Amicus Curiae Brief — O'Connor v. Donaldson

TABLE OF CONTENTS

Page

Inwrenest oF Amicus CURIAB .......0.00ccccciccecess 1

OTE Or SO I oa ck vac knscincacds 2

ENE i NE os ooo os isk ck, 2

Fr Or Oy Oe TEN Gh ren ene Lge ieee 3

I. The Fourteenth Amendment Guarantees a Right

to Treatment to Persons Involuntarily Committed

to State Mental EROUEUEIOMB 5.6.6 ccc cscs seees 3

A. Parens Patriae Commitments .............. $

B. Police Power Commitments ................. 10

C. Elements of the Right to Treatment ........ 18

Il. Psychiatrists| Employed at State Institutions

Should Be Immune from Personal Liability for

Damages When They Have Made a Good Faith

Effort To Comply With Constitutional Require-

UE TON ge PIS on no he vs ocd cece Sok 24

I a oo i ho ok ck 41

TABLE OF CITATIONS

CasEs: #: Page

Barr v. Matteo, 360 U.S. 564 (1959) ........ iia 28

Baastrom v. Herold, 383 U.S. 107 (1966) ............ 4,11

Board of Regents v. Roth, 408 U.S. 564 (1972) ....... 4

Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) ..... 33

Clarke v.Cady, 358 F. Supp. 1156 ‘W.D. Wisc. 1973). 32

Collins v. Schoonfield, 363 F. Supp. 1152 (D. Md. 1973) 32

Commonwealth v. Page, 339 Mass. 313, 159 N.E.2d 82

CR er Ges kek nh ee 4 pied urbe Sw ekaiecks 9

Dobson v. Cameron, 383 F.2d 519 (D.C. Cir. 1967) .... 24

Doe v. McMillan, 412 U.S. 306 (1973) .............. 28, 34

Donaldson v. Florida, 371 U.S. 806 (1962)........... 30

Donaldson v. O’Connor, 234 So. 2d 114 (Fla. 1969),

cert, denied, 400 U.S. 869 (1970) ...............

Donaldson v. O’Connor, 390 U.S. 971 (1968) ......... 30

Dunn v. Blumstein, 405 U.S. 330 (1972) ............. 17

Table of Citations Continued

Page

Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973) .... 32

Francis v. Resweber, 329 U.S. 459 (1947) ........... 17

Gaffney v. Silk, 488 F.2d 1248 (1st Cir. 1973) ....... 29

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) ...... 35

Haimes v.. Kerner, 492 F.2d 937 (7th Cir. 1974) ...... 32

Handverger v. Harvill, 479 F.2d 513 (9th Cir.), cert.

aed, SEG Tis Mee LATED oh ivcvcc vewcccevess

Harrison v. Brooks, 446 F.2d 404 (1s¢ Cir. 1971) ..... 33

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) ..... 5

Humphrey v. Cady, 405 U.S. 504 (1972) ............ 4

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) .......... 4,6

In re Donaldson, 364 U.S. 808 (1960) ............... 30

Sk fk ie EE eg er ee 7,15

In re Oakes, 8 Law Rep. 122 (Mass. 1845) ........... 6

In re Winship, 397 U.S. 358 (1970) ................. 3

Jackson v. Indiana, 406 U.S. 715 (1972) ........... 4,'8,17

Jamnnetta v. Cole, 493 F.2d 1334 (4th Cir. 1974) ...... 33

Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972) ....... 33

Kent v. United States, 383 U.S. 541 (1966) .......... 7,9

Korematsu v. United States, 323 U.S. 214 (1944) ..... 15

McNeil v. Director, 407 U.S. 245 (1972) ............. 4,7

Meyer v. Nebraska, 268 U.S. 390 (1923) ............. 4

Miller v. Overholser, 206 F.2d 415 (D.C. Cir. 1953) ... 14

Mitchell v. Boslow, 357 F. Supp. 199 (D. Md. 1973) ... 33

Nason v. Superintendent, 353 Mass. 604, 233 N.E.2d 908 ‘

RE cs ae a kk oes oe KAS hee

Nebbia v. New York, 291 U.S. 502 (1934) ............ 4

People ex rel. Anonymous v. La Burt, 14 App. Div. 2d

560, 218 N.Y.S.2d 738 (1961), appeal dismissed and

cert. denied, 369 U.S. 428 (1962) ................ 30

Pierson v. Ray, 386 U.S. 547 (1967) ............-. 28, 29, 31

Powell v. Texas, 392 U.S. 514 (1968) ............... 12, 18

Prince v. Massachusetts, 321 U.S. 158 (1944) ........ 6

Ragsdale v. Overholser, 281 ¥.2d 943 (D.C. Cir. 1960) 9

Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir.

ei a a oa i ee i 14

Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. de-

nied, 104 U.S. GOB (1972) 2. cee cc aie cccecenees

Robinson v. California, 370 U.S. 660 (1962) ......... 14,17

Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966) .... 8, 22,

. _ 28, 27, 37

Table of Citations Continued ~ iii

Page

Sas v. Maryland, 334 F.2d 506 (4th Cir. 1964) ....... 14

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............. 28

Schmidt v. Wingo, 499 F.2d 70 (6th Cir. 1974), affirm-

ing 368 F. Supp. 727 (W.D. Ky. 1973) .......... 34

Silber v, United States, 370 U.S. 717 (1962) _..... || 28

Skinner v. Spellman, 480 F.2d 539 (4th Cir. 1973) .... 32

Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), cert.

granted sub nom. Wood v. Strickland, 94 S.Ct. 1932

United States v. Atkinson, 297 U.S. 157 . ae 28

Weber v. Aetna Casualty ¢ Surety Co., 406 U.S. 164

Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974) ..8, 37

Westberry v. Fisher, 309 F. Supp. 12 (D. Me. 1970) .. 29

Whitree v. State, 56 Misc. 2d 693, 290 N.Y.S.2d 486

Williamson v. Lee Optical Co., 348 U.S. 483 (1955)... 4

Williamson v. United States, 184 F.2d 280 (2d Cir.

ca ss shee eek as 14

OWS BE. TR, SIE oo ok iS ik ees... 29

8, 13, 15, 19, 36, 37

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

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

344 F. Supp. 373, 387 (M.D. Ala. 1972) affirmed in

pert and remanded in part sub nom. Wyatt v.

Aderholt, No. 72-2634 (5th Cir., Nov. 8, 1974)

8, 19, 21, 22, 27, 30

MISCELLANEOUS:

American Bar Founpation, Toe Mentatty D1sasiep

AMR SHS LAS (rey. 00. 1971)... 5... 5

“a Fantnnd BE a Cas 11

_ SRS EEA IES LES 5 tar Se =

ada’ : s ESOP a, hee WOOD se

iv Table of Citations Continued

Page

American Psycuuatric Association, Posrrion PAPER on

THE Ricut To Apequate Care AND TREATMENT FOR

THE Mentautty Int ann Mentauity Retarpep (4th

Dovel, GO: BOT 55066 ion 6s vc ba ns Chk ede 09 21

American Psychiatric Association, Position Statement

on the Question of Adequacy of Treatment, 1;

Am. J. Payout. 1458 (1967) ...........06- 6, 10, 39

American Psycuiatric Association, STAND FOR

Hospirau anp Curnics (rev. ed. 1958) .../...... 22, 26

American PsycuiaTric AssociaTION), STANDARDS FOR

Psycuiarric Faciuities (rev. ed. 1974) ........ 21

Birnbaum, The Right to Treatment, 46 A-B.A.J. 499

CU cas ce os Cee ao ee ea bad eres 30, 36

Birnbaum, Some Remarks on ‘‘The Right to Treat-

ment,’’ 23 Aua. L. Rev. 623 (1971) ......... Pp eee 36

H. Brau & B. Mauzperc, Menta Hospirat Service

(APA) tion... Ne, TOR, 2008) ys ee iccencsscccscs 10

Case Comment, Wyatt v. Stickney and the Right of

Civilly Committed Mental Patients to Adequate

Treatment, 86 Harv. L. Rev. 1282 (1973) ........ 5, 16

23 D.C. Cope §§ 1322-23 (Supp. I, 1974) ............. 15

Dershowitz, Imprisonment by Judicial Hunch, 57

pe gg OT ie ern re 15

Dershowitz, Psychiatry in the Legal Process: A Knife

That Cuts Both Ways, 4 Triau 29 (Feb.-Mav. 1968) 7

Developments in the Law, Civil Commitment of the

Mentally Ill, 87 Harv. L. Rev. 1190 (1974) ...3,6, 8,17

Farina & Ring, The Influence of Perceived Mental IIl-

ness on Interpersonal Relations, 70 J. ABNORMAL

Pree: Ge CRS Foo hk sd bh hee he ee 3

Gilboy & Schmidt, ‘‘Vdoluntary’’ Hospitalization of the

Mentally Ill, 66 Nw. U.L. Rev. 429 (1971) ....... 5

Giovani & Gureal, Socially Disruptive Behavior of Ez-

Mental Patients, 17 Arcu. Gen. Psycniat, 146

RE od ids eke eae bak ve a ceed eed ao 10

OD EA, Th le FAT CE 8s hn ds 0 ove ho ens vovadnns 37

Hearings on Constitutional Rights of the Mentally Ill

Before the Subcomm. on Constitutional Rights of

the Senate Comm. on the Judiciary, 91st Cong.,

Lat Be ete) sik ov papvscesvacines. 3

Joint Inrormation Service, AMERICAN PsycHIATRIO

Ass’n & Nat’t Ass’n ror Menta Heattu, Eveven

RU FETS 855 6 eI Re ee 26

Mitchell, Bail Reform and the Constitutionality of Pre-

Trial Detention, 55 Va. L. Rev. 1223 (1969)...... 15

*

"

\

Table of Citations Continued | Vv

Page

Morris, The Confusion of Confinement Syndrome, 17

Bors. lL Rav, G61 (1068)... ieee este oe 11, 16

Morse, Tort Liability of the Psychiatrist, 18 Sys. L.

