In the Matter of Gwendolyn STOKES, Appellant.
No. 85-1249.
District of Columbia Court of Appeals.
Argued Jan. 21, 1987. Decided July 13, 1988.
Before MACK, BELSON, and ROGERS, Associate Judges.
MACK, Associate Judge:
Gwendolyn Stokes was initially committed to Saint Elizabeths Hospital as an outpatient under the District of Columbia Hospitalization of the Mentally Ill Act,
David L. Norman, Public Defender Servicе, with whom James Klein, Public Defender Service, Jennifer Lyman, Public Defender Service, and Laurie B. Davis, Public Defender Service, were on the brief, for appellant.
I
Appellant was taken to Saint Elizabeths Hospital as an emergency involuntary patient under the Ervin Act. Pursuant to a petition for judicial hospitalization,
Ms. Stokes was returned to the hospital on August 7, 1985. The hospital petitioned to revoke Ms. Stokes’ status as an outpa
The only witness who appeared against Ms. Stokes was the hospital psychiatrist, Dr. Barbara Basta. No lay witnesses were produced, nor were sworn affidavits introduced. At the hearing, Dr. Basta opined that Ms. Stokes suffered from a bipolar disorder and mixed substance abuse. She stated that Ms. Stokes had a long histоry of drug use and psychiatric admissions.
Over a continuing hearsay objection, Dr. Basta also gave an account of Ms. Stokes’ conduct since the time of her commitment. She testified that Ms. Stokes returned to the hospital on April 1, 1985 exhibiting symptoms of phencyclidine (PCP) intoxication. The doctor did not state whether Ms. Stokes engaged in any dangerous behavior, nor whether she showed symptoms of mental illness independent of the drug intoxication. She described how, on April 10, 1985, Ms. Stokes was readmitted to the hospital with “the same history of violent, aggressive behavior, distractive at home, threatening, hallucinating, delusional.” The doctor did not offer factual details underlying her description, nor did she note whether the alleged conduct was the product of drug abuse or mental illness. The doctor testified to the fact that Ms. Stokes had had several brief readmissions, and that each time Ms. Stokes “needed seclusion for extremely violent and threatening behavior, very difficult to handle at that time.” The doctor did not attach any dates to those admissions, nor did she indicate how many they were in number. No details with regard to the “dangerous behavior” Ms. Stokes had exhibited were provided, and the doctor did not associate the behavior with anything other than PCP use.
Dr. Basta also gave an account of Ms. Stokes’ last return to the hospital on August 6, 1985, reciting a report by a hospital staff member based on a conversation with Ms. Stokes’ mother. Dr. Basta said that the report showed that Ms. Stokes “was semi-delusional, bеcame assaultive towards the mother, threatening, aggressive, hostile.” Dr. Basta also mentioned the description of the admitting psychiatrist that Ms. Stokes was “agitated, uncooperative, hostile, threatening at that time.” Dr. Basta stated that the next day Ms. Stokes was a problem for the staff because she was “dancing, the way that generally is known as inviting men.” Other than the dancing incident, the doctor provided no details of Ms. Stokes’ allegedly dangerous conduct on the August 6th admission; nor did she associate it with a mental illness. The doctor also testified that Ms. Stokes’ behavior between March and August 1985 was not appreciably different from the behavior that she historically had exhibited and that had been taken into account in her original outpatiеnt commitment, except that her returns to the hospital were spaced closer together.
Dr. Basta noted that, upon Ms. Stokes’ last return in August, the doctor switched her medication from Haldol to Lithium and Navane. Ms. Stokes improved markedly and rapidly, and the doctor said she believed her prognosis was excellent on the new medication. However, the doctor stated that she did not believe that Ms. Stokes would continue to take medication on her own. Dr. Basta also described a new “dual diagnosis” program, which was specifically tailored to individuals who have a mental illness and are substance abusers, such as Ms. Stokes was alleged to be. No program of its kind had been made available to Ms. Stokes prior to her August readmission (specifically, the program was only established on July 29, 1985). Ms. Stokes had been participating in the program for only three weeks, yet the doctor believed her insight into her drug use had already become better than it was when she was originally committed. However, in spite of Ms. Stokes’ improvement, Dr. Basta rejected the alternative of community residence with daily participation in the new program.
