James Covington v. David W. Harris

The District Court heard and dismissed appellant’s habeas corpus petition seeking transfer from the maximum security pavilion of Saint Eliza-beths Hospital to some less restrictive ward. On this appeal appellant not only contests this order, but also asserts that he is entitled to be released from Saint Elizabeths altogether because of numerous alleged defects in the proceedings leading to his civil commitment. Appel-lee promptly moved for summary af-firmance on the grounds that the record adequately supports the order denying transfer and that none of the other issues appellant now raises was presented below. Thereupon, appellant requested summary reversal on the transfer issue and further argument on the others. Because of deficiencies in the record, we think a remand, rather than any final disposition, would best serve the interests of justice.

I

Appellant was convicted of second degree murder in 1942 and served a 14-year prison sentence. In 1957, soon after his release, he was again charged with murder. This time he was found incompetent to stand trial because of “mental deficiency [38 I. Q.] with psychotic reaction,” and was confined in Saint Elizabeths. In 1964, he was civilly committed to the hospital, and the pending murder charge was dismissed. Ever since his original confinement he has been continuously lodged in the John Howard (maximum security) Pavilion. Though his I. Q. has risen to 52, the hospital says he is still suffering from the same syndrome.

Generally, during his ten years in John Howard, appellant has by all accounts been a model patient, cooperating with the staff and staying out of trouble. Under the influence of medication he has shown no overt signs of violence. In December, 1966, while under an experimentally reduced dosage of medication, he confessed to having “murderous thoughts” towards some of his fellow patients, but these thoughts were stilled by restoring his full dosage. Considering this record and the improvement he had shown during confinement, his supervising physician, Dr. Weickhardt, recommended in September, 1967, that he be transferred out of the maximum security division. The recommendation was disapproved by Acting Superintendent Harris, whereupon appellant brought this habeas corpus action in the District Court pro se, explaining that he “would like to get out on the grounds where I have ground privileges and catch a little fresh- air.”

In a hearing before Judge Sirica, Dr. Weickhardt stood by his recommendation, stating that while appellant would never achieve normal intelligence,

as long as he takes medicine such as he is getting now — a tranquilizer— and as. long as he refrains from the use of alcohol, I think that he can get along well under supervision.

The doctor had been unable, however, to convince the Superintendent that appellant, if permitted more freedom, might not begin to use alcohol, with “unpredictable consequences.” The hospital thought it more prudent to wait a full year after the "murderous thoughts” episode before risking a less restrictive régime. Judge Sirica complained that he couldn’t see “why the Superintendent doesn’t accept the advice of the doctor that sees this man all the time,” but decided to continue the case until the hospital had reconsidered the transfer recommendation in December as scheduled, at the end of the year of “murderous thoughts.”

The hospital did not reconsider its decision; indeed, it may not have even formally reconsidered appellant’s request.1 Accordingly, appellant was back in court in February, 1968, before Judge Hart. But Dr. Weickhardt now reversed his field and refused to recommend a transfer. In the unkindest cut of all, the doctor said the reason for his change of heart was an incident in which appellant reported that another patient had stolen money from him. The authorities searched the accused patient and found five dollars and some contraband drugs, including pills and a pink liquid. This discovery set in motion a train of inferences which, according to Dr. Weickhardt, were cumulatively fatal to appellant’s hopes. Appellant’s medication was a pink liquid. And though other medicinal liquids administered in the pavilion were also pink, though no analysis was performed on the confiscated drug to determine if it could have been appellant’s, though appellant testified that he was never given any pills and that he was always obliged to swallow his pink liquid in the presence of an attendant— nonetheless Dr. Weickhardt concluded from the discovery of pills and pink liquid on the thief that “there was reason to think there had been some dealings between [appellant] * * * and the other patient about money and drugs.” Moreover, it appears that, while not uncommon, money itself is formally contraband in John Howard Pavilion. Appellant said he had found the money in the courtyard where others had been gambling, but that he had inadvertently neglected to turn it in, though he knew he should have done so. Despite the fact that, if he had willfully violated the rules, he was of course only incriminating himself by reporting the theft, Dr. Weickhardt concluded that

if Mr. Covington cannot follow the regulations about contraband in the Maximum Security Building * * *, he would be even less inclined to follow them where there is less supervision.