FA ee: 8 ren ie ee erry Tye ry 37

Nar’. Inst. Menta, Heattu, Starrixnc or Menrar

Heavru Facuatms, Unrrep States, 1972 (DHEW

Pub. No. ADM 74-26, 1974) .. ccc nccccccsseroves 25

Nar’s Inst. Mewrar Hearru, Statistica, Note 109,

Srarrine or State ASD County Mentau Hospira.s,

Unrrep States, 1973 (Aug., 1974) .........000- 26

Note, Civil Commitment of the Mentally Ill: Theories

and Procedures, 79 Harv. L. Rev. 1288 (1966) .... 5

Note, Civil Restraint, Mental Illness, and the Right to

Treatment, 77 Yata L. J. 87 (1967) ..'.....05e00- 7

Note, The Nascent Right to Treatment, 53 Va. L Rev.

SIME LEE ies ic 53 ceeds Fes oad ei tee 5

Note, Preventive Detention: An Empirical Analysis, 6

Hary. Crv. Rieuts-Cry. Lis. L. Rev. 291 (1971) .... 15

Note, The Rights of the Mentally Ill During Incarcera-

tion: The Developing Law, 25 U. Fua. L. Rev. 494

os yee Sire ioe oom re err 7

Postel, Civil Commitment: A Functional Analysis, 38

* Beoomtam 1a Tey. 1 TIGIEd -ivic coe ve ccceesdicsss 7

Project, Civil Commitment of the Mentally Ill, 14

TAD As a es CRIED oo oa ep ce encase che 7

W. Prosser, Hanpsook or THE Law or Torts (3d ed.

SOOEY gis etesat ae OR te 23

J. Rappeport, THe Curnican Evatuation or DANGER-

OUSNESS OF THE MENTALLY Itt (1967) .......... 10, 11

Rosen, Detection of Suicidal Patients: An Example of

Some Limitations on the Prediction of Infrequent

Events, 18 J. Consurt. Psycuow. 397 (1954) ..... 10

Sarbin & Mascuso, Failure of a Moral Enterprise: Atti-

tudes of the Public Toward Mental Illness, 35 J.

Consu Lt. PsvcHou. 159 (1970) ...5.. ccc cece coees 3

Shapiro, Legislating the Control of Behavior Control:

Autonomy and the Coercive Use of Organic Thera-

pies, 47 8. Cau. I, Rev. 237 (1974) ........-2000. 6°

Solomon, The American Psychiatric Association in

Relation to American Psychiatry, 115 Am. J.

Powcmins. 3 CIO E. give ccs vac ieek ss vhccs Claes 27

Tribe, An Ounce of Detention: Preventive Justice in

the World of John Mitchell, 56 Va. L. Rev. 371 *

CERNE bob cdeviseueiunctheeeciecks ee 15

IN THE

Supreme Court of the United States

Octoser TeRM, 1974

No. 74-8

J. B. O’Connor, M.D., Petitioner,

v.

KENNETH DonaAtpson, Respondent.

BRIEF OF AMERICAN PSYCHIATRIC

ASSOCIATION AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The American Psychiatrie Association (A.P.A.),

founded in 1844, is the nation’s largest organization

of qualified doctors of medicine who specialize in psy-

chiatry. Over 21,000 of the nation’s approximately

25,000 psychiatrists are members of the Association.

The A.P.A. has participated as an amicus curiae nu-

merous times in cases throughout the country involving

mental health issues.

Amicus believes this case to be of historic importance

to the future of mental health care in the nation’s pub-

lie mental institutions. The landmark ruling below that

there is a constitutional right to treatment—and the

_ difficult question of how to enforce that right—are of

immense concern to members of the A.P.A. and to their

patients.

Warmer i

2

CONSENT OF THE PARTIES

Amicus is filing this Brief with the consent of both

parties, whose letters of consent have been filed with

the Clerk.

SUMMARY OF ARGUMENT

1. Amicus Curiae American Psychiatric Associa-

tion, whose. members always have worked to implement

the right of psychiatric patients to receive adequate

care and treatment, wholeheartedly endorses the de-

cision below that the Constitution requires smtes to

provide meaningful treatment when they institution-

alize mentally ill citizens. Civil commitment of the

mentally ill results in deprivation of the precious

right to liberty itself. Thus, due process of law re-

quires that states in fact provide the treatment which

they promise when asserting a governmental interest

to justify such commitment. When that promise is

broken, and ‘‘treatment’’ turns into neglect, the sup-

posedly benevolent purpose of the commitment becomes

a cruel hoax, masking the violation of these citizens’

fundamental constitutional rights.

2. To enforce this constitutional right to treat-

ment, co should require states to supply sufficient

resources to give each patient a realistic opportunity

to receive adequate treatment. Individual doctors em-

ployed at these institutions should have a constitu-

tional duty to try in good faith to devote their pro-

fessional skill to the best possible treatment for each

of their patients. When the institutions’ resources are

inadequate, however, doctors who have tried in good

faith to treat their patients should not be personally

liable in damages to those patients who received in-

sufficient treatment. To hold the doctor rather than the

institution liable in such cases will deter psychiatrists

3

from working at the institutions where they are most

needed—those where the current level of treatment is

most inadequate—and will seriously jeopardize en-

forcement of the patients’ right to treatment.

ARGUMENT

l. THE FOURTEENTH AMENDMENT GUARANTEES A RIGHT TO

TREATMENT TO PERSONS INVOLUNTARILY COMMITTED

TO STATE MENTAL INSTITUTIONS.

When the state confines a citizen in a mental insti-

tution involuntarily, the state’s action affects some of

the most basic rights protected by the Constitution.

For what is usually an indefinite period of time,’ the

citizen loses his or her liberty—an interest of ‘‘tran-

scending value.” In re Winship, 397 U.S. 358, 364

(1970). Not only do committed citizens lose all free-

dom of movement, privacy, and association, but most

states also strip away their basic civil rights, such as

the rights to vote, serve on juries, make a contract, or

keep custody of their own children.* Moreover, former

mental patients are often stigmatized by a society

which still too frequently demonstrates an ‘‘irrational

fear of the mentally ill.’’* Such stigmatization can

1 See Developments in the Law, Civil Commitment of the Men-

tally Ill, 87 Harv. L. Rev. 1190, 1193 (1974) (hereinafter, ‘‘De-

velopments’’).

2 Td. at 1198-99.

8 Hearings on Constitutional Rights of the Mertally Ill Before

the Subcomm. on Constitutional Rights of the Senate Comm. on

the Judiciary, 91st Cong., Ist & 2d Sess. 62-63 (1969-1970) (testi-

mony of Dr.’Morton Birnbaum). See generally Farina & Ring,

The Influence of Perceived Mental Illness on Interpersonal Rela-

tions, 70 J. ABNORMAL PsycHo. 47 (1965) (people thought to

be mentally ill viewed unfavorably although their behavior is

normal) ; Sarbin & Mascuso, Failure of a Moral Enterprise: Atti-

tudes of the Public Toward Mental Illness, 35 J, CONSULT. PSYCHOL.

159, 162 (1970) (public considers the mentally ill dirty, worth-

less, and dangerous).

4

itself constitute a deprivation of liberty in the consti-

tutional sense. See Board of — v. Roth, 408 U.S.

564, 573 (1972).

Thus, this Court has ibhelhtied that civil “commit-

ment of the mentally ill involves a ‘“‘tassive curtail-

ment of liberty.”” Humphrey v. Cady, 405 U.S. 504,

509 (1972). It affects ‘‘fundamental rights,’’ see Baz-

strom v. Herold, 383 U.S. 107, 113 (1966), which are

encompassed by the Due Process Clause of the Four-

teenth Amendment. In re Ballay, 482 F.2d 648, 655

(D.C. Cir. 1973).

It is well established that governmental actions af-

fecting such constitutionally protected interests must

bear at least a rational relationship to legitimate state

ends. Williamson v. Lee Optical Co., 348 U.S. 483, 491

(1955) ; Nebbia v. New York, 291 U.S. 502, 525 (1934) ;

Meyer v. Nebraska, 262 U.S. 390 (1923). The Court has

made clear that this principle applies to procedures

for the involuntary confinement of the mentally ill or

disabled. Jackson v. Indiana, 406 U.S. 715, 738 (1972) :

At the least, due process requires that the nature

and duration of commitment bear some reasonable

relation to the purpose for which the individual

is committed. .

See also McNeil v. Director, 407 U.S. 245, 250 (1972)

(duration of confinement ‘‘must be strictly limited’’ in

accord with state’s purpose for commitment) ; Hum-

phrey v. Cady, supra, 405 U.S. at 514 (allegation that

no psychiatric treatment provided after commitment

under Sex Crimes Act presents ‘‘substantial consti-

tutional claims’’). .

The court below identified two basic state purposes

for civil commitment of the mentally ill—a “‘parens ©

5

patriae’”’ rationale, i.e., to benefit the person com-

mitted; and a “‘police power”’ rationale, #.e., to protect

society from dangerous individuals. 493 F.2d at 521.

Under either rationale, involuntarily committed men-

tal patients ° have a constitutional right to psychiatric

treatment.

A. Parens Patriae Commitments

The parens patriae power generally refers to the

state’s power to serve ‘‘as guardian of persons under

legal disabilities to act for themselves.’’ Hawaii v.

Standard Oil Co., 405 U.S. 251, 257 (1972). It has

served to justify special restrictions on the rights of

* See. Note, Civil Commitment of the Mentally Ill: Theories and

Procedures, 79 Harv. L. Rev. 1288, 1289-97 (1966); Note, The

Nascent Right to Treatment, 53 Va. L. Rev. 1134, 1138-39 (1967) ;

Case Comment, Wyatt v. Stickney and the Right of Civilly Com-

mitted Mental Patients to Adequate Treatment, 86 Harv. L. REv.

1282, 1288-91 (1973).

