Catholic University Law Review
Volume 34
Issue 4 Summer 1985
Article 15
1985
In Re Richardson: Safeguarding the Rights of
Reinstitutionalized Individuals
H. Ward Classen
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Recommended Citation
H. Ward Classen, In Re Richardson: Safeguarding the Rights of Reinstitutionalized Individuals, 34 Cath. U. L. Rev. 1225 (1985).
Available at: http://scholarship.law.edu/lawreview/vol34/iss4/15
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IN RE RICHARDSON: SAFEGUARDING THE
RIGHTS OF REINSTITUTIONALIZED
INDIVIDUALS
The fifth and fourteenth amendments to the United States Constitution
recognize an individual's right to due process of law.' The concept of procedural due process2 encompasses both an individual's liberty and property
interests. Specifically, it has been characterized by the United States
Supreme Court as requiring that a defendant be notified of any legal action
brought against him and that he be given the opportunity to set forth a defense to any charges.' The right to due process of law is fundamental to the
guarantee of personal freedom, especially with regard to the institutionalization of mentally ill individuals.4
The Supreme Court in Addington v. Texas and Humphrey v. Cade has
held that individuals have a liberty interest in their involuntary commitment
1. U.S. CONST. amend. V (nor shall any person "be deprived of life, liberty, or property,
without due process of law"); U.S. CONST. amend. XIV, § 1 ("nor shall any State deprive any
person of life, liberty, or property without due process of law").
2. Procedural due process guarantees to each individual the right to be heard and notified. See Paul v. Davis, 424 U.S. 693, 712 (1976); Bell v. Burson, 402 U.S. 535, 539 (1971);
Wisconsin v. Constantineau, 400 U.S. 433, 436-37 (1971); Van Alstyne, Cracks in "the New
Property": Adjudicative Due Process in the Administrative State, 62 CORNELL L. REV.445,
450-52 (1977); Monaghan, Of "Liberty" and "Property," 62 CORNELL L. REV. 405 (1977).
Such rights include the right to counsel for indigents, the right to confrontation, and the right
to a transcript of any judicial proceeding. These enumerated rights are specifically mandated
by the sixth amendment and are applicable to state action through the fourteenth amendment.
Parham v. Cortese, 407 U.S. 67, 84 (1972).
In its broadest definition, substantive due process guarantees that no individual shall be
arbitrarily deprived of life, liberty, or property. Galvan v. Press, 347 U.S. 522, 530-32 (1954);
Poe v. Ullman, 367 U.S. 497, 515-18 (1961). Embodied in this concept is the requirement that
before an individual is deprived of life, liberty, property, or any statutory right granted to him,
he is entitled to a trial conducted by established rules governing the judicial hearing. Pettit v.
Penn, 180 So. 2d 66, 69 (1965), cert. denied, 248 La. 696, 181 So. 2d 397 (1966). Furthermore,
due process requires that a law not be unreasonable, arbitrary, or capricious, and that the law
have a reasonable and substantial relationship to its objective. Nebbia v. New York, 291 U.S.
502, 525 (1934). In essence, substantive due process ensures fundamental fairness. See generally Bute v. Illinois, 333 U.S. 640 (1948); Heubert v. Louisiana, 272 U.S. 312 (1976). See also
Nowak, Forward-DueProcess Methodology in the Postincorporation World, 70 J. CRIM. L. &
CRIMINOLOGY 397, 403 (1979) (comparing the different results found in Addington v. Texas,
441 U.S. 418 (1979) and Parham v. J.R., 442 U.S. 593 (1975), with the balancing test of
Mathews v. Eldridge, 424 U.S. 319 (1976)).
3. See generally Milliken v. Meyer, 311 U.S. 457 (1940); Grannis v. Ordean, 234 U.S.
385 (1914); Priest v. Las Vegas, 232 U.S. 604 (1914); Rolles v. Holley, 176 U.S. 398 (1900).
4. See infra notes 9-12, 23-24, 25-38 and accompanying text.
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to a mental institution.5 The Court has not specified in these decisions, however, what procedures, if any, are required to protect the interests of those
people who are involuntarily committed after receiving treatment on an outpatient basis. Recently, in In re Richardson,6 the District of Columbia Court
of Appeals addressed this issue. In that case the court recognized that an
incompetent individual has a right to object to his summary reinstitutionalization, but held that a court will not bar such action where certain procedures set forth by the court are followed.7 In particular, the court mandated
that an institution must provide the court with an affidavit within twentyfour hours of the patient's return to the institution stating the reasons for his
return. Additionally, the court required the health care provider to present
a copy of the affidavit to the individual's attorney and to inform both the
patient and his attorney in writing that the hospital must either release the
patient after the fifth day of institutional care or move for a judicial hearing
to permanently revoke his out-patient status.
