Catherine LAKE, Appellant, v. Dale C. CAMERON, Superintendent, Saint Elizabeths Hospital, Appellee.
No. 18809.
United States Court of Appeals District of Columbia Circuit.
Argued Jan. 19, 1966. Decided May 19, 1966. As Amended Sept. 19, 1966.
364 F.2d 657
Burger, Danaher, Tamm, and McGowan, Circuit Judges, dissented.
Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Oscar Altshuler, Asst. U. S. Atty., also entered an appearance for appellee.
On Rehearing en banc
Before BAZELON, Chief Judge, EDGERTON,* Senior Circuit Judge, and FAHY, DANAHER, BURGER, WRIGHT, MCGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.
BAZELON, Chief Judge:
Appellant is confined in Saint Elizabeths Hospital as an insane person and appeals from denial of release in habeas corpus. On September 29, 1962, when she was sixty years old, a policeman found her wandering about and took her to the D.C. General Hospital.1 On October 11, 1962, she filed in the District Court a petition for a writ of habeas corpus. The court transferred her to St. Elizabeths Hospital for observation in connection with pending commitment proceedings, allowed her to amend her petition by naming the Superintendent of Saint Elizabeths as defendant, and on November 2, 1962, dismissed her petition without holding a hearing or requiring a return.
After she filed her appeal from denial of habeas corpus, she was adjudged “of unsound mind” and committed to Saint Elizabeths. At the commitment hearing two psychiatrists testified that she was mentally ill and one of them that she was suffering from a “chronic brain syndrome” associated with aging and “demonstrated very frequently difficulty with her memory * * *. Occasionally, she was unable to tell me where she was or what the date was.” Both psychiatrists testified to the effect that she could not care for herself adequately. She did not take a timely appeal from the commitment order. We heard her appeal from the summary dismissal of her petition for habeas corpus and remanded the case to the District Court with directions to require a return and hold a hearing.2
At the hearing on remand, the sole psychiatric witness testified that appellant was suffering from a senile brain disease, “chronic brain syndrome, with arteriosclerosis with reaction.” The psychiatrist said she was not dangerous to others and would not intentionally harm herself, but was prone to “wandering away and being out exposed at night or any time that she is out.” This witness also related that on one occasion she wandered away from the Hospital, was missing for about thirty-two hours, and was brought back after midnight by a police officer who found her wandering in the streets.
At both the commitment hearing and the habeas corpus hearing on remand, appellant testified that she felt able to be at liberty. At the habeas corpus hearing her husband, who had recently reappeared after a long absence, and her sister said they were eager for her release and would try to provide a home for her. The District Court found that she “is suffering from a mental illness with the diagnosis of chronic brain syndrome associated with cerebral arteriosclerosis“; that she “is in need of care and supervision, and that there is no member of the family able to give the petitioner the necessary care and supervision; and that the family is without sufficient funds to employ a competent person to do so“; that she “is a danger to herself in that she has a tendency to wander about the streets, and is not competent to care for herself.” The District Court again denied relief in habeas corpus, but noted appellant‘s right “to make further application in the event that the patient is in a position to show that there would be some facilities available for her provision.” The court thus recognized that she might be entitled to release from Saint Elizabeths if other facilities were available, but required her to carry the burden of showing their availability.
Appellant contends in written and oral argument that remand to the District Court is required for a consideration of suitable alternatives to confinement in Saint Elizabeths Hospital in light of the new District of Columbia Hospitalization of the Mentally Ill Act,3 which came into effect after the hearing in the District Court. Indeed, her counsel appointed by this court, who had interviewed appellant, made clear in answer to a question from the bench on oral argument that although appellant‘s formal pro se pleading requests outright release, her real complaint is total confinement in a mental institution; that she would rather be in another institution or hospital, if available, or at home, even though under some form of restraint.
Habeas corpus challenges not only the fact of confinement but also the place of confinement.4 And the court is required to “dispose of the matter as law and justice require.”
We are not called upon to consider what action we would have taken in the absence of the new Act, because we think the interest of justice and furtherance of the congressional objective require the application to the pending proceeding of the principles adopted in that Act. It provides that if the court or jury finds that a “person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty, the court may order his hospitalization for an indeterminate period, or order any other alternative course of treatment which the court believes will be in the best interests of the person or of the public.”
