INSTITUTIONALIZED JUVENILES in Pennsylvania institutions for the mentally ill and the mentally retarded et al. v. SECRETARY OF PUBLIC WELFARE, Commonwealth of Pennsylvania, et al.
Civ. A. No. 72-2272
United States District Court, E. D. Pennsylvania.
May 25, 1978.
Dissenting Opinion June 14, 1978. On Motion to Stay Judgment July 17, 1978. See also, 78 F.R.D. 413.
Norman J. Watkins, Deputy Atty. Gen., Commonwealth of Pennsylvania, Dept. of Justice, Harrisburg, Pa., for defendants.
Before GIBBONS, Circuit Judge, and HUYETT and BRODERICK, District Judges.
OPINION AND ORDER
HUYETT, District Judge.
I. Introduction
In 1975, this Court, convened as a three-judge federal court pursuant to
II. Statutory Scheme
We first consider the contours of the statutory scheme governing voluntary admissions and commitments of juveniles. A description of the statutory scheme is important in order to structure properly the sub-classes to be maintained pursuant to Rule 23. Furthermore, a full understanding of the statutes is necessary to our determination of whether they satisfy the requirements of procedural due process.
A. The Mental Health Procedures Act of 1976 (1976 Act)
The 1976 Act repeals the provisions of the 1966 Act except as they relate to mentally retarded persons. Article II of the 1976 Act articulates the procedures for voluntary inpatient treatment of mentally ill persons. “Inpatient treatment” includes all treatment that mandates full or part-time residence in a mental health facility.4 Section 201 provides that “a parent, guardian, or person standing in loco parentis to a child less than 14 years of age” may apply for voluntary examination and treatment, and by so doing shall be deemed to act on behalf of the child.5 Once a juvenile is accepted
Section 206 of the 1976 Act sets forth the procedures for withdrawal from voluntary inpatient treatment.7 Where the person committed is under the age of fourteen, his parent, legal guardian or person standing in loco parentis may obtain his release. In addition, “any responsible party” who believes that it would be in the best interests of the juvenile to be withdrawn from inpatient treatment may petition the Juvenile Division of the court of common pleas of the county in which the juvenile resides and request withdrawal or modification of treatment. Then the court must appoint counsel for the child and schedule a hearing within ten days to determine “what inpatient treatment, if any, is in the minor‘s best interest.”
The 1966 Act was the focus of the original Bartley decision in which this Court declared sections 402 and 403 of that Act to be unconstitutional.8 Following the passage of the 1976 Act, only mentally retarded juveniles remain within the ambit of the 1966 Act. Sections 402 and 403 provide, in brief, that mentally retarded juveniles age eighteen or younger may be admitted or committed9 to a mental health facility upon the application of a parent, guardian, or person standing in loco parentis, and may withdraw only with the consent of the admitting party or his successor.
C. 1973 Regulations
The 1973 Regulations,10 promulgated by the Secretary of Public Welfare under the provisions of the 1966 Act, augment the procedural rights given to mentally retarded juveniles by the 1966 Act.11 Portions of the regulations apply to all juveniles aged
Additional rights are available to mentally retarded juveniles thirteen years of age or older. These juveniles receive written notification explaining their rights and furnishing them with the number of counsel whom they may call for representation. If a juvenile age thirteen or older objects to remaining at the institution, a commitment hearing must be held pursuant to the procedures provided for involuntary commitment.13 We note here, as we did in the original Bartley opinion, that the regulations designate no time by which a post-commitment hearing must be held. 402 F.Supp. at n. 5.
In sum, there are two completely distinct statutory schemes which are under attack in this lawsuit; one relating to the mentally retarded (1966 Act as modified by the 1973 Regulations) and one relating to the mentally ill (1976 Act). Furthermore, with respect to mentally retarded juveniles, older juveniles are given some rights not accorded the younger juveniles.
III. Named Plaintiffs
There are twelve named plaintiffs in this lawsuit. Nine are mentally ill juveniles, age thirteen or younger, who were committed to mental health institutions pursuant to the 1976 Act.14 The remaining named plaintiffs are mentally retarded juveniles, age fourteen or older, institutionalized under the 1966 Act and the 1973 Regulations.15
Plaintiff Kevin S., age twelve, was admitted to Haverford State Hospital (Haverford) on July 18, 1977, pursuant to section 201 of the 1976 Act. Kevin‘s medical records reveal that his mother, who is separated from his father, has a history of serious
Prior to his commitment to Haverford, Kevin came to the attention of school authorities because of his inappropriate behavior, such as “making weird noises, refusing to do work, and talking back to teachers.” A consulting school psychiatrist diagnosed Kevin as a “disturbed child” and recommended placement in Haverford. Kevin‘s psychological evaluation, performed after his admission to Haverford, describes him as a “very needy, very angry boy” who was “not currently seen as psychotic, although there is a tendency toward projection and a lack of controls where anxious.” His Admission Note, also prepared after his admission, gives as the “reason for admission:” “Difficulties adjusting to school and family (mother). Exhibited bizarre behavior in school that has included making inappropriate sounds and laughing inappropriately.” Kevin‘s psychological history concludes, “It is felt that much of Kevin‘s problems come from living with a schizophrenic mother and having a very unstable and abused early life.”
