Matter of Plummer

ROGERS, Chief Judge:

In these consolidated appeals, appellant Donald Plummer, a civilly committed adult, raises several challenges to the validity of his commitment as an involuntary inpatient at Saint Elizabeths Hospital (“the Hospital”). He contends that (1) the court order revoking his earlier outpatient commitment was invalid because the Hospital failed to file a timely revocation petition after appellant was returned to the institution; (2) the revocation order was invalid because the Hospital failed to demonstrate at the revocation hearing that indefinite inpatient commitment was the least restrictive treatment alternative; and (3) once the Hospital released him to the community on indefinite convalescent leave, he became a de facto outpatient, requiring the Hospital to honor his due process rights when returning him to the institution. We agree with appellant’s third contention, and accordingly reverse.¹

I

Appellant was originally civilly committed in 1983, and ordered to participate in an outpatient course of treatment under the supervision of the Hospital. D.C.Code § 21-545(b) (1989). The outpatient commitment order allowed the Hospital to return appellant to the Hospital for inpatient treatment if he failed to participate in outpatient treatment, or if his condition deteriorated, for up to five days, with oral notice to his counsel within twenty-four hours of his return to the Hospital. At the end of five days, the Hospital was required to restore appellant to outpatient status unless, within that period, the Hospital had petitioned the court for revocation of the outpatient order.

Between 1983 and 1986 appellant participated in outpatient treatment. Although on several occasions he failed to comply with the prescribed course of treatment, and was returned to the Hospital for brief periods of inpatient treatment, appellant resided in the community for the vast majority of that three-year period and received outpatient care. On October 28, 1986, after failing for approximately one month to take his medication, appellant was returned to the Hospital in a deteriorated mental state. The Hospital filed a timely notice of rehospitalization with the court, and the trial judge issued an ex parte order finding probable cause for appellant’s return to the Hospital.

On November 6, 1986, the Hospital filed a petition to revoke appellant’s outpatient commitment status. After a hearing at which a psychiatrist from the Hospital and appellant’s sister testified, the trial judge concluded that appellant required inpatient hospitalization, at least for “eight weeks or a little bit more.” The judge revoked appellant’s outpatient commitment, and ordered appellant committed as an inpatient “for an indefinite period.” Appellant’s challenge to this order is the basis for appeal No. 86-FM-1697.

After the revocation order, appellant spent just over a month in the Hospital, and was then released on “temporary leave.”² On February 18, 1987, the Hospital placed appellant on “convalescent leave,” which meant that he was allowed to remain in the community for an indefinite period, receiving occasional “outpatient services” from the Hospital. On May 28, 1987, appellant filed a motion with the trial court, asking that his commitment order be modified to reflect the fact that he was now effectively an outpatient. See Super.Ct.Civ.R. 60(b) (1990). By the time the trial judge heard oral argument on September 16, 1987, appellant had resided in the community for eight months, receiving outpatient psychiatric services from the Hospital. The trial judge denied the motion, relying in large part on an affidavit from one of appellant’s treating physicians. The affidavit indicated that although appellant had continued to keep his outpatient appointments, “[tjhere has been no increase in his insight to mental illness and no change in his mental attitude.” Thus, appellant retained the legal status of an inpatient, subject to return to the Hospital without any due process rights. This order is the basis for appeal No. 87-FM-1239.³

II

After appellant’s outpatient status was revoked, the Hospital kept him in the institution for a period of weeks, and then released him on indefinite convalescent leave on February 18,1987. Appellant contends that once he was released to live in the community for an indefinite period of time, he became a de facto outpatient, entitled to the same due process rights as a patient who is originally committed as an outpatient. See In re Richardson, 481 A.2d 473 (D.C.1984). We agree.

The court in Richardson, supra, stated that the question posed by the case was “the appropriate procedures to be followed when reexamining a mentally ill individual, on an inpatient basis, who has previously been permitted to live in the community.” Id. at 476. The court concluded that (1) “the Superintendent of the Hospital must provide the court with an affidavit within twenty-four hours of a patient’s return to the institution,” (2) the court must “make a prompt, ex parte determination that the patient has failed to abide his treatment regimen or has suffered a deterioration in his condition,” (3) “patient’s counsel must also be provided with a copy of the affidavit within twenty-four hours of the patient’s return,” and (4) “both the patient and his counsel shall be informed in writing that the Hospital must either release him after the fifth day of institutional care and observation, or thereafter move for a prompt adversary judicial hearing seeking the permanent revocation of his outpatient status.” Id. at 480-81. A committed outpatient must receive these so-called “Richardson rights” when the Hospital returns him or her to the institution.

