Romeo v. Youngberg

OPINION OF THE COURT

ADAMS, Circuit Judge.

The present controversy inhabits the twilight area of developing law concerning the constitutional rights of the involuntarily committed mentally retarded. Nicholas Romeo appeals, through his next friend, from a jury verdict for the defendants, officials of the Pennhurst State School and Hospital, in a suit brought pursuant to 42 U.S.C. § 1983 (1976). Plaintiff alleges trial errors in the admission and exclusion of evidence, in the court's instructions to the jury and in the manner in which the trial was conducted. Because of the improper exclusion of relevant expert medical testimony and critical flaws in the standards that were employed in charging the jury, we vacate the judgment of the district court and remand for a new trial.

While courts in the past decade have carefully focused on the procedural protections applicable to the initial commitment of the mentally handicapped, see Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), relatively little has been resolved with respect to conditions of confinement or the extent of the state’s duty to protect and to treat the institutionalized. Specifically at issue here is the judicial responsibility to enforce constitutional guarantees governing the incarceration of the institutionalized retarded.¹ This, in turn, calls on us to deal with the question of what standards of proof are required in a § 1983 suit for damages, in which a mentally retarded plaintiff claims that the defendants improperly shackled him, failed to provide adequate protection for him, and did not make appropriate treatment available to him. In defining the principles relating to claims for protection and treatment of the retarded, carefully crafted instructions must be utilized that will reflect the duty of courts to safeguard the constitutional rights of those confined, but also will be sensitive to the prerogative of the medical community to exercise its professional judgment and to the undeniable fiscal and administrative concerns of the state.

I.

Romeo is a profoundly retarded person. Although he is physically thirty years old, he suffers from a chemical imbalance of the brain that renders his mental capacity approximately that of an eighteen month old child. For the first twenty-six years of his life Romeo lived with his parents in South Philadelphia. On May 10, 1974 his father died. Within a month his mother, finding herself unable to care for him, applied to the Philadelphia Common Pleas Court for his admission to a mental retardation facility. On July 11, 1974, the court committed Romeo to the Pennhurst State School and Hospital, pursuant to the involuntary commitment provision of the Pennsylvania Mental Health & Mental Retardation Act of 1966. Pa.Stat.Ann. tit. 50, § 4406 (Purdon) (1969).

It is not contested that, while confined at Pennhurst, Romeo was injured on over seventy occasions. These injuries were both self-inflicted and the result of attacks by other residents, some in retaliation against Romeo’s aggressive behavior. The injuries included a broken arm, a fractured finger, injuries to sexual organs, human bite marks, lacerations, black eyes, and scratches. Moreover, some of plaintiff’s injuries became infected, either from inadequate medical attention or from contact with human excrement that the Pennhurst staff failed to clean up.

Since Romeo is incompetent, this action was brought on his behalf by his mother as next friend. The § 1983 complaint seeks damages for the described injuries from three officials at Pennhurst: C. Duane Youngberg, then superintendent, Richard Matthews, director of resident life, and Marguerite Conley, director of the plaintiff’s assigned unit at the time most of the injuries occurred. There is evidence which indicates that each defendant knew of some or all of the seventy-plus injuries suffered by Romeo.

After the case was filed, the district court permitted the plaintiff to amend the complaint to include allegations that, since the initiation of the suit, defendants had kept Romeo shackled to a bed or a chair in the hospital at Pennhurst for long periods each day. The amended complaint, which posited a violation of plaintiff’s constitutional right to treatment occasioned by the shackling, exposure to attacks and inappropriate treatment,² again sought compensatory and punitive damages from the defendants.³

At the time of trial, the district court refused to permit plaintiff’s two experts. Dr. Foxx and Dr. Grover, to testify about the lack of programming and activities on Romeo’s ward, which they believed accounted for his numerous injuries, and about alternative methods of treatment that would have reduced the frequency of attacks.⁴ One of the experts would have testified further that the restraints served no medical purpose and were used solely for the convenience of the staff. The court sustained objections to all of this proffered medical and psychiatric testimony on the theory that admission of such evidence would transform a § 1983 action into a malpractice case.⁵ In addition, the court rejected the plaintiffs proposed jury instruction which maintained that the plaintiff had a right to treatment in the least restrictive environment. The court decided instead that defendants’ shackling practices and duty to protect Romeo should be evaluated solely on the basis of an Eighth Amendment standard. Further, in what was described as an attempt to distinguish this § 1983 suit from a malpractice case, the court subjected plaintiff's claims of inadequate treatment to an Eighth Amendment standard of “deliberate indifference to the serious medical needs of the resident.”

Because we believe that the Eighth Amendment — which limits the scope of judicial review of conditions of incarceration for the criminally convicted to a “cruel and unusual” threshold — is inappropriate in the context of civil as distinguished from criminal confinement, the result reached in the district court must be vacated. Moreover, the uncharted legal issues which have arisen and the potential ramifications of this case impel us to set out in some detail the level of judicial scrutiny that should be accorded the intricate set of legal, medical and societal interests that intersect in the situation presented here.

II.

Of critical importance in this appeal is the recognition that this is a due process case, not a controversy to be governed by “cruel and unusual” principles. Although the complaint alleged Eighth as well as Fourteenth Amendment violations, Ingraham v. Wright⁶ and Bell v. Wolfish⁷ would appear to preclude reliance on the minimal safeguards of the Eighth Amendment in a non-criminal context. Ingraham held that the Cruel and Unusual Punishments Clause is inapplicable in the context of corporal punishment in public schools; Wolfish found Eighth Amendment scrutiny inappropriate for evaluating conditions of pretrial detention.⁸ Indeed, Wolfish explicitly recognizes a right of innocent persons to be free from punishment, a proposition directly grounded in the word “liberty” that appears in the Due Process Clause. See 441 U.S. at 535, 99 S.Ct. at 1872, id. at 580, 99 S.Ct. at 1896. (Stevens, J., dissenting). Thus, it is the Fourteenth Amendment’s prohibition of state deprivation of life, liberty or property without due process of law that is the appropriate fulcrum of our concerns today.

It is necessary, of course, to determine initially whether the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of life, liberty and property. If the answer to that inquiry is in the affirmative, we must then determine what level of judicial scrutiny is applicable to the various interests in issue here.

We are fully cognizant that the propriety of a § 1983 claim, in the present situation, turns on whether a constitutional right is at issue. The concurrence is undeniably correct in requiring that we distinguish between constitutional violations and ordinary malpractice claims. But the implication that the existence vel non of a state remedy — for example a malpractice action — is relevant to the determination of whether a § 1983 claim exists, would appear to be unfounded. Cf. Paul v. Davis, 424 U.S. 693, 715, 96 S.Ct. 1155, 1167, 47 L.Ed.2d 405 (1976) (Brennan, J., dissenting). Nor does the existence of treatment issues in a claim of constitutional infringement, on account of a linguistic similarity, transform the claim into a malpractice action.⁹ Admittedly, the plaintiff’s confinement in a state institution does not dignify every complaint with constitutional stature. Cf. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Nevertheless, there is a distinction for constitutional purposes between conduct by state actors and private citizens. Therefore, understandable concerns with stemming the federalization of common law tort actions, see Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), must not overcome a court’s duty to safeguard legitimate constitutional rights.¹⁰ As Justice Harlan realized, “ ‘liberty’ is not a series of isolated points pricked out in terms of [the Bill of Rights] .... It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752, 1776, 6 L.Ed.2d 989 (1961) (dissenting opinion).

Once a protected interest is found to exist, the proper level of judicial scrutiny is ascertained by the nature of that interest. A court must not be overquick to equate the scope of the right to protection or treatment for the involuntarily confined retarded with the already articulated scope of such rights for the criminally incarcerated.¹¹ Nor are analogies to state or common law precedents controlling — it is federal law that answers the question of what process is due under the Constitution.¹²

The confinement of an individual to an institution for either the mentally ill or mentally retarded entails a “massive curtailment of liberty.” Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). In consequence it is circumscribed by due process protections. Addington v. Texas, 441 U.S. 418, at 425, 99 S.Ct., at 1809. And once inside the institution an individual’s liberty interest is not summarily extinguished.¹³ Rather, those aspects of personal autonomy recognized from the time of Blackstone — the power of locomotion without restraint and the right to personal security¹⁴ — as well as the right to freedom from punishment, require continued respect. These fundamental liberties may be legitimately encroached upon only when justified by an overriding,¹⁵ non-punitive state interest related to the reasons for confinement.