Richard S., age thirteen, was committed to Haverford by the county child care agency on June 6, 1976 pursuant to section 201 of the 1976 Act. Richard has spent almost all of his life in foster homes and residential homes for difficult children, with the exception of a two-year period between the ages of two and four. His Admission Note for Haverford states, as a reason for admission: “Inability to adjust to an open setting. History of self harm and running away.”
Plaintiff James Paul M., age eight, was admitted to Haverford on October 17, 1977, under section 201 of the 1976 Act. His mother had died approximately one year before his admission to Haverford. The stated “reason for admission” to Haverford was “uncontrollable behavior” and “learning disability.”
Plaintiff Raymond C., age thirteen, was admitted to Haverford on September 28, 1977, pursuant to section 201 of the 1976 Act. Raymond was admitted initially for purposes of “evaluation.” The reason given for his admission was “History of uncooperative disruptive and aggressive behavior including run [sic] away from school. Problems in community with stealing and destroying property. Has a learning and hearing problem.”
William B., age nine, was committed to Haverford by his father pursuant to section 201 of the 1976 Act on September 21, 1977. For about two years prior to his commitment, William had been living with his natural father, stepmother, and two stepbrothers. The stated reason for his hospitalization was William‘s “uncontrollable behavior; preoccupied with matches, set a rug on fire, turned the gas burners on in the house, throws things out the window.”
Twelve year old Edward B. was committed to Haverford on May 9, 1977 pursuant to section 201 of the 1976 Act. He has subsequently been discharged from Haverford. Hospital records show that Edward was not informed that he was to be admitted to a mental health facility prior to his admission date, but rather was told that his parents were taking him to a new school. He was extremely upset by the admission process, expressing fears about being in a hospital with “crazies” and being confined “like a prisoner.” The stated reason for his admission was that Edward was “Hyperactive with poor behavioral control; threatens to hurt himself; feels depressed.”
Plaintiff Francis B., age ten, was originally admitted to Haverford pursuant to section 403 of the 1966 Act on August 16, 1976. Subsequently, on September 7, 1976, Francis’ father executed a form committing Francis to inpatient treatment pursuant to section 201 of the 1976 Act. While no “reason for admission” is given in the Admission Note, the examining physician stated that Francis had “difficulties adjusting to school” and that he has been described as “hyperactive with short attention span.” Francis B. has subsequently been discharged from Haverford.
Plaintiff Maria L., age twelve, was admitted to Haverford on April 25, 1977, pursuant to section 201 of the 1976 Act. The
Plaintiff Thomas W. is eleven years old. He was originally committed to Haverford under section 302 of the 1976 Act (Involuntary Emergency Examination and Treatment), which was subsequently changed to a section 201 commitment. The stated reason for admission was Thomas’ violent behavior. Thomas has since been discharged from Haverford.
The three remaining named plaintiffs are committed to institutions for mentally retarded pursuant to the 1966 Act. Plaintiff Nancy Louise D., age seventeen, was admitted to Polk State School and Hospital (Polk)16 and is being confined pursuant to the terms of the 1966 Act. She was living in a foster home until institutionalized on May 22, 1968. Nancy Louise is categorized as being moderately retarded.
Plaintiff Gina S., age sixteen, was admitted to Polk on October 20, 1970 by her mother. She is currently being confined under section 402 of the 1966 Act. Gina‘s medical records state that she is functioning in the moderately retarded range of intelligence.
Plaintiff George S., age fourteen, was admitted to Pennhurst State School and Hospital (Pennhurst) on November 5, 1969, under the voluntary admission provisions of the 1966 Act in response to a request by Catholic Social Services. Prior to his admission to Pennhurst, he had been living in a foster home until his foster mother became unable to care for him. George is classified as being severely retarded.
IV. The Class
The Supreme Court cautioned that “careful attention must be paid to the differences between the mentally ill and mentally retarded, and between the young and the very young.” 431 U.S. at 135-36, 97 S.Ct. at 1718. In response, we have painstakingly reviewed the testimony given at trial and considered as well the supplementary evidence submitted to us on remand.17 On the basis of the record before us, we find as follows.
