go ahead.
A. I think that there is some substantial differences
between a physical illness and emotional! difficulties.
Q. Don’t you think parents, as you testified could
misutilize a situation and put their juvenile, their child in-
to a general (73) hospital?
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520a Dr. Joel S. Feiner—Cross
A. Oh, sure, sure, and may be there should be due
process.
MR. FERLEGER: Do you have further ques-
tions, Mr. Roth?
MR. ROTH: Yes.
MR. FERLEGER: Okay, the deposition will be
continued to a date that I will notify you of, Mr.
Roth.
Thank you, Dr. Feiner.
MR. ROTH: You can show on the record that
I object to the continuation of the deposition on the
basis that I was assured that I would be able to fully
cross-examine the witness. I have not completed my
cross-examination of the witness; that I was told the
deposition would occur for at least two hours and
more, and in subsequent conversation with Mr. Fer-
leger’s staff and confirmation in writing of the
same—
MR. FERLEGER: We have no problem with
the deposition being finished, so that Mr. Roth will
be able to finish his questions, and that is the very
reason why we have continued the deposition, so that
all parties can have the benefit of Dr. Feiner’s tesei-
mony.
MR. ROTH: Well, } question the whole depo-
sition in terms of Mr. Ferleger’s misleading an unfair
and inappropriate statements Perey: the length of
the deposition.
(74) (Whereupon at 3:18 the deposition wes
adjourned.)
Order Dated August 21, 1974 521a
File L
IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action Number 72-2272
Kevin Bartley, ct al.,
Plaintiffs
v.
Haverford State Hospital, et al.,
Defendants
ORDER
AND NOW, this 21st day of August, 1974, after
consideration of the parties’ proposed Final Pre-Hearing
Order and after a conference in chambers on July 30, 1974
regarding said order, it is hereby ORDERED:
1. Final hearing and argument herein shall take
place on September 9, 1974 beginning at 10:00 A.M. in a
courtroom to be designated, and on September 11 from
9:30 A.M. to 1 P.M.
2. Pre-trial briefs are not required. Any briefs
which the partics may wish to submit must be filed on or
before September 3, 1974.
3. The partics’ Final Pre-Hearing Order, filed in-
cluding their stipulation of facts and other matters, is
522a Order Dated August 21, 1974
fully approved and adopted by the Court together with
the following amendments and additions. References are
to the pages and paragraphs of said order.
a. Defendants shall be permitted to call as
witnesses Dr. Derck Miller of the University of
Michigan and Dr. James Masterson of the Cornell
Hospital in New York.
b. The “Discharge and Readmission Data”
(Page 10, Par. 3) shall not be admitted.
c. The question of monetary liability of De-
fendants shall be bricfed if and when it becomes an
issuc herein (Page 10, Par. 4).
d. Paragraphs 1 through 8 at pages 14 through
18 are admitted and included in the factual stipula-
tion. Defendants shall be permitted to comment on
and to make a statement on these facts. Defendants
may prepare an exhibit by September 2, to be ap-
proved for accuracy and completeness by Plaintiffs,
regarding the admission of the following patients’
cases listed on pages 14 and 15 (noted here by
institutional number) :
Pennhurst #402
Polk 413,173
Polk 413,077
Western #281
Western #288
Polk # 13,212
Western +144
Western #15
Westcrn #67
Western #131
Order Dated August 21, 1974 523a
In their review of patient records for the purpose of
preparing this exhibit, the parties shall protect the
confidentiality of the patients’ records.
e. The Plaintiffs’ witnesses are as indicated at
page 19 of the aforesaid order. The Defendants’
witnesses are:
Dr. Derck Miller
University of Michigan
Ann Arbor 48104
Levon Tashians, M.D.
Institute of Pennsylvania Hospital!
111 North 49th Strect
Philadelphia, Pa. 19139
Barbarba Armstrong, M.D.
Haverford State Hospital
3500 Darby Road
Haverford, Pa. 19041
Dr. James Masterson
60 Sutton Place South
New York, N.Y.
James Gibbs, M.D.
Director of Child and Adolescent Psychiatry
Sheppard-Pratt Hospital
Baltimore, Md. 21215
Both partics agree not to contact the witnesses with-
out approval and presence of ypposing counsel.
f. Plaintiffs’ Exhibits 2 and 3 may be offered
at the hearing (page 21) and the Court will determine
their admissibility and weight.
ier
cre aes
7.
