The Evolution of Disability Rights Litigation (and some stories)

David Ferleger, Esq.

In the Supreme Court: The Right to Treatment

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• Dr. Morton Birnbaum, "The Right to Treatment," American Bar Association Journal, vol. 46:499-504 (May, 1960)
• Jackson v. Indiana, 406 U.S. 715 (1972)
• O'Connor v. Donaldson, 422 U.S. 563 (1975)
• Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966)
• Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.1990)
• Williams v. Wasserman, 164 F. Supp.2d 591 (D. Md. 2001)
• Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala. 1971), 334 F.Supp. 1341 (M.D. Ala. 1971), 344 F.Supp. 373 (M.D. Ala. 1972), aff'd, 503 F.2d 1305 (5th Cir. 1974)
• Welsch v. Likins, 373 F.Supp. 487 (D. Minn. 1974)
• Youngberg v. Romeo, 457 U.S. 307 (1982)

In the 1960s and 1970s, the public and the courts became concerned about the lack of therapeutic and habilitative services in public institutions for people with disabilities. Custodial care was the norm. Professionals in the field were stymied in their efforts to provide good services by lack of staff and funding.

In 1960, a physician and attorney, Dr. Morton Birnbaum published an influential article in the American Bar Association Journal, vol. 46:499-504 (May, 1960), titled, "The Right to Treatment."  He wrote that "there does not appear to have been any significant and realistic consideration given, from a legal viewpoint, to the problem of whether or not the institutionalized mentally ill person receives adequate medical treatment so that he may regain his health, and therefore his liberty, as soon as possible." Dr. Birnbaum's detailed analysis was virtually prophetic of the many issues, and court decisions, which were to come.

In the courts, individual cases were soon followed by class actions, with the courts responding to the dismal conditions by recognizing a constitutional right to treatment. The Supreme Court's decisions are treated in the separate presentation cited below; this presentation notes some of the origins of the right.

In Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966), Charles Rouse had been tried for carrying a weapon without a license. He was found not guilty by reason of insanity and committed without a hearing to St. Elizabeth's Hospital in Washington, D.C. He was eighteen years old. The maximum sentence was one year on the criminal charge. Years later, from the hospital, Rouse filed a petition for habeas corpus challenging his confinement.

Judge David Bazelon, writing for the court in Rouse, held that there is a "right to treatment" for people confined in mental institutions. Although he had a District of Columbia statute to rely on, he explained that denial of treatment raised constitutional questions as well. He observed, "Regardless of the statutory authority, involuntary confinement without treatment is 'shocking.'"

The obligation to provide treatment exists even in the absence of current resources. "Continuing failure to provide suitable and adequate treatment cannot be justified by lack of staff or facilities," wrote Judge Bazelon.

Judge Bazelon became the first appellate judge to say that civilly committed mental patients had a "right to treatment" – that the government, when holding people involuntarily, had an obligation to provide psychiatric care.

Rouse was an individual case. What about the systemic denial of treatment in institutions? The courts began to address that as well.

In the 1971,  Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala. 1971) (right to treatment), 334 F.Supp. 1341 (M.D. Ala. 1971 (finding defendants' remedial plans insufficient), 344 F.Supp. 373 (M.D. Ala. 1972), aff'd, 503 F.2d 1305 (5th Cir. 1974),  a class action challenging horrific conditions in Alabama's institutions for people with both mental illness and intellectual disabilities, a federal district court judge in Alabama ruled that involuntarily committed patients "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." The Court of Appeals agreed.

The Wyatt court imposed detailed standards for institutional care intended to end the custodial harmful care to which the residents were subjected. In addition to requiring professional therapeutic treatment, staffing ratios were mandated, the number of toilets and showers per capita were fixed, square footage of dining rooms, and the temperature of hot water was set.