Finally, the doctor noted that appellant had in 1942 committed murder after an altercation over a small sum of money. He conceded that appellant’s behavior in calmly reporting the instant money incident was, in contrast, “much to his credit,” but he surmised that the Superintendent “felt there might be a possibility that things like this would happen again between him and another patient. * * * ”

On this evidence, the court dismissed the petition, relying on the Superintendent’s initial decision to deny transfer, a decision now unopposed by any medical authority.

II

On its motion for summary affirmance, appellee does not deny that appellant may seek transfer out of John Howard Pavilion via habeas corpus. It is well settled that habeas corpus challenges the place as well as the fact of confinement,2 even if the challenged place is a particular hospital ward,3 and specifically if the particular ward is the John Howard Pavilion.44

Rather, appellee says that under the standard governing judicial review of hospital decisions concerning internal administration articulated in Tribby v. Cameron,5 the question is not whether the hospital has made the best decision, but only whether

it has made a permissible and reasonable decision in view of the relevant information and within a broad range of discretion.6

Appellee submits that since the District Court implicitly found the hospital’s decision “permissible and reasonable,” and since this finding is not “clearly erroneous,” there is no substantial issue for appellate determination. Appellant, on the other hand, asserts that the hospital manifestly failed to carry its burden of proof and that he is therefore entitled to summary reversal.

We agree with appellee that Tribby states the applicable standard of judicial review. But the predicate for the hospital’s “wide range of discretion” under Tribby is a record which gives assurance that its decision has been made “in view of the relevant information.” We cannot tell from the present record whether such information was considered or not. Accordingly, since neither of the parties objects to clarification of the record,7 we remand to the District Court for further proceedings to expand the record and to make findings of fact. The scope of the proceedings on remand required by this opinion are accurately delineated by Judge Fahy at page 630.8

Ill

A “permissible * * * decision” under Tribby v. Cameron9 is one which demonstrably takes account of “the relevant information.” The principal purpose of limited judicial review of administrative action is to insure that the decision-makers have (1) reached a reasoned and not unreasonable decision, (2) by employing the proper criteria, and (3) without overlooking anything of substantial relevance. More than this the courts do not pretend to do, and probably are not competent to do. To do less would abandon the interests affected to the absolute power of administrative officials.

Not only the principle of judicial review, but the whole scheme of American government, reflects an institutionalized mistrust of any such unchecked and unbalanced power over essential liberties. That mistrust does not depend on an assumption of inveterate venality or incompetence on the part of men in power, be they Presidents, legislators, administrators, judges, or doctors. It is not doctors’ nature, but human nature, which benefits from the prospect and the fact of supervision. Indeed, the limited scope of judicial review of hospital decisions necessarily assumes the good faith and professional expertise of the hospital staff. Judicial review is only a safety catch against the fallibility of the best of men; and not the least of its services is to spur them to double-check their own performance and provide them with a checklist by which they may readily do so.

The hearing below dealt almost exclusively with the single issue of appellant’s potential dangerousness to others. The question, however, was not whether appellant was dangerous enough to require continued confinement, but whether he could properly be confined under conditions of maximum security detention. That question appears to involve other considerations besides his abstract potential dangerousness.

A. Consequences of Confinement in John Howard Pavilion.

A mere request for a change of dormitories or for transfer between substantially similar wards could not support a petition for habeas corpus. A patient seeking review of his placement within the hospital must show at least that there are substantial differences in the conditions' of confinement between where he is and where he wants to be. We need not decide whether or when such a showing could be made on a request for transfer from a service other than John Howard. Appellant’s petition alleges in substance only that he has a right to be kept anywhere but in John Howard, and the necessary premise of such a petition is that John Howard is a unique service at Saint Elizabeths.

It appears that John Howard houses principally the so-called “criminally insane.” 10 Such facilities have, in the past, notoriously rivalled maximum security prisons in the pervasiveness of their restraint upon libérty and the totality of their impositions upon dignity. The predecessor to John Howard Pavilion at Saint Elizabeths was described to this court as

a place for the confinement of the violent, criminal, hopeless insane, instead of * * * a place designed and operated for the treatment of the mentally ill. * * *11

Of the present John Howard, appellant says in his brief:

John Howard is physically a prison. Its inmates are locked in; they have no ground privileges, their outdoor activities are conducted in a walled-in yard identical to a prison yard; their visitors may be received only for a few minutes, and then in a prison-like visiting room; and they are denied access to many of the recreational and educational facilities available to other patients at the hospital.