As the Supreme Court noted, there are major differences between the mentally ill and the mentally retarded. Mental illness is a term which covers a plethora of problems ranging from severe withdrawal and psychosis, to emotional problems which are situationally based.18 Mentally retarded persons, on the other hand, are defined as those with substantial intellectual subnormalities, coupled with impairments in adaptive behavior originating in the developmental period.19 Approximately three percent of the population, or two to three million persons, are classified as mentally retarded. Eighty to eighty-five percent of those are only mildly retarded; however, even those who suffer from a minor impairment are at times institutionalized.20 Despite these differences between mental ill-
First of all, a similar kind of stigma attaches to institutional commitment whether the juvenile is classified as mentally ill or mentally retarded. Experts on mental illness and retardation testified that this stigma is imposed both outwardly, in that juveniles who have been in institutions encounter substantial obstacles in the community,21 and inwardly, in that the self-image of the juvenile is almost always severely damaged.22 Mentally retarded children who are institutionalized are often stigmatized as dangerous and aberrant, thus making their subsequent integration into the community even more difficult. Further, these children are deprived of non-handicapped role models and, as a consequence, tend to adopt behavior patterns which are not socially and culturally appropriate. These behavior patterns may continue after a child is released into the community and, in fact, serve to accentuate the existing community stereotype of the mentally retarded.23
Second, both mental illness and mental retardation are conditions which are subject to error in diagnosis and identification. Experts on mental illness in juveniles repeatedly emphasized that the problems of the juvenile are often closely intertwined with mental and emotional problems of other family members. Irrespective of this fact, the juvenile is often the person isolated as having the mental problems.24
Errors in identifying mentally retarded juveniles result from different factors. First of all, certain physical characteristics, e. g., Down‘s Syndrome, have historically been associated with retardation. However, these associations may not necessarily be accurate. Second, certain physical handicaps may cause a person to be mistakenly labelled mentally retarded. An undetected hearing impairment, for example, may prevent a child from performing well on an I.Q. test. A child who lacks normal motor or speech capabilities, who is unable to communicate or behave like other children, may be mistakenly identified as being retarded.25
Third, conflicts between the concerns and interests of the parents, and the best interests of the child frequently arise with respect to both mentally ill and mentally retarded children. Experts on mental illness testified that parents often commit their mentally ill children because of pressures in the home related to the child, or because of the parents’ inability to cope with the child‘s problems and lack of awareness of alternatives to institutionalization.26 Similarly, parents of mentally retarded children are frequently subject to community pressure to institutionalize their children.27 Other personal pressures, such as the parents’ own emotional difficulties in dealing with the mentally retarded child, as well as the financial problems of providing necessary care, may cause a parent to institutionalize a mentally retarded child although that course is not in the child‘s best inter-
Finally, testimony concerning the nature of the deprivation of liberty inherent in institutionalization and the impact of this deprivation upon the individual is similar for both mentally ill and mentally retarded children.32 One expert testified to the “derailment from the usual course of one‘s life, the dreary regimen even in the most progressive hospitals, the extreme deprivation and limits” which are the effects of institutionalization.33 Institutions prevent persons from being exposed to normal community experiences and prevent individual growth. With respect to mentally retarded persons, these conditions may be rendered even more acute by the person‘s inability to protect himself against the dehumanizing effects of institutionalization.34 Finally, these effects appear to be the same regardless of whether the institution is state-operated or privately-operated; the crucial variable is size.35
The ages of the mentally retarded juveniles covered by the 1966 Act range from adolescent to very young. However, we conclude that the same factors hold true irrespective of the child‘s age. Indeed, the danger of misclassification and the stigma of institutionalization fall more heavily upon the younger child, for whom the decision to institutionalize may effectively foreclose any opportunity to adjust adequately to life in the community. Conversely, there is no evidence to suggest that older mentally retarded juveniles have either a greater or lesser need for procedural due process protection. On the contrary, as with younger juveniles, an older juvenile who is mentally retarded may be functioning under the same disabilities which are pertinent here; that is, he may be unable to read or write, or to understand concepts such as the right to counsel.36 Therefore we conclude that the need for due process protection and the factors which this Court must consider in determining what process is due, are the same for older and younger mentally retarded juveniles.
V. Plaintiff Class Action
Plaintiffs have requested that they be permitted to bring this action on behalf of two classes in accordance with
A. Mentally Ill Juveniles Under Age Fourteen
One proposed class consists of all juveniles under the age of fourteen who are subject to inpatient treatment under Article II of the 1976 Act. We conclude that the class meets the requirements of Rule 23. This class consists of approximately 360 members38 which is sufficient to meet the numerosity requirements of Rule 23(a).
The question of law common to all class members is the facial validity of those provisions of Article II of the 1976 Act which relate to the voluntary commitment of mentally ill juveniles under the age of fourteen.
Rule 23(a) requires that the claims of the representative parties be “typical” and that those parties adequately represent the interests of absent class members. While it has been noted that there is difficulty in distinguishing between the “typicality” and “adequacy” requirements, those two criteria may be taken in concert as requiring that (1) the named plaintiffs be members of the class; (2) the named plaintiffs have no interests antagonistic to those of absent class members; and (3) the named plaintiffs’ attorney be qualified, experienced and generally able to conduct the proposed litigation.39 See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975); Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); 3B J. Moore, Federal Practice ¶ 23.07[1] (2d ed. 1977).
Nine of the named plaintiffs are juveniles committed as mentally ill who are under the age of fourteen; thus, they clearly are members of the class. There is no conflict between these plaintiffs and absent class members. Each class member, irrespective of that child‘s age, is confined under the same statutory provisions alleged to be unconstitutional. Therefore we conclude that the class itself is cohesive and free from conflict, and that the representative plaintiffs, through counsel, will adequately and vigorously represent the interests of absent class members.40
B. Mentally Retarded Juveniles Age Eighteen Or Younger
Plaintiffs also seek to maintain this action on behalf of a class of mentally retarded juveniles age eighteen or younger. This entire class is covered by the 1966 Act; however, as noted above, juveniles age thirteen and over are given additional protection by the 1973 Regulations. The Supreme Court expressly posed the question of whether differences between older and younger juveniles might render certification of a class embracing both groups improper. 431 U.S. at 135, 97 S.Ct. 1709. Because of our finding that there are no significant differences between older and younger mentally retarded juveniles for due process purposes, and for other reasons stated below, we conclude that the applicable Rule 23 criteria are met.