After the hospital rested, Ms. Stokes testified. She stated that she wanted to devel
The court found that Ms. Stokes “would be a serious problem if returned to the community. I have no confidence that she will take her medication. I have no confidence that she will stay away from dangerous drugs.” In a written order signed the next day, the trial judge supplemented his findings by noting that Ms. Stokes suffers from a mental illness and because of such was likely to injure herself or others if not hospitalized; that her condition had deteriorated as evidenced by recent threatening, assaultive, and delusional behavior; that she had frequently abused PCP; that she had been returned to the hospital at least five times since March 1985 due to deterioration in her condition; that she began in the new dual diagnosis program in August 1985 and her motivаtion to avoid illicit drugs had already increased; but her condition remained unstable and inpatient hospitalization was necessary. Neither orally, nor in writing, did the trial court explicitly address or reject alternatives less restrictive than indefinite inpatient commitment.
II
In In re James, supra note 1, this court found that in considering a hospital petition for revocation, the trial court has the obligation to satisfy itself that no alternative less restrictive than inpatient treatment would be appropriate. Specifically, the court held that “the trial court‘s decision to revoke an outpatient commitment pursuant to
It is argued that the James decision imposes a new duty on trial courts and, accordingly, under the “clear break” doctrine (see United States v. Johnson, 457 U.S. 537, 549-56, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982)) should not be applied retroactively. However, the Supreme Court has since rejected the “clear break” analysis for cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith, the Court held that a new rule for the conduct of criminal prosecutions applies retroactively to all cases pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. The instant case was pending on direct review at the time that James was decided.3 Thus, by analogy, we apply to the instant case the new rule in James that the trial court must make an explicit finding that the proposed treatment is the least restrictive treatmеnt alternative.4 Because the trial court made no explicit finding here, we reverse.
The idea of requiring the least restrictive appropriate treatment is based on the notion that “government should not constrict the freedom of its citizens to any greater degree than the community needs require.” Chambers, Alternatives to Civil Commitment of the Mentally Ill: Practical Guides and Constitutional Imperatives, 70 MICH.L. REV. 1107, 1138 (1972). Accordingly, this court has observed that “[t]he statutory scheme in this jurisdiction does not limit the court in a commitment proceeding to a polarized choice between indefinite hospitalization and unconditional release: it makes ‘the entire spectrum of services . . . available, including outpatient treatment, foster care, halfway houses, day hospitals, nursing homes, [and others].‘” In re Mills, supra, 467 A.2d at 974-75 (citing Lake v. Cameron, supra, 124 U.S. App. D.C. at 266-67, 364 F.2d at 659-60) (quoting S.REP. NO. 925, 88th Cong., 2d Sess. 31 (1964)).
Of course, if the least restrictive treatment principle is to be more than just an abstract idea, there must exist а broad range of mental health services and programs.6 The record before us is devoid of significant information, and appellant has not suggested in this court the absence of less restrictive alternative programs and services in the District of Columbia.7
Thus, respondent‘s counsel can play an important role in determining disposition alternatives. See NATIONAL CENTER FOR STATE COURTS, GUIDELINES FOR INVOLUNTARY CIVIL COMMITMENT, supra, at 484 (“The respondent‘s counsel has the incentive to explore and to present evidence of less restrictive alternatives, stemming from his or her obligation to protect the client‘s liberty interests.“). See also CRIMINAL PRACTICE INSTITUTE, TRIAL MANUAL at 14.57 (1986) (encouraging counsel to attempt to develop an alternative plan for the client if the respondent disagrees with the hospital‘s proposed disposition). Nevеrtheless, it is the state‘s burden to demonstrate the existence and unsuitability of various treatment alternatives, not respondent‘s, and it is the trial court‘s responsibility to ensure that the state meets this burden. See Lake v. Cameron, supra, 124 U.S.App.D.C. at 268, 364 F.2d at 661 (“Appellant may not be required to carry the burden of showing the availability of alternatives . . . 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.“). See also Developments in the Law—Civil Commitment of the Mentally Ill, supra, 87 HARV.L.REV. at 1250-51 n. 265 (discussing benefits of placement of burden on state) (“treating the consideration of alternatives as part of the government‘s case would force the party advocating commitment to examine alternatives prior to instituting proceedings and would perhaps allow the entire procedure to be avoided by the development of a mutually agreeable voluntary treatment plan“).