Courts have reached a general consensus on three legitimate state justifications for the confinement of the mentally ill and mentally retarded. These rationales have evolved historically from (1) the protection of society from individuals who constitute a danger, a concept rooted in the state’s police power; to (2) the protection of individuals unable to care for themselves or prone to self-destructive acts, based on police power and parens patriae rationales; and finally to (3) rehabilitation — often limited to habilitation in the case of the mentally retarded — also an exercise of the state’s parens patriae authority.¹⁶ See Addington v. Texas, 441 U.S. 418, at 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, O’Connor v. Donaldson, 422 U.S. 563, 573-74, 95 S.Ct. 2486, 2493-94, 45 L.Ed.2d 396 (1974).

Noticeably lacking, and logically inapplicable to the mentally retarded, are the traditional deterrence and retribution underpinnings of the criminal system.¹⁷ Obviously, the state has no right to punish an innocent individual, and the concept of deterrence has a minimal effect on a severely retarded person, such as the plaintiff here. In seeking to explain claimed infringements of fundamental liberty interests, the state is limited to protection and treatment rationales of a compelling or substantial nature. Involuntary commitment in the civil context, then, quite clearly implicates a constitutional right to treatment and protection.¹⁸ Alternatively, if a claimed post-commitment abridgement does not reach the status of a gross deprivation or squarely cut across constitutionally protected liberty interests, but only tangentially implicates such an important interest, a mutual accommodation between institutional objectives and constitutional provisions is needed. This is so since the very nature of an institution requires some limitation on the retained rights of those who are confined. Cf. Wolff v. McDonnell, 418 U.S. at 556, 94 S.Ct. at 2974. In such instances, security concerns, fiscal constraints and administrative necessities may be adduced to demonstrate that a claimed encroachment is necessary to a facility’s internal operations.¹⁹

III.

In the present case, Romeo’s complaints may be appropriately conceptualized as (1) a right to be free from undue bodily restraint; (2) a right to personal security and protection; and (3) a right to adequate treatment. The first two are undiluted legal concerns, relating to protected liberty interests; as such, they are entitled to heightened judicial scrutiny. The third entails mixed questions of law and medical judgment, and thus requires a more flexible standard of judicial review and suitable deference to informed medical opinion.

The basis of Romeo’s first claim, that he was unduly shackled,²⁰ is clearly inimical to the right of an unconvicted citizen to be free from punishment.²¹ Even though shackling may not be punishment per se, it raises a presumption of a punitive sanction.²² It squarely collides with a traditional liberty interest in freedom from bodily restraint.²³ A valid involuntary commitment ex necessitate extinguishes a retarded person’s right to freedom from confinement. Nevertheless, a residuum of liberty remains which is entitled to due process protection. In Vitek v. Jones, which dealt with the transfer of a prisoner from a prison to a mental hospital, the Supreme Court found that an involuntary commitment to a mental hospital is “qualitatively different from the punishment characteristically suffered by a person convicted of crime.” 445 U.S. 480, 499, 100 S.Ct. 1254, 1266, 63 L.Ed.2d 552 (March 25, 1980). Despite preexisting confinement, a substantial, additional loss of liberty occurred, for which the Court required observance of due process safeguards. Similarly, in the situation before us, shackling is not normally within the range of conditions of confinement contemplated in habilitative institutionalization.²⁴ Neither in Vitek nor in the case at hand do the asserted privations inhere in the original rationales for confinement. Because of the fundamental right at issue here, as well as the substantial risk of error²⁵ and the possibility of significant harm, the proper judicial posture is one of careful scrutiny.²⁶

Plaintiff requested that his shackling claim be analyzed under the rubric of a “right to treatment under the least restrictive conditions consistent with the purpose of the commitment.” In this regard, he submitted the following charge:

Plaintiff contends that he was shackled to his bed or chair for long periods of time each day after he filed this lawsuit. If you find that he could have been provided treatment under less restrictive conditions than those imposed on him, then you must find that his constitutional rights were violated.

The court, however, gave the following instruction:

In order to prove his case the plaintiff must show acts or omissions sufficiently harmful to evidence a deliberate indifference to the serious medical needs of the resident. It is only such indifference that can offend the standards of decency required by the 8th Amendment. App. 2-236a — 2-237a.

We have already recorded our disapproval of the adoption of the Eighth Amendment standard in the mental retardation area. However, we cannot assent as the concurrence suggests, to an analysis which scrutinizes shackling and a right to treatment by a standard that is essentially the same. The Pennsylvania statute generally prohibits such shackling practices, see fn. 21, and similarly, mental retardation professionals have relegated the use of physical restraints to the closets of an earlier age. Logically, Romeo’s shackling claim centers on a liberty interest: a right to be free from bodily restraint.

The trial judge, therefore, should instruct the jury that such shackling may be justified only by a compelling necessity, i. e., that the shackling was essential to protect the patient or to treat him. It should be explained that, except in emergency situations, inadequate resources or administrative rationales offer an insufficient basis for intrusions of this kind on a fundamental liberty interest. As the courts have repeatedly proclaimed, “Humane considerations and constitutional requirements are not, in this 'day, to be measured or limited by dollar considerations.” Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) (Blackmun, J.), quoted in Rozecki v. Gaughan, 459 F.2d 6, 8 (1st Cir. 1972) quoted in Wyatt v. Aderholt, 503 F.2d 1305, 1315 (5th Cir. 1974). Plaintiff is also entitled to a charge, in the alternative, that to absolve the defendants from liability on the shackling claim it would be necessary to find that shackling was the least restrictive method of dealing with the patient,²⁷ in light of his problems and the surrounding environment. A “least restrictive” charge will not only insure that compelling treatment explanations, as opposed to fiscal concerns or staff convenience, were the basis for the shackling, but also that the institution considered and rejected alternative methods of restraining the resident, if some restraint indeed was required.²⁸

A comparison with the result that might be obtained by employing the unitary standard proposed by the concurrence is apposite here. Under the standard advanced by the concurrence, the jury would be charged that shackling is permissible so long as there was not “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the defendants did not base their conduct on a professional judgment.” Arguably, such an instruction assumes that physical restraint for the convenience of the staff would constitute a substantial departure from accepted professional judgment. Yet it is not logically evident that concerns of staff convenience are the sort of departures from medical judgment that rise to the level of being a sham or otherwise illegitimate, as defined in the concurring opinion. More fundamentally, although the standard proposed by the concurrence would probably prevent use of shackling as punishment,²⁹ it would not preclude its use as a substitute for more effective treatment programs. Thus such a standard would fail to give adequate weight to the resident’s substantial interest in freedom from bodily restraint. In addition, it would conflict with the thrust of the state’s interest as proclaimed in § 4422 of the Mental Health and Mental Retardation Act, in prohibiting the use of mechanical restraints except in limited situations.

Our holding that the district court erred with respect to the jury instruction for the shackling claim, and our establishment of a compelling necessity standard for review of such troubling interferences with bodily freedom, necessarily require an additional finding of error in the district court’s exclusion of relevant expert testimony. Under the compelling necessity or least restrictive standards of proof, both sides are, of course, permitted to adduce evidence. Although defendants must justify the shackling as the least restrictive means of handling or protecting the individual, the plaintiff may produce evidence, for example, that restraints were utilized largely because of convenience to the staff. Consequently, Dr. Foxx’s proffered testimony regarding the inappropriate reasons and counterproductive results connected with the restraint of Romeo, was improperly excluded by the trial court.

IV.

From Colonial times to the present day, the concept of liberty has embraced the “right to be free from and to obtain judicial relief for unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). Plaintiff’s second claim, the right to protection from attack, undeniably falls within the compass of this right. The record discloses that while confined at Pennhurst Romeo was injured on over seventy occasions. Some of these injuries were self-inflicted, some resulted from attacks by fellow residents, and some may even have been by the staff. The evidence also suggests that the defendants knew, or had reason to know, of some or all of the injuries suffered by the plaintiff. It would be anomalous to find that the right to a secure environment, which federal courts have often intervened to protect in the context of penal institutions, did not extend to facilities for the mentally retarded.³⁰

The scope and nature of the right of the plaintiff to protection from attack is also capable of judicial demarcation. Both the individual’s right to personal security and the state’s interest in providing care converge to support a right to protection from attack. The state cannot simply confine a person, without more, because he may be a danger to himself or to third parties.³¹ Only after the commission of a discrete criminal act and conviction in accordance with procedural protections is incarceration without more warranted. Consequently, in order to survive constitutional scrutiny, involuntary commitment of a mentally retarded person must combine an interest in insulating society from dangerous behavior with a promise, either express or by implication, to care for and to treat the individual.³² Alternatively, the commitment of a retarded person for treatment purposes or because he is unable to care for himself, necessarily entails the provision of care and protection. The parens patriae power to provide care and protec-turn is thus inextricably bound up m the involuntary commitment of the retarded regardless of the original rationale for the confinement.

