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The Evolution of Disability Rights Litigation (and some stories)

David Ferleger, Esq.

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In the Supreme Court: The Right to Treatment (Part 2)

We know that confinement in an institution without treatment is something that is illegal, but let's talk a little bit about how that idea developed. It didn't develop in the Supreme Court until much later, the 1970s, but a very forward thinking psychiatrist and lawyer, Dr. Morton Bierbaum, in 1960, wrote an article in the American Bar Association Journal called "The Right to Treatment," and he, before any of the litigation, any of the legal thinking that developed, he argued that there ought to be for people with, in fact in his case, mental health issues, a right to treatment when one is in an institution. Very few people probably go back and reread his now very old article, but it wasn't a cavalier treatment of the subject, it wasn't a pro-forma argument. In great detail he laid out all the reasons why, given the lack of mental health services, folks with mental health, emotional problems should have a right to treatment.

Well, eventually, the courts began to catch up. In 1966, Judge David Bazelon, a federal judge in Washington D.C. had a case in front of him involving Charles Rouse. Charles Rouse was a young guy, 18. He'd been convicted of carrying a weapon. It was a crime, maximum sentence one year. He was put into a mental hospital for treatment and years later he went to court and challenged the absence of treatment that he was receiving. And Judge Bazelon said that confinement in a hospital without treatment is shocking, that was his word, shocking. And the Judge held that the government cannot confine someone in an institution without providing treatment.

Well, eventually the U.S. Supreme Court got into the act in 1972, in the Jackson vs. Indiana case involving a man who was a deaf mute, would never recover competency to stand trial, can't be held indefinitely. It didn't discuss treatment, just said you can't keep that person in a hospital indefinitely or in jail. And then, in 1975, the citing in Donaldson vs. O'Connor that a man who wasn't dangerous, Ken Donaldson, held for 15 years in an institution, without any treatment at all. No doctor in the institution except an obstetrician, no nurse except one who worked in an infirmary, a thousand patients, no therapists, no treatment. The Supreme Court held that someone who was not dangerous like Ken Donaldson can't be held without more, whatever that means, without more, in an institution, if he could live safely on the outside of the institution. So we began to see the development of the notion that there is some kind of right to treatment in these cases on in very individual cases on individual facts. Meanwhile in the lower courts, other courts were coming the same way. In Minnesota, there was a case, in North Carolina there was a case, Pennsylvania, the Pennhurst case I was involved in.

Then in 1982, the Supreme Court had before it an individual case, another one of those individual cases, involving the Pennhurst Institution, called Romeo vs. Youngberg. A friend of mine, Ed Teriac, was the lawyer who had brought the case. In that case, Nicolas Romeo had been injured repeatedly in the retardation institution, filed the damage case and the Supreme Court said that there is in fact a right to treatment their right to habilitation, and you cannot deny someone that right while they're in the institution. And then the court went further and addressed, well, what's the standard? How do you know what is or isn't adequate treatment? It's not like a medical negligence case because we're dealing with the U.S. Constitution, which doesn't have any negligence provisions.

So the Supreme Court held that you need to have those rights that give you minimally adequate treatment and it has to be treatment acceptable among the professionals. So there was some level of deference to the professionals, but if a decision is made that's outside the domain of being a professional judgment, then that itself constitutes a denial of treatment. The court also said there is a right to medical care, a right not to be unreasonably restrained and several other rights.

So we have a development in the Supreme Court of the right to treatment within certain parameters, and then other courts started to think about what that means outside of, I'll call it the core treatment area. And this is an area that is sort of worth consideration because courts began to get involved maybe even too involved in the details of the running of institutions.

In the famous Wyatt v. Stickney case in Alabama, the court said you have a right to treatment, but then entered an order specifying the number of square feet for a bedroom. How many toilets there should be for x number of patients, what the temperature should be of the hot water, what the staffing ratio should be for every level of professional staffing. So the court began to virtually build up the institution in terms of resources needed by going into tremendous detail that I think we can fairly say is not required by the Constitution or by federal law. And, ironically, those 1970s I'll call them institutional reform cases, and there were some beyond the 1970s, then almost had to be put in reverse when it came to those cases saying people should be able to leave the institutions.

So let me close by saying, describing a problem that I used to give my law students when I taught these kinds of cases, which is – If you are an advocate filing a lawsuit for people in one of these institutions and you're pretty sure you can get, lets say 10 million, 30 million dollars in new money. And this is an institution without air conditioning, without enough staff, without the amenities that people need. Do you push in your lawsuit for improvement of the institution, or do you push for community placement, that that tens of millions of dollars could pay for? And then, how do you decide that? Do your clients decide? Do you decide? And, how do you push the policymakers in terms of their decisions?

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