Thus, there is reason to believe that confinement in John Howard is not normally contemplated for civilly committed patients and entails extraordinary deprivations of liberty and dignity which make it, in effect, more penitentiary than mental hospital, even if it also provides some treatment.

In entertaining appellant’s petition, the District Court evidently proceeded on the reasonable assumption that, as the designation “maximum security service” implies, confinement in John Howard does in fact impose substantially greater deprivations than confinement anywhere else in the hospital. However, appellant made no record on this matter except to note that he was denied ground privileges. We do not dispute the District Court’s assumption concerning the nature of John Howard. Indeed, our further observations concerning the inadequacy of the record rest on the same assumption. However, since Congress and the courts are only beginning to examine the operations of Saint Elizabeths,12 it is desirable that the courts be fully informed by the parties. A court is better equipped to review a hospital decision that exceptional restrictions on liberty are justified if it knows with reasonable precision what those restrictions are.

The facts about the nature of John Howard Pavilion are not peculiarly within the knowledge of the hospital, and were properly part of appellant’s case below. On remand, he may now develop those facts for the record. If they are as he now says, then before denying appellant’s request for transfer the hospital was obliged both to canvass less restrictive alternatives and, finding none, to consider the effect of such extreme deprivations on his treatment.

B. The Availability of Less Restrictive Alternatives.

In Lake v. Cameron,13 we held that in reviewing on habeas corpus a civilly committed patient’s confinement in a mental hospital, the court should satisfy itself that no less onerous disposition would serve the purpose of the commitment. We thought this principle was implicit in the • provisions of the District of Columbia Hospitalization of the Mentally III Act14 authorizing the committing court to consider alternatives to hospitalization15 and evincing a profound congressional concern for the liberties of the mentally ill. The new legislation apart, however, the principle of the least restrictive alternative consistent with the legitimate purposes of a commitment inheres in the very nature of civil commitment, which entails an extraordinary deprivation of liberty justifiable only when the respondent is “mentally ill to the extent that he is likely to injure himself or other persons if allowed to remain at liberty.”16 A statute sanctioning such a drastic curtailment of the rights of citizens must-fee-' narrowly, even grudgingly, construed in order to avoid deprivations of liberty without due process of law.1717

The principle of the least re- \ strictive alternative is equally applicable to alternate dispositions within a mental hospital. It makes little sense to guard zealously against the possibility of unwarranted deprivations prior to hospitalization, only to abandon the watch once the patient disappears behind hospital doors. The range of possible dispositions of a mentally ill person within a hospital, from maximum security to outpatient status, is almost as wide as that of dispositions without. The commitment statute no more authorizes unnecessary restrictions within the former range than it does within the latter.

The only distinctive feature of intra-hospital dispositions suggesting that they might be subject to a different rule is the fact that they involve considerations of hospital administration which are entrusted, in the first instance, to hospital authorities. Efficient hospital administration does require the courts to accord the administrators much broader discretion in determining the appropriateness of an intra-hospital disposition than in assaying the need for hospitalization ab initio. But this recognition of the hospital’s primary responsibility, reflected in the narrow scope of judicial review under Tribby v. Cameron,18 does not detract from the prin-] ciple that additional restrictions beyond those necessarily entailed by hospitaliza-' Lion are as much in need of justification as any other deprivations of liberty; nor does it preclude all judicial review of internal decisions.

In the 1964 Act,19 Congress scotched any notion that a public mental hospital is a temple into which mere mortals are not allowed to gaze./^ It marched rudely into the very sanctum sanctorum, where purely medical decisions are made, and established a judicially cognizable right to treatment.20 It instructed the hospital to keep detailed records of all treatment administered, and to make them available to the patient’s personal physician or attorney upon his request.21 It provided for periodic reconsideration — by the hospital, by outside physicians, and by the courts — of the need for hospitalization itself.22 It even prescribed in detail when and how the hospital might control incoming mail and other communications to a patient,23 and it felt compelled to affirm expressly that the hospital still retains the right to make “reasonable rules regarding visitation hours and the use of telephone and telegraph facilities.” 24 These pervasive limitations on the hospital’s discretion to run its own shop negate any intent to repeal in the same statutory breath the ordinary presumption in favor of liberty or to insulate the hospital from all accountability for its protection of that right.

