Constitutional Requirements in the Commitment of the Mentally Ill in the U.S.A.: Rights to Liberty and Therapy

42 U.S.C.A. sec. 201 et seq.

42 U.S.C.A. secs. 2681-87. The goal of this legislation was to reduce by one half the nation's public mental health residential population by the mid 1970's. It appears this goal will be met since this population has already decreased from 504,600 in 1963 to 308,000 since June 30, 1971. Chambers: "Alternatives to Civil Commitment of the Mentally Ill; Practical Guides to Constitutional Imperatives", 70, Mich. L. Rev. 1107-1115, 1972. See Brakel and Rock: "The Mentally Disabled and the Law, 9-13, Am. Bar Foundation Study, 1971.

3. 383 U.S. 107.

Schuster v. Herold, 410 F. 2d. 1071 (CCA 2nd 1969).

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

Cameron v. Mullen, 387 F. 2d. 193 (CCA D.C. 1967); Bolton v. Harris, 395 F. 2d. 642 (CCA D.C. 1968); People v. Lally, 19 N.Y. 2d. 27 (1966).

Commonwealth v. Druken, 356 Mass. 503 (1969).

406 U.S. 715.

406 U.S. 715, 738.

Mass. G.L. ch. 123, 15(b), 15(c).

Dangerousness as a statutory standard of commitment is discussed herein at some length. Frequently this standard is subject to the criticism of vagueness. In the new Massachusetts code the statutory standard of "likelihood of serious harm" is defined as follows: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community." This is a far cry from the former Massachusetts statutory standard of involuntary commitment which was based on need of treatment and even included conduct "which clearly violates the established laws, ordinances, conventions or morals of the community".

Mass. G.L. ch. 123, sec. 16(f) requires dismissal at "the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted". Section 17(b) affords a defendant found to be incompetent to stand trial an opportunity for a probable cause hearing. "If after hearing such petition the court finds a lack of substantial evidence to support a conviction, it shall dismiss the indictment or other charges or find them defective or insufficient and order the release of the defendant from criminal custody".

Most bail reform statutes establish a presumption for release on personal recognizance rather than bail. See Mass. G.L. ch. 276, sec. 58. Conditions of bail or RoR may include such reporting. Illinois Code of Corrections, sec. 1005-2-2 (a): "... If the defendant is not ordered hospitalized in such hearing, the Department of Mental Health shall petition the trial court to release the defendant on bail or recognizance, under such conditions as the court finds appropriate, which may include, but need not be limited to requiring the defendant to submit to or to secure treatment for his mental condition."

Mass. G.L. ch. 123, secs. 4, 5, 6, 7, 8, 12 covers the provisions referred to in this paragraph.

After this paper was prepared the Massachusetts Legislature did enact chapter 893 of the Acts of 1973, "An Act Providing for Legal Assistance to the Indigent Mentally Ill", pursuant to which a Mental Health Legal Advisors Committee is appointed by the Justices of the Supreme Judicial Court. This Committee, if sufficiently funded, has the authority under this new legislation to render a significant service to the mental health patient population in Massachusetts.

McKinney's Consol. Laws of N.Y. vol. 34A, sec. 88. Gupta: "New York's Mental Health Information Service: An Experiment in Due Process", 25 Rutgers L. Rev. 405, 1971; Kumaska and Gupta: "Lawyers and Psychiatrists in Court: Issues on Civil Commitment", 40, Md. L. Rev. 6, 1972.

Ann. Code of Md., Art. 59, sec. 54.

The California statute only designates "the public defender or other attorney", Calif. Welfare and Institutions Code, sec. 5276, and while it does not mandate the appointment in every case of a person involuntarily hospitalized for 72 hours by medical certification under the Lanterman-Petris-Short Act, an administrative order for mandatory appointment has been approved by the decision in Thorn v. Superior Court, 1 Cal. 3d 666, 83 Cal. Rptr. 600 (1970). See Mandel: "Compulsory Counsel for California's New Mental Health Law", U.C.L.A. L. Rev., 851, 1970. Illinois imposes a legal obligation on judges of the county in which the facility is located to come in person to the facility to inform patients of their rights. Ill. Ann. Stat. ch. 911/2, sec. 6-4. Patient Legal Services rendered by Cook County Legal Assistance Foundation, Inc. is an example of the valuable contributions being made in some metropolitan areas by certain public and private non-profit legal services organizations.

