O'CONNOR v. DONALDSON

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Argument of Raymond W. Gearey

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Number 74-8, O'Connor against Donaldson.

Mr. Gearey you may proceed whenever you're ready.

Mr. Raymond W. Gearey: Mr. Chief Justice and may it please the Court.

I am Raymond Gearey, Assistant Attorney General of the State of Florida representing the petitioner Dr. O'Connor.

We have here this morning the case of Kenneth Donaldson, a respondent who was involuntarily civilly committed to the Florida State Hospital in early 1957.

He was committed following a hearing before a county court judge where he was found to be mentally ill, a danger to himself and others and at that point was committed to the hospital for care maintenance and treatment that being the language of the Florida statute at that time.

Justice Potter Stewart: Who initiated the commitment proceeding?

That was -- I would --

Mr. Raymond W. Gearey: It was initiated, I believe by his family, his mother and father.

Justice Potter Stewart: Are their parents -- are both with parents?

Mr. Raymond W. Gearey: Who were residents of Pinellas County, Florida.

At the time of his admission among other things, he requested due to his Christian Scientist beliefs that he not be treated with drugs or shock therapy.

Now, throughout his hospitalization those requests were periodically renewed and at times he did actually refuse drug therapy.

In addition, he frequently refused offers of various other forms of therapy when they were indeed offered.

These were non-medical forms therapy such as group therapy, occupational therapy, etcetera.

Chief Justice Warren E. Burger: The court found that he had not been offered if I recall correctly, the jury's finding is that he had not been offered occupational therapy, is that not correct?

Mr. Raymond W. Gearey: Well, Mr. Chief Justice I believe at one time --

Chief Justice Warren E. Burger: If the Court of Appeals to the Fifth Circuit seem to focus on that?

Mr. Raymond W. Gearey: There was some question as to that.

I believe that in actuality it was offered, he accepted for a time and then refused to participate further and I believe on one other occasion when it was offered he said that he would not participate again.

There is some question from time to time as to how he reacted when the therapy was offered and whether the therapy was explained to him at the various forms.

But we believe that many forms of therapy were indeed offered and were knowingly refused by Mr. Donaldson for various reasons.

Chief Justice Warren E. Burger: As you read this record what was the latest date, just the year would be enough to aid me, when he refused to some form of therapy that was offered to him?

Mr. Raymond W. Gearey: Well, he would've --

Chief Justice Warren E. Burger: He was for 15 years, wasn't he?

Mr. Raymond W. Gearey: Yes sir, he was in about 14 years in the hospital.

Now, I believe right up to the end he would've shock therapy towards the end of his confinement, the last two years roughly I believe.

He did begin to agree to accept drug therapy from Dr. Gumanas (ph), who was one of the defendants.

The drug therapy was tried, they felt it had little or no effect upon his illness and it was discontinued but it was not until the last -- approximately two years of his hospitalization that he accepted drug therapy at all.

Now, throughout his hospitalization he was tested and examined several times by the staffs, psychiatrist, psychologist, at some occasions he would refuse to be examined.

But each time until the end when it was agreed he should be released, the conclusion was always the same that Mr. Donaldson was mentally ill and his confinement should continue.

Justice Byron R. White: In that respect Mr. Gearey, how did it come about that he was finally released after these many years?

Mr. Raymond W. Gearey: Well, he received a new attending physician late in 1970 or early 1971 and that attending physician determined that in his judgment Mr. Donaldson was indeed fit to be released from the hospital.

Justice Byron R. White: This is one who succeeded the doctor who is the party then here?

Mr. Raymond W. Gearey: Yes, Dr. O'Connor, the petitioner whom I represent was Mr. Donaldson's attending physician very early in his confinement up until 1958 or 59.

At that time Dr. O'Connor became Clinical Director of the hospital and another doctor took over Mr. Donaldson's care and later Dr. O'Connor became Superintendent of the hospital.

And towards the end, the new attending physician determined that Mr. Donaldson had indeed that improved to the point where he should be returned to society and he was indeed released in mid 1971, I believe it was late July or early August and at that time there had also been a change of administration in the hospital and it was the opinion of the new superintendent based upon the reports given to him by the physicians that Mr. Donaldson should be released.

Justice Byron R. White: I take it that Dr. O'Connor at all times had the power in the Florida system to release him?

Mr. Raymond W. Gearey: Yes sir, he did.

And the record reflects that at all times during his tenure as superintendent, based upon the advice given him by the attending physicians and the consensus of staff conferences that Mr. Donaldson should not be released.

Now, at several staff conferences --

Justice Byron R. White: But he didn't have -- did he have the power to release him unless he arrived at that conclusion that he had progressed sufficiently to be released?

Mr. Raymond W. Gearey: No Mr. Justice White.

I believe Dr. O'Connor stated and the record reflects that he did not believe that he could release Mr. Donaldson until Mr. Donaldson was cured.

Now, there were certain temporary forms of release that were available.

These were such things as trial visits, there was an out-of-state release procedure whereby a man although not restored to his competency and given a final discharge could be released from the hospital for temporally periods of time.

Justice Harry A. Blackmun: Was not that refused here?

Mr. Raymond W. Gearey: Yes Mr. Justice Blackmun it was.

Towards the end at one of the last staff conferences, the consensus was that perhaps Mr. Donaldson should be offered either a trial visit or an out-of-state release, I believe they called it.

They offered him a trial visit with his family and he refused.

And the record reflects that quite accurately.

Justice William H. Rehnquist: Of course this fellow MR. Lembcke in New York tried it for years to get him released.

Mr. Raymond W. Gearey: Yes sir there were two efforts to have Mr. Donaldson released, one, Mr. Lembcke and one the Helping Hands Organization in Minnesota.

Dr. O'Connor testified and the other doctors, the record reflects believed that would've been a disservice to Mr. Donaldson to release him at that point.

They felt him mentally ill and felt that he could not receive adequate supervision from these organizations or from Mr. Lembcke, an individual.

Dr. O'Connor stated that at one point he felt that it would have been a disservice to Mr. Donaldson to have released him.

Justice Byron R. White: What do you mean by adequate supervision?

This record almost shows he didn't have any supervision here at all, did he of his confinement?

Mr. Raymond W. Gearey: He had the supervision and the treatment that was available at the hospital and to which he would submit.

They believed, he didn't need supervision of the form offered at the hospital was not available from an individual on the outside.

Dr. O'Connor firmly believed that Mr. Donaldson remained mentally ill and that is really the basis of his refusals.

Justice Byron R. White: Incidentally, is it agreed on the part of the state and the appellants here that Mr. Donaldson was not dangerous, either to himself or to others.

Mr. Raymond W. Gearey: Well, there was some questions as to that.

Now when he was committed the forms stated that he was considered dangerous to himself and to others.

In 1965, Mr. Donaldson had been conducting a letter writing campaign with public officials protesting his hospitalization.

A member of the legislature became concerned and requested an outside opinion.

A doctor was brought in from Jacksonville who'd never met Mr. Donaldson before and no contact with his case prior to that time, and his opinion was that Mr. Donaldson was mentally ill and indeed dangerous.

There were some on the staff who believed in dangerous.

There were some who did not.

Justice William H. Rehnquist: Aren't you bound by the jury's verdict to a certain extent on that.

Didn't the district judge charge that in order for them to recover they would have to find he was not dangerous?

Mr. Raymond W. Gearey: Yes sir, to some extent we are, there was a charge to that offend.

