ELMO B. HUNTER, District Judge.
This is an action in which plaintiffs seek declaratory and injunctive relief regarding treatment and conditions at Fulton State Hospital, Fulton, Missouri. This case was certified as a class action under F.R.Civ.P. 23(b)(2) on September 16, 1977. Plaintiffs represent "all patients involuntarily confined to the Forensic Unit, Fulton State Hospital, on such date as any judgment may be rendered herein disposing of all allegations raised by the plaintiffs, or any portion thereof."
Defendants are public officials responsible for the supervision and operation of the Forensic Unit and members of the Missouri Mental Health Commission. Named defendants include Dr. C. Duane Hensley, past Director of the Missouri Department of Mental Health and Dr. James K. Ritterbusch, Superintendent of Fulton State Hospital.
The Forensic Unit consists of two residential units, one known as the Marion O. Biggs Building for the Criminally Insane ("Biggs Building") and the other known as the Rehabilitation Unit. The Biggs Building houses patients who, in addition to being mentally ill or mentally disabled, have been deemed to be dangerous to themselves or others to an extent which requires that their care and treatment be conducted under conditions which provide maximum security. The Biggs Building is the only unit of the Missouri Department of Mental Health housing solely maximum security patients. The Rehabilitation Unit also houses patients who have been determined to represent a danger to themselves or others. As a general matter, the conditions of confinement in the Rehabilitation Unit are less restrictive than those prevailing in the Biggs Building. As patients are judged to no longer require confinement in a maximum security setting, they are usually transferred from the Biggs Building to the Rehabilitation Unit where they reside in progressively less restrictive wards until they are transferred to another institution or are discharged.
The patients confined in the Forensic Unit were committed under a variety of statutory provisions. The following describes the types of commitments and approximate
Type of commitment PercentageInvoluntary civil commitment by Probate Court 315 Not guilty by reason of mental disease or defect 450 Pretrial psychiatric observation and evaluation 512 Criminal sexual psychopath 610 Transfers from the Missouri Department of Corrections 72 Incompetent to proceed with trial 87 Commitment by Juvenile Court 91 Voluntary commitment 103
Plaintiffs contend that defendants are in violation of the eighth and fourteenth amendments to the United States Constitution by their failure to provide an adequate program of care and treatment for patients confined in the Forensic Unit. Plaintiffs also claim that certain of defendants' policies and practices regarding visitation, telephone, mail, and the use of seclusion and restraints, violate patients' constitutional rights.
This Court has jurisdiction under 28 U.S.C. § 1343(3).
CONSTITUTIONAL RIGHT TO TREATMENT
In Welsch v. Likins, 550 F.2d 1122, 1125, 1126 n.6 (8th Cir. 1977), the Eighth Circuit recognized that noncriminal mentally ill or retarded patients committed to state institutions without their consent have a federal constitutional right to treatment. This recognition was premised upon the district court's holding that the due process clause of the fourteenth amendment requires that mentally retarded persons who have been civilly committed to state mental institutions be afforded at least minimally adequate treatment. Welsch v. Likens, 373 F.Supp. 487, 491-97 (D.Minn.1974). A constitutional right to treatment for mental patients has been recognized in several other circuits. Bowring v. Godwin, 551 F.2d 44, 48 n.3 (4th Cir. 1977) (dicta); Scott v. Plante, 532 F.2d 939, 947 (3d Cir. 1976) (states a claim); Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966) (dicta).
Defendants argue that the constitutional right to treatment of civilly committed mental patients is not well established in the law. Rouse v. Cameron, supra, the seminal case in the field, was decided on statutory grounds. "[W]e need not resolve the serious constitutional questions that Congress avoided by prescribing this right." Id. 125 U.S.App.D.C. at 370, 373 F.2d at 455. Adequate treatment was first held to be the constitutional right of civilly committed mental patients in Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala.1971), aff'd sub nom. Wyatt v. Aderholt, supra. Wyatt involved patients who were generally
Id. at 784. Defendants point out that Judge Johnson's holding in Wyatt relies on cases from the District of Columbia Circuit interpreting statutory rights under the District of Columbia Code.