Further, in Romeo’s case, commitment was pursuant to Penn.Stat.Ann. tit. 50, Mental Health and Mental Retardation Act of 1966. The state, in confining Romeo, represented that it was “willing and able” to care for him.³³ The statute provides an entitlement to protection³⁴ which, like other state-created entitlements, is guarded by constitutionally acceptable procedures. The right to protection is not activated by an isolated mishap, or called into question by each bruise that a patient may suffer. But a pattern of attacks, injuries or violent behavior such as we have here would create a claim to such a right. While no one is guaranteed an injury-proof life, Romeo, as an involuntarily committed resident of Pennhurst, had a right to humane care and protection, bottomed both on the Pennsylvania statute and the Constitution.

Institutions for the mentally retarded are rarely “open” facilities. Those involuntarily confined are not free to return home, and indeed, many are bereft of any support by family and friends.³⁵ This absence of openness or significant community surveillance and oversight underscores the need for the courts to discharge their traditional function of safeguarding constitutional rights³⁶

Therefore, with respect to the protection claim, we conclude that the trial court erred in its charge. It instructed the jury that:

Under the 14th ... Amendment, state officials at a state mental hospital have a duty to protect involuntarily committed residents from repeated attacks by other patients and staff. Plaintiff ... contends that these defendants violated such a duty to protect him because they were aware of such attacks and failed to take such reasonable steps as [were] required to protect him. If you find that the defendants were deliberately indifferent to the medical and psychological needs of [the plaintiff], then you may find that plaintiff’s ... 14th Amendment rights were violated.

To find for the plaintiff you need not find that the defendants personally participated in any attack upon the plaintiff. If you find that the defendants were aware of repeated attacks upon plaintiff and failed within their sphere of authority to take reasonable steps to protect the plaintiff, then you may find that the defendants are liable for a violation of the plaintiff’s constitutional rights, (emphasis supplied)

As we see it, the jury should be informed that the plaintiff has a right to have his physical safety protected. The plaintiff sought an instruction that defendants had an obligation to “take reasonable steps to protect plaintiff.” Chief Judge Seitz maintains that such a charge is virtually indistinguishable from a state malpractice standard. Infra at 177. However, analysis of this particular claim for constitutional purposes would proceed as follows: because this is a fundamental interest — which conflates plaintiffs right to personal security with defendants’ duty to protect — if the defendants failed to provide for Romeo’s personal security, such failure can be justified, in a § 1983 case, only by substantial necessity. Substantial necessity is more appropriate than the compelling necessity standard employed in connection with the shackling claim, for it enables a court and jury to distinguish between isolated incidents and inadvertent accidents, on the one hand, and persistent disregard of patients’ needs, on the other.³⁷ If the defendants disregarded plaintiff’s injuries or failed to take steps to protect plaintiff then they should be liable unless they can offer explanations based on important state interests.³⁸ However, the least restrictive charge, which is applicable to the shackling claim, is a less meaningful analytic tool in the protection setting because of the very existence of a right to personal security and a duty on the part of the state to protect. We cannot assume that all patients desire and are capable of dealing with the freedoms provided by least restrictive treatment. Moreover, inherent inconsistencies arise in the use of such a concept in the protection area. The least restrictive treatment, which might be the least confining, might provide insufficient protection and care for a particular resident’s wants and needs.

In view of the stance we have adopted regarding the plaintiff’s right to personal security and protection from attack, we hold that it was error for the district court to exclude the testimony of Dr. Foxx and Dr. Grover concerning the availability of treatment programs which would minimize the aggressive behavior and attacks that were unnecessarily prevalent at Pennhurst. Such evidence is relevant in enabling the jury to resolve whether the defendants were properly attending to, or overlooking, the right of the plaintiff to protection from attack.³⁹

V.

Plaintiff’s third complaint turns essentially on a claim of inadequate treatment and a right to treatment in the least restrictive manner. As previously observed, unlike a right to freedom from bodily restraint or to personal security, treatment does not present a purely legal issue. See p. 159 supra. Questions of a court’s relative competence concerning medical decisions and respect for medical judgment, as well as concerns of comity with the legislative and executive branches, place this claim in a different perspective. The move from preventing degrading impositions on human dignity, such as shackling and exposing a resident to continuous attacks, to requiring treatment consonant with individual needs, transfers the court to a subjective realm of decision making. Nevertheless, appropriate deference to medical expertise does not diminish the judicial duty to safeguard liberty interests implicated in treatment decisions.

The right to treatment — or habilitation in the case of the mentally retarded⁴⁰—arises when an individual is involuntarily committed, regardless of whether parens patriae or police power grounds provide the major premise for the confinement. See pp. 158, 162 supra. A court performs two functions with respect to such a right: it requires that treatment be provided to those who require and are willing to accept it, and it places limits on the state’s power to impose such treatment on those who do not desire it. A right to treatment does not create a corresponding duty to submit to any treatment whatsoever; such a simple equation would sanction unacceptable invasions of personal autonomy.⁴¹

At one end of the spectrum, an absolute failure to treat, when treatment is the reason for commitment, raises clear and serious constitutional problems. As the Court noted in O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1974), “where ‘treatment’ is the sole asserted ground for depriving a person of liberty, it is plainly unacceptable to suggest that courts are powerless to determine whether the asserted ground is present.” Id. at 574 n.10, 95 S.Ct. at 2493 n.10. In such instances, it is the court’s duty to insist on appropriate treatment or that the plaintiff be released.⁴² At the other end of the spectrum is the judicial role in dealing with involuntary treatment which occasions severe intrusions on individual dignity. Non-reversible physical operations, such as a vasectomy, or permanent physical alterations by surgical intervention, such as a prefron-tal lobotomy, or the administration of powerful antipsychotic drugs may well constitute fundamental liberty violations.⁴³ Like shackling, it may be that they should be subject to close court scrutiny.⁴⁴ Similarly, the reasons which commend the use of least restrictive analysis with respect to shackling — existence of a judicially assessable, discrete act, which entails a significant loss of individual liberty — may be present in the context of such invasive, involuntary procedures. Since some of these procedures may not be present in the case at hand after it is remanded, we do not address the subject in any detail except to note the possibility of its existence. But, whenever unalterable interferences with bodily integrity. place deprivations of liberty in issue, the law and not medicine is the ultimate decision-maker.

Once analysis transcends the groundlevel question of treatment vel non, however, and settles in the middle ground, legal questions of unconstitutional liberty deprivations begin to merge with medical judgments regarding the appropriateness of the regimen. Inasmuch as we are remanding, inter alia, because the district court’s improper employment of Eighth Amendment scrutiny resulted in the exclusion of the plaintiff’s proffered medical testimony, it is uncertain how the record will develop at trial. However the summaries of medical testimony, offered as proof out of the hearing of the jury, suggest that the trial court may need guidance in a range of situations, involving problems of both intrusive and inadequate treatment. We therefore find it in order to delineate the legal standards and jury, charges applicable in the treatment realm.

Where the issue turns on which of two or more major treatment approaches is to be adopted, a “least intrusive” analysis may well be appropriate. If the staff decides upon a course of treatment which offers some promise of effectiveness without undue risk to the patient, such decision may well come within the ambit of least intrusive means. If the likelihood of serious side effects does exist, however, and substantial improvement is not reasonably expectable, then such judgments might well present a basis for finding that the course of treatment was not the least intrusive under the circumstances.⁴⁵ In making constitutional judgments in such situations, the court must necessarily depend in large measure on medical evidence. Once the least intrusive regime has been selected, therefore, the application of a constitutional standard of “least intrusive alternative” to continuing treatment programs, which often involve qualitative medical determinations subject to daily, possibly hourly changes, would prove unworkable.⁴⁶ The judiciary is not in a particularly advantageous position to determine which of two medications is less intrusive, nor especially competent in assessing present therapeutic benefits versus long-term consequences and side effects for each administration of a drug. Further, least restrictive assumes a direct correlation between restrictiveness and effectiveness, a presumption which can not be medically corroborated in every instance.⁴⁷

Unfortunately, in attempting to craft the appropriate standard to apply to a charge of inadequacy of treatment the courts find themselves in a Scylla and Charybdis situation. On the one hand, the Supreme Court has cautioned that,

Although we acknowledge the fallibility of medical and psychiatric diagnosis, (citation omitted) we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision from a trained specialist using the traditional tools of medical science to an untrained judge or administrative hearing officer.... the supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real.