Justice William H. Rehnquist: To what extent aren't you bound by it?

Mr. Raymond W. Gearey: Well, I think we would have to say we were bound by jury's finding on that regard as they were instructed to that effect.

Now, as I said several times, the matter was brought up to staff conference and the consensus was and the support Dr. O'Connor relied upon that Mr. Donaldson did remain mentally ill and should be hospitalized.

Now, throughout his hospitalization, Mr. Donaldson brought some 14 or 15 suits seeking release, challenging the quality of his treatment and these was brought in the state courts and lower federal courts and all were fairly summarily dismissed.

Four of them reached this Court and certiorari was denied.

This particular suit --

Justice Byron R. White: They submitted all of those habeas applications incidentally, all of them?

Mr. Raymond W. Gearey: Not all of them are cited in the brief.

We did mention the four that reached this Court and I believe one or two that reached the Florida Supreme Court.

Justice Byron R. White: I for one would appreciate it, if you could supply information as to those -- their citations, at least their case numbers if they are not reported.

Mr. Raymond W. Gearey: Cetainly Sir.

Justice Byron R. White: At your convenience.

Justice Lewis F. Powell: Were there evidentiary hearings in any of those habeas corpus proceedings?

Mr. Raymond W. Gearey: Mr. Justice Powell I'm not certain.

We have very little knowledge of what did go on in those cases.

I do not believe there were any substantial evidentiary hearings held in any of those cases.

But that would be have -- that would have to be something we would have to further research and the information wasn't available to us at the time we submitted the case to you.

But I would -- I think I could safely say that the evidentiary hearings were not held.

Justice Lewis F. Powell: Were there any opinions written by district judges in any of those cases?

Mr. Raymond W. Gearey: Not to my knowledge.

I believe there were just summary dismissals for lack of -- a case of controversy or lack of a cause of action.

Justice Lewis F. Powell: While I have you interrupted, would you summarize briefly the procedure that took place at the time of respondent's commitment, what did Florida law then require?

Mr. Raymond W. Gearey: Okay, under the Florida Law in 1957, the law required a petition on behalf of a number of citizens that they felt -- a particular individual needed -- who was mentally ill needed care.

The due process procedures which were present were a notice, a hearing, an opportunity to be heard at the hearing on all relevant evidence.

Justice Lewis F. Powell: Hearing before whom?

Mr. Raymond W. Gearey: Before a county court judge.

It was a judicial hearing in all respects and the subject, the patient of the -- subject of the petition had the right to counsel or appointed counsel and there were provisions in the statute for the indigents who could not supply witness fees or other related fees, the state would waive those.

And so, we believe it was a full hearing with full due process.

Now, that's one element of what really goes into this alleged right to treatment which I will begin into shortly.

But to summarize it briefly, he received full due process, a notice, hearing, witnesses, counsel if desired and there was expert testimony from the two physicians.

Justice Lewis F. Powell: Is the record of that hearing included in the record of this case?

Mr. Raymond W. Gearey: No sir, it is not.

The petitions that were filled at the time our part of the record.

I don't believe that a transcript or copy of the hearing is a part of the record in this case.

Justice Lewis F. Powell: And just one more question along these lines.

Has there been provision under Florida Law that would have enabled the respondent to petition on his own motion within the state procedure for release or was habeas his only legal remedy?

Mr. Raymond W. Gearey: I believe release was available on petition from the patient.

Justice Lewis F. Powell: Do you say you believe is the --

Mr. Raymond W. Gearey: Yes sir, I believe under the statutes at that time there were several ways the patient could receive release and a petition from the patient was one of them.

If he felt he was cured he could petition for a release and a hearing would apparently have been held.

Justice Lewis F. Powell: A petition to court?

Mr. Raymond W. Gearey: Yes, I believe he would have petitioned the court which had committed him originally.

Justice Lewis F. Powell: Was any such petition filed by respondent?

Mr. Raymond W. Gearey: No sir, not into this case that I'm aware off.

Justice Lewis F. Powell: But could you say that petition would have the burden approving that he had been cured before petition could prevail?

Mr. Raymond W. Gearey: Under the 1957 law -- I feel the burden probably would have been on the patient to have shown that he was cured.

Justice Lewis F. Powell: He was cured?

Mr. Raymond W. Gearey: Yes sir.

Justice Potter Stewart: This is a situation where in fact he had no treatment isn't it?

Mr. Raymond W. Gearey: Well, I -- that's really the question here whether there had been treatment and of course we submit that there was treatment.

Justice Potter Stewart: Incidentally a due process hearing which you just described, was that at the time the initial commitment?

Mr. Raymond W. Gearey: Yes it was sir.

Justice Potter Stewart: And there's been none -- no other state proceeding, comparable state proceeding set?

Mr. Raymond W. Gearey: No, there was none.

Justice Harry A. Blackmun: According to your statement to the case on page four of your brief, he could have been released upon his applications if there were no objection from the head of the hospital, that's the way I read it.

Mr. Raymond W. Gearey: That's correct.

Justice Harry A. Blackmun: That is just his application I suppose to the hospital itself.

Mr. Raymond W. Gearey: Yes, I expect --

Justice Harry A. Blackmun: Would be released if there were no objection.

That's why you summarized it, the then law of Florida.

Mr. Raymond W. Gearey: Right.

Justice Harry A. Blackmun: And then an alternative way of release is even without a petition from anybody, if three members of the hospital certified that he -- to a restoration of mental competency.

Mr. Raymond W. Gearey: Yes, that's correct.

Now, this suit --

Chief Justice Warren E. Burger: Then I take it that you --

Mr. Raymond W. Gearey: Yes sir.

Chief Justice Warren E. Burger: And I take it, the issue of dangerousness would not be involved in that except as it might bear indirectly, collaterally on whether he had recovered.

Mr. Raymond W. Gearey: That's correct.

Chief Justice Warren E. Burger: If he showed that he was not dangerous that wouldn't be enough to bring about his release?

Mr. Raymond W. Gearey: I don't believe it would have been under that procedure.

If it had been shown at that time under the 57th statute that he was still in need of treatment with or without dangerousness, I believe he may have still been retained at the hospital.

Florida Law has drastically changed since the 57 procedure and I will mention briefly later that under our new law no patient is really kept more than six months without a repeat hearing and that we do recognize now a statutory right to treatment.

Justice Potter Stewart: Is that automatic that is without any initiation on his part of that hearing?

Mr. Raymond W. Gearey: That's correct, after six months every patient is reviewed.

Justice Potter Stewart: And where is that hearing?

Mr. Raymond W. Gearey: Pardon?

Justice Potter Stewart: Where is that hearing?

Mr. Raymond W. Gearey: That's conducted at the hospital before a hearing examiner.

And at that point unless it can be shown that he in need of further in-institution treatment he must be released either to a community program or released entirely.

Justice Potter Stewart: And if he is not released, is that determination subject to judicial review?

Mr. Raymond W. Gearey: Yes sir, it would be and in addition he would again be reviewed periodically.

It's a periodic process with regular review.

Chief Justice Warren E. Burger: Is hearing officers neutral officer from the outside, is he?

Mr. Raymond W. Gearey: Yes sir, he is.

Chief Justice Warren E. Burger: Something like the hearing examiners in the federal system.

Mr. Raymond W. Gearey: Yes.

At this present time we have one hearing examiner who handles this particular institution.

He is employed by the state.