Hunt and Wiley: "Operation Baxstrom After One Year", 124, Am. J. Psychiatry 974, 1968; Steadman and Kevelles: "The Community Adjustment and Criminal Activity of the Baxstrom Patients, 1966-1970", 129, Am. J. Psychiatry, 3, 1972; Steadman and Halfon: The Baxstrom Patients: Backgrounds and Outcomes, Seminars in Psychiatry, Aug. 1971; Steadman: Implications from the Baxstrom Experience, excellent paper presented in March, 1973, Mental Health Research Unit, N.Y. State Department of Mental Hygiene, Albany, N.Y.

See Flaschner, "Florida's New Mental Heath Law", 46, Florida Bar Journal, 344-348, June 1972.

For commitment to Bridgewater, proof is required not only of "likelihood of serious harm" as defined above (see fn. 11), but also that the person "is not a proper subject for commitment" to a conventional facility for the care and treatment of mentally ill or mentally retarded, and that "the failure to retain such person in strict custody would create a likelihood of serious harm". Mass. G.L. ch. 123, sec. 8(d). See Dixon v. Pennsylvania, 325 F. Supp. 966, 974 (M.D. Pa. 1971).

See study by Dr. A. Louis McGarry, Director of Division of Legal Medicine, Mass. Dept. of Mental Health, Boston, Mass.

Flaschner, F.N. : "Analysis of Legal and Medical Considerations in Commitment of the Mentally Ill", 56 Yale LJ. 1178, 1185-6, 1947.

Deutsch : The Mentally Ill in America, ch. XIX (2nd ed. 1949 ).

All states with the exception of Alabama now have statutes authorizing voluntary admission. From 1949 to 1968 voluntary admissions have increased from 10% to 40% of all admissions to state mental hospitals, Brakel and Rock, supra 2 at 17.

Brakel and Rock, supra fn. 2 at ch. 8; Flaschner, supra fn. 23 at 1188-90; A Draft Act Governing Hospitalization of the Mentally Ill, Public Health Serv., Pub. No. 51, 1951, 2; Ross: "Commitment of the Mentally Ill", 57, Mich. L. Rev. 945, 980-95, 1957. One of the statutory inclusions of the mandatory quarterly review of each patient by the mental health facility in Massachusetts is "an evaluation of the legal competency of the person and the necessity or advisability of having a guardian or conservator appointed". Mass. G.L. ch. 123, sec. 4.

While the traditional habeas corpus writ tests only the legality of the original detention, most states by statute or judicial decision have broadened the jurisdiction of this proceeding in the case of a mental patient to determine the status as of the time the petition is brought. Brakel and Rock, supra 2 at 139-140.

Ross, supra fn. 26 at 954-60; Note, "Civil Commitment of the Mentally Ill", 79, Harv. L. Rev. 1288, 1966; Comment, "Due Process for All-Constitutional Standards for Involuntary Civil Commitment and Release", 34, U. Chic. L. Rev. 633, 1967; Comment, "Civil Restraint, Mental Illness and the Right to Treatment", 77, Yale L.J., 87, 1967; Livermore, Malmquist and Meehl: "On the Justifications for Civil Commitment", 117, U. Pa. L. Rev., 75, 1968. Even today only a small number of state statutes confine the standard of involuntary commitment to dangerousness. See Brakel and Rock, supra 2 at 36. Nineteen per cent of all patients in mental hospitals, both public and private, were said to be harmless and 68% at St. Elizabeth's Hospital in Washington, D.C. "American Psychiatric Association Position Statement on Adequacy of Treatment", 123, Am. J. Psychiatry, 1458, 1967.