Although Richardson arose in the context of a patient whose original commitment order authorized “outpatient” treatment, we agree with appellant that similar considerations apply here. Every person committed, whether as an inpatient or an outpatient, has the right to treatment by the least restrictive means. Id. at 479. Once the Hospital releases an inpatient to live in the community for an indefinite period of time, that patient obtains an “interest in not being erroneously deprived of his freedom to remain in the community.” Id. at 482.

Several courts from other jurisdictions have also recognized the important liberty interest possessed by committed inpatients who are released on indefinite leave. See In re Application of True, 103 Idaho 151, 645 P.2d 891 (1982); see also Birl v. Wallis, 619 F.Supp. 481 (M.D.Ala.1985); Lewis v. Donahue, 437 F.Supp. 112 (W.D.Okla.1977) (three-judge court); Meisel v. Kremens, 405 F.Supp. 1253 (E.D.Pa.1975) (Higginbotham, J.); In re Commitment of B.H., 212 N.J.Super. 145, 514 A.2d 85 (1986). As the court in Application of True, supra, stated:

The granting of out-patient standing did change [the patient’s] situation — she ceased to be a person who was institutionalized and became a person permitted to enjoy a substantial degree of liberty. Conversely, revocation of leave effected an involuntary transfer from a relatively non-restrictive environment to a restrictive one, and a correlative deprivation of a measure of freedom.

103 Idaho at 156; 645 P.2d at 896 (quoting Lewis v. Donahue, supra, 437 F.Supp. at 114). These courts have analogized conditional release from a mental hospital to parole. Because the Supreme Court has held that a parolee is entitled to notice and a hearing before the state can revoke his conditional liberty, Morissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972), courts have concluded that a patient on indefinite leave from an institution is similarly entitled to certain due process rights when returned to the institution for inpatient care:

The liberty at stake in a civil commitment proceeding is as valuable an interest as the liberty at stake in a criminal trial. And the Supreme Court has unanimously held that the “conditional liberty” of the paroled criminal falls within the scope of the Fourteenth Amendment and is entitled to the protection of the Due Process Clause_ I cannot see how the “conditional liberty” of the paroled mental patient differs in any significant respect from the “conditional liberty” of the paroled criminal....

Meisel v. Kremens, supra, 405 F.Supp. at 1256 (citations omitted); see also Birl v. Wallis, supra, 619 F.Supp. at 490 (“due process requires that mental patients ... be given certain basic procedural safeguards before they are returned from trial visit”); Lewis v. Donahue, supra, 437 F.Supp. at 114 (holding unconstitutional a statute “which permits the revocation of out-patient or convalescent leave without notice or opportunity to be heard prior to re-institutionalization”); Application of True, supra, 103 Idaho at 163, 645 P.2d at 903 (the “minimum due process requirements” for return of an inpatient on conditional leave are prompt written notice of the reasons for re-institutionalization, and a hearing before a neutral body as soon as reasonably possible); Annotation, Right to Notice and Hearing Prior to Revocation of Conditional Release Status of Mental Patient, 29 A.L.R. 4th 394 (1984); Note, Constitutional Law: The Summary Revocation of an Involuntary Mental Patient’s Convalescent Leave — Is it Unconstitutional?, 33 Okla.L.Rev. 366 (1980). But see Hooks v. Jaquith, 318 So.2d 860 (Miss.1975).⁴

The District of Columbia Hospitalization of the Mentally Ill Act, D.C.Code §§ 21-501 to 21-592 (1989) (“the Act”), is designed to protect the liberty interests of the patient. See In re Feenster, 561 A.2d 997, 999 (D.C.1989). With the advances in the medical treatment of the mentally ill, the old distinctions between inpatients on convalescent leave and outpatients may lose much of their clarity. As the Hospital has modified its methods of treatment, the courts have tried to be supportive of those efforts. But while old definitions of “inpatient” and “outpatient” may give way to new arrangements, what remains clear is the protection that is afforded to the patient under the statute. When a patient who is living outside the Hospital suffers a relapse after ceasing to take his or her medication, and the Hospital determines that the patient can function indefinitely on convalescent leave outside the Hospital, the patient acquires procedural rights that must be respected before the patient can be involuntarily returned to the Hospital for an indefinite period of time. Appellant, as a committed inpatient on indefinite convalescent leave, was entitled to protection similar to those described in Richardson, supra, 481 A.2d at 480-81.⁵