The role of the trial court in searching for treatment alternatives as well as weighing the merits of such alternatives is no less significant. The wide spectrum of patient needs requires the careful consideration of several factors in determining the least restrictive appropriate treatment. The trial court should undertake an inquiry which explores not only the availability of an alternative, but its worth when measured against the aspects of a given disposition, including (1) time: that is, what is the durаtion of commitment? (2) program therapy: e.g., will the patient be enrolled in a specific treatment plan? Will he or she be receiving individual psychotherapy? (3) activity or conduct: can we help solve the problem by prohibiting or proscribing specific conduct? and (4) location: should the patient be required to live in a certain setting?10 Certainly, the trial judges are in a better posture to explore other factors best tailoring a specific commitment to a specific alternative.
III
Appellant also argues that the evidence of her mental illness and dangerousness
As noted, supra at 358, the trial court‘s decision to revoke Ms. Stokes’ outpatient commitment was based solely on the testimony of Dr. Basta, the hospital‘s only witness. Most of the testimony presented consisted of vague, conclusory statements. In describing Ms. Stokes’ behavior since the time of her outpatient commitment, Dr. Basta used only the broadest terms such as “violent” and “threatening.” No details to describe Ms. Stokes’ conduct were offered.11 She suggested that there had been several readmissions since the time of the outpatient order, but did not specify their number or their dates. Her account of the August, 1985 admission that precipitated the revocation proceeding was derived solely from Ms. Stokes’ mother and the admitting psychiatrist. Indеed, her testimony employed very general terms. The doctor had no personal knowledge of the behavior which she characterized.
In In re James, supra note 1, the hospital‘s expert witness was unable to furnish details of dangerous conduct in which respondent had allegedly engaged, nor was the doctor always able to specify when such conduct had occurred. Here, Dr. Basta‘s accounts of Ms. Stokes’ alleged dangerous behavior took the form of mere conclusory statements of the same sort that this court in James found to be unreliable and inadequate to support revocation. Such vague and conclusory hearsay statements, without factual underpinnings, cannot alone support a finding of mental illness and dangerousness.
This court hаs long expressed the need for expert witnesses to avoid conclusory statements in testifying as to a person‘s mental health. “Too often conclusory labels—both medical and legal—have substituted, albeit unwittingly, for the facts and analysis which underlie them.” Washington v. United States, 129 U.S.App.D.C. 29, 38, 390 F.2d 444, 453 (1967). In Washington, the court was concerned that psychiatric testimony would either confuse the jury or usurp its role in deciding the ultimate issue of guilt. Accordingly, the court required an instruction be given in the presence of the jury cautioning the expert witness to speak in clear and nonconclusory terms and to limit his opinion testimony to matters in the range of medical expertise. See also In re Mendoza, 433 A.2d 1069, 1070 n. 2 (1981); NATIONAL CENTER FOR STATE COURTS, INVOLUNTARY CIVIL COMMITMENT, supra, at 485 n. 8 (“leading questions and conclusory responses by a mental health expert witness should be insufficient to carry the state‘s burden of proof if a respondent‘s attorney challenges the adequacy of that evidence and presents less restrictive alternatives to the court“).
