Leaving civil rights to the 'experts': from deference to abdication under the professional judgment standard.

• Author: Stefan, Susan

CONTENTS I. THE MEANING OF "PROFESSIONAL" AND "PROFESSIONAL JUDGMENT" 646 A. The Supreme Court's Model of Professional-Patient Interaction 646 B. The Reality of Professional- Patient Interaction 655 1. The Myth of Neutrality 655 2. The Myth That Professional Judgment Transcends Public-Private Distinctions 661 II. THE SCOPE OF THE PROFESSIONAL JUDGMENT STANDARD: AFFIRMATIVE AND NEGATIVE RIGHTS UNDER THE CONSTITUTION . 667 A. Challenges to Professional Infringement of Constitutional Rights. The Professional Judgment Defense 670 1. Negative Rights Claims in the Institutional Setting 670 a. Right to Refuse Treatment 670 b. Behavior Modification: Punishment, Liberty and Professional Judgment 673 c. Family Rights 677 2. Professional Judgment and the Denial of Procedural Due Process 679 3. Adjudicating Negative Rights: Alternatives to the Professional Judgment Standard 681 B. Affirmative Claims for Adequate Government Services. The Appropriate Use of Professional Judgment 685 1. Legal Foundation of the Right to Treatment 686 2. Standards for the Right to Treatment 690 3. Right to Treatment Recommended by a State Professional 693 4. The Effect of Budget Constraints on Application of the Professional Judgment Standard 695 III. The Expansion of the Professional Judgment Standard 699 A. Expansion to Systems Not Involving Mental Disabilities 700 1. Higher Education 700 2. Juvenile Justice 703 3. Prisons and Jails 704 4. Foster Care 707 5. Effective Assistance of Counsel in Criminal Cases 709 B. Expansion to Systemic and Policy Decisions 710 C. Expansion to Interpretation of Statutory Claims and Consent Decrees 712 IV. CONCLUSION 715 In the past ten years, widely disparate federal due process cases--ranging from challenges by institutionalized people to involuntary administration of psychotropic medication, to class actions on behalf of children in foster care, to litigation by students dismissed from graduate school--have been resolved by application of the same rule, the professional judgment standard. Use of the professional judgment standard entitles people in certain situations to minimally adequate services. However, the use of the standard also allows state professionals to violate an individual's rights in the name of treatment, because it equates the vindication of constitutional liberties with the fulfillment of professional standards. The United States Supreme Court adopted the professional judgment standard in 1982 in Youngberg v. Romeo,(1) a damages action on behalf of a severely mentally retarded man institutionalized at the Pennhurst State School and Hospital in Pennsylvania. During two years at Pennhurst, Nicholas Romeo had suffered over seventy injuries, including broken bones, damaged sexual organs and lacerations.(2) Some injuries "became infected, either from inadequate medical attention or from contact with human excrement that the Pennhurst staff failed to clean Up."(3) After Romeo's mother filed suit, Romeo was transferred to the institution's hospital for treatment of a broken arm, where he was restrained daily for long periods of time. Romeo's mother's complaints ultimately charged that her son's rights to safety and personal security were violated and asked both for relief from excessive restraint and for treatment and programs for his mental retardation.(4)

