Amicus Brief — Addington v. Texas

FOR ARGUMENT

No. 77-5992 MICHAEL ROBAK, JR_ CLERK

In the

Supreme Court of the United States

Octoser Term, 1978

FRANK O’NEAL ADDINGTON,

Appellant,

vs.

THE STATE OF TEXAS,

Appellee.

On Appeal from the Supreme Court of Texas.

BRIEF FOR THE

STATE OF ILLINOIS

AS AMICUS CURIAE

Wituiam J. Scorr

Attorney General, State of Illinois on

behalf of the Illinois Department of Men-

tal Health and Developmental Disabilities

160 N. LaSalle St.

Chicago, Illinois 60601

(312) 793-2752

BernarD Carey

States Attorney of Cook County

500 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-4567

Counsel for Amicus Curiae

The Scheffer Press, Inc.—(312) 263-6850

SEP 16 1978 ff

pe

TABLE OF CONTENTS

PAGE

SU Ce SAID wiciettiiensecervinsenceneenerieresiennsntoenen i

INTEREST OF AMICUS CURIAE ......cccccccscsseseseees 1

QUESTION PRESENTED ..0........ccccccsssscsssesscsssscsnsesssnees 2

SUMMARY OF ARGUMENT ..........cccccssssscsssessesessseees 8

ARGUMENT

I. The Standard Of “Proof Beyond A Reasonable

Doubt” Is Inappropriate In Civil Commitment

FRUIT isibeeticcisiein abcscensbdnnthnchdetdnsniisiSctbnhskusmisiecideien 5

II. The Standard Of Proof Necessary In Mental

Health Commitments Can Be Harmonized With

The Local Definition Of “Clear And Convincing

Proof” So As To Maintain Both Due Process

And Realistic Commitment Laws ..........ccccsecsseseees 8

IfI. The Illinois Mental Health Code Is Replete With

Protections Tio Insure Maximum Constitutional

Safeguards For The Rights Of The Mentally

I ees ieisndiciercenncindclcoaisn tideactliicbent inch tanbebidinshionstoveniaeeis 13

IE iciicietsth iihicadencshickonidiesinibsintictsccnapiceasseualettoce 29

TasLe oF CrraTIoNns

Caszs:

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) 0... 13

Barsky v. Board of Regents, 347 U.S. 442 (1953) ...... 5

Bartley v. Kremens, 402 F.Supp. 1039 (E.D. a. 1975) 10

Borden v. Case, 118 So. 2d 751 (Alar) .o..ccccecesecsneeseees 11

In re Bossov, 423 U.S. 928 (1975) ....ccccccssesssecseseecsenesesees 8

City of Chicago v. Mayer, 308 N.E.2d 601 (Til. 1974)... 8

A

PAGE

Denton v. Commonwealth of Kentucky, 383 S.W. 29681

EE, IEEE -cchsehinchocucsiteitinidhnidbnictRs okctiaiedemannteahatniiamenaninie 12

Dixon vy. Attorney General, 325 F.Supp. 966 (M.D. Pa.

SIETEED + savelintivcesd babe balaainstrhnabestekdghisn cha inragecisevatbintclyetduannenetek tes 10

Edwards v. Sentell, 208 So. 2d 914 (Ala. 1968) ............ 11

Greene v. Bride and Sons Construction Co., 106 N.W.

Re es BIE cttnicsmpnarenisnnremainnrietnnseinisiensine 11

Greenwood v. U. S., 350 U.S. 366 (1956) oes 10

Interest of Jones, 340 N.E.2d 269 (Tll. 1975)... 9

Kennedy v. Mendoza-Martines, 372 U.S. 144 (1963) .. 5

Kuehn v. Kuehn, 104 N.W.2d 138 (Wis. 1960) ............ 12

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

SPUN = wegthiasiin lies daslindnaailinidhnadeeisiadiabbbenacthchesabcobienatinvbitons 13

Loss v. Loss, 185 N.E.2d 288 (Ill. 1962) oo... cseeeseseeee 8

Lynch v. Baxley, 386 F.Supp. 378 (M.D. Ala. 1974) .. 11

Madison v. Geier, 185 N.W.2d 761 (Wis. 1964) ........ 12,13

Miller v. Martin, 70 N.W.2d 141 (Iowa, 1955) ............ 11

Morrissey v. Brewer, 408 U.S. 471 (1972) w.cccccecssesees 6

Nishikawa v. Dulles, 356 U.S. 129 (1958) ........ccseseeee 8

O’Connor v. Donaldson, 422 U.S. 563 (1975) oc. 10

Owens v. Williams, 165 So. 2d 709 (Ala.) .....ccceseses 11

People v. Grayson, 319 N.E.2d 43 (Ill. 1974), cert.

emted, 421 U.S. DOE (1975) ........ccccccccscscecocscscesesesccnseseses 8

In re Pickles Petition, 170 So. 2d 603 (Fla. 1965) .... 12

Robinson v. California, 270 U.S. 660 (1961) ............ 6, 7

Rowland v. Holt, 70 S.W.2d 5 (Ky. 1934) ccc 11, 12

In re Sedillo, 498 P.2d 1353 (N.M. 1972) w..cccesesesssseeee 10

ill

PAGE

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

TID accnevinsznnorssivitnesevenediniiorunupimamsiaiy |

State v. Graham, 240 So. 2d 486 (1970) ou... cccessessseeseees 12

In re Stephenson, 367 N.E.2d 1273 (Ill. 1977) .........+ 5, 8

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

TOI) ccesotorsessnnssrersserssnbs dnsciticsineniienenintianioMaabansanpaeeptinaianaess 13

Tapler v. Frey, 132 A.2d 890 (Pa. 1957) ......ccsccesceesseees 10 —

Matter of Valdez, 540 P.2d 818 (N.M. 1975) .........0 10

In re Winship, 397 U.S. 358 (1970) .......scscscsessesereeees 5

Woodby v. Immigration and Naturalization Service,

SIE. SEO CH ciicnsctiecsseonssethatitniacsicnnpeininibdtieniias 8

STATUTES :