Wyatt v. Stickney was affirmed by the Fifth Circuit, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), on the basis of its earlier decision in Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974). In Donaldson v. O'Connor, plaintiff was involuntarily committed to a state mental hospital for fourteen and one-half years. After his release, he sought to recover damages under 42 U.S.C. § 1983 from hospital and state mental health officials for their failure to provide him with psychiatric care in violation of his claimed constitutional right to treatment. The Fifth Circuit affirmed a judgment for plaintiff and held that the only constitutionally permissible justification for civil commitment of a nondangerous person to a state mental hospital is to provide treatment and that such persons have a constitutional due process right to such treatment.
The Supreme Court vacated the judgment of the Fifth Circuit in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Defendants contend that the vacation of the Fifth Circuit's opinion in Donaldson, specifically depriving that opinion of precedential effect,
Federal courts have previously recognized a constitutional right to treatment in patients similar to those included in the plaintiff class. Scott v. Plante, 532 F.2d 939 (3d Cir. 1976) (incompetent to stand trial); Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966) (not guilty by reason of insanity); United States v. Pardue, 354 F.Supp. 1377 (D.Conn.1973) (incompetent to stand trial); Davy v. Sullivan, 354 F.Supp. 1320 (M.D.Ala.1973) (three judge court) (criminal sexual psychopath); Stachulak v. Coughlin, 364 F.Supp. 686 (N.D.Ill.1973) ("sexually dangerous person"). In Davis v. Watkins, 384 F.Supp. 1196 (N.D.Ohio 1974), and Davis v. Balson, 461 F.Supp. 842 (N.D. Ohio 1978), the court held that the patients at Lima State Hospital, "a maximum security [hospital] for the criminally insane" operated by the Ohio Department of Mental Health and Mental Retardation, have a constitutional right to treatment. The holding in Davis, which was based on Wyatt v. Stickney, supra, concerned a patient population in many respects identical to that of the Forensic Unit. Davis v. Balson, 431 F.Supp. at 849-50.
This Court has no quarrel with defendants' contention that the state may confine the dangerous mental patient against his will in order to protect both society and the patient from his violent behavior. However, that well-settled justification for involuntary confinement does not dispose of the right to treatment issue. The mentally ill or retarded person who is committed to a state institution, be he dangerous to others, to himself, or not at all, is set apart from society. He is isolated from whatever opportunity he might have had to get treatment for his illness or mental disability had he remained at liberty. Confinement in a state mental hospital absolutely forecloses receipt of any treatment except that which the state chooses to provide. To confine the mental patient against his will no doubt entails a "massive curtailment of liberty." Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). To withhold all opportunity for treatment may condemn him to a lifetime of hopeless mental illness, surely a greater deprivation. The Court therefore concludes that due process requires that the class of patients in this case, who have been involuntarily committed to a state mental hospital, be provided with such treatment as will give each of them a reasonable opportunity to be cured or to improve his mental condition. Of course, the fourteenth amendment does not require the state to do what is clearly unreasonable or impossible.
THE CONSTITUTIONAL STANDARD
Defendants are correct that the Constitution does not impose a requirement of "optimal" or "good" treatment. "[T]he possibility of better treatment does not necessarily prove that the one provided is unsuitable or inadequate." Rouse v. Cameron, 125 U.S.App.D.C. at 366, 373 F.2d at 457. The patient committed against his will has a constitutional right only to that treatment as is minimally adequate to provide him a reasonable opportunity to be cured or to improve his mental condition. Welsch v. Likins, supra; Wyatt v. Stickney, supra. Essential elements of minimally adequate treatment include a humane physical and psychological treatment environment, sufficient numbers of qualified staff, and an individualized treatment plan for each patient. Watkins v. Davis, supra; Wyatt v. Stickney, supra.