Parham v. J.R., 442 U.S. 584, 609, 99 S.Ct. 2493, (1979). On the other hand, the Supreme Court has noted that “The medical nature of the inquiry, however, does not justify dispensing with due process requirements.” Vitek v. Jones, 445 U.S. 480, 499, 100 S.Ct. 1254, 1266, 63 L.Ed.2d 552 (March 25, 1980), citing Addington v. Texas, 441 U.S. at 430, 99 S.Ct. at 1811. Although both these statements refer to initial commitment procedures for the mentally ill,⁴⁸ their logic appears equally applicable to judicial review of treatment decisions within institutions for the mentally retarded.

In the present case Romeo was confined pursuant to § 406 of the Pennsylvania Mental Health & Mental Retardation Act of 1966, which provides that commitment is for “care and treatment.”⁴⁹ By basing Romeo’s deprivation of liberty at least partially upon a promise of treatment, the state ineluctably has committed the community’s resources to providing minimal treatment. While Romeo has an entitlement to some treatment,⁵⁰ the evidence in the record, although somewhat contradictory, suggests not so much a total failure to treat as an inadequacy of treatment.⁵¹

Given this situation it would be unrealistic for us to ignore that courts by and large are not in as advantageous a position as the personnel at applicable institutions to make decisions relating to day-to-day or hour-to-hour treatment.⁵² Moreover, the evaluation of standards of adequacy and suitability in the psychiatric field is extremely difficult even for trained personnel, and certainly in the judicial context. Questions in this field, as the Court in Addington noted, often require not only a resolution of complicated factual issues, they turn on the very meaning of those facts — a meaning that must be interpreted by expert psychiatrists and psychologists. 441 U.S. at 429, 99 S.Ct. at 1811.⁵³ And unquestionably, the gap between available resources and those needed for ideal treatment programs is, unfortunately, considerable. Once minimum treatment needs are satisfied, courts should be cautious in requiring legislatures to allocate resources in a way that may well be more desirable, but not constitutionally mandated.⁵⁴

Consequently, with respect to the claim regarding adequacy of treatment, we agree neither with the plaintiff, that he has a right, insofar as day-to-day decisions are concerned, to judicial review based on a constitutional standard of least intrusive,⁵⁵ nor with the defendants that only deliberate indifference to the medical and psychological needs of Romeo constituted a violation of his right to treatment.⁵⁶ It should be made clear to the jury that for the plaintiff to prevail it is necessary to find that an individual involuntarily confined in a facility for the mentally retarded did not receive a form of treatment that is regarded as acceptable for him in light of present medical or other scientific knowledge.⁵⁷ The state should be permitted to adduce evidence of security concerns, administrative necessities and fiscal constraints in the course of explaining its adoption of the challenged program. Thus, if defendants can demonstrate a coherent relationship between a particular treatment program and a resident’s needs, they would not be liable.⁵⁸

The standard articulated here may appear, at first blush, to differ minimally from that propounded by the concurrence. However, the concurring opinion’s concern with distinguishing the constitutional prohibition against a “substantial departure from accepted professional judgment” from a malpractice standard might lead to an approval of all conduct that is “not a sham or otherwise illegitimate.” Infra at 181. We do not believe that such a test can adequately protect a retarded person’s acknowledged constitutional right to treatment or habilitation.⁵⁹ Nor do we believe that the judiciary lacks the tools to ascertain whether the constitutional minimum of medical acceptability proposed here is being fulfilled. While earlier courts struggled to weigh conflicting opinions and contending medical theories regarding severely retarded persons, Congress has recently facilitated a court’s ability to determine whether a coherent relationship between a treatment program and a resident’s needs exists. The enactment of the Developmentally Disabled Assistance and Bill of Rights Act of 1975 provides guidelines, albeit not constitutionally binding, which enhance rational court review.

Should the plaintiff’s constitutional claims fail, the recent case of State of Maine, et al. v. Thiboutot, 448 U.S. 1, 12, 100 S.Ct. 2502, 2508, 65 L.Ed.2d 555 (1980), may provide a remedy under 42 U.S.C. § 1983 for statutory claims grounded in the Developmentally Disabled Assistance and Bill of Rights Act. The potential availability of such a route for redressing infringements or deprivations of rights established by federal statutes further suggests that we are dealing not with matters of common law malpractice, but with fundamental interests of national import.

VII.

Although the varying standards set forth in this opinion may occasion concern that the issues presented to the jury might appear overly complex, we believe they are meaningful and carefully distinguish varying factual situations. It cannot be gainsaid that the act of shackling a resident is substantially different from the implementation of daily treatment decisions. Likewise, a failure to protect an individual from a sustained series of attacks cannot properly be equated with a failure to choose a particular technique for habilitation. Accordingly, special effort should be employed to ensure that juries can intelligently grasp the differences. Such an effort is not completely novel in the law. It takes place, for example, in areas of negligence law, immunity law, and admiralty law. We do not, therefore, share the concern expressed by the concurring opinion that district court judges or juries will be unable to understand these distinctions. Moreover, it is reasonable to expect that future plaintiffs will have grounds for raising only one or two of the claims analyzed here, thus further simplifying the difficult task. In any event, it would be a disservice to an injured person who claims to have been abused during a period of involuntary institutionalization to lump indiscriminately a variety of constitutional violations for the sake of beguiling simplicity. Such oversimplification, so handy in political debate, often lacks the precision necessary for resolving complicated legal questions.

Inasmuch as it is still unclear how the evidence will emerge at the retrial, we have set forth in an appendix what may provide a beginning point for a set of jury instructions in a matter of this type.⁶⁰ Of course the specific instructions submitted to the jury must be carefully structured to reflect the actual record that is developed on remand.

VIII.

Because we have already ruled that a new trial is required, we need not decide whether the other errors raised by plaintiff concerning the method in which the trial was conducted are themselves grounds for a new trial. However, we believe that a comment on the trial court’s approval of dual representation for the defendants is in order. At a final pretrial conference, the attorney who had appeared for all the defendants, as a result of an insurance agreement, requested that both he and the deputy attorney general, who represented the defendants as state employees, be permitted to act as counsel during trial. The district court ruled in favor of this joint participation. In order to explain the presence of both attorneys, the court suggested that insurance counsel identify himself as the attorney for Dr. Youngberg, and that the deputy attorney general identify himself as counsel for defendants Matthew and Conley. The jury was só advised, and heard two sets of opening and closing statements, as well as double cross-examinations, although no separate legal interests or conflicts among defendants were asserted or surfaced.

On remand, the district court should make some ruling on this issue. If it determines that dual representation is permissible, it should set forth supporting reasons.⁶¹ Moreover, the practice of permitting counsel to make deliberate misstatements to the jury, even for the purpose of concealing the existence of liability insurance coverage, is of dubious propriety and should not be repeated.

IX.

In order to appreciate the full problem posed by this case, it is important to note that the Supreme Court has recognized a common law of qualified immunity protecting officials and employees from civil liability for acts performed in the discharge of duties imposed upon them. Such immunity is available even when constitutional rights have been transgressed, if the official or employee was not aware, or had no reason to be aware, of such rights. As the Supreme Court explained in Wood v. Strickland, liability for damages for every action which is found subsequently to have been violative of a person’s constitutional rights and to have caused injury would unfairly impose upon administrators the burden of mistakes made in good faith in the course of exercising discretion within the scope of official duties. 420 U.S. 308 at 319, 95 S.Ct. 992 at 999, 43 L.Ed.2d 214 (1975).

Because of the evolving nature of the rights in issue here, it may well be that the defendants did not know of them or had no reason to know of them — governmental officials are not “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). Institutional administrators are entitled to rely on traditional sources for the factual information incorporated in their policy decisions, and when faced with behavior causing or threatening disruption, have an obvious need for prompt action and judgments, which can only be based on existing knowledge. See Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974). Accordingly, when this matter is remanded for a new trial, the trial judge should instruct the jury regarding the possibility of immunity⁶² with the caveat that defendants’ reasonable belief is to be judged at the time their actions were taken. The jury should further be charged that the defendants are not responsible for unforeseeable developments in the law.