Typically, state statutes recognize three separate criteria for ~

commitment of the mentally ill: need for care or treatment (parens

patriae), danger to others (police power), and danger to self (pre-

dominantly parens patriac, but arguably also police power to the

extent that the state is acting to prevent the erime of suicide). An

American Bar Foundation study in 1971 reported that danger to

self or others was the sole criterion for commitment in nine states;

need for care or treatment was the sole basis in six other states;

18 additional states include both criteria as alternative bases; and

the remaining states enumerate no statutory criteria. AMERICAN

Bar Founpation, THE MENTALLY DISABLED AND THE LAw 36-49

(rev. ed. 1971), cited in Jackson v. Indiana, 406 U.S. 715, 737

n.19 (1972).

5’ While Amicus believes that there generally may be little prac-

tical distinction between ‘‘voluntarily’’ and ‘‘involuntarily’’ com-

mitted patients, and that al] patients should receive adequate psy-

chiatric treatment, the constitutional principles discussed here

apply only when the state acts to deprive citizens of liberty against

their will. See generally Gilboy & Schmidt, ‘‘Voluntary’’ Hos-

pitalization of the Mentally Ill, 66 Nw. U.L. Rev. 429, 452 (1971).

*»

6

children, such as compulsory school attendance laws.°

Application of the doctrine to commitment of the men-

tally ill dates back at least to an 1845 opinion of the

Massachusetts Supreme Judicial Court, which author-

ized the commitment of a nonviolent individual on

the theory that it was ‘‘conducive”’ to restoration of

his sanity. In re Oakes, 8 Law Rep. 122, 125 (Mass.

1845). Thus, even where an individual poses no danger

to society, frequently a state will invoke the parens

patriae rationale to justify commitment for ‘‘treat-

ment which it believes will be in the best interests of

the person.’’ In re Ballay, supra, 482 F.2d at 658.’

® See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166 (1944)

(‘‘Aecting to guard the general interest in youth’s well-being the

state as parens natriae may .. . requir[e] school attendance.’’).

™The parens patriae rationale might be thought to imply that

the involuntarily committed mental patient not only has a right

to treatment, but also has a duty to accept treatment that the

state is providing for the patient’s own good. See generally De-

velopments 1344-51. Nevertheless, Amicus believes that recogni-

tion of the right to treatment is not inconsistent with allowing

most patients a right to refuse treatment. In the overwhelming

majority of cases, cooperation of the patient is essential to mean-

ingful psychiatric therapy. See American Psychiatric Association,

Position Statement on the Question of Adequacy of Treatment,

123 Am.-J. Psycutat. 1458, 1459 (1967) (comprehensive treat-

ment plan requires patient cooperation). Moreover, forcing treat-

ment on unwilling patients may run afoul of important First

Amendment principles. See Winters v. Miller, 446 F.2d 65 (2d

Cir.), cert. denied, 404 U.S. 985 (1971) (involuntarily committed

Christian Scientist has right to refuse medication treatment). See

generally Shapiro, Legislating the Control of Behavior Control:

Autonomy and the Coercive Use of Organic Therapies, 47 S. Cau.

L. Rev. 237 (1974). A rule accommodating these possibly con-

flicting considerations might allow the state to commit a patient

for a limited time, while the physician sought to convince the

patient to accept needed treatment. If, however, the patient con-

tinued to refuse treatment, and if the patient had not been judi-

cially declared incompetent, long-term parens patriae commitment

7

Arguably, such a temporary deprivation of liberty,

when accompanied by adequate treatment for a mental _

disability, may serve to restore the citizen’s meaning-

ful, long-term liberty.

Whatever the limits of the parens patriae doctrine,’

at the very least, when a state involuntarily confines

one of its mentally ill citizens to an institution on the

ground that it is acting in a humanitarian way pur-

suant to its parens patriae power to aid that individ-

ual, due process requires that the individual in fact be

given such aid and treatment as would be reasonably

ealeulated to benefit or cure the citizen. Since the

state’s asserted purpose for a parens patriae commit-

ment’ is to provide treatment,” ‘‘due process requires

could not be justified, and release would be required. See Note, The

Rights of the Mentally Ill During Incarceration: The Developing

Law, 25 U. Fua. L. Rev. 494, 504-05 (1973) ; Note, Civil Restraint,

Mental Illness, and the Right to Treatment, 77 Yate L.J. 87, 112-13

(1967). See also McNeil v. Director, 407 U.S. 245 (1972).

8 See In re Gault, 387 U.S. 1, 16 (1967) (meaning of parens

patriae rationale is ‘‘murky’’); Kent v. United States, 383 U.S.

541, 555 (1966) (parens patriae philosophy of the juvenile court

‘*ig not an invitation to procedural arbitrariness’’). Indeed, some

commentators argue that parens patriae commitments should be

limited to eases where the court makes a finding of incapacity,

rather than simply mental illness. See, e.g., Dershowitz, Psychiatry

in the Legal Process: A.Knife That Cuts Both Ways, 4 Triau 29,

32 (Feb.-Mar. 1968); Postel, Civil Commitment: A Functional

Analysis, 38 Brooktyn L. Rev. 1, 33-37 (1971) ; Project, Civil Com-

mitment of the Mentally Til, 14 U.C.L.A.L. Rev. 822, 830 (1967).

®In many commitments, of course, the state asserts both a

parens patriae and police power purpose. See p. 11, infra.

10 In cases of mciitally ill individuals who are totally unable to

eare for themselves, or who may be dangerous to themselves, a

state might assert a parens patriae interest simply in providing

safe, custodial care, even if the individual’s illness might not be

curable. This justification is inapplicable to the instant case, of

8

that the nature and duration of commitment bear some

reasonable relation to’’ that purpose. Jackson v. In-

diana, supra, 406 U.S. at 738.

As the court noted in W yatt v. Stickney, 325 F. Supp.

781, 785 (M.D. Ala.), enforced, 334 F. Supp. 1341

(M.D. Ala. 1971), and 344 F. Supp. 373, 387 (M.D.

Ala. 1972), aff’d in part and remanded in part sub

nom. Wyatt v. Aderholt, No. 72-2634 (5th Cir., Nov.

8, 1974):

To deprive any citizen of his or nde liverty upon

the altruistic theory that the confinement is for

‘humane therapeutic reasons and then to fail to

provide adequate treatment violates the very fun-

damentals of due process.

Accord, Welsch v. Likins, 373 F. Supp. 487 (D. Minn.

1974). See also Rouce v. Cameron, 373 F.2d 451 (D.C.

Cir. 1966) (dictum).

This Court, too, has emphasized that a curtailment

of liberty can only be justified where the ‘‘theoretical

purpose’’ embodied in the parens patriae rationale is

matched by ‘‘actual performance’’:

While there can be no doubt of the original laud-

able purpose of juvenile courts, studies and cri-

course, since it was not the basis of Mr. Donaldson’s commitment.

See 493 F.2d at 517, 521. Moreover, in such instances due process

would require, at the very least, that a) at the commitment hearing

the state assert and prove this narrower rationale for confinement,

without reliance on any alleged treatment benefits to justify the

commitment; and b) that the duration of the commitment be

structly limited to the period during which the patient is unable

to eare for himself or herself. See Developments 1221-22. But see

Wyatt v. Aderholt, No. 72-2634, slip op. at 712 (5th Cir., Nov. 8,

1974) (while ‘‘need for care’’ may be rational state interest, mere

eare, without treatment, does not outweigh massive curtailment of

liberty involved in involuntary commitment).

9

tiques in recent years raise serious questions as to

whether actual performance measures well enough

against theoretical purpose to make tolerable the

immunity . . . from the reach of constitutional

guaranties. . .. There is much evidence that some

juvenile courts . . . lack the personnel, facilities

and techniques to perform adequately as repre-

sentatives of the State in a parens patriae capac-

ity. [Kent v. United States, 383 U.S. 541, 555-56

(1966).]

Accord, e.g., Nason v. Superintendent, 353 Mass. 604,

612, 233 N.E.2d 908, 913 (1968) (‘‘remedial aspect of

confinement [must] have foundation in fact’’).

When treatment is not provided, a hospital is trans-

formed ‘“‘into a penitentiary where one could be held

indefinitely for no convicted offense.’’ Ragsdale v.

Overholser, 281 F.2d 943, 950 (D.C. Cir. 1960). Such

confinement bears no relation to the state’s asserted

purpose for a parens patriae commitment. In Com-

monwealth v. Page, 339 Mass. 313, 159 N.E.2d 82 (1959),

the petitioner was civilly committed to a treatment

center for sexual offenders on the day before his crimi-

nal sentence was to end. However, because the treat-

ment center was not fully constructed, he was returned

to the prison where he received only the same group

and individual therapy as the general prison popula-

tion. The court released the petitioner on habeas

corpus, holding (339 Mass. at 317-18, 159 N.E.2d at 85)

(emphasis added) :

[T]o be sustained as a nonpenal statute, in its

application to the defendant, it is necessary that

the remedial aspect of confinement thereunder

have foundation in fact. It is not sufficient that the

Legislature announce a remedial purpose if the

consequences to the individual are penal. While

we are not now called upon to state the standards

>

10

which such a center must observe to fulfill its

remedial purpose, we hold that a confinement in a

prison which is undifferentiated from the tncar-

ceration of convicted criminals is not remedial so

as to escape constitutional requirements of due

process.

In the instant case, the lower courts have found that

Mr. Donaldson was not a dangerous individual, and

that his commitment was justified by the state solely

on the parens patriae rationale that he was in need of

treatment. 493 F.2d at 517, 521. Under such circum:

stances, the state’s continued long-term confinement of

Donaldson, without providing the medical treatment

alleged to be the basis of that confinement, was arbi-

trary state action, depriving Donaldson of his liberty

without due process of law.

