848 F.2d 1386 (6th Cir. 1988), 86-6274, Doe by Doe v. Austin

Docket Nº:86-6274.
Citation:848 F.2d 1386
Party Name:Samuel DOE, by his mother and next friend, Mary DOE, Plaintiff-Appellee, v. Elbert AUSTIN, Secretary, Cabinet for Human Resources, Defendant-Appellant.
Case Date:June 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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848 F.2d 1386 (6th Cir. 1988)

Samuel DOE, by his mother and next friend, Mary DOE,



Elbert AUSTIN, Secretary, Cabinet for Human Resources,


No. 86-6274.

United States Court of Appeals, Sixth Circuit

June 15, 1988

Argued Sept. 28, 1987.

Rehearing and Rehearing En Banc Denied Aug. 3, 1988.

Page 1387

William K. Moore (argued), Cabinet for Human Resources, Office of Gen. Counsel, Frankfort, Ky., for defendant-appellant.

Richard McHugh, Kelly Miller (argued), Legal Aid Society, Inc., Louisville, Ky., for plaintiff-appellee.

Before KEITH, MILBURN, and NORRIS, Circuit Judges.

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KEITH, Circuit Judge.

Defendant Elbert Austin, Secretary, Cabinet for Human Resources for the Commonwealth of Kentucky, appeals the order of the district court granting a preliminary injunction and partial summary judgment in favor of plaintiffs, a certified class of mentally retarded persons already involuntarily committed or subject to involuntary commitment to a state-owned mental retardation residential treatment center (RTC) who had challenged the constitutionality of Kentucky's civil commitment scheme as applied to mentally retarded adults. 1 For the following reasons, we AFFIRM in part and REVERSE in part.


Prior to 1986, and at the time that this matter was initiated, Kentucky provided a comprehensive statutory scheme to govern the involuntary civil commitment of the mentally ill, Ken.Rev.Stat.Ann. Chapter 202A (Baldwin 1982), which also governed the commitment of mentally retarded persons. Ken.Rev.Stat.Ann. Sec. 202B.050.

Ken.Rev.Stat.Ann. Chapter 202A et seq. provided, in relevant part:

(1) No involuntary commitment would take place unless the person to be committed (a) presented a danger or threat of danger to self or others; (b) could reasonably benefit from treatment; and (c) unless hospitalization represented the least restrictive mode of treatment, Ken.Rev.Stat.Ann. Sec. 202A.026;

(2) Although a staff physician could order an emergency admission, that physician must certify within twenty-four hours that an involuntary admission should occur, and any such emergency admission was limited to seventy-two hours, Ken.Rev.Stat.Ann. Sec. 202A.031;

(3) A preliminary hearing would be held in the district court within six days of the initial detention (or examination, if no emergency admission was sought), and a final hearing would take place within twenty-one days, Ken.Rev.Stat.Ann. Sec. 202A.071;

(4) The preliminary hearing, although not required to be formal, would provide an opportunity for the person to be committed to testify, to present witnesses, and to cross-examine witnesses who had testified against her. Ken.Rev.Stat.Ann. Sec. 202A.076(1). The final hearing would provide the same safeguards; in addition, the rules of criminal procedure would apply, including the duty of the Commonwealth to prove beyond a reasonable doubt that confinement was warranted. Moreover, there was a right to a jury trial unless that right was waived. Ken.Rev.Stat.Ann. Sec. 202A.076(2);

(5) The person to be committed had a right to counsel, Ken.Rev.Stat.Ann. Sec. 202A.121, and a right to be present throughout the proceedings (unless this right was waived, or unless her conduct was unreasonably disruptive), Ken.Rev.Stat.Ann. Sec. 202A.131;

(6) Discharge by an authorized staff physician during the prescribed period of involuntary commitment when the criteria for involuntary commitments were no longer met, Ken.Rev.Stat.Ann. Sec. 202A.171;

(7) The opportunity for convalescent leave during the prescribed period of involuntary commitment, Ken.Rev.Stat.Ann. Sec. 202A.181;

(8) A limitation of the prescribed period of confinement to sixty or three hundred sixty days without further judicial proceedings, Ken.Rev.Stat.Ann. Sec. 202A.051.