Illinois Mental Health Code, Illinois Revised Statutes,

a. DEG, $T-1 OE OG, cxcececsiccanssmensntcmneninietncovitiningsiannebanaiies 6

S.B. 250, 252, 253 and 255, 80th Ill. Gen. Assembly

CRIB cecieasionscansnnnsiaiselsdliiapsicciiaivcavinissiiialaaniaitanan 13, 14, 25, 26, 28

S.B. 250 § 2-100 through § 2-111 ..........ccscsccscsssssecssesseeseres 14-22

S.B. 250 § 2-200 through §$ 2-202 ......cscsssesessssesseees 22, 23

GD, SID CBD ocvctcistnitintscscisshirsionasincstitantiniainiianutnns 23

S.B. 250 §3-800, § 3-802 through §3-807, § 3-810,

SSGELL, FSGIS ard 4 BGG nccececsecocciseivdercsrscsererccsrsresionss 24

In THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1978

No. 77-5992

=—=——

FRANK O’NEAL ADDINGTON,

Appellant,

vs.

THE STATE OF TEXAS,

Appellee.

_

On Appeal from the Supreme Court of Texas.

BRIEF FOR THE

STATE OF ILLINOIS

AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The State of Illinois has some 12,000,000 citizens. Last

year nearly 6,700 residents were the subject of involun-

tary hospitalization proceedings and another 16,000

sought in-patient care on their own. The Illinois Attor-

ney General represents the Illinois Department of Mental

Health and Developmental Disabilities, the major single

provider of psychiatric care in the state. The State’s

Attorney of Cook County was responsible for represent-

ing the interests of the People of the State of Illinois in

itive

nearly 4,000 of these mental health cases filed in 1977.

Illinois has consistently been in the forefront of protect-

ing mentally disabled persons through comprehensive,

thoughtful and progressive legislation and programs. The

Illinois Mental Health Code of 1967 was considered one of

the most progressive in the nation. That code, supple-

mented by amendments, was reviewed carefully by a panel

of 82 experts appointed by the Governor in 1973. Following

the report of that study, published in November of 1976,

a program of legislative reform was initiated. On Sep-

tember 5, 1978, Governor James R. Thompson signeé

into law a comprehensive package of legislation designed

to not only afford the best possible protection for all

citizens of this state, but to require the most freedom in

terms of least restrictive alternative settings, for those

adjudicated to be sul'°ct to involuntary treatment. These

new laws stand as a model for effective, humane, and

progressive treatment of the mentally disabled.

It is because of Illinois’ intense involvement with and

concern for the mentally afflicted that this State, through

its Attorney General and through the State’s Attorney

for the largest county in the jurisdiction, respectfully

file this brief of amicus curiae.

QUESTION PRESENTED

Whether mental health legislation designed to pro-

tect the rights of the mentally disabled and the interests

of the citizens of a State and the due process clause of

the Fourteenth Amendment should be construed so as to

require proof beyond a reasonable doubt in proceedings

instituted to involuntarily treat an individual.

— a

SUMMARY OF ARGUMENT

It is the position of the State of Illinois that the due

process clause of the United States Constitution, as ap-

plied to the States, does not require the application of

the standard of proof beyond a reasonable doubt in civil

commitment hearings.

Although proof beyond a reasonable doubt is required

by due process mandates in criminal cases, the utiliza-

tion of this burden of proof in civil, mental health pro-

ceedings would be burdensome and, perhaps, counterpro-

ductive. Involuntary treatment hearings are not punitive

in nature. The purpose of enlightened mental health laws

is treatment oriented and commitment statutes have

been enacted to protect the rights and interests of all

citizens. The impact of requiring proof beyond a reason-

able doubt might well be that many of those in need of

judicial intervention would be deprived of their right to

treatment.

Many freedoms and liberties are infringed upon as a

result of judicial action without the requirement of proof

beyond a reasonable doubt. Violation of conditions of

probation cases have passed the Constitutional muster by

this Court without the application of the strictest, criminal

standard of proof being applied.

The issue of the applicable standard of proof in mentel

health cases has been confronted by many Federal and

State courts. While the results are varied, they may be

harmonized by reviewing the local definitions of standards

of proof. Proof by clear and convincing evidence—when

defined as significantly more rigorous than a mere pre-

ponderance of evidence—has withstood the demands of

due process in mental health cases. In Illinois, “clear and

convincing evidence” is the highest standard of proof

iia:

afforded in any civil case. The effect of imposing proof

beyond a reasonable doubt might well “criminalize” the

civil procedure established for involuntary mental health

treatment hearings.

Finally, the State of Illinois submits that the imposi-

tion of proof beyond a reasonable doubt is unnecessary

to protect the rights of the mentally disabled. The laws

of Illinois relating to involuntary psychiatric treatment

are and have been progressive and patient oriented. Not-

withstanding the present Mental Health Code, Illinois’

legislature has recently enacted a new body of laws which

provide a panoply of safeguards for the rights of patients.

A eareful examination of the protections afforded men-

tal health care recipients under this new code reveals

that requiring proof beyond a reasonable doubt will add

no novel aspect to patient freedoms. In fact, the use of a

criminal standard of proof in commitment cases may

work to the detriment of those, previously established,

patient rights.

I

THE STANDARD OF “PROOF BEYOND A REASON.

ABLE DOUBT” IS INAPPROPRIATE IN CIVIL OOM-

MITMENT PROCEEDINGS.

It is well recognized that the standard of “proof be-

yond a reasonable doubt” is appropriate, in both criminal

and juvenile proceedings, to adequately insure due pro-

cess. In rv Winship, 397 U.S. 358 (1970). In the case be-

fore this Court, the Appellant urges that this standard

be extended to civil commitment cases. This argument

has been recently rejected by the Illinois Supreme Court

in In re Stephenson, 67 Ill. 2d 544, 367 N.E.2d 1273 (1977).

Mental health commitment cases must be distinguished

from criminal and juvenile matters. The most obvious

distinction is that of purpose. Clearly, no punitive ele-

ment is implied or intended in civil, mental health com-

mitments. Cf. Kennedy v. Mendoza-Martinez, 372 U.S.