This class consists of approximately 3,153 members,41 which is clearly sufficient to meet Rule 23(a)‘s numerosity requirement. Of greater concern is the requirement that there be questions of fact and law common to all class members, since mentally retarded juveniles who are thirteen and over are given greater procedural protection pursuant to the 1973 Regulations than younger juveniles. However, the attack mounted here is against the entire statutory scheme, including both the applicable provisions of the 1966 Act and the 1973 Regulations. We have previously made a finding that, for procedural due process purposes, there are no significant differences between older and younger mentally retarded juveniles. Therefore, if the statutory scheme is unconstitutional with respect to the older juveniles who receive greater protections, then it is a fortiori unconstitutional with respect to the younger juveniles who receive far less protection.
The “typicality” and “adequacy of representation” requirements are also met. The named plaintiffs here are all age thirteen or older and are thus given greater protections under the 1973 Regulations than class members under age thirteen. However, all three mentally retarded plaintiffs were admitted to their respective institutions before they reached age thirteen and, therefore, were presumably not accorded the additional procedural safeguards at the date of their admission. Furthermore, we do not believe that the rights accorded to older juveniles following their admission, such as the right to request a hearing on the validity of their confinement, serve to create a conflict between the older and younger juveniles.42 First of all, we reiterate our conclusion that due process requirements are the same for both groups. Second, we note that, in order for the named plaintiffs to prevail on their claim that the statutory scheme is unconstitutional, it will be necessary for them to prove the unconstitutionality of the statute and regulations as applied to the less protected younger retarded juveniles.43 Therefore, we conclude that this action is properly
VI. Discussion
In our original decision, we concluded that the plaintiffs had a liberty interest, protectible under the Fourteenth Amendment, in not being institutionalized without due process of law. 402 F.Supp. at 1046. Encompassed within this liberty interest is not only protection against physical restraint and confinement, but also protection of the juvenile‘s “good name, reputation, honor, [and] integrity.” Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), cited in Bartley v. Kremens, supra, 1046 n. 8. The protection of the plaintiffs’ reputation interest is implicated because of the stigma attached to institutional commitment, a stigma which “may render civil commitment a more lasting abridgement of personal freedom than imprisonment for a crime.” Id. at 1046. We reaffirm these conclusions.
We further determined that this liberty interest could not be waived by plaintiffs’ parents, guardians, or persons standing in loco parentis. Id. at 1047. There may be instances where the congruence between the parents’ interests and those of the child assure that the parents will arrive at a decision based upon the best interests of the child.44 The evidence in this case overwhelmingly demonstrates that, due to the substantial potential for conflict between the interests of the parent and the child, this is not such a situation. See New York State Association for Retarded Children v. Rockefeller, 357 F.Supp. 752, 762 (E.D.N.Y.1973); cf. Horacek v. Exon, 357 F.Supp. 71, 74 (D.Neb.1973).
It has been argued that the parents’ determination that institutionalization is the appropriate treatment for a child believed to be mentally ill or retarded is no different from the decision to provide any other type of medical treatment. We disagree. Unlike other kinds of medical treatment, a substantial stigma attaches to institutionalization. This stigma coupled with the substantial danger of error in the diagnosis of mental illness and mental retardation, and the greater potential for long-term loss of liberty45 create a situation substantially different from the treatment of other medical conditions. Furthermore, we perceive little or no parent-child conflict in the decision to give or withhold other kinds of medical treatment since a parents’ interests are more likely to be similar to the best interests of the child. Therefore, we reaffirm our holding that parents may not waive the constitutional right of their child not to be deprived of liberty without due process of law.
We then turned to a consideration of what process was due. In responding to plaintiffs’ allegation that they were deprived of certain specific procedural rights, we concluded that the juvenile plaintiffs were entitled to
(1) a probable cause hearing within seventy-two (72) hours from the date of their initial detention; (2) a post-commitment hearing within two (2) weeks from the date of their initial detention; (3)
written notice,46 including the date, time, and place of the hearing, and a statement of the grounds for the proposed commitment; (4) counsel at all significant stages of the commitment process and if indigent the right to appoint free counsel;47 (5) be present at all hearings concerning their proposed commitment; (6) a finding by clear and convincing proof that they are in need of institutionalization; (7) the rights to confront and cross-examine witnesses against them, to offer evidence in their own behalf, and to offer testimony of witnesses.48
402 F.Supp. at 1053. While we set forth these detailed procedures, we also stated, “Our action is not intended to preempt the state which is free to develop its own safeguards so long as they are as fully effective as those which we set out.” Id. at n. 16, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971). To rephrase Judge Friendly, there is no single correct solution to the problem of safeguarding the interests of the juvenile plaintiffs; “more of one procedural safeguard may justify less of another.” Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1302 (1975).