Thus, before a court can determine that the hospital’s decision to confine a patient in a maximum security ward is, within its broad discretion, “permissible and reasonable * * * in view of the relevant information,”25 it must be able to conclude that the hospital has considered and found inadequate all relevant alternative dispositions within the hospital. Moreover, as we noted in Lake v. Cameron, the state has the obligation

to bear the burden of exploration of possible alternatives an indigent cannot bear * * *. Appellant may not be required to carry the burden of showing the availability of alternatives. Proceedings involving the care and treatment of the mentally ill are not strictly adversary proceedings. Moreover, appellant plainly does not know and lacks the means to ascertain what alternatives, if any, are available, but the government knows or has the means of knowing and should therefore assist the court in acquiring such information.26

The duty to explore intra-hospital alternatives to maximum security confinement can hardly be assailed as an intolerable burden on the administrators.

Professionally, a doctor owes even a voluntary patient a careful canvass of alternatives to drastic treatment. He owes at least as much to a patient confined for treatment against his will.

The instant record is devoid of evidence that an evaluation of alternatives was made. At most it shows that the hospital thought appellant should be closely supervised for the protection of others. In ten years, he has never been violent or unruly.27 Under full medication, he has not even expressed “murderous thoughts,” and medication may of course be administered outside a maximum security ward. Appellant asserts that the hospital has other security wards, not imposing the extreme deprivations of the John Howard Pavilion, in which supervision can be provided. These wards may not be suitable for appellant, but the record does not disclose a reasoned hospital conclusion that they are not. On remand, the hospital will have an opportunity to show that it has considered alternative security accommodations for appellant and to explain why it finds them inadequate.

C. Relation of Confinement to Treatment.

Under present law, the principal justification for involuntary hospitalization is the prospect of treatment, and a failure to provide treatment would present “serious constitutional questions.” 28 Accordingly, Congress has provided that

A person hospitalized in a public hospital for a mental illness shall, during his hospitalization, be entitled to medical and psychiatric care and treatment.29

Under that provision, the hospital may be required to show that it is making “a bona fide effort” to cure or improve the patient, and that the treatment provided “is suited to his particular needs.” 30

Appellant does not contend that he has been denied his statutory right to treatment. But since treatment is an essential justifying purpose of any civil commitment, a “permissible * * * decision” to confine a patient under maximal restrictions cannot be made without consideration of its therapeutic consequences. That the .conditions of confinement may significantly enhance or retard a given patient’s recovery is not open to doubt.

The milieu of the hospital, if properly structured, is * * * a constructive force for getting well; if improperly constructed it is a force for remaining sick.31

It may not “be assumed that confinement in a hospital [or in its maximum security ward] is beneficial ‘environ^ mental therapy’ for all.” 32 Even if in some cases maximum security 'confinement is positively therapeutic, such cases may be exceptional. . Whatever the method of treatment applied, 'the ultimate goal of therapy for persons involuntarily hospitalized must be to shore up their capacity to function satisfactorily in the unrestricted environment of the outside world. It appears that this goal is unlikely to be achieved if the patient has little or no opportunity for controlled experiments with freedom. Accordingly, civilly committed patients are rarely sent to John Howard Pavilion at all,33 and the typical treatment program at Saint Elizabeths for those few who are housed there envisages transfer into a progressively less restrictive regime.34

It may be that appellant benefits therapeutically from maximum security confinement, or that in his case such confinement is therapeutically neutral, or that, though an obstacle to the most rapid progress, its detrimental effects on his treatment are outweighed by the need to protect other patients or to prevent his escape. Any of these possibilities could adequately explain the hospital’s decision, but the record contains no hint as to which one, if any, explains it in fact. For all that appears, the hospital may have considered only appellant’s dangerousness and ignored his treatment needs. Such a one-sided balance would inevitably resolve all doubts against greater freedom. Moreover, since a proper balance often involves comparative evaluation of unquantifiable variables, intelligent judicial review requires at least a reasoned hospital analysis of any conflict among them. Because the record contains no such analysis, it provides no assurance that the hospital considered “the relevant information.”