But --

Chief Justice Warren E. Burger: He's not part of the hospital staff?

Mr. Raymond W. Gearey: Oh!

No.

Not at all.

Unknown Speaker: To whom does he report?

Mr. Raymond W. Gearey: He reports to -- to relate it to the Department of Health and Rehabilitative Services that supervises the hospital but has proven to be a very much an adversary process.

The hearing examiner has shown himself to be quite independent of the state.

Now, this suit was instituted somewhat before Mr. Donaldson was released and originally sought release and damages for his confinement allegedly without treatment.

After his release the action was converted to a Civil Rights suit eventually seeking damages from several physicians who had treated him and the superintendents of the hospital.

The case went to trial and the jury returned a verdict of $38,000 against two of the physicians, Dr. O'Connor and Dr. Gumanas (ph).

The Court of Appeals affirmed and the petition for a writ of certiorari was brought to this Court and granted.

Now on constitutional right to treatment which is our first issue, we want -- State of Florida wants to make it clear that we agree that persons involuntarily civilly committed to state metal institutions have a right to be treated.

In Florida this is handled by a statute.

However, we are concerned for the theory of a constitutional right.

There is no expressed constitutional right to treatment.

As such we recognized that if there is one it should flow from the Due Process Clause of the Fourteenth Amendment.

Florida would not willingly transform hospitals into jails.

The Court of Appeals for the Fifth Circuit held that there is indeed a constitutional right to treatment flowing from the Due Process Clause of the Fourteenth Amendment.

The Court said that and really nothing more.

There are not guidelines to guide the federal judiciary and the enforcement of this right and this is where we feel the important problem comes and this is where the idea breaks down.

We accept and we agree with this Court's statement in Jackson versus Indiana that the nature and duration of confinement must bear some reasonable relationship to the purpose for which the person is committed.

Now, our problem with the constitutional right to treatment is what is treatment and how do we measure it.

Mr. Donaldson was committed for treatment.

It was the state's position throughout this that he receives such treatment as was available and to which he would submit.

However, we do quarrel with the ruling of the Fifth Circuit for what we consider to be important issues.

Examination of due process requires more than looking at the quality and quantity of treatment.

You first have to examine the due process received in the commitment procedures which we've just briefly outlined here.

And then you have to get to this, the important step of judging the quality and quantity of the treatment and thus far, we have a lack of meaningful guidelines to enforce this right, a right incapable of enforcement to us cannot truly be a right.

From 1957 to 1971 there were no judicial statements that a constitutional right to treatment existed and there were certainly no guidelines to measure that right and there are none now.

And we seriously question whether the federal judiciary is adequately equipped without more in the way of guidelines to sit down and examine a patients' treatment program and adequately pick and choose among dozens of treatment therapies and program plans.

But quite seriously the State of Florida is --

Chief Justice Warren E. Burger: Well, so far as the states of patients in the State of Florida are concerned, are there now guidelines in your view in the Florida statute in the new statute?

Mr. Raymond W. Gearey: Under the review in the new statute, hearing examiner examines to the extent of whether the treatment being received is reasonably designed to accomplish the purpose.

He doesn't get in to the specifics that were implied in this case.

It's a general review of the treatment being received.

If he finds that no treatment is being received, the patient is no longer hospitalized certainly.

Chief Justice Warren E. Burger: But if the finding of the hearing examiner is adverse to the patient he may then go to the Florida Courts?

Mr. Raymond W. Gearey: The patient?

Chief Justice Warren E. Burger: Yes.

Mr. Raymond W. Gearey: Yes sir.

Chief Justice Warren E. Burger: An appeal, he may ask for a review of the hearing examiner's determination, is that correct?

Mr. Raymond W. Gearey: Yes Mr. Chief Justice that is.

Now, the hearing examiner examines that the treatment to the extent that whether the physicians have made a permissible decision in their treatment plans.

He does not get to the specifics.

And now, we are haunted by the inspector of federal courts ordering a particular plan.

As we stated in our brief there have been cases that have been brought in the federal courts, criminal cases where a judge has found a man to be possibly unfit to stand trial for reasons of insanity.

He would have the man examined by two eminent qualified psychiatrists who would indeed agree this man should not stand trial at this time, he needs care and treatment.

The judge would then say what treatment should he have?

One eminent psychiatrist would say, “Well, he should be treated in a more physical way, a more medicinal way with drugs and various forms of medicinal therapy.”

The other would say, “No, no, he should be treated as more psychiatric, psychological approach without the drugs and medicinal therapies.”

Justice William H. Rehnquist: I can't see why you can't really limit your discussion of the case to the particular facts before us.

There're obviously broader issues involved but a case like you mentioned for that that man could reasonably be found dangerous, I would think.

Mr. Raymond W. Gearey: Yes sir.

Justice William H. Rehnquist: And therefore really not within the ambit of the Fifth Circuit's opinion in this case.

Mr. Raymond W. Gearey: Well, Mr. Justice Rehnquist, no, a criminal defendant would not be within the ambit of the Fifth Circuit's decision but I think that's very in -- the problem of the judge is very analogous where he is presented with the two psychiatrists who disagree and want to propose treatment programs should be to ensure that the man receives the treatment he deserves.

And this is what bothers us, are we going to have federal judiciary saying, “Yes sir, it is the right to treatment but not giving us the guidelines to enforce it.”

Now --

Justice William H. Rehnquist: But of course Florida has apparently elected to say that a man who was competently at least by this jury's definition and not dangerous to himself and not dangerous to others can nonetheless be virtually, totally deprived of his liberty and the expectation I suppose is what he gets in return, its some form of treatment.

Does it seem fair to you that the state entirely renege on each side of the thing?

Mr. Raymond W. Gearey: No sir it doesn't and we do believe that we are offering the treatment that we do indeed promise.

Now the burning issue in this as far as the guidelines is that at the time of Mr. Donaldson's hospitalization.

There were no guidelines.

There was no right and yet in 1971 the right was enforced retroactively.

Back to 1957 and resulted in personal liability, Dr. O'Connor had before him a man judicially committed.

His decision to release Mr. Donaldson is a quasi-judicial decision.

Now we skipped to the liability question here but we don't believe that under those circumstances, Dr. O'Connor should have been held liable for making that decision.

Justice William H. Rehnquist: One could reach that result quite apart from the existence of a right to treatment.

Or anyone could hold there was a right to treatment and still -- because of some application of a privilege doctrine, say that this particular defendant shouldn't have been liable here, I suppose.

Mr. Raymond W. Gearey: Certainly, certainly.

Our point is that as far as a right to treatment goes, that point to the State of Florida, not Dr. O'Connor is moot prospectively.

If there is going to be a constitutional right to treatment though the states -- and this is a broad issue among many states.

Need some sort of guidelines, without those guidelines we deny the existence of the right as un-enforceful.

Justice Byron R. White: Are you representing a state here or hospital or Dr. O'Connor, who are you representing?

Mr. Raymond W. Gearey: Well Mr. Justice White I represent in a way both the state and Dr. O'Connor.

Justice Byron R. White: Well does Dr. O'Connor have separate counsel?

Mr. Raymond W. Gearey: No sir, he does not.

Justice Byron R. White: Well is the state paying the bill for him?

Mr. Raymond W. Gearey: We are paying the bill for his representation, however the --

Justice Byron R. White: How about the damages?

Mr. Raymond W. Gearey: No.