See Pate v. Robinson, 383 U.S. 375, 384 (1966); Rees v. Peyton, 384 U.S. 312; Virgin Islands v. Niles, 295 F. Supp. 266 (D.V.I. 1969); Thorn v. Superior Court, supra 17.

Heryford v. Parker, 396 F. 2d. 393 (CCA 10th 1968); Lessard v. Schmidt, 349 F. Supp. 1078, 1097 (E.D. Wisc. 1972).

Lessard v. Schmidt, supra 30 at 1090; In re Barnard 455 F. 2d. 1370 (CCA D.C. 1971); Dixon v. Pennsylvania, supra 21; Anderson v. Solomon, 315 F. Supp. 1192 (D. Md. 1970); Specht v. Patterson, 386 U.S. 605 (1967); but see Fhagen v. Miller, 29 N.Y. 2d 348 (1972).

Dixon v. Pennsylvania, supra 21 at 974. See Robert v. LaVallee, 389 U.S. 40 (1967).

Woodby v. Immigration and Naturalization Service, 385 U.S. 276 (1966); Tippett v. Maryland, 436 F. 2d 1153, 1165-6 (CCA 4th 1971) (Opinion of Sobeloff, J.); Dixon v. Pennsylvania, supra 21 at 974.

Murel v. Baltimore City Criminal Court, 407 U.S. 355, 358 (1972) (dissenting opinion of Douglas, J.); Lessard v. Schmidt, supra 30 at 1093; In re Ballay, No. 71-2023 (CCA D.C. May 31, 1973).

McNeil v. Patuxent Institution Director, 407 U.S. 245, 252 (dissenting opinion of Douglas, J.); Lessard v. Schmidt, supra at 1100 and 1102; but see Tippett v. Maryland, supra 33, Sobeloff, J. opinion at 1160-2.

Lake v. Cameron, 364 F. 2d. 657 (CCA D.C. 1966); Covington v. Harris, 419 F. 2d. 617 (CCA D.C. 1969); see Chambers, supra 2 for a thorough discussion and review of authorities. Another of the statutory inclusions of the mandatory quarterly review of each patient by the mental health facility in Massachusetts is "a consideration of all possible alternatives to continue hospitalization or residential care including, but not necessarily limited to, a determination of the person's relationship to the community and to his family, or his employment possibilities, and of available community resources, foster care and convalescent facilities". Mass. G.L. ch. 123, sec. 4. See also: Kesselbrenner v. Anonymous, 33 N.Y. 2d 161, 350 N.Y.S. 2d 889 (Ot. App. 1973) handed down after this paper was originally prepared.

Rouse v. Cameron, 373 F. 2d 451, 453 (CCA D.C. 1966); Whitree v. State, 290 N.Y.S. 2d 486 (1968); Nason v. Bridgewater, 353 Mass. 604 (1968); Comment, "Civil Restraint, Mental Illness and the Right to Treatment", supra 28; Note: "The Nascent Right to Treatment", 53, Va. L. Rev., 1134, 1967; "Symposium on the Right to Treatment", 57, Geo. LJ. 673, 1969; Bazelon: "Implementing the Right to Treatment", 36, U. Chic. L. Rev., 742, 1969; Spece: "Conditioning and Other Technologies Used to 'Treat?' 'Rehabilitate?' 'Demolish?'-Prisoners and Mental Patients", 45, So. Calif. L. Rev. 616, 1972.

New York City Health and Hospitals Corp. v. Stein, 70 Misc. 2d 944, 335 N.Y.S. 2d 461 (1972) (Patients right to refuse EST upheld notwithstanding mother's consent); Winters vs. Miller, 446 F. 2d 65 (CCA 2nd 1971) (patient's right to refuse supports claim for damages where treatment administered over objection and no effort made to have patient judicially declared incompetent); Stowers v. Wolodzko, 386 Mich. 119 (1971) (same, at least during period of temporary hospitalization). See Spece, supra 37 at 655; Katz: "The Right to Treatment—An Enchanting Legal Fiction?", 36, U. Chic. L. Rev. 755, 1969; Morris: "Criminality and the Right to Treatment", 36, U. Chic. L. Rev., 784, 1969.