43
524a Order Dated August 21, 1974 Appearances 525a
g. Plaintiffs may take the deposition of Dr.
Joel Finer in Philadelphia, Pa. which deposition may
be admitted as a trial deposition. IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
h. Plaintiffs shall submit three copies of Dr.
Barbara Armstrong’s deposition to the Court with
those portions to be admitted underlined in red. All Civil Action No. 72-2272
portions on which the parties disagree shall be
admitted.
i. The deposition of Dr. Max Sugar may be [Title omitted in printing. ]
admitted as a trial deposition.
j. The submitting parties shall give the other EVIDENTIARY HEARING
parties notice of the contents of their summaries as
early as possible.
By the Court: First Day
" ae iy aston be Philadelphia, Pa., September 9, 1974
Dated: 8/21/74 (10:00 a.m.)
Before:
Hon. Iohn J. Gibbons, C. J.
Hon. Daniel H. Huyett, 3rd, J.
Hon. Raymond J. Broderick, J.
Present:
David Ferleger, Esq., Attorney for Plaintiffs, Mentai |
Patient Civil Libertics Project, Philadelphia, Pa. 19107. 4
Barry Roth, Esq., Assistant Attorney General, Darius i
G. C. Moss, Esq., Assistant Attorney General, Attorneys |
for Defendants, Office of Legal Counsel, Department of
Public Welfare, Harrisburg, Pa. 17120.
526a Colloquy
(2) (All Counsel and parties being present, the fol-
lowing transpired in open court.)
JUDGE GIBBONS: Mr. Roth, the first item of busi-
ness I suppose is your motion to dismiss, and I should ad-
vise you we have concluded we will take that under ad-
visement and you should proceed with the testimony.
MR. ROTH: Thank you.
MR. FERLEGER: Just for the record, your Honor,
I think you have forgotten that I think that was already
taken care of in a previous order.
JUDGE GIBBONS: _I think it may have been, but I
see it is listed.
MR. FERLEGER: I wasn’t aware of that.
JUDGE HUYETT: How did we take care of it in
the previous order?
MR. FERLEGER: In your April 29th order after
our meeting, you asked me to draft the order which
allowed the case to be maintained as a Class Action,
dropped Haverford Hospital as a Defendant, appointed
myself as guardian and denied the motion to dismiss.
JUDGE GIBBONS: Well, it is listed this morning.
Whether that is a renewal or otherwise, we will take it
under advisement.
Mr. Ferleger, do you have a witness?
(3) MR. FERLEGER: Yes, your Honor.
This morning we have three witnesses to present to
the Court, all expert psychiatrists.
The first is Dr. Henry Kandlcr. He will testify re-
garding his expcricnces as a psychiatrist and working with
lawyers.
|
Colloquy 527a
Our other two witnesses will follow.
To save time, rather than making any statement, I'd
like to call Dr. Henry Kandler to the stand.
MR. ROTH: Your Honor, if I may, I would like to
make some specific requests of this Court and I’d like to
do that now if that would be appropriate with regard to—
JUDGE GIBBONS: We cannot tell whether it
would be, until we hear the requests.
MR. ROTH: May I be given the opportunity to pre-
sent them now?
JUDGE GIBBONS: Yes.
MR. ROTH: Thank you, your Honor.
| appropriate this time, your Honor, to present sev-
eral matters before your Court.
The first being through an oversight, | was under the
impression that I had submitted the admission notes of
Alan Moss and Donn Dickel. The opposing counsel (4)
had submitted affidavits by these two youngsters who are
at the Haverford State Hospital and I had spoken to Judge
Huyett through his law clerk, Mr. John Langel indicating
I would like to introduce into the record the admission
notes of those two juveniles.
I am prepared to have Dr. Kratsa, who was the ad-
mitting psychiatrist, testify to these admission notes.
I am also prepared to have affidavits submitted by
him which I have now. I sent a letter to your Honorable
Court on September 3rd, indicating the admission notes of
these two youngsicrs.
I know this has not yet been introduced into evidence
by opposing counsel. However, | would like to reserve
=H
528a Colloquy
that right to introduce these notes in order to further elu-
cidate the position by the Defendants in this case.
