Deference (not equal to) abdication: application of Youngberg to prolonged seclusion and restraint of the mentally ill.

AuthorWeltman, Jeremy Y.


It is no secret that the prisons have become the new "institutions" for the severely mentally ill in the aftermath of deinstitutionalization. The confinement of the mentally ill to prison (which, as explained below, can occur in Massachusetts even if the individual has not been convicted of a crime) is nothing short of a moral disgrace. Moreover, even if a person with mental illness is able to find treatment, or is involuntarily committed, the Supreme court only recently recognized that there was a corresponding obligation to provide care. In fact, it was not until 1982 that the Supreme Court, in Youngberg v. Romeo, (1) first acknowledged a mentally ill person's substantive civil rights under the Fourteenth Amendment to the Constitution. (2) Specifically, Youngberg held that civilly committed mental patients had the right to "reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and such minimally adequate training as reasonably may be required by these interests." (3)

While the issues relating to the substantive civil rights due individuals suffering from mental illness are many, this Article focuses first on cases discussing the deference some courts have given to medical and clinical professionals in exercising their so-called "judgment" when it comes to the treatment of mentally ill patients and in particular their use (and overuse) of seclusion and restraint as a manner of "treatment" and, all too often, punishment. Thereafter, this Article will provide a brief analysis of the evolution of the emerging professional consensus that the use of prolonged seclusion and restraint on individuals with serious mental illness can never be justified as "treatment" and results in significant and sometimes permanent harm to a patient's mental health. Next, this Article will discuss how this emerging consensus of thought with respect to the use of prolonged seclusion and restraint should provide the catalyst through which the basic precepts of Youngberg can be reinvigorated for utilization to protect the most vulnerable of our society. Finally, this Article will discuss a pending action in the Superior Court of Massachusetts, where a judge has issued an injunction to prevent prolonged seclusion in line with the rationale supporting the Youngberg decision. ultimately, the authors of this Article believe that the medical and clinical professionals enlisted to provide their services to the mentally ill should not be given any deference in their so-called "clinical" decisions when it comes to unjustified prolonged seclusion and restraint. Simply put, deference given to clinical decisions should not amount to complete abdication of jurisprudential responsibility for ensuring equal protection of the laws to those who need the protections of our Constitution the most.

In Youngberg, the Supreme Court acknowledged that those suffering from mental illness, and who have been involuntarily institutionalized, not only are entitled to confinement in safe conditions, but also that they are entitled to freedom from undue bodily restraint and to a right to "minimally adequate habilitation." (4) The Court further opined that if mentally stable criminals were entitled to such liberties under the Constitution, those (through no fault of their own) suffering from mental illness should be entitled to those same liberties and freedoms. (5) In fact, the Court further noted that "[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish." (6) Ironically, most of the recent case law centers on the use of solitary confinement in prisoners' rights cases, as opposed to the rights of those subject to excessive undue restraint as civilly committed patients in state mental hospitals. (7)

The discussion and ultimate holdings rendered in Youngberg provide a relatively heightened level of substantive civil rights to involuntarily institutionalized individuals and are, no doubt, an important stride in equalizing the rights afforded to the mentally ill. However, after declaring the mentally ill individual's right to freedom from undue bodily restraint and minimally adequate medical treatment, the Youngberg Court adopted the Third Circuit's holding that "the Constitution only requires that the courts make certain that professional judgment in fact was exercised." (8) The Youngberg Court further limited its holding by stating that "the decision, if made by a professional, is presumptively valid... [unless the decision] is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." (9) While it has been acknowledged by at least one court that this standard could be considered ambiguous, (10) it appears from cases that immediately followed that only the most egregious of situations (i.e., death) triggered the courts to determine that a professional had departed from a recognized standard to such a degree that he or she could be held liable for the damage done. (11)

Sadly, the mentally ill patients being adversely affected by this holding are often completely unaware that the treatment they are being subjected to on a daily basis is abhorrent, unacceptable, and is such that no "normally" functioning individual would be subjected to it. Since the Youngberg decision, some courts have been missing the mark as to what circumstances require court intervention to hold these medical and clinical professionals liable for their actions (and often, inaction). (12) At what point do we say "enough is enough" when giving clinical and medical professionals such great deference? When does such deference amount to a complete abdication by the trier of fact with respect to making a case-specific factual inquiry as to the reasonableness of the clinical judgment being challenged?

It would be contrary to public policy not to accord some level of deference to a qualified professional in making decisions regarding the treatment of mentally ill patients. (13) It would be unreasonable to expect the courts to be tasked with the responsibility of holding a hearing every time a doctor was required to make a judgment call to ensure that the patient's rights were being protected. There are situations in which it is arguably more acceptable and understandable that certain freedoms would be denied to the mentally ill (such as when an emergency exists and when there is a real risk the patient will harm herself or others). For example, the Second Circuit rationally found that there was no breach of constitutional rights despite a patient being administered psychotherapeutic drugs against his will (which would normally violate a person's rights) where he had first been examined by five separate doctors over the course of his hospitalization, and all of those doctors came to the same conclusion: that the administration of such drugs was medically necessary where the patient "made threatening statements to his family, patients, and staff, and exhibited delusions and paranoid ideation." (14)

In theory, providing clinical and medical professionals who are on the ground and interfacing with patients with the leeway to do their job in the best way they know how, consistent with their experience and training, provides an increased benefit to all within their care. With respect to severely mentally ill individuals, it is not a far stretch to reason that because these individuals are incapable of caring for their own basic needs, they are equally incapable of making reasonable decisions related to their own medical care. Of course, the corollary is that those charged with stepping in to provide that care should do so responsibly.

This analysis assumes that clinical decisions are made in well-staffed mental health facilities, which is often not the case. For example, in Massachusetts, the maximum security mental health hospital at the notorious Bridgewater State Hospital (Bridgewater), which is administered by the Commonwealth's Department of Corrections, is a...

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