In determining whether the treatment provided patients in the Forensic Unit is constitutionally adequate, this Court is acutely aware that it is ill-equipped to deal with the complex problems of administering the maximum security unit of a state mental hospital. See Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). The courts must give deference in such matters to the solutions of the officials who are trained in the operation of such facilities and are charged with that responsibility, particularly when the problems are medical in nature. Negron v. Preiser, 382 F.Supp. 535 (S.D.N.Y.1974). It has been repeatedly confirmed that the role of the federal courts is not to sit as supervisor or administrator of state-run institutions. E. g., Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). However, it is the duty of this Court to inquire whether the practices or conditions in a particular institution violate constitutional prohibitions or fail to provide what may be constitutionally required. See Procunier v. Martinez,
The Biggs Building contains ten permanent wards for patient residence.
There was much testimony, from both plaintiffs' and defendants' experts, concerning the relation between physical setting and effective treatment of mental illness or retardation. Experts from both sides testified that the immediate physical environment can have a definite effect on patients' psychological conditions.
In the opinion of this Court, many of the factors, especially the psychological factors, contributing to a "humane" environment for the treatment of mental illness or retardation are uniquely within the expertise of those charged with the operation of the Forensic Unit. The important consideration of providing adequate security for the patients and staff is an additional factor that, in many situations, may override the therapeutic interest in a humane treatment environment. With the advice of experts in the field, this Court could devise its own plan which might improve the environment in the Biggs Building and enhance the treatment function by providing more comfortable surroundings. However such an exercise might benefit the patients' living conditions, that is not the Court's constitutional role. Only those conditions which violate a constitutional prohibition or operate to deny a constitutional right are subject to the examination of a federal court.
There was overwhelming evidence that a combination of extreme temperature and high humidity in the Biggs Building causes the patient living areas to be almost unlivable during the late spring and summer months.
Lavatories and Bathrooms
Each lavatory on the patient wards contains from three to five toilet fixtures and generally a corresponding number of sinks. The toilets are without seats and are separated by partitions approximately forty inches high. The partial stall thus created does not completely enclose the toilet, and there is no door to screen the toilet while in use. The bathrooms generally contain three to four showers and/or bathtub. There are no curtains or partitions to provide privacy while bathing. The expert testimony offered by both parties was unanimous in condemning the inadequate privacy afforded by the lavatories and bathrooms in the patient wards. The Court finds that the lavatories and bathrooms in the patient wards, at least with respect to patient privacy, are not minimally adequate.
Seven of the ten permanent wards have sleeping dormitories in addition to individual sleeping rooms. The dormitories are divided into "cubicles" usually containing two beds. The beds are located in close
Furnishings and Personal Belongings
The individual sleeping rooms on eight of the ten permanent wards in the Biggs Building are furnished with only a bed. All clothing is kept in the ward clothing room, where each patient is assigned an open bin for folded clothing and a hanger for his shirt, jacket or coat. Other personal belongings are stored in a small locker in the ward dayroom. The individual sleeping rooms are painted in a variety of colors but are devoid of personal effects, books, pictures, decorations, or any indication of individuality. Except for a bed, each room is completely bare, and, in the words of one of defendants' expert witnesses, appears "very stark."
In marked contrast are the individual sleeping rooms on the remaining two wards.
Plaintiffs' experts testified that the "amenities of civilized living" are necessary to a humane treatment environment. This requires, say the experts, furnishing individual sleeping rooms with at least a bed, a table or desk, and a chair.
At first glance, the matter of furniture appears to be one area in which the Court has no place substituting its judgment for that of defendants. See Bell v. Wolfish, ___ U.S. at ___, 99 S.Ct. 1861, 60 L.Ed.2d 447. However, the testimony and photographic exhibits presented at trial
The furnishing of patient rooms and allowing possession of personal belongings or clothing is an area with serious implications regarding security. The most innocuous furnishing might become a dangerous weapon in the hands of a disturbed patient acting out in an aggressive or suicidal manner. The record in this case is not sufficiently developed to permit a comprehensive solution to the problem.