JUDGE GIBBONS: Do you have any objection?
MR. FERLEGER: Yes, I do, your Honor.
These affidavits of the Plaintiffs were filed on April
25, 1973, under an order—special order protecting the
confidentiality and the rights of the affiants.
Mr. Roth, not only knew about it since 1973, but
never mentioned any desire to submit any (5) counter
affidavits, cither in the pretrial order negotiations or in
our meetings with Judge Huyett. I think that once the
final prehearing order has been entered that it is improper
to suddenly on the day of trial or week before it, to decide
that you want to submit counter affidavits.
JUDGE GIBBONS: Do you have any substantive
objection?
MR FERLEGER: No. I am sure that the copies of
the admission notes that Mr. Roth has are accurate copies.
JUDGE GIBBONS: You may do that and you can
have them marked with the clerk and sometime before it
is necessary to make reference to them.
MR. ROTH: Fine. I shall admit them now.
We will not be making reference to them in the hear-
ing, your Honor.
JUDGE GIBBONS: We won't take the time. But
I charge you with the responsibility of getting them ap-
propriately marked in evidence before it is necessary to
make reference to them.
MR. ROTH: Thank you. ’
Colloquy 529a
1 do have several other matters and again, I appre-
ciate your indulgence.
With regard to our regulations which were (6) pro-
mulgated and adopted back in September, 1973, we had
a hearing in April and I bad indicated to the Court at that
time how those regulations were being affectuated [sic]
and in particular, I indicated a compilation of statistics
compiled by Mr. Ralph Phelps of the Office of Mental
Health in order to show the Court what was happening
in each instance where juveniles objected to subsequent
admission.
At that time it was my impression it had been intro-
duced into the record and in order to insure that, | would
prefer to introduce that also before your Honor. Again,
I had alerted this situation to his Honor Judge Huyett
through Mr. Langel last week and I am prepared to have
Mr. Phelps come down from Harrisburg in order to tes-
tify to his compilation of these statistics.
JUDGE GIBBONS: Mr. Ferleger?
MR. FERLEGER: Your Honor, with reference to
that, that was discussed as Mr. Roth indicates and I noted
at that time that I had two clients who had objected to
institutionalization who weren’t listed on that summary
sO it was clear to me that factually that summary was in-
correct with regard to at least two of my clients and I
imagine with regard to other people across the state.
It purported to be a summary of all cases across the
state in which these new regulations had been (7) involved
and I don’t see how, especially with non-state hospitals
and | know for a fact that two cases are not listed on there,
| don’t see how this can be introduced into evidence at
530a Colloquy
all and I really don’t see the relevance of it to this Court’s
proceedings.
MR. ROTH: Your Honors, if | may?
JUDGE GIBBONS: 1 think he would be entitled to
cross-examine. The summary could go in if you had a
witness here that he could cross-examine. I don’t think
it could, otherwise.
MR. ROTH: With regard to Mr. Ferleger’s com-
ment, the number of objections had not been listed by in-
dividual name. It just had been listed as to the number
of objections and how the institutions handled those ob-
jections at the time.
JUDGE GIBBONS: I think you had better produce
the witness and lay the groundwork for the introduction
of the summary, so that Mr. Ferleger can cross-examine
and object.
JUDGE BRODERICK: May I suggest something?
JUDGE GIBBONS: Yes.
JUDGE BRODERICK: May I suggest if the sum-
mary is corrected there could be an agrecment to it, but
otherwise, as Judge Gibbons has just indicated you will
have to follow that procedure.
(8) MR. ROTH: Thank you, your Honor.
With regard to the prehearing order, we did agrec
that the Commonwealth would supply the admission pro-
files, if you will, of ten patients selected by the plaintiffs.
I had sent these patients’ profiles on to this Honorable
Court and to Mr. Ferleger sometime ago and we would
like to introduce those into evidence, also.
Colloguy 53la
I have not heard of any objections prior to this time
from opposing Counsel with regard to those ten patients’
profiles.
JUDGE GIBBONS: Mr. Ferleger?
MR. FERLEGER: I have no objection.
