Catherine Lake v. Dale C. Cameron, Superintendent, Saint Elizabeths Hospital

364 F.2d 657

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 19, 1966
• Docket: 18809
• Status: Published

Opinions

BAZELON, Chief Judge:

Appellant is confined in Saint Elizabeths Hospital as an insane person and appeals from denial of release in habeas corpus. On September 29, 1962, when she was sixty years old, a policeman found her wandering about and took her to the D.C. General Hospital.¹ On October 11, 1962, she filed in the District Court a petition for a writ of habeas corpus. The court transferred her to St. Elizabeths Hospital for observation in connection with pending commitment proceedings, allowed her to amend her petition by naming the Superintendent of Saint Elizabeths as defendant, and on November 2, 1962, dismissed her petition without holding a hearing or requiring a return.

After she filed her appeal from denial of habeas corpus, she was adjudged “of unsound mind” and committed to Saint Elizabeths. At the commitment hearing two psychiatrists testified that she was mentally ill and one of them that she was suffering from a “chronic brain syndrome” associated with aging and “demonstrated very frequently difficulty with her memory * * *. Occasionally, she was unable to tell me where she was or what the date was.” Both psychiatrists testified to the effect that she could not care for herself adequately. She did not take a timely appeal from the commitment order. We heard her appeal from the summary dismissal of her petition for habeas corpus and remanded the case to the District Court with directions to require a return and hold a hearing.²

At the hearing on remand, the sole psychiatric witness testified that appellant was suffering from a senile brain disease, “chronic brain syndrome, with arteriosclerosis with reaction.” The psychiatrist said she was not dangerous to others and would not intentionally harm herself, but was prone to “wandering away and being out exposed at night or any time that she is out.” This witness also related that on one occasion she wandered away from the Hospital, was missing for about thirty-two hours, and was brought back after midnight by a police officer who found her wandering in the streets. She had suffered a minor injury which she attributed to being chased by boys. She thought she had been away only a few hours and could not tell where she had been. The psychiatrist also testified that she was “confused and agitated” when first admitted to the Hospital but became “comfortable” after “treatment and medication.”

At both the commitment hearing and the habeas corpus hearing on remand, appellant testified that she felt able to be at liberty. At the habeas corpus hearing her husband, who had recently reappeared after a long absence, and her sister said they were eager for her release and would try to provide a home for her. The District Court found that she “is suffering from a mental illness with the diagnosis of chronic brain syndrome associated with cerebral arteriosclerosis”; that she “is in need of care and supervision, and that there is no member of the family able to give the petitioner the necessary care and supervision; and that the family is without sufficient funds to employ a competent person to do so”; that she “is a danger to herself in that she has a tendency to wander about the streets, and is not competent to care for herself.” The District Court again denied relief in habeas corpus, but noted appellant’s right “to make further application in the event that the patient is in a position to show that there would be some facilities available for her provision.” The court thus recognized that she might be entitled to release from Saint Elizabeths if other facilities were available, but required her to carry the burden of showing their availability.

Appellant contends in written and oral argument that remand to the District Court is required for a consideration of suitable alternatives to confinement in Saint Elizabeths Hospital in light of the new District of Columbia Hospitalization of the Mentally 111 Act,³ which came into effect after the hearing in the District Court. Indeed, her counsel appointed by this court, who had interviewed appellant, made clear in answer to a question from the bench on oral argument that although appellant’s formal pro se pleading requests outright release, her real complaint is total confinement in a mental institution; that she would rather be in another institution or hospital, if available, or at home, even though under some form of restraint.

Habeas corpus challenges not only the fact of confinement but also the place of confinement.⁴ And the court is required to “dispose of the matter as law and justice require.” 28 U.S.C. § 2243. The court is not restricted to the alternative of returning appellant to Saint Elizabeths or unconditionally releasing her.

We are not called upon to consider what action we would have taken in the absence of the new Act, because we think the interest of justice and furtherance of the congressional objective require the application to the pending proceeding of the principles adopted in that Act. It provides that if the court or jury finds that a “person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty, the court may order his hospitalization for an indeterminate period, or order any other alternative course of treatment which the court believes will be in the best interests of the person or of the public.” D.C.Code § 21-545 (b) (Supp. V, 1966). This confirms the view of the Department of Health, Education and Welfare that “the entire spectrum of services should be made available, including outpatient treatment, foster care, halfway houses, day hospitals, nursing homes, etc.”⁵ The alternative course of treatment or care should be fashioned as the interests of the person and of the public require in the particular case.⁶ Deprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection.⁷

The court’s duty to explore alternatives in such a case as this is related also to the obligation of the state to bear the burden of exploration of possible alternatives an indigent cannot bear. This appellant, as appears from the record, would not be confined in Saint Elizabeths if her family were able to care for her or pay for the care she needs. Though she cannot be given such care as only the wealthy can afford, an earnest effort should be made to review and exhaust available resources of the community in order to provide care reasonably suited to her needs.8

At the habeas corpus hearing, the psychiatrist testified that appellant did not need “constant medical supervision,” but only “attention”; that the psychiatrist would have no objection if appellant “were in a nursing home, or a place where there would be supervision.” At the commitment hearing one psychiatrist testified that “Mrs. Lake needs care, whether it be in the hospital or out of the hospital,” and did not specify what, if any, psychiatric care she needs. The second psychiatrist testified that she “needs close watching. She could wander off. She could get hurt and she certainly needs someone to see that her body is adequately cared for * * *. [She] needs care and kindness * * ⁹ It does not appear from this testimony that appellant’s illness required the complete deprivation of liberty that results from commitment to Saint Elizabeths as a person of “unsound mind.”