Accordingly, because appellant became a de facto outpatient once the Hospital placed him on indefinite convalescent leave, appellant must be granted the legal status of an outpatient, see Feenster, supra, 561 A.2d at 1000;⁶ the judgments in appeal Nos. 87-FM-1239, and 87-FM-1423 are reversed, and the case is remanded to the trial court with instructions to order that appellant’s outpatient commitment be restored in accordance with this opinion.⁷

Reversed and remanded with instructions.

1 . We therefore do not address appellant’s first two contentions.

2 . The Hospital regulations at that time defined a patient on “temporary leave” as one who is allowed to live in the community for a period not to exceed thirty consecutive days.

3 . The record reflects that appellant was in fact returned to the Hospital on several occasions after the September hearing, pursuant to D.C.Code § 21-592 (allowing the Hospital to request a court order to return an inpatient who "has left [the] institution without authorization or has failed to return as directed”). On one such occasion the trial judge granted a hearing on the Hospital’s § 21-592 order, at which appellant again urged the court to grant him the legal rights of an outpatient. The judge denied appellant’s motion, which forms the basis for appeal No. 87-FM-1423.

Appellant also challenges the Hospital’s practice of obtaining ex parte court orders to return inpatients to the institution, in appeals No. 88-FM-642 and No. 88-FM-1565. We do not reach this issue. See note 7, infra.

4 . The Hospital attempts to distinguish these cases as involving either "specific statutory schemes for ‘conditional release’ of patients to the community" or "procedures specifically contained in state mental health policies.” Regardless of the source of the Hospital’s authority to release committed inpatients, however, a patient on convalescent leave has a protected interest in remaining in the community. Indeed, many of the courts declared unconstitutional the “specific statutory schemes” allowing summary return to the institution. See, e.g., Lewis v. Donahue, supra, 437 F.Supp. at 114. The fact that in the instant case the Hospital could not rely on an express authorization to release appellant (and subsequently to return him summarily) cannot insulate the Hospital’s practice from judicial scrutiny in view of the statutory and constitutional rights which are implicated.

5 . The Hospital contends that "appellant never specifies what cut-off time the court should require before” an inpatient released to the community acquires a conditional liberty interest which cannot be impaired without Richardson-type procedures. We need not establish any specific time-table. For purposes of this appeal it suffices to establish that once the Hospital decided to place appellant in the community on convalescent leave for an indefinite period of time, appellant obtained rights similar to those described in Richardson. We leave to another day the question whether an inpatient released on "temporary" leave for a sufficiently long fixed period of time could similarly become a de facto outpatient.

6 .As in Feenster, supra:

[The patient's] proper status is that of a civilly committed outpatient undergoing voluntary treatment at the hospital. If [he] were to decide to leave the hospital and the hospital were to conclude that [his] status as an outpatient would threaten his health or well-being or the safety of the community, the hospital, of course, is not without recourse to detain him. Should [he] apply for release, the hospital may hold him for forty-eight hours, if necessary, to decide whether it wishes to initiate outpatient revocation procedures. D.C.Code § 21-512 (1981). If the hospital decides to detain [him], it must notify him and his counsel (if he is represented) of its decision immediately. Then, following Richardson, [supra,] 481 A.2d at 480-81, within twenty-four hours of the detention decision — i.e., no more than three days after [his] application for release — the hospital must file the required notice of hospitalization with the court and comply with all of the other procedural requirements set forth in Richardson

Id at 1000. Here, on remand, the judge will have to take into consideration any relevant occurrences during the intervening period while Plummer has been on convalescent leave.

7 . Because appellant’s outpatient status is restored, we dismiss as moot appeal No. 86-FM-1697 (challenging the revocation of appellant’s outpatient status), and appeal Nos. 88-FM-642 and 88-FM-1565 (challenging the Hospital’s authority to obtain ex parte orders to return inpatients to the institution). Notice to the court of September 25, 1991, from counsel for the Hospital that appellant remains committed under D.C.Code § 21-545 while being supervised at a community health center on outpatient status, does not moot the other appeals. In re James, 507 A.2d 155, 159 n. 5 (D.C.1986).