Petition — Youngberg v. Romeo
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a. yor Court, U.S.
80-1429
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SUEXERDER L STEVAs,
CLERK
im the Supreme Court
Unjted States
October Term, 1980
No.
DUANE YOUNGBERG, Individually and in His Official
Capacity as Superintendent, Pennhurst State School and
Hospital, and RICHARD MATTHEWS, Individually and in
His Official Capacity as Director of Resident Life, Penn-
hurst State School and Hospital, and MARGUERITE CON-
LEY, Individually and in Her Official Capacity as Unit
Director, Unit 9, Pennhurst State School and Hospital,
Petitioners
v.
NICHOLAS ROMEO, an Incompetent, by His Mother and
Next Friend, PAULA ROMEO,
Respondent
PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
DAVID H. ALLSHOUSE
Deputy Attorney General
ROBERT B. HOFFMAN
; Deputy Attorney General
JOSEPH. W. McGUIRE ALLEN ©. WARSHAW
Suite 1000 Deputy Attorney General
3 Penn Center Plaza Chief, Civil Litigation
16th and Market Sts. LEROY S. ZIMMERMAN
Philadelphia, PA 19102 Attorney General
(215) 564-4960 Office of Attorney
JONATHAN WHEELER General
FRANK, MARGOLIS, 1641 Strawberry Square
EDELSTEIN & SCHERLIS Harrisburg, PA 17120
Suite 420, 1315 Walnut St. (717) 783-1471
Philadelphia, PA 19107 Attorneys for
(215) 732-3838 Petitioners
Murrelle Printing Co., Box 100, Sayre, Pa. 18840—(717) 888-2244
STATEMENT OF QUESTIONS PRESENTED FOR
REVIEW
1. Whether the Court of Appeals erred in holding
that institutionalized mentally retarded persons have sub-
stantive due process rights (1) to receive treatment which
is both acceptable in light of present medical or other
scientific knowledge and which is the least intrusive treat-
ment available under the circumstances; (2) to be free of
restraints, whether for treatment or protection, absent a
showing of compelling necessity and (3) to be protected
from harm, however caused, absent a showing of substan-
tial necessity.
2. Whether an appellate court which admittedly
creates new constitutional rights in considering claims for
damages under 42 U.S.C. §1983 must, as a matter of law,
direct dismissal of that claim on the grounds of qualified
immunity.
TABLE OF CONTENTS
PETITION:
Statement of Questions Presented for Review .......
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Constitutional and Statutory Provisions ....................
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Reasons for Granting the Writ:
I. This Case Presents Questions of Great Pub-
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Il. The Decision of the Court of Appeals Is
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A. The Third Circuit erred in evaluating the
rights of the mentally retarded ................
B. After creating new constitutional rights,
the Court below erred in failing to direct
dismissal on the grounds of qualified im-
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APPENDIX:
Opinion, United States Court of Appeals for the
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Memorandum, District Court ...0.....cccccccccocsessescseeeeee 79a
PRE TSENE IIE Fin aiitibisodoscsccssssbivbeoniectseusssesitics 85a
Second Amended Complaint ............:c:sscssseseseseeeeees 86a
Plaintiff’s Proposed Jury Instructions .............cc0c000. 93a
Excerpts From Transcript of Testimony ................. 97a
SD TI COP CIID ipo acksk dich cas sssccdeccvoeedecceseddddesiboviée 110a
Opinion, Scott v. Plante et al. ..........ccccssecsssesesesseeee i 16a
TABLE OF AUTHORITIES
CASES:
Bell v. Wolfish, 441 U.S. 520 (1979) ........ 11,17,19
Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio
OE webs Wena eb iedsrescsaucses vedere 12
Donaldson v. O’Connor, 493 F.2d 507 (5th Cir.
oo Ra eg pe Coe Pe) CEE Re 5 PEE 12
Estelle v. Gamble, 429 U.S. 97 (1976) ........ 6,11, 18
Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976) to
Halderman v. Pennhurst State School and Hospital,
612 F.2d 84 (3rd Cir. 1979) ........ 5, 6, 7, 10, 18, 19
Illinois State Board of Elections v. Socialist Workers
Party, 440 US. 173 (1979) ......cescoeee 17
Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206
CERO air ciucckwarteteapocvcencstieus'ds 13
J. L. v. Parham, 412 F. Supp. 112 (M.D. Ga. 1976) = 12
Morales v. Turman, 562 F.2d 993 (5th Cir.) ..... 12,19
" : Idson, 442 U.S. 563 (1974) ..
O’Connor v. Donaldson ah ie
iii
Parham v. J. R., 442 U.S. 584 (1979) ........ 12, 15, 17
Parratt v. Taylor, No. 79-1734 (U.S. S.Ct.) ...... 10
Paul v. Davis, 424 U.S. 693 (1976) ............ 11,18
Procunier v. Navarette, 434 U.S. 555 (1978) ....20,21
Scheuer v. Rhodes, 416 U.S. 232 (1974) ........ 20, 21
Scott v. Plante, Nos. 80-1314/1315, 80-1596 (3d
Ss EG a NED in c.cckeeeeoeesecnes 13, 16
Screws v. United States, 325 U.S. 91 (1945) .... = 11
State v. Sanchez, 396 U.S. 276 (1970) .......... 11
Welsch v. Likins, 550 F.2d 1122 (8th Cir.1977) .. 12
Wood v. Strickland, 420 U.S. 308 (1975) ...... 21
Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) 12
FEDERAL CONSTITUTIONAL PROVISIONS:
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Fourteenth Amendment ..............seeeeee. 2,6
FEDERAL STATUTES:
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42 US.C. $96001-6081 .... cc ccccrccccvveces 10
STATE STATUTE:
Pennsylvania Mental Health and Mental Retardation
Act of 1966, Pa. Stat. Ann. tit. 50, §4406
Cae id cates oc eh oe ee debed eae 2,3, 4, 18
iv
Opinions Below and Jurisdiction 1
OPINIONS BELOW
The opinion of the Third Circuit has not yet been
reported, and is reproduced in the appendix (1a). The
opinion of the District Court on the defendants’ motion
to dismiss was not reported, Romeo v. Youngberg, No.
76-3429 (E.D. Pa., filed June 6, 1977), and is also re-
produced in the appendix (79a-85a) .
STATEMENT OF JURISDICTION
The Court of Appeals filed its decision on November
24, 1980. Jurisdiction of this Court is invoked pursuant
to 28 U.S.C, §1254(1).
2 Constitutional and Statutory Provisions
CONSTITUTIONAL AND STATUTORY PROVISIONS
United States Constitution
Eighth Amendment:
Excessive bail shall not be required, nor ex-
cessive fines imposed, nor cruel and unusual punish-
ments inflicted.
| Fourteenth Amendment:
[N ]or shall any State deprive any person of life,
liberty, or property, without due process of law. .. .
United States Statute
42 U.S.C. §1983:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Con-
stitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress.
Pennsylvania Statute
Pa. Stat. Ann. tit. 50 §4406
(a) Whenever a person is believed to be men-
tally disabled, and in need of care or treatment by
reason of such mental disability, and examination of
such person has been made by a physician or physi-
cians, or for any reason the examination of such per-
Constitutional and Statutory Provisions 3
son cannot be made, a petition may be presented to
the court of common pleas of the county in which
a person resides or is, for his immediate examina-
tion or commitment to an appropriate facility for ex-
amination, observation and diagnosis.
4 Statement of the Case
STATEMENT OF THE CASE
Plaintiff is a profoundly mentally retarded person
who was involuntarily committed’ to Pennhurst State
School and Hospital’ in July of 1974, at age 26, at the
request of his mother, who was no longer able to care for
him at home. While at Pennhurst, plaintiff has been in-
jured on a number of occasions. These injuries were both
self-inflicted and the result of attacks by other residents,
mostly in retaliation against his aggressive behavior.
This civil rights action was brought in November of
1976 by plaintiff’s mother on his behalf. By his original
complaint, plaintiff sought damages under 42 U.S.C. §1983
from three supervisory officials at Pennhurst for the in-
juries he had incurred,’ relying on the Eighth and Four-
teenth Amendments. He also sought an injunction re-
quiring that he be protected from such harm in the future.
Subsequently, plaintiff amended his complaint to in-
clude allegations that defendants had kept him shackled
or otherwise physically restrained to a bed or chair in the
1 Plaintiff was committed pursuant to the involuntary com-
mitment provision of the Pennsylvania Mental Health and Men-
tal Retardation Act of 1966, Pa. Stat. Ann. tit. 50 §4406 (Pur-
don). The legality of that commitment is not at issue in this
case,
?Pennhurst is a state operated institution for the mentally
retarded. It is the focus of Pennhurst State School and Hos-
pital v. Halderman, No. 80-1404, presently pending before this
Court.
8 Plaintiff alleged that defendants knew of his injuries and,
as supervisors, failed to create procedures which would have
avoided such injuries from occurring in the future,
Statement of the Case 5
hospital at Pennhurst for long periods of time each day."
The amended complaint also sought damages for defend-
ants’ alleged failure to provide plaintiff appropriate treat-
ment in the least restrictive environment. Plaintiff also
requested injunctions against the alleged constitutional vio-
lations, but withdrew those requests prior to trial.°
Trial was held in April of 1978. At trial, the Dis-
trict Court refused to permit plaintiff to present the testi-
mony of two experts who, according to plaintiff, would
have testified that the plaintiff’s treatment programs at
Pennhurst were inappropriate and that plaintiff’s injuries
were the result of the failure to provide more appropriate
programming" (97a-101a, 102a-104a) Plaintiff also repre-
sented that one of those experts would testify that, while
restraints are a proper mode of treatment in some cases,
they were used improperly in plaintiff’s case (101a). The
District Court excluded the testimony, ruling that, while it
might be relevant to an issue of malpractice, it had no sele-
vance to the constitutional claims’ (101a, 105a, 109a).
In addition, the District Court rejected a jury in-
struction proposed by plaintiff which maintained that
* At trial, defendants contended that plaintiff was placed in
the hospital at the request of his attorney and that in that setting
restraints were necessary to protect other patients.
5 Plaintiff is a member of the class in Halderman v. Penn-
hurst State School and Hospital, 612 F.2d 84 (3d Cir. 1979),
cert. granted, 100 S.Ct. 2984 (1980), and, therefore, was required
to seek injunctive relief in the context of that case.
*There is no dispute that plaintiff has received treatment
while at Pennhurst. Plaintiff does dispute the appropriateness
of that treatment.
™The evidence showed that plaintiff had received a variety
of treatment programs intended to curb his aggressive behavior
and reinforce his self-help skills (N.T. 5-44, 5-45, 5-48, 5-55).
6 Statement of the Case
plaintiff had a right to treatment in the least restrictive
environment. Instead, determining that plaintiff’s claims
were governed solely by the Eighth Amendment,’ the court
instructed the jury that in order to find for plaintiff, it
must find that defendants acted with “deliberate indiffer-
ence to the serious medical needs of the resident.’”
At the conclusion of eight days of trial, the jury re-
turned a verdict in favor of all defendants. Plaintiff ap-
pealed that verdict to the Court of Appeals.
On appeal, the Court of Appeals’® found that the
District Court had erred in excluding the expert testimony
offered by plaintiff and that the court had also erred in
issuing an Eighth Amendment instruction to the jury.”
Accordingly, the Court of Appeals vacated the judgment
* Neither plaintiff’s complaint nor his proposed points for
charge describe the specific source of the constitutional rights as-
serted by him. Rather, repeated reference is made to rights un-
der the Kighth and Fourteenth Amendments. The District Court
apparently construed plaintiff's claims as arising solely under
the Eighth Amendment as made applicable to the states under
the Fourteenth Amendment. The Court of Appeals disagreed.
While recognizing plaintiff's failure to assert clearly the Four-
teenth Amendment as a separate legal basis for relief, the Court
of Appeals construed the complaint as asserting substantive due
process claims (6a, n. 2).
*In so doing, the court relied on Estelle v. Gamble, 429 U.S.
97 (1976).
1° The case was first heard in January of 1979 by the same
panel that heard Halderman v. Pennhurst State School and Hos-
pital, supra. As in Halderman, that panel issued no opinion;
instead, after issuance of the Halderman opinion by the Court
en banc, this case was scheduled for reargument before the Court
en banc. Reargument was heard April 28, 1980.
11 pfaintiff raised several other grounds for reversal. The
Court of Appeals did not base its decision on those grounds.
Statement of the Case 7
of the District Court and remanded the case for a new
trial.
However, the Third Circuit was sharply divided, five-
four,” on the issue of the standards to be applied in
evaluating plaintiff's claims. The majority discerned
three separate constitutional rights, all based in substan-
tive due process: (1) a right to be free from undue bodily
restraint; (2) a right to personal security and protection;
and (3) a right to the “least intrusive” adequate treat-
ment.”
Specifically, the majority held that the use of physi-
cal restraints may be justified only by defendants’ show-
ing of “‘compelling necessity”, i.e., that the restraints are
essential to protect or treat the resident (18a-20a). In
addition, in order to be justified, the restraints used must
have been “the least restrictive method of dealing with
the patient in light of his problems and the surrounding
environment” (18a-19a). Finally, the majority held that,
except in emergency situations, neither inadequate re-
sources nor administrative concerns justify the use of re-
straints (18a).
The majority went on to hold that a failure to pro-
tect a resident from attacks by other residents could be
justified only by “substantial necessity” (25a). Accord-
ing to the majority, the “substantial necessity” standard
12There were three concurring opinions (48a-78a).
18'The lower court purported to limit its holding to the in-
voluntarily confined (3a, 47a). This distinction is apparently ir-
relevant in light of that court’s tiolding in Halderman that all
residents of Pennhurst were there involuntarily, 612 F.2d at 94.
14 Thus, according to the majority, the use of restraints to
protect others is not permissible under any circumstances.
8 Statement of the Case
would require the jury to distinguish between isolated
mishaps and patterns of attacks, injuries or violent be-
havior (25a).
Finally, in evaluating plaintiff’s right to treatment
claim, the majority established three separate standards.
While conceding that the evidence in this case did not
suggest a failure to treat plaintiff, the majority nonethe-
less addressed that situation,’® holding that a failure to
provide treatment can be justified only by a compelling
explanation (35a, 47a). On the other hand, if some treat-
ment is provided, the constitution generally requires that
that treatment be both “acceptable in light of present med-
ical or other scientific knowledge” (36a-38a) and the
“least intrusive treatment available under the circum-
stances” (31a-32a) .””
The four concurring judges, per Chief Judge Seitz,
disagreed with the majority’s multi-pronged approach. In-
stead, recognizing that each of plaintiff’s claims involved
mixed questions of law and medical judgment, Chief Judge
Seitz found that plaintiff's claim should be evaluated un-
18 As each of the concurring judges noted, the majority con-
sidered several issues not raised in this case (Seitz, CJ, 48a;
Aldisert, J., 74a; Garth, J., 76a-77a). Moreover, these issues are
also incorporated in proposed jury instructions set forth in an ap-
pendix to the majority opinion (47a).
16 While, in its proposed jury instructions, the court purported
to limit application of the ‘‘least intrusive treatment’’ require-
ment to those situations imposing ‘‘significant deprivations of
liberty’’ (47a), this distinction is meaningless. Obviously, where
no ‘‘significant deprivation of liberty’’ is occurring, a nonre-
strictive treatment is being used, satisfying the ‘‘least intrusive’’
standard. Thus, implicitly or explicitly, the ‘‘least intrusive’’
standard must be met in every treatment decision.
Statement of the Case 9
der a single standard: whether defendants’ conduct “was
such a substantial departure from accepted professional
judgment, practice, or standards in the care and treatment
of this plaintiff as to demonstrate that the defendants did
not base their conduct on a professional judgment” (59a).
It is from this decision that the defendants, herein-
after referred to as petitioners, seek a writ of certiorari.
10 Reasons for Granting the Writ
REASONS FOR GRANTING THE WRIT
I, This Case Presents Questions of Great Public
Importance
“This case presents legal issues that take the next
step beyond Halderman [v. Pennhurst State School and
Hospital, 612 F.2d 84 (3d Cir. 1979) (en banc), cert.
granted, 100 S.Ct. 2984 (1980) ,]’”"’ a case heard by this
Court earlier this term. In Halderman, the Third Circuit
found a right to treatment in the least restrictive environ-
ment under a federal statute’® and, therefore, found it un-
necessary to reach the constitutional right to treatment
issues.” In this case, however, the Third Circuit was
required to reach those constitutional issues” and to do
so in the context of the specific treatment provided an
individual resident of Pennhurst.
This case also involves an issue akin to that pre-
sented in Parratt v. Taylor, No. 79-1734 (U.S. S.Ct.),
cert. granted, 101 S.Ct. 315 (1980), a case this Court will
consider later this term. In Parratt, the Eighth Circuit
summarily affirmed a district court ruling that simple negli-
17 (49a) (Seitz, C.J., concurring).
18 Developmentally Disabled Assistance and Bill of Rights
Act, 42 U.S.C. §§6901-6081.