144 (1963). When necessary, the state must act to exer-

cise either the police power vested in it or the avthurity

under parens pairiae to protect its citizens. “It is ele-

mental that a state has broad power to establish and en-

force standards of conduct within its borders relative

to the health of everyone there. It is a vital part of a

state’s police power.” Barsky v. Board of Regents, 347

U.S. 442 at 449 (1953).

Understanding the basic theory by which a state enacts

and enforces a mental health code, we should consider

the requirements of due process. In Stephenson, supra,

the Illinois court did not ignore the principle of due pro-

~~

cess but responded by carefully balancing its mandates

with the intentions of the commitment laws. “Due pro-

cess ... is a flexible concept and depends, at least in part,

on the circumstances of the particular matter in issue.”

Morrissey v. Brewer, 408 U.S. 471 (1972) as cited in Step-

henson at 1276. A rigid application of due process to

mental health cases would likely result in the denial of

treatment, a right established by the Illinois Mental

Health Code. Ill. Rev. Stats. 1977, Ch. 91% $12-1.

The standard of proof in Illinois commitment cases

is logically distinct from the standard required in criminal

matters. That which is sought to be proved is quite dif-

ferent in the two areas in that a criminal trial is con

ducted to establish the guilt or innocence of a person with

respect to a specific, demonstrative act. Evidence—physi-

cal, documentary and testamentary, is presented to pro-

vide a logical hasis for determining whether an act has

been committed or omitied. Proof beyond a reasonable

doubt is pessible and practical under such circumstances.

However, in a mental health proceeding, the issue pre-

sented is whether the person is suffering from a mental

disorder and, consequently, expected to be dangerous to

ones’ self or to others or unable to care for ones’ self.

Ill. Rev. Stats. 1977 Ch. 911% §1-11. This issue is more

complex and frequently less demonstrative than that

presented in a criminal proceeding. Consequently, a much

more sensitive and difficult proposition must be proved.

In Robinson v. California 370 U.S. 660 (1961) this

Court rejected the notion that one could be criminally

punished for the status of being addicted to narcotics.

An essential problem in establishing criminal guilt of

a “status offense” is proving such a proposition beyond a

reasonable doubt. Mr. Justice Harlan, in a concurring

—_ a

opinion in Robinson, stated that “. .. the trial court’s in-

structions permitted the jury to find the appellant guilty

on no more proof than that he was present in California

while he was addicted to narcotics.” Ibid at 678. While

the Court struck the statute it did favorably discuss al-

ternatives including the possibility of “compulsory treat-

ment”. Ibid at 665.

Mental health cases require that proof of a mental dis-

order be present before involuntary hospitalization may

occur. Clearly, the task of establishing the presence of a

mental disease would be more difficult and, in many

cases, impossible if proof beyond a reasonable doubt was

the applicable burden. The presence of a mental disorder

is a concept developed by the psychiatric profession and

is a function of societal norms and deviations, environ-

ment and the human thought process. In the courtroom

mental illness is established by expert opinion, utilizing

whatever relevant facts are available. In criminal cases,

however, the commission of an act is nearly always

founded on facts and not opinions. Notwithstanding this

difficulty in proof, society must reckon with the fact that

mental afflictions occur and the judicial process is often

the only vehicle available to insure prompt and satisfac-

tory treatment as well as protection of all citizens. The

imposition of the strictest standard of proof threatens

to thwart the purpose and goals of our mental health

laws to the detriment of the very sector of society it has

been designed to protect.

— ee

II.

THE STANDARD OF PROOF NECESSARY IN MEN.

TAL HEALTH COMMITMENTS CAN BE HAEMO-

NIZED WITH THE LOCAL DEFINITION OF “CLEAR

AND CONVINCING PROOF” SO AS TO MAINTAIN

BOTH DUE PROCESS AND REALISTIC COMMIT-

MENT LAWS.

The establishment of the appropriate burden of proof

is in most cases left to the judiciary. Woodby v. Immt

gration and Naturalization Service, 385 U.S. 276 at 284

(1966). The consideration of standards of proof must

extend beyond a simplistic approach that would have

criminal cases utilizing proof beyond a reasonable doubt

on one hand and all civil matters invoking a lesser bur-

den on the other. Many proceedings result in a substan-

tial loss of freedoms, rights and privileges without the

requirement of proof beyond a reasonable doubt. Depor-

tation proceedings [Woodby, supra], expatriation pro-

ceedings [Nishikawa v. Dulles, 356 U.S. 129 (1958)], at-

torney disciplinary proceedings [In re Bossov, cert. de-

nied 423 U.S. 928 (1975)], conservatorship proceedings

[Loss v. Loss, 185 N.E.2d 228 (Ill. 1962)] and violation

of a municipal ordinance [City of Chicago v. Mayer, 308

N.E.2d 601 (Ill. 1974)}, all require a standard less than

proof beyond a reasonable doubt. Even a violation of

conditions of probation need not be proved by the strict

criminal standard. “This is so even though the individual

facing probation revocation may lose his liberty just as

swiftly as a defendant in a criminal case” People v. Gray-

son, 319 N.E.2d 43 at 46 (Ill. 1974) cert. denied 421 U.S.

994 (1975). As cited in In re Stephenson, 367 N.E.2d

1273 at 1278 (Ill. 1977).* Surely, the loss of freedoms

*For an elaborate and thorough analysis of this area

consult In re Stephenson, 367 N.E.2d 1273 at 1278-1279

(Il. 1977).

associated with a violation of probation and return to a

correctional facility for a fixed period of incarceration

is no less an infringement than an involuntary hospitali-

zation for mental treatment. Moreover, the deprivation

of liberty argument should not be considered without re-

viewing precisely what “clear and convincing proof” ac-

tually means.

In Illinois, the standard of “clear and convincing -

proof” has been well defined to be a strict burden im-

posed in serious but civil cases. In a recent discussion

of this proof in Illinois, the appellate court citing a line

of cases stated:

“Clear and convincing evidence means proof which

should leave no reasonable doubt in the mind of the

trier of the facts concerning the truth of the matter

in issue.” Interest of Jones, 340 N.E.2d 269 at 273

(Ill. 1975).