We reaffirm these conclusions, and make the following additions and clarifications. First, we reiterate the need for a hearing in all cases unless there is a valid waiver. The Supreme Court has dictated that, in identifying the specific content of due process, three factors must be considered: the private interest involved, the risk of erroneous deprivation, and the Government‘s interest, including any fiscal and administrative burdens that the additional procedures would entail. Smith v. O. F. F. E. R., 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The juvenile‘s interest here is weighty, and the risk of erroneous deprivation, as noted earlier, is great.49 We believe that a hearing would insure that the interests of the child are clearly represented, that alternatives to institutionalization are fully explored, and that the decision to commit the child is impartially made.50 See J. L. v. Parham, 412 F.Supp. 112 (M.D.Ga.1976) (three-judge court); Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974).
We reject the argument that a hearing should not be required because it might prove traumatic for the child. First of all, the expert testimony, for the most part, demonstrated that the effects of a hearing on the child and, in many cases, the parent would be beneficial.51 For example, one expert testified, with respect to mentally retarded children, that a hearing would enhance feelings of dignity and self-worth in the child, reduce the guilt feelings of the parents, and reduce interfamilial conflicts, if any exist, over whether the decision to commit the child is correct.52 Secondly, we
Finally, with respect to the nature of the tribunal, we state only that the tribunal must be neutral and unbiased. It is clear that “an unbiased tribunal is a necessary element in every case where a hearing is required.” Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1279 (1975). Whether the tribunal should be judicial or administrative is not a matter best resolved by this Court at this time.53
In view of the guidelines set forth above, we turn to the specific provisions attacked here; namely, the 1973 Regulations and the 1976 Act.
a. 1973 Regulations
As outlined above, these regulations augment the procedures of the 1966 Act, giving certain procedural rights to all juveniles and other additional rights to juveniles age thirteen and over. Since the passage of the 1976 Act, these provisions apply only to those juveniles who are mentally retarded. We conclude that these 1973 Regulations are not in accord with the requirements of due process.
One of the major deficiencies54 of the 1973 Regulations is the absence of a proce-
As for the additional procedural rights given to children age thirteen and older, we conclude that there are severe deficiencies in these procedures as well. First of all, the mentally retarded child who receives written notice may not be able to read the notice or comprehend the explanation of his rights contained therein. Assuming that the child does understand the notice, however, the burden of commencing the enumerated procedures rests with the juvenile; he must contact counsel or object to the institutionalization. As one of the experts testified, “It‘s putting an awful lot of burden on young retarded persons to stand up against a big institution.” Deposition of L. Glenn, at 67. Once the child protests, there is no set time limit in which a hearing must be held. We believe that, especially in the case of retarded children, who may lack the ability to understand the notice given to them, due process rights are violated in the absence of an automatic post-commitment hearing, to be scheduled within a reasonable time, and the presence of counsel to speak solely for the child‘s interests.59 Therefore, we hold that the 1973 Regula-
b. 1976 Act
Article II of the 1976 Act, as noted above, specifies certain procedures for the voluntary “inpatient treatment” of mentally ill juveniles who are age thirteen or younger. We believe that these procedures do not meet due process standards.
We will note specifically several of the deficiencies of the 1976 Act. The major deficiency is the absence of a required post-commitment hearing to be held within a reasonable time after commitment and the absence of counsel to advocate the interests of the child.60 We believed that these procedural requirements are especially critical where, as here, the rights of very young children may be implicated. These mentally ill children may lack the ability and capacity to speak on their own behalf, as an older juvenile might be able to do, and their interests may be overlooked.61
The procedures governing withdrawal from inpatient treatment in no way cure the defects of the statute. Section 206(b) provides that “any responsible party” may petition the Juvenile Division of the Court of Common Pleas for the modification of or withdrawal from treatment, and at that time, a hearing will be held. Thus, again, rather than providing for automatic procedures aimed at protecting against an uncon-
Accordingly, we declare that the procedures for voluntary commitment of mentally ill and mentally retarded juveniles, as set forth in the 1966 Act, the 1973 Regulations, and the 1976 Act, are unconstitutional on their face and as applied to plaintiffs, and enjoin their enforcement.62
We continue to retain jurisdiction over this action, as we have the inherent power to do. This will enable the parties to apply for amendment or modification of the Order if they deem it necessary.63
RAYMOND J. BRODERICK, J., dissents and will file a dissenting Opinion.
RAYMOND J. BRODERICK
District Judge, dissenting.
HUYETT, District Judge.
Defendants have moved pursuant to
A hearing was held before me on July 5, 1978 to permit the defendants to present additional testimony to substantiate their contention that a stay should be granted, and to present argument on their behalf. The findings made herein are based upon the entire record of this case, including the record of the initial trial and of the proceedings following remand, in addition to the record made at the July 5th hearing.
In determining whether or not a stay under Rule 62(c) is warranted, we must consider four factors: a. the likelihood of the movant‘s success on appeal; b. the likelihood of irreparable injury to the movant if the stay is denied; c. the likelihood of similar injury to plaintiffs if the stay is granted, and d. the public interest. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir. 1968); Resident Advisory Board v. Rizzo, 429 F.Supp. 222 (E.D.Pa.1977). In considering each of the factors, we have looked to the record before us to see what facts are revealed therein and whether those facts support or undermine the defendants’ position.1 After considering the record before us, we believe that the defendants have not carried their burden of showing that, based upon the above stated factors, a stay should be granted. Therefore, we deny the defendants’ motion for a stay.