JUDGE GIBBONS: They will be marked in evi-
dence and again, rather than delay the witnesses, I charge
you with the responsibility of having them appropriately
marked before they need to be referred to.
MR. ROTH: Thank you, your Honor.
Again, thank you for this time.
With regard to our witnesses, your Honor, we had
five witnesses and we have narrowed that to four wit-
nesses. We have excluded Dr. Armstrong.
Now, it has been my review of the situation with
these witnesses that each witness will take approximately
an hour to an hour and a half. Today, we are going to
begin with Dr. Tashjian. On Wednesday, we anticipate
(9) calling Drs. Masterson, Miller and Gibbs.
Now, with regard to the time limit on Wednesday
which will be from 9:30 to 1:00 o’clock, pursuant to your
Court order, it would be appreciated if we could continue
this for another day—to present Dr. Gibbs.
All these gentlemen are from out of state, Michigan,
New York, Baltimore. I am prepared to have Dr. Gibbs
come on Wednesday if you so desire. I have alerted Judge
Huyett through his law clerk, to this situation.
JUDGE GIBBONS: _I think we will have to antici-
pate only getting through two on Wednesday. Our collec-
532a Colloquy
tive judgment is that by the time cross-examination is
finished, it will be so close to one o’clock as to make it
impossible to complete the third doctor and we don’t think
it is appropriate to have him make two trips.
Therefore, you can assume that we will continue with
his testimony on a subsequent date and that closing argu-
ment will be held on that same date.
MR. ROTH: Thank you, your Honor.
JUDGE GIBBONS: Monday, October 7, 1974, we
will convene at ten o’clock and complete the testimony.
Any rebuttal testimony should be presented at that time
and we will proceed with closing argument. If need be,
(10) we will continue on the 8th of October. We will
advise you of the courtroom.
MR. FERLEGER: Thank you, your Honor.
MR. ROTH: Thank you, your Honors.
Your Honors, with regard to the pretrial deposition
of Dr. Max Sugar, that deposition I would like to intro-
duce into the record, also.
Now, I have provided the Court with a rather lengthy
summary of that deposition some time ago and last week,
I did receive the signed copy—the signed original— of Dr.
Sugar’s deposition by him and I had advised him, you
know, pursuant to Court Rule 30, that he ought to state
in an accompanying letter any objections that he had to
form and substance.
Dr. Sugar mercly changed some words around on the
original deposition. He has supplied me with that, but
not provided me with reasons. I can assure this Honorable
Colloquy 533a
Court, as well as Mr. Ferleger, that there has been no
changes as to substance.
Nonetheless, I’d like to introduce that pretrial depo-
sition, as well as the changes on xerox sheets which I
have, and reserve it for Mr. Ferleger’s objections.
JUDGE GIBBONS: Mr. Ferleger, any objections to
that course?
(11) MR. FERLEGER: No, I haven’t seen the cor-
rections and I’d like to.
I might note, just for the record, that Dr. Finer, who
was deposed by the court order in this case, I’m still wait-
ing for the court reporter’s transcript, because we did not
have time for Mr. Roth to finish his questions and he has
agreed to submit interrogatories and we hope that will be
done by October the 7th.
MR. ROTH: That was my next point.
Hopefully, | will have that done by October 7th. In
any event, I will have that certainly done before the record
is closed in this case.
With regard to Dr. Armstrong’s deposition which was
taken, I believe, in March of 1973, your Honors, we have
agreed that Mr. Ferleger would underline portions agreed
upon and those portions disagreed upon would be ad-
mitted into evidence.
I have not yet received that, although I have received
several papers from Mr. Ferleger just a few minutes ago
and | believe one of those papers does refer to the depo-
sition of Dr. Armstrong. I haven’t had a chance to read
any of these. However, I just wanted to indicate to the
Court that } am agreeable to submitting the deposition of
Dr. Armstrong in its entirety, {f necessary.
Lee SS
©
534a Colloquy
(12) JUDGE GIBBONS: All right. Again, | charge
you to have it appropriately marked. All of these deposi-
tions have to be marked in evidence.
MR. ROTH: Fine.
Your Honor, | believe Mr. Ferleger will be introduc-
ing that deposition in accordance with our agreement.
JUDGE GIBBONS: If it is your offer, you, Mr. Fer-
leper, are responsible to having it marked in evidence.