The court‘s duty to explore alternatives in such a case as this is related also to the obligation of the state to bear the burden of exploration of possible alternatives an indigent cannot bear. This appellant, as appears from the record, would not be confined in Saint Elizabeths if her family were able to care for her or pay for the care she needs. Though she cannot be given such care as only the wealthy can afford, an earnest effort should be made to review and exhaust available resources of the community in order to provide care reasonably suited to her needs.8
At the habeas corpus hearing, the psychiatrist testified that appellant did not need “constant medical supervision,” but only “attention“; that the psychiatrist would have no objection if appellant “were in a nursing home, or a place where there would be supervision.” At the commitment hearing one psychiatrist testified that “Mrs. Lake needs care, whether it be in the hospital or out of the hospital,” and did not specify what, if any, psychiatric care she needs. The second psychiatrist testified that she “needs close watching. She could wander off. She could get hurt and she certainly needs someone to see that her body is adequately cared for * * *. [She] needs care and kindness * * *.”9 It does not
Appellant may not be required to carry the burden of showing the availability of alternatives. Proceedings involving the care and treatment of the mentally ill are not strictly adversary proceedings.10 Moreover, appellant plainly does not know and lacks the means to ascertain what alternatives, if any, are available, but the government knows or has the means of knowing and should therefore assist the court in acquiring such information.
We remand the case to the District Court for an inquiry into “other alternative courses of treatment.” The court may consider, e. g., whether the appellant and the public would be sufficiently protected if she were required to carry an identification card on her person so that the police or others could take her home if she should wander,11 or whether she should be required to accept public health nursing care, community mental health and day care services, foster care,12 home health aide services, or whether available welfare payments might finance adequate private care.13 Every effort should be made to find a course of treatment which appellant might be willing to accept.14
In making this inquiry, the District Court may seek aid from various sources, for example the D.C. Department of Public Health, the D.C. Department of Public Welfare, the Metropolitan Police Department, the D.C. Department of Vocational Rehabilitation, the D.C. Association for Mental Health, the various family service agencies, social workers from
We express no opinion on questions that would arise if on remand the court should find no available alternative to confinement in Saint Elizabeths.19
We respectfully reject the suggestion that our opinion may be read as amounting to a revival of all commitments that had already become final. This case has its special features within which the opinion is confined. This appears from the factual setting of the opinion. The District Court recognized the problem in suggesting that if this patient could show that there were other facilities available for her provision she could apply again to the court. Our decision does no more than require the exploration respecting other facilities to be made by the government for the indigent appellant in the circumstances of this case.
Habeas corpus proceedings always have been available to test the validity of a deprivation of liberty—see, e. g., Stewart v. Overholser, 87 U.S.App.D.C. 402, 186 F.2d 339 (1950); and where there has occurred, as here, a change in the applicable statutory law pending the appeal, remand for consideration by the trial court under the intervening statute is appropriate if not required. To require in a habeas corpus proceeding that the court consider an intervening statute applicable to the situation is not to require a new commitment proceeding, nor does it open one already concluded.
Remanded for further proceedings in accordance with this opinion.
J. SKELLY WRIGHT, Circuit Judge (concurring):
I concur in the court‘s opinion, but wish to make clear my position that, while the District of Columbia may be able to make some provision for Mrs. Lake‘s safety under our statute, the permissible alternatives, on the record before us, do not include full-time involuntary confinement. The record shows only that Mrs. Lake is somewhat senile; that she has a poor memory, has wandered on a few occasions, and is unable to care for herself at all times. This evidence makes out a need for custodial care of some sort, but I can-
BURGER, Circuit Judge, with whom DANAHER and TAMM, Circuit Judges, join (dissenting).
We disagree with remanding the case to require the District Court to carry out an investigation of alternatives for which Appellant has never indicated any desire. The only issue before us is the legality of Mrs. Lake‘s confinement in Saint Elizabeths Hospital and the only relief she herself has requested is immediate unconditional release.1 The majority does not intimate that Appellant‘s present confinement as a patient at Saint Elizabeths Hospital is illegal,2 or that there is anything wrong with it except that she does not like it and wishes to get out of any confinement. Nevertheless, this Court now orders the District Court to perform functions normally reserved to social agencies by commanding search for a judicially approved course of treatment or custodial care for this mentally ill person who is plainly unable to care for herself. Neither this Court nor the District Court is equipped to carry out the broad geriatric inquiry proposed or to resolve the social and economic issues involved. This is particularly illustrated in the first alternative the majority commands the District Court to explore:
whether the appellant and the public would be sufficiently protected if she were required to carry an identification card on her person so that the police or others could take her home if she should wander * * *.
