Doe ex rel. Doe v. Public Health Trust

PER CURIAM:

In his separate concurring opinion Judge Hatchett has sufficiently stated the factual and procedural background of this case and has correctly identified the standard of review. The panel majority, however, differs with Judge Hatchett on the central issues before us and their resolution.

Our concern is focused on the rights of the parties when a child is voluntarily hospitalized in a mental treatment facility, particularly with reference to the parents’ rights of communication with the child and their right to supervise his or her treatment.

Our courts have addressed at some length the rights of persons involuntarily committed to mental hospitals. In the seminal case of Donaldson v. O’Connor, 493 F.2d 507 (5th Cir.1974), we held that such a person has a constitutional right to such individual treatment as will help him be cured or to improve his mental condition. Donaldson and the subsequent holding in Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974), established that the rights therein recognized could be implemented through judicially manageable standards. The requirement that the treatment be accomplished in the least restrictive setting was held in Gary W. v. State of La., 437 F.Supp. 1209 (E.D.La., 1976) to be a convenient summary of the standard applicable to all governmental restrictions on fundamental personal liberties, as set forth in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).

The Donaldson rationale is of key importance to our present inquiry. It began by noting that civil commitment or involuntary hospitalization entails a massive curtailment of liberty in a constitutional sense. Id., 493 F.2d at 520. From this beginning the Donaldson court reasoned that such curtailment is justified only by a patient’s danger to himself and others or the patient’s need for treatment. It concluded that fundamentals of due process were offended when treatment was not in fact provided.

The language of Shelton on which the court focused in Gary W. was as follows:

[E]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in light of less drastic means for achieving the same basic purpose.

364 U.S. at 488, 81 S.Ct. at 252. Even so, the court was quick to point out that the imperative that the least drastic means be considered does not imply that every involuntary patient has a right to a personal judicial determination that his or her care and treatment were the best possible or the least restrictive conceivable. Gary W. v. State of La., 437 F.Supp. at 1217.

The Does argue that the least restrictive requirement is applicable in Jane Doe’s case and was shown to have been violated under the alleged facts by the no-communication rule. They reason that limitations on the parents’ communication with Jane must be measured by due process standards. The contention breaks down, however, when we focus on the voluntary nature of Jane Doe’s hospitalization. Unlike the involuntary patient, the voluntary one has not been forced to suffer any massive curtailment of liberty. Curtailment of liberty in such case does not provide the quid pro quo requiring some corresponding duty on the part of those from whom he or she seeks treatment. The voluntary patient carries the key to the hospital’s exit in her hand. She chooses to accept treatment or not accept it as a matter of the exercise of free will.

The Does assert that parents have the right to decide what medical attention should or should not be provided for their children. They argue that the right can be ignored only upon a showing of compelling state interest. They claim that their rights were violated when defendants did not obtain express and informed consent for specific treatment and medication. In our view the Does exercised their rights to decide what medical treatment should or should not be provided Jane when they decided voluntarily to admit her to Jackson Memorial Hospital. John Doe’s rights to make decisions for his daughter can be no greater than his rights to make medical decisions for himself. The court’s holding in Rogers v. Okin, 634 F.2d 650 (1st Cir.1980), when speaking of a contended right of a voluntary adult patient to refuse antipsychotic medication, is dispositive of the contention:

[T]he district court in effect found that Massachusetts citizens have a constitutional right upon voluntary admittance to state facilities to dictate to the hospital staff the treatment that they are given. The district court cited no authority for this finding, and we know of none. Massachusetts law provides for the voluntary admission of mental health patients who are “in need of care and treatment .. . providing the admitting facility is suitable for such care and treatment.” Mass. Gen.Laws Ann. ch. 123 § 10(a). The statute does not guarantee voluntary patients the treatment of their choice. Instead, it offers a treatment regimen that state doctors and staff determine is best, and if the patient thinks otherwise, he can leave.¹⁰ We can find nothing even arguably unconstitutional in such a statutory scheme.

Id. at 661.

The Does cite Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958), and related cases for the proposition that the state may not deny a benefit to a person on a basis that infringes his constitutionally protected interests. They argue that the rights of family unity and of familial association are fundamental constitutional rights that they cannot be required to surrender as a condition to receiving the medical services provided by Dade County.