MR. PFERLEGER: Certainly, your Honor.
MR. ROTH: With regard to my understanding of
what is in the record, specifically, we are requesting that
all the interrogatories and answers are in the record and
especially the answers to—
JUDGE GIBBONS: Have they been marked in evi-
dence?
JUDGE HUYETT: They have not heen marked,
MR. ROTH: No, they haven't. 1 believe we dis-
cussed that at the prehearing conference and | believe we
decided they would all be introduced into the record.
MR. FPERLEGER: There was no decision to aban-
don marking them.
JUDGE GIBBONS: They should be marked, (15)
because they are not in the record for appeal purposes,
unless they have been admitted into evidence.
JUDGE HUYETT: 1 would suggest that Counsel
get together before October 7th and give them the next ~
ene SuenEND Oe Chay Gay Means ae Seep ay eee Oe
formally admitted into the record. Just because somethin,
Colloquy 5350
has been docketed and filed, does not make it part of te
record for appeal purposes.
MR. ROTH: Thank you, your Honor, we shall do
0,
Again, | had spoken to Judge Huyett through Mr.
Langel last weck, regarding the submitting the biographics
of the expert witnesses and perhaps we can arrive at a
stipulation with regard to that.
Neither Mr. Ferleger nor | have exchanged the Cur-
riculum Vitaes of the witnesses and it would be my feeling
at this point, your Honor, although I'd like to expedite
the hearing that perhaps we should hear the qualifications
and if your Honors feel we should submit the biographies,
we will, but I think it is necessary to hear the qualifica-
tions.
JUDGE HUYETT: Are these fairly short?
MR. PERLEGER: Just to let you know what the
plaintiffs are doing. You have, | handed up this morning
before you arrived, Plaintiff's Exhibit Numbers (14) 1, 2,
mber 1, the Court has already ordered, it may
itted. Numbers 2 and 3, the Court has given us
on to submit them here this morning.
Dr. Leon Ginsburg, as | explained to Judge Huyett
in a paper filed, he is in South America. The affidavit has
been filed for more than a year, | believe, although Mr.
Roth has told me that he did not get it when we originally
sent it out,
Exhibits 4, 5, and 6, are the resumes of our experi
witnesses and | would move, maybe to expedite things,
for the admission of all of our Exhibits at this time.
5 36a Colloquy
JUDGE GIBBONS: Move the admission of each
Curriculum Vitae as the witness is on the stand, so it ap-
pears in the same part of the record.
JUDGE HUYETT: Are they too long to read?
My thought is to save time and if the Curriculum
Vitae is short it could be read and this would be supple-
mented by a few questions, rather than going through a
long procedure of questions and answers.
MR, FERLEGER: What I was anticipating was hav-
ing my witnesses describe the most salient points of their
qualifications and leave a lot of the listings of articles and
talks to the written material,
JUDGE GIBBONS: Just mark the Curriculum (15)
Vitae as each witness gets on the stand and present those
highlights that you think are appropriate by question.
MR. FERLEGER: 1 will, your Honor.
JUDGE GIBBONS: Anything else, Mr. Roth?
MR. ROTH: Yes, your Honor.
With regard to my brief which was submitt ,
two weeks ago, ! would just lke 0 note @ correction on
page 22 and it appeared that the citation of Logan versus
Arafch, that should be Volume 346, your Honor. I'm sor-
ry for that,
Your Honor at this time, thaf is all 1 have. Thank
you again.
MR. FERLEGER: Dr. Kandler.
Dr. H. O. Kandler—Direct 5370
HENRY O. KANDLER, sworn.
THE CLERK: Would you state your full name?
THE WITNESS: Dr. Henry O. Kandler.
Direct Examination
BY MR. FERLEGER:
Q. What is your address?
A. My office is 124 East 84th Street in New York
City. —
Q. What is your occupation?
A. 1 am a psychiatrist,
Q. Weak’ ome. geen oun 6 Se Sais PRY see
(16) current affiliations or appointr ?
A. Yes,
1 am Assistant Clinical Professor of Psychiatry at the
Albert Einstein College of Medicine and | am Associate
Attending Psychiatrist at the Bronx Municipal Hospital
Center,
QO. Have you been associated with any hospitals in
the state hospital system? |
A. Yes; for a period of five years | was Super
ing Peychlatriet ot Bronx State Hoople
Psychiatry at both the medical school and hospital.