Tf, as requested by petitioners therein, this Court reverses
the lower court’s statutory finding in Halderman, either this
Court or the Court of Appeals would then be required to reach
essentially the same constitutional issues raised in this case.
* Plaintiffs asserted only constitutional claims.
Reasons for Granting the Writ 1i
gence can form the foundation for an action under 42
U.S.C. §1983. 620 F.2d 307 (8th Cir. 1980). In this
case, the Third Circuit has adopted that proposition and
extended it to malpractice.
In so doing, the Third Circuit broke new ground,
going far beyond the holdings of this Court.” Notwith-
standing this Court’s repeated admonition against the
creation of constitutional torts,” the Third Circuit has
done exactly that—in triplicate. First, the court found
that institutionalize. mentally retarded persons have a
substantive due process right to treatment which is “‘ac-
ceptable in light of present medical or other scientific
knowledge” (37a-38a) and which must also be the “least
intrusive available under the circumstances” (31a-32a).
But see O’Connor v. Donaldson, 422 U.S. 563 (1974)
(establishing a right to liberty where no treatment provided
to a non-dangerous patient who is able to survive safely in
freedom). The court also held that such persons have
separate and distinct due process rights to be free of re-
straints except in cases of “compelling necessity” and to
be protected from harm unless “substantial reasons” ex-
ist for the failure to do so (18a-20a, 25a). But see Bell v.
Wolfish, 441 U.S. 520 (1979) (rejecting the use of ‘‘com-
pelling necessity” standard in evaluating conditions of pre-
trial detention). Thus, in an area in which this Court has
*1 Indeed, in State v. Sanchez, 396 U.S. 276 (1970), this
court dismissed for want of a substantial federal question an
appeal asserting a constitutional right to treatment in the least
restrictive environment. The Third Circuit considered Sanchez,
but rejected it as binding precedent (37a, n, 56).
% See, eg., Estelle v. Gamble, 429 U.S. 97 (1976); Paul v,
Davis, 424 U.S. 693 (1976) ; Serews v, United States, 325 U.S, 91
(1945).
12 Reasons for Granting the Writ
cautioned against judicial interference and has itself acted
with extreme restraint,” the Third Circuit has created con-
stitutional rights far beyond those considered, let alone
recognized, by any other court.”
One obvious result of this holding will, of course, be
increased federal litigation. In 1976, there were over
150,000 mentally retarded persons in the United States
residing in state institutions.” Under the Third Circuit's
holding, the \ederal courts will become repositories for
most, if not all, personal injury claims arising in those
institutions as its standards for proving constitutional vio-
lations are generally less stringent than those applicable
to state law claims arising out of identical activities,”* such
® See, eg., Parham v. J. R., 442 U.S. 584 (1979) ; O’Connor
v. Donaldson, supra.
**Many courts have considered the constitutional rights of
the mentally retarded. See, e.g., Welsch v. Likins, 550 F.2d 1122
(8th Cir. 1977) ; Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) ;
Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974); J. L. v.
Parham, 412 F. Supp. 112 (M.D. Ga. 1976), rev’d, on other
grounds, 442 U.S. 584 (1979). Cf. O’Connor v. Donaldson, supra
(mentally ill). No other court has even suggested the standards
of ‘‘compelling’’ or ‘‘substantial necessity’’ in relation to the
treatment of the mentally retarded. In addition, even the Fifth
Circuit, initially the leading proponent of a constitutional right
to treatment, has since expressed its strong reservations concern-
ing the very existence of such a right. Compare Morales v, Tur-
man, 562 F.2d 993 (5th Cir.), rev’d and rem’d on other grounds,
430 U.S. 322 (1977) (per curiam) with Donaldson v. O’Connor,
493 F.2d 507 (5th Cir, 1974), rev’d, 422 U.S. 563 (1975).
25 Halderman v. Pennhurst State School and Hospital, 446
F. Supp. 1295, 1300, n. 7 (E.D. Pa. 1978).
26 An additional incentive to bring these actions in federal
court is the Civil Rights Attorneys’ Fees Awards Act, 42 U.S.C.
§1988.
Reasons for Granting the Writ 13
as malpractice.” In addition, the Third Circuit, relying
exclusively on its decision in this case, has recently created
- equivalent rights for the mentally ill. Scott v. Plante, Nos.
80-1314/1315, 80-1596 (3d Cir., filed Feb. 5, 1981)
(116a). Thus, judicial review, on constitutional grounds,
of individual treatment regimes and modalities will be-
come commonplace, both as to damages and injunctive
relief.
As importantly, while the Third Circuit clearly im-
posed new and extensive obligations on state employees,
the nature of those obligations is far from clear. Indeed,
as is discussed below, those duties appear to conflict with
each other in several respects. Ironically, because of this
vagueness, the decision will likely have serious adverse
effects on the care of the retarded. The reasons were
aptly described by Judge Aldisert, concurring in the de-
cision below:
It has been almost twenty years since I faced a
client across a law office desk. But were I to be
placed in that position today, my advice would prob-
ably go like this: if you are contemplating a position
as an attendant in a mental hospital, seek another
job; there is simply too much unpredictability in the
law governing your conduct. If you are a physician,
make certain that the state’s malpractice insurance
policy includes a clause protecting you from the new
‘constitutional torts’ manufactured today by the Third
Circuit Court of Appeals. If you are an insurance
21 See Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971)
(unjustified departure from established standards of medical
practice is malpractice). Pennsylvania law, of course, makes no
reference to the concept of ‘‘less intrusive treatment’’.
14 Reasons for Granting the Writ
carrier, set your premiums high, anticipating fully
and completely the open-ended notions of ‘substan-
tial’ and ‘compelling’ necessity and ‘least intrusive
treatment.’ If you are a governor or state legislator,
cut back and retrench institutional programs for the
mentally retarded, because the potential for lawsuits
has now increased geometrically, with corresponding
demands on the tax base to support the costs. If you
are a parent with a retarded child, I simply feel
sorry for you. The sincere effort to provide finan-
cial relief for personal injuries suffered by retarded
persons has been accomplished at an enormous social
cost. In striking the balance between how seriously
the complainants are being hurt and how much it
will cost to afford them more relief than is presently
available under state tort Jaw, the balance has been
struck so vaguely that state institutional programs,
already diminishing, will be curtailed further. Given
the recent political currents, there simply are not, and
will not be, sufficient tax dollars, state or federal, to
give the defendants adequate financial protection to
meet the illusory standards promulgated today.
(75a-76a) (Aldisert,J., concurring).
This Court should intervene at this point to avoid
the confusion which will certainly result from the broad
holding of the court below. Accordingly, and because
this case involves issues of great public importance, this
Court should grant review of this case.
Reasons for Granting the Writ 15
il. The Decision of the Court of Appeals Is Clearly
Erroneous
A. The Third Circuit erred in evaluating the rights
of the mentally retarded.
Plaintiff asserted a “right to treatment under the
least restrictive conditions consistent with the purpose of
the commitment” (95a). The Court of Appeals took this
claim and converted it into a complex multi-level series of
constitutional rights relating to institutional conditions.”
The Third Circuit’s holding firmly supports this
Court’s conclusion that courts are poorly equipped to
make medical judgments. Parham v. |.R., 442 US. 584,
606-09 (1979). The series of rights created by the
majority are complex and confusing. Indeed, they im-
pose conflicting obligations on those persons who must
ensure their effectuation. As importantly, they improp-
erly interfere with the exercise of professional judgment,
providing “constitutional” answers to questions which are
still hotly debated among experts (58a) (Seitz, C.J., con-
curring).
In this regard, it is important to note that as even
plaintiff’s expert was prepared to testify (101a), the use
of restraints is an acceptable form of treatment. Like-
wise, the use of restraints may often provide protection
* The court alao determined that expert testimony, exelnded
by the District Court as irrelevant, was relevant under the newly-
created standards, The adrniasibility of the proffered testimony
will depend on the standards ultimately developed, should review
be granted in this case.
16 Reasons for Granting the Writ
from harm, as well as protection for others. Yet, accord-
ing to the Third Circuit, an otherwise appropriate use of
restraints, whether for treatment or protection, is constitu-
tionally prohibited absent “compelling necessity”. In ad-
dition, other “acceptable” modes of treatment are pro-
hibited unless determined to be the “least intrusive treat-
ment available”.
These standards require state officials, including
administrators,” doctors and non-professional staff, to en-
gage in a delicate balancing of constitutional rights in
nearly every treatment decision. The difficult reality of
caring for the mentally retarded does not lend itself to the
neat and artificial divisions created by the court below.
This is especially true when those “decision[s] must be
made amid the cry and tumult of a mental hospital, not
in the cloister of the Third Circuit law library, nor in the
conference room of nine circuit judges who are divided
five to four on a difficult problem” (73a) (Aldisert, J.,
concurring) .
For example, according to the Third Circuit, a “few
bruises” (a failure to protect a patient from harm) might
be justified by a staff decision that “it is therapeutically
more desirable to have an admittedly aggressive patient
mingling with others instead of confined to an isolated
cell” (26a, n. 38). The court did not explain how the
2° For example, in Scott v. Plante, supra, the Third Circuit
found a basis for damage liability against the New Jersey Com-
missioner of the Department of Institutions and Agencies ground-
ed solely on her knowledge of the conditions at a mental health
institution and her failure to remedy them. That failure was not
excused by her unsuccessful attempt to obtain the funds neces-
sary to remedy those conditions, (Slip Opinion at 27, n. 16, 144a-
145a, n. 16).
Reasons for Granting the Writ 17
contrary decision—that confinement in an isolated “‘cell’*°
is “more desirable” in order to protect a patient or others
from “‘bruises"”—can be reconciled with the duty not to
restrain a patient absent “compelling necessity” or the
duty to use the “least intrusive treatment available”.
Likewise, the Third Circuit’s “least intrusive treat-
ment” analysis requires a balancing of the possibility of
improvement against the risk of serious side effects in
choosing a treatment approach. The court, however, of-
fered no meaningful guidance as to how this test should
be applied by professionals in cases involving both risk
and possibility of improvement, noting only that “[w]hen
the state is the decision-maker . . . such actions should err
on the side of safety” (32a, n. 45)."" Since nearly all
treatment involves some risk, this standard places all treat-
ment personnel on the horns of a difficult constitutional
dilemma. Moreover, since “[a] judge would be un-
imaginative indeed if he could not come up with some-
thing a little less ‘drastic’ or a little less ‘restrictive’ in al-
most any situation .. .”, ” this is a dilemma best solved
by avoiding risk at all costs, notwithstanding “accepted
medical or scientific knowledge”’.
The Court of Appeals also failed to explain why mal-
practice becomes a constitutional violation merely because
* Cells, of course, exist in prisons, not mental retardation
facilities. Thus, the lower court’s reference to cells exemplifies
its lack of understanding of the subject matter for which it none-
theless prescribed treatment standards.
51 In contrast, ‘‘{w]hen individuals are the decision-makers
the law, out of respect for personal autonomy, appears to allow
them to err on the side of risk, see Parham v. J. R., 442 U.S. 584,
602-04 (1979) ’’ (32a, n. 45).
52 Illinois State Board of Elections v. Socialist Workers Party,
440 U.S. 173, 188-89 (1979) (Blackmun, J., concurring). See
also Bell v. Wolfish, supra at 520 n. 40.
18 Reasons for Granting the Writ
the victim is committed to an institution for the mentally
retarded. See Estelle v. Gamble, supra at 106. The Con-
stitution provides no “font of tort law to be superimposed
upon whatever systems may already be administered by
the States.” Paul v. Davis, 424 U.S. 693, 701 (1976).
Yet, the standards created by the Court of Appeals are,
for the most part, indistinguishable from state law torts.
This result is clearly inconsistent with the holdings of this
Court in Estelle and Paul.
Finally, building upon its misconstruction of state
law in Halderman, the Third Circuit converted a con-
ceived statutory promise to provide appropriate treatment
at Pennhurst into a substantive due process requirement.
In so holding, the Third Circuit misconstrued both Penn-
sylvania law and constitutional requirements.
Under Pennsylvania law, treatment is not the only
basis for commitment of the retarded. Rather, the men-
tally retarded can be committed when they are “in need
of care treatment.” Pa. Stat. Ann. tit. 50 §4406 (a) .”
Clearly, when a person, such as plaintiff, is committed as
“in need of care”, it is sufficient, under state law, to pro-
vide that care.**
%In Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976), a
three-judge court declared Section 406 to be unconstitutional.
Subsequently, a consent order was entered allowing commitment
for a mentally retarded individual who is unable to provide ‘‘for
his most basic need for nourishment, personal and medical care,
shelter, self-protection and safety.’’ Goldy v. Beal, C.A. No, 75-
791 (M.D. Pa., filed Oct. 28, 1976) (Consent Order). Thus,
plaintiff ’s continued commitment as ‘‘in need of care’’ is wholly
consistent with the Goldy standard.
4 See In Re: Joseph Schmidt, No. 23 March Term, 1979 (Pa.
8. Ct., filed Feb. 5, 1981) (state has statutory duty to provide
‘‘eare’’ to the mentally retarded).
Reasons for Granting the Writ 19
As importantly, plaintiff (and most other residents
of Pennhurst) is not “capable of surviving safely in free-
dom by himself or with the help of willing and responsible
family members or friends.” O’Connor v. Donaldson,
422 US. 563, 576 (1975). Accordingly, the provision
of care—‘‘food, shelter, medical care and supervision for
which the residents have no other source’”’°—is a proper
rationale for commitment and, even under the Third Cir-
cuit’s substantive due process analysis,”* provides the mini-
mum constitutional standard of services for the mentally
retarded. Halderman v. Pennhurst, supra at.125 (Seitz,
C.]J., dissenting) .
Properly viewed, plaintiff’s rights at Pennhurst are
subject, at most, to an analysis similar to that employed
by this Court in Bell v. Wolfish, supra. Even more so
than prison administrators, those, such as defendants, who
supervise the operation of mental retardation facilities are
“ ‘expert administrators’ ’’ who should not be “ ‘second-
guess[ed] . . . on matters on which they are better in-
formed....’” Bell v. Wolfish, supra at 544. Thus, if
their actions are reasonably related to legitimate govern-
mental interests—the provision of care or the effective
management of the facility—due process requirements are
satisfied.”’
85 Halderman v. Pennhurst, supra at 125 (Seitz, C.J., dis-
senting). also Goldy v. Beal, C.A. No. 75-791 (M.D. Pa., filed
Oct. 28, 1976)( Consent Order).
86 But see O’Connor v. Donaldson, supra at 587-88 (Burger,
C.J., concurring) ; Morales v. Turman, supra (existence of a sub-
stantive due process right to treatment questioned).
87 Moreover, the Third Circuit’s substantive due process
analysis is, at best, questionable. As Chief Justice Burger has
noted, there is ‘‘no basis for equating an involuntarily committed
20 Reasons for Granting the Writ
The extent of the lower court’s error is evident from
its attempts to distinguish this Court’s holding in O’Con-
nor v. Donaldson:
[Unlike Donaldson, who received no treatment]
Romeo has received some treatment; the state’s de-
sire to care for individuals incapable of protecting
themselves provides an additional justification for
confinement; and Romeo [unlike Donaldson] is not
seeking release.
(29a-30a, n. 42). Thus, according to the Third Circuit,
plaintiff, who received more and who was confined with
greater justification, is entitled to far greater constitutional
protection than the plaintiff in O’Connor because, in this
case, plaintiff did not seek his liberty. This is a quantum
leap in constitutional analysis which requires review by
this Court.
B. After creating new constitutional rights, the
court below erred in failing to direct dismissal on the
grounds of qualified immunity.
This Court has repeatedly recognized that state offi-
cials have a qualified immunity from liability for consti-
tutional violations unless they “knew or reasonably should
have known” that their actions violated constitutional
rights. See, e.g., Procunier v. Navarette, 434 U.S. 555,
561-62 (1978); Scheuer v. Rhodes, 416 U.S. 232, 247-
patient’s unquestioned constitutional right not to be confined
without [procedural] due process of law with a constitutional
right to treatment.’’ (Emphasis in original, footnote omitted.)
O’Connor v. Donaldson, supra at 587-88 (Burger, C.J., concur-
ring).
Reasons for Granting the Writ 21
48 (1974). As the Third Circuit recognized, this case
“inhabits the twilight area of developing law concerning
the constitutional rights of the involuntarily committed
mentally retarded” (3a). The court went on, of course,
to create rights far beyond those considered, let alone,
found by any other court.
State “officials cannot be expected to predict the
future course of constitutional law”.”” Thus, petitioners
cannot be held to have known of the “new ‘constitutional
torts’ manufactured ... by the Third Circuit... ." (75a
76a) (Aldisert, J., concurring) .
Accordingly, the failure of the court below to remand
to the trial court with directions to dismiss this damage
action was clearly erroneous. If the qualified immunity
established by this Court is to have any significance, that
failure should be reviewed by this Court.
“There was no evidence to support a finding that the de-
fendant supervisors intended to harm plaintiff. Thus, the second
branch of the good faith immunity test is not at issue in thin cane.
*” Procunier v. Navarette, supra at 62. Hee alan Wood v.
Strickland, 420 U.S. 908, 322 (1975).