A review of the decided cases discloses a general trend

that as the local judicial definition of the civil “clear and

convincing” standard approaches the criminal reasonable

doubt standard, as in Illinois, then courts have adopted

the clear and convincing . .andard for mental health com-

mitments. This adoption of the strict civil standard usu-

ally is accompanied by emphasis upon the civil nature of

the proceedings.

On the other hand, where local law defining “clear and

convincing’’ has been unclear, confused with, or equated

to the preponderance standard, as in Wisconsin, then

those courts have avoided such standard, and adopted

the criminal standard of proof beyond a reasonable doubt

of the facts necessary for commitment.

We embark on this effort for the purpose of clarifica-

tion and persuasion in an area of the law which has been

_—

labeled “vexing” by more than one court. See O’Connor

v. Donaldson, 422 U.S. 563, 574 (1975); Greenwood v.

U.S., 350 U.S. 366, 375 (1956).

Pennsylvania, like Illinois, has a strict civil “clear and

convincing” formulation. In Tapler v. Frey, 184 Pa. Su-

per. 239 132 A.2d 890 (1957) the Pennsylvania court

stated :

“However, the phrases. . . “clear and convincing”

. . . a8 used in these types of cases (deed reforma-

tion) have a technical meaning which is that the wit-

nesses must be found to be credible, that the facts

to which they have testified are distinctly remem-

bered and the details thereof narrated exactly and in

due order, and that their testimony is so clear, direct

and weighty and convincing as to enable either a

judge or jury to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue.”

(Insert for clarity.) Tapler v. Frey, 184 Pa. Super.

at 244-245.

In the face of that formulation we suggest that it is not

surprising that the Federal courts in Pennsylvania have

adopted the clear and convincing standard, and rejected

the burden of proof beyond a reasonable doubt. See Diz-

on v. Attorney General, 325 F. Supp. 966, 974 (M.D. Pa.

1971); Bartley v. Kremens, 402 F. Supp. 1039, 1051-1053

(E.D. Pa. 1975).

Similarly, the Supreme Court of New Mexico ruled in

Matter of Valdez, 88 N.M. 338, 540 P.2d 818 (1975) that

clear and convincing evidence was a sufficient standard

in commitment cases. The case refers specifically to In re

Sedillo, 84 N.M. 10, 12, 498 P.2d 1353, 1355 (1972) where

the court stated—“For evidence to be clear and convinc-

ing, it must instantly tilt the scales in the affirmative

when weighed against the evidence in opposition and the

fact finder’s mind is left with the abiding conviction that

_—

the evidence is true.” It is submitted that the New Mexi-

co court’s formulation of the clear and convincing stan-

dard does indeed operate to insure basic fairness to per-

sons sought to be committed.

The Supreme Court of Alabama stated in Edwards v.

Sentell, 282 Ala. 48, 208 So.2d 914, 916 (1968) that:

“A case of specifie performance must be established

by clear, definite and unequivocal evidence, and must -

not leave the contract or any of its terms in doubt,

Borden v. Case, 270 Ala. 293, 118 So.2d 751, 81

A.L.R.2d 982; and merely persuasive evidence is

fatal to a claim of specific performance, because com-

plainant’s case must be established by evidence that

produces a clear conviction in the judicial mind.

Owens v. Williams, 276 Ala. 627, 165 So.2d 709.”

Predictably the Alabama Federal District Court adopt-

ed the clear and convincing standard in Lynch v. Bazley,

386 F. Supp. 378 (M.D. Ala 1974).

Local Iowa law holds that clear and convincing evi-

dence means “. . . that the proof is so established that no

reasonable uncertainty or doubt as to the truth thereof

confronts the trier of fact.” Miller v. Marti, 246 Iowa

910, 915, 70 N.W.2d 141, 144, (1955); Greene v. Bride &

Sons Construction Co., 252 Iowa 220, 227, 106 N.W.2d

603, 608 (1960). Thus, the Federal District Court in Stam-

us v. Leonhardt, 414 F. Supp. 439, 449 (S.D. Iowa 1976)

opted for clear and convincing proof as against proof

beyond a reasonable doubt. :

On the other hand the Kentucky Supreme Court has

defined clear and convincing proof as follows:

“Clear and convincing proof does not necessarily

mean uncontradicted proof. It is sufficient if there is

proof of a probative and substantial nature carry-

ing the weight of evidence sufficient to convince or-

=~ $80

dinarily prudent minded people.” Rowland v. Holt,

253 Ky. 718, 70 S.W.2d 5, 2 (1934).

The Kentucky Court of Appeals held for proof beyond

a reasonable doubt in mental health commitment cases

in Denton v. Commonwealth of Kentucky, 383 S.W.2d

681 (Ky. 1964).

Similarly In re Pickles Petition, 170 So.2d 603 (Fla.

Dist. Ct. App. 1965) held for the reasonable doubt stan-

dard in commitment cases. We suggest the court ruled

that way because Florida law is not at all clear on what

exactly “clear and convincing” means. See State v. Gra-

ham, 240 So.2d 486, 490-491 footnote 17 (1970).

Wisconsin law is extremely muddled and contradictory

as to the definition of clear and convincing. Thus the

Wisconsin Supreme Court has stated in Kuehn v. Kuehn,

11 Wis.2d 15, 104 N.W.2d 138, 145 (1960) that:

“Defined in terms of quantity of proof, reasonable

certitude or reasonable certainty in ordinary civil

cases may be attained by or be based on a mere or

fair preponderance of the evidence. Such certainty

need not necessarily exclude the probability that the

contrary conclusion may be true. In fraud cases it

has been stated the preponderance of the evidence

should be clear and satisfactory to indicate or sus-

tain a greater degree of certitude. Such degree of

certitude has also been defined as being produced by

clear, satisfactory and convincing evidence. Such evi-

dence, however, need not eliminate a reasonable

doubt that the alternative or opposite conclusion may

be true. In criminal cases, while not normally stated

in terms of preponderance, the necessary certitude

is universally stated as being beyond a reasonable

doubt.