Kaimowitz v. Dept. of Mental Health, C.A. No. 73-19434-AW (Circuit Court for Wayne County, Michigan, July 10, 1973). Informed consent by involuntarily detained mental patient may be given to accepted, but not to experimental neuro-surgical procedures. The Massachusetts Supreme Judicial Court approved rare bone marrow transplant in desperate move to save life of victim, the transplant being taken from retarded brother of- victim not able to give informed consent. Boston Globe, Sept. 7, 1973. See Spece, supra 37 at 667.

See discussion below of Wyatt v. Stickney and excellent recent Case Comment, "Wyatt v. Stickney and the Right of Civilly Committed Mental Patients to Adequate Treatment", 86 Hary. L. Rev. 1282 (May, 1973). See also Note: "Guaranteeing the Right to Treatment", 40 Md. L. Rev. 42, 1972.

"Considering the number of persons affected, it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated." Jackson v. Indiana, supra 8 at 737. This list of constitutional claims is not intended to be complete. For instance, it does not include the litigation on behalf of mental patients asserting their rights not to work at mental hospitals, and to be paid for such work when they are so employed, nor the litigation on behalf of mentally handicapped persons asserting their rights to public education on a non-discriminatory basis with those deemed not so handicapped. In both of these fields the constitutional significance of the claims has resulted in Court decisions and legislation having broad social consequences.

An example is the combined statutory and constitutional basis of petitioner's right to treatment in Rouse v. Cameron, supra 37.

The melting pot theory has been criticized as a rationalisation for class distinction and has been eclipsed by a recognition of our pluralistic society. Disenfranchised groups have confronted and sought to change established values, conventions and institutions. See collection of papers compiled in Is Law Dead? edited by Eugene V. Rostow for The Association of the Bar of the City of New York (Simon and Schuster, 1971).

"Once a patient has remained in a large mental hospital for two years or more, he is quite unlikely to leave except by death." Bloom-berg: "A Proposal for a Community Based Hospital as a Branch of a State Hospital", 116, Am. J. Psychiatry 814, 1960. See other authorities collected in Harv. L. Rev. Case Comment, supra 40 at 1291. See also Goffman: Asylums, USA, Aldine, 1961.

See much of the testimony and many of the articles and studies in "Constitutional Rights of the Mentally Ill", Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Cong. 1st and 2nd Sess., 1969 and 1970. It is reported that in Massachusetts (and I daresay many other states) foreign medical graduates are authorized to practice in a state hospital, state school or other mental health or retardation facility, though not qualified to practice "on the outside". Birnbaum: "A Rationale for the Right to Treatment", 57, Geo. L. J., 77, 95-6, 1969.

Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess. pt. 1 at 23 (1961).

325 F. Supp. 781 (1971); 334 F. Supp. 1341 (1971); 344 F. Supp. 373, 387 (1972).

The Fifth Circuit has just sustained the holding "that the Fourteenth Amendment guarantees involuntarily civilly committed mental patients a right to treatment", Donaldson v. O'Connor (CCA 5th, April 26, 1974), but is still holding Wyatt v. Stickney "on submission of proposed standards by defendants". See Ref. 9, Donaldson opinion. Moreover, the Fifth Circuit has not yet rendered a decision on Burnham v. Dept. of Pub. Health, 349 F. Supp. 1325 (N.D. Ga. 1972) in which the District Court came to a conclusion contrary to that of the District Court in Wyatt v. Stickney. Wyatt and Burnham are class actions, while Donaldson is a damage suit against the patient's attending physicians, in which cause of action, as submitted to the jury, the constitutional right to treatment was an essential element. For definitive opinions after Wyatt and Burnham, but before the Fifth Circuit opinion in Donaldson, see Stachulak v. Coughlin, 364 F. Supp. 686 (N.D. Ill. 1973) and Welsch v. Likins (D. Minn. No. 4-72-Civ. 451, Feb. 15, 1974), but see N.Y. State Assn. for Retarded Children Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973). See also the addendum at the end of the article. 49. 344 F. Supp. 373, 379; 344 F. Supp. 387, 395.