B. Police Power Commitments

The state’s police power has also been suggested as

a rationale for commitment of mentally ill individuals

who are found to be dangerous to society. Amicus be-

lieves that in fact very few of the mentally ill present

such a danger.” In addition, the psychiatric commun-

ity cannot assure this Court that many any highly

11 At least ninety percent of patients in American mental hos-

pitals are considered harmless to others. See American Psychiatric

Association, supra note 7, at 1459. See also H. Britt & B. MAuzBeEra,

Mentau Hospitau Service (APA) (Supp. No. 153, 1962) (sample

erime rate before commitment and after release a fraction of tha?

of the general population) ; J. Rapreport, THE CiiInicaL Evauva-

TION OF THE DANGEROUSNESS OF THE MENTALLY Int (1967) ; Gio-

vanni & Gureal, Socially Disruptive Behavior of Ex-Mental Pa-

tients, 17 Arcu. GEN. PsycuiaT. 146, 153 (1967); Rosen, Detec-

tion of Suicidal Patients: An Example of Some Limitations on the

Prediction of Infrequent Events, 18 J. Consutt. PsycHou. 397

(1954).

11

reliable techniques for identifying with certainty

which of the mentally ill fall into this minority category

of dangerous individuals.’* Amicus recognizes that the

truly dangerous mentally ill pose special problems for

society, not only for the legal system, but also for men-

tal health care personnel in that these individuals

often are the most resistant to treatment.” Neverthe-

less, whenever the state acts under its police power to

deprive a mentally ill person of liberty on the basis of

a prediction of dangerousness, rather than a finding

that the person has committed a criminal act, Amicus

believes that the state should provide that person with

psychiatric treatment for his mental illness.

It should be emphasized at the outset that a state can

not avoid the constitutional requirement of a rational

relation to its parens patriae purpose of commitment,

discussed in Part A, supra, merely by verbalizing the

additional purpose of protection of society. Any time

the state relies at all on a parens patriae rationale for

confinement, the concomitant constitutional right to

treatment discussed above attaches to the person who

is the object of such confinement. Where the precise

basis in a particular case cannot be determined, the

presumption should be that the state was acting at least

in part for the benefit of the mentally ill patient pur-

suant to its parens patriae powers.

12 Studies on ‘‘dangerous’’ mental patients released following

Barstrom v. Herold, 383 U.S. 107 (1966), indicate that very few

of the patients who were released, and who psychiatrists predicted

would commit violent crimes, did in fact commit those crimes. See,

e.g., Morris, The Confusion of Confinement Syndrome, 17 Burr.

L. Rev. 651 (1968); for studies on similar groups, see, e.g., J.

RApPEPorT, supra note 11.

183 AMERICAN PsycHIaTRIc ASSOCIATION, CLINICAL ASPECTS OF

THE VIOLENT INpIvipuAL (Task Force Rep. No. 8, 1974).—_——~ “

12

However, even if the state could establish that bene-

fit to the patient (parens patriae) formed no part of

its rationale for interference withliberty, but rather

that its sole purpose (to which the nature of its con-

finement. need be constitutionally related) was protec-

tion of society, there are still. severe constitutional

problems in involuntary commitment absent an attend-

ant bona fide effort to provide adequate treatment. In-

deed, such an argument by the ee amounts to the

assertion that preventive detentionef the mentally ill

for an indeterminate term without treatment is con-

stitutionally permissible.

In addition to holding that a constitutional right

to treatment exists for mental patients committed by

the state pursuant to a parens patriae rationale, the

court below alternatively held that due process re-

quires the state to provide treatment as a quid pro

quo to the civilly committed mental patient, regard-

less of whether the commitment was under a parens

patriae or police power rationale. 493 F.2d at 521-525.

This statement of the constitutional right to tr eatment,

which also derives from the Due Process Clause of the

Fourteenth Amendment, begins with the recognition

that long-term detention under our system of justice

is generally predicated upon (1) a finding in an ad-

_versary proceeding with the-full panoply of constitu-

tional limitations and rights, (2) that an individual '

has committed a specific act defined as an offense

against the state, (3) for which a maximum period of

detention is explicitly prescribed. Id. at 522, citing

Powell v. Texas, 392 U.S. 514, 533, 542-43 (1968). The

court belo reasoned that whenever the state seeks

long-t detention outside of these ‘three central |

limitations on the government’s power to detain,’’ due

process requires that the government provide to the

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detained individual some quid pro quo—such as bene-

ficial treatment—to justify confinement.

It should be noted that this requirement of a quid

pro quo as expressed by the court below is deemed to

derive from the substantive nature of civil commitment

as a form of preventive detention, and not merely from

the fact that such detention lacks certain procedural

safeguards. See 493 F.2d at 522 n.21. The right as for-

mulated by the Court of Appeals would appear to be

unaffécted by, for example,a state procedure whereby

indefinite commitment was permitted upon a finding

in an adversary proceeding, with full Bill of Rights

safeguards, that an individual was ‘‘dangerous to

others.’ For even in stich a context, the state would

still be acting outside two of the above-enumerated

‘three central limitations on the government’s power

to detain.’’ Thus, even where the justification for de-

tention is dangerousness to society, if the government

wishes to bypass awaiting the effectuation of a specific

criminal offense and the adjudication of guilt, with

full Bill of Rights protection for the accused, it must

offer in return a quid pro quo, and rehabilitative treat-

ment is the most commonly recognized form of such

an exchange.” :

Although. there is no direct judicial antecedent for

this particular formulation of the limitations on the

state’s right of confinement, close judicial analogy can

be found. For example, statutes which ‘attempt to by-

pass the third requirement—detention limited to a fixed

term—have been closely scrutinized by the judiciary

4 Or, as the Fifth Cireuit later restated its Donaldson holding,

treatment must be provided as the quid pro quo society owes for

the extra safety it derives from the denial of individuals’ liberty.

Wyatt v. Aderholt, supra, slip op. at 726.

14

for some form of therapeutic or humanitarian benefit.

In examining indeterminate commitment under the

Maryland Defective Delinquent Statute, the Fourth

Circuit noted:

For those in the category ... it [the statute] would

substitute psychiatric treatment for punishment

in the conventional sense and would free them

from confinement, not when they have ‘‘paid their

debt to society”, but when they have been suffi-

ciently cured to make it reasonably safe to release

them. With this humanitarian and progressive ap-

proach to the problem, no person who has deplored

the inadequacies of conventional penological prac-

tices can complain. . . . [However,] deficiencies in

staff, facilities and finances would undermine the

efficacy of the Institution and the justification for

the law, and ultimately the constitutionality of

its application. [Sas v. Maryland, 334 F.2d 506,

517 (4th Cir. 1964).]

See also Miller v. Overholser, 206 F.2d 415, 419 (D.C.

Cir. 1953) (indefinite commitment under sexual psy-.

chopath law justifiable only upon theory of therapeutic

treatment): cf. Robinson v. California, 370 U.S. 660,

666 (1962) (status as drug addict does not meet ecri-

terion of commission of specific offense, justifving

long-term detention; but ‘‘compulsory treatment’’

might be such a justification); Ricks v. District of

Columbia, 414 F.2d 1097, 1110 (D.C. Cir. 1968) (‘‘Sta-

tistical likelihood that a particular societal segment

will engage in criminality is not ... [a] substitute for

proof of individual guilt’’); Williamson v. United

States, 184 F.2d 280, 282 (2d Cir. 1950) (Jackson, Cir-

cuit Justice) (‘‘Imprisonment to protect society from

predicted but unconsummated offenses is so unprece-

dented in this country and so fraught with danger of

‘

ue a wat

15

excesses and injustice that I am loath, to resort to

Wiese Js

Even under emergency war-time conditions, this

Court has held that exclusion from the area in which

one’s home is located and constant confinement be-

tween the;hours of 8:00 p.m. and 6:00 a.m. can be

constitutionally justified bv ‘‘{n]othing short of appre-

hension by the proper military authorities of the grav-

est imminent danger to the public safety.’’ Korematsu

v. United States, 323 U.S. 214, 218 (1944) (upholding

temporary detention of citizens of Japanese ancestry

justified as necessary to prevent espionage and sabo-

tage).

When the state acts under its police powers to detain

individuals full-time in state institutions for indefinite

periods of time, ‘‘then treatment ha[s] to be provided

as the quid pro quo society ha[s] to pay as the price of

the extra safety it derive[s] from the denial of indi-

viduals’ liberty.’’ Wyatt v. Aderholt, supra, slip op. at

726. Compare In re Gault, 387 U.S. 1, 22-23 n.30

(1967) :

While we are concerned only with procedure

before the juvenile court in this case, it should be

noted that to the extent that the special procedures

Enactment of the preventive detention aspects of the D.C.

Bail Reform Act, 23 D.C. Code §§ 1322-23 (Supp. I, 1974), has

eaused much scholarly debate. Although, as in civil commitment,

detention of arrestees under the statute is based on predictions of

dangerousness, an adversary hearing is provided and detention is

strictly limited to 60 calendar days. Sec, ¢.g., Note, Preventive

Detention: An Empirical Analysis, 6 Harv. Civ. Riauts-Crv. Lis.

L. Rev. 291 (1971) ; Dershowitz, Jmprisonment by Judicial Hunch,

57 A.B.A.J. 560 (1971) ; Tribe, An Ounce of Detention: Preventive

Justice in the World of John Mitchell, 56-Va. L. Rev. 371 (1970) :

ef. Mitchell, Bail Reform and the Constitutionality of Pre-Trial

Detention, 55 Va. L. Rev. 1223 (1969).

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for juveniles are thought to be justified by the

special consideration and treatment afforded them,

there is reason to doubt that juveniles always re-

ceive the benefits of such a quid pro quo.

Thus, Amicus urges this Court to recognize a consti-

tutional right to treatment as the quid pro quo society

offers for the massive curtailment of liberty extracted

in involuntary civil commitment.

Finally, it should be noted that in addition to the

quid pro quo approach of the court below, there are

other difficult constitutional questions concerning in-

voluntary commitment without treatment. First, would

not the confining of the mentally ill because of their

‘‘dangerous propensities’? violate the Equal Protec-

tion Clause, in that others with the same propensities

are not subject to involuntary confinement? If the

interest which justifies making only the mentally ill

liable to confinement is the need to protect society, then

the classification is both overinclusive, in that most

mentally ill are not dangerous,” and underinclusive, in

that many non-mentally ill are potentially dangerous.

