Involuntary Commitment of People With Mental Retardation: Ensuring All of Georgia's Citizens Receive Adequate Procedural Due Process - Laura W. Harper

• Publication year: 2007

Comment

Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Adequate Procedural Due Process

I. Introduction

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities.¹ Many of these individuals are placed in institutions involuntarily through legal proceedings.² Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning.³ Many disability advocates argue that segregation and institutionaliza- tion of people with mental retardation is not needed,⁴ although all do not agree.⁵ Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.⁶

This Comment focuses on the procedures used in Georgia to continue the habilitation⁷ of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections.⁸ However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically.⁹ This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.

II. Legal Background

A. Historical Backdrop

People with mental retardation have faced a history of segregation and isolation. Many have been confined in state-run institutions, including mental hospitals and insane asylums. Until recently, many of these facilities had deplorable conditions. They provided no treatment for people and merely served as a place to warehouse people with disabilities. People were admitted with very little oversight and were then left in these facilities until their deaths.¹⁰ This lack of treatment is evident from Alabama's notorious Bryce State Hospital in Tuscaloosa, which in 1970 had one physician for every 350 patients, one nurse for every 250 patients, and one psychiatrist for every 1700 patients.¹¹ Living conditions were horrific. There were wards full of elderly people whose families had dumped them.¹² Patients were often restrained, such as one patient who was straight-jacketed for nine years to prevent thumb-sucking.¹³ Patients who died were buried in unmarked graves behind the institution.¹⁴ There was no fire safety equipment, as the fire department's hoses could not attach to the fire hydrants in the institution.¹⁵ Conditions like these in institutions throughout the United States sparked lawsuits and legislation that led to increased rights for institutionalized people.

For example, in Youngberg v. Romeo,¹⁶ a man with mental retardation who was involuntarily committed to a Pennsylvania institution alleged that he had a Fourteenth Amendment right to safe conditions, freedom from bodily restraints, and training.¹⁷ The Supreme Court held that people with disabilities who are involuntarily committed have these three basic rights as guaranteed by the Fourteenth Amendment.¹⁸ But, the Court limited the right to training or habilitation by requiring only training that relates to freedom from bodily restraints.¹⁹ The Court concluded that because the respondent only sought training related to safety, the case "[did] not present the difficult question whether a mentally retarded person, involuntarily committed to a state institution, has some general constitutional right to training per se."²⁰ Despite the limitation of the Court's holding, Youngberg was a crucial case because it alerted states to the possibility that there was a minimal constitutional level of care required for people with disabilities.

Congress's first attempt to address the problem of discrimination against people with disabilities was the passage of Section 504 of the Rehabilitation Act of 1973.²¹ The Act required that no program or activity that received federal funds discriminate on the basis of disability.²² But, Section 504 only covers entities that receive federal funds, and the problem of discrimination was much broader, so in 1990 Congress passed the Americans with Disabilities Act ("ADA").²³ The ADA bars employers, public entities, and public accommodations, such as restaurants and hotels, from discriminating against people because of their disabilities.²⁴

Congress's second finding in the ADA is that "historically, society has tended to isolate and segregate individuals with disabilities, and . . . such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem."²⁵ One of the most common forms of isolation and segregation is the institutionaliza-tion of people with disabilities. By enacting the ADA, Congress made it a violation of federal law to isolate and segregate people simply because they have disabilities. States must find other ways of treating people that allow them to live outside of institutions.

This interpretation of the ADA was cemented with the Supreme Court's decision in Olmstead v. L.C.²⁶ In Olmstead the Court reasoned that institutionalization "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life" and "severely diminishes the everyday life activities of individuals."²⁷ Olmstead does not signify the end of institutionalization, but it does require states to become serious about finding community placements for people who qualify and want to live outside of an institution.²⁸ As the Court explained, the ADA only requires that states make reasonable modifications to their procedures.²⁹ In Olm-stead the Court reasoned that if a state could demonstrate that "it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the state's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met."³⁰

Many states, including Georgia, attempt to comply with the ADA's requirements by maintaining an Olmstead list and moving people into community settings at a reasonable pace. However, many people with disabilities and disability rights advocates complain that Georgia is not doing all it can to find community based arrangements for people with disabilities. In Georgia, state-run facilities for people with mental retardation are known as Intermediate Care Facilities/Mental Retardation, or IFC/MRs. Every year advocacy groups investigate complaints of abuse and neglect in Georgia's ICF/MRs. Many critics argue that abuse and neglect occur because people with disabilities are cut off from society.³¹ Because they are hidden, there may be a lack of oversight, which allows inhumane conditions to go undetected. Thus, advocacy groups, such as The Georgia Advocacy Office, Georgia Legal Services Program, and the Legal Aid Society, file lawsuits on behalf of individuals in Georgia who are qualified for community placement. However, resources for these groups are limited, and litigation is expensive. Thus, most people are forced to simply wait.

B. Procedures for Court Ordered Habilitation of People with Mental Retardation in Georgia

If a parent, guardian, or someone standing in loco parentis is unable to find adequate services for someone with mental retardation, they can petition the court to order that person to receive services from Georgia's Department of Human Resources.³² The court reviews the petition, and if it finds probable cause, issues an order that the person be examined.³³ Notice of that order is sent to the person and to two court-appointed representatives.³⁴ The person is then examined by an evaluation team, and if the majority of that team believes the client is in need of specialized treatment, they file an individualized treatment plan with the court.³⁵ The court holds a hearing on the petition, giving notice to the petitioner, the person, and his representatives or guard-ians.³⁶

After a "full and fair hearing," if the court finds that the person has mental retardation and needs to receive services from a facility, the court may order habilitation, not to exceed six months.³⁷ The full and fair hearing includes the right to counsel and to have counsel appointed by the court if necessary.³⁸ At the end of the six months, if the person in charge of the client's habilitation believes that the client needs further in-facility treatment, he or she must seek to continue habilitation under Official Code of Georgia Annotated ("O.C.G.A.") section 37-4-42.³⁹

The process for continuing habilitation requires that the regional state hospital administrator seek an order...