I.
THE EVOLUTION OF PROCEDURAL SAFEGUARDS WHEN
INSTITUTIONALIZING INDIVIDUALS
Although the United States Supreme Court recognized in Humphrey v.
Cady9 and O'Connor v. Donaldson' ° that involuntary commitment to a
mental institution involved a loss of liberty and required due process protection, 11 it was not until Addington v. Texas 2 that the Court defined the required protection. In Addington, an incompetent's mother sought to have
her son permanently institutionalized after he threatened her with bodily
harm. The son had previously been confined while receiving psychiatric care
for his emotional and mental disorders.' 3 In the course of the opinion, the
5. See Addington, 441 U.S. at 425; O'Connor v. Donaldson, 422 U.S. 563, 580 (1975)
(Burger, C.J., concurring); Humphrey v. Cade, 405 U.S. 504, 509 (1972). But see Parham, 442
U.S. at 584, 600-04 (holding that a preadmission hearing is not required when parents seek to
commit their minor child to a mental institution); Planned Parenthood v. Danforth, 428 U.S.
52, 72-75 (1976) (state may not impose a blanket parental consent requirement as a precondition to a single minor's abortion during the first twelve weeks of her pregnancy).
6. 481 A.2d 473 (D.C. 1984).
7. See infra note 8 and accompanying text.
8. Richardson,481 A.2d at 481. See D.C. Sup. CT.-MENTAL HEALTH R. 4 (allowing a
court to hold a hearing to determine whether the restrictions of an individual's release have
been implemented correctly). See generally Cyr, The Role and Function of the Attorney in the
Civil Commitment Process: The District of Columbia Approach, 6 J. PSYCHIATRY & L. 107
(1978).
9. 405 U.S. 504 (1972).
10. 422 U.S. 563 (1975).
11. See supra notes 1-2 and accompanying text.
12. 441 U.S. 418 (1979).
13. Id. at 420-21.
1985]
In re Richardson
1227
Supreme Court interpreted the Constitution to require that a "clear and convincing"' 4 standard of proof be used when determining whether to institutionalize an individual for an indefinite period of time."5 The Court found
the determination of an individual's sanity to be of such importance that it
required the state to justify its actions by a higher standard than "preponderance of the evidence."' 6 The Court asserted, however, that due process did
not require use of the "beyond a reasonable doubt"' 7 standard applicable in
criminal proceedings." a
In Lake v. Cameron,'9 the United States Court of Appeals for the District
of Columbia Circuit established minimum guidelines for determining when
an individual should be institutionalized. The court required that the entity
making such a determination explore all less restrictive alternatives to institutionalization.2 ° The Lake court recognized, however, that if a court recommends a less restrictive treatment program, it must also consider the
public interest. Central to the premise indicated in Lake is the requirement
that the court maintain an active role in the hearing process. 2 '
14. A "clear and convincing" standard of proof generally means proof "beyond a reasonable doubt." It is proof that leaves no reasonable doubt in the mind of the trier of fact as to the
outcome of the issue at hand. See In re Jones, 34 Ill.
App. 3d 603, 609, 340 N.E.2d 269, 273
(1975). It is sometimes afforded an intermediate standard, requiring more than a "preponderance of the evidence" but less than that required in criminal cases. Fred C. Walker Agency v.
Lucas, 215 Va. 535, 540, 211 S.E.2d 88, 92 (1975); see infra notes 16-17 and accompanying
text.
15. Addington, 441 U.S. at 425-35.
16. A "preponderance of the evidence" standard of proof requires proof of a greater
weight than evidence that is offered in contradiction to it. It is determined by the greater
weight of all evidence offered and can be described by the term "more probable than not." See
Braud v. Kinchen, 310 So.2d 657, 659 (La. 1975); see also supra note 14.
17. A "beyond a reasonable doubt" standard of proof means that the trier of fact has been
entirely convinced or satisfied of the truthfulness of the issue at hand. This standard is usually
used in criminal cases and requires that every necessary fact establishing the guilt of the defendant be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-64 (1976);
Holland v. United States, 348 U.S. 121 (1954); Leland v. Oregon, 343 U.S. 790 (1952); Brinegar v. United States, 338 U.S. 160, 175-76 (1949); Wilson v. United States, 232 U.S. 563, 570
(1914); Holt v. United States, 218 U.S. 245, 253 (1910); Davis v. United States, 160 U.S. 469,
487-93 (1895); Miles v. United States, 103 U.S. 304, 309-16 (1880); see also supra notes 14, 16.