Ken.Rev.Stat.Ann. Sec. 202B.050, before 1986, provided that all rights guaranteed by Ken.Rev.Stat.Ann. Chapters 202A and

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210 2 would apply to mentally retarded persons. Section 202B.040 added the additional required determination to Sec. 202A.026 that treatment that could reasonably benefit the individual be available in the hospital or mental retardation residential treatment center. Ken.Rev.Stat.Ann. Sec. 202B.040(4). Furthermore, no mentally retarded person could be involuntarily hospitalized without the consent of the Secretary of the Cabinet for Human Resources, unless a determination of a concurrent mental illness requiring commitment was made pursuant to Chapter 202A. Ken.Rev.Stat.Ann. Sec. 202B.030.

Despite the existence of this comprehensive statutory scheme, the Cabinet for Human Resources formed the Record Review Committee (RRC) for the purpose of controlling admissions to RTCs of mentally retarded persons. The RRC consisted of, at a minimum, a physician, a psychologist, a social worker, and a registered nurse. Procedurally, a parent or guardian was required to contact the local Comprehensive Care Center (operated by the Regional Mental Health-Mental Retardation Board), which would refer the mentally retarded person to the RRC. The written admissions policy of the Cabinet set out standards for admission:

The suitability for admission to a mental retardation facility is determined by: a) the availability of appropriate alternative residential and training programs in the community, b) the availability of appropriate living and training space within the recommended facility, c) the severity of the applicant's handicap, and d) the status of the family's situation.

("Admissions Policies and Procedures for Mental Retardation Residential Facilities," August 21, 1981).

The RRC procedure accounted for virtually all admissions of mentally retarded persons to RTCs; indeed, during 1982, 1983, 1984 and 1985, only one mentally retarded person was admitted pursuant to the statutory procedures for involuntary commitment. However, the Cabinet's view has consistently been that admissions under the RRC procedure, initiated by the parent or guardian, are voluntary in nature. Moreover, if the committed person was able to sign the Resident's Bill of Rights form which was presented at admission, by signature or by marking an "X," her admission was considered to be voluntary.

Once a person was admitted, his or her continued commitment was ostensibly evaluated according to the Mental Retardation Facility Discharge Protocol, based on Ken.Rev.Stat.Ann. Sec. 210.270. That section provides a mechanism for community placements once the RTC staff determines that such placement is appropriate, including provisions for challenges to reclassification. 3

The named plaintiff, Samuel Doe, was placed in 1971, at age eighteen, in the custody of what is now the Kentucky Cabinet for Human Resources. Under the authority of the Secretary of the Cabinet, he was institutionalized in the Outwood State Hospital, Dawson Springs, Kentucky. In 1977, while still at Outwood, he was adjudicated as incompetent at the initiation of the Commonwealth. Soon thereafter, his mother was appointed as his legal guardian. Doe has received no independent review of his confinement, judicial or otherwise, throughout the seventeen years of his institutionalization.

Plaintiffs brought this action pursuant to 42 U.S.C. Sec. 1983 challenging the failure of Kentucky to provide the safeguards required by Ken.Rev.Stat.Ann. Chapters 202A and 202B. In its first memorandum opinion, the district court found that defendants had adopted a policy of allowing parents to exert an absolute veto over the decision to release a patient to a community placement, and that such a practice was

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contrary to the holding of the Supreme Court in Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Memorandum Opinion of March 28, 1984 (Memorandum I) at 13-17. The district court denied summary judgment in all other respects.

In its second memorandum opinion, the district court noted that because the great majority of profoundly and severely mentally retarded persons are incapable of making the decision as to whether admission into a RTC is in their best interest, all such admissions were to be considered involuntary. Memorandum Opinion of January 9, 1986 at 3, 9 (Memorandum II). It then concluded that, because Kentucky had declared that the mentally ill and the mentally retarded would be treated in the same manner, it constituted a denial of equal protection to apply the involuntary commitment statute to the mentally ill while refusing to make its provisions available to the mentally retarded. Memorandum II at 5-8.

In response to the district court's order, the Kentucky General Assembly amended Chapter 202B in an attempt to avoid the result reached by the district court. Ken.Rev.Stat.Ann. Sec. 202B.050 was amended to read:

All rights guaranteed by K.R.S. Chapters 202A (other than those rights enumerated in K.R.S. 202A.026 and 202A.051) and...

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