Case Comment, supra note 4, at 1294. Furthermore,

the legislature in singling out a specific subgroup for

invidious treatment must show at the very least a ra-

tional basis for such discrimination. The only rationale

for sequestering dangerous mentally ill individuals,

while not seeking confinement of dangerous individuals

who are not mentally ill, is the belief that the danger-

ous propensities of the mentally ill can be the subject

of treatment and/or preventive cure.”’ This rationale,

16 See note 11, supra.

17 An alternative argument—that mental illness is a particularly

good predictor of dangerousness—simply does not square with the

facts. See note 11, supra. See also Morris, supra note 12.

17

of course, fails if adequate treatment is not in fact

provided, as there is no ‘“yational relation’’ between

the nature of the confinement and the classification on

which it is based. Cf. Jackson v. Indiana, supra, 406

U.S. at 738. Indeed, since civil commitment affects

fundamental interests which are accorded explicit con-

stitutional protection, such as physical freedom, pri-

vacy, association, and sometimes the right to vote, the |

state’s classifications in this area should be subject to

stricter judicial scrutiny than the requirement of

merely a ‘‘rational”’ relationship to the state’s inter-

est. Developments 1215 & n.83; sce, e.g., Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164 (1972); Dunn v.

Blumstein, 405 U.S. 330, 335 (1972).

Second, if the quid pro quo right to treatment dis-

cussed above is not sustained, this Court will have to

decide whether confining the mentally ill under the

police power for their dangerous propensities, without

providing adequate treatment, constitutes cruel and

unusual punishment under the Fighth Amendment. In

rejecting the power of a state to make drug addiction

an offense, this Court has noted:

A law which made a criminal offense of such a

disease [as mental illness, leprosy, or venereal di-

sease] would doubtless be universally thought to

be an infliction of cruel and unusual punishment

in violation of the Eighth and Fourteenth Amend-

ments. See Francis v. Resweber, 329 U.S. 409

[1947] [Robinson Vv. California, supra, 370 U.S. at

666. ]

In the instant case Respondent might as well have been

convicted of a ‘‘eriminal offense.’’ He was confined in

a ward in which one third of the population were crim-

inals. He slept in the same room with the criminal

18

patients, ate the same food, and was subject to the

same regimen. Where no medical treatment is given

to the committed mental ‘‘patients,’’ the Court may

find such a similarity between a nontreating ‘‘hospital’’

and a jail as to warrant the conclusion that involuntary

commitment absent treatment is virtually punishment

for an illness. Essentially ‘‘nothing [has been] accom-

plished beyond the hanging of. a new sign—reading

‘hospital’—over one wing of the jailhouse.’’ Powell v.

Texas, supra, 392 U.S. at 529.

TOUS Te Oe ee ee

C. Elements of the Right to Treatment

In its argument against the recognition of a consti-

tutional right of involuntarily committed mental pa-

tients to receive treatment, Petitioner places heavy em-

phasis (Brief for the Petitioner, pp. 29-45) on the

assertion that courts and juries are incapable of mak-

ing the assessments necessary for the enforcement of

this right. Amicus believes that sufficient, well-recog-

nized professional standards do exist so that courts

can review the adequacy of treatment without becom-

ing hopelessly immersed in analysis of day-to-day med-

ical judgments. Moreover, as noted by the court below,

the fact that the limits of a right may be difficult to

draw in particular cases is no reason for denying that

_ the right exists at all, nor is it a reason for denying

- enforcement of that right in a clear-cut case of viola-

tion.

The jury below was instructed that ‘‘a person who is

involuntarily civilly committed to a mental hospital

does have a constitutional right to receive such treat-

ment as will give him a realistic opportunity to be

cured or to improve his mental condition.’’ Instruction

37 (emphasis added). Expert testimony from psychia-

trists and psychologists was presented at trial by both

= teqpe srs _

19

the plaintiff and the defendants on the issue of whether

such treatment was in fact provided.

Amicus believes that adequate treatment in the con-

stitutional sense should be defined along the lines out-

lined by the District Court in Wyatt v. Stickney,

supra. The Wyatt court held that there are:

three fundamental conditions for adequate and

effective treatment programs in public mental in-

stitutions. These three fundamental conditions

are: (1) a humane psychological and physical en-

vironment, (2) qualified staff in numbers sufficient

to administer adequate treatment and (3) indi-

vidualized treatment plans. [Jd., 334 F. Supp. at

1343. ] tir

Following the legal ruling that these quoted standards

are constitutionally required, practical experience has

shown that the parties, with the aid of professional

groups us amici, can agree on minimum standards as

applied to a particular case. See detailed minimum

standards set forth in Wyatt v. Stickney, supra, 344

F. Supp. at 383. See also Wyatt v. Aderholt, supra,

slip op. at 716: ;

Neither in the district court nor on appeal to this

Court have the defendants challenged the detailed

set of standards articulated by the district court.

They have conceded that if there is a constitutional

right to treatment enforceable by a suit for injune-

tive relief in federal court, those standards ac-

curately reflect what would be required to ensure

the provision of adequate treatment.

Amicus feels that there are appropriate and work-

able legal standards by which the constitutional right

to treatment can be judicially defined, implemented

and enforced. In a recent report of the American Psy-

nia :

a ASPIRE RRR EDR PLE POTEET GRE PLONE SEE RRL NOIRE OE SAE SRE

20

chiatric Association’s Task Force on the Right to Care

and Treatment, the Task Force offered the following

definition of treatment (and care, which it distin-

guished from treatment) :

Adequate care and adequate treatment will be

defined separately. Indices of adequate care can

be objectively stated with reasonable ease and pre-

cision—but the problem of developing criteria for

adequate treatment is considerably more complex

and more controversial. Adequate care includes

the availability of medical care, nutritious and

palatable food in sufficient quantity, humane shel-

ter in an uncrowded and pleasant setting, and pro-

tection from self and others. These aspects of care

should be incorporated tn a total environment

which is compatible with basic human comfort and

dignity. Further, the caring environment should.

be only as restrictive of personal liberty as is nec-

essary to protect and meet the needs of the patient

and society. Minimal objective standards have and

can be established to define these indices of care.

The American Psychiatrie Association has period-

ically developed and reviewed such standards, and

has participated in the development of those which

are currently in use by the Joint Commission on

the Accreditation of Hospitals.”

Assurance that adequate treatment is available

in a particular hospital or other setting is best

achieved by assuring the availability of a profes-

sional staff which is adequate in numbers and

training. Treatment is defined to include active

intervention of a psychological, biological, physi-

eal, chemical, educational, moral or social nature,

where there is some reason to expect that the ap-

plication of an individual treatment plan ts felt to

have a reasonable expectation of. improving the

*8 Indeed, the Joint Commission has appointed an Accreditation

Council for Psychiatric Facilities to accomplish these purposes.

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patient’s condition. [AMERICAN PSYCHIATRIC AS-

SOCIATION, PosITioON PAPER ON THE RIGHT TO ADE-

QUATE CARE AND TREATMENT For THE MENTALLY

ILL AND MENTALLY RETARDED (4th Draft, Oct. 19,

1974) (emphasis added).]

It can be seen that the APA Task Force definition

eomports fully with the tripartite judicial standard in

Wyatt v. Stickney, supra, and also with the jury in-

struction given in the case at hand. Moreover, suffi-

ciently detailed criteria exist for courts to use in ap-

plying this broad definition to specific cases. See, c.g.,

AMERICAN PSYCHIATRIC ASSOCIATION, STANDARDS FOR

PSYCHIATRIC FACcILitiEs (rev. ed. 1974). While Amicus

agrees with Petitioner that there are many different

approaches to psychiatry, Amicus disagrees that these

differences within the profession preclude a judicial

review of the presence or absence of the objectively

stated criteria here proposed.

The first standard stated above in the definition of

the constitutional right to treatment—a humane psy-

chological and physical environment—is certainly the

sine quo non of any therapeutic procedures. Such an

environment must satisfy the physiological as well as

the psychological needs of the patients if care and

treatment are to be administered adequately. The

APA’s Standards for Psychiatric Facilities speaks

specifically to such objective requirements as space.

heating, ventilation, privacy in toilet and bathing areas,

day rooms and recreation areas, and conference rooms.

Id. at 64-66. There is a recognition in the psychiatric

community that such facilities must ‘‘be designed to

promote comfort and dignity and to ensure privacy

consistent with the patients’ welfare.’’ Id. at 65.

tesco omeomemnes ae ae eee

22

Certainly, the court below was correct in holding

that when a patient receives ‘‘only the kind of sub-

sistence level custodial care he would have received

in a prison,’’ 493 F.2d at 512, the standard for ade-

quate treatment of civilly committed patients has not

been met.

As to the second factor to be taken into considera-

tion in the judicial evaluation of adequacy of treat-

ment—qualified staff in numbers adequate to adminis-

ter treatment—there clearly are standards in this area

on which agreement of experts can be obtained. For

example, in 1958 the American Psychiatric Associa-

tion promulgated standards for the minimum level of

staffing necessary for a public mental hospital to pro-

vide even the lowest level of acceptable care. AMERICAN

PSYCHIATRIC ASSOCIATION, STANDARDS FOR HOSPITALS

AND CLINIics 61 (rev. ed. 1958). These minimal stand-

ards have served as guideposts for the courts in right-

to-treatment litigation. See Rouse v. Cameron, supra,

373 F.2d at 457-58 & n.33. See also Wyatt v. Stickney,

supra, 344 F. Supp. at 383.

The final area in which it is urged the courts should

set the parameters of the constitutional adequacy of

treatment—an individual treatment plan—deals with

what is more properly called “treatment” as opposed

to “care.” The two former indices look toward

institution-wide criteria, the third toward the insti-

tutionalized individual. There must be a recognized

plan of treatment which takes into account the situ-

ation, needs and prognosis of the individual patient.