There's no provision under Florida Law at that time for the payment of damages.

These are personal damages under the Civil Rights Act.

Justice Byron R. White: Did he have separate representation at the trial?

Mr. Raymond W. Gearey: No he did not.

He was represented by a state counsel.

We represent Dr. O'Connor and in his capacity as a former state employee --

Justice Byron R. White: Would you -- I haven't seen anything in your brief or haven't heard anything here as to whether in this specific trial Dr. O'Connor was properly charged with damages even conceding some constitutional right for treatment.

For example, have you preserved any objections to the instructions that the trial court gave, other than perhaps some blanket objection to an assertion that there's a constitutional right to damages?

Mr. Raymond W. Gearey: Yes.

Objections were made to the instructions.

One in particular, that troubles us --

Justice Byron R. White: Well, let me ask, if you preserved it?

Mr. Raymond W. Gearey: Yes we have.

I believe that --

Justice Byron R. White: Well, where is it in your petition for certiorari or in your brief?

Mr. Raymond W. Gearey: Oh!

I think it's implied in there that that's what we're arguing about is the way this case was presented to the jury by the District Court.

A good faith instruction was given that said good faith is a defense but it is not a defense.

Justice Byron R. White: How about the definition of the Constitutional Right to treatment?

Mr. Raymond W. Gearey: Well --

Justice Byron R. White: That was given to the jury?

Mr. Raymond W. Gearey: That's the point we've argued about through the Fifth Circuit to this Court.

Justice Byron R. White: (Voice Overlap) You've argued about whether there is one but how about if there is one, what should it consist?

Mr. Raymond W. Gearey: Well, that's a point that we haven't raised in the brief.

We don't know -- (Voice Overlap)

Justice Byron R. White: We know very well that that may vary -- if the Fifth Circuit or the District Court was wrong in defining it, it might -- Dr. O'Connor might not have to pay damages.

Mr. Raymond W. Gearey: That's correct.

Now, we don't know how it should be defined and that's a problem--

Justice Byron R. White: That must have some idea --

Mr. Raymond W. Gearey: Well --

Justice Byron R. White: That's what this case is all about.

Mr. Raymond W. Gearey: Yes sir we do.

We feel that the courts have given the states due process guidelines in areas such as parole revocation, criminal trials and this is something similar when the right is announced, guidelines should be announced at that time in order to aid the states in the enforcement of the right.

We believe that as the Fifth Circuit ruled, it's unenforceable.

Justice Byron R. White: I don't blame the state for being interested in (Inaudible) but Dr. O'Connor has a particular problem here.

He's got a -- it's this law suit that -- I would suppose it interest him as much as any.

Mr. Raymond W. Gearey: Certainly.

Justice Byron R. White: And both of them are stuck with some damages.

Mr. Raymond W. Gearey: Yes sir.

Justice Byron R. White: Suppose you would argue this case and whether the -- the awarded damages was proper in this case.

Mr. Raymond W. Gearey: Oh!

We've argued that.

In this case, it certainly was not.

It results in a retroactive application of a brand new doctrine.

Chief Justice Warren E. Burger: Well, can this kind of a case happen again in Florida if Florida enforces its statute?

Mr. Raymond W. Gearey: I don't believe it could, no.

Chief Justice Warren E. Burger: Did the trial judge here give an instruction in terms of the existence of a constitutional right or did he instruct the jury merely that there was a right without defining what kind of a right?

Mr. Raymond W. Gearey: No.

He gave an instruction stating that there was indeed a constitutional right.

And this is the point that to us is basic, essential error.

Justice Byron R. White: Let me ask you, let's assume for the moment there is one, assume you lose on your assertion that there is none.

Then do you agree that with this instruction that the trial court gave, you're instructed that a person who is involuntarily, civilly committed to a mental hospital does have a constitutional right to receive such treatment as will give him a realistic opportunity to be cured or to improve his mental condition.

And that was the instruction.

Assume there is a constitutional right, do you agree with that, reversion of that?

Mr. Raymond W. Gearey: We would agree with that.

But our disagreement with that in this case --

Justice Byron R. White: You assume then that a state violates its duty unless it offers treatment that will give him a realistic opportunity to be cured or to improve his mental condition.

Mr. Raymond W. Gearey: The state violates its duty if it doesn't give him such treatment as it has promised him to make him well.

The problem in this case however --

Justice Byron R. White: Oh!

Is that assumed that in every case there is a realistic opportunity to be cured?

Mr. Raymond W. Gearey: Oh!

No, no, not at all.

Well if the --

Chief Justice Warren E. Burger: Isn't it limited to available cures?

Justice Byron R. White: That's the way it sounds, this instruction.

Mr. Raymond W. Gearey: It's limited to available cures that are available within the state system.

Certainly the state should make available all cures possible.

However, there are some illnesses which virtually cannot be cured.

There are others which not --

Justice Byron R. White: Well, how can you agree with this instruction then?

Mr. Raymond W. Gearey: Well, we don't agree with it in this case.

We agree with it in the case where it has been shown that when a man has a disorder that can be reasonably cured by therapy.

Justice Byron R. White: Well, this particular case happens to be the one in which this instruction was given.

Mr. Raymond W. Gearey: Yes sir.

Now, the problem with it in this case is, that instruction assumes the existing, the existence of the right to treatment and our point is, yes, there may be a right to treatment now.

But in 1957 to 71, there was none.

And so it's wrong.

Justice Byron R. White: I understand that.

But I want to find out if you agree with this version, this rendition of the right to treatment, if there is one, as this trial court instructed the jury.

Do you agree with that or not?

Mr. Raymond W. Gearey: If there is one, if there is one prospectively, I think we could agree with that, yes sir.

Justice Byron R. White: Well, what about the case where you -- in which as you suggest there might not be any realistic opportunity to be cured?

Mr. Raymond W. Gearey: Well, that would raise a problem.

It's not considered by that instruction.

Justice Byron R. White: Well, do you think this case might be one of those or not?

Mr. Raymond W. Gearey: I don't think that on the record we could say that there was no hope of curing Mr. Donaldson.

There is some question as far as his disease goes as to whether even a one to one doctor-patient relationship would have any effect.

The outcome seems to be more disorder, the disease than the type or amount of treatment.

Justice William H. Rehnquist: Well, if that's the case, what's the justification for Florida's confining and if he wasn't dangerous to himself, wasn't dangerous to others and was competent if there is virtually no possibility of curing him?

Justice Byron R. White: Well, the justification originally rested upon dangerousness.

Justice William H. Rehnquist: It did --

Mr. Raymond W. Gearey: If he was -- excuse me.

Justice William H. Rehnquist: In this case it did originally rest upon (Voice Overlap) --

Mr. Raymond W. Gearey: There was a finding in the commitment papers that he was dangerous to himself and to others.

There was conflicting testimony at trial as to the opinion of the psychiatrist as to whether he was indeed dangerous.

Now in '65, the outside psychiatrist said, “Yes, he is dangerous.”

Other doctors said, “No, he isn't.”

And of course that's a matter for psychiatric opinion.

Thank you.

Justice Potter Stewart: Or in this case, it was a matter for the jury, wasn't it?

Mr. Raymond W. Gearey: Well, in this case, yes sir.

The psychiatric opinion was conflicting and it went to the jury.

Apparently the jury resolved it in favor of Mr. Donaldson.

Justice Potter Stewart: Not only apparently, they did, did they not?