22 Reasons for Granting the Writ
CONCLUSION
For the foregoing reasons, petitioners respectfully re-
quest that a writ of certiorari issue to review the judg-
ment of the United States Court of Appeals for the Third
Circuit.
Davip H. ALLSHOUSE
Deputy Attorney General
Of Counsel: Rospert B. HOFFMAN
JosepH W. McGuire Deputy Attorney General
Suite 1000, 3 Penn Center ALLEN C. WARSHAW
Plaza, 16th and Market Deputy Attorney General
Sts. Chief, Civil Litigation
Philadelphia, PA 19102 Leroy S. ZIMMERMAN
(215) 564-4960 Attorney General
JONATHAN WHEELER Office of Attorney
FRANK, MARGOLIS, EDEL- General
STEIN & SCHERLIS 1641 Strawberry Square
Suite 420, 1315 Walnut Harrisburg, PA 17120
St. (717) 783-1471
Philadelphia, PA 19107 Attorneys for
(215) 732-3838 Petitioners
Opinion, Court of Appeals la
APPENDIX
UNITED STATES COURT OF APPEALS
For the Third Circuit
No, 78-1982
ROMEO, NICHOLAS, an incompetent, by his mother and
next friend, PAULA ROMEO,
Appellant
v.
DUANE YOUNGBERG, individually and in his official
capacity as Superintendent, Pennhurst State School and
Hospital, and RICHARD MATTHEWS, individually and
in his official capacity as Director of Resident Life, Penn-
hurst State School and Hospital, and MARGUERITE
CONLEY, individually and in her official capacity as Unit
Director, Unit 9, Pennhurst State School and Hospital
Appeal From the United States District Court for the
Eastern District of Pennsylvania
(C.A. No. 76-3429)
Argued January 9, 1979
Before: Seitz, Chief Judge, and
Gi1pBons and HiGGINBOTHAM, Circuit Judges
2a Opinion, Court of Appeals
Reargued April 28, 1980
Before: Seitz, Chief Judge, and
ALDISERT, ADAMS, GIBBONS, ROSENN, Weis, GARTH,
HIGGINBOTHAM, and SLoviTER, Circuit Judges
(Filed November 24, 1980)
Edmond A. Tiryak (Argued)
Elliot B. Platt
Community Legal Services
Philadelphia, Pennsylvania
Counsel for Appellant
Gerald Gornish
Acting Attorney General
David H. Allshouse
Deputy Attorney General
Norman J. Watkins
Deputy Attorney General
Chief, Civil Litigation
Department of Justice
Harrisburg, Pennsylvania
Jonathan Wheeler
Frank, Margolis, Edelstein &
Scherlis
Philadelphia, Pennsylvania
Joseph W. McGuire (Argued)
McWilliams, Baulis & Silverman
Philadelphia, Pennsylvania
Counsel for Appellees
Opinion, Court of Appeals 3a
OPINION OF THE COURT
ADAMS, Circuit Judge.
The present controversy inhabits the twilight area of
developing law concerning the constitutional rights of the
involuntarily committed mentally retarded. Nicholas
Romeo appeals, through his next friend, from a jury ver-
dict for the defendants, officials of the Pennhurst State
School and Hospital, in a suit brought pursuant to 42
U.S.C, §1983 (1976). Plaintiff alleges trial errors in the
admission and exclusion of evidence, in the court’s instruc-
tions to the jury and in the manner in which the trial was
conducted. Because of the improper exclusion of relevant
expert medical testimony and critical flaws in the stan-
dards that were employed in charging the jury, we vacate
the judgment of the district court and remand for a new
trial.
While courts in the past decade have carefully focused
on the procedural protections applicable to the initial com-
mitment of the mentally handicapped, see Addington v.
Texas, 441 U.S. 418 (1979); Parham v. J.R., 442 US.
584 (1979), relatively little has been resolved with re-
spect to conditions of confinement or the extent of the
state’s duty to protect and to treat the institutionalized.
Specifically at issue here is the judicial responsibility to
enforce constitutional guarantees governing the incarcera-
tion of the institutionalized retarded.’ This, in turn, calls
1In Halderman v. Pennhurst State School & Hospital, 612
F.2d 84 (3d Cir, 1979), cert. granted, 48 U.S.L.W. 3797 (1980)
(Nos. 79-1404/1408/1414/1415/1489), this Court held that the
mentally retarded have a statutory right to treatment and habilita-
tion, enforceable by a private right of action under the Develop-
mentally Disabled Assistance and Bill of Rights Act, Pub. L. No.
4a Opinion, Court of Appeals
on us to deal with the question of what standards of proof
are required in a §1983 suit for damages, in which a men-
tally retarded plaintiff claims that the defendants improp-
erly shackled him, failed to provide adequate protection
for him, and did not make appropriate treatment avail-
able to him. In defining the principles relating to claims
for protection and treatment of the retarded, carefully
crafted instructions must be utilized that will reflect the
duty of courts to safeguard the constitutional rights of
those confined, but also will be sensitive to the prerogative
of the medical community to exercise its professional judg-
ment and to the undeniable fiscal and administrative con-
cerns of the state.
I,
Romeo is a profoundly retarded person. Although he
is physically thirty years old, he suffers from a chemical
imbalance of the brain that renders his mental capacity
approximately that of an eighteen month old child. For
the first twenty-six years of his life Romeo lived with his
parents in South Philadelphia. On May 10, 1974 his
94-108, 89 Stat. 496, 42 U.S.C. §§6001-6081 (1976). Although
confinement of the mentally retarded and mentally ill raises many
similar problems for constitutional purposes, it is necessary to be
careful not to submerge relevant distinctions. As both the district
and appellate courts found in Halderman, with respect to the in-
dividuals housed in Pennhurst :
The residents are not mentally ill, have broken no laws, and
are not a danger to others, although, in severe cases, some are
unable to care for themselves. Mental retardation is an im-
pairment in learning capacity and adaptive behavior, and is
not treatable, like mental illness, by means of drugs or psy-
chotherapy. While the mentally retarded do suffer educa-
tional difficulties, the level of their functioning can be im-
proved by individualized training. 612 F.2d at 92.
Opinion, Court of Appeals 5a
father died. Within a month his mother, finding herself
unable to care for him, applied to the Philadelphia Com-
mon Pleas Court for his admission to a mental retardation
facility. On July 11, 1974, the court committed Romeo
to the Pennhurst State Schoo) and Hospital, pursuant to
the involuntary commitment provision of the Pennsylvania
Mental Health & Mental Retardation Act of 1966. Pa.
Stat. Ann. tit.50. §4406 (Purdon) (1969).
It is not contested that, while confined at Pennhurst,
Romeo was injured on over seventy occasions. These in-
juries were both self-inflicted and the result of attacks by
other residents, some in retaliation against Romeo’s aggres-
sive behavior. The injuries included a broken arm, a frac-
tured finger, injuries to sexual organs, human bite marks,
lacerations, black eyes, and scratches. Moreover, some
of plaintiff’s injuries became infected, either from inade-
quate medical attention or from contact with human ex-
crement that the Pennhurst staff failed to clean up.
Since Romeo is incompetent, this action was brought
on his behalf by his mother as next friend. The §1983
complaint seeks damages for the described injuries from
three officials at Pennhurst: (CC, Duane Youngberg, then
superintendent, Richard Matthews, director of resident
life, and Marguerite Conley, director of the plaintiff's as-
signed unit at the time most of the injuries occurred. There
is evidence which indicates that each defendant knew of
some or all of the seventy-plus injuries suffered by Romeo.
After the case was filed, the district court permitted
the plaintiff to amend the complaint to include allegations
that, since the initiation of the suit, defendants had kept
Romeo shackled to a bed or a chair in the hospital at Penn-
hurst for long periods each day. The amended complaint,
which posited a violation of plaintiff's constitutional right
6a Opinion, Court of Appeals
to treatment occasioned by the shackling, exposure to at-
tacks aud inappropriate treatment,’ again sought compen-
satory and punitive damages from the defendants.’
At the time of trial, the district court refused to per-
mit plaintiff’s two experts, Dr. Foxx and Dr. Grover, to
testify about the lack of programming and activities on
Romeo’s ward, which they believed accounted for the
numerous injuries, and about alternative methods of treat-
ment that would have reduced the frequency of attacks.‘
One of the experts would have testified further that the
restraints served no medical purpose and were used solely
for the convenience of the staff. The court sustained
objections to all of this proffered medical and psychiatric
testimony on the theory that admission of such evidence
would transform a §1983 action into a malpractice case.’
In addition, the court rejected the plaintiff’s proposed jury
? The plaintiff's complaint and the various requests for charge
do not describe the exact nature of the constitutional rights as-
serted by the plaintiff, For example, the plaintiff repeatedly
refers to rights under the Eighth and Fourteenth Amendments.
Inasmuch as the Eighth Amendment applies only to the states
through the Fourteenth Amendment, it is at times unclear whether
the Fourteenth Amendment is asserted as a separate legal basis
or only ancillary to the Eighth Amendment theory. In any event,
we have examined the record and will construe the complaint as
asserting that the injuries inflicted on Romeo violated both a sub-
stantive due process right and a right to be free from cruel and
unusual punishment.
* None of the defendants have contended on appeal that these
allegations involve matters outside the scope of their assigned re-
sponsibilities at Pennhurst,
* The court requested an offer of proof and the proposed testi-
mony was summarized out of the jury's presence,
5 The court, however, did permit defendants to testify that
Mrs. Romeo refused to authorize the use of a physical restraint
program on plaintiff. Although defendants contended that this
Opinion, Court of Appeals 7a
instruction which maintained that the plaintiff had a right
to treatment in the least restrictive environment. The
court decided instead that defendants’ shackling practices
and duty to protect Romeo should be evaluated solely on
the basis of an Eighth Amendment standard. Further, in
what was described as an attempt to distinguish this §1983
suit from a malpractice case, the court subjected plain-
tiff’s claims of inadequate treatment to an Eighth Amend-
ment standard of “deliberate indifference to the serious
medical needs of the resident.”
Because we believe that the Eighth Amendment—
which limits the scope of judicial review of conditions of
incarceration for the criminally convicted to a “cruel and
unusual” threshold—is inappropriate in the context of
civil as distinguished from criminal confinement, the re-
sult reached in the district court must be vacated. More-
over, the uncharted legal issues which have arisen and the
potential ramifications of this case impel us to set out in
some detail the level of judicial scrutiny that should be
accorded the intricate set of legal, medical and societal
interests that intersect in the situation presented here.
Of critical importance in this appeal is the recogni-
tion that this is a due process case, not a controversy to be
prevented the reduction of Romeo's aggressive behavior, the re-
jection of a treatment program would not appear, in itself, to
be probative evidence with respect to responsibility or liability.
An inquiry is needed to determine the suitability of the proposed
treatment, whether rejection of therapy is a manifestation of a
patient’s illness or a consequence of valid concerns of guardians
or relatives, and whether reasonable efforts were made either to
deal with such rejection or to provide some other suitable treat-
ment. Cf. Rouse v. Cameron, 373 F.2d 451, 459 (D.C. Cir. 1966).
8a Opinion, Court of Appeals
governed by “cruel and unusual” principles. Although
the complaint alleged Eighth as well as Fourteenth Amend-
ment violations, Ingraham v. Wright® and Bell v. Wolfish'
would appear to preclude reliance on the minimal safe-
guards of the Eighth Amendment in a non-criminal con-
text. Ingraham held that the Cruel and Unusual Punish-
ments Clause is inapplicable in the context of corporal
punishment in public schools; Wolfish found Eighth
Amendment scrutiny inappropriate for evaluating condi-
tions of pretrial detention.’ Indeed, Wolfish explicitly
recognizes a right of innocent persons to be free from
punishment, a proposition directly grounded in the word
“liberty” that appears in the Due Process Clause. See
441 US. at 535; id. at 580 (Stevens, J., dissenting). Thus,
it is the Fourteenth Amendment’s prohibition of the state
deprivation of life, liberty or property without due process
of law that is the appropriate fulcrum of our concerns
today.
It is necessary, of course, to determine initially wheth-
er the asserted individual interests are encompassed within
the Fourteenth Amendment’s protection of life, liberty and
property. If the answer to that inquiry is in the affirma-
tive, we must then determine what level of judicial scrutiny
is applicable to the various interests in issue here.
® 430 U.S. 651 (1977).
7441 U.S. 520 (1979).
8 See Ingraham v. Wright, 430 U.S. at 668-71; Bell v. Wolfish,
441 U.S. at 535. Admittedly, Ingraham left open the possibility of
applying Eighth Amendment analysis to mental institutions, see
430 U.S. at 669 n.37, but the determination in Wolfish that Eighth
Amendment is inappropriate for analyzing conditions of pretrial
detainees indicates rather clearly that a formal adjudication of
guilt in a criminal prosecution is a precondition for Eighth
Amendment protection.
Opinion, Court of Appeals 9a
We are fully cognizant that the propriety of a §1983
claim, in the present situation, turns on whether a con-
stitutional right is at issue. The concurrence is undeni-
ably correct in requiring that we distinguish between con-
stitutional violations and ordinary malpractice claims.
But the implication that the existence vel non of a state
remedy—for example a malpractice action—is relevant to
the determination of whether a §1983 claim exists, would
appear to be unfounded. Cf. Paul v. Davis, 424 U.S. 693,
715 (1976) (Brennan J., dissenting). Nor does the ex-
istence of treatment issues in a claim of constitutional in-
fringement, on account of a linguistic similarity, transform
the claim into a malpractice action.’ Admittedly, the plain-
tiff’s confinement in a state institution does not dignify
every complaint with constitutional stature. Cf. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Nevertheless, there is
a distinction for constitutional purposes between conduct
by state actors and private citizens. Therefore, under-
standable concerns with stemming the federalization of
common law tort actions, see Baker v. McCollan, 443 U.S.
137 (1979), must not overcome a court’s duty to safe-
guard legitimate constitutional rights.’ As Justice Harlan
realized, “ ‘liberty’ is not a series of isolated points pricked
® Plaintiff Romeo stands in a different posture from the ordi-
nary citizen with respect to medical treatment: he is involuntarily
confined for the very purpose of treatment or habilitation. See
pp. 12a, 22a-23a, 34a-36a infra. Unlike most members of the com-
munity he is not free to seek or reject medical services whenever
he pleases.
1 As the Halderman Court noted, although mental health
policies have traditionally been within the states’ police power,
Congressional action in the field was justified by the constitu-
tional underpinnings of the retarded residents’ rights to protec-
tion and personal security. 612 F.2d at 98.
10a Opinion, Court of Appeals
out in terms of [the Bill of Rights] .... It is a rational
continuum which, broadly speaking, includes a freedom
from all substantial arbitrary impositions and purposeless
restraints.” Poe v. Ullman, 367 U.S. 497, 543 (1961)
(dissenting opinion) .
Once a protected interest is found to exist, the proper
level of judicial scrutiny is ascertained by the nature of
that interest. A court must not be overquick to equate
the scope of the right to protection or treatment for the
involuntarily confined retarded with the already articulated
scope of such rights for the criminally incarcerated." Nor
are analogies to state or common law precedents controlling
— it is federal law that answers the question of what pro-
cess is due under the Constitution.”
The confinement of an individual to an institution for
either the mentally ill or mentally retarded entails a “mas-
sive curtailment of liberty.” Humphrey v. Cady, 405 US.
504, 509 (1972). In consequence it is circumscribed by
11 See Estelle v. Gamble, 429 U.S. at 106 (deliberate indiffer-
ence standard adopted to distinguish medical malpractice cases
cognizable under state tort law and those rising to level of con-
stitutional abridgement with respect to prisoners). Although the
concurring opinion purports to reject the deliberate indifference
standard of Estelle, it is not clear that the standard which it ad-
vocates for judging constitutionally acceptable conduct—that it
‘‘was not a sham or otherwise illegitimate’’—provides anything
different, or realistically addresses the undeniable distinctions be-
tween an involuntarily confined retarded person's right and a con-
victed individual's right to protection or treatment.
120f. Vitek v. Jones, 48 U.S.L.W. 4317, 4320 (March 25,
1980) ; Arnett v. Kennedy, 416 U.S, 134 (1974).
It should be noted, however, that if plaintiff's claim is not
among those rights protected by the Constitution, he may still
have a statutory or common law claim adjudicated in the state
Opinion, Court of Appeals lla
due process protections. Addington v. Texas, 441 US.
418, at 425. And once inside the institution an individ-
ual’s liberty interest is not summarily extinguished.”
Rather, those aspects of personal autonomy recognized
from the time of Blackstone—the power of locomotion
without restraint and the right to personal security'‘—as
well as the right to freedom from punishment, require con-
tinued respect. These fundamental liberties may be legit-
imately encroached upon only when justified by an over-
riding,’ non-punitive state interest related to the reasons
for confinement.
courts or even in the federal courts under pendent jurisdiction.
In Halderman, the Court held that retarded persons have both a
private right of action under the Developmentally Disabled Assist-
ance and Bill of Rights Act, and a state statutory right to ha-
bilitation. Halderman v. Pennhurst State School & Hospital, 612
F.2d 84, 97, 103, 107 (3d Cir. 1979), cert. granted, 48 U.S.L.W.