Appellant may not be required to carry the burden of showing the availability of alternatives. Proceedings involving the care and treatment of the mentally ill are not strictly adversary proceedings.¹⁰ Moreover, appellant plainly does not know and lacks the means to ascertain what alternatives, if any, are available, but the government knows or has the means of knowing and should therefore assist the court in acquiring such information.

We remand the case to the District Court for an inquiry into “other alternative courses of treatment.” The court may consider, e. g., whether the appellant and the public would be sufficiently protected if she were required to carry an identification card on her person so that the police or others could take her home if she should wander,¹¹, or whether she should be required to accept public health nursing care, community mental health and day care services, foster care,¹² home health aide services, or whether available welfare payments might finance adequate private care.¹³ Every effort should be made to find a course of treatment which appellant might be willing to accept.¹⁴

In making this inquiry, the District Court may seek aid from various sources, for example the D.C. Department of Public Health, the D.C. Department of Public Welfare, the Metropolitan Police Department, the D.C. Department of Vocational Rehabilitation, the D.C. Association for Mental Health, the various family service agencies, social workers from the patient’s neighborhood, and neighbors who might be able to provide supervision.¹⁵ The court can also require the aid of the Commission on Mental Health, which was established “in recognition of the fact that the assistance of unbiased experts was essential to assist courts in dealing with insanity cases.”¹⁶ The Commission’s aid is available in habeas corpus proceedings as well as commitment proceedings.¹⁷ The Commission, like the court, may obtain the aid of appropriate groups and individuals.¹⁸

We express no opinion on questions that would arise if on remand the court should find no available alternative to confinement in Saint Elizabeths.¹⁹

We respectfully reject the suggestion that our opinion may be read as amounting to a revival of all commitments that had already become final. This case has its special features within which the opinion is confined. This appears from the factual setting of the opinion. The District Court recognized the problem in suggesting that if this patient could show that there were other facilities available for her provision she could apply again to the court. Our decision does no more than require the exploration respecting other facilities to be made by the government for the indigent appellant in the circumstances of this case.

Habeas corpus .proceedings always have been available to test the validity of a deprivation of liberty — see, e. g., Stewart v. Overholser, 87 U.S.App.D.C. 402, 186 F.2d 339 (1950); and where there has occurred, as here, a change in the applicable statutory law pending the appeal, remand for consideration by the trial court under the intervening statute is appropriate if not required. To require in a habeas corpus proceeding that the court consider an intervening statute applicable to the situation is not to require a new commitment proceeding, nor does it open one already concluded.

Remanded for further proceedings in accordance with this opinion.

1 . D.C.Code § 21-326 (1961), 33 Stat. 316.

2 . Lake v. Cameron, 118 U.S.App.D.C. 25, 331 F.2d 771 (1964). This court treated the petition as attacking appellant’s post-commitment confinement in St. Elizabeths. The District Court on remand and the parties properly proceeded on this basis since the detention from which appellant sought release continues.

3 . D.C.Code §§ 21-501 to 21-591 (Supp. V, 1966).

4 . See Bolden v. Clemmer, 111 U.S.App.D.C. 392, 298 F.2d 306 (1961); Benton v. Reid, 98 U.S.App.D.C. 27, 231 F.2d 780 (1956); Miller v. Overholser, 92 U.S.App. D.C. 110, 206 F.2d 415 (1953).

5 . S.Rep. No. 925, 88th Cong., 2d Sess., 31 (1964). The Committee said: “The original bill did not provide for court order of any course of treatment besides indeterminate hospitalization. This provision was included to cover those cases where such treatment as placement in halfway houses or outpatient care may be indicated.” S.Rep. No. 925 at 19.

Compare California Welfare and Institutions Code § 5568, which grants broad discretion in selecting treatment alternatives :

If * * * the court finds a person to be mentally disordered and bordering on mental illness but not dangerously mentally ill, the court may commit him to the care and custody of the counselor in mental health and may allow him to remain in his home subject to the visitation of a counselor in mental health and subject to return to the court for further proceedings whenever such action appears necessary or desirable; or the court may commit him to be placed in a suitable home, sanitarium or rest haven home, subject to the supervision of the counselor in mental health and the further order of the court.

6 . The District of Columbia Department of Public Health, in its Comprehensive Mental Health Services in the District oe Columbia, 82, says of the 1964 Act:

“This certainly provides the necessary flexibility to commit a patient to less than 24-hour care; for example, to an outpatient program, a Halfway House, etc. It also makes it possible for the court to send a senile patient to a non-psychiatric chronic disease facility at St. Elizabeths or elsewhere. In short, the machinery of the court can be used to obtain compulsory attendance at any variant of treatment, provided * * * [the standards of the Act apply].”