Mr. Raymond W. Gearey: Yes.

I think we'd have to assume that.

Chief Justice Warren E. Burger: They had to do it or they couldn't have reached that verdict under these instructions.

Mr. Raymond W. Gearey: No, they couldn't have.

Chief Justice Warren E. Burger: Mr. Ennis.

Argument of Bruce J. Ennis, Jr.

Mr. Bruce J. Ennis, Jr.: Mr. Chief Justice, may it please the Court.

Petitioner's arguments largely ignore the narrow due process theory under which this case was tried and submitted to the jury.

This case involves only the application in a civil commitment context of the due process rule this Court applied in Jackson versus Indiana that the nature and duration of a deprivation of liberty must bear a reasonable relation to the purpose for that deprivation.

Specifically, under the instructions in this case, petitioner was not held liable because he failed or was unable to treat respondent.

He was held liable because he failed and refused to release respondent even though he knew that respondent was confined expressly for the purpose of receiving treatment and knew that respondent was receiving no treatment and was receiving instead only the custodial care he would have received in a prison.

Chief Justice Warren E. Burger: What is your view as to whether the new Florida statute would give to the patients, all the protection they need, assuming first that it's enforced and applied not ignored.

Mr. Bruce J. Ennis, Jr.: Mr. Chief Justice I believe that the new Florida statute is in many respects more comprehensive than the constitutional right we are urging in this case and I think properly so.

Chief Justice Warren E. Burger: Because it's an automatic review every six months, is that correct?

Mr. Bruce J. Ennis, Jr.: That is correct Your Honor.

Chief Justice Warren E. Burger: So that at most, there is the opportunity to demonstrate capacity to be released or the propriety of release with great frequency.

Mr. Bruce J. Ennis, Jr.: That is correct Your Honor.

Chief Justice Warren E. Burger: When you say that it's more comprehensive, I take it, then you mean that it's better than the undefined constitutional right postulated by the Fifth Circuit.

Mr. Bruce J. Ennis, Jr.: Your Honor, let me address that point.

If there is a right to treatment, surely there must be a right to something other than sham treatment.

Hospitals could not simply chain patients to their beds and call back treatment.

Therefore I think that the Fifth Circuit was quite correct as a matter of law in ruling that if there is a right to treatment, it necessarily follows that the treatment provided must give a reasonable opportunity as the Fifth Circuit raised it to cure or improve the patient's condition.

Justice Byron R. White: Well now, you might say that at least they ought to offer such treatment, opportunities are reasonably available within the arc.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

Justice Byron R. White: But even though that might not give a realistic opportunity to be cured, I take it there are some conditions that aren't thought to be curable.

Mr. Bruce J. Ennis, Jr.: That may be Your Honor.

Under the instructions in this case however, this case was limited to the case of a person who was not dangerous either to himself or others.

And therefore, if it turned out that with the provision of whatever treatment could be provided, his condition could not be improved.

Then the question would arise as Mr. Justice Rehnquist asked.

Justice Byron R. White: The instructions didn't though allow for any case like that.

Apparently, the state didn't object to those instructions that apparently accepted this case as not being one, where treatment wouldn't have any chance at all.

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

They did not contend in this case that treatment would be unavailing if offered.

Justice Byron R. White: Yes.

Mr. Bruce J. Ennis, Jr.: Now, let me continue to point out that under the instructions in this particular case --

Justice Byron R. White: So that if you would run into a case like that, perhaps this particular formulation of the right to treatment might have to be monitory.

Mr. Bruce J. Ennis, Jr.: That may be Your Honor.

We tried to stress in our brief that this is in fact a very narrow case in very narrow circumstances and those other, perhaps more difficult questions are not presently before the court.

I wish to point out also --

Justice Byron R. White: You're suggesting I take it that this case should be narrowly decided?

Mr. Bruce J. Ennis, Jr.: Yes Your Honor, we are.

Justice Byron R. White: And the court should not try to range for a field on this other -- what you called difficult question?

Mr. Bruce J. Ennis, Jr.: I think that's correct Your Honor.

In fact I believe that what counsel for petitioner is asking for is in effect an advisory opinion from the court to guide future cases.

I do not think that is required here.

I think --

Chief Justice Warren E. Burger: Given the Florida statute, he really doesn't need it, does he?

Mr. Bruce J. Ennis, Jr.: That's right Your Honor, absolutely right.

The Florida statute itself could give the content for the nature of the right to treatment in future cases.

But more than that, let me point this out, I received only this morning, a letter from the Solicitor General of the United States confirming that the United States takes the position that patients involuntarily confined do have a right to receive a reasonable opportunity for cure or improvement.

That is the language from the Fifth Circuit's decision in Wyatt versus Aderbolt which was --

Chief Justice Warren E. Burger: I think that comports with the instruction given by the trial judge here?

Mr. Bruce J. Ennis, Jr.: Absolutely Your Honor, absolutely.

That is the position of the United States.

It is also the position of all of the relevant professional organizations.

Chief Justice Warren E. Burger: But first, did the Solicitor General say a constitutional right?

Mr. Bruce J. Ennis, Jr.: Yes Your Honor.

Yes he does.

Chief Justice Warren E. Burger: And did he take into account the language of the charged that has to do with -- I've forgotten the precise words, Mr. Justice White focused on a few moments ago, all treatment, not treatment that's available, you are instructed that person who is involuntarily, civilly committed does have a constitutional right to receive such treatment as you will give him as will give him a realistic opportunity to be cured.

Now, does that take into account that instruction that there may be no treatment then known that will give a realistic opportunity?

Mr. Bruce J. Ennis, Jr.: Yes it does Your Honor.

But first let me answer your specific question.

The letter I received this morning from the Solicitor General.

Justice Byron R. White: Well, what does that got to do with this case?

Is it filed here?

Mr. Bruce J. Ennis, Jr.: Yes Your Honor.

It was -- as I understand it, submitted to the clerk with the request that it'd be submitted.

It is in effect an amicus by the Solicitor General.

Justice Byron R. White: Let me have it.

Is this some request?

Mr. Bruce J. Ennis, Jr.: No Your Honor.

The point is this, the United States is participating as plaintiff or as amicus in many so called right to treatment cases around the country.

Justice Potter Stewart: Well, I know, but the Solicitor General says that he is filing in as much as your brief characterizes the actions and the position and United States suspecting involuntarily confined mental patients, right to treatment I believe a appropriate device in the court more fully.

Mr. Bruce J. Ennis, Jr.: That's correct.

Justice Potter Stewart: It's prompted by what you said in your brief about what the United States does.

Mr. Bruce J. Ennis, Jr.: That's correct.

Justice Potter Stewart: Yes.

Mr. Bruce J. Ennis, Jr.: Let me point out one fact that I think is very important in this case.

The jury found that the petitioner continued to confine respondent even though he knew that respondent was not dangerous to himself or to others and even though he knew that respondent was not receiving any treatment.

Most important, the jury found that petitioner confined respondent even though he knew that continued confinement under those circumstances was not lawful.

Because of that jury finding, it seems to us that there is and can be no issue of retroactivity in this case.

The jury found as a fact that the petitioner knew that his acts were unlawful.

Justice Potter Stewart: But that doesn't -- he knew perhaps they're unlawful under the statutory tests than in effect in Florida, doesn't mean he knew that he was depriving anybody of any federal rights.