Judge Hatchett reasons that Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1974), implicitly recognizes a constitutional right of parents to communicate with a child committed to a state mental hospital else they could not exercise the rights and duties to act in the child’s interest that Parham makes implicit. We assume that some such communication right exists. The majority feels, however, that our efforts to probe the depths and give definition to the murky boundaries of such a communication right are better left to a case involving record evidence and facts as found rather than on review of a motion to dismiss. For the present we differ with the conclusion that under all facts and circumstances restriction of such right constitutes a constitutional violation. In his concurring opinion in Parham Justice Stewart observed,

But not every loss of liberty is government deprivation of liberty, and it is only the latter that invokes the Due Process Clause of the Fourteenth Amendment.

Id. at 622, 99 S.Ct. at 2514. If the no-communication rule to which Jane Doe was subjected was in fact medically legitimate and therapeutic, Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), supports the conclusion that it is not constitutionally offensive. In Wyman a welfare recipient asserted a fourth amendment challenge to New York’s right to require home visitation as a condition for receipt of the public payments. The dissent argued that Mrs. James could not be required to waive her constitutional immunity from search in order to receive the state benefit. 400 U.S. at 328-29, 91 S.Ct. at 391 (Douglas, J., dissenting); 400 U.S. at 344, 91 S.Ct. at 400 (Marshall and Brennan, JJ., dissenting). The majority held, however, that the home visit was at the “heart of welfare administration” and was part of the rehabilitative purpose of the program. The Court concluded that the search was reasonable. 400 U.S. at 318-24, 91 S.Ct. at 386-89. If the no-communication therapy in this case is medically legitimate and is part of the service or benefit being offered by the state, the restriction on communication is part and parcel of the benefit being bestowed. This being so, there would be no improper condition upon the state benefit.

We recognize, of course, that under our liberal rules of pleading a complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). By their “test case” approach the Does have primarily focused the court’s attention on their arguments addressing allegations that defendants violated their rights (1) that Jane Doe be provided treatment in the least restrictive environment, and (2) that defendants must not restrict rights of communication between parent and child and supervision of treatment. These arguments are presented in the context of voluntary patient status. Although we reject the arguments as asserted, they have obscured two claims that we conclude are arguably contained within the amended complaint.

The complaint alleged that Jane Doe entered the hospital as a voluntary patient. Subsequent allegations, however, may be construed to claim that her status became involuntary. Whether or not it became involuntary, because of force or deception, is a question of fact. In addition the Does contend that the no-communication rule is a mere pretext, utterly nontherapeutic and medically illegitimate.¹ If so, and if the benefits of the state provided medical services are conditioned upon a waiver of such right of communication, then the Does will have stated a valid cause of action. Because of these contentions the majority concludes that the district court erred in dismissing the Does’ complaint.

To summarize: The panel majority rejects the contentions (1) that a voluntary, minor mental patient must be treated in the least restrictive environment, (2) that such patient and her parents have communication rights and rights to supervise the treatment which foreclose a bona fide therapeutic no-communication rule. We conclude, however, that the breadth of the Does’ allegations, as argued here and in the district court, are sufficient to include claims (1) that their rights were violated because she was a de-facto involuntary patient and (2) that the no-eommunication rule is nontherapeutic and medically illegitimate and an improper condition upon a state benefit.

REVERSED AND REMANDED.

10 To the extent that patients might be prevented from leaving, they become involuntary patients whose rights are as set forth in the preceding parts of this opinion.

1 . Because the record now before us leaves us uncertain whether appellants will be able to show that the no-communication rule is medically illegitimate, regardless of the standard governing such showing, and because this issue has been inadequately briefed, we decline at this time to reach out and define precisely what showing the Does must make to prove a valid cause of action. If the issue is reached upon remand, we suggest two possibilities that should be considered by the district court. The first possibility is the test enunciated in Youngberg v. Romeo,-U.S.-,-, 102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982) (“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”). The second possibility is that the Does must show that the medical or therapeutic basis for the rule was a mere pretext. By suggesting the foregoing as two possible tests, we do not express an opinion that the two are substantially different, or that other possibilities should not be considered.