3797 (1980) (Nos. 79-1404/1408/1414/1415/1489).
18 See Wolff v. McDonnell, 418 U.S. 539 (1973). The apho-
rism that ‘‘There is no iron curtain drawn between the Constitu-
tion and the prisons of this country,’’ id at 555-56, would appear
to carry equal force with respect to institutions for the mentally
ill or the mentally retarded.
14 Monaghan, Of ‘Liberty’ and ‘Property,’ 62 Cornell L. Rev.
495, 411-12 (1977).
18 Of, Bell v. Wolfish, 441 U.S. 520, 532 (1979), which reject-
ed a compelling necessity standard in holding that the ‘‘presump-
tion of innocence’’ doctrine relied upon by pretrial detainees in
that case did not state a sufficiently grave liberty interest to sup-
port such a rule. Although the majority in Wolfish suggested
that even if detainees had relied on the right to be free from
punishment, that right would not warrant adoption of the com-
pelling necessity test, id. at 539, the situation of the confined
mentally retardéd is clearly distinguishable. Whereas pretrial
detainees are incarcerated pursuant to a judicial determination
of probable cause, the involuntarily committed mentally retarded
12a Opinion, Court of Appeals
Courts have reached a general consensus on three
legitimate state justifications for the confinement of the
mentally ill and mentally retarded. These rationales have
evolved historically from (1) the protection of society
from individuals who constitute a danger, a concept rooted
in the state’s police power; to (2) the protection of in-
dividuals unable to care for themselves or prone to self-
destructive acts, based on police power and parens patriae
rationales; and finally to (3) rehabilitation—often limited
to habilitation in the case of the mentally retarded—also
an exercise of the state’s parens patriae authority."* See
Addington v. Texas, 441, U.S. 418, at 426; O’Connor v.
Donaldson, 422 U.S. 563, 573-74 (1974).
Noticeably lacking, and logically inapplicable to the
mentally retarded, are the traditional deterrence and ret-
ribution underpinnings of the criminal system.’ Obvious-
ly, the state has no right to punish an innocent individual,
and the concept of deterrence has a minimal effect on a
severely retarded person, such as the plaintiff here. In
are untouched by the criminal process. Moreover, 85% of the
detainees were released within 60 days, id. at 524, 525 n.3, whereas
persons in institutions for the mentally retarded often remain for
life. When disabilities imposed in the course of confinement in a
mental facility are as severe as shackling, the possibility of punish-
ment—and a right to be free from it—in a constitutional sense,
exists.
16 This is not intended to suggest that a state may involuntar-
ily confine a person solely on grounds of treatment when the indi-
vidual does not desire any treatment.
17 See In Re Bally, 482 F.2d 648 (D.C. Cir. 1973). See also
Bell v. Wolfish at 539 n.20 and Kennedy v. Mendoza-Martinez,
872 U.S. ¥44, 168 (1963), which view deterrence and retribution
—the traditional aims of punishment—as outside the realm of
legitimate nonpunitive governmental objectives.
Opinion, Court of Appeals 13a
seeking to explain claimed infringements of fundamental
liberty interests, the state is limited to protection and treat-
ment rationales of a compelling or substantial nature. In-
voluntary commitment in the civil context, then, quite
clearly implicates a constitutional right to treatment and
protection." Alternatively, if a claimed post-commitment
abridgement does not reach the status of a gross depriva-
tion or squarely cut across constitutionally protected liberty
interests, but only tangentially implicates such an impor-
tant interest, a mutual accommodation between institu-
tional objectives and constitutional provisions is needed.
This is so since the very nature of an institution requires
some limitation on the retained rights of those who are
confined. Cf. Wolff v. McDonnell, 418 U.S. at 556. In
such instances, security concerns, fiscal constraints and
administrative necessities may be adduced to demonstrate
18 0’Connor v. Donaldson, 422 U.S. at 576 and Robinson v.
California, 370 U.S. 660 (1962), at a minimum stand for the prop-
osition that simple incarceration, outside of the criminal system,
is constitutionally impermissible. Of course, the mentally ill and
the mentally retarded cannot be segregated into discrete categories
of ‘‘ dangerous to others,’’ ‘‘dangerous to self,’’ or ‘‘need for treat-
ment.’’ The very fact of an individual’s dangerousness is in-
extricably linked to his/her need for treatment. Both theoretically
and practically then, treatment is a right and rationale in every
instance of involuntary civil commitment.
However, it should be noted that with respect to Pennhurst,
this Court fully adopted the district court's finding that ‘‘ [t]he
residents are not mentally ill, have broken no laws, and are not a
danger to others, although, in severe cases, some are unable to care
for themselves.’’ Halderman v. Pennhurst State School & Hos-
pital, 612 F.2d at 92. The absence of any dangerousness to others
only strengthens the state’s obligation to provide treatment to such
non-threatening individuals once the state undertakes to confine
them.
14a Opinion, Court of Appeals
that a claimed encroachment is necessary to a facility’s
internal operations.”
Ill.
In the present case, Romeo’s complaints may be ap-
propriately conceptualized as (1) a right to be free from
undue bodily restraint; (2) a right to personal security
and protection; and (3) a right to adequate treatment.
The first two are undiluted legal concerns, relating to
protected liberty interests; as such, they are entitled to
heightened judicial scrutiny. The third entails mixed ques-
tions of law and medical judgment, and thus requires
a more flexible standard of judicial review and suitable
deference to informed medical opinion.
The basis of Romeo’s first claim, that he was unduly
shackled,” is clearly inimical to the right of an unconvicted
citizen to be free from punishment.” Even though shack-
1 Wolfish pointed out that the problems that arise in the day-
to-day operations of a state institution are not susceptible of easy
solutions. Courts undoubtedly should accord wide-ranging def-
erence to the administrators and physicians in mental facilities
with regard to the adoption and execution of policies and practices
necessary for internal order and security. Normally, the expertise
and responsibility for such operations are located in the legislative
and executive branches. But such recognition would appear to be
no justification or excuse for the abrogation of legal rights or the
abandonment of the judicial obligation to protect such rights.
See id. 441 U.S. at 541.
2° The fact that Romeo was shackled is not disputed. See App.
1-15a and 1-21a.
21 Pa, Stat. Ann. tit, 50 §4422 actually forbids shackling, sub-
ject to two limited exceptions: (1) during transfer of a patient
or (2) by order of the director or his designee for solely medical
purposes in accordance with regulations of the department. The
record does not disclose that defendants came within either of
these two exceptions. See App. 1-63a.
Opinion, Court of Appeals 15a
ling may not be punishment per se, it raises a presumption
of a punitive sanction.” It squarely collides with a tradi-
tional liberty interests in freedom from bodily restraint.”
A valid involuntary commitment ex necessitate extinguishes
a retarded person’s right to freedom from confinement.
Nevertheless, a residuum of liberty remains which is en-
titled to due process protection. In Vitek v. Jones, which
dealt with the transfer of a prisoner from a prison to a
mental hospital, the Supreme Court found that an involun-
*2 Moreover, as Wolfish conceded, were a detainee to be
shackled and thrown in a dungeon, ‘‘it would be difficult to con-
ceive of a situation where conditions so harsh, employed to achieve
objectives that could be accomplished in so many alternative and
less harsh methods, would not support a conclusion that the pur-
pose for which they were imposed was to punish.’’ Jd., 441 U.S.
at 539 n.20.
In the present case, the district court permitted Romeo to
amend his complaint to include allegations that defendants had
kept plaintiff shackled to a bed or chair in the Pennhurst hospital
for long periods of time each day since the initial filing of the
complaint. See App. 1-l5a. Although evidence of retaliation or
the subjective motivation of defendants may aid in determining
whether there has been punishment or in ascertaining an appro-
priate remedy, the question whether a constitutional right to free-
dom from punishment or bodily restraint has been violated should
turn on the character of the punishment not the motivation of the
officials, Cf. Estelle v. Gamble, 429 U.S, at 116, (Stevens, J.,
dissenting).
*3 Freedom from personal restraint was essentially all that due
process ‘‘liberty’’ meant until the Civil War. See Shattuck, The
True Meaning of the Term ‘Liberty’ in Those Clauses in the Fed-
eral and State Constitutions Which Protect ‘Life, Liberty, and
Property.’ 4 Harv. L. Rev., 365 (1891). This is the same liberty
that the Court in Addington, 441 U.S. at 425-27, sought to protect
by establishing a ‘‘clear and convincing’’ evidence standard for
initial commitment proceedings with respect to the mentally ill.
16a Opinion, Court of Appeals
tary commitment to a mental hospital is “qualitatively dif-
ferent from the punishment characteristically suffered by
a person convicted of crime.” 48 U.S.L.W. 4317, 4321
(March 25, 1980). Despite pre-existing confinement, a
substantial, additional loss of liberty occurred, for which
the Court required observances of due process safeguards.
Similarly, in the situation before us, shackling is not nor-
mally within the range of conditions of confinement con-
templated in habilitative institutionalization.“ Neither in
Vitek nor in the case at hand do the asserted privations
inhere in the original rationales for confinement. Because
of the fundamental right at issue here, as well as the sub-
stantial risk of error” and the possibility of significant
harm, the proper judicial posture is one of careful scru-
tiny.
™ The analysis here and the reasoning in Vitek indicate that
courts have a duty to guard against unnecessary personal re-
straints both at the confinement stage and with respect to later,
intramural dispositions, which can range from maximum to mini-
mum security. The Fourteenth Amendment does not cease pro-
tecting individuals simply because they are behind institutional
gates. In Halderman v. Pennhurst, 612 F.2d at 112-13, this Court
affirmed a portion of the district court’s order mandating limita-
tions on the use of physical and chemical restraints.
25 In the present situation, the state, in fact, admitted that the
use of restraints was subject to a special procedure, requiring, at
the least, an order of a physician. App. 1-63a. In addition, ac-
cording to the statute, a physician's order should be supplemented
by an order of the institution’s director. See n.21 supra.
26 Mathews v. Eldridge, 424 U.S. 319 (1976), elaborated a
three-part balancing inquiry which would indicate the procedural
protections required by state action or by a decision such as we
have here:
First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
Opinion, Court of Appeals 17a
Plaintiff requested that his shackling claim be ana-
lyzed under the rubric of a “right to treatment under the
least restrictive conditions consistent with the purpose of
the commitment.” In this regard, he submitted the follow-
ing charge:
Plaintiff contends that he was shackled to his bed or
chair for long periods of time each day after he filed
this lawsuit. If you find that he could have been
provided treatment under less restrictive conditions
than those imposed on him, then you must find that
his constitutional rights were violated.
The court, however, gave the following instruction:
In order to prove his case the plaintiff must show
acts or omissions sufficiently harmful to evidence a
deliberate indifference to the serious medical needs
of the resident. It is only such indifference that can
offend the standards of decency required by the 8th
Amendment. App. 2-236a—2-237a.
We have already recorded our disapproval of the
adoption of the Eighth Amendment standard in the mental
interest through the procedures used and the probable value,
if any, of additional or substiiute procedural safeguards; and
finally, the Government’s interest, including the function in-
volved and the fiscal and administrative burdens that the
additional or substitute requirement would entail. Jd. at 334-
35.
The applicable level of judicial review may also be determined
by a similar weighing of relevant interests. Here, the individual
interest in freedom from shackling is considerable; the risk of erro-
neous shackling is indicated by the institution’s failure to follow
its own procedures; and the state has no plausible, independent
interest in shackling per se, since the state statute generally for-
bids such practices.
\ba Opinion, Court of Appeals
retardation area. However, we cannot assent as the com-
currence suggests, to an analysis which wxrutinizes shack-
ling and a right to treatment by « standard that is essential-
ly the same. The Pennsylvania statute generally prohibits
such shackling practices, see [n. 21, and similarly, mental
retardation professionals have relegated the use of physical
restraints to the closets of an earlier aye. Logically, Ro
men's shackling claim centers on a liberty interest: @
right to be free from bodily restraint.
The trial judge, therefore, should instruct the jury
that such shackling may be justified only by a compelling
necessity, L¢., that the shackling was essential to protect
the patient or to treat hin. It should be explained that,
except in emergency situations, inadequate resources oF
administrative rationales offer an insufficient basis for in
trusions of this kind on a fundamental liberty interest.
As the courts have repeatedly proclaimed, “Humane con-
siderations and constitutional requirements are nt, in this
day, to be measured or limited by dollar considerations.”
Jackson v. Bishop, 404 ¥.246 571, SO (Bth Cir, 196%)
(Blackmun, J.), quoted in Rozecki v. Gaughan, 499 ¥ 2d
6, 8 (ist Cir. 1972) quoted in Wyatt v. Aderholt, W%
F.2d 1305, 1315 (Sth Cir. 1974). Plaintiff is also en
titled to « charge, in the alternative, that to absolve the
defendants from liability on the shackling claim it would
be necessary to find that shackling was the least restrictive
method of dealing with the patient,” in light of his prob
1 The ‘ennpelling necomity’ and ‘least reatrietive manner”
toute are virtually indintinguimhathe wandarda for reviewing the
cmtwt in quetiom, They have leon aaed interchangeatAy in
rewhving equal protectum, due prem and View Amendment
Anim, Bee Ahayire 0. Thampmn, WA US, G18 (N90); Mherbert
». Verner, FI4 UH. We (1964),
Opinion, Court of Appeals 19a
lems and the surrounding environment. A “least restric-
tive” charge will not only insure that compelling treat-
ment explanations, as opposed to fiscal concerns or staff
convenience, were the basis for the shackling, but also that
the institution considered and rejected alternative methods
of restraining the resident, if some restraint indeed was
required.”
A comparison with the result that might be obtained
by employing the unitary standard proposed by the con-
currence is apposite here. Under the standard advanced
by the concurrence, the jury would be charged that shack-
ling is permissible so long as there was not “such a sub-
stantial departure from accepted professional judgement,
practice or standards as to demonstrate that the defend-
ants did not base their conduct on a professional judg-
** While it will be explained later that ‘‘least restrictive’’ anal-
ysis does not appear to be an appropriate tool for evaluating on-
going treatment programs, the reservations regarding this standard
expressed in §V infra are inapplicable to shackling claims. Shack-
ling—a discrete physical act of confinement—is more analogous to
an initial commitment than to the administration of an evolving
medication program. Courts are competent in judging alternative
environmental dispositions, ranging from outpatient services to con-
finement in a large state facility. See Halderman, 612 F.2d 84,
102 (3d Cir. 1979) (Congressional preference in Developmentally
Disabled Assistance and Bill of Rights Act for establishing least
restrictive standards for personal liberty). Shackling presents a
similar question of degrees of physical restriction and is equally
amenable to judicial measurement. And just as the Supreme Court
sought to protect the substantial liberty interests implicated in an
involuntary commitment proceeding by establishing a ‘‘clear and
convincing’’ evidence test, see Addington v. Texas, 441 U.S. 418,
433 (1979), the comparably tangible and fundamental threat to
personal autonomy presented by shackling should be protected by
a ‘‘compelling necessity ’’ test.
20a Opinion, Court of Appeals
ment.” Arguably, such an instruction assumes that phys-
ical restraint for the convenience of the staff would con-
stitute a substantial departure from accepted professional
judgment. Yet it is not logically evident that concerns of
staff convenience are the sort of departures from medical
judgment that rise to the level of being a sham or other-
wise illegitimate, as defined in the concurring opinion.
More fundamentally, although the standard proposed by
the concurrence would probably prevent use of shackling
as punishment,” it would not preclude its use as a sub-
stitute for more effective treatment programs. Thus such
a standard would fail to give adequate weight to the resi-
dent’s substantial interest in freedom from bodily restraint.
In addition, it would conflict with the thrust of the state’s
interest as proclaimed in §4422 of the Mental Health and
Mental Retardation Act, in prohibiting the use of mechan-
ical restraints except in limited situations.
Our holding that the district court erred with respect
to the jury instruction for the shackling claim, and our
establishment of a compelling necessity standard for re-
view of such troubling interferences with bodily freedom,
necessarily require an additional finding of error in the
district court’s exclusion of relevant expert testimony.
Under the compelling necessity or least restrictive stan-
dards of proof, both sides are, of course, permitted to ad-
” Indeed, ‘‘there are a number of psychiatrists and psycholo-
gists who regard punishment as a legitimate form of therapy and
who believe that aversive behavior modification techniques may be
freely used to satisfy a patient's right to treat.’’ C/. Schoenfeld,
Recent Developments in the Law Concerning the Mentally Ill—A
Corner-Stone of Legal Structure Laid in Mud, 9 Univ. of Toledo
1, Rev. 1, 17 (1977) ; Note, Civil Restraint, Mental Illness and the
Right to Treatment, 77 Yale L..J, 87, 106 (1967).
Opinion, Court of Appeals 21a
duce evidence. Although defendants must justify the shack-
ling as the least restrictive means of handling or protecting
the individual, the plaintiff may produce evidence, for ex-
ample, that restraints were utilized largely because of con-
venience to the staff. Consequently, Dr. Foxx’s proffered
testimony regarding the inappropriate reasons and counter-
productive results connected with the restraint of Romeo,
was improperly excluded by the trial court.