At this point it is of course necessary for discretion

to play a role. Nor is such a division alien to other

areas of forensic medicine. Traditionally in torts, for

example, the legal adequacy of treatment is judged in

me

23

accordance with standards set by a responsible segment

of the medical community :

Where there are different schools of medical

thought, it is held that the dispute cannot be settled

by the law, and the doctor is entitled to be judged

according to the tenets of the school he professes

to follow. ... A “school” must be a recognized

one with definite principles... . [W. PROSSER,

HanpsBook oF THE Law or Torts 166 (3d ed.

1954).]

Indeed, a similar standard has already been formu-

lated in the context of fleshing out the meaning of a

statutory right to treatment in Rouse v. Cameron,

supra. The Rouse Court held that the legal standard

of adequate treatment did not require the state to show

its treatment would in fact cure or improve the

patient, but only that there was a bona Ade effort ;”

and further that proof that there is better treatment

does not necessarily make inadequate the one provided.

With these standards the constitutional right to

treatment can be judicially supervised without undue

interference into doctors’ decisions concerning proper

diagnosis and therapy in each case. As the court stated

in Tribby v. Cameron, 379 F.2d 104, 105 (D.C. Cir.

1967) (emphasis added) :

The court’s function here resembles ours when we

review agency action. We.do not decide whether

the agency has made the best decision, but only

make sure that it has made a permissible and

reasonable decision in view of the relevant tnfor-

mation and within a broad range of discretion.

1° Jury Instruction No. 37 given in this case defined adequate

treatment as that which would give the patient ‘‘a realistic oppor-

tunity’’ to be cured or to improve his mental condition.

24

Thus, recognition of a constitutional right to treat-

ment should not require “sweeping judicial surveillance

over the choice of therapy. . . . Judicial consideration,

therefore, would be largely limited to determining

whether the choice of therapy was a conscious medical

decision rather than neglect; obviously judges have no

competence to evaluate the quality of a given choice ©

of treatment.” Dobson v. Cameron, 383 F.2d 519, 523-

24 n.2 (D.C. Cir. 1967) (Berger, J., concurring). :

While courts cannot and should not employ their

resources to arbitrate between conflicting professional

approaches concerning the most desirable treatment

plan for a particular patient, there are sufficient pro-

fessional standards recognized within the psychiatric

community so that the courts can ensure that a reason-

able form of treatment is provided to each individual

psychiatric patient.

I. PSYCHIATRISTS EMPLOYED AT STATE INSTITUTIONS SHOULD BE IMMUNE

FROM PERSONAL LIABILITY FOR DAMAGES WHEN THEY HAVE MADE A

GOOD FAITH EFFORT TO COMPLY WITH CONSTITUTIONAL REQUIREMENTS

FOR TREATMENT.

The courts below found the individual doctors em-

ployed by Chattahoochee personally liable for the

monetary damages resulting from inadequate treat-

ment provided at that institution. In so holding, the

lower courts gave exceedingly short shrift to the argu-

ments that the doctors were acting in good faith, that

they were attempting to comply with the law as they

reasonably understood it, and that the real cause of

Mr. Donaldson’s injury was the inadequacy of the

institutional resources available for his treatment. To

ignore such arguments not only results in extreme

injustice to individual doctors, who must pay large

sums of money for conditions over which they have no

vi

ae eet

25

control, but also endangers enforcement of the essen-

tial right to treatment that the courts below were

seeking to advance.

The briefs of the parties will deal in detail with the

question of whether the evidence in the record was

sufficient to establish the doctors’ good faith. Thus,

Amicus will not repeat or review those arguments

here. Instead, Amicus wishes to explore what it be-

lieves should be th proper standards for a showing

of good faith in cases of this kind, and to emphasize

the importance of such standards to the future of

mental health care in this country.

In determining whether an individual psychiatrist

has made a good faith effort to provide adequate

treatment for his or her patients, it is essential that

the courts focus clearly on the institutional setting in

which that doctor is working. When treating an auto-

mobile accident victim, a surgeon working under

emergency roadside conditions is not expected to meet

the same standard of care as if he or she had available

the advantages of a modern hospital’s intensive care

unit and team of supporting specialists. The range of

resources available to psychiatrists in different insti-

tutional settings is just as great. Therefore, the treat-

ment that psychiatrists provide must be viewed in this

institutional context in order to judge fairly whether

they have made a good faith effort to treat their

patients.

A recent study revealed that the nationwide aver-

age patient-psychiatrist ratio in state-run mental

hospitals is approximately 70-1.” County mental hos-

20See Nat’. Inst. MentaL Heattu, StTarFFinc oF MENTAL

Heatta Faciuities, Unirep States, 1972, at 53 (DHEW Pub.

No. (ADM) 74-28, 1974).

>

‘

26

pitals, however, still average 500 patients per psy-

chiatrist.” The range of patient-psychiatrist ratios

throughout the nation is so, great that the average

psychiatrist in a public mental hospital in Alabama,

for example, is responsible for 143 times more patients

than a doctor employed’ by such a hospital in Colo-

rado.”

During Mr. Donaldson’s fourteen-year sellin

at Chattahoochee, the ratio of patients per staff psy-

chiatrist averaged approximatély 800-1. See Record

at 467. After performing other medical and administra-

tive duties, the average hospital staff psychiatrist is

able to devote only 47% of his or her time to direct

patient care.” Thus, if each doctor spent an equal

amount of time with each patient, as little as one or

two minutes per week would have been available for

psychiatric “treatment” of each patient at Chatta-

hoochee. Meaningful psychiatric care was not, and

cannot be, provided under such circumstances.

The American Psychiatric Association has promul-

gated standards for the minimum level of staffing

necessary for a public mental hospital to provide even

the lowest level of acceptable care.“ These are truly

minimum standards, since they. “represent a com-

promise between what was thought to be adequate and

#Id..

22 Compare Nat’. Inst. MentTau Heats, StatisticaL Nore 109,

StaFFING OF STATE AND County Menta Hospirats, UNITED

States, 1973, at Table 1 (Aug., 1974) (Alabama), with id. at

Table 1 (Colorado):

: % JOINT INFORMATION SERVICE, AMERICAN ipinciicidlii Ass’n &

Nat’. Ass’N Fork MentaL Heautu, Eveven Inpices 14 (1971).

| 4 Aweri¢an PsycHaTRIC ASSOCIATION, STANDARDS FOR Hospt-

TALS AND CLINICs 61 (rev. ed. 1958).

27

what it was thought had some possibility of being

realized.” Solomon, The American Psychiatric Asso-

ciation in Relation to American Psychiatry, 115 Am. J.

Psycuuart. 1, 7 (1958). Yet even these minimal stand-

ards, which have been accepted as guideposts by the

courts,” demonstrate that Chattahoochee needed a

vastly larger number of doctors than it actually had in

order to provide adequate treatment to its resident

population. The A.P.A. standards allow no more than

thirty acutely ill patients, or 150 chronically ill pa-

tients, per full-time psychiatrist. Thus, while each

psychiatrist at Chattahoochee averaged 800 patients,

of whom approximately 350 were acutely ill,” mini-

mum staffing standards demanded fifteen full-time

psychiatrists, in order to provide adequate treatment

to those same patients.

The Court of Appeals analysis of the doctors’ lia-

bility completely ignores this evidence of the hope-

lessly inadequate staffing and resources at Chatta-

hoochee. Amicus submits that a legal standard of good

faith which allows a jury to find doctors personally

liable without consideration of such evidence” is

really no standard at all.

25 See Rouse v. Cameron, supra, 373 F.2d at 457-58 & n.33. See

also Wyatt v. Stickney, siepra, 344 F. Supp. at 383.

26 See Brief for the Petitioner, at 7.

27Ag will be discussed in more detail below, the trial court

should have instructed the jury to take into account any evidence

of limited staff and resources available at Chattahoochee when the

jury considered Dr. O’Connor’s defense that he made a good faith

effort to comply with his legal duty, as he understood it. The lower

courts also should have reviewed the propriety of the jury verdict

in light of this standard.

It is not clear whether Petitioner properly raised this issue

before the trial court. The parties’ briefs undoubtedly will discuss

a ' aaa pimen yore yer

7

28

This Court has emphasized repeatedly that state offi-

cials should not be liable personally for damages when

they have acted in good faith in the performance of

their duties. In Pierson v. Ray, 386 U.S. 547 (1967),

the Court held that plaintiffs could not recover dam-

ages from individual police officers for an unconstitu-

tional arrest “if the jury found that the officers

reasonably believed in good faith that the arrest was

constitutional.” Id. at 557. The Court last Term in

Scheuer v. Rhodes, 416 U.S. 232 (1974), made clear

that this “qualified immunity” not only extends to more

senior state officials, but in fact should be broader as

the defendant’s “scope of discretion and responsibili-

ties” is broader. Id. at 247. See also Doe v. McMillan,

412 U.S. 306, 320 (1973).

The official immunity doctrine “seeks to reconcile

two important considerations—

‘LOJn the one hand, the protection of the indi-

vidual citizen against pecuniary damage caused

by oppressive or malicious action on the part of

(government officials]; and on the other, the pro-

tection of the public interest by shielding respon-

sible governmental officers against the harassment

and inevitable hazards of vindictive or ill-founded

damage suits brought on account of action taken

in the exercise of their official responsibilities.’ ”

(Doe v. McMillan, supra, 412 U.S. at 319, quoting

Barr v. Matteo, 360 U.S. 564, 565 (1959).]

that point. and the related question whether the lower courts’

failuyg to consider this issue amounted to ‘‘plain error,’’ review-

able in the absence of any objection by the parties. See, e.g., Silber

v. United States, 370 U.S. 717, 718 (1962) ; United States v. Atkin-

son, 297 U.S. 157, 160 (1936). Whatever the Court’s resolution

of these questions, Amicus believes that it is essential that the

Court’s opinion here emphasize the proper contours of the good

faith defense for the guidance of potential litigants and the lower

courts.