7 . See Guttmacher & Weihofen, Psychiatry and the Law 311-12 (1952); Brenner, Denial of Due Process and Civil Rights Under Sections 73 and 73a of the Mental Hygiene Law to Aged Seniles loithout Major Mental Impairment, 34 N.Y.St.B.J. 19, 20 (1962).

8 . “Economic dependency should not be a reason for sending physically ill and socially dependent oldsters to state mental hospitals. Financial arrangements should be made to give them physical, nursing, and domiciliary care in their own communities.” Statement of the National Association of State Mental Health Program Directors before the Joint Subcommittee on Long-Term Care of the Special Senate Committee on Aging, 88th Cong., 2d Sess., pt. 3 at 287. The inquiry into alternatives will not only reveal the facilities available but will uncover the need for those that are not available.

9 . Dr. Dale C. Cameron, Superintendent of Saint Elizabeths Hospital, has said that “only 50% of the patients * * * hospitalized required hospitalization in a mental institution” and “for many older patients, the primary need was found to be for physical rather than psychiatric care.” Hearings Before the Subcommittee on St. Elizabeths Hospital of the House Committee on Education and Labor, 88th Cong., 1st Sess. 23-4 (1963). At the hearing before the Joint Subcommittee on Long-Term Care of the Special Senate Committee on Aging, supra note 8. the National Association of State Mental Health Program Directors commented on the elderly who

“are forgetful, mildly confused, and need various degrees of nursing care or domiciliary care which should be provided in approved nursing homes or private care homes. They should not be required to live in state mental hospitals in 60 to 100 bed wards with gang bathrooms, and loss of all individuality and personal dignity, even though this type of ‘human warehousing’ is cheaper than care in nursing homes.

“Any infirm person, but especially the aged infirm, should be kept as near to home as possible, where family, friends and familiar surroundings offer the best possible link with his usual life.”

See also GAP Committee on Aging, Psychiatry and the Aged, An Introductory Approach 544 (1965).

10 . See Dooling v. Overholser, 100 U.S.App.D.C. 247, 250, 243 F.2d 825, 828 (1957) ; DeMarcos v. Overholser, 78 U.S.App.D.C. 131, 137 F.2d 698, cert. denied, 320 U.S. 785, 64 S.Ct. 157, 88 L.Ed. 472 (1943); Overholser v. Treibly, 79 U.S.App.D.C. 389, 392, 147 F.2d 705, 708, cert. denied, 326 U.S. 730, 66 S.Ct. 38, 90 L.Ed. 434 (1945). The commitment judge in the present case rightly said: “This is not strictly an adversary proceeding and, as a consequence, there is no argument made to the jury * * *. [This proceeding] makes absolutely certain that no one will be ‘railroaded’ * *

11 . “Care may range from as little as help for a few hours once a week with heavy chores to full bed care. Supervision may range from as little as an informal call by a neighbor once a day to the complete supervision of a mental hospital.” The National Council on Aging, Guardianship and Protective Services for Older People 2 (1963).

12 . See U. S. Department of Health, Education and Welfare, Foster Family Care for the Aged (1965).

13 . See U. S. President’s Council on Aging, Federal Payments to Older Persons in Need of Protection (1965).

14 . “Care and services should be provided in such a way as to be most satisfying to the person concerned. This will usually, although not necessarily, imply keeping the person in his own home if possible; otherwise arranging for his care in surroundings which take into consideration not only his physical and mental health but also his usual and preferred mode of life.” The’ National Council on the Aging, supra note 11, at 5.

15 . See Health and Welfare Council of the National Capital Area, Where To Turn for Health, Welfare and Recreation Services (1965); D. C. Department of Public Health, Comprehensive Mental Health Services in the District of Columbia 47-69 (1965).

16 . DeMarcos v. Overholser, 78 U.S.App.D.C. 131, 132, 137 F.2d 698, 699, cert. denied, 320 U.S. 785, 64 S.Ct. 157 (1943).

17 . DeMarcos v. Overholser, supra note 16; Overholser v. Boddie, 87 U.S.App.D.C. 186, 189, 184 F.2d 240, 243, 21 A.L.R.2d 999 (1950).

18 . In the initial statutory proceedings, the Commission is required to “hear testimony of any person whose testimony may be relevant and * * * receive all relevant evidence which may be offered.” D.C.Code § 21-542 (Supp. V, 1966). Before the statutory commitment proceedings in the District Court, the Commission is required to report to the court its “findings of fact, conclusions of law, and recommendations.” D.C.Code § 21-544 (Supp. V, 1966). This contemplates that the Commission will report the alternatives it has considered and the reasons for its recommendation. If the Commission’s inquiry is inadequate, the court may require that it be supplemented. The court may subpoena witnesses to appear before the Commission. DeMarcos v. Overholser, supra note 16.

19 . Such questions might be whether so complete a deprivation of appellant’s liberty basically because of her poverty could be reconciled with due process of law and the equal protection of the laws.