Lake v. Cameron, 18809.

• Decision Date: 19 May 1966
• Docket Number: No. 18809.,18809.
• Citation: 364 F.2d 657
• Parties: Catherine LAKE, Appellant, v. Dale C. CAMERON, Superintendent, Saint Elizabeths Hospital, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

364 F.2d 657 (1966)

Catherine LAKE, Appellant, v. Dale C. CAMERON, Superintendent, Saint Elizabeths Hospital, Appellee.

No. 18809.

United States Court of Appeals District of Columbia Circuit.

Argued January 19, 1966.

Decided May 19, 1966.

As Amended September 19, 1966.

Mr. Hyman Smollar, Washington, D. C. (appointed by this court), with whom Mr. Lawrence S. Schaffner, Washington, D. C., was on the brief, for appellant.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Oscar Altshuler, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, EDGERTON,^* Senior Circuit Judge, and FAHY, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEVENTHAL, Circuit Judges, sitting en banc.

On Rehearing en banc

BAZELON, Chief Judge:

Appellant is confined in Saint Elizabeths Hospital as an insane person and appeals from denial of release in habeas corpus. On September 29, 1962, when she was sixty years old, a policeman found her wandering about and took her to the D.C. General Hospital.¹ On October 11, 1962, she filed in the District Court a petition for a writ of habeas corpus. The court transferred her to St. Elizabeths Hospital for observation in connection with pending commitment proceedings, allowed her to amend her petition by naming the Superintendent of Saint Elizabeths as defendant, and on November 2, 1962, dismissed her petition without holding a hearing or requiring a return.

After she filed her appeal from denial of habeas corpus, she was adjudged "of unsound mind" and committed to Saint Elizabeths. At the commitment hearing two psychiatrists testified that she was mentally ill and one of them that she was suffering from a "chronic brain syndrome" associated with aging and "demonstrated very frequently difficulty with her memory * * *. Occasionally, she was unable to tell me where she was or what the date was." Both psychiatrists testified to the effect that she could not care for herself adequately. She did not take a timely appeal from the commitment order. We heard her appeal from the summary dismissal of her petition for habeas corpus and remanded the case to the District Court with directions to require a return and hold a hearing.²

At the hearing on remand, the sole psychiatric witness testified that appellant was suffering from a senile brain disease, "chronic brain syndrome, with arteriosclerosis with reaction." The psychiatrist said she was not dangerous to others and would not intentionally harm herself, but was prone to "wandering away and being out exposed at night or any time that she is out." This witness also related that on one occasion she wandered away from the Hospital, was missing for about thirty-two hours, and was brought back after midnight by a police officer who found her wandering in the streets. She had suffered a minor injury which she attributed to being chased by boys. She thought she had been away only a few hours and could not tell where she had been. The psychiatrist also testified that she was "confused and agitated" when first admitted to the Hospital but became "comfortable" after "treatment and medication."

At both the commitment hearing and the habeas corpus hearing on remand, appellant testified that she felt able to be at liberty. At the habeas corpus hearing her husband, who had recently reappeared after a long absence, and her sister said they were eager for her release and would try to provide a home for her. The District Court found that she "is suffering from a mental illness with the diagnosis of chronic brain syndrome associated with cerebral arteriosclerosis"; that she "is in need of care and supervision, and that there is no member of the family able to give the petitioner the necessary care and supervision; and that the family is without sufficient funds to employ a competent person to do so"; that she "is a danger to herself in that she has a tendency to wander about the streets, and is not competent to care for herself." The District Court again denied relief in habeas corpus, but noted appellant's right "to make further application in the event that the patient is in a position to show that there would be some facilities available for her provision." The court thus recognized that she might be entitled to release from Saint Elizabeths if other facilities were available, but required her to carry the burden of showing their availability.

Appellant contends in written and oral argument that remand to the District Court is required for a consideration of suitable alternatives to confinement in Saint Elizabeths Hospital in light of the new District of Columbia Hospitalization of the Mentally Ill Act,³ which came into effect after the hearing in the District Court. Indeed, her counsel appointed by this court, who had interviewed appellant, made clear in answer to a question from the bench on oral argument that although appellant's formal pro se pleading requests outright release, her real complaint is total confinement in a mental institution; that she would rather be in another institution or hospital, if available, or at home, even though under some form of restraint.

Habeas corpus challenges not only the fact of confinement but also the place of confinement.⁴ And the court is required to "dispose of the matter as law and justice require." 28 U.S.C. § 2243. The court is not restricted to the alternative of returning appellant to Saint Elizabeths or unconditionally releasing her.

We are not called upon to consider what action we would have taken in the absence of the new Act, because we think the interest of justice and furtherance of the congressional objective require the application to the pending proceeding of the principles adopted in that Act. It provides that if the court or jury finds that a "person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty, the court may order his hospitalization for an indeterminate period, or order any other alternative course of treatment which the court believes will be in the best interests of the person or of the public." D.C.Code § 21-545(b) (Supp. V, 1966). This confirms the view of the Department of Health, Education and Welfare that "the entire spectrum of services should be made available, including outpatient treatment, foster care, halfway houses, day hospitals, nursing homes, etc."⁵ The alternative course of treatment or care should be fashioned as the interests of the person and of the public require in the particular case.⁶ Deprivations of liberty solely because of dangers to the ill persons themselves should not go beyond what is necessary for their protection.⁷

The court's duty to explore alternatives in such a case as this is related also to the obligation of the state to bear the burden of exploration of possible alternatives an indigent cannot bear. This appellant, as appears from the record, would not be confined in Saint Elizabeths if her family were able to care for her or pay for the care she needs. Though she cannot be given such care as only the wealthy can afford, an earnest effort should be made to review and exhaust available resources of the community in order to provide care reasonably suited to her needs.⁸

At the habeas corpus hearing, the psychiatrist testified that appellant did not need "constant medical supervision," but only "attention"; that the psychiatrist would have no objection if appellant "were in a nursing home, or a place where there would be supervision." At the commitment hearing one psychiatrist testified that "Mrs. Lake needs care, whether it be in the hospital or out of the hospital," and did not specify what, if any, psychiatric care she needs. The second psychiatrist testified that she "needs close watching. She could wander off. She could get hurt and she certainly needs someone to see that her body is adequately cared for * * *. She needs care and kindness * * *."⁹ It does not appear from this testimony that appellant's illness required the complete deprivation of liberty that results from commitment to Saint Elizabeths as a person of "unsound mind."

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.¹⁰ 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.

We remand the case to the District Court for an inquiry into "other alternative courses of treatment." The court may consider, e. g., whether the appellant and the public would be sufficiently protected if she were required to carry an identification card on her person so that the police or others could take her home if she should wander,¹¹ or whether she should be required to accept public health nursing care, community mental health and day care services, foster care,¹² home health aide services, or whether available welfare payments might finance adequate private care.¹³ Every effort should be made to find a course of treatment which appellant might be willing to accept.¹⁴

In making this inquiry, the District Court may seek aid from various sources, for example the D.C. Department of Public Health, the D.C. Department of Public Welfare, the Metropolitan Police Department, the D.C. Department of Vocational Rehabilitation, the D.C. Association for Mental Health, the various family service agencies, social workers from the patient's neighborhood, and neighbors who might be able to provide supervision.¹⁵ The court can also require the aid of the Commission on Mental Health, which was established "in recognition of the fact that the assistance of unbiased experts was...