’

; ;

29

One court has summarized the doctrine as allowing

“a qualified iinmunity based on good faith performance

of duty as the officials understood it.” Roberts v. .

Williams, 456 F.2d 819, 831 (5th Cir.), cert. denied,

404 U.S. 866 (1971) ; accord, e.g., Gaffney v. Silk, 488

F.2d 1248, 1250 (1st Cir. 1973). Thus, the defense

consists of two basic elements. First, courts must focus

on the official’s understanding of his or her duty;

the courts will consider the defense in light of that

understanding, so long as it is reasonable, even if in-

correct. The second element * of the defense provides

immunity when the official made a good faith effort

to meet that duty, as so understood, even if the effort

was unsuccessful.

Regarding the first part of the defense, the law is

well settled that a state official should not be held .

personally liable for a civil rights violation when he

or she had tried in good faith to follow then-existing

constitutional principles, even if those principles

later Were overturned. As this Court held in Pierson v.

Ray, supra, 386 U.S. at 557, state officers are not

“charged with predicting the future course of consti-

tutional law.” They “neither can nor should be ex-

pected to be seers in the crystal ball of constitutional

doctrine.” Westberry v. Fisher, 309 F. Supp. 12, 17

(D. Me. 1970).

28In a case where the definition of defendant’s legal duty is

clear, only the latter element of the defense is relevant. In the

instant ease, however, where the constitutional contours of the duty

are still developing, the two elements are interrelated. Thus, de-

fendant’s good faith effort must be measured against whatever

legal duty he reasonably should have known was applicable. The .

question of whether an objective or subjective standard is appropri-

ate in assessing whether a defendant made such a ‘‘good faith

effort’? is now pending before the Court in Wood v. Strickland,

cert. granted, 94 S. Ct. 1932 (No. 73-1285, Apr. 15, 1974).

30

In the instant case, a constitutional right to treat-

ment was little more than a gleam in the eye of its most

ardent proponent during Mr. Donaldson’s confinement,

which began in 1957. The article generally credited as

the first even to suggest such a right appeared in 1960.

Birnbaum, The Right to Treatment, 46 A.B.A.J. 499

(1960) ; see 493 F.2d at 519-20 & nn.12, 14. Several

courts during the 1960’s refused +o recognize the exis-

tence of a constitutional right to treatmerit. See, e.g.,

People ex rel. Anonymous v. La Burt, 14 App. Div. 2d

960, 218 N.Y .S.2d 738 (1961), appeal dismissed and

cert. denied, 369 U.S. 428 (1962). Indeed, Mr. Donald-

son himself brought several earlier right-to-treatment

claims. against Dr. O’Connor, and the courts con-

sistently rejected these claims. See, e.g., Donaldson v.

O’Connor, 234 So. 2d 114 (Fla. 1969), cert. denied, 400

U.S. 869 (1970). See also Donaldson v. O’Connor, 390

U.S. 971 (1968) ; Donaldson v. Florida, 371 U.S. 806

(1962) ; In re Donaldson, 364 U.S. 808 (1960). It was

not until 1971, the year of Mr. Donaldson’s release

from Chattaoochee, that the first court held that there

should be a constitutional right to treatment. Wyatt

v. Stickney, supra, 325 F.Supp. 781.

Not only is the constitutional right to treatment a

very recent development, but the past decade has also

seen major changes in the professional approach to-

ward psychiatric treatment of the seriously mentally

ill. Beginning in*the 1960’s psychiatrists began to

recognize that long-term custodial care of the mentally

ill, in large and dehumanizing institutions situated in

isolated settings, was often counterproductive and

therefore should be resisted. Many patients—even

those with the most serious mental illness (such as

that diagnosed in Mr. Donaldson’s case)—could be

rapidly returned to home and community. This ap-

31

proach was made possible in part by the advent of

effective medications which moderated the symptoms

and allowed patients to be managed in the community.

With or without such medications the fundamental

approach to most of these patients has now been

modified, and every attempt is made to return them to

home, family, work, and community as soon as pos-

sible. This strategy, the “community mental health

approach,” has revolutionized the treatment of the

mentally ill. That revolution, however, is incompletely

realized; many communities lack the facilities, per-

sonnel, and outreach programs which make it possible.

Mr. Donaldson was originally hospitalized at a time

when the community mental health approach had not

been clearly formulated or generally accepted. Much

of the testimony given in his case assumes the general

acceptance of the community mental health approach

without recognizing the changes which were occurring

in psychiatry during that period. Thus, not only was

Dr. O’Connor judged by a new legal standard, but also

his approach to treatment was measured in terms of a

new psychiatric perspective.

Under these circumstanees it is unfair and contrary

to the principle this Court stated in Pierson v. Ray

to apply the right-to-treatment principle retroac-

tively by holding psychiatrists personally liable for

damages dating back many years before they could

have known of this new constitutional duty.” Other

Circuits have recognized the necessity of “providing

conscientious state officials with some protection

against the cutting edge of a rapidly developing legal

_ The courts below did not address this retroactivity issue. See

note 27, supra.

ee

32

doctrine.” Eslinger v. Thomas, 476 F.2d 225, 229 (4th

Cir. 1973). In Eslinger, plaintiff challenged the policy

of the clerk of the South Carolina State Senate that

women were ineligible to serve as senate pages. The

Fourth Circuit held that injunctive relief was proper,

since the discriminatory policy ran afoul of current

constitutional requirements of equal protection. The

court went on, however, to reverse the lower court’s

ruling that the clerk should be liable for damages. The

court noted that the defendant’s actions had taken

place at a time when the law gen-rally tolerated sex-

based classifications. Id. at 230 & n.5. “Although the

clerk may have acted with little sensitivity ... he acted

in the light of a long-standing, albeit vaguely defined,

‘custom’. ... He did no more, or less, than what had

always been done.” Jd. at 229. The Fourth Circuit con-

cluded that the defendant should not be liable for

failing to foresee a new constitutional principle. Id.;

accord, ¢.g., Haines v. Kerner, 492 F.2d 937, 941 (7th

Cir. 1974) (conduct of officials “should be tested

against constitutional doctrine as described in prevail-

ing judicial decisions at the time of their action”) ;

Skinner v. Spellman, 480 F.2d 539 (4th Cir. 1973) (no

damages against official acting in “reasonable good

faith reliance on what was standard operating proce-

dure”); Clarke v. Cady, 358 F. Supp. 1156, 1163

(W.D. Wise. 1973) (prison warden “immune from

damages under § 1983 when he reasonably relies upon

the validity of a prison practice which has only subse-

quently been determined to be unconstitutional’).

Thus, as the court stated in Collins v. Schoonfield, 363

F. Supp. 1152, 1156 (D. Md. 1973), “it would contra-

vene basic notions of fundamental fairness if [state]

officials were held to be liable monetarily for acts which

Piers wae : ¢ OTR AURS SRePETS

33

they could not reasonably have known were un-

lawful.”

The second element of the good faith defense that

should be available in cases such as this would forbid

personal liability whenever the doctor makes a good

faith, even if unsuccessful, effort to meet the duty he

or she reasonably understands is owed to the patient.

Numerous courts have applied this qualified immunity

principle to a wide variety of official positions. See,

e.g., Strickland v. Inlow, 485 F.2d 186, 191 (8th Cir.

1973), cert. granted sub nom. Wood v. Strickland, 94

S. Ct. 1932 (No. 73-1285, Apr. 15, 1974) (school board

members) ; Handverger v. Harvill, 479 F.2d 513, 516

(9th Cir.), cert. denied, 414 U.S. 1072 (1973) (univer-

sity officials) ; Jones v. Perrigan, 459 F.2d 81, 83 (6th

Cir. 1972) (FBI agent); Harrison v. Brooks, 446

F.2d 404, 407 (1st Cir. 1971) (town officials) ; Mitchell

v. Boslow, 357 F. Supp. 199, 202-03 (D. Md. 1973)

(director of state institution for “defective delin-

quents”). The principle is at least equally applicable to

staff psychiatrists and hospital officials, whose “scope

of discretion and responsibilities” is necessarily broad,

80 Equitable relief, of course, should always be available to in-

sure compliance with newly developing legal standards. See Jan-

netta v. Cole, 493 F.2d 1334, 1338 (4th Cir. 1974) :

_. while there is nothing in $1983 or the fourteenth amend-

ment to suggest that an improper motive is requisite for a

federal cause of action, conscientious state officials, when act-

ing reasonably and in good faith, should not be expected to

answer in money damages for failure to accurately predict

the future course of constitutional doctrine, even though such

failure may entitle a plaintiff to equitable relief.

See also Briscoc v. Kusper, 435 F.2d 1046, 1057-58 (7th Cir.

1970). Thus, the good faith defense in no way defines the right;

it simply limits the remedy to equitable relief and to damages

against the institution or officials who have not acted in good faith.

a ee at THORNS. SSR OP RSENS SS NETS Lo EERO

. - eae ee hem i oe

34

since they must make countless on-the-spot expert

judgments each day iin treating their patients. See Doe

v. McMillan, supra, 412 U.S. at 320; Smith v. Losee,

485 F.2d 334, 342 (10th Cir. 1973) (en banc).

This good faith defense is particularly appropriate

where, as here, fulfillment of defendant’s duty is seri-

ously hampered by thoroughly inadequate resources.”