Plaintiffs contend that there are inadequate numbers of qualified staff in the Forensic Unit to provide minimally adequate treatment. This argument has been directed generally at an alleged inadequacy in numbers of staff, rather than at their qualifications or competency as a group. Experts from both sides of the case testified that the Forensic Unit staff is generally well qualified, competent, hard-working, and dedicated. At trial, plaintiffs offered extensive expert testimony regarding the numbers of staff necessary to carry on the Forensic Unit treatment programs.
This record has been examined with great care. The Court is impressed that the staff of the Forensic Unit performs a difficult task, often with much less than optimal resources. It is an unfortunate fact that the treatment programs established in the Forensic Unit, through no fault of the limited personnel, often do not equal the high professional standards of either the expert witnesses or of the Forensic Unit staff itself. Provision of additional resources to insure a greater opportunity for effective treatment of the mentally ill and retarded patients confined in the Forensic Unit is highly desirable and would be the act of an enlightened legislature. That constitutional role does not fall to this Court.
In Wyatt v. Stickney, 344 F.Supp. at 375, the staff of an Alabama general psychiatric hospital was held to be constitutionally inadequate. The court found that "most staff members were poorly trained and that staffing ratios were so inadequate as to render the administration of effective treatment impossible." The record is clear that that description does not apply to the staff of the Forensic Unit. It is also clear that the staff/patient ratios of the Forensic Unit fall below, some may say significantly below, the recommendations of plaintiffs' experts.
INDIVIDUAL TREATMENT PLANS
The third essential element of minimally adequate treatment is an individualized treatment plan for each patient. Such a plan is not only a treatment tool necessary for the coordination of treatment efforts by many staff members, but also functions as a device to insure that each patient is treated as an individual and is not overlooked or forgotten among the many patients in a large state mental hospital.
The Missouri Department of Mental Health adopted a policy requiring the use of individualized treatment plans in 1975.
Although it is apparent that room exists for improvement in the quality of the individualized treatment plans, the Court finds that the plans in existence are minimally
LEAST RESTRICTIVE ENVIRONMENT
When a patient's treatment team finds that his condition no longer requires confinement for treatment in a maximum security setting, the team makes a recommendation that the patient be transferred from the Biggs Building to the less restrictive environment of the Rehabilitation Unit. Upon that recommendation, the patient is moved to the Biggs Building pre-transfer ward, Ward B-11. Before he is actually transferred to the Rehabilitation Unit from Ward B-11, the patient must have a staffing attended by the hospital Superintendent, Dr. Ritterbusch, who must give his approval to the transfer.
Such confinement is not consistent with due process. Patients are placed in the maximum security section of the Forensic Unit (the Biggs Building) because of their dangerousness. After the treatment staff has determined that that aspect of a patient's behavior is no longer present, there is no constitutional justification for the continued "massive curtailment of liberty" inherent in confinement in the Biggs Building. In Covington v. Harris, 136 U.S.App. D.C. 35, 41, 419 F.2d 617, 623 (1969), the District of Columbia Circuit held that a requirement of the least restrictive alternative was implicit in a District of Columbia commitment statute and stated:
Plaintiffs suggest that the appropriate remedy for this constitutional violation is an order requiring the immediate transfer of those patients who have been approved for transfer from the Biggs Building to the Rehabilitation Unit. Although urgency of remedy is a very important consideration in this matter, the Court is not able to adopt plaintiffs' suggested remedy. Dr. Ritterbusch testified that the Rehabilitation Unit is operating at its patient capacity, even though there are some vacant beds. There is a real danger that the immediate transfer of all patients on the transfer waiting list would cause overcrowding in the Rehabilitation Unit, disrupt on-going treatment, and create a serious security problem. This Court will not impose a remedy that may result in substantial harm to those seeking
VISITATION, TELEPHONE AND MAIL
Visiting hours in the Biggs Building are from 1:00 p. m. to 2:40 p. m. every afternoon. On weekends and holidays a morning visiting period from 9:00 a. m. to 10:45 a. m. is also permitted. Visits may last the entire visiting period unless the visiting room is crowded, in which case visits may be restricted to thirty minutes.