Cf Coffin v. United States, 156 U.S. 432, 457-63 (1895) (examining the common law traditions
of the "beyond a reasonable doubt" standard and the presumption of innocence).
18. Addington, 441 U.S. at 428-30.
19. 364 F.2d 657 (D.C. Cir. 1966).
20. Id. at 661-62. The court refused to address whether an individual's liberty interests
were violated when his financial status foreclosed him from obtaining certain private noninstitutional methods of treatment that were less restrictive. Id. at 662 n.19. The requirement to
seek alternative, less restrictive methods of treatment, however, was mandated by the provisions of the District of Columbia Hospitalization of the Mentally Ill Act. D.C. CODE ANN.
§§ 21-501 to 21-592 (1981).
21. Lake, 364 F.2d at 662.
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Three years later in Covington v. Harris,22 the same court affirmed its decision in Lake while charging the judicial system with new duties. The Covington court emphasized that a court should seek less restrictive alternatives
because of the extent of the deprivation of personal liberty experienced when
an individual is committed.23 Furthermore, the court mandated that any
statute providing for the commitment of an individual should be strictly construed to avoid potential abuses. At the same time, the court recognized that
the need for efficient hospital administration necessitated that administrators
have the authority to compel the normal procedures that accompany
hospitalization.24
Following Covington, the District of Columbia Court of Appeals, in In re
Mills,25 set forth the concerns and interests that must be addressed when
depriving a previously committed individual of his liberty interest. Mills involved an individual who received treatment as an out-patient against his
will. At the requisite hearing, he sought to have his diagnosis reevaluated
and to have a "clear and convincing" standard applied to the hospital's institutionalization request.26 In its opinion, the Mills court recognized that
when an individual receives care on an out-patient basis and is then transferred to in-patient status, he is denied a liberty interest and is thus entitled
to receive due process." This liberty interest was found by the court to be
conditional, however, because the individual's intitial course of treatment
provided for institutionalization if necessary. 28 The court reasoned, therefore, that since the commitment was legally empowered and continued to be
so, the deprivation of liberty was of a lesser degree than that required by
notions of due process. The court suggested that this interpretation was consistent with those in most other jurisdictions.2 9
22. 419 F.2d 617 (D.C. Cir. 1969).
23.
24.
25.
26.
Id. at 623.
Id. at 624. See Tribby v. Cameron, 379 F.2d 104 (D.C. Cir. 1967).
467 A.2d 971 (D.C. 1983).
Id. at 972-74.
27. Id. at 975. See Mills v. Rogers, 457 U.S. 291, 300 (1982); Vitek v. Jones, 445 U.S. 480,
488-89 (1980).
28. 467 A.2d 971, 975.
29. Id. at 975; accord Lewis v. Donahue, 437 F. Supp. 112 (W.D. Okla. 1977) (patient
involuntarily committed and hospitalized but released for out-patient treatment seven days
later had "conditional liberty" interest in not being reinstitutionalized); Meisel v. Kremens,
405 F. Supp. 1253 (E.D. Pa. 1975) ("patients of state mental health facilities" released for outpatient care enjoy "conditional liberty" interest in not having leave revoked); In re True, 103
Idaho 151, 645 P.2d 891 (1982) ("conditional liberty" interest recognized in formerly hospitalized individual placed on out-patient status); see Dietrich v. Brooks, 27 Or. App. 821, 558 P.2d
357 (1976) (impliedly recognizing "conditional liberty" interest with regard to trial visits, but
denying requested procedures because the statute in question provided adequate safeguards).
Contra Hooks v. Jaquith, 318 So. 2d 860 (Miss. 1975) (denying a mental patient habeus corpus
In re Richardson
1985]
1229
Finally, the Mills court adopted the criteria established by the Supreme
Court in Mathews v. Eldridge30 to be considered when determining what
process is due in a particular situation. First, a court must look to the private interest that will be infringed upon by the government action. 3 1 Second, it must determine whether the present procedures employed by the
government erroneously deprive the plaintiff of his liberty interests, and
whether additional procedural safeguards can protect against this deprivation.32 Finally, these two factors must be balanced against the government's
33
interest and the burden of enforcing these new safeguards.
Early court decisions established an individual's liberty interest in avoiding institutionalization. Later holdings defined the due process that must be
provided in such situations. It was not until Richardson, however, that the
courts addressed the problems associated with reinstutionalization.