Likelihood of Success on Appeal
Defendants have not demonstrated a likelihood of success on appeal. The two prior opinions of this court in Bartley v. Kremens, 402 F.Supp. 1039 (E.D.Pa.1975) and Institutionalized Juveniles v. Secretary of Public Welfare, supra at 30 (D.C.1978) provide an analysis of the statutory provisions and state clearly the substantive basis for our belief that these provisions are unconstitutional. We stand by these opinions.
We are aware that the Supreme Court granted a stay pending appeal of the Order issued on November 17, 1975 which implemented the Bartley decision. 423 U.S. 1028, 96 S.Ct. 558, 46 L.Ed.2d 402. Defendants contend that the stay represented the Supreme Court‘s consideration of the applicable standards for granting of a stay and judgment based upon those standards that a stay was necessary. Because our May 25, 1978 opinion in Institutionalized Juveniles is similar to our Bartley decision, the defendants contend that we should be bound by the prior decision of the Supreme Court and grant a stay pending appeal. Unfortunately, since no opinion accompanied the Supreme Court‘s grant of the stay, we have no way of knowing what the reasoning of the Court may have been. However, our May 25, 1978 Order is different from our earlier Order in several crucial respects.2 These differences, we believe, are substantial enough to make the Supreme Court‘s decision not to grant a stay of our prior Order inapposite.
In sum, we do not believe that the defendants have demonstrated a likelihood of success on appeal.
Irreparable Injury to Movants
The record fails to show a likelihood of irreparable injury to defendants if the stay is denied. Defendants presented two witnesses at the July 5, 1978 hearing: one representative from the Department of Public Welfare and one from the Devereaux Foundation, a state-licensed mental health facility. Testimony offered by defendants revealed that the following number of juveniles, plaintiff class members,
Defendants presented no evidence as to the number of juveniles for whom commitment might be sought in the future under the invalidated statute. Furthermore, since the defendants had no estimates of the number of juveniles who might be released from mental health facilities due to regular turnover, or those who might waive a hearing, there was no way to estimate the number of hearings which might be required in order to comply with Paragraph 19C of the Court‘s Order. It is reasonable to assume, however, that the total number of hearings would be considerably less than 3,985. In fact, the witness who testified on behalf of the Devereaux Foundation stated that he believed that the majority, if not all, of the 300 class members at Devereaux are content and, given the choice, would choose to remain there. In the case of many of these juveniles, a hearing might be waived.
The Commonwealth defendants were able to give no concrete estimate of the cost of complying with the Order or the manpower needs they might have because of the Order. Additionally, the Commonwealth had no firm estimates of the length of time it would take to comply with the Order, but believed that it would be possible at least to file petitions for recommitment of the children in state-operated institutions within the 180 days provided by the Court Order. Therefore, the only real harm alleged by the Commonwealth amounted to speculative estimates of inconvenience and cost.
The witness from the Devereaux Foundation, speaking on behalf of private institutions, stated his opinion that the diversion of funds and personnel caused by compliance with the Court‘s Order would irreparably harm the class members confined to his institution. In arriving at his opinion he assumed that hearings would be held for all children; this is clearly not the case. Supra at n. 48. We are able to give little credence to the opinion given by this witness because of his unfamiliarity with our Order and the requirements therein, his personal unfamiliarity with court commitment procedures (Devereaux presently has no court-committed juveniles), and the unfounded estimate he gave of the number of hearings that would actually take place. The remaining portion of the witness’ testimony related to the harm and confusion which would be inflicted upon a child by a hearing. This testimony was duplicative of much of the testimony we heard at the original trial and upon remand. See Institutionalized Juveniles v. Secretary of Public Welfare, supra, at 45. We stand by our original conclusion on the merits of such an argument.
Finally, the defendants testified that they were not aware of any juvenile in need of care who was unable to obtain care because of the Court‘s Order. We conclude that the defendants are unable to make a showing of irreparable harm sufficient to warrant a stay of the Order.
Likelihood of Irreparable Injury to Plaintiffs if Stay is Granted
On the other hand, the potential injury of a stay to plaintiff class members is great. Such injury, which is discussed in detail in our earlier opinions in this case, flows from the dangers inherent in the confinement of plaintiffs without procedural due process: e. g., the danger of wrongful deprivation of liberty resulting in damage to self-image, loss of nonhandicapped role models, imposition of the stigma of institutionalization and so forth. Institutionalized Juveniles v. Secretary of Public Welfare, supra, at 38 40, 45; Bartley v. Kremens, 402 F.Supp. 1039, 1046-47 (1975). There is no way that
The Public Interest
Defendants presented no evidence concerning the benefit to the public interest if a stay were to be granted.
In sum, we conclude that the record before us cannot justify the grant of a stay in the instant case.3
Judge JOHN J. GIBBONS joins in this Memorandum and Order; Judge RAYMOND J. BRODERICK votes to grant the stay requested.
HUYETT
District Judge.