IV.
From Colonial times to the present day, the concept
of liberty has embraced the “right to be free from and to
obtain judicial relief for unjustified intrusions on personal
security.”” Ingraham vy. Wright, 430 U.S. 651, 673
(1977). Plaintiff’s second claim, the right to protection
from attack, undeniably falls within the compass of this
right. The record discloses that while confined at Penn-
hurst Romeo was injured on over seventy occasions. Some
of these injuries were self-inflicted, some resulted from
attacks by fellow residents, and some may even have been
by the staff. The evidence also suggests that the defend-
ants knew, or had reason to know, of some or all of the
injuries suffered by the plaintiff. It would be anomalous
to find that the right to a secure environment, which fed-
eral courts have often intervened to protect in the context
of penal institutions, did not extend to facilities for the
mentally retarded ”.
8° The judiciary has recognized that ‘‘our constitutional duties
require that the courts be ever vigilant to assure that the condi-
tions of incarceration do not overstep the bounds of federal con-
atitutional limitations.’’ Campbell v. Beto, 460 F.2d 765 at 767-
68 (Sth Cir. 1972) quoted in Wyatt v. Aderholt, 503 F.2d 1305,
1315 (5th Cir. 1974). See also Holt v. Sarver, 309 F. Supp. 362
(E.D. Ark. 1970), aff’d 442 F.2d 304 (8th Cir, 1971). Further,
22a Opinion, Court of Appeals
The scope and nature of the right of the plaintiff to
protection from attack is also capable of judicial demar-
cation. Both the individual’s right to personal security
and the state’s interest in providing care converge to sup-
port a right to protection from attack. The state cannot
simply confine a person, without more, because he may
be a danger to himself or to third parties." Only after
the commission of a discrete criminal act and conviction
in accordance with procedural protections is incarceration
without more warranted. Consequently, in order to sur-
vive constitutional scrutiny, involuntary commitment of a
mentally retarded person must combine an interest in in-
sulating society from dangerous behavior with a promise,
either express or by implication, to care for and treat the
individual.” Alternatively, the commitment of a retarded
person for treatment purposes or because he is unable to
care for himself, necessarily entails the provision of care
and protection. The parens patriae power to provide care
and protection is thus inextricably bound up in the invol-
in New York St. Ass’n for Retard. Child., Inc. v. Rockefeller, 357
F. Supp. 752 (E.D.N.Y. 1973), the court noted that ‘‘One of the
basic rights of a person in confinement is protection from assaults
by fellow inmates or by staff.’’ Although initial discussion of the
right occurred in a prison setting, the court in Rockefeller em-
ployed the same standard in evaluating the institution for the
mentally retarded in that case.
31 Jn a somewhat analogous situation Robinson v. California,
370 U.S. 660, 666 (1962), held that incarceration on account of
mere status is constitutionally impermissible.
32 Commitment based on reasons of dangerousness to others is,
admittedly, more often a concern in confinement of the mentally
ill and less likely to be a governing factor with respect to the
mentally retarded. As noted in n.18 supra, the district court
found that none of the Pennhurst residents were dangerous to
others.
Opinion, Court of Appeals 23a
untary commitment of the retarded regardless of the orig-
inal rationale for the confinement.
Further, in Romeo’s case, commitment was pursu-
ant to Penn. Stat. Ann. tit. 50, Mental Healih and Mental
Retardation Act of 1966. The state, in confining Romeo,
represented that it was “willing and able” to care for
him.” The statute provides an entitlement to protection”
which, like other state-created entitlements, is guarded by
constitutionally acceptable procedures. The right to pro-
tection is not activated by an isolated mishap, or called
into question by each bruise that a patient may suffer.
But a pattern of attacks, injuries or violent behavior such
as we have here would create a claim to such a right.
While no one is guaranteed an injury-proof life, Romeo,
as an involuntary committed resident of Pennhurst, had a
right to humane care and protection, bottomed both on the
Pennsylvania statute and the Constitution.
%* Pertinent for present purposes is §4401 which provides:
**(e) whenever a court commits any person under any provision
of this act, it may commit such person directly to a facility
willing and able to receive him; otherwise, the court shall commit
to a designated local or state facility, or to the Veterans Admin-
istration or other agency of the United States upon receipt of a
certificate that the person is eligible for such hospitalization and
there is available space for his care.’’ (emphasis added)
* While both the right to protection and the right to treatment
may have characteristics of property entitlements in that they
demand affirmative action from the state and are statutorily
created expectations, they are also equally intertwined with the
original loss of liberty through confinement and related to basic
nolions of human dignity. Therefore treatment and protection
partake of both liberty and property interests, and it seems un-
necessary, at least in the present context, to demarcate these rights
in a narrow ‘‘either/or’’ fashion.
24a Opinion, Court of Appeals
Institutions for the mentally retarded are rarely
“open” facilities. Those involuntarily confined are not
free to return home, and indeed, many are bereft to any
support by family and friends.” This absence of open-
ness or significant community surveillance and oversight
underscores the need for the courts to discharge their tradi-
tional function of safeguarding constitutional rights.”
Therefore, with respect to the protection claim, we
conclude that the trial court erred in its charge. It in-
structed the jury that:
Under the 14th . . . Amendment, state official at a
state mental hospital have a duty to protect involun-
tarily committed residents from repeated attacks by
other patients and staff.
Plaintiff . . . contends that these defendants violated
such a duty to protect him because they were aware
of such attacks and failed to take such reasonable
steps as [were] required to protect him.
If you find that the defendants were deliberately in-
different to the medical and psychological needs of
[the plaintiff], then you may find that plaintiff’s . . .
14th Amendment rights were violated.
55° The mentally retarded may well be a paradigmatic example
of a discrete and insular minority for whom the judiciary should
exercise special solicitude, Cf. United States v. Caroline Products,
304 U.S. 144, 152-53 0.4 (1938). The retarded cannot vote in most
states and, with few community ties, sponsors or friends, have
minimal impact on the political process. See J. Ely, Democracy
and Distrust, 135-79 (1980).
% Cf. Ingraham v. Wright, 430 U.S. 651 (1977) (openness of
schools to public scrutiny ensures effectiveness of common-law
remedies in deterring abuses).
Opinion, Court of Appeals 25a
To find for the plaintiff you need not find that the
defendants personally participated in any attack upon
the plaintiff. If you find that the defendants were
aware of repeated attacks upon plaintiff and failed ©
within their sphere of authority to take reasonable
steps to protect the plaintiff, then you may find that
the defendants are liable for a violation of the plain-
tiff’s constitutional right. (emphasis supplied)
As we see it, the jury should be informed that the
plaintiff has a right to have his physical safety protected.
The plaintiff sought an instruction that defendants had
an obligation to “take reasonable steps to protect plain-
tiff.” Chief Judge Seitz maintains that such a charge is
virtually indistinguishable from a state malpractice stan-
dard. Infra at 56a. However, analysis of this particular
claim for constitutional purposes would proceed as fol-
lows: because this is a fundamental interest—which con-
flates plaintiff’s right to personal security with defendants’
duty to protect—if the defendants failed to provide for
Romeo’s personal security, such failure can be justified,
in a §1983 case, only by substantial necessity. Substantial
necessity is more appropriate than the compelling neces-
sity standard employed in connection with the shackling
claim, for it enables a court and jury to distinguish be-
tween isolated incidents and inadvertent accidents, on the
one hand, and persistent disregard of patients’ needs, on
the other.” If the defendants disregarded plaintiff's in-
37 Such a distinction is neither arbitrary nor unprecedented.
In a similar effort at line-drawing, the Supreme Court in Baker v.
McCollan, 443 U.S. 137 (1979), attempted to give meaning to an
earlier pronouncement that ‘‘Due process does not require that
every conceivable step be taken at whatever cost to eliminate the
possibility of convicting an innocent person.’’ Id. at 145, citing
26a Opinion, Court of Appeals
juries or failed to take steps to protect plaintiff then they
should be liable unless they can offer explanations based
on important state interests.” However, the least restric-
tive charge, which is applicable to the shackling claim, is
a less meaningful analytic tool in the protection setting
because of the very existence of a right to personal security
and a duty on the part of the state to protect. We can-
not assume that all patients desire and are capable of deal-
ing with the freedoms provided by least restrictive treat-
ment. Moreover, inherent inconsistencies arise in the use
of such a concept in the protection area. The least restric-
tive treatment, which might be the least confining, might
provide insufficient protection and care for a particular
resident’s wants and needs.
In view of the stance we have adopted regarding the
plaintiff’s right to personal security and protection from
attack, we hold that it was error for the district court to
exclude the testimony of Dr. Foxx and Dr. Grover con-
Patterson v. New York, 432 U.S. 197, 208 (1977). In Baker the
Court found that detention for three days did not constitute a
liberty deprivation, but that ‘‘mere detention pursuant to a valid
warrant in the face of repeated protests of innocence will after
the lapse of a certain amount of time deprive the accused of ‘lib-
erty .. . without due process of law.’’’ 443 U.S. at 145. Here,
we do not require that every conceivable step be taken to prevent
a resident from ever becoming bruised. Rather, we recognize that
70 injuries may rise to the level of a cognizable constitutional
elaim.
%* For example, the staff might determine that it is therapeu-
tically more desirable to have an admittedly aggressive patient
mingling with others instead of confined to an isolated cell. Al-
though this finding would not absolve the defendants of their
duty to protect, it might well explain incurring some bruises in
the course of a comprehensive treatment goal.
Opinion, Court of Appeals 27a
cerning the availability of treatment programs which
would minimize the aggressive behavior and attacks that
were unnecessarily prevalent at Pennhurst. Such evidence
is relevant in enabling the jury to resolve whether the de-
fendants were properly attending to, or overlooking, the
right of the plaintiff to protection from attack.”
V.
Plaintiff’s third complaint turns essentially on a claim
of inadequate treatment and a right to treatment in the
least restrictive manner. As previously observed, unlike
a right to freedom from bodily restraint or to personal
security, treatment does not present a purely legal issue.
See p. 14a supra. Questions of a court’s relative com-
petence concerning medical decisions and respect for med-
ical judgment, as well as concerns of comity with the
legislative and executive branches, place this claim in a
different perspective. The move from preventing de-
grading impositions on human dignity, such as shackling
and exposing a resident to continuous attacks, to requiring
treatment consonant with individual needs, transfers the
court to a subjective realm of decision making. Never-
theless, appropriate deference to medical expertise does
*° It is questionable whether this testimony would be admis-
sible under the standard advanced by Chief Judge Seitz. Dr.
Foxx was prepared to testify that ‘‘in his opinion, plaintiff’s in-
juries were a direct result of the lack of programming and activ-
ities on the ward.’’ Dr. Grover’s opinion was, similarly, that the
‘excessive and potentially mutilating’’ injuries were a conse-
quence of inappropriate programming. It is not clear whether
either would be ready to testify that the programming was ‘‘such
a substantial departure from accepted professional judgment’’ as
to constitute ‘‘a sham,”’ the test suggested by the concurring opin-
ion.
28a Opinion, Court of Appeals
not diminish the judicial duty to safeguard liberty interests
implicated in treatment decisions.
The right to treatment—or habilitation in the case
of the mentally retarded“°—arises when an individual is
involuntarily committed, regardless of whether parens
patriae or police power grounds provide the major prem-
ise for the confinement. See, pp. 12a, 21a-23a supra. A
court performs two functions with respect to such a right:
it requires that treatment be provided to those who require
and are willing to accept it, and it places limits on the
* Although habilitation is the more accurate term for treat-
ment of the mentally retarded this is not intended to negate the
possibility of improvement or to convey a static image of the fune-
tioning abilities of retarded persons. To the contrary Congress
appears to have based the Developmentally Disabled Assistance
and Bill of Rights Act, as well as other recent legislation affecting
the mentally retarded, on an acceptance of a ‘‘developmental
view’’ of the severely retarded now being advanced by retardation
professionals, The Senate Report accompanying the Bill of Rights
articulates the developmental view, as well as contending tradi-
tional views which the Congress rejected. In part, 8S. Rep. 94-160
at 27-28 says:
.... Finally, there is the view that developmentally disabled
individuals are ‘diseased.’ They are viewed as sick and in
need of constant care. This leads to indefinite custodial care.
This last model is gradually being replaced by a develop-
mental view of mental retardation. Such a view stresses that
all developmentally disabled individuals have potential for
learning and growth.
From this developmental model, it follows that custodial care
—which is predicated on the assumption that certain individ-
uals are essentially incapable of development—must be re-
jected. The newer developmental model emphasizes concrete
program goals for individuals and therefore encourages evalua-
tion based on specific outcomes.
Opinion, Court of Appeals 29a
state’s power to impose such treatment on those who do
not desire it. A right to treatment does not create a corre-
sponding duty to submit to any treatment whatsoever;
such a simple equation would sanction unacceptable in-
vasions of personal autonomy.”
At one end of the spectrum, an absolute failure to
treat, when treatment is the reason for commitment, raises
clear and serious constitutional problems. As the Court
noted in O’Connor v. Donaldson, 422 U.S. 563 (1974),
“where ‘treatment’ is the sole asserted ground for de-
priving a person of liberty, it is plainly unacceptable to
suggest that courts are powerless to determine whether
the asserted ground is present.” Jd. at 574.10. In such
instances, it is the court’s duty to insist on appropriate
treatment or that the plaintiff be released.” At the other
end of the spectrum is the judicial role in dealing with
*! See Katz, The Right to Treatment—An Enchanting Legal
Fiction? 36 U. Chi. L. Rev., 755, 766 (1969).
*2In Donaldson the jury found that ‘‘Donaldson was neither
dangerous to himself nor dangerous to others, and also found that,
if mentally ill, Donaldson had not received treatment.’’ Id. at
573. Since there was no conceivable ground for confinement and
Donaldson sought release, the Court held that Donaldson’s constitu-
tional right to freedom had been violated. That case is distinguish-
able from Romeo’s insofar as: Romeo has received some treatment ;
the state's desire to care for individuals incapable of protecting
themselves provides an additional justification for confinement ;
and Romeo is not seeking release. Admittedly, the situation with a
mentally retarded person is different from that of a mentally ill
person. Confinement for the latter is frequently of short dura-
tion, while confinement of the former is of considerably longer
duration. In addition, treatment of ihe mentally ill may be more
central than for the mentally retarded, for whom habilitation may
30a Opinion, Court of Appeals
involuntary treatment which occasions severe intrusions
on individual dignity. Nonreversible physical operations,
such as a vasectomy, or permanent physical alterations
by surgical intervention, such as a prefrontal lobotomy,
or the administration of powerful antipsychotic drugs may
well constitute fundamental liberty violations.“ Like
shackling, it may be that they should be subject to close
court scrutiny.“* Similarly, the reasons which commend
the use of least restrictive analysis with respect to shack-
ling—existence of a judicially assessable, discrete act,
which entails a significant loss of individual liberty—may
be the prime factor. But while the mentally retarded are not
curable as such, few are totally untreatable—as may well be the
case with some who are mentally ill. Therefore, instances in which
no effective therapy exists, and in which treatment would be futile,
potentially requiring a Donaldson-like release, are more likely to
arise with the mentally ill. Cf. Schoenfeld, supra note 29, at 15-
17.
48 Because of the incomplete state of the record, it is unclear
whether the administration of, for example, dangerous psychotrop-
ie drugs, which were found to be misused at Pennhurst, see Halder.
man v. Pennhurst, 612 F.2d at 93, is in issue with respect to plain-
tiff Romeo. In light of the fact that we are remanding this case,
which has already consumed considerable judicial time, we deem it
appropriate to address the panoply of possible treatment problems
that may confront the district court, in order to aid in a speedier
disposition.
44 Cf. Davis v. Hubbard, No. C 73-205 (N.D. Ohio, filed Sept.
16, 1980), which undertakes an exhaustive examination of psycho-
tropic drug use in institutions for the mentally ill and suggests
that administration of such drugs, as well as inter alia, zonvulsive
therapy, sterilization, and psycho-surgery, involve significant in-
vasions of fundamental interests worthy of constitutional protec-
tion. Traditional treatments, the court noted, do not implicate
these interests to the same degree.
Opinion, Court of Appeals 3la
be present in the context of such invasive, involuntary
procedures. Since some these procedures may not be
present in the case at hand after it is remanded, we do not
address the subject in any detail except to note the pos-
sibility of its existence. But, whenever unalterable inter-
ferences with bodily integrity place deprivations of liberty
in issue, the law and not medicine is the ultimate decision-
maker.
Once analysis transcends the groundlevel question of
treatment vel non, however, and settles in the middle
ground, legal questions of unconstitutional liberty depri-
vations begin to merge with medical judgments regarding
the appropriateness of the regimen. Inasmuch as we are
remanding, inter alia, because the district court’s improper
employment of Eighth Amendment scrutiny resulted in the
exclusion of the plaintiff’s proffered medical testimony, it
is uncertain how the record will develop at trial. However
the summaries of medical testimony, offered as proof out
of the hearing of the jury, suggest that the trial court may
need guidance in a range of situations, involving prob-
lems of both intrusive and inadequate treatment. We
therefore find it in order to delineate the legal standards
and jury charges applicable in the treatment realm.