X.

The deplorable conditions at Pennhurst and the manifold problems and anguish that those conditions spawned have been addressed in Halderman v. Pennhurst. The present litigation deals with the more discrete problems facing individual patients and their relationships with officials and employees of the institution. More particularly, it relates to the constitutional rights possessed by such citizens and the responsibilities and duties of officials and employees who are claimed to violate such rights.

Unfortunately, these constitutional rights have not always been clearly perceived, and even when recognized the description of such rights, their articulation, and their application to particular factual patterns has only slowly emerged. Even today, the process is still in its early stages.

The difficulty of the task — and it frequently is difficult to describe with exactitude the contours of developing constitutional protections — is further complicated because the applicable medical disciplines are themselves still in their formative period, and because the resources available to the states are so limited. Nonetheless, where valid rights of citizens are at stake, the courts may not shirk the task of seeking to spell out the elements and details of such rights as carefully as possible.

To the extent that in the past we may have invoked inapplicable analogies, we should be forthright enough to admit the error and to seek to rectify it. To the extent that utilization of other concepts, though appealing, is found to be impractical, we should continue the quest for standards that are realistic and reflective of the changes that are still taking place in psychiatry, psychology, sociology and other related fields that so greatly affect the problems of the retarded.

At the same time we must be cautious in establishing rules that would visit serious financial liabilities on administrators, who, when they performed the acts in question, were not aware of the new standards of rights and responsibilities subsequently formulated by the courts or the new scientific advances that have been achieved to minister to persons who are mentally retarded.

XI.

The judgment of the district court will be vacated, and the case remanded for a new trial.

APPENDIX

I. SHACKLING

If you find that the plaintiff was shackled against his will, and defendants knew or had reason to know of such conduct, you may find the defendants liable unless they can offer compelling reasons for this action. If the defendants satisfactorily explain that it was necessary to shackle the plaintiff for his own protection or for treatment purposes, then they may not be liable. However, it must be demonstrated that the shackling was the least restrictive means of handling the resident — that other, less severe measures had been tried or considered and found unworkable. Only compelling reasons relating to the treatment or the protection of the resident are permissible justifications for shackling.

II. PROTECTION FROM ATTACKS

If you find that the plaintiff was harmed by a series of attacks, and the defendants knew or had reason to know of them, then you may hold the defendants liable. If the defendants knew or had reason to know of these attacks, then only if they provide substantial reasons which explain that the attacks occurred despite their attention will they be deemed to have fulfilled their duty to care for and to protect the plaintiff. Substantial explanations have to do with promoting the treatment or protection of the plaintiff. For example, if the staff considered it important, for therapeutic purposes, to have the resident mingling with others instead of confined to an isolated cell, even though some risk of injury existed, you may consider that to be a substantial explanation. But overcrowded conditions or inadequate staffing patterns may not justify the injuries.

III. ADEQUATE TREATMENT

A. If you find that the plaintiff was involuntarily committed for treatment, and no treatment was administered, and no compelling explanation for the lack of treatment was offered, you may hold the defendants liable.

B. If you find that the plaintiff has received some treatment, you must then determine whether the treatment is regard-' ed as acceptable in the light of present medical or other scientific knowledge. If you find that it is not acceptable, you may find for the plaintiff. In addition, if the evidence does not demonstrate that there is a relationship between the treatment administered and the plaintiff’s needs, even if the treatment is arguably regarded as acceptable in other situations, then you may find for the plaintiff. In deciding upon the adequacy of the treatment program adopted you may consider the defendants’ explanations regarding security concerns, administrative necessities and fiscal constraints.

C. If you find that a selection of a mode of treatment subjected the plaintiff to significant deprivations of liberty, then you must go on and determine whether that decision provided for the least intrusive treatment available under the circumstances. If the defendants considered other alternatives and ascertained that the program adopted was the least intrusive available, then you should find the defendants not liable.

1 . In Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979), cert. granted, 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853 (1980), this Court held that the mentally retarded have a statutory right to treatment and habilitation, enforceable by a private right of action under the Developmentally Disabled Assistance and Bill of Rights Act, Pub.L.No. 94-103, 89 Stat. 496, 42 U.S.C. §§ 6001-6081 (1976). Although confinement of the mentally retarded and mentally ill raises many similar problems for constitutional purposes, it is necessary to be careful not to submerge relevant distinctions. As both the district and appellate courts found in Halderman, with respect to the individuals housed in Pennhurst:

The residents are not mentally ill, have broken no laws, and are not a danger to others, although, in severe cases, some are unable to care for themselves. Mental retardation is an impairment in learning capacity and adaptive behavior, and is not treatable, like mental illness, by means of drugs or psychotherapy. While the mentally retarded do suffer educational difficulties, the level of their functioning can be improved by individualized training. 612 F.2d at 92.

2 . The plaintiffs complaint and the various requests for charge do not describe the exact nature of the constitutional rights asserted by the plaintiff. For example, the plaintiff repeatedly refers to rights under the Eighth and Fourteenth Amendments. Inasmuch as the Eighth Amendment applies only to the state through the Fourteenth Amendment, it is at times unclear whether the Fourteenth Amendment is asserted as a separate legal basis or only ancillary to the Eighth Amendment theory. In any event, we have examined the record and will construe the complaint as asserting that the injuries inflicted on Romeo violated both a substantive due process right and a right to be free from cruel and unusual punishment.

3 . None of the defendants has contended on appeal that these allegations involve matters outside the scope of his assigned responsibilities at Pennhurst.

4 . The court requested an offer of proof and the proposed testimony was summarized out of the jury’s presence.

5 . The court, however, did permit defendants to testify that Mrs. Romeo refused to authorize the use of a physical restraint program on plaintiff. Although defendants contended that this prevented the reduction of Romeo’s aggressive behavior, the rejection of a treatment program would not appear, in itself, to be probative evidence with respect to responsibility or liability. An inquiry is needed to determine the suitability of the proposed treatment, whether rejection of therapy is a manifestation of a patient’s illness or a consequence of valid concerns of guardians or relatives, and whether reasonable efforts were made either to deal with such rejection or to provide some other suitable treatment. Cf. Rouse v. Cameron, 373 F.2d 451, 459 (D.C.Cir.1966).

6 . 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).

7 . 441 U.S. 520, 99 S.Ct. 1861, 61 L.Ed.2d 447 (1979).

8 . See Ingraham v. Wright, 430 U.S. at 668-71, 97 S.Ct. at 1410-12, Bell v. Wolfish, 441 U.S. at 535, 99 S.Ct. at 1872. Admittedly, Ingraham left open the possibility of applying Eighth Amendment analysis to mental institutions, see 430 U.S. at 669 n.37, 97 S.Ct. at 1411 n.37, but the determination in Wolfish the Eighth Amendment is inappropriate for analyzing conditions of pretrial detainees indicates rather clearly that a formal adjudication of guilt in a criminal prosecution is a precondition for Eighth Amendment protection.

9 . Plaintiff Romeo stands in a different posture from the ordinary citizen with respect to medical treatment: he is involuntarily confined for the very purpose of treatment or habilitation. See pp. 158, 162, 167, 168 infra. Unlike most members of the community he is not free to seek or reject medical services whenever he pleases.

10 . As the Halderman Court noted, although mental health policies have traditionally been within the states’ police power, Congressional action in the field was justified by the constitutional underpinnings of the retarded residents’ rights to protection and personal security. 612 F.2d at 98.

11 . See Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292 (deliberate indifference standard adopted to distinguish medical malpractice cases cognizable under state tort law and those rising to level of constitutional abridgement with respect to prisoners). Although the concurring opinion purports to reject the deliberate indifference standard of Estelle, it is not clear that the standard which it advocates for judging constitutionally acceptable conduct— that it “was not a sham or otherwise illegitimate” — provides anything different, or realistically addresses the undeniable distinctions between an involuntarily confined retarded person’s right and a convicted individual’s right to protection or treatment.

12 . Cf. Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1262, 63 L.Ed.2d 552 (1980); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

It should be noted, however, that if plaintiffs claim is not among those rights protected by the Constitution, he may still have a statutory or common law claim adjudicated in the state courts or even in the federal courts under pendent jurisdiction. In Halderman, the Court held that retarded persons have both a private right of action under the Developmentally Disabled Assistance and Bill of Rights Act, and a state statutory right to habilitation. Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 97, 103, 107 (3d Cir. 1979), cert. granted, 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853 (1980).