As the Court recognized, Romeo's constitutional claims fell into two categories: traditional due process claims alleging state infringement of individual liberty (the claims involving restraint and personal security), and a claim affirmatively seeking state- provided services (the claim for treatment). "Respondent's first two claims," the Court said, "involve liberty interests recognized by prior decisions of this Court, interests that involuntary commitment proceedings do not extinguish.... Respondent's remaining claim [for habilitation] is more troubling."(5) The Court thus distinguished between Romeo's right to freedom from state interference, which all citizens enjoy and which survives institutionalization, and the right to treatment, an affirmative right to adequate services from the state that arises out of institutionalization. The case presented the Supreme Court with the opportunity to decide for the first time whether institutionalized individuals had a right to treatment and to clarify the standard by which it should be applied. The Court held that individuals confined in state institutions have a right to treatment "which is reasonable in light of [each individual's] identifiable liberty interest" in freedom from unnecessary governmental restraint.(6) In Romeo's case, because the parties had stipulated that Romeo would never be able to leave the confines of the institution and the record showed that his "primary needs" were "bodily safety and a minimum of restraint,"(7) he was entitled to "training to ensure safety and freedom from undue restraint."(8) Individuals in other situations, the Court noted, might have different liberty interests and thus require different levels of treatment.(9) As noted above, the Court held that all individuals retain their right to personal security and freedom from unreasonable bodily restraint. Having made the crucial distinction between negative rights against state intrusion and affirmative rights to government services, however, the Supreme Court proceeded to adopt the same standard, the professional judgment standard, to determine whether there had been a violation of both types of rights. The Court held that a professional's decision is presumptively valid, whether it is challenged as providing inadequate services or as state intrusion on the individual. Professional decisions in the institutional setting are only unconstitutional if "the decision by the professional 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."(10)

Although the professional judgment standard may be appropriate to measure the level of services that a state is constitutionally bound to provide to individuals in its custody, the standard is inappropriate to justify the imposition of unwanted government "services" that restrict constitutional liberty, such as forcible medication, prolonged restraint, and prohibitions on patients, family visitation. The crucial distinction between an individual's affirmative right to a certain quality of care from the government, and an individual's negative right against invasive state action, is lost under the professional judgment standard, as is the court's crucial role in our constitutional system. By applying the professional judgment standard to negative rights cases, courts cease to protect the "realm of personal liberty which the government may not enter,"(11) and instead simply ensure that a professional behaves within the bounds of his(12) profession, regardless of the impact his actions might have on the constitutional rights of the plaintiff. The Court has ignored the reality that the exercise of professional judgment by a state actor can itself invade constitutional rights. The Court has thus abdicated its responsibility to provide a barrier between the individual and unwanted professional intrusion by the state. Since 1982, application of the professional judgment standard has expanded far beyond the gates of the mental institution. Courts have applied the standard to cases involving foster care systems,(13) prisons and jails(14) academia(15) state departments of education(16) police practices(17) and zoning challenges.(18) The language of professional judgment has been applied in cases involving constitutional claims to effective assistance of counsel,(19) First Amendment claims to freedom of speech and religion,(20) and Equal Protection claims.(21) It is even being introduced into cases presenting claims under statutes long predating the Youngberg decision, such as Title VII(22) and Section 504 of the Rehabilitation Act.(23) Finally, it has been used as a standard for the interpretation and modification of consent decrees.(24)

Unfortunately, courts have broadened the applicability of the Youngberg doctrine with little regard for what "professional judgment" and the professional judgment standard might actually mean. Instead, courts use the professional judgment standard as a talismanic invocation, rarely examining the predicate assumptions about professionals upon which the standard relies. Courts, particularly the Supreme Court, regard the professional-client relationship as befitting protection from state interference because they envision it as an intimate partnership dedicated to the client's benefit and furtherance of the client's goals. In this popular construction, the archetype of the "professional" is a neutral individual cloaked in expertise, dedicated to a set of objective values, and governed by a higher code of responsibility in his relationship with his clients. This concept of the professional is a myth, yet the courts appear oblivious to the values deeply embedded in professionalism in general and in the medical and mental health professions in particular. Furthermore, neither the idealized values attributed to medical professionals nor their actual perspectives and priorities have much in common with the ideals of autonomy, self-determination, and individualism embodied in the Constitution.

To make matters worse, the courts idealize the wrong group of professionals, basing the professional judgment standard on a powerful mythology about professionals in the private sphere, but almost always applying it in a public sector context. The Court's image of freely chosen professional-client interaction is thus transplanted to institutional settings where the professionals are state actors, the professional-client relationship is permeated with state concerns and conflicts of interest, and the clients are an...