Wyatt became the paradigm for institutional 'fix-up' cases nationally. Soon, such cases as Welsch v. Likins, 373 F.Supp. 487 (D. Minn. 1974), concluding:

"The evidence in the instant case is overwhelming and convincing that a program of "'habilitation" can work to improve the lives of Cambridge's residents. Testimony of experts and documentary evidence indicate that everyone, no matter the degree or severity of "retardation", is capable of growth and development if given adequate and suitable treatment." 373 F. Supp. at 495.

"It is the Court's duty, under the Constitution, to assure that every resident of Cambridge receives at least minimally adequate care and treatment consonant with the full and true meaning of the due process clause." 373 F. Supp. at 498.

The Halderman v. Pennhurst State School and Hospital case in Pennsylvania was litigated and decided by the District Court in 1974 and 1975 (initial decisions), to the same effect. Significantly, these seminal cases soon became mired in non-compliance and enforcement challenges, with multiple orders and appeals, and eventually consent decrees prior to conclusion. Typically, by the time the cases ended, the emphasis had shifted to community services.

The Supreme Court weighed in on "right to treatment" questions in 1972 and in Jackson v. Indiana, 406 U.S. 715 (1972), and O'Connor v. Donaldson, 422 U.S. 563 (1975), gave support to the constitutional principle that confinement without treatment is not permissible, and that treatment should be provided in the least restrictive manner. For detail on these cases, see my separate presentation on "Civil Commitment and the Least Restrictive Principle" in these materials.

In 1982, ten years after Jackson, the Supreme Court held in Youngberg v. Romeo, 457 U.S. 307 (1982), that due process requires that an institution provide its residents with a minimal level of training or "habilitation." In Youngberg, the Supreme Court concluded, first, that "[t]he mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment." 457 U.S. at 315. There are additional liberty interests and they require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint." Id. at 319 and n. 24. The treatment interests are not "absolute." Whether the constitutional rights have been violated must be determined by "balancing his liberty interests against the relevant state interests." 457 U.S. at 321.  

These constitutional requirements are satisfied when there has been a "professional judgment" in determining what services and care should be provided to residents of state-run institutions. A violation of the professional judgment requirement may be shown in at least two ways:

a. Where no professional judgment has been exercised (including situations where a facility administrator ignores recommendations of professionals), and

b. Where the judgment made by a qualified professional was "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." 457 U.S. at 321-323.

It is important to note that "[t]he decisions of the treating professionals are not conclusive," and the opinions of experts at trial may be "relevant to whether the treating professionals' decisions substantially departed from accepted standards." Williams v. Wasserman, 164 F. Supp.2d 591 (D. Md. 2001), citing Thomas S. v. Flaherty, 902 F.2d 250, 252 (4th Cir.1990) (citation omitted). This case is the fourth in the "Thomas S." line of cases: Thomas S. v. Morrow, 601 F.Supp. 1055 (W.D.N.C.1984) ( Thomas S. I ); Thomas S. v. Morrow, 781 F.2d 367 (4th Cir.1986) (Thomas S. II ); Thomas S. v. Flaherty, 699 F.Supp. 1178 (D.N.C.1988) (Thomas S. III ); and Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir.1990) (Thomas S. IV ).

Youngberg requires balancing an institutionalized person's liberty interests against the "relevant state interests" which the Court identified not as budgetary or administrative but rather as the state's interest in ensuring the exercise of professional judgment. 457 U.S. at 321.(A recent acknowledgment of this right is Judge Ellen Bree Burns' detailed decision in Messier v. Southbury Training School, 562 F.Supp.2d 294 (D. Conn. 2008), finding that institutional conditions generally had been improved from its prior level of dangerousness and other deficiencies to satisfy constitutional muster.).

The decades-long efforts in the many post-Wyatt cases to improve institutional care were followed by development of legal theories to support the shifting of care from institutions to the community. This is discussed in my separate presentation on "The Right to Community Services."

Note: The discussion here selects "highlight" cases or other authorities to describe principles relevant to understanding the legal right which is the subject of this short presentation. This is a starting point for in depth review, not the end point.