13 . See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1973). The aphorism that “There is no iron curtain drawn between the Constitution and the prisons of this country,” id. at 555-56, 94 S.Ct. at 2974, would appear to carry equal force with respect to institutions for the mentally ill or the mentally retarded.

14 . Monaghan, Of ‘Liberty’ and ‘Property,’ 62 Cornell L.Rev. 495, 417-12 (1977).

15 . Cf. Bell v. Wolfish, 441 U.S. 520, 532, 99 S.Ct. 1861, 1870, 61 L.Ed.2d 447 (1979), which rejected a compelling necessity standard in holding that the “presumption of innocence” doctrine relied upon by pretrial detainees in that case did not state a sufficiently grave liberty interest to support such a rule. Although the majority in Wolfish suggested that even if detainees had relied on the right to be free from punishment, that right would not warrant adoption of the compelling necessity test, id. at 539, 99 S.Ct. at 1874, the situation of the confined mentally retarded is clearly distinguishable. Whereas pretrial detainees are incarcerated pursuant to a judicial determination of probable cause, the involuntarily committed mentally retarded are untouched by the criminal process. Moreover, 85% of the detainees were released within 60 days, id. at 524, 525 n.3, 99 S.Ct. at 1866 n.3, whereas persons in institutions for the mentally retarded often remain for life. When disabilities imposed in the course of confinement in a mental facility are as severe as shackling, the possibility of punishment— and a right to be free from it — in a constitutional sense, exists.

16 . This is not intended to suggest that a state may involuntarily confine a person solely on grounds of treatment when the individual does not desire any treatment.

17 . See In Re Bally, 482 F.2d 648 (D.C.Cir.1973). See also Bell v. Wolfish, 441 U.S. at 539 n.20, 99 S.Ct. at 1874 n.20 and Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644 (1963), which view deterrence and retribution — the traditional aims of punishment — as outside the realm of legitimate non-punitive governmental objectives.

18 . O’Connor v. Donaldson, 422 U.S. at 576, 95 S.Ct. at 2494 and Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), at a minimum stand for the proposition that simple incarceration, outside of the criminal system, is constitutionally impermissible. Of course, the mentally ill and the mentally retarded cannot be segregated into discrete categories of “dangerous to others,” “dangerous to self,” or “need for treatment.” The very fact of an individual’s dangerousness is inextricably linked to his/her need for treatment. Both theoretically and practically then, treatment is a right and rationale in every instance of involuntary civil commitment.

However, it should be noted that with respect to Pennhurst, this Court fully adopted the district court’s finding that “[tjhe residents are not mentally ill, have broken no laws, and are not a danger to others, although, in severe cases, some are unable to care for themselves.” Halderman v. Pennhurst State School & Hospital, 612 F.2d at 92. The absence of any dangerousness to others only strengthens the state’s obligation to provide treatment to such nonthreatening individuals once the state undertakes to confine them.

19 . Wolfish pointed out that the problems that arise in the day-to-day operations of a state institution are not susceptible of easy solutions. Courts undoubtedly should accord wide-ranging deference to the administrators and physicians in mental facilities with regard to the adoption and execution of policies and practices necessary for internal order and security. Normally, the expertise and responsibility for such operations are located in the legislative and executive branches. But such recognition would appear to be no justification or excuse for the abrogation of legal rights or the abandonment of the judicial obligation to protect such rights. See id. 441 U.S. at 541, 99 S.Ct. at 1875.

20 . The fact that Romeo was shackled is not disputed. See App. l-15a and l-21a.

21 . Pa.Stat.Ann. tit. 50 § 4422 actually forbids shackling, subject to two limited exceptions: (1) during transfer of a patient or (2) by order of the director or his designee for solely medical purposes in accordance with regulations of the department. The record does not disclose that defendants came within either of these two exceptions. See App. I-63a.

22 . Moreover, as the court in Wolfish conceded, were a detainee to be shackled and thrown in a dungeon, “it would be difficult to conceive of a situation where conditions so harsh, employed to achieve objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.” Id. 441 U.S. at 539 n.20, 99 S.Ct. at 1874 n.20.

In the present case, the district court permitted Romeo to amend his complaint to include allegations that defendants had kept plaintiff shackled to a bed or chair in the Pennhurst hospital for long periods of time each day since the initial filing of the complaint. See App. I-15a. Although evidence of retaliation or the subjective motivation of defendants may aid in determining whether there has been punishment or in ascertaining an appropriate remedy, the question whether a constitutional right to freedom from punishment or bodily restraint has been violated should turn on the character of the punishment not the motivation of the officials. Cf. Estelle v. Gamble, 429 U.S. at 116, 97 S.Ct. at 297. (Stevens, J., dissenting).

23 . Freedom from personal restraint was essentially all that due process “liberty” meant until the Civil War. See Shattuck, The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect 'Life, Liberty, and Property,’ 4 Harv.L.Rev. 365 (1891). This is the same liberty that the Court in Addington, 441 U.S. at 425-27, 99 S.Ct. at 1809-1810, sought to protect by establishing a “clear and convincing” evidence standard for initial commitment proceedings with respect to the mentally ill.

24 . The analysis here and the reasoning in Vitek indicate that courts have a duty to guard against unnecessary personal restraints both at the confinement stage and with respect to later, intramural dispositions, which can range from maximum to minimum security. The Fourteenth Amendment does not cease protecting individuals simply because they are behind institutional gates. In Halderman v. Pennhurst, 612 F.2d at 112-13, this Court affirmed a portion of the district court’s order mandating limitations on the use of physical and chemical restraints.

25 . In the present situation, the state, in fact, admitted that the use of restraints was subject to a special procedure, requiring, at the least, an order of a physician. App. I-63a. In addition, according to the statute, a physician’s order should be supplemented by an order of the institution’s director. See n.21 supra.

26 . Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed. 18 (1976), elaborated a three-part balancing inquiry which would indicate the procedural protections required by state action or by a decision such as we have here:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail. Id. at 334-35, 96 S.Ct. at 902-903.

The applicable level of judicial review may also be determined by a similar weighing of relevant interests. Here, the individual interest in freedom from shackling is considerable; the risk of erroneous shackling is indicated by the institution’s failure to follow its own procedures; and the state has no plausible, independent interest in shackling per se, since the state statute generally forbids such practices.

27 . The “compelling necessity” and “least restrictive manner” tests are virtually indistinguishable standards for reviewing the conduct in question. They have been used interchangeably in resolving equal protection, due process and First Amendment claims. See Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

28 . While it will be explained later that “least restrictive” analysis does not appear to be an appropriate tool for evaluating ongoing treatment programs, the reservations regarding this standard expressed in § V infra are inapplicable to shackling claims. Shackling — a discrete physical act of confinement — is more analogous to an initial commitment than to the administration of an evolving medication program. Courts have been deemed competent in judging alternative environmental dispositions, ranging from outpatient services to confinement ip a large state facility. See Halderman, 612 F.2d 84, 102 (3d Cir. 1979) (Congressional preference in Developmentally Disabled Assistance and Bill of Rights Act for establishing least restrictive standards for personal liberty). Shackling presents a similar question of degrees of physical restriction and would appear to be equally amenable to judicial measurement. And just as the Supreme Court sought to protect the substantial liberty interests implicated in an involuntary commitment proceeding by establishing a “clear and convincing” evidence test, see Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 1813, 60 L.Ed.2d 323 (1979), the comparably tangible and fundamental threat to personal autonomy presented by shackling should be protected by a “compelling necessity” test.

29 . Indeed, “there are a number of psychiatrists and psychologists who regard punishment as a legitimate form of therapy and who believe that aversive behavior modification techniques may be freely used to satisfy a patient’s right to treat.” Cf. Schoenfeld, Recent Developments in the Law Concerning the Mentally Ill — A Corner-Stone of Legal Structure Laid in Mud, 9 Univ. of Toledo L.Rev. 1, 17 (1977); Note, Civil Restraint, Mental Illness and the Right to Treatment, 77 Yale L.J. 87, 106 (1967).