See also: Madison v. Geier, 27 Wis.2d 687, 692 1385 N.

W.2d 761, 763 (1964) where the court distinguishes be-

a ES

=

tween “clear preponderance of the evidence” as against

“fair preponderance of the evidence.”

It should come as no surprise then in view of the un-

certainty as to the intermediate standard of proof in

Wisconsin, that when the Federal Court there was called

upon to rule upon the burden of proof to be applied in

Mental Health cases, it chose proof beyond a reasonable

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

Wis. 1972)

It is also interesting to note that In re Ballay, 482 F.2d

648 (D.C. Cir. 1973) and Sueuki v. Quisenberry, 411 F.

Supp. 1113 (D.Haw. 1976) appear to have no available

local “clear and convincing” standard. We suggest that

the natural judicial response in such a case is to choose,

as between the preponderance standard and the reason-

able doubt standard, the stricter criminal standard.

We conclude from the foregoing that those jurisdic-

tions, like Illinois, which have a strict civil standard of

clear and convincing proof are in a favorable position

both to protect the inalienable right to liberty of their

citizens, and to maintain their mental health systems

without undesirable criminal overtones. We submit that

this Court should hesitate to “criminalize” Illinois mental

health commitments by applying rhetorical due process

formulations to them.

Il.

THE ILLINOIS MENTAL HEALTH CODE IS RE-

PLETE WITH PROTECTIONS TO INSURE MAXI.

MUM CONSTITUTIONAL SAFEGUARDS FOR THE

RIGHTS OF THE MENTALLY DISABLED.

On September 5, 1978, Governor James R. Thompson

of Illinois signed into law Senate Bills 250, 252, 253, and.

—14—

255, which, taken in their entirety, comprise the new “IIli-

nois Mental Health Code.” This package of bills will be-

come effective January 1, 1979, and will supercede the

previously established Illinois Mental Health Code found

in the 1977 Iiiiuois Revised Statutes, Chapter 914% §1-1

et seq. This code was one of the most progressive men-

tal health codes in the country at the time of its enact-

ment in 1967 and, supplemented by amendments, has en-

sured implementation of a comprehensive package of

patient rights legislation. However, the new mental

health code is a model piece of legislation designed to

assure maximum accountability on the part of all service-

providers to the mentally disabled for the State, with

guarantees of rights, protections and privileges for those

mentally handicapped citizens. The new code is equally

applicable to tthe private as well as the public sector,

thereby assuring maximum accountability of all service-

providers for the first time. The rights of recipients of

mental health and developmental disability services are

found in Chapter 2, Article 1, entitled “Rights,” the full

text of which goes from section 2-100 to section 2-111.

Following is the full text of the law enumerating those

rights.

CHAPTER II

RIGHTS OF RECIPIENTS OF MENTAL HEALTH

AND DEVELOPMENTAL DISABILITIES

SERVICES

ARTICLE I. RIGHTS

Section 2-100. No recipient of services shall be de-

prived of any rights, benefits, or privileges guaranteed

by law, the Constitution of the State of Illinois, or the

—

Constitution of the United States solely on account of the

receipt of such services.

Section 2-101. No recipient of services shall be pre-

_’smmed incompetent, nor shall such persen be held incom-

petent except as determined by a court. Such determina-

tion shall be separate from a judicial proceeding held to

determine whether a person is subject to involuntary ad-

mission or meets the standard for judicial admission. .

Section 2-102. (a) A recipient of services shall be

provided with adequate and humane care and services

in the least restrictive environment, pursuant to an in-

dividual services plan, which shall be formulated and

periodically reviewed with the participation of the recipi-

ent to the extent feasible and, where appropriate, such

recipient’s nearest of kin or guardian. A qualified pro-

fessional shall be responsible for overseeing the imple-

mentation of such plan.

(b) A recipient of services who is an adherent or a

member of any well-recognized religious denomination,

the principles and tenets of which teach reliance upon

services by spiritual means through prayer alone for

healing by a duly accredited practitioner thereof, shall

have the right to choose such services. The parent or

guardian of a recipient of services who is a minor, or a

guardian of a recipient of services who is not a minor,

shall have the right to choose services by spiritual means

through prayer for the recipient of services.

Section 2-103. Except as provided in this Section, a

recipient who resides in a mental health or developmental

disabilities facility shall be permitted unimpeded, pri-

vate, and uncensored communication with persons of his

choice by mail, telephone and visitation,

— on

(a) The facility director shall ensure that corres-

pondence can be conveniently received and mailed, that

telephones are reasonably accessible, and that space for

visits is available. Writing materials, postage and tele-

phone usage funds shall be provided in reasonable

amounts to recipients who reside in Department facilities

and who are unable to procure such items.

(b) Reasonable times and places for the use of tele-

phones and for visits may be established in writing by

the facility director.

(ec) Unimpeded, private and uncensored communica-

tion by mail, telephone, and visitation may be reasonably

restricted by the facility director only in order to pro-

tect the recipient or others from harm, harassment or in-

timidation, provided that notice of such restriction shall

be given to all recipients upon admission. However, all

letters addressed by a recipient to the Governor, mem-

bers of the General Assembly, Attorney General, judges,

state’s attorneys, offices of the Department, or licensed

attorneys at law must be forwarded at once to the per-

sons to whom they are addressed without examination by

the facility authorities. Letters in reply from the officials

and attorneys mentioned above must be delivered to the

recipient without examination by the facility authorities.

Section 2-104. Every recipient who resides in a men-

tal health or developmental disabilities facility shall be

permitted to receive, possess and use personal property

and shall be provided with a reasonable amount of stor-

age space therefor, except in the circumstances and

under the conditions provided in this Section.

(a) Possession and use of certain classes of property

may be restricted by the facility director when neces-

sary to protect the recipient or others from harm, pro-

mY

vided that notice of such restriction shall be given to all

recipients upon admission.

(b) The professional responsible for overseeing the

implementation of a recipient’s services plan may, with

the approval of the facility director, restrict the right to

property when necessary to protect such recipient or

others from harm.