Predictions about the likely course of a respondent‘s mental disorder and his or her future behavior with or without compulsory treatment and care, especially predictions about future dangerous behavior, are extremely difficult to make within acceptable levels of reliability and accuracy. Thus, decisions affecting a respondent‘s liberty often hinge on subjective interpretations of ambiguous behavior and responses. A patient has a conditional liberty interest in remaining on outpatient status. Due process mandates that vague, cоnclusory statements based primarily on hearsay and not personal observation from one witness should not be sufficient to support a total deprivation of liberty. Thus, I reiterate this court‘s conclusion in James that the hospital should present the testimony or affidavits of witnesses, such as family members, with direct knowledge of the respondent‘s conduct. Id. at 158-59. See also NATIONAL CENTER FOR STATE COURTS, INVOLUNTARY CIVIL COMMITMENT supra, Guideline F9 at 488 (recommending that except in extraordinary circumstances, the court should hear the testimony of at least one person who observed the conduct that led to the filing of the commitment petition, and from at least one psychiatrist or clinical psychologist who personally ex
The doctor‘s testimony was also deficient because of the lack of a nexus between Ms. Stokes’ dangerous behavior while an outpatient and mental illness. The James court noticed the same deficiency as contributing to its decision to overturn James’ revocation. The doctor here twice noted that Ms. Stokes had been admitted to the hospital exhibiting symptoms of PCP intoxication. She never asserted that Ms. Stokes’ dangerous conduct was caused by a disorder that would constitute a mental illness under the Ervin Act, or whether the behavior was instead the product of PCP use. Drug addiction or intoxication, even though it may produce dangerous behavior, does not constitute a mental illness within the meaning of the Ervin Act. Sеe S.REP. NO. 925, 88th Cong., 2d Sess. 13 (1964); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967); see also In re Marquardt, 100 Ill.App.3d 741, 56 Ill.Dec. 331, 427 N.E.2d 411 (1981) (drug dependency in itself does not constitute a mental illness requiring commitment). If Ms. Stokes’ alleged misconduct was solely the product of PCP use, it would not provide a basis for revoking her outpatient commitment. To commit a mentally deficient person under the Act, the state must show “that the danger-productive behavior of the individual results from the mental illness.” In re Alexander, supra, 125 U.S.App.D.C. at 354, 372 F.2d at 927.
The hospital failed to present any reason to revoke Ms. Stokes’ outpatient status other than her failure to take her medication while in the community. A revocation of outpatient commitment based solely upon a patient‘s failure to comply with the prescribed course of outpatient treatment, without reliable evidence in the record that the patient is likely to be dangerous as a result of her mental illness would violate the Act.
To commit a mentally deficient person under the Act, it is necessary for the government to prove that the individual suffers from a mental illness and that the danger-productive behavior of the individual results from the mental illness. In re Alexander, supra, 125 U.S.App.D.C. at 354, 372 F.2d at 927. New findings of mental illness and dangerousness must be made at the revocation hearing. Appellant‘s failure to take her medication is not a basis in and of itself for revocation of outpatient status. See Friend v. United States, 128 U.S.App.D.C. 323, 325, 388 F.2d 579, 581 (1967) (“the District Judge made no findings as to the appellant‘s mental condition and dangerousness, and we think such findings, and the focus they imply, are required. The sole reason for revocation mentioned in the order is the fact that аppellant failed to comply with conditions. While that fact is obviously significant, it is not the sole or ultimate consideration.“). See also In re Richardson, supra, 481 A.2d at 479 n. 5; accord In re James, supra, 507 A.2d at 157-58.
Finally, the hospital failed to produce evidence sufficient to establish that indeterminate hospitalization was the least restrictive treatment alternative. The hospital, not Ms. Stokes, had the burden of demonstrating that no alternative less restrictive than indefinite inpatient hospitalization would suffice. Richardson, supra, 481 A.2d at 479 n. 4; accord Lake, supra, 124 U.S.App.D.C. at 268, 364 F.2d at 661. The hospital failed to explain why temporary revocation was not a satisfactory alternative in Ms. Stokes’ case. Moreover, Dr. Basta testified that upon Ms. Stokes’ August 1985 admission, the doctor switched her to a more effective medication, and Ms. Stokes improved rapidly. Also, Dr. Bastа acknowledged that Ms. Stokes was now participating in a program specifically tailored to her needs—the dual diagnosis program—and in three weeks time had already developed greater insight into her drug abuse. No such program had been made available to Ms. Stokes prior to initiation of the revocation proceeding. Ms. Stokes testified that she found the program beneficial and would willingly return to the program each day if returned to outpatient status. Despite this evidence of
If Ms. Stokes were still hospitalized, under the commitment order, we would remand with directions to make further findings. Since it appears that her status has changed, we instead vacate the order. This action does not affect the validity of Ms. Stokes’ original outpatient commitment. See In re James, supra, 507 A.2d at 159.