30 . The judiciary has recognized that “our constitutional duties require that the courts be ever vigilant to assure that the conditions of incarceration do not overstep the bounds of federal constitutional limitations.” Campbell v. Beto, 460 F.2d 765 at 767-68 (5th Cir. 1972) quoted in Wyatt v. Aderholt, 503 F.2d 1305, 1315 (5th Cir. 1974). See also Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff’d 442 F.2d 304 (8th Cir. 1971). Further, in New York St. Ass’n for Retard. Child., Inc. v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973), the court noted that “One of the basic rights of a person in confinement is protection from assaults by fellow inmates or by staff.” Although initial discussion of the right occurred in a prison setting, the court in Rockefeller employed the same standard in evaluating the institution for the mentally retarded in that case.

31 . In a somewhat analogous situation Robinson v. California, 370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962), held that incarceration on account of mere status is constitutionally impermissible.

32 . Commitment based on reasons of dangerousness to others is, admittedly, more often a concern in confinement of the mentally ill and less likely to be a governing factor with respect to the mentally retarded. As noted in n.18 supra, the district court found that none of the Pennhurst residents were dangerous to others.

33 . Pertinent for present purposes is § 4401 which provides:

“(c) whenever a court commits any person under any provision of this act, it may commit such person directly to a facility willing and able to receive him; otherwise, the court shall commit to a designated local or state facility, or to the Veterans Administration or other agency of the United States upon receipt of a certificate that the person is eligible for such hospitalization and there is available space for his care.” (emphasis added)

34 . While both the right to protection and the right to treatment may have characteristics of property entitlements in that they demand affirmative action from the state and are statutorily created expectations, they are also equally intertwined with the original loss of liberty through confinement and related to basic notions of human dignity. Therefore treatment and protection partake of both liberty and property interests, and it seems unnecessary, at least in the present context, to demarcate these rights in a narrow “either/or” fashion.

35 . The mentally retarded may well be a paradigmatic example of a discrete and insular mi- . nority for whom the judiciary should exercise special solicitude. Cf. United States v. Carotene Products, 304 U.S. 144, 152-53 n.4, 58 S.Ct. 778, 783-84 n.4, 82 L.Ed.2d 1234 (1938). The retarded cannot vote in most states and, with few community ties, sponsors or friends, have minimal impact on the political process. See J. Ely, Democracy and Distrust, 135-79 (1980).

36 . Cf. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (openness of schools to public scrutiny ensures effectiveness of common law remedies in deterring abuses).

37 . Such a distinction is neither arbitrary nor unprecedented. In a similar effort at line-drawing, the Supreme Court in Baker v. McCol-lan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), attempted to give meaning to an earlier pronouncement that “Due process does not require that every conceivable step be taken at whatever cost to eliminate the possibility of convicting an innocent person.” Id. at 145, 99 S.Ct. at 2695, citing Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977). In Baker the Court found that detention for three days did not constitute a liberty deprivation, but that “mere detention pursuant to a valid warrant in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of ‘liberty ... without due process of law.’ ” 443 U.S. at 145, 99 S.Ct. at 2695. Here, we do not require that every conceivable step be taken to prevent a resident from ever becoming bruised. Rather, we recognize that 70 injuries may rise to the level of a cognizable constitutional claim.

38 . For example, the staff might determine that it is therapeutically more desirable to have an admittedly aggressive patient mingling with others instead of confined to an isolated cell. Although this finding would not absolve the defendants of their duty to protect, it might well explain incurring some bruises in the course of a comprehensive treatment goal.

39 . It is questionable whether this testimony would be admissible under the standard advanced by Chief Judge Seitz. Dr. Foxx was prepared to testify that “in his opinion, plaintiffs injuries were a direct result of the lack of programming and activities on the ward.” Dr. Grover’s opinion was, similarly, that the “excessive and potentially mutilating” injuries were a consequence of inappropriate programming. It is not clear whether either would be ready to testify that the programming was “such a substantial departure from accepted professional judgment” as to constitute “a sham,” the test suggested by the concurring opinion.

40 . Although habilitation is the more accurate term for treatment of the mentally retarded this is not intended to negate the possibility of improvement or to convey a static image of the functioning abilities of retarded persons. To the contrary, Congress appears to have based the Developmentally Disabled Assistance and Bill of Rights Act, as well as other recent legislation affecting the mentally retarded, on an acceptance of a “developmental view” of the severely retarded now being advanced by retardation professionals. The Senate Report accompanying the Bill of Rights articulates the developmental view, as well as contending traditional views which the Congress rejected. In part, S.Rep. 94-160 at 27-28 says:

.... Finally, there is the view that developmentally disabled individuals are ‘diseased.’ They are viewed as sick and in need of constant care. This leads to indefinite custodial care. This last model is gradually being replaced by a developmental view of mental retardation. Such a view stresses that all developmentally disabled individuals have potential for learning and growth.

From this developmental model, it follows that custodial care — which is predicated on the assumption that certain individuals are essentially incapable of development — must be rejected. The newer developmental model emphasizes concrete program goals for individuals and therefore encourages evaluation based on specific outcomes.

41 . See Katz, The Right to Treatment — An Enchanting Legal Fiction? 36 U.Chi.L.Rev., 755, 766 (1969).

42 . In Donaldson the jury found that “Donaldson was neither dangerous to himself nor dangerous to others, and also found that, if mentally ill, Donaldson had not received treatment.” Id. at 573, 95 S.Ct. at 2492. Since there was no conceivable ground for confinement and Donaldson sought release, the Court held that Donaldson’s constitutional right to freedom had been violated. That case is distinguishable from Romeo’s insofar as: Romeo has received some treatment; the state’s desire to care for individuals incapable of protecting themselves provides an additional justification for confinement; and Romeo is not seeking release. Admittedly, the situation with a mentally retarded person is different from that of a mentally ill person. Confinement for the latter is frequently of short duration, while confinement of the former is of considerably longer duration. In addition, treatment of the mentally ill may be more central than for the mentally retarded, for whom habilitation may be the prime factor. But while the mentally retarded are not curable as such, few are totally untreatable — as may well be the case which some who are mentally ill. Therefore, instances in which no effective therapy exists, and in which treatment would be futile, potentially requiring a Donaldson-like release, are more likely to arise with the mentally ill. Cf. Schoenfeld, supra note 29, at 15-17.

43 . Because of the incomplete state of the record, it is unclear whether the administration of, for example, dangerous psychotropic drugs, which were found to be misused at Pennhurst, see Halderman v. Pennhurst, 612 F.2d at 93, is in issue with respect to plaintiff Romeo. In light of the fact that we are remanding this case, which has already consumed considerable judicial time, we deem it appropriate to address the panoply of possible treatment problems that may confront the district court in order to aid in a speedier disposition.

44 . Cf. Davis v. Hubbard, 506 F.Supp. 915 (N.D.Ohio, 1980), which undertakes an exhaustive examination of psychotropic drug use in institutions for the mentally ill and suggests that administration of such drugs, as well as inter alia, convulsive therapy, sterilization, and psycho-surgery, involve significant invasions of fundamental interests worthy of constitutional protection. Traditional treatments, the court noted, do not implicate these interests to the same degree.

45 . Of course, this does not dispose of those difficult mid-range situations which involve both the possibility of improvement and the risk of serious side effects. When individuals are the decision-makers the law, out of respect for personal autonomy, appears to allow them to err on the side of risk, see Parham v. J.R., 442 U.S. 584, 602-04, 99 S.Ct. 2493, 2504-05, 61 L.Ed.2d 101 (1979). When the state is the decision-maker, the converse would seem appropriate: such actions should err on the side of safety.

46 . The significant cases embracing the least restrictive concept as a constitutional principle primarily entail a single legislative enactment or a discrete state action. See, e. g., Illinois State B. of Elections v. Socialist Workers Party, 440 U.S. 173, 185, 99 S.Ct. 983, 991, 59 L.Ed.2d 230 (1979) (statute prescribing number of signatures required for listing on electoral ballot); Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (statute requiring noncommercial vehicles to bear license plates with “Live Free or Die” motto); Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct. 1659, 1664, 12 L.Ed.2d 992 (1964) (statute prohibiting issuance of passports to all members of Communist organizations); Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960) (statute requiring teachers to disclose all organizations to which they belong or which they support); Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 297, 95 L.Ed. 329 (1951) (ordinance requiring pasteurization of milk at approved plants within five miles of center of city).