(c) When a recipient is discharged from the mental

health or developmental disabilities facility, all of his

lawful personal property which is in the custody of the

facility shall be returned to him.

Section 2-105. A recipient of services may use his

money as he chooses, unless he is a minor or prohibited

from doing so under a4 court guardianship order. A re-

cipient may deposit or cause to be deposited money in

his name with a service provider or financial institution

with the approval of the provider or financial institution.

Money deposited with a service provider shall not be re-

tained by the service provider. Any earnings attributable

to a recipient’s money shal! accrue to him.

Except where a recipient has given informed consent,

no service provider nor any of its employees shall be

made representative payee for his social security, pen-

sion, annuity, trust fund, or any other form of direct

payment or assistance.

When a recipient is discharged from a service pro-

vider, all of his money, including earnings, shali be re-

turned to him.

Section 2-106. A recipient of services may perform

labor to which he consents for a service provider, if the

professional responsible for overseeing the implementa-

tion of the services plan for such recipient determines

wsten

that such labor would be consistent with such plan. A

recipient who performs labor which is of any consequen-

tial economic benefit to a service provider shall receive

wages which are commensurate with the value of the

work performed, in accordance with applicable federal

and state laws and regulations. A recipient may be re-

quired to perform tasks of a personal housekeeping

nature without compensation.

Wages earned by a recipient of services shall be con-

sidered money which he is entitled to receive pursuant to

Section 2-105, and such wages shall be paid by the ser-

vice provider not less than once a month.

Section 2-107. An adult recipient of services, or, if the

recipient is under guardianship, the recipient’s guardian,

shall be given the opportunity to refuse generally ac-

cepted mental health or developmental disability services,

including but not limited to medication, unless such ser-

vices are necessary to prevent the recipient from causing

serious harm to himself or others. If such services are

refused, they shall not be given. The facility director

shall inform a recipient or guardian who refuses such

services of alternate services available and the risks of

such alternate services, as well as the possible conse-

quences to the recipient of refusal of such services.

Section 2-108. Restraint may be used only as a thera-

peutic measure to prevent a recipient from causing physi-

cal harm to himself or otherr mn no event shall restraint

be utilized to punish or discipline a recipient, nor is re-

straint to be used as a convenience for the staff.

(a) Except as provided herein, restraint shall be em-

ployed only upon the written order of a physician. No

restraint shall be ordered unless the physiciar, after per-

sonally observing and examining the recipient, is clinic-

nites

ally satisfied that the use of restraint is justified to

prevent the recipient from causing physical harm to

himself or others. The order shall state the events lead-

ing up to the need for restraint and the purposes for

which such restraint is employed. The order shall also

state the length of time restraint is to be employed and

the clinical justification for such length of time. No order

for restraint shall be valid for more than 12 hours. If

further restraint is required, a new order must be issued

by a physician pursuant to the requirements provided

herein.

(b) In the event there is an emergency requiring the

immediate use of restraint, it may be ordered temporari-

ly by a qualified person only where a physician is not

immediately available. In such event, a written order of

a physician shall be obtained pursuant to the require-

ments of this Section as quickly as possible, but in no

event later than 8 hours after the initial employment of

such emergency restraint; and whoever orders restraint

in such emergency situations shall document its necessity

and place that documentation in the patient’s record.

(c) The person who orders restraint shall inform the

facility director in writing of the use of restraint as soon

as practicable.

(d) The facility director shall review all restraint

orders daily and shall inquire into the reasons for the

orders for restraint by any person who routinely orders

them.

(e) Restraint may be employed during all or part of

one 24 hour period, such period commencing with the

initial application of the restraint. However, once re-

straint has been employed during one 24 hour period, it

‘Shall not be used again on the same recipient during the

— 20 —

next 2 following calendar days without the prior written

authorization of the facility director.

(f) Restraint shall be employed in a humane and

therapeutic manner. Specifically, unless there is an im-

mediate danger that the recipient will physically harm

himself or others, restraint shall be loosely applied to

permit freedom of movement. Further, the recipient

shall be permitted to have regular meals and toilet privi-

leges free from such restraint, except when freedom of

action may result in physical harm to the recipient or

others.

Section 2-109. Seclusion may be used only as a thera-

peutic measure to prevent a recipient from causing

physical harm to himself or others. In no event shall

seclusion be utilized to punish or discipline a recipient,

nor is seclusion to be used as a convenience for the staff.

(a) Seclusion shall be employed only upon the written

order of a physician. No seclusion shall be ordered unless

the physician, after personally observing and examining

the recipient, is clinically satisfied that the use of seclu-

sion is justfied to prevent the recipient from causing

physical harm to himself or others. The order shall state

the events leading up to the need for seclusion and the

purposes for which such seclusion is employed. The

order shall also state the length of time seclusion is to

be employed and the clinical justification for such length

of time. No order for seclusion shall be valid for more

than 8 hours. If further seclusion is required, a new or-

der must be issued by a physician pursuant to the re-

quirements provided herein.

(b) The physician who orders seclusion shall inform

the facility director in writing of the use of seclusion as

soon as practicable.

—2—

(ec) The facility director shall review all seclusion

orders daily and shall inquire into the reasons for the

orders for seclusion by any physician who routinely or-

ders them.

(d) Seclusion may be employed during all or part of

one 8 hour period, such period commencing with the ini-

tial application of the seclusion. However, once seclusion

has been employed during one 8 hour period, it shall

not be used again on the same recipient during the next

2 following calendar days without prior written author-

ization of the facility director.

(e) The physician who ordered the seclusion shall as-

sign a qualified person to observe the secluded recipient

at least every 15 minutes. Such qualified person shall

maintain a record of such observations.

(f) Safety precautions shall be followed to prevent

injuries to the recipient in the seclusion room. Seclusion

rooms shall be adequately lighted, heated, and furnished.

If a door is locked, someone with a key shall be in con-

stant attendance nearby.

Section 2-110. No recipient of services shall be sub-

jected to electro-convulsive therapy, or to any unsual,

hazardous, or experimental services or psychosurgery,

without his written and informed consent.