Notes
For example, in Bartley, we required the appointment of counsel in all cases, 402 F.Supp. at 1050, and mandated judicial hearings. Id. at 1049 and n. 18. By contrast, our opinion in Institutionalized Juveniles provided that counsel or other trained representative may represent the child‘s interests, supra at n. 47, and gave the Commonwealth the option of providing administrative or judicial hearings. Id. at n. 53.Section 402. Voluntary admission; application, examination and acceptance; duration of admission.
(a) Application for voluntary admission to a facility for examination, treatment and care may be made by:
(1) Any person over eighteen years of age.
(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
(b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted.
(c) Except where application for admission has been made under the provisions of Section 402(a)(2) and the person admitted is still eighteen years of age or younger, any person voluntarily admitted shall be free to withdraw at any time. Where application has been made under the provisions of Section 402(a)(2), only the applicant or his successor shall be free to withdraw the admitted person so long as the admitted person is eighteen years of age or younger.
Section 403. Voluntary commitment; application, examination and acceptance; duration of commitment.
(a) Application for voluntary commitment to a facility for examination, treatment and care may be made by:
(1) Any person over eighteen years of age.
(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
(b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days. Successive applications for continued voluntary commitment may be made for successive periods not to exceed thirty days each, so long as care or observation is necessary.
(c) No person voluntarily committed shall be detained for more than ten days after he has given written notice to the director of his intention or desire to leave the facility, or after the applicant or his successor has given written notice of intention or desire to remove the detained person.
This act establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons. “Inpatient treatment” shall include all treatment that requires full or part-time residence in a facility. For the purpose of this act, a “facility” means any mental health establishment, hospital, clinic, institution, center, day care center, base service unit, community mental health center, or part thereof, that provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons, whether as outpatients or inpatients.
Any person 14 years of age or over who believes that he is in need of treatment and substantially understands the nature of voluntary commitment may submit himself to examination and treatment under this act, provided that the decision to do so is made voluntarily. A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child. Except as otherwise authorized in this act, all of the provisions of this act governing examination and treatment shall apply.
Upon acceptance of a person for voluntary examination and treatment he shall be given a physical examination. Within 72 hours after acceptance of a person an individualized treatment plan shall be formulated by a treatment team. The person shall be advised of the treatment plan, which shall become a part of his record. The treatment plan shall state whether inpatient treatment is considered necessary, and what restraints or restrictions, if any, will be administered, and shall set forth the bases for such conclusions.
(a) A person in voluntary inpatient treatment may withdraw at any time by giving written notice unless, as stated in section 203, he has agreed in writing at the time of his admission that his release can be delayed following such notice for a period to be specified in the agreement, provided that such period shall not exceed 72 hours.
(b) If the person is under the age of 14, his parent, legal guardian, or person standing in loco parentis may affect his release. If any responsible party believes that it would be in the best interest of a person under 14 years of age in voluntary treatment to be withdrawn therefrom or afforded treatment constituting a less restrictive alternative, such party may file a petition in the Juvenile Division of the court of common pleas for the county in which the person under 14 years of age resides, requesting a withdrawal from or modification of treatment. The court shall promptly appoint an attorney for such minor person and schedule a hearing to determine what inpatient treatment, if any, is in the minor‘s best interest. The hearing shall be held within ten days of receipt of the petition, unless continued upon the request of the attorney for such minor. The hearing shall be conducted in accordance with the rules governing other Juvenile Court proceedings.
(c) Nothing in this act shall be construed to require a facility to continue inpatient treatment where the director of the facility determines such treatment is not medically indicated. Any dispute between a facility and a county administrator as to the medical necessity for voluntary inpatient treatment of a person shall be decided by the Commissioner of Mental Health or his designate.
1. All juveniles aged 18 and younger to be admitted to an Institution must be referred from a recognized medical facility, Mental Health/Mental Retardation therapist or Mental Health Agency; however, mentally retarded juveniles may be referred by either a pediatrician, or general physician or psychologist;
2. This referral must be accomplished by a psychiatric evaluation and that report must indicate with specificity the reasons that the person requires institutional care; however, a medical or psychological evaluation may accompany the referral of a mentally retarded juvenile;
3. The Director of the Institution or his delegate, shall have conducted an independent examination of the proposed juvenile, and if his results disagree with the professional‘s opinion, the Director, or his delegate shall discharge the juvenile;
4. The telephone number and address of the juvenile‘s parents or the person who is requesting admission for the juvenile must accompany the referral;
5. Within 24 hours after the juvenile‘s admission, every youth who is at least 13 years of age must receive written notification (which he signs) explaining his rights indicating that he will be given a status report periodically of his condition; that he can contact by telephone or by mail his parents or the person who requested his admission; and that he will be furnished with the number of counsel (Public Defender‘s number; Legal Services) that he can call for representation. An appropriate person shall explain this notice (attached);
6. In the event that a juvenile whose chronological age is 13 or older objects (either orally or in writing) to remaining in the Institution, the Director, or his delegate, if he feels it is necessary for the youth to remain, may continue the institutionalization for two business days during which time he shall notify the applicant and the referral unit so that either party may institute a 406 proceeding. During that same two-day period, the Director, or his delegate, shall notify the Public Defender‘s Office or notify Legal Services readily available of the juvenile‘s need for legal representation. If a 406 proceeding is begun during the two-day period, the juvenile shall remain institutionalized. If the applicant cannot be located and the Director, or his delegate, feels that the juvenile does not require institutionalization, the Director, or his delegate, shall direct the Base Service Unit to assume responsibility of providing for the juvenile‘s aftercare. However, if the Director, or his delegate, feels that the juvenile requires institutionalization, he shall direct the Base Service Unit to file a 406 proceeding within two days after failure to locate the applicant;
7. The juvenile‘s counsel shall be furnished with the juvenile‘s evaluation from the referral unit, with a psychiatric evaluation from the Institution, and with a written report of the reasons to institutionalize the juvenile;
8. If the staff member of the facility giving notice to the patient determines that the patient is incapable of understanding the notification, it shall be written on the notification.