See Swan v. Charlotte-Mecklengerg Board of Education, 402 U.S. 1 (1971); Katzenbach: "A Plea for Diffusion of Responsibility", 57, Mass. L.Q., 7, 1972.

Saville v. Treadway, C.A. No. 6969 (M.D. Tenn. filed April 10, 1973); Ricci v. Greenblatt, C.A. No. 72-469F (D. Mass. filed Feb. 11, 1972); Lebanks v. Spears, C.A. No. 71-2897 (E.D. La. 1972). See parallel class actions brought to humanize jails and prisons: Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1969) aff'd 442 F. 2d 304 (CCA 8th 1971); Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972); Inmates of Suffolk County Jail v. Eisenstadt, C.A. No. 71-162-G (D. Mass. June 20, 1973).

The most dramatic evidence in Rosenham: "On Being Sane in Insane Places", 179, Science, 259, 1972. See also Scheff: "The Societal Reaction to Deviance: Ascriptive Elements in the Psychiatric Screening of Mental Patients in a Midwestern State", 11, Social Problems, 401, 1964.

"Thus there is no justification for permitting psychiatrists to testify on the ultimate issue. Psychiatrists should explain how defendant's disease or defeot relates to his alleged offense, that is, how the development, adaptation and functioning of defendant's behavioral processes may have influenced his conduct. But psychiatrists should not speak directly in terms of 'product' or even 'result' or 'cause'." Washington v. United States, 390 F. 2d 444, 456 (CCA D.C. 1967). See Cross v. Harris, 418 F. 2d 1095, 1100-01 (CCA D.C. 1969). Rubin: "Predictions of Dangerousness in Mentally Ill Criminals", 27 Arch. Gen. Psych., 397, 1972; Steadman: supra 19 (1973 paper); Goldstein and Katz: "Dangerousness and Mental Illness", 70 Yale LJ., 225, 1960.

"Constitutional Rights of the Mentally Ill", supra, 46, prepared statement of Bruce J. Ennis at 271; Dershowitz: "The Psychiatrist's Power in Civil Commitment: A Knife That Cuts Both Ways", Psych. Today (Feb. 1969).

Even the relief afforded by Jackson v. Indiana is ultimately subject to a judicial determination of dangerousness and civil commitment. Commitment as incompetent to stand trial under 18 U.S.C. secs. 4244 to 4248 now depends on finding of dangerousness. See United States v. Curry, 410 F. 2d 1372 (CCA 4th 1969), Gomez v. Miller, 337 F. Supp. 386, 392 (S.D. N.Y. 1971) and discussion in opinion of Jackson v. Indiana, 406 U.S. 715, 731-33 (1972).

See authorities collected in Hary. L. Rev. Case Comment, supra 40 at 1289-90.

Extensions of constitutional rights to voluntary patients who are subject to being involuntarily committed if they give notice to leave the hospital are assuming importance. See Thorn v. Superior Court, supra 18; Matter of Buttonow, 23 N.Y. 2d 385 (1968); Spece, supra 37 at 668; Gilboy and Schmidt: "'Voluntary' Hospitalization of the Mentally Ill", 66, Nw. U.L. Rev. 429. The new code in Massachusetts creates two categories of voluntary patients as of the time of their admission: one who will be free to go at any time; the other who is subject to a three day notice and a possible petition for his commitment. Mass G.L. ch. 123, sec. 11.

In re Ballay, supra 34 at 41.

Kent v. United States, 383 U.S. 541 (1966) (waiver of juvenile proceedings and transfer to adult session cannot take place without notice of reasons, hearing and effective assistance of counsel).