If the recipient is a minor or is under guardianship,

such recipient’s parent or guardian is authorized, only

with the approval of the court, to provide informed con-

sent for participation of the ward in any such services

which the guardian deems to be in the best interest of

the ward.

Section 2-111. A medical or dental emergency exists

when delay for the purpose of obtaining consent would

endanger the life or adversely and substantially affect

the health of a recipient of services. When a medical or

dental emergency exists, if a physician or licensed den-

tist who examines a recipient determines that the recipi-

ent is not capable of giving informed consent, essential

medical or dental procedures may be performed without

consent. No physician nor licensed dentist shall be liable

for a non-negligent good faith determination that a medi-

eal or dental emergency exists.

In addition to the rights elicited in Article I above,

under Article II entitled “Procedures”, dissemination,

distribution, and implementation of those rights is guar-

anteed in Sections 2-200 throngh 2-202 which states as

follows: )

Section 2-200. Upon commencement of services, every

recipient who is 12 years of age or older and the parent

or guardian of a minor or person under guardianship

shall be informed orally and in writing of the rights guaran-

teed by this Chapter. A summary of these rights shall

also be posted conspicuously in public areas of every fa-

cility that provides service.

Section 2-201. Whenever any rights of a recipient of

services that are specified in this Chapter are restricted,

the professional responsible for overseeing the imple-

mentation of the recipient’s services plan shall be re-

sponsible for promptly giving notice of the restriction

or use of restraint or seclusion and the reason therefor

to:

(a) the recipient and, if such recipient is a minor or

under guardianship, his parent or guardian:

(b) a person designated by the recipient upon com-

mencement of services or at any later time to receive

such notice, or if no such person is designated, the near-

est relative of the recipient; and

(c) the Guardianship and Mental Health Advocacy

Commission, if the recipient so designates.

The professional shall also be responsible for promptly

recording such restriction or use of restraint or seclu-

sion and the reason therefor in the recipient’s record.

Section 2-202. The Director of the Department and

the facility director of each service provider shall adopt

in writing such policies and procedures as are necessary

to implement this Chapter. Such policies and procedures

may amplify or expand, but shall not restrict or limit,

the rights guaranteed to recipients by this Chapter.

In Chap. I entitled ‘‘Definitions’’, Section 1-119 en-

titled “Person subject to involuntary admission” or “sub-

ject to involuntary admission” is defined as:

1. A person who is mentally ill and who, because

of his illness, is reasonably expected to inflict seri-

ous physical harm upon himself or another in the

near future; or

2. A person who is mentally ill and who, because

of his illness, is unable to provide for his basic

physical needs so as to guard himself from serious

harm.

When any person is presented for admission to a men-

tal health facility under this subsection within seven (7)

days thereafter, the facility shall provide or arrange for

a comprehensive physical and mental examination and

social investigation of that person. This examination

shall be used to determine whether some program other

than hospitaiizaiion will meet the needs of such person

with preference being given to care or treatment in his

own community. The foregoing definition of a person in

need of mental treatment taken in conjunction with Ar-

ticle VIII entitled “Court Hearings”, illustrates that the

current Illinois Mental Health Code is replete with pro-

tections to assure that the rights of an individual are

protected by:

—allowing hearings to be held in the mental! health

facility where the respondent is hospitalized. (Sec-

tion 3-800)

—entitling the respondent to a jury trial (Section

3-802)

—court appointment of one or more physicians,

qualified examiners, clinical psychologists, or other

experts, to examine the respondent. (Section 3-803)

—allowing the respondent to secure ar independent

examination by a physician, qualified examiner, clini-

cal psychologist, or other expert, even if the indi-

vidual is unable to pay for the same. (Section 3-804)

—assuring rights to counsel in every case of civil

commitment whether or not the respondent is able

to pay for the same services. (Section 3-805)

—guaranteeing respondent his right to be present at

any hearing under this Act. (Section 3-806)

—assuring that a respondent may not be found sub-

ject to involuntary admission. (Section 3-807)

—guaranteeing a respondent that a treatment plan

shall be provided, including a report on appropriate-

ness and availability of alternative treatment set-

tings, social investigation of respondent, and a treat-

ment plan which shall describe the respondent’s

problems and needs, the treatment goals, the pro-

posed treatment methods, and a projected time table

for their attainment. (Section 3-810)

—the court shall consider alternative mental health

facilities, using the least restrictive alternative set-

tings for treatment which is appropriate in all cases

(Section 3-811)

—establishes an initial order for hospitalization

which shall be for a period not to exceed 60 days.

After that, every 180 days further review and treat-

ment plan must be established and resubmitted to the

o— in order to continue hospitalization. (Section

J

—all final court orders must be in writing and ac-

companied by a statement on the record of the court

findings and facts and conclusions of law which must

be presented to the patient. Also an appeal from any

final order may be taken in the same manner as in

any other civil cases, and the court must notify the

patient orally and in writing of his right to appeal

and inform him of his right to a free transcript

and counsel if, in fact, he is indigent. (Section 3-816)

Senate Bill 252 is the amendment to the current Pro-

bate Act. The Act sets up the guidelines for appointing

guardians for persons whose legal rights have been im-

paired or for those people who lack sufficient under-

standing or capacity to make or communicate responsible

decisions concerning the care of their persons or estates.

The appointment provisions guarantee that the highest

standards of care will be utilized in ascertaining and ap-

pointing appropriate persons to act in the capacity of

guardian for a mentally ill or mentally disabled indi-

vidual in the confines of the State of Illinois. The differ-

ent types of guardians, in addition to the diffe.ent types

of guardianship are clearly enumerated, along with the

duties of the prospective guardian. Senate Bill 252,

taken in conjunction with Senate Bill 253, which estab-

lishes the Office of the Guardian, clearly assures that

all individuals lacking legal rights will have an appro-

priate guardian appointed, whose duties and. ~esponsi-

bilities are clearly designated by statute to assure that

the rights and well-being of a given patient are thorough-

ly protected.