So ordered.
ROGERS, Associate Judge, concurring:
I join in reversing the judgment on the ground that the trial court failed to make a finding that inpatient commitment was the least restrictive alternative treatment to Ms. Stokes. In re James, 507 A.2d 155, 158 (D.C.1986). See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). See also In re Richardson, 481 A.2d 473, 480 (D.C.1984); In re Mills, 467 A.2d 971, 975 (D.C.1983); Lake v. Cameron, 124 U.S.App.D.C. 264, 364 F.2d 657, cert. denied, 382 U.S. 863, 86 S.Ct. 126, 15 L.Ed.2d 100 (1966). Instead the court focused on the responsibility of the Mental Health Commission and others to identify the least restrictive treatment alternative for a patient at the time of the patient‘s initial commitment. At no time during the hearing did the court acknowledge that this was a continuing responsibility of the court when a revocation of outpatient commitment is sought by the hospital. The court simply concluded that Ms. Stokes “would be a serious problem if returned to the community” because she would not continue to take her medication. Neither the statute nor judicial opinions in this jurisdiction sanction that ground alone as a basis for revocation of outpatient treatment. See, e.g., In re Richardson, supra, 481 A.2d at 479 n. 5; accord, In re James, supra, 507 A.2d at 158.1
BELSON, Associate Judge, dissenting:
Respectfully, I dissent. A fair reading of the transcript establishes, in my view, that the trial judge found that inpatient treatment was the least restrictive treatment for Ms. Stokes. The evidence was sufficient to support that finding.
As a member of the division that decided In re James, 507 A.2d 155 (D.C. 1986), I joined in Judge Rogers’ opinion for the court. Although the trial judge who decided the instant case did not have the benefit of our as yet unannounced holding and treatment of the law in James, the focus of the hearing he conducted and the еssential findings he made in the context of that hearing satisfy the test to which we subjected the James record. In James, we reaffirmed that the trial court, in weighing a petition to revoke the outpatient status of a committed patient pursuant to
[I]n the absence of an indication in the record that the judge recognized his obligation to determine whether revocation of James’ outpatient commitment was the least restrictive treatment alternative, we decline to construe the Act to permit the trial judge to fulfill his duty on the basis of сonclusory medical and imprecise factual information.
Id. at 159. Our language indicated that we reversed the trial court not because of its failure to observe our newly announced requirement of an explicit finding regarding alternative treatment, but because it did not recognize its obligation to consider that question at all.
In her opinion expressing her views and announcing the result of this appeal,1 Judge Mack notes that in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Supreme Court “held that a new rule for the conduct of criminal prosecutions applies retroactively to all cases pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Maj. Opinion at 359. The opinion then goes on to observe thаt James was decided while the instant case was pending direct review, and concludes that, “by analogy,” we should apply James to the instant case. Id. Griffith, however, does not control this civil commitment case, for Griffith deals specifically with criminal cases. Griffith, supra, 107 S.Ct. at 716 (“We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases. . . .” (emphasis supplied)). Notably, Griffith and its predecessors “did not address the area of civil retroactivity,” id. at 713 n. 8, which continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) (retroactivity determined after considering whether a new principle of law has been established, the prior history of the rule in question, and whether substantial inequitable results would be produced).2 Applying Chevron, I would conclude that James is not retroactive.3 Indeed, as I point out above, our reversal in James flowed from our conclusion that absent from the record was any indication that the judge recognized his obligation to apply the least restrictive treatment alternative. Thus, while James confirmed the trial court‘s obligation in that respect, it did not purport to apply its new requirement of an explicit finding retroactively; it reversed because of the absence of any “indication” that the trial judge applied the right test, not because of the absence of an explicit finding.