The list of subjects to explore concludes with an admonition that “every effort should be made to find a course of treatment which appellant might be willing to accept.”
Although proceedings for commitment of mentally ill persons are not strictly adversary, a United States court in our legal system is not set up to initiate inquiries and direct studies of social welfare facilities or other social problems. This Court exists to decide questions put before it by parties to litigation on the basis of issues raised by them in pleadings and facts adduced by those parties.
Even if the statute were read to require the District Court or the Mental Health Commission to investigate alternatives during the commitment proceedings, clearly a petitioner in a habeas corpus proceeding bears the initial burden of establishing the illegality of the present confinement. If, in order to accomplish this end, it is relevant to show that there are preferable alternatives to confinement in Saint Elizabeths, then the
What the majority has done here is first rewrite Mrs. Lake‘s petition for her, to demand something which she has never requested, then it has proceeded to remand, ordering the District Court to consider this new “petition” written by this court. Mrs. Lake and her successive lawyers have never asked for exploration of alternatives; she requested total release. The majority orders the District Court to make “every effort * * * to find a course of treatment which appellant might be willing to accept” yet at the same time the majority flouts the petitioner‘s wishes. What she wants this Court to do is to decide the legality of her commitment; however, the majority explicitly reserves that question pending the results of the study of District of Columbia social welfare facilities which it has ordered the Trial Court to undertake. We believe that this court should decide the issues raised by Appellant, not the issues it feels the Appellant should have raised. The Court‘s failure to decide the issues raised leaves her confined in St. Elizabeths Hospital while the District Court conducts a study largely unrelated to the question of the legality of that confinement, and for which a court is not equipped.
To show that Appellant really does object to the place of her confinement, the majority is forced to rely on the response of her appointed counsel to a question from the bench at oral argument. Counsel said that Appellant‘s major objection was that she was confined in a mental institution, and he intimated that possibly she might not be so unhappy with confinement in some other institution. This indicates that a large part of what troubles both Appellant and the majority is the fact that she is being confined in a mental institution and not some type of home for the aged which would provide essentially the same care but would not have attached to it the “onus” of being associated with a mental institution.
If Appellant were to receive precisely the same care she is presently receiving in the geriatrics ward of St. Elizabeths at an institution elsewhere with a name like Columbia Rest Haven, it does not appear that there would be much disagreement over the propriety of her confinement. However, a person‘s freedom is no less arrested, nor is the effect on him significantly different, if he is confined in a rest home with a euphemistic name rather than at St. Elizabeths Hospital. The cases the majority cites to support the proposition that habeas corpus is available to challenge the place of custody all involved the quite different situation of challenges based on the nature rather than simply the name of the place of custody. Any conceivable relevance of those cases to the contentions made in the present case is eliminated by the fact that no one denies that Appellant is mentally ill.
We can all agree in principle that a series of graded institutions with various kinds of homes for the aged and infirm would be a happier solution to the problem than confining harmless senile ladies in St. Elizabeths Hospital with approximately 8000 patients, maintained at a great public expense. But it would be a piece of unmitigated folly to turn this appellant loose on the streets with or without an identity tag; and I am sure for my part that no District Judge will order such a solution. This city is hardly a safe place for able-bodied men, to say nothing of an infirm, senile, and disoriented woman to wander about with no protection except an identity tag advising police where to take her. The record shows that in her past wanderings she has been molested, and should she be allowed to wander again all of her problems might well be rendered moot either by natural causes or violence.
MCGOWAN, Circuit Judge (dissenting):
I dissent for the reason that, with all respect, I am unable to understand just
As for the instant case, appellant sought only her outright release on habeas corpus. Represented by counsel, she endeavored to show by evidence that her condition did not require further custody of any kind, and that, in any event, her husband and other relatives could furnish such care and supervision as might be required. The District Court found the facts to be otherwise on both of these approaches, and no one suggests that those findings are erroneous. That ordinarily would end the matter, subject always to the right of appellant to seek hereafter a different disposition of her person, either on habeas corpus or under the specific provisions of the new law referred to hereinafter.
Appellant‘s original commitment in mental health proceedings was under a statute which, effective September 15, 1964, was replaced by a new one, which is now codified as
I am by no means persuaded that Congress, by the enactment of the new statute, intended either of these consequences. The new law, indeed, contains its own provisions for periodic review of commitments made either under it or the old law,
Judges DANAHER, BURGER, and TAMM have authorized me to say that they concur in this opinion.