Where the term “least restrictive” has been applied to the mentally handicapped, it has had reference mainly to the initial environmental disposition, not to ongoing therapeutic regimes or medical prescriptions. See Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded for a more specific order, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661, order on remand, 379 F.Supp. 1376 (E.D.Wis.1974); vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), order reinstated on remand, 413 F.Supp. 1318 (E.D.Wis.1976); Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala. 1971), enforced, 344 F.Supp. 373 (M.D.Ala.1972), 344 F.Supp. 387 (M.D.Ala.1972), aff'd in part sub nom. Wyatt v. Alderholt, 503 F.2d 1305 (5th Cir. 1974).

47 . See Hoffman & Foust, Least Restrictive Treatment of the Mentally III: A Doctrine in Search of Its Senses, 14 Sán Diego L.R. 1100, 1141^2 (1977).

In evaluating the meaning of the right to treatment, it is equally important to assess a program in terms of its adequacy — and a highly relevant factor is the resident’s opinion of, and reaction to, the treatment he is receiving. It is by no means clear that an individual resident would consider the least restrictive treatment to be the most adequate. See Katz, The Right to Treatment — An Enchanting Legal Fiction? 36 U.Chi.L.Rev. 755, 780 (1969).

48 . Parham established minimal procedures consistent with the Fourteenth Amendment for the voluntary commitment of mentally ill minors. Vitek prescribed the procedures due before the state can transfer a convicted person from prison to a mental hospital.

49 . (b) If upon examination it is determined that such person is in need of care at a facility, the examining physicians or director, as the case may be, shall immediately report to said court which may order the commitment of such person for care and treatment, (emphasis added) Pa.Stat.Ann. tit. 50, § 4406.

On July 8, 1976, § 4406 was declared unconstitutionally void for vagueness in Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976), although the legislature, in enacting the 1976 Mental Health Procedures Act, P.L. 817 on July 9, 1976 specifically provided that the provisions of the Mental Health and Mental Retardation Act of 1966 (§ 4401 et seq.) were preserved insofar as they relate to mental retardation or to persons who are mentally retarded. In order to continue commitments constitutionally under § 4406 the Department of Public Welfare consented to an October 28, 1976 order of the district court which established standards for involuntary commitment. These standards (“Goldy standards”) are legally binding regulations which enhance the § 4406 provision. In conditioning commitment on a person’s inability to provide for “his most basic need for nourishment, personal and medical care, shelter, self-protection and safety” the regulations represent that such needs will be provided by residential placement. See 6 Penn.Bull. 2884 (Oct.-Nov. 1976).

50 . Similar to the right to protection and care, the right to treatment has both a constitutional base — since it forms the ground for the initial liberty deprivation — and also a statutory base. It can likewise be analyzed as a liberty interest or property entitlement. Cf. Brede v. Director for Dept. of Health, Etc., 616 F.2d 407 (9th Cir. 1980) (property entitlement to treatment at some state leprosarium).

51 . Of course, if after receipt of the relevant medical testimony on retrial, it is ascertained that Romeo received no treatment during significant periods, then the jury should be charged in accordance with Appendix III A not III B.

52 . See generally, Bazelon, Foreward, 57 Geo. L.J. 676-79 (1969).

53 . It has been contended that these medical uncertainties are greater with respect to the mentally ill, on which Addington focused, than in the case of the mentally retarded. For constitutional purposes, this difference would appear insignificant, insofar as a “medically reasonable” standard for ongoing treatment decisions would appear proper for both groups.

54 . Cf. San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Although both were Equal Protection cases, they dealt with an analogous question of what constitutes an adequate provision of public services or funds.

55 . While least intrusive analysis is relatively easily applied when the liberty interest infringed is freedom from bodily restraint, in the case of shackling, or involves conditions of confinement — minimum vs. maximum security — see Halderman, supra; Eubanks v. Clarke, 434 F.Supp. 1022 (E.D.Pa.1977), it merges into questions of medical judgment when the most appropriate method of administering treatment arises. This is not to suggest that such analysis may not be desirable: “least intrusive” may well be the most effective tool for reconciling the treatment needs of individuals, the concerns of libertarians and questions of the proper allocation of limited state funds. Chief Justice Burger’s concern in O'Connor, that a “right to treatment" might provide a ready excuse for needlessly incarcerating socially undesirable individuals, might well be minimized by the least intrusive approach. 422 U.S. at 589, 95 S.Ct. at 2500. And the issue addressed in Addington, that “the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others,” 441 U.S. at 426, 99 S.Ct. at 1809, which the court found to be inadequately served by use of a weak “preponderance” standard in commitment proceedings, might well be furthered by employment of the least intrusive standard.

56 . It would not appear that the Supreme Court’s summary dismissal for want of a substantial federal question in Sanchez v. New Mexico, 396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970), dismissing appeal from State v. Sanchez, 800 N.M. 438, 457 P.2d 370 (1969), which held that an admittedly dangerous patient did not have a right to the least restrictive environment, forecloses inquiry into the matter here. Recent Supreme Court decisions have indicated that summary dispositions are not ironclad rulings, and that their precedential force may well be modulated by subsequent doctrinal developments. See Illinois State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). There have been substantial doctrinal developments since Sanchez in the mental health field, ranging from the Court’s O'Connor decision to the decisions of circuit and district courts recognizing some sort of right to treatment in the least restrictive setting. And in the interim, Congress has also determined that treatment in the least restrictive setting is appropriate to effectuate and protect the rights of the mentally retarded. See 42 U.S.C. §§ 6001-6081 (1976) (Developmental^ Disabled Assistance and Bill of Rights Act). Moreover, our declination to recognize an across-the-board constitutional right to treatment in the least restrictive alternative precludes a square conflict with Sanchez.

57 . The court’s role, in this respect, is somewhat similar to its function when reviewing action by administrative agencies. The standard of review articulated over a decade ago in Tribby v. Cameron, 379 F.2d 104 (D.C. Cir. 1967), remains valid today: the hospital need not necessarily make the best decision, just a permissible and reasonable one. Intelligent judicial review must rely on a well-reasoned analysis by the institution and a record of its treatment decisions. Covington v. Harris, 419 F.2d 617, 626 (D.C. Cir. 1969). Moreover, we recognize that this creates only a narrow judicial guarantee that those confined for treatment and who both seek and require it will receive it. The courts have not, as yet, begun to address whether there is a duty of all involuntarily confined residents to submit to some treatment.

58 . One effective means of resolving complaints regarding treatment programs would be for the institution to provide an internal grievance mechanism with appropriate procedural safeguards. This is not to suggest, however, that a full trial-type proceeding be employed. The adversary character of a full legal hearing is often not suited to the medical determinations at issue in treatment decisions. As the Supreme Court stated in Parham v. J.R., “due process is not violated by use of informal, traditional medical investigative techniques.” Id. 442 U.S. at 607, 99 S.Ct. at 2506. Adversary proceedings might well be counterproductive to the establishment of a therapeutic alliance between physician and patient. And the state interest in avoiding disruption and unnecessary intrusion into medical judgments, as well as the patient’s interest in impartial diagnosis, may best be served by providing for independent decisionmakers from within the institution. See Vitek v. Jones, 445 U.S. 480, 499, 100 S.Ct. 1254, 1266, 63 L.Ed.2d 552 (March 25, 1980).

59 . Admittedly, the intent element of "deliberate indifference” is absent, but that aside, the standard propounded by the concurrence guarantees little more than the Eighth Amendment’s proscription of callous indifference to the serious medical needs of prisoners.

60 . There has been no suggestion or argument made in this case regarding the possibility of different standards for the compensatory and punitive damages claims. While it may be desirable to differentiate such charges and to require explicitly a knowledge or state of mind element in punitive claims, the development of such distinctions must await a more fully adumbrated record.

61 . This written response to any objections of the plaintiff may well include consideration of relevant local rules limiting the number of attorneys who may participate, e. g., E.D. Pa. Local R. 33(a), especially where, as here, representation is joint rather than several. Because the complaint sought money damages from the defendants in their individual, not official, capacity, the Attorney General’s duty or option to defend lawsuits against state employees may be no different in such an instance from that of an insurance carrier under a contract.

62 . See Trial Transcript, Vol. 8, p. 21. It should be noted that in the original class action litigation alleging state and federal statutory as well as Constitutional violations and involving an admittedly different set of Pennhurst officials ■ and plaintiffs, the district court found that “the defendants have met their burden of convincing us by a preponderance of the evidence that they are entitled to the good faith immunity from damages afforded to such officials in connection with the injuries suffered by the named plaintiffs.” Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295, 1324 (E.D.Pa.1977) aff’d and modified, 612 F.2d 84 (3d Cir. 1979).