In re Gault, 387 U.S. 1 (1967) (defendant in juvenile proceeding entitled to notice of charges, counsel, confrontation, cross-examination and protection against self-incrimination).

In re Winship, 397 U.S. 358 (1970) (charges against juvenile must be proven beyond a reasonable doubt). The Supreme Court stopped short of applying all constitutional rights of defendants in criminal cases to juveniles, when it held that a juvenile was not constitutionally entitled to a trial by jury, McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

396 F. 2d 393, 396-7 (1968).

The Draft Act, supra 26.

387 U.S. 1, 26. Yet in 1952 a prominent jurist had the following to say about the format of a commitment hearing: "The black robed figure of the judge on a bench signifies a great deal to the patients, their friends and relatives. It conveys to them an assurance of a day in Court, a priceless psychological reassurance, and for good reason.... To the average American a day in Court presided over by a fair and experienced judge is a pledge of the protection of his rights as an individual." Botein, Trial Judge, 269 (1952).

Supra 30.

Supra 34 at 14-15.

Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

See development of constitutional bases for the right to treatment in articles referred to, supra 38 and 40. In addition to equal protection and due process, there is cruel and unusual punishment— see Robinson v. California, 370 U.S. 660 (1962) and United States v. Johnston, 317 F. Supp. 66 (S.D. N.Y. 1970)-and right to a speedy trial in the case of criminal defendants. See also Chambers, supra 2 for development of constitutional rights to the least restrictive alternative.

Oohen: "The Function of the Attorney and The Commitment of the Mentally Ill", 44, Tex. L. Rev., 424, 1965; Gupta supra 16; Kumaska and Gupta supra 16; Christiansen and Ostberg: "Civil Commitment in Massachusetts", unpublished Harvard Law School student paper submitted to Professor Ely (April 1972). The effectiveness of representation by counsel is demonstrated as well as advocated by these articles. See also study reported by Lewin: "Disposition of the Irresponsible: Protection Following Commitment", 66, Mich. L. Rev., 721, 725, 1968.

"For some attorneys the $300 or $400 received once or twice a year for at most a few hours 'work' is a windfall not to be regarded lightly." Cohen, supra 69 at 448.

Paternalism may also be seen as "a cover" for professional conservatism. In the case of the psychiatrist the so-called "type-2 error" identifies his tendency to diagnose on the side of illness rather than on the side of health. Christiansen and Ostberg, supra 69 at 97-104. The best the Rosenham pseudo-patient schizophrenics came away with when discharged was the label "in remission". Rosenham, supra 52 at 252. In the case of the judge: "Little acclaim will come to him for ten aggressive patients successfully treated in the community and little condemnation for ten harmless patients needlessly confined, but condemnation (and guilt) may hound him for one ill person released to the community who commits a serious assault." Chambers, supra 2 at 1123.

Notwithstanding the statement of the dissent in Lake v. Cameron, supra 36, by the then Circuit Court Justice Warren Burger to the effect that a district court in our legal system is not set up to initiate inquiries and direct studies of social welfare facilities or other social problems, what difference is there between this initiative in the case of a mentally ill person and that being taken increasingly by federal, state, county and municipal trial courts through their probation departments and court clinics to investigate and make the most of community facilities and resources in lieu of incarceration in the cases of juveniles and even adult offenders?

Examples of psychiatric testimony in hearings at Bellevue Hospital, even when New York Mental Health Information Service is appearing for the patient: "So I think the index of suspicion of potential violence here would be quite high." "She is a very nice and peaceful person, but when you are dealing with a paranoid person, you never know how she will react." Kumaska and Gupta, supra 16.

The paternalism of the attorney for the patient may be discerned by his referral to the person not as "my client" but as "the patient". Cohen, supra 69 at 445.

"Constitutional Rights of the Mentally Ill", supra 46 at 1. Perhaps the most often cited quotation in modern writings on the rights of the mentally ill is taken from Justice Brandeis' dissent in Olmstead v. United States, 277 U.S. 438, 479 (1928): "Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficient.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."