Q. What do you do in that capacity?
A. Primarily, | supervise trainees, fellows and resi-
dents who work in the clinic right now and I am also in
charge of the school consultation program and have sore
administrative duties as far as the clinic is concerned.
538a Dr. H. O. Kandler-—Direct
Q. Por how long have you been involved in the area
of child psychiatry or adolescent psychiatry?
A. For 16 years.
This clinic job is a new one for me. For the past 16
years, | have been involved in in-patient psychiatry.
(17) O. What facilities?
A. At the same facilities that | have mentioned,
©. Can you estimate the number of children in-
volved that were under your responsibility or supervision?
A. We admit somewhere between 60 and 100 ado-
lescents a ycar, depending on how those s were set
up.
1 was usually, during this period of time, in charge
of one ward, So that would be about one-third of them.
So, | estimate that | have been in perhaps direct charge of
400 adolescents who have been admitted to our hospital.
Q. Do you work with children or families of chil-
dren in your private practice?
A. Adolescents, yes. Not younger children.
Q. Dr. Kandler, you have seen the Curriculum
Vitae that you gave me and it is now in the Court's hands.
Is that an accurate summary of your qualifications
and background?
A. Yes,
MR. FERLEGER: Your Honors, I'd like to
move for the admission of Plaintiff's Exhibit Num-
her 4,
JUDGE GIBBONS: Number them in sequence
as to whatever the next plaintiff's number is.
JUDGP HUYETT: Were your Exhibits 1, 2,
and 3 admitted at the prehearing conference?
Colloquy 539a
(18) MR. PERLEGER: Yes, Exhibits 2 and 3,
your Honors ordered we'd be allowed to submit for a
ruling today.
JUDGE HUYETT: Where are Exhibits 1, 2,
and 3, physically? Have they been marked?
MR, FERLEGER: Exhibit 1 has already been
docketed and filed, Exhibit 3 has already been dock-
cted and filed and Exhibit 2 has been docketed and
filed, as well,
MR, ROTH: If 1 may, your Honor, as I recall
the Exhibits were disagreed upon in our statement of
facts and it is up to the Court in order to determine
the probative value today,
MR. PERLEGER: Except for Number 1, Num-
ber 1, Judge Huyett ordered admitted.
JUDGE HUYETT: Where is there a reference
to these in the prehearing order?
MR. FERLEGER: In your order issued after
our last conference, at paragraph 3(f), your Honor
ordered that plaintiff's Exhibits 2 and 3 may be of-
fered at the hearing and the Court will determine
their admissibility and weight.
MR. ROTH: Exactly. In that order, it does
not say anything about Exhibit 1, It was my under-
standing that this Exhibit was not admitted.
(19) JUDGE GIBBONS: Let's not talk about
Exhibit | at this point. Let's get a number for whot
you referred to as “Exhibit 4,”
The previous Exhibits have been given numbers
1, 2, and 3 in the prehearing order and this will be
540a Dr. H. O. Kandlere—Cross
marked Exhibit 4 which will be admitted in evi-
dence.
Give the Clerk a copy for the Court to file.
(Whereupon, the Curriculum Vitae of Dr. Kand-
ler was marked Plaintiff's Exhibit 4 in evidence as
of this date.)
MR. ROTH: 1 do have some questions with
regard to the witness’ qualifications.
JUDGE GIBBONS: You may examine now on
his qualifications.
MR. ROTH: Thank you, your Honor.
MR. FERLEGER: Your Honor, if Mr. Roth is
just going to question with regard to the extent or
stature of his qualifications, | think he should hold
that for cross-examination, but if he wants to ques-
tion—
JUDGE GIBBONS: He may examine on his
qualifications at this point.
MR. FERLEGER: Thank you, your Honor.
MR. ROTH: Thank you.
(20) Cross-Examination
BY MR, ROTH:
QO. Dr. Kandler, would you please indicate to me
if you are Board certified in general psychiatry?
A. No, I am not,
Q. Are you Board certified in child psychiatry?
A. No, | am not,
Dr. H. O. Kandler—Direct 541a
Are you Board eligible in gen
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