Where the issue turns on which of two or more major
treatment approaches is to be adopted, a “least intrusive”
analysis may well be appropriate. If the staff decides
upon a course of treatment which offers some promise of
effectiveness without undue risk to the patient, such deci-
sion may well come within the ambit of least intrusive
means. If the likelihood of serious side effects does exist,
however, and substantial improvement is not reasonably
expectable, then such judgments might well present a basis
for finding that the course of treatment was not the least
32a Opinion, Court of Appeals
intrusive under the circumstances.” In making constitu-
tional judgments in such situations, the court must neces-
sarily depend in large measure on medical evidence. Once
the least intrusive regime has been selected, therefore, the
application of a constitutional standard of “least intrusive
alternative” on continuing treatment programs, which often
involve qualitative medical determinations subject to daily,
possibly hourly changes, would prove unworkable.” The
*° Of course, this does not dispose of those difficult mid-range
situations which involve both the possibility of improvements and
the risk of serious side effects. When individuals are the decision-
makers the law, out of respect for personal autonomy, appears to
allow them to err on the side of risk, see Parham v. J.R., 442 US.
584, 602-04 (1979). When the state is the decision-maker, the
converse would seem appropriate: such actions should err on the
side of safety.
© The significant cases embracing the least restrictive concept
as a constitutional principle primarily entail a single legislative
enactment or a discrete state action. See, ¢.g., Illinois State B. of
Elections v. Socialist Workers Party, 440 U.S, 173, 185 (1979)
(statute prescribing number of signatures required for listing on
electoral ballot) ; Wooley v. Maynard, 430 U.S, 705 (1977) (statute
requiring noncommercial vehicles to bear license plates with ‘‘ Live
Free or Die’’ motto); Aptheker v. Sccretary of State, 378 U.S.
500, 508 (1964) (statute prohibiting issuance of passports to all
members of Communist organizations); Shelton v. Tucker, 364
U.S. 479, 488 (1960) (statute requiring teachers to disclose all
organizations to which they belong or which they support) ; Dean
Milk Co. v. City of Madison, 340 U.S, 349, 354 (1951) (ordinance
requiring pasteurization of milk at approved plants within five
miles of center of city).
Where the term ‘‘least restrictive’ has been applied to the
mentally handicapped, it has had reference mainly to the initial
environmental disposition not to ongoing therapeutic regimes or
medical prescriptions. See Welsch v. Likins, 550 F.2d 1122, 1126
n.6 (8th Cir. 1977), aff’g in part, vacating and remanding in part,
Opinion, Court of Appeals 33a
judiciary is not in a particularly advantageous position to
determine which of two medications is less intrusive, nor
especially competent in assessing present therapeutic bene-
fits versus long-term consequences and side effects for
each administration of a drug. Further, least restrictive
assumes a direct correlation between restrictiveness and
effectiveness, a presumption which can not be medically
corroborated in every instance.”’
Unfortunately, in attempting to craft the appropriate
standard to apply to a charge of inadequacy of treatment
the courts find themselves in a Scylla and Charybdis situa-
tion. On the one hand, the Supreme Court has cautioned
that,
Although we acknowledge the fallibility of medical
and psychiatric diagnosis, (citation omitted) we do
373 F. Supp. 487 (D. Minn. 1974); Lessard v. Schmidt, 349 F.
Supp. 1078 (E.D. Wis. 1972), vacated and remanded for a more
specific order, 414 U.S. 473, order on remand, 379 F. Supp. 1376
(E.D. Wis. 1974); vacated and remanded on other grounds, 421
U.S. 957 (1975), order reinstated on remand, 413 F. Supp. 1318
(E.D, Wis. 1976); Wyatt v. Stickney, 325 F. Supp, 781 (M.D.
Ala. 1971), enforced, 344 F. Supp. 373 (M.D. Ala. 1972), 344 F.
Supp. 387 (M.D. Ala. 1972), aff’d in part sub nom, Wyatt v.
Alderholt, 503 F.2d 1305 (5th Cir. 1974).
‘7 See Hoffman & Foust, Least Restrictive Treatment of the
Mentally Ill; A Doctrine in Search of Its Senses, 14 San Diego
L.R. 1100, 1141-42 (1977).
In evaluating the meaning of the right to treatment, it is
equally important to assess a program in terms of its adequacy—
and a highly relevant factor is the resident's opinion of, and
reaction to, the treatment he is receiving. It is by no means clear
that an individual resident would consider the least restrictive
treatment to be the most adequate. See Katz, The Right to Treat-
ment—An Enchanting Legal Fiction? 36 U. Chi, L. Rev., 755,
780 (1969).
34a Opinion, Court of Appeals
not accept the notion that the shortcomings of spe-
cialists can always be avoided by shifting the deci-
sion from a trained specialist using the traditional
tools of medical science to an untrained judge or ad-
minsitrative hearing officer. . . . the supposed pro-
tections of an adversary proceeding to determine the
appropriateness of medical decisions for the commit-
ment and treatment of mental and emotional illness
may well be more illusory than real.
Parham vy. ].R., 442 U.S. 584, 609 (1979). On the other
hand, the Supreme Court has noted that “The medical
nature of the inquiry, however, does not justify dispensing
with due process requirements.” Vitek v. Jones, 48
U.S.L.W. 4317, 4321 (March 25, 1980) , citing Addington
v. Texas, 441 U.S. at 430. Although both these statements
refer to initial commitment procedures for the mentally
ill,” their logic appears equally applicable to judicial re-
view of treatment decisions within institutions for the men-
tally retarded.
In the present case Romeo was confined pursuant to
§406 of the Pennsylvania Mental Health & Mental Re-
tardation Act of 1966, which provides that commitment
is for “care and treatment.’ By basing Romeo’s depri-
vation of liberty at least partially upon a promise of treat-
48 Parham established minimal procedures consistent with the
Fourteenth Amendment for the voluntary commitment of mentally
ill minors. Vitek prescribed the procedures due before the state
can transfer a convicted person from prison to a mental hospital,
(b) If upon examination it is determined that such person
is in need of care at a facility, the examining physicians or di-
rector, as the case may be, shall immediately report to said court
which may order the commitment of such person for care and
treatment. (emphasis added) Pa. Stat. Ann. tit. 50, §4406
Opinion, Court of Appeals 35a
ment, the state ineluctably has committed the community’s
resources to providing minimal treatment. While Romeo
has an entitlement to some treatment,” the evidence in
the record, although somewhat contradictory, suggests not
so much a total failure to treat as an inadequacy of treat-
ment.”
Given this situation it would be unrealistic for us to
ignore that courts by and large are not in as advantageous
On July 8, 1976, §4406 was declared unconstitutionally void
for vagueness in Goldy v. Beal, 429 F.Supp. 640 (M.D. Pa. 1979),
although the legislature, in enacting the 1976 Mental Health Pro-
cedures Act, P.L. 817 on July 9, 1976 specifically provided that
the provisions of the Mental Health and Mental Retardation Act
of 1966 (§4401 et seq.) were preserved insofar as they relate to
mental retardation or to persons who are mentally retarded. In
order to continue commitments constitutionally under §4406 the
Department of Public Welfare consented to an October 28, 1976
order of the district court which established standards for invol-
untary commitment, These standards (‘‘Goldy standards’’) are
legally binding regulations which enhance the §4406 provision.
In conditioning commitment on a person's inability to provide for
‘this most basic need for nourishment, personal and medical care,
shelter, self-protection and safety’’ the regulations represent that
such needs will be provided by residential placement, See 6 Penn.
Bull, 2884 (Oct.-Nov. 1976).
Similar to the right to protection and care, the right to
treatment has both a constitutional base—since it forms the ground
for the initial liberty deprivation and also a statutory base, It
can likewise be analyzed as a liberty interest or property entitle-
ment, Cf. Brede v. Director for Dept. of Health, Ete., 616 F.2d
407 (9th Cir, 1980) (property entitlement to treatment at some
state leprosarium).
1 Of course, if after receipt of the relevant medical testimony
on retrial, it is ascertained that Romeo received no treatment dur-
ing significant periods, then the jury should be charged in ac-
cordance with Appendix III A not III B.
36a Opinion, Court of Appeals
a position as the personnel at applicable institutions to
make decisions relating to day-to-day or hour-to-hour treat-
ment.” Moreover, the evaluation of standards of adequacy
and suitability in the psychiatric field is extremely difficult
even for trained personnel and certainly in the judicial
context. Questions in this field, as the Court in Addington
noted, often require not only a resolution of complicated
factual issues, they turn on the very meaning of those facts
—a meaning that must be interpreted by expert psychia-
trists and psychologists. 441 U.S. at 429.% And unques-
tionably, the gap between available resources and those
needed for ideal treatment programs is, unfortunately, con-
siderable. Once minimum treatment needs are satisfied,
courts should be cautious in requiring legislatures to allo-
cate resources in a way that may well be more desirable,
but not constitutionally mandated.™
Consequently, with respect to the claim regarding
adequacy of treatment, we agree neither with the plain-
tiff, that he has a right, insofar as day-to-day decisions
are concerned, to judicial review based on a constitutional
52 See generally, Bazelon, Foreword, 57 Geo. L. J. 676-79
(1969).
53 It has been contended that these medical uncertainties are
greater with respect to the mentally ill, on which Addington fo-
cused, than in the case of the mentally retarded. For constitu-
tional purposes, this difference would appear insignificant, inso-
far as a ‘‘medically reasonable’’ standard for ongoing treatment
decisions would appear proper for both groups.
“4 Cf. San Antonio Independent School District v. Rodriquez,
411 U.S. 1 (1973); Dandridge v. Williams, 397 U.S. 471 (1970).
Although both were Equal Protection cases, they dealt with an
analogous question of what constitutes an adequate provision of
public services or funds.
Opinion, Court of Appeals 37a
standard of least intrusive,” nor with the defendants that
oniy deliberate indifference to the medical and psycholo-
gical needs of Romeo constituted a violation of his right
to treatment.” It should be made clear to the jury that
** While least intrusive analysis is relatively easily applied
when the liberty interest infringed is freedom from bodily re-
straint, in the case of shackling, or involves conditions of con-
finement—minimum vs. maximum security—see Halderman, supra;
Eubanks v. Clarke, 434 F.Supp. 1922 (E.D. Pa. 1977), it merges
into questions of medical judgment when the most appropriate
method of administering treatment arises. This is not to suggest
that such analysis may not be desirable: ‘‘least intrusive’ may
well be the most effective tool for reconciling the treatment needs
of individuals, the concerns of libertarians and questions of the
proper allocation of limited state funds. Chief Justice Burger’s
concern in O’Connor, that a ‘‘right to treatment’’ might provide
a ready excuse for needlessly incarcerating socially undesirable
individuals, might well be minimized by the least intrusive ap-
proach. 422 U.S. at 589. And the issue addressed in Addington,
that ‘‘the State has no interest in confining individuals involun-
tarily if they are not mentally ill or if they do not pose some dan-
ger to themselves or others,’’ 441 U.S. at 426, which the court
found to be inadequately served by use of a weak ‘‘ preponderance’’
standard in commitment proceedings, might well be furthered by
employment of the least intrusive standard.
‘61t would not appear that the Supreme Court’s summary
dismissal for want of a substantial federal question in Sanchez v.
New Mezico, 396 U.S. 276 (1970), dismissing appeal from State v.
Sanchez, 800 N.M. 438, 457 P.2d 370 (1969), which held that an
admittedly dangerous patient did not have a right to the least re-
strictive environment, forecloses inquiry into the matter here. Re-
cent Supreme Court decisions have indicated that summary dis-
positions are not ironclad rulings, and that their precedential force
may well be modulated by subsequent doctrinal developments.
See Illinois State Bd. of Elec. v. Socialist Workers Party, 440 U.S.
173, 183 (1979) ; Washington v. Yakima Indian Nation, 439 U.S.
jhe Opinion, Court of Appeals
for the plaintiff to prevail it is necessary t& find that an
individual involuntarily confined in a facility for the men
tally retarded did run receive a form of treatment that is
regarded as acceptable for hirn in light A present medical
on Kher wienific knowledge.” The state should he per-
mitted to adduce evidence A security concerns, administra
tive necessities and fiscal constraints in the wurse of ex-
plaining its adoption of the challenged program. Thus, if
dendants can demonstrate 4 wherent relationship be
VRN9I9 , . Mandel 4. bradley, ¥42 UB 114 S9I7,. There have
heen ante antial dot rina develoyments anes Banchez in the mental
health field, ranging from the Crart's O'Comnar decision Ww the
heridhiemn A encod and Betrit wratta reeognving wre wrt fA
Vight to treatment in the leant rextrietive setting And in the in-
terim, Congress was ala Aetormined that treatment in the lens
reat fictive wtting im ayyropriate ty Afectnate and protect the
rights A the mentaliy retarded Mee HZ URC. EY I974,
(Srevelorpmentatly Siaathed Aw ance and Will A Kighta Act).
Morerver, war declination to renga at set thetrard cm
sitativomal right w treatment in the least restrictive alternative
proAnhes 2 mypware comtlict with Aanchez.
0 The copart’s rohe, in thin reapgect, in wrmewhat mmilar tw ita
fonction when reviewing ation Wy atwiniateative agencies, The
standard A review arlienlaied over a devate ago in Tribty ¢.
Cameryn, 579 VIA VA DC. Cir, 1967), romaine valid Any: the
hemaftal need not necomerily wake the best decision, just a permin
tithe and reausrncthe one. IwiAiigent jadicial review mast rely om
a well-reawmed analyén 7 the ind ution abd a record of ita treat-
ment decwienn Covington « Narris, WIV AW, 0 Di, Or
14. Morerver, we recrgnire that Chin creates omy a narrow
joticial gaaranive that theme comfined for treatment and who bth
wok and reqeire it will receive it. The cverta have net, an yet,
hogan ‘7 aAdrous whether there in a doty ff all imvhantarity em-
fined renidents to eultrnit ty wre treat wont
Opinion, Court of Appeals 39a
tween a particular treatment program and a resident’s
needs, they would not be liable.”
The standard articulated here may appear, at first
blush, to differ minimally {rom that propounded by the
concurrence. However, the couicurring opinion’s concern
with distinguishing the constitutional prohibition against
a “substantial departure from accepted professional judg-
ment” from a malpractice standard might lead to an ap-
proval of all conduct that is “not a sham or otherwise il-
legitimate.” Infra at 66a. We do not believe that such
a test can adequately protect a retarded person’s acknowl-
edged constitutional right to treatment or habilitation.”
Nor does the judiciary lack the tools to ascertain whether
58 One effective means of resolving complaints regarding treat-
ment programs would be for the institution to provide an internal
grievance mechanism with appropriate procedural safeguards.
This is not to suggest, however, that a full trial-type proceeding be
employed. The adversary character of a full legal hearing is often
not suited to the medical determinations at issue in treatment
decisions. As the Supreme Court stated in Parham v. J.R., ‘‘due
process is not violated by use of informal, traditional medical in-
vestigative techniques.’’ Jd. 442 U.S. at 607. Adversary proceed-
ings might well be counterproductive to the establishment of a
therapeutic alliance between physician and patient, And the state
interest in avoiding disruption and unnecessary intrusion into
medical judgments, as well as the patient's interest in impartial
diagnosis, may best be served by providing for independent deci-
sionmakers from within the institution. See Vitek v. Jones, 48
U.S.L.W. 4317, 4321 (March 25, 1980).
% Admittedly, the intent element of ‘‘deliberate indifference’’
is absent, but that aside, the standard propounded by the concur-
rence guarantees little more than the Eighth Amendment's pro-
scription of callous indifference to the serious medical needs of
prisoners.
40a Opinion, Court of Appeals
the constitutional minimum of medical acceptability pro-
posed here is being fulfilled. While earlier courts strug-
gled to weigh conflicting opinions and contending medical
theories regarding severely retarded persons, Congress has
recently facilitated a court’s ability to determine whether
a coherent relationship between a treatment program and
a resident’s needs exists. The enactment of the Develop-
mentally Disabled Assistance and Bill of Rights Act of
1975 provides guidelines, albeit not constitutionally bind-
ing, which enhance rational court review.
Should the plaintiff’s constitutional claims fail, the
recent case of State of Maine, et al. v. Thiboutot, 48
U.S.L.W. 4895, 4860 (June 24, 1980), may provide a
remedy under 42 U.S.C. §1983 for statutory claims
grounded in the Developmentally Disabled Assistance and
Bill of Rights Act. The potential availability of such a
route for redressing infringements or deprivations of rights
established by federal statutes further suggests that we
are dealing not with matters of common law malpractice,
but with fundamental interests of national import.
VII.
