Fasulo v. Arafeh

Longo, J.

The plaintiffs, Ann Fasulo and Marie Barbieri, alleging that they were illegally confined by the defendant superintendent of the Connecticut Valley Hospital, a state-operated facility for mentally disordered adults, petitioned the Superior Court for writs of habeas corpus. The court dismissed the writs and the plaintiffs appealed.

Ann Fasulo was civilly committed to Connecticut Valley Hospital in 1951, as was Marie Barbieri in 1964. Both plaintiffs press two major claims in this appeal. First, they argue that since there is a requirement of periodic court review of the necessity for confinement of those individuals who have been acquitted of an offense on the grounds of mental disease or defect, but not for persons like themselves who are civilly committed, their continued confinement violates the equal protection guarantee of article first, § 20, of the Connecticut constitution. They also claim that because their commitments are of indefinite duration and there is no procedure for periodic court review of the necessity for their confinement, their confinement is in violation of the due process guarantee of article first, § 8, of the Connecticut constitution.

We consider the plaintiffs’ due process claim. Though the plaintiffs do not challenge their initial involuntary commitments, the due process safeguards incorporated into that procedure help to illuminate the plaintiffs’ grievances. Among the important requirements of General Statutes § 17-178¹ are a judicial hearing initiated by the state at which the state bears the burden of proving that involuntary commitment is necessary, testimony by independent physicians who have recently examined the subject, and the rights to be represented by counsel, to present a defense and to cross-examine witnesses. Under General Statutes § 17-178 the necessity for confinement is to be determined according to a legal standard as a conclusion of law. The due process clause of the Connecticut constitution shares but is not limited by the content of its federal counterpart. Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 374, 362 A.2d 778. In O’Connor v. Donaldson, 422 U.S. 563, 580, 95 S. Ct. 2486, 45 L. Ed. 2d 396, Mr. Chief Justice Burger in a concurring opinion spoke of the process due a person civilly committed to a mental institution: “There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law. Specht v. Patterson, 386 U.S. 605, 608 [87 S. Ct. 1209, 18 L. Ed. 2d 326] (1967). Cf. In re Gault, 387 U.S. 1, 12-13 [87 S. Ct. 1428, 18 L. Ed. 2d 527] (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-250 . . . [92 S. Ct. 2083, 32 L. Ed. 2d 719]; Jackson v. Indiana, 406 U.S. 715, 738 . . . [92 S. Ct. 1845, 32 L. Ed. 2d 435].”

As recognized by General Statutes § 17-178, the authority of the state to confine an individual is contingent upon the individual’s present mental status, which must be one of mental illness amounting to a need for confinement for the individual’s own welfare or the welfare of others or the community. See General Statutes § 17-176. The original involuntary commitment proceeding can only establish that the state may confine the individual at the time of the hearing and for the period during which the individual is subject to the requisite mental illness. As the United States Supreme Court has recognized, “[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which an individual is committed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435. Once the purpose of the commitment no longer exists, there is no constitutional basis for the state to continue to deprive the individual of his liberty. See O’Connor v. Donaldson, supra, 575. To satisfy due process, the procedure for releasing a civilly committed patient must be adequate to assure release of those who may no longer constitutionally be confined. Due process is a flexible concept, the content of which must be renewed each time it is used to measure the adequacy of challenged procedures. In general, “the thoroughness of the procedure by which [a] deprivation is effected must be balanced against the gravity of the potential loss and the interests at stake.” Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 45, 327 A.2d 588. It is significant to this case that the process afforded an individual must be “tailored to the capacities and circumstances of those who are to be heard.” Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S. Ct. 1011, 25 L. Ed. 2d 287.

These plaintiffs have been deprived of their liberty. Their loss is already great, but can be initially justified as a result of the legitimate exercise of the parens patriae power of the state. The plaintiffs, however, have been committed indefinitely and confiined for periods of twenty-six years and thirteen years respectively, thus requiring us to heed the warning of the United States Supreme Court that the longer the commitment, the greater the safeguards which are required to ensure that no one is deprived of liberty without due process. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-50, 92 S. Ct. 2083, 32 L. Ed. 2d 719. We must, therefore, review the plaintiffs’ claims in light of the important interest at stake — liberty— and the great loss which its extended deprivation constitutes.