II.
THE RICHARDSON DECISION
In re Richardson3 4 involved an individual who was reinstitutionalized
against his will. Leonard Cade discharged himself from St. Elizabeth's Hospital against the advice of his physician. 35 While an out-patient, he failed to
comply with his treatment program and refused to take his medication resulting in an exhibition of violent behavior patterns. For example, while in a
rage, he broke his mother's front door, threatened a relative with a knife and
cut his mother when she attempted to disarm him. Because of these actions,
he was readmitted to St. Elizabeth's on an emergency basis. Later, at the
required hearing the trial court found that Cade's condition had improved
sufficiently to allow him to be treated as an out-patient on the condition that
he take his medication while under supervision. 36
At the hospital's request, the court required Cade to return to St. Elizabeth's for a period of five days if he failed to meet the requirements specified
relief on the theory that he was unlawfully deprived of liberty based on the termination of
"leave" without a hearing).
30. 424 U.S. 319 (1976).
31. Id. at 335.
32. Id.
33. Id.
34. 481 A.2d 473 (D.C. 1984).
35. Id. at 476.
36. Id. at 477. Receiving treatment on an out-patient basis is widely accepted as an alternative to institutionalization when treating mental illness. See Covington v. Harris, 419 F.2d
617, 625-26 (D.C. Cir. 1969); Hough v. United States, 271 F.2d 458, 462 (D.C. Cir. 1959).
The method of treatment varies depending on the condition of the particular patient. For a
discussion on the wide variety of alternatives to hospitalization see Chambers, Alternatives to
Civil Commitment of the Mentally Ill: Practical Guides and ConstitutionalImperatives, 70
MICH. L. REV. 1107, 1112-19 (1972).
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by the court or if his condition deteriorated. a If the hospital sought to detain Cade for longer than the five day period, it was obligated to seek the
court's permission to do so while treating him on an out-patient basis. Cade
accepted the conditions imposed by the trial court but appealed the hospital's right to summarily hospitalize him, maintaining it violated his due process rights.38
On appeal, the District of Columbia Court of Appeals held that even if an
individual had been properly committed, he was still entitled to the required
procedural safeguards such as a prompt adversary hearing before the permanent revocation of his out-patient status. 39 Furthermore, the court emphasized that the requisite hearing must demonstrate that treatment on an inpatient basis is the least restrictive alternative, if not the least restrictive
method of treatment, in order for his out-patient status to be revoked. In
conclusion, the court noted that a summary return provision should not be
used in every final order 4 0 providing for the treatment of individuals on an
out-patient basis unless the patient's prior history dictates it.4 1
The Richardson appellate court also addressed procedures for returning
an individual for in-patient treatment. It recognized that a trial court may
return an individual for in-patient treatment without an adversarial hearing
if the patient is held briefly and the hospital meets t,. notice and affidavit
requirements dictated by due process.4 2 In those situations where a hospital
decides summarily to reinstitutionalize an individual receiving treatment on
an out-patient basis, the court set forth guidelines for health care providers.
Specifically, the court stated that when an institution rehospitalized an individual, the institution must provide the court with an affidavit, stating the
reasons for his return, within twenty-four hours after the patient's readmit37. Richardson, 481 A.2d at 477.
38. Id. at 478.
39. Id. at 479. See Vitek v. Jones, 445 U.S. 480 (1980); Darnell v. Cameron, 348 F.2d 64
(D.C. Cir. 1965); see also In re True, 103 Idaho 151, 645 P.2d 891 (1982); In re Bye, 12 Cai. 3d
96, 524 P.2d 854, 115 Cal. Rptr. 382 (1974), cert. denied, 420 U.S. 996 (1975).
40. The term "final order" refers to the status of the court's orders for the purpose of
judicial review. See D.C. CODE ANN. § 11-721(a)(1) (1981). When the court commits an
individual to an undetermined course of involuntary treatment it disposes of the case on its
merits; at this point, the only action remaining for the court is to execute this judgment or
order. McBryde v. Metropolitan Life Ins. Co., 221 A.2d 718, 720 (D.C. 1966); see Davidson v.
United States, 467 A.2d 1282 (D.C. 1983) (appeal from condition of work release); Butler v.
United States, 379 A.2d 948 (D.C. 1977) (appeal from conditional sentence); Willis v. United
States, 250 A.2d 569 (D.C. 1969) (appeal from condition of probation).