For the same reasons that he cannot be required to establish the availability of less restrictive alternatives, appellant cannot reasonably be obliged to bear the burden of attacking the hospital decision on medical grounds in vacuo. On remand, the hospital should explain either why maximum security confinement does not impair appellant’s prospects for the promptest rehabilitation, or that he is so dangerous as to require such impairment.

D. Appellant’s Hospital Records.

Appellant has sought leave to file his hospital records with this court. In D. C.Code § 21-562, Congress expressly provided that

The administrator of each public hospital shall keep records detailing all medical and psychiatric care and treatment received by a person hospitalized for a mental illness and the records shall be made available, upon that person’s written authorization, to his attorney or personal physician. The records shall be preserved by the administrator until the person has been discharged from the hospital.

Plainly, appellant’s attorney could have introduced these records into evidence. His failure to do so might not be cause for a remand if the record were otherwise adequate, but the fact that the District Court had to conduct its review without benefit of them is an additional reason for requiring further consideration.

Even if appellant had deliberately chosen not to introduce his records, however, the hospital could have used them to explain its decision. That it may not disclose them to outside parties without the patient’s consent does not imply that it is forbidden to introduce them in court where they are relevant to the patient’s contentions on habeas corpus. One plain purpose of the statutory records requirement is to facilitate judicial review of the care and treatment accorded the patient.35 A petitioner may not use the confidentiality of his records as a sword to deprive the court of the enlightenment the records requirement was designed to give it. The records submitted on this appeal are not notably informative, but there may well be other records, and even the limited material now available throws some light on the hospital’s thinking.

In view of its prerogative to introduce such records, the hospital’s obligation to show that a challenged decision reflects a reasoned consideration of the relevant information should not ordinarily be burdensome for either the hospital or the courts. Even if the records are inadequate in the present case, full records kept in the spirit of the statutory requirement would usually be sufficient in themselves to fulfill the hospital’s evidentiary obligation. By articulating a plan of treatment and by explaining the basis for important decisions affecting the patient, they would fully inform the court at a glance. Incidentally, they would also enhance the integrity, reliability, and thoroughness of the hospital’s own decision-making procedures. The bothersome incidental paperwork is a small price to pay for so many blessings. Besides, such paperwork is often bothersome precisely because the process of formal articulation forces busy administrators to confront problems and .considerations their intuitive reactions might have overlooked.

As we suggested in Rouse v. Cameron,36 if the hospital established internal procedures for reviewing its own decisions and redressing grievances it could largely eliminate any occasion for judicial challenges, and any residual litigation could be readily disposed of on summary judgment. Expert administrative agencies of the federal government which deal primarily with property, not with lives and liberties, follow such procedures as a matter of course, in order to maintain consistent policies and to correct their own errors. Largely because they do so, the courts rarely disturb their decisions for other than procedural infirmities.

IV

In these respects, then, the record is inadequate to show whether the hospital made a “permissible decision” to keep appellant in John Howard Pavilion “in view of the relevant information.” 37 Accordingly, we do not consider whether that decision is, on the present record, “reasonable * * * within a broad range of discretion.” However, it may be useful to the parties and the court on remand to flag several troublesome issues raised by the record and by appellant’s hospital dossier, which was not introduced below.

First, the considerations passed by in silence at the hearing below are all possible counterweights to the consideration of appellant’s potential dangerousness. The danger feared in this case is not one lightly to be dismissed, and we do not suggest that it could never outweigh all other considerations. But as we recently made clear in Millard v. Harris38 “dangerousness” is a many splendored thing. Unless muzzled by discriminating analysis, it is likely to weigh against nominally competing considerations the way a wolf weighs against a sheep in the same scales: even if the sheep is heavier when weighed separately, somehow the wolf always prevails when the two are weighed together. Keeping dangerousness on a taut leash is especially difficult where there is danger of murder, since the danger is admittedly grave and since its improbability, which theoretically discounts its gravity, is exceedingly difficult to quantify.