Turning to the hearing in this case, its entire context demonstrates that the parties and the court dealt with the petition for revocation of outpatient status as raising the issue of whether inpatient treatment was the least restrictive alternative, i.e., whether inpatient status was necessary. To put it plainly, that was what the hearing was all about. Focusing on that issue, the government argued that Ms. Stokes “does need a period of hospitalization to stabilize. . . .” (emphаsis supplied). Ms. Stokes’ counsel, in his closing argument, stated: “Your Honor, the burden today is on the Government to establish by a preponderance of the evidence that Ms. Stokes is so dangerous to herself or others as a result of mental illness that she must be treated on an inpatient basis.” The judge did not disagree. To the contrary, he referred to the least restrictive alternative himself when he noted that the Mental Health Commission is “charged by the statute to do all that they can to have the least restrictive circumstance.” He continued,
isn‘t it fair to say that first time up we‘ll resolve all doubts in favor of release, even though it may strike us that maybe that‘s not the thing to do. But let‘s bend over backwards, if you will, to attempt to find some sort of program in the сommunity that the patient will benefit from. Having done that, it seems that a more subsequent history since March of well, we tried, but it just didn‘t work. Isn‘t that really what we have here?
The judge then noted that
I turn briefly to the additional conclusion of Judge Mack‘s opinion that the record here would not support a finding that inpatient treatment was necessary. The record, to the contrary, contains telling evidence of the need for inpatient treatment. Dr. Basta testified that Stokes was readmitted on August the 6th in the evening, brought in by her mother who stated that Ms. Stokes was semi-delusional, became assaultive towards the mother, threatening, aggressive, hostile. And at the admission she presented herself very much the same way. Her condition was described by the admitting psychiatrist as . . . agitated, uncooperative, hostile, threatening at that time. Dr. Basta stated that she had “taken care of Ms. Stokes before and I knew her very well.” The doctor demonstrated that she was quite familiar with Stokes’ drug treatment protocol, and testified that Stokes had no insight into her mental condition and the impact of her drug problem upon it. Dr. Basta also testified that based on all this, her history, her coming and going, I can say very well that she will not survive for a long time if released right now. As long as Ms. Stokes does not understand that she needs treatment for her emotional problem, she will stop taking her medication and then go back to drugs, and a few days later she‘s right back in the hospital.4
She stated finally that she could “see clearly that she cannot function on outpatient even as a committed.”
In light of the foregoing, I cannot agree with Judge Mack‘s conclusion that “the evidence of [Ms. Stokes‘] mental illness and dangerousness was insufficient.” Opinion at 2. While more specifically with regard, for example, to Stokes’ hostile and threatening behavior upon readmission would have been preferable, the testimony was more substantial than that which we found inadequate in James, and was sufficient to support the trial court‘s ruling. It was not necessary for the hospital to call witnesses other than the psychiatrist who treated Stokes in order to establish the need for inpatient status. While I agree that the court‘s inquiry can be аided substantially by the testimony of witnesses such as family members who have direct knowledge of the patient‘s conduct, it seems too much to say that this court concluded in James that “the hospital should present the testimony or affidavits of witnesses, such as family members, with direct knowledge of the respondent‘s conduct.” Maj. Opinion at 363. Rather, we referred in James to the lack of such evidence in the course of commenting on the general weakness of the hospital‘s case.
In summary, I view the case before us as a close one in which the record affords the requisite indication that the judge recognized his obligation to determine whether revocation of Ms. Stokes’ outpatient status was the least restrictive alternative, and contains sufficient evidence to warrant our affirming the trial court‘s conclusion that outpatient status was not at that time a viable alternative for Ms. Stokes.
I add that in view of the fact that Ms. Stokes was already on convalescent leave at the time the case came before us for argument, the principal utility of the three
GERARD E. BELSON
ASSOCIATE JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS