Mental Disabilities Law Issues
| Publication year | 1977 |
| Pages | 2163 |
1977, December, Pg. 2163. Mental Disabilities Law Issues
Civil rights litigation and legislation has broadened over the years to encompass not only racial minorities but also women, juveniles, the elderly, and prisoners. Most recently, the developments of the law in these areas have begun to be applied to yet another minority group---the mentally handicapped (the mentally ill and the mentally retarded). Advocates for the mentally handicapped have sought to apply equal protection, substantive and procedural due process, cruel and unusual punishment, and other constitutional principles to issues affecting the mentally handicapped. These constitutional protections have been raised with regard to such problems as civil commitments, guardianship procedures, sterilization, education, and zoning.
The purpose of this column is to focus upon what may be the primary area of concern for the mentally handicapped at this time---the right to treatment. The column is divided into three sections. The first section addresses the constitutional arguments upon which the right to treatment concept is based, the second addresses the statutory basis for the right to treatment actions, and the final section discusses the application of negligence principles to this area.
The right to treatment of civilly committed mentally handicapped citizens was initially articulated in a series of opinions written by Chief Judge Bazelon.(fn1) In each of these cases, the Court's holding was premised on the District of Columbia's statutory provisions for the institutionalization of the mentally handicapped.(fn2) However, the common thread of dicta woven into these cases (all before the Court on habeas petitions) was that if the government is to deprive a person of his liberty, it must provide that person appropriate treatment in the least restrictive setting. Failing to do that, the government is depriving a person of liberty without due process of law.(fn3) Chief Judge Bazelon also suggested that failure to provide treatment might violate the equal protection clause and that indefinite confinement without treatment of one not convicted of a crime might constitute cruel and unusual punishment.(fn4)
Then, in a series of cases(fn5) dealing with Alabama's institutions for the mentally ill and the mentally retarded, Chief Judge Johnson of the U. S. District Court for the Middle District of Alabama found that civilly committed mentally ill persons have a constitutional "right to treatment"(fn6) and civilly committed mentally retarded persons have a constitutional
. . . When patients are (involuntarily committed through non-criminal procedures) for treatment they unquestionably have a constitutional right to receive such individual treatment as will give each of them a realistic opportunity to be cured or to improve his or her mental condition. . . Adequate and effective treatment is constitutionally required because absent treatment, the hospital is transformed "into a penitentiary where one could be held indefinitely for no convicted offense". . . The purpose of involuntary hospitalization for treatment purposes is treatment and not mere custodial care or punishment. This is the only justification, from a constitutional standpoint, that allows civil commitments to mental institutions. . .
There can be no legal (or moral) justification for the State of Alabama's failing to afford treatment---and adequate treatment from a medical standpoint---to the several thousand patients who have been civilly committed. . . To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.(fn8) (Emphasis in original.)
As conceived by Judge Johnson, there are three fundamental conditions of adequate and effective treatment.(fn9) These conditions are (1) humane psychological and physicial environment, (2) adequate staffing in numbers sufficient to administer adequate treatment...
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