# Petition — Youngberg v. Romeo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1959%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 457 U.S. 307 ## Text a. yor Court, U.S. 80-1429 eee 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 ....... TUES OE COMICS cccsccccecccssidecccecdesssdiodccedvecctoodéensees EE CE FMIIIIIINNS, cccascssesvscevsnsiipsnssovesecccnppacsnoaptnesesil SIN IOUT sackedesneccsvvncesscéchoviedbaiaubasletmanaciaboeienss SPACERS GE TUTRITIGUION, c0cecicsccssconnictecnresescvooscesoccsone Constitutional and Statutory Provisions .................... NE OF IE SID sntscesecesicipcssssouemncensesepianteatesareeis Reasons for Granting the Writ: I. This Case Presents Questions of Great Pub- Be OD drertnioceescecercesstenmsibiennstotonnnginin Il. The Decision of the Court of Appeals Is ey IID: isscctenreceeccsniassevesnnestionsmnate 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- IIIc sensdeissdinssascsascrdeasseisvensbeleiiieeseusaniens IY S's si pusibiiniieniontiodsailial aekaaa ada APPENDIX: Opinion, United States Court of Appeals for the RT MANNIE cossnvisnsncviccsossansencteccteintienrtetehiiasind COmeeeTEAS OMllOn .occccscecccscccosecseccccovcessnesess 10 15 15 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: Bist AMONG 6 occ ccc tencccresecsccces 2,6 Fourteenth Amendment ..............seeeeee. 2,6 FEDERAL STATUTES: ER aig 's.0% 040065 bare eeeser ens 2, 4, 11 ee Dn Wing ores nb 00:0.8-0\0:0.00 06 0000 0.08 12 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1959%3A01. Public record. Not legal advice.