All that can reasonably be asked in these circumstances

is that the official make a good faith effort with the

limited resources available. For example, in Schmidt

v. Wingo, 499 F.2d 70 (6th Cir. 1974), affirming 368

F. Supp. 727 (W.D. Ky. 1973), plaintiff sought dam-

ages from the defendant prison warden, alleging that

plaintiff’s decedent, a prison inmate, died as a result

of inadequate medical. care furnished at the prison

hospital. The court in Schmidt recognized that it

would be both illogical and unjust “to place liability

upon the Warden of a penitentiary for the failure to

furnish [adequate] equipment and personnel, where

the budget for personnel and equipment are fixed by

his superiors, the Department of Corrections and by

the General Assembly of the State of Kentucky.” 368

F. Supp. at 731; see 499 F.2d at 74.

Similarly, in the instant case the state legislature

failed to appropriate sufficient funds to reduce the in-

stitution’s patient-psychiatrist ratio to a level that

would allow for meaningful treatment. Under such

circumstances, it is far too easy for jury members—

justifiably sympathetic to the plight of the plaintiff

who has been confined without treatment for many

years—to award damages against whatever defendant

*1 Indeed, in such cases the ‘‘good faith defense’? may merge

with the question whether plaintiffs can show that defendant’s

actions were the proximate cause of the alleged injuries.

35

happens to be before them.” Where the gravamen of

the complaint is failure to provide enough treatment—

as opposed to allegations of affirmative acts of mali-

cious mistreatment *—proper application of this “ good

faith” standard should result in a verdict for defen-

dant physicians as a matter of law whenever the evi-

dence shows that the failure to treat resulted from

inadequate resources, rather than from any persqnal

animus.

Amieus has discussed at pp. 18-24, above, what it

believes should be the basic elements of the constitu-

tional right to treatment—the institution should pro-

vide a humane environment, adequate staff, and an

individual treatment plan for each patient. Proper

application of the good faith defense to these cases

should immunize doctors from personal liability when-

ever they are using their best efforts to comply with

these basic standards. It is important to emphasize that

this case should not elevate to constitutional dimen-

sions the myriad of day-to-day medical decisions that

must be made in treating each patient. Indeed, it

could paralyze these institutions if every doctor were

32 See generally Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.

1949) :

Again and again the public interest ealls for action which may

turn out to be founded on a mistake, in the face of which an

official may later find himself hard put to it to satisfy a jury

of his good faith. There must indeed be means of punishing

public officers who have been truant to their duties; but that

is quite another matter from exposing such as have been

honestly mistaken to suit by anyone who has suffered from

their errors.

83 Amicus will defer to the parties’ briefs on the question of

whether the record here reflects a claim of bad faith mistreatment

of, or simply insufficient attention to, Mr. Donaldson.

NS Re ES

36

subject to a civil rights damage action in federal court

each time he or she prescribed a drug, decided on a

change in therapy, or acted on a request for furlough

or work assignment. The Constitution does not pro-

hibit exercise of the doctor’s. good faith professional

judgment on any of these matters. What the Constitu-

tion should require from each doctor is a good faith

effort to use the resources provided by the institution,

along with the doctor’s professional skill, in order to

provide involuntarily committed patients the treat-

ment implicitly promised by the state when it deprives

them of their liberty.

It is an unspeakable tragedy when a mentally ill

person is crowded into a facility like Chattahoochee,

given little or no medical treatment, and allowed to

remain there for years on end. Amicus believes

strongly that such conditions violate the patient’s con-

stitutional right to treatment. The primary responsi-

bility for a remedy, however, must lie with those who

have the power to correct these conditions.”

The courts can find effective remedies for these

problems by focusing on the institutional setting and

resources available for treatment. In Wyatt v. Ader-

holt, supra, the court has used its equitable power by

requiring state institutions to increase their staff-

patient ratio and to make other systemic changes nec-

’¢Supporters of the right to treatment generally recognize that

the understaffing and lack of physical facilities that plague our

state mental institutions are not the fault of the psychiatrists or

others who work there. ‘‘Our society should be grateful to, rather

than adversely critical of, the personnel who continue to work in

these institutions under the present trying conditions.’’ Birnbaum,

The Right to Treatment, 46 A.B.A.J. 499, 500 (1960) ; accord, e.g.,

Birnbaum, Some Remarks on ‘‘The Right to Treatment,’’ 23 Ata.

L. Rev. 623, 628 (1971).

37

essary to provide adequate care. See id., slip op. at 724.

The American Psychiatric Association participated in

the Wyatt case, supporting the right to treatment and

urging the court to order a variety of needed institu-

tional reforms. See Motion of American Psychiatric

Association for Leave to Participate as Amicus Curiae,

W yatt v. Aderholt, No. 72-2634 (5th Cir., filed Dee. 4,

1972). The other right-to-treatment cases relied upon

by the court below similarly focus on institutional re-

forms and injunctive relief. See Welsch v. Ltkins,

supra; Stachulak v. Coughlin, 364 F. Supp. 686 (N.D.

Ill. 1973). See also Rouse v. Cameron, supra, 373 F.2d

at 458-59 (institutions must release patient receiving

inadequate treatment). When a state institution fails

to meet these minimum standards identified by the

courts, patients should have a cause of action against

the responsible state agency.” See Whitree v. State, 56

Mise. 2d 693, 290 N.Y.S.2d 486 (Ct. Cl. 1968) ($300,-

000 award against state for improper custodial con-

finement of mental patient). Indeed, such actions may

be a most effective method to loosen the legislatures’

pursestrings, so that sufficient resources do become

available. See 82 Harv. L. Rev. 1771, 1776-77 (1969).

Instead of such institutional remedies, the Fifth

Circuit has held in this ease that the doctor who works

on the staff of an overcrowded hospital can be per-

sonally liable for damages to patients who receive

inadequate treatment. This decision has frightening

implications for the very patients whose right to treat-

ment the court was seeking to protect. Unless this

85The doctor should be personally liable, of course, if he or she

fails to make a good faith effort to meet such clearly identified

minimum standards, or if the doctor commits any acts of malprac-

tice. See generally Morse, Tort Liability of the Psychiatrist, 18

Syr. L. Rev. 691 (1967).

————— ws

38

Court clearly emphasizes the availability of a good

faith defense in cases such as this, it would be foolish

for qualified doctors to continue working at Chatta-

hoochee or the many other institutions that are simi-

larly understaffed. Rather than stay in a system where

their best efforts could not eliminate constant ex-

posure to large damage awards, doctors will seek posi-

tions at the better-staffed institutions, or possibly even

depart from institutional employment. Rather than

inereasing the quality and quantity of treatment avail-

able at Chattahoochee, the decision below will lead to

just the opposite result, substantially undermining the

very right to treatment it seeks to establish.

Amicus is also extremely concerned that the decision

below might force institutions to release prematurely

thousands of mental patients who are very much in

need of care and treatment. There no doubt are many

patients now in state institutions for whom release

would be perfectly appropriate. Nevertheless, without

further clarification by this Court of the standards for

enforcement of the right to treatment, the threat of

damage actions such as this one may well lead to far

more widespread deinstitutionalization than is medi-

cally indicated.

Mr. Donaldson claims that, even if the resources at

Chattahoochee were insufficient, Dr. O’Connor should

be liable in damages for failing to release Mr. Donald-

son once the doctor knew that adequate treatment was

not being provided. But it is far too easy and mis-

leading to characterize a doctor’s decision in each case

as simply whether to treat or release a patient. In the

vast majority of the nation’s mental institutions, doc-

tors are providing some beneficial treatment to all

their patients, even though the amount of treatment

may be much less than the optimum in many cases. The

39

Court must be careful that its formulation of the right

to treatment, and particularly the remedial standards

for that right, do not prompt a massive reduction of

the number of patients that the state will assist. A rule

that forces psychiatrists prematurely to declare ready

for release into society a large percentage of their

mentally ill patients—so that the remaining few will

receive better treatment—would be less equitable than

the present mental health care system. Moreover, it

might encourage the release of some patients who are

extremely difficult to treat effectively, but who may be

dangerous to society. See American Psychiatric Asso-

ciation, Position Statement on the Question of Ade-

quacy of Treatment, 123 Am. J. Psycuiat. 1458, 1459-

60 (1967) (emphasis added) :

On the basis of long experience, psychiatrists

estimate that about 90 percent of all mental hos- |

pital patients are harmless and in no way threaten

the community in which they reside. However,

the other 10 percent comprise roughly 60,000 pa-

tients; protecting the community from irrespons-

ible acts they might commit is a priority social

eoncern. To release them prematurely 1s never

justified regardless of the adequacy of treatment

they may be receiving. The constructive way of

approaching this problem lies in obtaining the

_ staff and facilities for providing adequate treat-

ment, not in premature release. '

Many patients now confined could be treated ade-

quately in alternative outreach, or community, facili-

ties. Where such facilities are not available, however,

the choice that a doctor faces is between providing some

treatment or no treatment at all. Amicus does not sug-

gest that large state hospital institutions are the best

way to treat many of the patients now confined in such

/ 40

institutions. Rather, Amicus does wish to emphasize

that without the availability of alternative facilities,

such patients would simply be abandoned.

Doctors trying in good faith to provide the best

treatment possible with the available resources should

not have to choose between risking personal liability

for damages, or violating their professional standards

7 by refusing to treat people in need of medical help.

The Court of Appeals indicated in its opinion that

the “core of the charge” against Dr. O’Connor was that

he confined Mr. Donaldson “knowing that the patient

was not receiving adequate treatment and knowing that

absent such treatment the period of his hospitalization

would be prolonged.” 493 F.2d at 513. The tragic truth

is that the inadequate resources in our state mental

hospitals today require many of our country’s best

psychiatrists in painful candor to confess their guilt

to this same charge. The question this Court should

address here is whether our judicial system can ‘help

correet the institutional inadequacies that are depriv-

ing thousands of mental patients of their fundamental

rights, or whether instead the judicial response will

be to punish and drive away the people who are doing

the most to deal with these problems.

41

CONCLUSION

For the foregoing reasons, Amicus respectfully urges

this Court to affirm the holding of the court below that

involuntarily committed mental patients have a consti-

tutional right to treatment, while clarifying the stand-

ards which lower courts should apply to damage actions

for violation of that right.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.

ALLEN R. SNYDER

GaIL STARLING MARSHALL

HoGcan & Hartson

815 Connecticut Avenue

Washington, D.C. 20006

Attorneys for Amicus Curiae |

American Psychiatric Association