Mr. Bruce J. Ennis, Jr.: But Your Honor, I think the answer to that question can be found in --

Justice Potter Stewart: That wasn't in --

Mr. Bruce J. Ennis, Jr.: -- Monroe versus Pape I believe where this Court indicated that under Section 1983, proof of a specific intent to deprive a person of a constitutional right is not required.

All that is required is proof to deprive a person of some liberty which in fact is an unconstitutional deprivation of liberty.

Justice Potter Stewart: Which in fact is a violation of federal law.

Mr. Bruce J. Ennis, Jr.: That's right.

Justice Potter Stewart: Constitutional or statutory.

Mr. Bruce J. Ennis, Jr.: Monroe v. Pape, this Court said that if a man is held responsible for the natural consequences of his acts.

But in this case, it's even easier than that because in this case the jury went further and expressly found that the acts of the petitioner were not only bad faith but actually amounted to malice and wanton and oppressive conduct for a respondent.

Justice Potter Stewart: Well, what exactly do you rely on for stating that the jury must be found that he knew that his acts were unlawful?

Mr. Bruce J. Ennis, Jr.: Your Honor, I believe that that instruction is quoted at page 74 of our brief.

The judge instructed the jury that if the jury should believe from a preponderance of the evidence that the defendants reasonably believed in good faith that detention of plaintiff was proper for the length of time he was so confined, then a verdict for defendant should be entered even though the jury may find the detention to have been unlawful.

However, mere good intentions which do not give rise to a reasonable belief that detention is lawfully required cannot justify plaintiff's confinement in the Florida State Hospital.

Read together, that instruction authorized the jury to return a verdict for the petitioner, if they believed that the petitioner reasonably believed that respondent's continued confinement was legally proper even if the fact it was not.

Justice William H. Rehnquist: The instruction doesn't say legally proper, it just says proper so it doesn't really draw the distinction that they believed in good faith that it was lawful but in fact it turned out not to have been lawful.

Mr. Bruce J. Ennis, Jr.: Your Honor --

Justice William H. Rehnquist: Maybe that's not preserved by objection.

Mr. Bruce J. Ennis, Jr.: I'm reading these two instructions together, the first of which says proper and the second of which in elaboration, talks about lawfully required.

Justice Byron R. White: And it also -- and it also doesn't particularly confer to any federal lawful --

Mr. Bruce J. Ennis, Jr.: No it does not Your Honor.

That is --

Justice Byron R. White: And we're dealing here with a --

Mr. Bruce J. Ennis, Jr.: Yes Your Honor.

And that is contained in our brief at pages 39 and 40, the instruction --

Justice Byron R. White: Where is that?

Mr. Bruce J. Ennis, Jr.: Pages 39 and 40 of respondent's brief containing the instruction relevant to that point.

There, the judge instructed the jury that in order to prove his Civil Rights Act case under Section 1983, the plaintiff had to prove by a preponderance of the evidence that the petitioner confined plaintiff against his will knowing that he was not mentally ill or dangerous or knowing that if mentally ill, he was not receiving treatment.

Justice Byron R. White: Now you wouldn't defend that instruction standing by itself, would you?

Mr. Bruce J. Ennis, Jr.: I'm sorry.

I don't quite understand your question Your Honor.

Justice Byron R. White: Well, do you think that was a proper instruction standing by itself?

Mr. Bruce J. Ennis, Jr.: I think this is certainly a proper instruction.

Justice Byron R. White: Well, here's what the jury could've found -- could've based liability on, if the doctor simply knew that the patient was mentally ill and that he was not receiving treatment.

Mr. Bruce J. Ennis, Jr.: Your Honor I think --

Justice Byron R. White: Now you wouldn't suggest that that is the definition of the constitutional right to treatment?

Let's assume for example that he was dangerous.

Mr. Bruce J. Ennis, Jr.: Yes.

Under the instructions in this case which are later amplified by the judge --

Justice Byron R. White: Well, I asked you about this instructions standing alone.

That is not an adequate instruction, is it?

Mr. Bruce J. Ennis, Jr.: I think there's nothing improper about this instruction.

Justice Byron R. White: Well, if the jury could've found that simply could've based liability simply on finding that he was ill and not receiving treatment without regard to dangerousness either to himself or others.

Mr. Bruce J. Ennis, Jr.: If that instruction were read alone, you're correct Your Honor.

Justice Byron R. White: Well, that's what I asked.

Mr. Bruce J. Ennis, Jr.: I'm sorry.

I did not understand your question.

Justice Byron R. White: Where is it corrected?

Mr. Bruce J. Ennis, Jr.: It is then corrected if you'll look on the next page of respondents brief as the court elaborates, page 40 of respondent's brief.

The court goes on to say that the purpose of involuntary hospitalization is treatment and not mere custodial care or punishment if a patient is not a danger to himself or others and then says without such treatment there is no justification from a constitutional stand point for a continued confinement unless you should also find that the plaintiff was dangerous either to himself or to others.

Justice Byron R. White: Now you don't defend that prior instruction standing alone?

Mr. Bruce J. Ennis, Jr.: I think all the instruction certainly have to be read together Your Honor.

I found nothing improper in the initial instruction but I think as amplified in the later instructions, it was quite clear that the jury --

Justice Byron R. White: Well, for example, assuming then, a patient is dangerous to himself or others, then what is your position with respect to the constitutional right to treatment?

Mr. Bruce J. Ennis, Jr.: Your Honor, our position would be as follows, although that question does not arise in this case.

Justice Byron R. White: Because of the way he amplified his --

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

But our position would be as follows, we would contend that all persons confined under non-criminal standards and procedures whether dangerous or not would have a constitutional right to receive that treatment which would give them a reasonable opportunity to cure or improve their mental condition.

Justice William H. Rehnquist: Do you mean that that man was found --

Chief Justice Warren E. Burger: This was such then available?

Mr. Bruce J. Ennis, Jr.: That's correct Your Honor.

Chief Justice Warren E. Burger: Well, but --

Justice William H. Rehnquist: You mean if somebody is found not guilty of first degree murder by a reason of insanity and that he can petition for a federal habeas corpus and be released if he can prove that he is not really receiving satisfactory treatment.

Mr. Bruce J. Ennis, Jr.: Oh!

We're not talking about that case Your Honor.

We're talking solely about strictly civil confinements which have no criminal or quasi-criminal overtones.

Justice William H. Rehnquist: So you don't mean then or that only somebody who has committed through the criminal process by a criminal trial is exempt from this requirement for treatment.

You would extend it to something with quasi-criminal overtones?

Mr. Bruce J. Ennis, Jr.: No, we would not Your Honor.

Not at this time.

Justice William H. Rehnquist: Well, would you -- well, if -- but your underlying theory has to either embrace it or not embrace it, I would think?

Mr. Bruce J. Ennis, Jr.: Well, the theory of this case is where the purpose for a confinement is not a criminal law or purpose then the patient confined would have an opportunity for a reasonable level of treatment.

Now, I wish to point out though that although we are not contending in this case that persons confined under the criminal law would have a right to treatment.

That in fact -- question has been left expressly open by the United States Court of Appeals for the Second Circuit in a case called United States ex rel.

Schuster versus Herold where the Second Circuit ruled that it may well be that even criminally confined persons have a right to treatment in that the treatment might well promote their possibility of early parole but that is certainly a much, much more difficult question than the question raised by this case or by other civil cases.