Defendants subsequently submitted with their Supplemental Brief affidavits confirming the fact that virtually all of the information was received by the admitting facilities prior to admission. However, there still is little evidence showing in what way, if at all, these records were used during the admissions process. Plaintiffs have suggested that the material be admitted for the limited purpose of providing information on the social and family backgrounds of the named plaintiffs. After examining these records carefully and considering the memoranda submitted by counsel, we believe that Part A of each of the medical records is relevant to issues in this case and admit those portions into evidence.
The evidence which was admitted in the initial proceeding, including all testimony, depositions, exhibits, interrogatories, objections and rulings shall be deemed included in the record of these proceedings. Further, for the convenience of the parties and the Court, the printed Appendix, which was used in the Supreme Court, No. 75-1064, with permission of this Court shall be used in these proceedings.
Stipulation of Counsel No. 40, Supplementary Exhibit No. 40.We accept the Stipulations of Counsel and incorporate them into our findings.
The parties have stipulated as follows:
All mental health and mental retardation facilities in Pennsylvania which are not state-owned and operated must be licensed and/or approved by the Department of Public Welfare. As part of the approval/licensing, such facilities have been required and are required to utilize and act in conformity with the commitment and admission procedures in both the 1966 Act and the 1976 Act.
Stipulation of Counsel No. 37, Supplementary Exhibit No. 13.This stipulation serves to buttress our conclusion that there is no conflict between defendant class members because “the challenged statutes and regulations are applicable to all of Pennsylvania‘s mental health institutions, whether state-owned and operated, or privately owned.” Institutionalized Juveniles v. Secretary of Public Welfare, supra.
This stipulation also serves to distinguish the case before us from In re John S., 135 Cal.Rptr. 893 (Cal.App.1977), where the court held that there was no state action present in a parent‘s decision to admit their minor child to a private mental hospital. The John S. court specifically held that the state “does not control either admissions or treatment policies of the private hospital to which [the] minor was admitted.” Id. at 901. Therefore, since the parents had not invoked the aid of a state statute in committing their child to a private mental hospital, the state was in no way a party to the parental decision. Id. We believe that the situation in Pennsylvania, as reflected by this Stipulation of Counsel, mandates a different conclusion. Since the state actively regulates the admissions procedures of all mental health facilities within the state as part of its licensing power, children who are “voluntarily” admitted to privately-owned facilities are confined pursuant to state law.
Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978) (citations omitted).Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property. Thus, in deciding what process constitutionally is due in various contexts, the Court repeatedly has emphasized that “procedural due process rules are shaped by the risk of error inherent in the truth-finding process . . . .”
We have reconsidered this portion of our original opinion and conclude that the more prudent course of action is to permit the Commonwealth to determine what kind of “unbiased tribunal” should conduct these hearings.
The Regulations required that referral of mentally ill juveniles, no longer covered under the Regulations, be accompanied by a psychiatric evaluation, stating “with specificity the reasons that the person requires institutional care.” However, the 1973 Regulations permit “a medical or psychological evaluation” to accompany the referral of a mentally retarded juvenile. Further, it is not clear whether these “medical or psychological evaluations” must state the reasons for institutionalization “with specificity.”
Id.[P]sychiatrists are people, too, and we are influenced by considerations other than those that are strictly clinical. For example, if I, as director of a state hospital get a letter from a colleague in a community facility, saying that John Doe really needs psychiatric hospitalization and is severely disturbed, even if I felt otherwise from a direct discussion with the patient, I would be in an awkward position if I said, “No, this patient does not require hospitalization.” What do I then say to my colleague whose opinion I disagreed with? Secondly, professionals—psychiatrists who work for institutions, are influenced by the needs of the institution, as well as the needs of the individual patient. If I am the director of an adolescent service and the funding of my unit depends on how fully utilized the unit is, I might be on the side of admitting the adolescent. I am not saying this is done deliberately, but I think that a decision as complex as hospitalization is influenced by factors within the psychiatrists at a number number of different levels and such considerations as bed utilization will play some role.
Testimony of E. Messinger, Appendix at 631a.I think in fact that the need for a hearing in the younger children is greater, because one cannot expect them to understand fully, certainly in legal terms, their dilemma, nor can they be aware of alternative forms of therapy. . . . I think that because younger children are less sophisticated and less knowledgeable, that we have to bend over backwards to protect their rights.