The visiting policy in the Rehabilitation Unit is more liberal, with visiting hours of 9:00 a. m. to 11:00 a. m., 1:00 to 4:00 p. m., and 7:00 to 8:00 p. m. daily. No ex-patients or employees may visit patients without the prior approval of the treatment staff. Children under fourteen may not visit on the wards of the Rehabilitation Unit; families with children must visit in the canteen.
Patients in the Biggs Building may receive incoming telephone calls from their attorneys only if such a call is arranged and approved in advance. Patients may receive no other incoming calls.
Rehabilitation Unit patients have access to pay telephones in the main Administration Building which may be used during patients' pass time.
All outgoing mail from patients in both the Biggs Building and the Rehabilitation Unit may be sealed by the patients and is not screened by Forensic Unit staff in any way.
Plaintiffs challenge certain aspects of the visitation, telephone, and mail policies on the ground that they are unduly restrictive, in many instances counter-therapeutic, and violative of the patients' constitutional rights. As discussed above, this type of institutional regulation is particularly within the province of the Forensic Unit administration, and it is not the constitutional role of the Court to substitute its judgment for that of the state officials responsible for the Forensic Unit, absent a constitutional violation. Defendants argue that none exist.
Plaintiffs were committed to the Forensic Unit to receive treatment in a maximum security setting. Like the pretrial detainees in Bell v. Wolfish, ___ U.S. ___, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), plaintiffs may be legitimately confined and subjected to conditions and restrictions inherent in such confinement, as long as those restrictions do not amount to punishment or are otherwise violative of the Constitution. The restrictions challenged by plaintiffs must be analyzed in terms of the legitimate policies and goals of the Forensic Unit. Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). If restrictions imposed by confinement in the Forensic Unit are not reasonably related to a legitimate government objective, or if such restrictions are excessive in relation to that objective, the resulting deprivation of liberty amounts to punishment and a denial of due process. Bell v. Wolfish, supra.
Defendants justify the restrictions of the Biggs Building visiting policy as necessary security procedures. Although no such justification is urged for the Biggs Building telephone policy, the record reveals that security concerns also may be inherent in telephone use or abuse by patients.
The Court must disagree with plaintiffs' argument that they have an unrestricted right to receive sealed legal mail. Defendants' policy of opening legal mail in the presence of the addressee to inspect for contraband (without reading the correspondence) is reasonably related to the substantial government interest in maintaining the security of the Forensic Unit to protect both patients and staff. Wolff v. McDonnell, 418 U.S. 539, 577, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Court also must disagree with plaintiffs' contention that incoming nonlegal mail may be opened to inspect for contraband only in the presence of the addressee. Defendants' decision to screen nonlegal mail for contraband (correspondence is not read) at a central location, before the mail is brought onto the wards, is within the realm of administrative judgments to which the Court must defer.
SECLUSION AND RESTRAINT
Plaintiffs' contention that there is excessive use of medication to control patient
Seclusion and Physical Restraint
Seclusion is a means of restricting a patient by removing him from social contact and placing him in a locked room. Seclusion in the Forensic Unit involves placing the patient in one of the individual sleeping rooms on the ward, usually furnished with only a bed, and locking the door. During seclusion, the patient is not permitted to wear his clothing, excepting underwear. Restraint is a means of restricting a patient's ability to react physically by temporarily limiting his freedom of body and limb movement by use of physical or mechanical restraints, such as cuffs, straps, mittens or braces.
There was a consensus of expert testimony that the occasional use of seclusion and physical restraints is a necessary and useful treatment device in mental hospitals, especially with the type of dangerous patient housed in the Forensic Unit. However, a medical decision to physically restrain or isolate a mental patient involves no less an extraordinary deprivation of liberty than does the use of punitive isolation in a prison. Negron v. Preiser, 382 F.Supp. 535 (S.D.N.Y.1974). "A protected interest is no less infringed by government action taken for reasons which purport to serve [a] . . . rehabilitative purpose than by government action taken for disciplinary reasons." Davis v. Balson, 461 F.Supp. 842, 876 (N.D.Ohio 1978). In prison, an inmate's fourteenth amendment rights regarding the imposition of punishment, including isolation, are protected by the due process hearing requirements in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The mental patient has no less right to due process regarding the imposition of the very conditions (seclusion or isolation) which would require a due process hearing in a prison context.