Justice William H. Rehnquist: And when you talk about criminally confined persons you include a person who is found not guilty by reason of insanity and committed as a result of that.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

Chief Justice Warren E. Burger: But is it not true that in a good many jurisdictions now the verdict of the jury not guilty by reason of insanity either by a statute or by a judicial decision must be followed by the traditional civil commitment proceeding in order to confine him.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor, that is certainly true.

Chief Justice Warren E. Burger: Now, in that case your statement of your underlying theory would reach it because his confinement would have been pursuant in those cases to a civil commitment proceeding which was triggered by a jury verdict of not guilty by reason of insanity when he was criminally prosecuted.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

That's correct.

I just want to say this that that kind of case might well raise some very difficult issues of preventive detention for example which this Court and other courts have grappled with for decades.

We are not prepared at this time to argue those other and more difficult cases.

I do not feel I have the authority to concede a way or to support a right to treatment in those criminal law cases.

We really have only brought in this case the narrowest possible case and that is the case of a person who is confined expressly for the purpose of treatment who had never been charged with any crime.

Justice Byron R. White: What can be found to be in connection with his commitment found to be dangerous to himself or others?

Mr. Bruce J. Ennis, Jr.: Your Honor the commitment papers are sketchy and inconsistent on that point.

It was not --

Justice Byron R. White: I had that in the brief somewhere and I just wondered what the truth with the matter was since they're not part of the record here.

Mr. Bruce J. Ennis, Jr.: Well, there was -- I can say this, Your Honor.

There was no transcript of the trial at the initial commitment proceeding.

Mr. Donaldson testified about that trial and that is in the record.

He testified that though he asked to cross examine the physicians who had examined him he was not permitted to do so and the physicians did not testify.

He held a very brief hearing and was thereupon committed.

There was no evidence in the commitment papers of any dangerous act whatsoever.

However, the Florida commitment papers did have boiler plate language and one of them said the patient may be a danger to himself or others.

However, another commitment paper expressly said that he was confined to Florida State Hospital because he was mentally ill and dangerous to himself or others or in order to ensure proper treatment.

So, it may well be that he was confined not because the committing judge thought he was dangerous but simply to ensure proper treatment.

At any rate, that point was not litigated in this case because under the instruction --

Justice Thurgood Marshall: But it was agreed.

Mr. Bruce J. Ennis, Jr.: It was agreed your -- it was litigated, Your Honor.

Justice Thurgood Marshall: It was agreed that he was committed for two reasons that he was a danger to himself to others.

There never was a dispute on that point.

Mr. Bruce J. Ennis, Jr.: Your Honor, we never conceded that he was dangerous at the time of commitment.

Justice Thurgood Marshall: Is it disputed?

Mr. Bruce J. Ennis, Jr.: No, we didn't dispute it.

It simply was not at issue in this trial because in this trial the petitioner expressly acknowledged that he had a duty upon receiving a patient under a judicial commitment order to make his own professionally independent determination of whether that patient continued to require confinement.

Justice Thurgood Marshall: But why weren't all of the tests made to find out whether or not he was a danger to others.

Mr. Bruce J. Ennis, Jr.: The tests on that point are absolutely clear Your Honor.

Respondent's expert witnesses examined all of the tests that were given, all of the hospital record and they said that there was no evidence in the hospital record that he was or ever would be a danger to himself or others.

He had never injured himself or any other person.

He had always been self-employed, a tax payer, never taken welfare and furthermore, the test results of the psychological tests according to a psychologist who testified --

Justice Thurgood Marshall: He was not tested in Jacksonville, did he say that?

Mr. Bruce J. Ennis, Jr.: No, Your Honor.

First of all, that was not a doctor.

Justice Thurgood Marshall: I thought you said all of them did.

Mr. Bruce J. Ennis, Jr.: Let me be clear.

Justice Thurgood Marshall: Please.

Mr. Bruce J. Ennis, Jr.: All of the employees at the staff of Florida State Hospital with the exception of petitioner said that in their opinion, respondent was not dangerous.

His co-defendant testified a trial that respondent was not dangerous.

The Director of the Psychology Department at Florida State Hospital testified that in his opinion respondent was not dangerous.

Justice Thurgood Marshall: But all of this came about, about the simple question I asked is didn't you agree that he was committed for the two reasons.

Mr. Bruce J. Ennis, Jr.: No, Your Honor, we did not.

We admitted that he was committed for the purpose of treatment.

We never conceded that he was dangerous at the time of commitment but that issue was not raised or litigated in this trial.

Under the instructions in this case, the jury had only to find that after his confinement, there was no reasonable basis for the petitioner to believe that respondent was dangerous.

Justice William H. Rehnquist: So, it's not essential to your success here that you re-litigate a finding of dangerousness that might have been made in the 1957 proceeding.

Mr. Bruce J. Ennis, Jr.: That's correct, Your Honor.

Justice Byron R. White: Well, could I ask -- let me be clear about one thing, suppose that the threshold of the case you could win your case at least in one way if you -- if it were held that there was no -- the state had no right to commit anybody just for treatment if he was not dangerous to himself or others?

Mr. Bruce J. Ennis, Jr.: That is correct Your Honor.

Justice Byron R. White: How about that -- have you taken any position on that in this case?

Mr. Bruce J. Ennis, Jr.: We do take a position on that in a footnote.

Our position is essentially that that is a difficult question which this Court need not and probably should not address itself to in this case.

However --

Justice Byron R. White: Well, it might avoid an awful lot of future lawsuits around in the future litigation about the definition of the right to treatment if there was -- if the state couldn't confine people at all unless they were found to be dangerous.

Mr. Bruce J. Ennis, Jr.: That's right Your Honor.

Justice Byron R. White: In which event there might not be any right to treatment.

Mr. Bruce J. Ennis, Jr.: Simply a right to liberty.

That's right Your Honor.

We do take the position in our footnote, in our brief that if the court reaches that question, it should rule that no person can be subjected to lengthy or indeterminate involuntary hospitalization unless that person is dangerous to self or others regardless of whether adequate treatment is or is not provided.

Justice Byron R. White: Did the Court of Appeals take the position on that?

Mr. Bruce J. Ennis, Jr.: No, I don't think it --

Justice Byron R. White: Was this issue ever raised in this case?

Mr. Bruce J. Ennis, Jr.: The issue was specifically raised in this case, Your Honor.

I might say that briefs have been filed by various professional organizations.

One of the briefs by several of the relevant organizations, the American Psychological Association, the American Ortho-Psychiatric Association and so forth takes precisely that position that no person should be involuntarily confined solely for the purpose of treatment unless that person is also a danger to self or others.

Justice Byron R. White: In terms of proper approach to constitutional questions, what do you think we should do about that issue, just leave it alone or what?

Mr. Bruce J. Ennis, Jr.: Your Honor, I think the appropriate course for this Court to take on that issue in this case would be either expressly to reserve that decision or to indicate as it has indicated in other cases that if that the question was squarely presented to the Court, it would probably rule as a matter of constitutional law that involuntary confinement of non-dangerous persons is not constitutionally justified.

Justice Byron R. White: Well then, if we held that in this case we wouldn't reach these (Voice Overlap) --

Mr. Bruce J. Ennis, Jr.: You wouldn't reach the right to treatment at all, that's correct Your Honor.

Certainly the facts in this case are clear and the instructions are clear enough that that finding would be appropriate in the circumstances of this case even though it was not the specific basis for decision below.

Justice Byron R. White: Do you think that jury had to have found that he was neither dangerous to himself or others.