Although the varying standards set forth in this opin-
ion may occasion concern that the issues presented to the
jury might appear overly complex, we believe they are
meaningful and carefully distinguish varying factual situa-
tions. It cannot be gainsaid that the act of shackling a
resident is substantially different from the implementation
of daily treatment decisions. Likewise, a failure to protect
an individual from a sustained series of attacks cannot
properly be equated with a failure to choose a particular
technique for habilitation. Accordingly, special effort
should be employed to ensure that juries can intelligently
Opinion, Court of Appeals 4la
grasp the differences. Such an effort is not completely
novel in the law. It takes place, for example, in areas
of negligence law, immunity law, and admiralty law. We
do not, therefore, share the concern expressed by the con-
curring opinion that district court judges or juries will be
unable to understand these distinctions. Moreover, it is
reasonable to expect that future plaintiffs will have grounds
for raising only one or two of the claims analyzed here,
thus further simplifying the difficult task. In any event,
it would be a disservice to an injured person who claims
to have been abused during a period of involuntary in-
stitutionalization to lump indiscriminately a variety of con-
stitutional violations for the sake of beguiling simplicity.
Such oversimplification, so handy in political debate, often
lacks the precision necessary for resolving complicated
legal questions.
Inasmuch as it is still unclear how the evidence will
emerge at the retrial, we have set forth in an appendix
what may provide a beginning point for a set of jury in-
structions in a matter of this type.” Of course the spe-
cific instructions submitted to the jury must be carefully
structured to reflect the actual record that is developed on
remand.
VIL.
Because we have already ruled that a new trial is re-
quired, we need not decide whether the other errors raised
by plaintiff concerning the method in which the trial was
*° There has been no suggestion or argument made in this
case regarding the possibility of different standards for the com-
pensatory and punitive damages claims. While it may be desirable
to differentiate such charges and to require explicitly a knowledge
or state of mind element in punitive claims, the development of
such distinctions must await a more fully adumbrated record.
42a Opinion, Court of Appeals
conducted are themselves grounds for a new trial. How-
ever, we believe that a comment on the trial court’s ap-
proval of dual representation for the defendants is in or-
der. At a final pretrial conference, the attorney who had
appeared for all the defendants, as a result of an insurance
agreement, requested that both he and the deputy attorney
general, who represented the defendants as state employees,
be permitted to act as counsel during trial. The district
court ruled in favor of this joint participation. In order to
explain the presence of both attorneys, the court suggested
that insurance counsel identify himself as the attorney for
Dr. Youngberg, and that the deputy attorney general iden-
tify himself as counsel for defendants Matthew and Conley.
The jury was so advised, and heard two sets of opening
and closing statements, as well as double cross-examina-
tions, although no separate legal interests or conflicts
among defendants were asserted or surfaced.
On remand, the district court should make some ruling
on this issue. If it determines that dual representation is
permissible, it should set forth supporting reasons.” More-
over, the practice of permitting counsel to make deliberate
misstatements to the jury, even for the purpose of con-
cealing the existence of liability insurance coverage, is of
dubious propriety and should not be repeated.
6! This written response to any objections of the plaintiff may
well include consideration of relevant local rules limiting the num-
ber of attorneys who may participate, ¢.g., E.D. Pa. Loeal R. 33
(a), especially where, as here, representation is joint rather than
several. Because the complaint sought money damages from the
defendants in their individual, not official, capacity, the Attorney
General’s duty or option to defend lawsuits against state emloyees
may be no different in such an instance from that of an insur-
ance carrier under a contract.
Opinion, Court of Appeals 43a
IX.
In order to appreciate the full problem posed by this
case, it is important to note that the Supreme Court has
recognized a common law of qualified immunity protect-
ing officials and employees from civil liability for acts
performed in the discharge of duties imposed upon them.
Such immunity is available even when constitutional rights
have been transgressed, if the official or employee was not
aware, or had no reason to be aware, of such rights. As
the Supreme Court explained in Wood v. Strickland, lia-
bility for damages for every action which is found sub-
sequently to have been violative of a person's constitutional
rights and to have caused injury would unfairly impose
upon administrators the burden of mistakes made in good
faith in the course of exercising discretion within the scope
of official duties. 420 U.S. 308 at 319 (1975).
Because of the evolving nature of the rights in issue
here, it may well be that the defendants did not know of
them or had no reason to know of them—governmental
officials are not “charged with predicting the future course
of constitutional law.” Pierson v. Ray, 386 U.S. 547, 557
(1967). Institutional administrators are entitled to rely
on traditional sources for the factual information incor-
porated in their policy decisions, and when faced with
behavior causing or threatening disruption, have an obvious
need for prompt action and judgments, which can only
be based on existing knowledge. See Scheuer v. Rhodes,
416 U.S, 232, 246 (1974). Accordingly, when this mat-
ter is remanded for a new trial, the trial judge should in-
struct the jury regarding the possibility of immunity” with
* See Trial Transcript, Vol. 8, p. 21, It should be noted that
in the original class action litigation alleging state and federal
44a Opinion, Court of Appeals
the caveat that defendants’ reasonable belief is to be judged
at the time their actions were taken. The jury should
further be charged that the defendants are not responsible
for unforeseeable developments in the law.
X.
The deplorable conditions at Pennhurst and the mani-
fold problems and anguish that those conditions spawned
have been addressed in Halderman v. Pennhurst. The
present litigation deals with the more discrete problems
facing individual patients and their relationships with of-
ficials and employees of the institution. More particularly,
it relates to the constitutional rights possessed by such
citizens and the responsibilities and duties of officials and
employees who are claimed to violate such rights.
Unfortunately, these constitutional rights have not
always been clearly perceived, and even when recognized
the description of such rights, their articulation, and their
application to particular factual patterns has only slowly
emerged. Even today, the process is still in its early stages.
The difficulty of the taskk—and it frequently is diffi-
cult to describe with exactitude the contours of develop-
ing constitutional protections—is further complicated be-
cause the applicable medical disciplines are themselves still
statutory as well as Constitutional violations and involving an
admittedly different set of Pennhurst officials and plaintiffs, the
district court found that ‘‘the defendants have met their burden
of convincing us by a preponderance of the evidence that they
are entitled to the good faith immunity from damages afforded
to such officials in connection with the injuries suffered by the
named plaintiffs.’’ Halderman v. Pennhurst State School and
Hospital, 446 F.Supp. 1295, 1824 (B.D, Pa. 1977) aff'd and modi-
fied, 612 F.2d 84 (3d Cir, 1979),
Opinion, Court of Appeals 45a
in their formative period, and because the resources avail-
able to the states are so limited. Nonetheless, where valid
rights of citizens are at stake, the courts may not shirk
the task of seeking to spell out the elements and details
of such rights as carefully as possible.
To the extent that in the past we may have invoked
inapplicable analogies, we should be forthright enough to
admit the error and to seek to rectify it. To the extent
that utilization of other concepts, though appealing, is
found to be impractical, we should continue the quest for
standards that are realistic and reflective of the changes
that are still taking place in psychiatry, psychology, soci-
ology and other related fields that so greatly affect the
problems of the retarded.
And we should be cautious in establishing rules that
would visit serious financial liabilities on administrators,
who, when they performed the acts in question, were not
aware of the new standards of rights and responsibilities
subsequently formulated by the courts or the new scientific
advances that have been achieved to minister to persons
who are mentally retarded.
XI.
The judgment of the district court will be vacated,
and the case remanded for a new trial.
46a Opinion, Court of Appeals
APPENDIX
I. SHACKLING
If you find that the plaintiff was shackled against
his will, and defendants knew or had reason to know of
such conduct, you may find the defendants liable unless
they can offer compelling reasons for this action. If the
defendants satisfactorily explain that it was necessary to
shackle the plaintiff for his own protection or for treat-
ment purposes, then they may not be liable. However, it
must be demonstrated that the shackling was the least
restrictive means of handling the resident — that other,
less severe measures had been tried or considered and
found unworkable. Only compelling reasons relating to
the treatment or the protection of the resident are per-
missible justifications for shackling.
II. PROTECTION FROM ATTACKS
If you find that the plaintiff was harmed by a series
of attacks, and the defendants knew or had reason to know
of them, then you may hold the defendants liable. If the
defendants knew or had reason to know of these attacks,
then only if they provide substantial reasons which explain
that the attacks occurred despite their attention will they
be deemed to have fulfilled their duty to care for and to
protect the plaintiff. Substantial explanations have to do
with promoting the treatment or protection of the plain-
tiff. For example, if the staff considered it important, for
therapeutic purposes, to have the resident mingling with
others instead of confined to an isolated cell, even though
some risk of injury existed, you may consider that to be a
substantial explanation. But overcrowded conditions or
inadequate staffing patterns may not justify the injuries.
Opinion, Court of Appeals 47a
III. ADEQUATE TREATMENT
A. If you find that the plaintiff was involuntarily
committed for treatment, and no treatment was adminis-
tered, and no compelling explanation for the lack of treat-
ment was offered, you may hold the defendants liable.
B. If you find that the plaintiff has received some
treatment, you must then determine whether the treatment
is regarded as acceptable in the light of present medical
or other scientific knowledge. If you find that it is not
acceptable, you may find for the plaintiff. In addition,
if the evidence does not demonstrate that there is a rela-
tionship between the treatment administered and the plain-
tiff’s needs, even if the treatment is arguably regarded as
acceptable in other situations, then you may find for the
plaintiff. In deciding upon the adequacy of the treatment
program adopted you may consider the defendants’ ex-
planations regarding security concerns, administrative
necessities and fiscal constraints.
C. If you find that a selection of a mode of treat-
ment subjected the plaintiff to significant deprivations of
liberty, then you must go on and determine whether that
decision provided for the least intrusive treatment avail-
able under the circumstances. If the defendants consid-
ered other alternatives and ascertained that the program
adopted was the least intrusive available, then you should
find the defendants not liable.
48a Concurring Opinion
SEITZ, Chief Judge, concurring, with whom Judges
Aldisert, Rosenn, and Garth join.
I agree with the majority that the judgment of the
district court must be vacated and the case remanded for
a new trial because of the exclusion of relevant expert
testimony and the use of improper legal standards in the
charge to the jury. I also agree with the majority that
this case is governed by the due process clause of the four-
teenth amendment and not by the eighth amendment. I
write separately because of a pervasive disagreement with
the majority with regard to the standards that should be
employed in charging the jury on remand.’
Pennhurst is not unfamiliar to this court. Halderman
v. Pennhurst State School & Hospital, 612 F.2d 84 (3d
Cir. 1979) (in banc), cert. granted, 100 S. Ct. 2984
(1980) , was a class action on behalf of the residents of
Pennhurst challenging the practice of institutionalizing the
‘mentally retarded. Plaintiff Nicholas Romeo is a member
of that class, and the defendants here are also defendants
in Halderman. A majority of this court held in Halder-
man that federal and state statutory provisions granted the
residents of Pennhurst a right to treatment in the least re-
1 The existence of a qualified immunity defense is not raised
on this appeal. Consequently, I will not address this question even
though it is discussed in the majority opinion.
I also emphasize that, as the majority appears to concede, this
appeal does not present claims involving nonreversible surgery or
the administration of antipsychotic drugs. Therefore, in my view
the majority opinion would not be controlling if such claims were
asserted in other litigation.
Concurring Opinion 49a
strictive environment. See 612 F.2d at 104-07; Develop-
mentally Disabled Assistance and Bill of Rights Act, 42
U.S.C. §§6001-6081 (1976); Mental Health & Mental
Retardation Act of 1966, Pa. Stat. Ann. tit. 50, §§4101-
4704 (Purdon 1969). The court remanded for an in-
dividualized determination of what type of environment,
institutional or otherwise, best suited each class member’s
needs. The majority did not have to reach the constitu-
tional issues presented by the plaintiffs.
This suit presents legal issues that take the next step
beyond Halderman. The plaintiff alleges that while con-
fined at Pennhurst he was deprived of his rights under the
eighth and fourteenth amendments of the Constitution.”
The defendants are state officials who had policymaking
and supervisory responsibilities at Pennhurst when the al-
leged constitutional violations occurred. They are charged
by the plaintiff with failing to adopt policies and proce-
dures that would protect the plaintiff from attacks by other
residents and staff. The plaintiff also claims that the de-
fendants violated his constitutional rights after his trans-
fer to the Pennhurst hospital building by causing him to
be physically restrained for long periods of time and by
refusing to provide adequate treatment. The violations
after the plaintiff’s transfer to the hospital building were
allegedly to punish him for filing this suit. Although the
theory of the plaintiff’s complaint is not entirely clear, the
defendants are apparently charged with direct liability
2 The procedures used to commit the plaintiff are not at issue
here. See generally Secretary of Public Welfare v. Institutional-
ized Juveniles, 442 U.S. 640 (1979). Nor is it significant that the
plaintiff's mother, and not the state, applied for his commitment.
See Halderman, 612 F.2d at 94. Accordingly, those factors have
no bearing on the analysis that follows.
50a Concurring Opinion
rather than vicarious liability for the conduct of other state
employees supervised by them. The plaintiff’s complaint
requested injunctive relief as well as damages against the
defendants in their official and individual capacities, but
only the damage claims against the defendants in their in-
dividual capacities are raised on this appeal.
The majority establishes a multilevel series of stan-
dards to govern the plaintiff’s claims. First, with respect
to the protection claim, the majority holds that failure of
the defendants to provide for the plaintiff’s safety can be
justified only by a showing of substantial necessity. Sec-
ond, because physical restraint “raises a presumption of a
punitive sanction,” it can be justified only by a compelling
necessity. In addition, the majority holds that the plaintiff
is entitled to an instruction that the defendants must show
that restraint was the “least restrictive method of dealing
with the patient, in light of his problems and the surround-
ing environment.” Third, the majority divides the treat-
ment claim into three categories. If the jury finds that
no treatment was administered, it may hold the defendants
liable unless they can provide a compelling explanation
for the lack of treatment. If some treatment was admin-
istered, the defendants will not be liable if that treatment
was “acce table in light of present medical or other scien-
tific knowledge. .. . Thus, if defendants can demonstrate
a coherent relationship between a particular treatment
program and a resident’s needs, they would not be liable.”
Finally, “least intrusive” analysis applies to the selection
of a treatment approach if the jury finds that the approach
subjected the plaintiff to “significant deprivations of lib-
erty.
Concurring Opinion 5la
These standards are unnecessarily complex, and they
undoubtedly will cause confusion. This complexity and
confusion will affect both the ability of a jury to meaning-
fully assess liability and the ability of state officials like
the defendants to effectively conform their conduct to these
standards. The jury will be forced to make artifical dis-
tinctions between what are in reality related issues. More-
over, the jury must give essentially similar standards the
distinctive meanings envisioned by the majority. For ex-
ample, even if the jury can meaningfully differentiate be-
tween compelling necessity and substantial necessity, it is
unlikely that it can do so in the manner contemplated by
the majority, i.e., as a way “to distinguish between isolated
incidents and inadvertent accidents, on the one hand, and
persistent disregard of patients’ needs, on the other.”
The majority’s multilevel standards also will inject
complexity and confusion into the work of state officials
who, like the defendants, have policymaking and super-
visory responsibilities at institutions like Pennhurst. These
officials will have to formulate policies and procedures
to ensure that the institution’s residents are (a) protected
from attack unless some substantial necessity justifies the
lack of protection, (b) left unrestrained unless some com-
pelling necessity justifies their restraint, and (c) treated
with various methods that may, depending on the circum-
stances, have to be based on accepted medical or other
scientific knowledge or be the least intrusive treatment
available.
Furthermore, in the unlikely event that state officials
are able to formulate appropriate policies and procedures
under the different standards, they still may be uncertain
as to what standards govern their conduct. Treatment
programs, for example, could be governed by more than
52a Concurring Opinion
one standard. Testimony at the trial indicated that some
behavior modification programs utilize “timeout” prin-
ciples involving periodic mechancial restraint of the limbs
to eliminate aggressive behavior. It is not clear whether
such a program has to be the least intrusive alternative
or only be acceptable in light of present medical or other
scientific knowledge.
This complexity and confusion is unnecessary. In
some situations the development of multilevel standards
may be unavoidable. I do not believe, however, that such
standards are required in this case to accurately differenti-
ate the factual and legal issues presented. As will be
noted below, the plaintiff's claims are interrelated, and
it is unrealistic to treat them as discrete questions. Pro-
tection, restraint, and treatment are not severable issues
in the context of the institutionalized mentally retarded.
I believe that a single standard can be established to pro-
tect the constitutional rights of committed persons while
recognizing the legitimate interest of the state.
II.
It is important to examine the relevant constitutional
principles before formulating a standard to govern the
issues presented in this case. Initially, I agree that condi-
tions of confinement of the mentally retarded are subject
to due process scrutiny. Government action that infringes
liberty interests is subject to scrutiny under the due pro-
cess clause and, at a minimum, it must be supported by a
legitimate state interest. A mentally retarded person does
not lose this protection merely because he is institution-
alized.
This is not the end of the matter, however. Insti-
tutionalization by definition entails some restrictions on
Concurring Opinion 53a
the personal liberty of committed individuals. As I noted
in Halderman, 1 believe that “the state’s willingness to
provide the residents with such necessities as food, shel-
ter, medical care, and supervision, for which the resi-
dents have no other source, forms an adequate basis for
some state-imposed restrictions on their liberty.” 612 F.
