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December 23, 1975

WILLIAM DIXON et al., Plaintiffs,
CASPAR WEINBERGER et al., Defendants

The opinion of the court was delivered by: ROBINSON

ROBINSON, District Judge.

 A wealth of material has been presented to the Court for assistance in resolving the motions currently pending. Although plaintiffs raise both statutory and constitutional grounds for the relief sought, the Court concludes that the statutory grounds are sufficient for resolution of this matter and this discussion is confined accordingly. The current motion is brought by the class of plaintiffs comprised of inpatients confined pursuant to the 1964 Act. In the estimation of the Hospital's clinical staff, approximately 43% of these inpatients currently require care and treatment in alternative facilities. Alternative facilities are defined as including but not limited to nursing homes, personal care homes, foster homes and halfway houses. Simply stated, the plaintiffs seek a judicial declaration that under the 1964 Act they have a right to treatment which includes placement in facilities outside St. Elizabeths Hospital where such placement is determined to be consistent with the rehabilitative purposes of the 1964 Act, that the federal and District of Columbia governments have a joint duty to provide for such treatment where appropriate, and that this duty has been breached because there are numerous individuals in the Hospital who have been determined in need of placement in alternative facilities but who have been denied due to a lack of same. Plaintiffs ask that this Court require defendants to initiate a plan for the development of alternative facilities and the placement of appropriate individuals therein.

 Both governmental defendants oppose the requested relief. The District of Columbia defendants challenge the contention that the plaintiffs' right to treatment includes placement in alternative facilities, and, alternatively, argue that even if such a right exists, the responsibility for meeting the requirement is upon the federal government, and not the District of Columbia. The federal defendants on the other hand, deny that plaintiffs have met the burden of establishing their right to such treatment and vigorously dispute their responsibility for providing the facilities in which plaintiffs seek placement.

 After extensive review of the pleadings and the record in this case, the lengthy legislative history of the 1964 Act, and the cases of this jurisdiction which have fleshed out the language of the statutory provisions in question, the Court concludes that plaintiffs' position is the correct one. In reaching this conclusion, the Court has considered two issues: Whether the right to treatment mandated by the Act includes the outpatient placement these plaintiffs seek, and if so, whether the federal or District governments, or both, are responsible for providing such facilities and effecting placement therein. The following discussion details these two considerations.

 The purpose of the Act and the judicial recognition of its broad mandate are not in issue. Further the defendants do not dispute that St. Elizabeth's Hospital staff are responsible for making care and treatment decisions regarding patients on the Hospital's rolls and for decisions that determine status as inpatients or outpatients. *fn2" Nor do they dispute that the Hospital staff has determined that plaintiffs' treatment needs include placement outside the Hospital. Yet defendants construe the above cited statutory language and the cases of this jurisdiction to conclude that plaintiffs are not entitled to the treatment sought by this action.

 The District of Columbia defendants argue that 21 D.C. Code 545(b) which requires judicial consideration of any "alternative course of treatment which the Court believes will be in the best interests of the person or of the public" should be applied only at the commitment stage (as the statutory scheme indicates) and not expanded to the treatment stage. These defendants assert this position despite judicial determination that "[the] principle of the least restrictive alternative is equally applicable to alternative dispositions within a mental hospital," Covington v. Harris, 136 U.S. App. D.C. 35, 419 F.2d 617, at 623 (1969), and despite a declaration that "deprivation of liberty solely because of the dangers to the ill persons themselves should not go beyond what is necessary for their protection." Lake v. Cameron, 124 U.S. App. D.C. 264, 364 F.2d 657, at 660 (D.C.Cir. 1966). These defendants construe these cases narrowly and contend that only persons criminally committed who seek removal from maximum security are entitled to considerations of "least restrictive alternatives."

 The federal defendants take a rather different approach. They do not dispute the fact that least restrictive alternatives must be considered in making treatment choices. However, the defendants contend that plaintiffs have failed to meet their burden of establishing that placement in the alternative facilities sought by this action is a less restrictive environment than hospitalization at St. Elizabeths for these plaintiffs. This argument is based upon the allegation that the plaintiff class includes individuals whose serious medical needs makes placement in an alternative facility most difficult. *fn3"

 The Court finds these arguments without merit. The District of Columbia defendants' position is totally unjustified in light of the statutory language and its legislative history as recognized in the case law. And the federal defendants' contention goes more to the allocation of responsibility in an individual case, and not to the question of whether the placement is required under the Act.

 The extensive legislative history of the 1964 Act as recited by plaintiffs, reviewed by the Court and referred to at length in Rouse, supra, clearly indicates that the "medical and psychiatric care and treatment" mandated by the Act must be broadly construed. And the record before the Court in this case convincingly demonstrates that "suitable care and treatment in light of present knowledge" includes placement in alternative facilities in numerous instances. Thus, under the statutory language as interpreted, these plaintiffs have a right to the treatment sought in this action where the Hospital has determined that such treatment is appropriate.

 The underlying controversy in this case, however, arises from the statutory creation of a right to the best possible care and treatment for the mentally ill without the delineation of the responsibility for providing the full range of care and treatment mandated. The fact that Congress did fail to definitely assign responsibility makes this Court's decision a more difficult one. The statutory language clearly mandates a right to treatment for patients. And the legislative history is replete with discussions of the likelihood of placement in facilities less restrictive than a mental hospital where such is determined to be appropriate treatment. Yet a delineation of responsibility for patient needs during the course of a treatment program was only mentioned as a potential bottleneck due to the financial interrelationship between the Hospital and the District, and was deferred for study at a later time. *fn4"

 The primary responsibility for exploring and providing alternative facilities at the commitment level is upon the District of Columbia, and other Courts have so held. In re Johnson, 103 Wash. Law Rep. 505 (1975); In re Melvin, M.H. No. 48-74 (D.C. Sup. Ct. 1975). A recent case from Superior Court of the District of Columbia has gone even further than earlier cases and recognized the propriety of placement in a less restrictive alternative facility during the course of treatment (i.e. after an initial confinement in the Hospital) and the duty of the District of Columbia to provide promptly for such placement despite the lack of staff and facilities or budgetary limits. In re Johnson, 103 Wash. Law. Rep. 1913 (Nov. 10, 1975). It is beyond dispute that St. Elizabeths Hospital is responsible for providing suitable care and treatment for patients while confined in the Hospital.

 Therefore, at the commitment stage and for those patients determined to be in need of only custodial care, completely independent from any care or treatment generated by St. Elizabeths, the primary responsibility is upon the District government to provide suitable alternative arrangements. But in this case the class of plaintiffs includes individuals who are in ...

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