Mr. Bruce J. Ennis, Jr.: Under these instructions, yes Your Honor.

Chief Justice Warren E. Burger: Did the instructions of the trial court give any indications to the jury that they were to examine the entire 15 years of confinement and consider whether there was one situation prevailing in part of that time and another at a different part that is, having in mind that this man was a Christian Scientist and that this record shows beyond any dispute that he had categorically refused certain treatments at certain time, did you give the jury a chance to treat that as a mitigating factor?

Mr. Bruce J. Ennis, Jr.: Absolutely Your Honor.

In fact, the petitioner himself drafted and proposed an instruction specifically designed to cover that point and that instruction was given.

The instruction advised the jury that if the jury found that respondent did not receive any treatment or any form of treatment because of his refusal or reluctance to have that form of treatment then the jury could not find liability or award damages based on that refusal.

Chief Justice Warren E. Burger: Well, on that respect, do you think the verdict is consistent with the undisputed evidence that he did consistently over a long period of time refuse any treatment whatever?

Mr. Bruce J. Ennis, Jr.: Yes, it's quite consistent Your Honor because first of all, the verdict is rather modest I think in this case for a 15-year deprivation of liberty.

But second, I must respectfully advise the court that in fact there was evidence from which the jury could have found that Mr. Donaldson did not ever actually refused any treatment.

He did expressly say to the doctors, I prefer not to have shock treatment but the doctor who was considering giving shock treatment testified at trial that he did not actually intend to give shock treatment.

He only wanted to have that possibility available should respondent become a violent or disruptive patient.

That eventuality never occurred and shock treatment was never given.

Suddenly with respect to medication, I think it's in the appendix at page 52, the respondent testified that petitioner expressly told him that so long as he was not a management problem he would not have to take medication.

He never was a management problem and therefore he did not have to take medication.

However, when he came under the supervision of another physician, that physician did urge upon respondent that he take medication and at that point respondent did take medication when it was for the first time actually prescribed for him.

The physician tried the medication for a couple of weeks and then took respondent off the medication upon the physician's finding that the medication had absolutely no effect one way or the other.

Justice Potter Stewart: Mr. Ennis, directing or just thinking about a problem not of the emotionally ill who were -- some of whom at least are presumptively curable, some of whom are not and any of whom, it was just a over presumption as contrasted with the mentally retarded as a result of a congenital serious brain damage, for example.

Mr. Bruce J. Ennis, Jr.: Yes Your Honor.

Justice Potter Stewart: Surely, would you quarrel with the state's constitutional power to enact a law or to have a program that would say we're going to institutionalize these people in order to take them out of the families of the impoverished and others to give them the best custodial care, we can and is decent so far as the care but they're untreatable.

Damages could keep them in an institution indefinitely.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

I would quarrel with that and for the following reason.

Despite very widespread popular assumption to the contrary, it is now quite clear that the mentally retarded even severely and profoundly retarded persons --

Justice Potter Stewart: Autistic persons?

Mr. Bruce J. Ennis, Jr.: Even autistic persons Your Honor.

Justice Potter Stewart: Well, there are many varieties but I have premised this on people who had congenital brain damage.

Mr. Bruce J. Ennis, Jr.: Yes.

Justice Potter Stewart: Physical brain damage.

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

There is now widespread professional consensus that even those persons are capable of a great deal of growth and improvement.

Even persons with IQ's below 19 can be taught to toilet themselves, dress themselves.

Justice Potter Stewart: I know some of these things, yes.

Mr. Bruce J. Ennis, Jr.: That question of course is not raised in this case.

Justice Potter Stewart: Now, it is because up until really very recently as the history of western civilization goes, that was a whole concept of what -- to use a old-fashioned phrase but the phrase, the label indicates the theory.

That's when an insane asylum was for.

It was to -- presumptively these people -- then state of the art, were not curable.

This was a permanent condition or one of indefinite duration and the idea was if you all know provide decent, custodial care and to relieve the families of the economic, social, and psychological damage that would follow from the presence of those people in their families or households and institutions were set up to provide that service and I wouldn't be surprised if in some states today the commitment was not for treatment but the commitment was for custody.

Mr. Bruce J. Ennis, Jr.: Your Honor let me answer that question.

Justice Potter Stewart: So I think it is involved here.

Mr. Bruce J. Ennis, Jr.: Let me answer that question (Voice Overlap) --

Unknown Speaker: (Voice Overlap) a state cannot constitutionally do that.

Mr. Bruce J. Ennis, Jr.: Let me say two things first.

We do not contend that the state cannot constitutionally provide a custodial facility for voluntary patients.

The only point at issue in this case is whether a person can be involuntarily subjected to custodial care.

Justice Potter Stewart: Well, my definition of these people are lacking in competence to do anything voluntarily for themselves.

We're talking about the members of their family, their fathers or mothers or --

Mr. Bruce J. Ennis, Jr.: That's right.

I just --

Justice Potter Stewart: And that's involuntary by your definition.

Mr. Bruce J. Ennis, Jr.: That's correct, Your Honor.

I would just close by pointing out that there is a book cited in our brief, The Discovery of the Asylum by Professor David Rothman which points that actually asylums were first created in this country not for the purpose of providing custodial care but rather to treat and cure patients.

That was the origin of the asylum in America.

Let me close, Your Honor bySt saying that we've try to show this is a narrow case and properly understood does not raise any novel rights.

It involves only the right to be free from external restraint in all that the most compelling of circumstances.

We do not believe those circumstances exist in this case and the judgment should be affirmed.

Justice Potter Stewart: Mr. Ennis, before you sit down, I want to return to your question I asked the Attorney General, was any effort made by respondent to obtain his release under -- what it is, Chapter 394 of the Florida Law?

Mr. Bruce J. Ennis, Jr.: Yes, Your Honor.

Let me answer that question by saying the following.

The petitioners referred to various habeas corpus and other types of proceedings brought by respondent.

I have examined all of the records of those proceedings I can find and I can state to the court that all of those proceedings were dismissed on procedural, jurisdictional and other non-constitutional grounds not relevant to the issues before this case.

There was testimony at trial by respondent that he did in fact attempt to use every conceivable statutory remedy he could use to effect his release but he never once got a hearing and the reason in fact, he did not get a hearing is that petitioner opposed those hearings by supplying affidavits to the courts and stating that his confinement was proper.

Justice Potter Stewart: It was upheld.

Mr. Bruce J. Ennis, Jr.: Without a hearing Your Honor.

No hearings --

Chief Justice Warren E. Burger: But was upheld and that -- didn't that -- sometimes you say on a procedural ground or a non-merit ground.

Mr. Bruce J. Ennis, Jr.: Well, let me -- since the question has been raised again, let me read to you briefly Your Honor one of the -- one such decision.

This is the habeas corpus or --

Mr. Bruce J. Ennis, Jr.: On a habeas corpus decision.

This is the entire decision in one of those cases by a county judge which said, “Certainly, the state hospital authorities have no desire nor reason to detain you in the hospital any longer than your condition requires.

In the event, your condition is such as to justify it the medical staff will give you a hearing.”

That was a letter to respondent from the county judge.

That assumed that petitioner was acting in good faith as it would be reasonable and responsible for a judge to assume.

But the jury found in this case that in fact that judicial assumption was unwarranted.

Chief Justice Warren E. Burger: Thank you, Mr. Ennis.

The case is submitted.