Any procedure to allow the release of involuntarily confined civilly committed individuals must take account of the controlled and often isolated environment of the mental hospital from which the confined individuals will seek release. It must calculate the possible incompetence of those confined, their limited knowledge of release procedures, the cost of pursuing review and the amount of effort necessary to pursue review. Further, the procedure must be adapted to the possible effect of drugs or other treatment on the patient’s capacity and must be formulated with consideration of institutional pressures to rely on the medical judgments of the hospital staff rather than to pursue extrainstitu-tional legal remedies. See note, “Civil Commitment of the Mentally 111,” 87 Harv. L. Rev. 1190, 1398.

At present, Connecticut provides several routes by which a mental patient can challenge his confinement. General Statutes § 17-192 allows for release (1) by order of the Probate Court “upon application and satisfactory proof that such person has been restored to reason,” or (2) “[i]f the officers, directors or trustees of a state hospital for mental illness are notified by the superintendent or other person in a managerial capacity of such institution that he has reason to believe that any person committed thereto by order of a probate court is not mentally ill or a suitable subject to be confined in such institution, such officers, directors or trustees may discharge such person.” Under the second method the patient runs the risk of having his release prevented by a superintendent whose determination may later be found by a court to have been erroneous. See O’Connor v. Donaldson, supra; McNeil v. Director, Patuxent Institution, supra. Furthermore, the second procedure disregards the fundamental fact that the state’s power legitimately to confine an individual is based on a legal determination under General Statutes § 17-178 “that the person complained of is mentally ill and dangerous to himself or herself or others or gravely disabled” and that the commitment shall only continue “for the period of the duration of such mental illness or until he or she is discharged in due course of law.” The state’s power to confine terminates when the patient’s condition no longer meets the legal standard for commitment. Since the state’s power to confine is measured by a legal standard, the expiration of the state’s power can only be determined in a judicial proceeding which tests the patient’s present mental status against the legal standard for confinement. That adjudication cannot be made by medical personnel unguided by the procedural safeguards which cushion the individual from an overzealous exercise of state power when the individual is first threatened with the deprivation of his liberty. See General Statutes § 17-178. In order to hold that judicial review of involuntary confinement is unnecessary, we would have to conclude either (1) that the procedural safeguards provided at the initial confinement hearing are not mandated by due process or (2) that subsequent deprivations of liberty are somehow constitutionally less serious and that the individual, therefore, can be confined with less process due. We reject both of these conclusions and hold that the due process clause of the Connecticut constitution mandates that involuntarily confined civilly committed individuals be granted periodic judicial reviews of the propriety of their continued confinement. We do not mean to suggest that a patient may not be released pursuant to the second procedure provided by General Statutes § 17-192. Rather, we reject the argument that, standing alone, it is adequate to provide an involuntarily confined civilly committed individual with due process.

We also find the first method of release provided for in General Statutes § 17-192 constitutionally deficient. The method allows release of a patient after he has applied to the Probate Court for discharge and has proved that he has been “restored to reason.” We find this procedure inadequate on two grounds. First, it places the burden of initiating review of his status on the patient, a requirement which suffers from conceptual as well as serious practical deficiencies. As we stated previously, since the state’s power to confine is premised on the individual’s present mental status, the original involuntary commitment proceeding can only establish that the state may confine the individual at the time of the hearing and for the foreseeable period during which that status is unlikely to change.¹ Upon the expiration of that period, the state’s power to deprive the patient of his liberty lapses and any further confinement must be justified anew. The state, therefore, must bear the burden of initiating recommitment proceedings.

This same reasoning applies to the burden of proof at the recommitment hearing. The burden should not be placed on the civilly committed patient to justify Ms right to liberty. Freedom from involuntary confinement for those who have committed no crime is the natural state of individuals in this country. The burden must be placed on the state to prove the necessity of stripping the citizen of one of his most fundamental rights, and the risk of error must rest on the state. Since the state has no greater right to confine a patient after the validity of the original commitment has expired than it does to commit him in the first place, the state must bear the burden of proving the necessity of recommitment, just as it bears the burden of proving the necessity for commitment.