41. Richardson, 481 A.2d at 479-80. See generally Note, The Least Restrictive Alternative
to Involuntary Hospitalization, Outpatient Commitment: Its Use and Effectiveness, 10 J. PsYCHIATRY & L. 81,89 (1982); Bumrukcu & Mikels, Combatting Post-HospitalBends: Patterns
of Success and Failurein a Psychiatric Halfway House, 49 MENTAL HYGIENE 244 (1965).
42. Richardson, 481 A.2d at 480-81.
1985]
In re Richardson
1231
tance.4 3 In addition, the institution must provide a copy of the affidavit to
the individual's attorney and must inform the patient and his attorney in
writing that the hospital must either release the patient after the fifth day of
institutional care" or move for a judicial hearing to permanently revoke his
out-patient status.45
The court found that these safeguards were necessary because the hospital
staff erroneously may believe the individual has violated the limitations of
his out-patient status.4 6 Furthermore, friends or relatives seeking to have
the individual rehospitalized may be motivated by their own personal reasons rather than the individual's best interests.47 The court's guidelines also
mandated that the health care provider's reasons for institutionalization be
supported by probable cause.48
III.
RICHARDSON.
A
SOUND DECISION
The Richardson decision reaffirms previous court decisions while setting
new guidelines to ensure that an individual's due process rights are protected.49 It also establishes guidelines for health care providers to guarantee
that these rights are not treated indifferently. 50 By setting forth such rules,
the court and health care providers will be better able to efficiently and effectively consider an individual's due process rights.51 Richardson reflects earlier decisions as it recognizes the individual's liberty interest in avoiding
reinstitutionalization.5 2 It also acknowledges that a court is obligated to ensure that in-patient treatment is the least restrictive alternative or the least
restrictive method of treatment.5 3 The court's holding furthers the sanctity
of an individual's personal freedom by mandating the procedures an institution must follow to safeguard an individual's due process rights. 54 It provides additional protection by requiring judicial review of all actions
resulting in the reinstitutionalization of an individual. 55
Although the Richardson decision is praiseworthy, the possibility exists
43. See supra note 8 and accompanying text.
44. Richardson, 481 A.2d at 481. See D.C.
CODE ANN.
§ 21-544 (1977) (providing that
an individual involuntarily committed must be given written notice of his due process rights).
45. Richardson, 481 A.2d at 481.
46. Id. at 480.
47. Id.
48. Id. See Gerstein v. Pugh, 420 U.S. 103 (1975).
49. See supra notes 9-19, 41-44 and accompanying text.
50.
51.
52.
53.
See supra notes
See supra notes
See supra notes
See supra notes
41-44
45-47
10-12
19-24
and
and
and
and
accompanying
accompanying
accompanying
accompanying
text.
text.
text.
text.
54. See supra notes 42-44 and accompanying text.
55. See supra note 44 and accompanying text.
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[Vol. 34:1225
that the rights of institutionalized individuals will be slighted in the name of
efficiency. This is a serious concern as the social stigma attached to commitment is severe. 5 6 Consequently, the ability to summarily determine an individual's competency should not be entrusted solely to the health care
provider without continual supervision by a judicial body. Without a judicial presence, a health care provider may not contribute the time, effort, and
resources necessary to make a proper determination of an individual's sanity
that is commensurate with the importance of an individual's liberty interest.
Richardson will have a substantial impact on the ability of health care
providers to order the reinstitutionalization of individuals presently being
treated on an out-patient basis. Health care providers will be able to commit
any patient who, in the health care providers' judgment, is deemed to need
in-patient care without a court order. At the same time, however, the health
care providers must follow the extensive procedural safeguards that protect
the patient's rights. Consequently, this decision strikes a proper balance between the respective interests involved, by allowing the health care provider
to exercise his professional judgment and protecting the rights of the
individual.
IV.
CONCLUSION
The Richardson decision is significant to providers of psychiatric health
care because it governs their ability to reinstitutionalize incompetent individuals. It protects an individual's due process rights while allowing a health
care provider to take the individual into custody for immediate treatment if
required. Although In re Richardson creates the risk that an individual's
due process rights could be subordinated, it establishes stringent standards
to which a health care provider must adhere and requires judicial review of
all proceedings.
H. Ward Classen
56. A mentally ill individual is not considered to be at liberty and is subject to a stigma
placed upon him by society. See Chodoff, The Case for Involuntary Hospitalization of the
Mentally Ill, 133 AM. J. PSYCHIATRY 496, 498 (1976); Schwartz, Meyers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 ARCHIVES OF GEN. PSYCHIATRY 329, 334 (1974).