As stated above, the range of discretion of state officials is greatest in decisions involving medical judgments. Negron v. Preiser, supra. Moreover, the procedures required to insure due process vary with the nature of the governmental function involved, as well as the private interest affected. Wolff v. McDonnell, supra. A requirement of advance notice and hearing is not at all appropriate to the medical decision to use seclusion or restraints. Such a decision often is made under conditions of emergency, in which an agitated patient presents an immediate danger to himself or others. However, this Court concludes that minimal due process requires at least that the medical decision to utilize physical restraints or seclusion be made in a context designed to protect the patient from an arbitrary deprivation of personal liberty. Negron v. Preiser, supra; Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972).
Defendants' policy regarding seclusion and restraints recognizes the important liberty interests at stake and provides a procedure to guard against arbitrary deprivation.
Plaintiffs take issue, not with defendants' general policy regarding seclusion and restraints described above, but with the practices in the Forensic Unit. Based on their examination of patient records, plaintiffs' experts testified that the twenty minute limit on emergency seclusion is not observed; that there is often no indication that a secluded patient was seen by a doctor; that the time a seclusion began is often not in the record; that seclusion orders are signed without a doctor's examination; that insufficiently qualified staff, such as licensed practical nurses, are able to write seclusion orders; and, perhaps most importantly, that the records often do not indicate the reasons for seclusion, or are stated in such broad and vague terms that after-the-fact review of a decision to seclude is impossible.
The Court concludes that the safeguards of defendants' policies regarding medical decisions to use seclusion or restraints are not adequately carried into practice to afford Forensic Unit patients minimal due process. This conclusion is based primarily on the lack of documentation of patient behavior leading to use of seclusion or restraints and of the reason to justify each incident of seclusion or restraints.
Plaintiffs also argue that seclusion may not be used for disciplinary purposes. Although defendants' policy forbids the use of restraints and seclusion for punishment,
However, if defendants use seclusion as a form of discipline for the violation of institutional rules, in contrast to a medical decision to seclude for some therapeutic purpose,
For purposes of discussing the appropriate remedy, a conference of counsel will be ordered. At such conference, defendants will be required to submit to the Court a plan which will correct, with reasonable dispatch, the constitutional deficiencies noted in this Opinion. No order will issue at this time. Jurisdiction is retained.
Welsch v. Likens, 550 F.2d 1122, 1126 n.6 (8th Cir. 1977).
It is not necessary to reach plaintiffs' eighth amendment claim.
Defendants' policy is not to the contrary.
Missouri Department of Mental Health, Standards, Psychiatric Hospitals and Clinics 114 (Nov. 1, 1975).
Mr. Mangini testified that funds already appropriated by the Missouri legislature include money to convert the sleeping dormitories in the Biggs Building to individual sleeping rooms.
Dr. Terry Brelje testified that the type of patient confined in the Forensic Unit required a total staff/patient ratio of 1.5:1, but that the minimally adequate staffing level would probably yield a total staff/patient ratio of below 1.5:1.
The use of trained psychiatric aides to administer medication is common in state hospitals due to a shortage of professional nursing staff. Testimony of Dr. Jonas Rappeport. If more resources in the form of professional nursing personnel were made available to state mental hospitals, it is likely that the quality of nursing care, including the administration of medication, would improve greatly. However, the Court is unable to find that defendants' policy or practice of using trained psychiatric aides to administer medication involves a constitutional deprivation.
Negron v. Preiser, 382 F.Supp. 535, 542 (S.D.N. Y.1974).
In Davis v. Balson, 461 F.Supp. 842, 877 (N.D. Ohio 1978), the court rejected defendants' attempt to distinguish between deprivations for disciplinary reasons and those made for treatment or therapeutic reasons. The court found as a fact that the deprivations at issue in that case were disciplinary in nature.