Furthermore, to require a patient to initiate judicial review of his confinement and to bear the burden of proving the nonexistence of the necessity for that confinement ignores the practical considerations discussed above which are inherent in the mental patient’s situation. Briefly, these include the difficulties of overcoming an isolated environment to initiate and coordinate a challenge to one’s confinement. For instance, we cannot assume that friends and allies will always be available to secure counsel and marshal evidence' on the patient’s behalf. Nor can we assume that even if a patient is notified of his right to pursue any of the available remedies, he will be adequately protected. The state has suggested that the procedure provided in General Statutes § 17-178, as amended by section 3 (b) of 1976 Public Acts, No. 76-227, effective in March of 1977, met the constitutional arguments of the plaintiffs. That statute as amended is not now before us and we decline to rule prematurely on its provisions. We note, however, that many of the safeguards we have found necessary in this opinion are provided for in the new statute, particularly the right to a recommitment hearing with all the procedural safeguards of the initial commitment hearing at which the burden of proving the necessity for confinement rests on the state. Unfortunately, though the statute provides for annual notice to patients of their right to a hearing, the burden of requesting and, therefore, initiating review remains with the patient. The state seeks to justify this procedure by arguing that allowing the patient to choose whether to have a hearing will avoid unnecessary judicial proceedings. We doubt whether this rationale is adequate since it ignores the practical difficulties of requiring a mental patient to overcome the effects of his confinement, his closed environment, his possible incompetence and the debilitating effects of drugs or other treatment on his ability to make a decision which may amount to the waiver of his constitutional right to a review of his status. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854; Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461.

The second method for release is contained in General Statutes § 17-178, which provides that a committing court “may, after hearing, when it finds it to be for the best interest of the person so committed, revoke such order of commitment.” This is a discretionary provision with uncertain legal standards for its administration which cannot guarantee the accuracy and fairness of the determination and which cannot substitute for periodic judicial review of commitments.

Under General Statutes § 17-200, a patient may be discharged on the recommendation of a commission appointed by a Superior Court judge after receiving information that a patient is illegally confined. This type of discretionary review, while potentially of benefit to the patient, cannot take the place of regular periodic review at which the patient will enjoy procedural safeguards guaranteeing an adequate review of his condition.

Finally, a patient may challenge the legality of his confinement through a writ of habeas corpus, pursuant to G-eneral Statutes § 17-201. This method of securing review falls short of the constitutional standard we have enunciated today since the burden of initiating review remains with the patient. We, therefore, conclude that the trial court erred in holding that the procedures presently available to these plaintiffs satisfy due process.

We, therefore, hold that these plaintiffs have been denied their due process rights under the Connecticut constitution by the state’s failure to provide them with periodic judicial review of their commitments in the form of state-initiated recom-mitment hearings, replete with the safeguards of the initial commitment hearings, at which the state bears the burden of proving the necessity for their continued confinement.

Because of our disposition of the plaintiffs’ due process claim, we find it unnecessary to reach their equal protection claims. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S. Ct. 466, 80 L. Ed. 688 (concurring opinion of Brandeis, J.).

It is, therefore, ordered that the writs be granted and that the plaintiffs be afforded a hearing at which the state must justify their continued confinement.

There is error, and the case is remanded with direction to grant the writs in accordance with this opinion.

In this opinion Speziale, J., concurred.

1 Section 17-178 is one of several statutes (§§ 17-176 — 17-206k) dealing with the general provisions for the commitment of mentally ill and drug dependent persons.

1 As the United States Supreme Court stated in O’Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S. Ct. 2486, 45 L. Ed. 2d 396: “Nor is it enough that Donaldson’s original confinement was founded; upon a constitutionally adequate basis, if in fact it was, because even if his involuntary confinement was initially permissible, it could not constitutionally continue after that basis no longer existed.” Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435; McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-50, 92 S. Ct. 2083, 32 L. Ed. 2d 719.