Pe ee

In addition-to creating the Office of the Guardian, Sen-

ate Bill 253 also provides for the establishment of the

Mental Health & Developmental Disabilities Legal Ad-

vocacy Service and the Human Rights Authority. Inas-

much as this Bill creates a special state agency super-

vised by a board of nine members appointed by the

Governor, it is truly a unique and model method for as-

suring proper patient care and treatment in both the

public and private sectors of this State. The Office of

the State Guardian was established to achieve a flexible

and rational protective service structure, particularly

for the mentally disabled citizenry reaching the age of

majority. At present, an adjudication of legal incompe-

tency (to be distinguished from e finding that a person

is in need of mental treatment) results in the loss of all

civil rights. There is no flexibility in the appointment of

a conservator for the most part, and the resultant loss

of civil rights authorizes the conservator to assume all

authority over his ward. The existing conservator struc-

ture was criticized as being designed primarily for the

affluent.

In response to this criticism, the model legislation re-

cently signed by Governor Thompson creates a relatively

easy and responsive process, wherein the court can

fashion its guardianship order commensurate with the

needs and abilities of the mentally disabled person.

Patients’ civil rights are protected to the full extent

possible in light of the circumstances under which they

were hospitalized. The court order respects the authority

of the guardian and the rights of the disabled person.

Interested parents and family members continue to have

priority in the appointment process. Where there are no

available or interested family members to serve as con-

servator, the newly created Office of the State Guardian

_—

assumes that role and, in addition, counsels families and

relatives. Procedural due process is provided by requir-

ing the appointment of a guardian ad litem with exper-

tise in dealing with the mentally disabled, and, under

certain circumstances, by additional appointment of legal

counsel to represent the mentally disabled person. This

model legislation meets a long-standing need; it is re-

sponsive to the immediate concerns of families of men-

tally disabled persons and to the future interests of the

patient, to protect him when his parents or family die

or are disabled.

The Mental Health & Developmental Disabilities Legal

Advocacy Service works to meet the need for appointing

counsel in all cases where the mentally disabled are pres-

ent. The need for counsel is apparent in involuntary

hospitalization proceedings—but is equally important in

other areas. These areas include effective advocacy on

behalf of mentally disabled adults and children who are

being denied admission or who may be inappropriately

transferred or prematurely discharged from the public

sector. They also include enforcement of the rights of

the mentally disabled against the public and private

agencies mandated to provide services. The Federal gov-

ernment has already mandated in the current develop-

mental disability legislation, that states must provide an

advocacy component for developmentally disabled clients

which is independent of the service provided. The new

legislation for Illinois is not only enlightened and in

compliance with the Federal trend, but is also designed

to pragmatically insure that mentally disabled persons

receive those services which the legislature has man-

dated to be provided.

In addition, the advocacy service is designed to afford

services of a private nature for institutionalized patients.

These services include providing legal assistance in real-

estate transactions, divorce actions, personal estate

matters, or any of a multitude of legal problems which

may be involved in the day-to-day life of an individual

patient.

The Human Rights Authority legislation is a. compan-

ion to and acts in tandem with the Legal Advocacy Ser-

vice. It will consist of interested professionals and con-

sumers who will investigate, through their own initiative

or in response to complaints, alleged abuses against men-

tally disabled recipients of services. Many of these

human rights groups already exist informally in some

institutions in the public sector and are composed of

interested parents, relatives and some professional staff-

particularly in developmental disabilities institutions.

The new law formally and statutorily creates a Human

Rights Authority with the ability to effectively monitor

and resolve complaints.

Senate Bill 225 deals with confidentiality of mental

health records. The current Illinois statutes accord a

privilege of confidentiality to only certain designated

therapeutic professionals, namely: physicians, psychia-

trists, certified social workers and registered psycholo-

gists. This new legislation protects communications of

not only those professionals previously concerned, but

also extends the veil of privilege to communications with

other persons who provide necessary services.

In addition, the new law specifically expands the right

of a person who receives mental health or developmental

disability services to have access to his own records.

2 aie. 2 we

iti.

The act requires that before disclosure of a record of

a confidential nature, the patient give an informed con-

sent. The elements of a consent form are set forth in

the new law, and limited exceptions permit disclosure

without informed consent, under extraordinary .cireum-

stances. Similarily, exceptions to the privilege of con-

fidentiality in judicial and administrative proceedings

are defined and limited, such as: civil competency to

manage one’s own affairs; fitness to stand criminal trial;

legal action brought under the Confidentiality Act itself;

and proceedings based on child abuse and neglect. The

new code further provides that a court considering the

applicability of a privilege or any exceptions thereto is

authorized to enter protective orders to exclude irrele-

vant information and to inspect and examine confidential

material in camera.

CONCLUSION

The People of the State of Illinois have a deep and

compelling interest in the decision of this Court. This

State has consistently strived to maintain the optimum

balance between the rights of patients and society in

general through its progressive legislation and programs

for the mentally disabled. The stringent standard of

commitment required by Illinois law, when coupled with

the rights of review—both administrative and judicial—

and the local definition of “clear and convincing proof”

provide for a viable, reasonable, and Constitutional Men-

tal Health Code. A decision by this Court wiin applica-

tions to Illinois and other progressive states might act

to prevent those in need of treatment from obtaining

needed clinical intervention. For the foregoing reasons,

— 30 —

amicus curiae, the State of Illinois, respectfully urges

this Court to limit its holding in this cause and find that

the due process clause does not require the application

of “proof beyond a reasonable doubt” in all mental com-

mitment cases.

Respectfully submitted,

WuuiaM J. Scorr

Attorney General, State of Illinois on

behalf of the Illinois Department of Men-

tal Health and Developmental Disabilities

160 N. LaSalle St.

Chicago, Illinois 60601

(312) 793-2752

Bernarp Cargy

States Attorney of Cook County

500 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-4567

Counsel for Amicus Curiae

Avan GriscHKE*

Special Assistant Attorney General

Paut P. Bersen, Jr.

Deputy State’s Attorney

Henry A. Hauser,

Timotuy Szwep,

Assistant State’s Attorneys

Of Counsel.

* Christine A. Bremer, J.D., law clerk for the Illinois

Department of Mental Health & Developmental Disabil-

ities, proveee assistance in the research and prepara-

tion of this brief.