2d at 125 (Seitz, C.J., dissenting). The questions that
remain, of course, are the degree to which personal lib-
erty can be infringed and the duties owed by the state to
residents of its institutions.
The state may not confine a mentally retarded indi-
vidual unless it has at least a legitimate purpose for doing
so. Because the state can confine an individual only for
certain purposes, the conditions of that confinement must
bear a reasonable relationship to those purposes. As the
majority notes, three state interests traditionally have been
advanced to justify commitment of the mentally disabled:
danger to others, danger to self, and the need for care or
treatment. When analyzing these state interests it is tempt-
ing to speak of them as being analytically distinct. In
reality, they represent a finely meshed interaction of state
interests and patient needs. This is especially true in the
context of postcommitment issues. For example, it is some-
what artificial to speak of danger to self as being distinct
from the need for care or treatment. The very fact that
an individual is dangerous to himself means that he needs
care and treatment. Similarly, the need for a safe environ-
ment, which is raised by the plaintiff’s protection claim,
implicates all three interests. Some of the plaintiff’s in-
juries are the result of retaliation by other patients for his
attacks on them, and this retaliation has a double effect:
it makes the plaintiff's environment physically unsafe and
it tends to impede his maximum development. Although
54a Concurring Opinion
the three interests are not entirely coextensive, this inter-
relation must be kept in mind when employing legitimate
state interest analysis.
With this view of state interests and patient needs in
mind. I believe that the plaintiff has a constitutional right
to minimally adequate care and treatment. The existence
of a constitutional right to care and treatment is no longer
a novel legal proposition. See, e.g., Donaldson v. O’Con-
nor, 493 F.2d 507 (5th Cir. 1974) , rev’d on other grounds
and remanded, 422 U.S. 563 (1975); Rouse v. Cameron,
373 F.2d 451 (D.C. Cir. 1966). Although the seminal
right-to-treatment cases were concerned only with the
mentally ill, recent cases have extended this right to the
mentally retarded. See e.g., Welsch v. Likins, 550 F.2d
1122 (8th Cir. 1977); Wyatt v. Aderholt, 503 F.2d 1305
(5th Cir. 1974).
It is important to remember, however, that insofar
as a constitutional right to treatment is concerned, there
are critical differences between the mentally ill and the
mentally retarded. Cf. Kremens v. Bartley, 431 U.S. 119,
135-36 (1977) (in defining appropriate class in rule 23
action challenging state commitment statute, court must
pay careful attention to differences between mentally ill
and mentally retarded. For example, this court noted in
Halderman that “[s]trictly speaking, since mental retarda-
tion is not a curable disability, the term ‘treatment’ is in-
appropriate. Rather, ‘habilitation,’ which refers to ‘that
education, training and care required by retarded individ-
uals to reach their maximum development’. . . is the more
appropriate term.” 612 F.2d at 95 n.14 (citation omit-
ted). It is in this sense that I use the term “treatment”
in this opinion. In addition, profoundly retarded persons
such as the plaintiff are generally unable to provide them-
Concurring Opinion 55a
selves with food, shelter, and clothing as well as basic
protection from other persons and physical hazards. Thus,
the danger rationales justifying commitment of the men-
tally retarded are often quite different from those justifying
commitment of the mentally ill.
The state does not contest that it has placed the plain-
tiff in Pennhurst to provide basic care and treatment. In-
deed, he has a right to treatment under state law, see
Halderman, 612 F.2d at 100-103, and the fact that Penn-
hurst has programs and staff to treat patients is indicative
of such a purpose. I believe that when the purpose for
confining a mentally retarded person is to provide care
and treatment, as is undoubtedly the case here, it violates
the due process clause to fail to fulfill that purpose. With
the above considerations in mind, | will now examine the
contours of the constitutional right to care and treatment
in the context of each of the plaintiff’s claims.
IV.
A. Protection Claim
The plaintiff’s first claim is that the defendants vio-
lated his constitutional rights by not adopting policies and
procedures that would protect him from attacks by other
residents and Pennhurst employees. In its charge to the
jury on this issue, the district court stated that the defend-
ants could be held liable only if they were “deliberately
indifferent to the medical and psychological needs of [the
plaintiff].” The plaintiff argues that the district court
erred in using this language. The phrase “deliberate indif-
ference” derives from Estelle v. Gamble, 429 U.S. 97
(1976), in which the Supreme Court held that deliberate
indifference to the serious medical needs of prisoners “‘con-
stitutes the ‘unnecessary and wanton infliction of pain’
56a Concurring Opinion
proscribed by the Eighth Amendment.” Jd. at 104 (quot-
ing Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint
opinion of Stewart, Powell, & Stevens, JJ.)). The ques-
tion presented here is whether this eighth amendment
standard is a correct statement of the duty imposed by the
due process clause to care for and to treat the institution-
alized mentally retarded.
The constitutional right to care and treatment means
that the defendants must provide a “basically safe and
humane living environment.” Goodman v. Parwatikar,
570 F.2d 801, 804 (8th Cir. 1978). This duty includes
reasonable protection from attacks by other residents and
staff. At a minimum, the defendants have an affirmative
obligation to discover the needs of mentally retarded pa-
tients for protection and to respond to those needs in an
adequate manner. Because the deliberate indifference
standard is not proper method to implement these affirma-
tive due process requirements, use of such language in the
charge was reversible error.
The plaintiff contends that the correct legal standard
is that the defendants must take reasonable steps to protect
the plaintiff. This standard, however, is virtually indis-
tinguishable from the standard that would apply in a state
malpractice action. Some courts have analogized to com-
mon-law tort principles in adopting the standard of care
for a section 1983 claim. See, e.g., Whirl v. Kern, 407
F.2d 781 (5th Cir.), cert. denied, 396 U.S. 901 (1969).
However, the Supreme Court has exhibited concern in an
eighth amendment context about turning every state mal-
practice claim into a constitutional violation. See Estelle.
429 US. at 106 (“deliberate indifference” standard used
to distinguish constitutional violations from medical mal-
practice). Constitutionalization of state torts is equally
Concurring Opinion 57a
a concern in due process analysis. See, ¢.g., Paul v. Davis,
424 U.S, 693 (1976); United States v. Delerme, 457 F.2d
156 (3d Cir. 1972). Adoption of the standard requested
by the plaintiff would make section 1983 coextensive with
malpractice claims when state action is present.
Distinguishing constitutional violations from ordinary
malpractice claims is especially difficult in the present
case because care and treatment often involve issues simi-
lar to those presented by malpractice actions. Neverthe-
less, I believe that this distinction should be maintained
in order to confine the jury to constitutional deliberations.
It is true that some malpractice claims may also rise to
the level of a constitutional violation. This does not mean,
however, that liability under section 1983 should be co-
extensive with liability in state malpractice actions, The
fourteenth amendment was not intended to remedy every
tort violation in which there is state involvement. Sec-
tion 1983 itself places limitations on the constitutionaliza-
tion of state tort claims by requiring that plaintiffs be de-
prived, under color of state law, of a right secured by the
Constitution and laws of the United States. Strict adher-
ence to these requirements prevents section 1983 from be-
coming a “font of tort law to be superimposed upon what-
ever systems may already be administered by the States.”
Paul v. Davis, 424 U.S, at 701.
Because federalism principles are implicated here, I
believe that a further limitation is necessary. Under these
circumstances I would hold that allegations of constitu-
tional violations based only upon mere malpractice do not
state a cause of action under section 1983. See Hampton
v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3d
Cir, 1976) (neglect, carelessness, or malpractice without
more does not establish constitutional violation under
58a Concurring Opinion
§1983); Harper v. Cserr, 544 F.2d 1121, 1124 (1st Cir.
1976) (section 1983 would not afford relief for complaint
alleging negligence or malpractice). This construction of
the statute implements the objectives of section 1983 with-
out encroaching on interests that are only a matter of state
concern, It must be remembered that with respect to the
institutionalization of the developmentally disabled, the
Constitution only establishes minimum standards below
which the state’s conduct may not fall. Although com-
mon-law tort principles may provide a useful starting point
in formulating the appropriate standard of care under sec-
tion 1983, they cannot be determinative of the constitu-
tional issue.
In developing a standard to assess whether the de-
fendants have infringed the plaintiff’s constitutional right
to care and treatment, it is also important to keep in mind
the nature of the conduct that will be evaluated by the
jury. The question of how best to treat the mentally re-
tarded is a hotly debated subject among experts, and the
answers most likely will change over time with the acqui-
sition of new knowledge. Although the statutes in Halder-
man required us to enter the debate, I believe that such a
debate should not be elevated to constitutional proportions,
A statute is relatively easy to change but the Constitution
is not. In my view, the Constitution only requires that
the courts make certain that professional judgment in fact
was exercised. It is not appropriate for the courts to
specify which of several professionally acceptable choices
should have been made. Cf. Developments in the Law—
Civil Commitment of the Mentally Ill, 87 Harv. L. Rev.
1190, 1342-44 (1974) (discussing use of an administra-
tive law model to ensure that court does not engage in
evaluating various psychiatric theories) .
Concurring Opinion 59a
Although I have indicated that the care and treatment
of the institutionalized mentally retarded must be left
largely to the appropriate professionals, some judicial
scrutiny is essential if the right to care and treatment is
not to become meaningless. As I noted previously, the
defendants must discover the needs of the institution’s
residents and, if action is necessary, respond adequately
to those needs. Once the defendants have taken action, or
have chosen not to act, it must be determined whether
their conduct satisfies the Constitution.
I would hold that the jury should be instructed that
the defendants are liable if their conduct was such a sub-
stantial departure from accepted professional judgment,
practice, or standards in the care and treatment of this
plaintiff as to demonstrate that the defendants did not base
their conduct on a professional judgment. This is not a
malpractice standard. By “accepted professional judg-
ment” I do not mean some standard employed by a rea-
sonable expert or a majority of experts in the community,
as state malpractice actions would require, but rather that
the choice in question was not a sham or otherwise illegiti-
mate, The jury is to decide only whether the defendants’
conduct had some basis in accepted professional opinion.
Furthermore, unlike state malpractice actions, a departure
from accepted professional judgment must be substantial
to give rise to liability. Although violations of the stan-
dard that I have developed would probably contravene
state malpractice standards as well, this does not mean that
the two standards are coextensive. The “substantial de-
parture from accepted professional judgment” standard
effectively distinguishes between conduct that violates the
minimum requirements of the Constitution and conduct,
such as ordinary malpractice, that does not.
60a Concurring Opinion
Instructions consistent with the previous paragraph
properly balance the plaintiff’s constitutional right to
minimally adequate care and treatment against the legiti-
mate interests of the state. Thus, with regard to the plain-
tiff’s claim that the defendants failed to adopt policies and
procedures that would adequately protect him from at-
tacks by other residents and staff, the jury should be
charged in accordance with the “substantial departure
from accepted professional judgment” standard. The dis-
trict court’s charge is inconsistent with this standard, and
it improperly excluded expert testimony relevant to the
above inquiry.
B. Restraint Claim
In his second claim, the plaintiff alleges that the de-
fendants violated his constitutional rights by causing his
freedom of movement to be restricted through the use of
various mechanical restraints while he was confined in the
Pennhurst hospital building.’ The majority holds that the
least restrictive alternative standard applies to this claim.
I believe that this standard does not represent what the
Constitution requires as a minimum for a number of rea-
sons. In Halderman this court held that the residents of
5 Testimony at the trial demonstrated that the plaintiff was re-
strained in three different ways. When restraints were used the
plaintiff was generally in ‘‘soft restraints.’’ These restraints allow
limited freedom of movement and confine a resident to the same
area by securing his arms or legs to a chair or bed. Sometimes
metal shackles were used on the plaintiff. This type of restraint
eonsists of a metal wrist or leg band to which a leather belt is
attached. The leather belt is tied to a chair or bed to restrict the
resident to that particular area. Finally, the plaintiff was oc-
easionally restrained by a leather muff around his hands. See
Trial Transcript, vol. 4, at 170-71; vol. 7, at 50-56.
Concurring Opinion 61a
Pennhurst have a right to treatment in the least restrictive
environment under the Developmentally Disabled As-
sistance and Bill of Rights Act and the Pennsylvania Men-
tal Health & Mental Retardation Act of 1966. However,
Halderman rested solely on statutory grounds and the pres-
ent case involves the Constitution.’ Furthermore, the least
restrictive alternative standard is inappropriate here for a
far more fundamental reason.
The major issue in Halderman was whether institu-
tionalization was per se illegal. Although we referred to
the living conditions at Pennhurst, the main issue in Halder-
man was where the members of the class should be treated.
That question is not presented in this case. See note 2
supra. The only question here is whether, assuming in-
stitutionalization is legal, the actions taken within the in-
stitution satisfy the Constitution. Regardless of the validity
*The holding in Halderman that the Developmentally Dis-
abled Assistance and Bill of Rights Act was enacted under $5 of
the 14th amendment does not mean that the legal standard of that
atatute—the patients have a right to treatment in the least restrie-
tive environment—controls the disposition of the constitational is-
anes here, See Halderman, 612 ¥.2d at 98. In Halderman we held
oly that the statute was a permissible exercise of Congress’ $5
enforcement power. The distinction between $5 and §1 of the 14th
amendment is crucial because Congress may proseribe eonduet
that a court would not find unconstitutional. Indeed, the test
under $5 is that normally associated with the necessary and proper
elanse. See, ¢.g., Katzenbach v. Morgan, 234 U.S. 641 (1966).
Thus the court's holding in Halderman, which relied on Katzen-
bach v. Morgan (see 612 F.2d at 98 & n.18), merely means that
the standard in the Developmentally Disabled Assistance and Bill
of Rights Act is permissible under the necessary and proper clanse.
The test normally associated with the necessary and proper clause,
however, is not an appropriate method of analyzing what due
process requires as a minimum.
62a Concurring Opinion
of least restrictive alternative analysis in other facets of
treatment of the mentally retarded, it simply has no ap-
plicability to conditions within an institution.
Implicit in the least restrictive alternative theory is
the notion that the state’s only interest in institutionalizing
a person is treatment. See, e.g., Wyatt v. Aderholt, 503
F.2d 1305, 1313 (5th Cir. 1974) (state interests other
than treatment are “trivial” compared to massive curtail-
ment of liberty involved). But see Morales v. Turman,
562 F.2d 993, 998 (5th Cir.) (questioning this and other
aspects of Wyatt), rev’d and remanded on other grounds,
430 U.S. 322 (1977) (per curiam). I believe, however,
that this gives inadequate recognition to the subtle inter-
relation of the various state interests involved.
As already noted, the three state interests normally
associated with confinement of the developmentally dis-
abled—danger to others, danger to self, and need for care
or treatment—overlap and mesh together to some extent
in this context. This is especially true as to actions taken
within the institution, where decisions about proper care
or treatment often must be made on a day-to-day basis.
The least restrictive alternative test gives inadequate recog-
nition to this fact. Because the state’s interests are rather
complex, a particular mode of care or treatment may serve
one state interest but not another. For example, physical
restraints may serve short-run safety needs but not long-
run habilitation needs. By focusing on the “best” care or
treatment through a rather rigid view of the state interests,
least restrictive alternative analysis tends to obscure the
true nature of the state interests. Because the standard
to be applied must give recognition to the interplay of the
various interests, I believe the majority’s test is an inap-
Concurring Opinion 63a
propriate standard for constitutional purposes. In short,
even if least restrictive alternative analysis provides an
appropriate framework for answering the question of
where to place the mentally retarded, it is simply too rigid
a tool once we leave that question and focus on condi-
tions of care and habilitation within a particular institu-
tion.
Moreover, the least restrictive alternative standard is
not easily transferable from the context in which it orig-
inated to the situation presented by this case. The stan-
dard evolved from the less drastic means analysis formu-
lated by the Supreme Court in cases involving free speech.
See, e.g., Shelton v. Tucker, 364 U.S. 479 (1960). Since
its first exposition of the less drastic means doctrine, the
Supreme Court has been rather cautious in using the doc-
trine because some less drastic alternative almost always
exists. If used without caution, the doctrine could in-
validate almost any state action. See generally Illinois
State Board of Elections v. Socialist Workers Party, 440
U.S. 173, 188-89 (1979) (Blackmun, J., concurring) ;
Note, Less Drastic Means and the First Amendment, 78
Yale L.J. 464,472 (1969).
These difficulties can be avoided where there is one,
objectively ascertainable less drastic means. See Richard-
son, Freedom of Expression and the Function of Courts,
65 Harv. L. Rev. 1, 40 (1951). This single, objective
alternative simply does not exist in the care and treatment
of the mentally retarded because what is the best care or
treatment at any given time may be a subject of great pro-
fessional debate. Thus, judges and juries likely will not
be able to make a single, objective determination, Fur-
thermore, because a mentally retarded individual’s needs
change over time, the least restrictive alternative standard
64a Concurring Opinion
will in effect require continuing evaluation of the “best”
method, not a single determination. Although Congress
or the states may adopt this standard as part of a statutory
scheme, such difficulties caution against use of the doc-
trine
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