Moreover, once a man has shown himself to be dangerous, it is all but impossible for him to prove the negative that he is no longer a menace. The specters of the murder appellant committed 35 years ago (expiated by a long jail sentence) and the murder he may have committed more than 10 years ago obviously haunt the hospital at the very thought of granting him the least measure of freedom within Saint Elizabeths. He asks for ground privileges after ten docile years under a regime consisting, according to the hospital files, of maximum security confinement, pink liquids, and a dozen brief psychiatric interviews; and the hospital worries about those murders and the “unpredictable consequences” which would ensue if he should ever have access to alcohol. Their concern is understandable and may well be fully justified. But for all that appears, the murders and the unpredictable consequences will still be there after twenty years or after fifty. Appellant was not convicted of the second murder, and his hospitalization is not to be tacitly converted into a life sentence to John Howard.

In these circumstances it is fair to ask the hospital how appellant can ever demonstrate his readiness for a less pervasive confinement: What evidence of improvement are they looking for? What is the prospect that they will ever find it? If, as may be, the hospital administrators think he will likely never be sufficiently purged of his dangerousness, then the reviewing court should at least have an opportunity to scrutinize the basis for such a counsel of despair. For the very reason that he is unlikely soon, if ever, to be released from the hospital, it is crucial to provide some check against his becoming a non-person, deprived of any rights to minimally rational treatment within the hospital because he murdered once and may have murdered again.

Second, there is some indication that the hospital denied transfer for reasons other than simple dangerousness. The hospital records suggest that appellant’s request may have been initially deferred, not because he was inherently a bad risk, but because no space was available in other wards where he could be adequately supervised.39 The hospital cannot, of course, create space it does not have, but if appellant is in John Howard merely faute de mieux, serious questions arise as to hospital priorities and constitutional and statutory rights.40 Moreover, the hospital may have seized upon Dr. Weickhardt’s change of heart as a sufficient reason not even to reconsider its postponed decision.41 If so, Dr. Weickhardt’s analysis of the episode involving the theft of appellant’s money assumes disturbing importance. His explanation does not convincingly lay to rest the possibility either that appellant’s request for transfer was denied as a disciplinary measure to enforce minor hospital rules, or else that the money episode served as a pretext under which other undisclosed interests could be served. The public, the court, the hospital, and not least the appellant, would profit greatly from a thorough ventilation of these matters and a careful attention to the legitimacy of the considerations which prove to have been crucial.

Y

Quite apart from the transfer issue, appellant now contends for the first time that his civil commitment in 1964 was fatally defective in numerous respects. He says he was denied his statutory right to an independent judicial evaluation of his mental condition and need for commitment, since the committing court had before it no information on which to predicate such an evaluation. He also says this defect amounts to a denial of due process. Furthermore, he alleges deprivations of the statutory right to a jury trial, the alleged right to a transcript of his pre-commitment hearing before the Mental Health Commission, and the constitutional right to effective representation of counsel.

All agree that his initial supervision [outside John Howard] must be very dependable for the first few months of his security reduction. At this moment there is no service available for his placement that can provide the needed close attention. No mention of this consideration was made at either of the court hearings, however.

On their face, these contentions appear neither remote nor insubstantial. But at least some of them may turn on questions of fact which cannot be resolved in an appellate court. Moreover, orderly judicial procedure normally precludes raising on appeal issues not reasonably within the scope of the question presented by a petition for habeas corpus. There is no reason to consider an exception to this rule in the instant case.

The usual procedure would be simply to dismiss this aspect of the appeal, leaving appellant free to bring a new habeas corpus petition if he wishes. However, petitioner is an indigent with an I. Q. of 52. To place upon him the burden of preparing a new petition and obtaining appointment of a new attorney by the District Court seems an unwarranted hardship which would serve no ascertainable interest of judicial administration.42 At oral argument in this court, it clearly appeared that the attorneys appointed for him on this appeal would be willing to continue to represent him on any remand. Accordingly, since there is to be a remand in any event, I would direct the District Court to consider these issues on an amended petition, as well as the transfer question.43 But see Judge Fahy’s position as to this in his opinion concurring specially.

Remanded.