is no better. That review process is conducted internally without any of the procedural rights provided in a judicial hearing. Patients are not entitled to a lawyer, nor permitted to introduce relevant evidence relating to his or her recovery. See D.C. Code § 21-548. Moreover, doctors are not equipped to analyze the legal basis of the patients' commitment. Several empirical studies have proven that the psychiatrists are inherently biased toward commitment and tend to favor treatment whenever considered needed. See B. Ennis & R. Emery, The Rights of Mental Patients (1978); S. Morse, A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disordered, 70 Calif. L. Rev. 54, 86 (1982). The doctors' bias towards favoring treatment undermines the defendants' assertion that hospital review is an adequate substitute for the constitutionally conducted judicial hearing which plaintiffs have heretofore been denied.
Finally, the hospital does not keep the documentation necessary to conduct a thorough review which adequately safeguards these plaintiffs' liberty interests. Defendants admittedly had a difficult time retrieving the relevant information necessary to respond to plaintiffs' interrogatories. They stated that their hospital records did not include any information regarding whether patients had sought or received court review of their commitment. Response of Federal Defendant to Interrogatory 9 of Plaintiffs' First Set of Interrogatories. (Jan. 30, 1985.) Doctor Myerson, plaintiffs' psychiatric expert, who reviewed the hospital records, exclaimed that the records which did exist were "woefully inadequate" and provided little basis on which to measure whether the patient had improved and could benefit from less restrictive care. Affidavit of Arthur T. Myerson, M.D., para. 4. (Oct. 28, 1985.) It seems incredulous that the hospital asserts, on the one hand, that its in-house procedures thoroughly examine both the medical and legal criteria of continued commitment and hence satisfy due process, and on the other, that it maintains no records of a patient's court review.
It appears to this Court that the existing procedures are woefully lacking and insufficient to satisfy plaintiffs' due process rights.
E. Burden on the District's Resources is not Excessive
The potential burden of conducting commitment hearings is not substantial enough to surmount the plaintiffs' liberty interests. The anticipated burden to conduct approximately 600 hearings is overstated and not as onerous as it appears at first blush. First, the hearings do not have to be conducted immediately. They can be scheduled over a specified period of time thus reducing the strain on the hospital and the courts. Furthermore, once plaintiffs are entitled to automatic review, they will be granted counsel who can review each patient's condition according to current legal standards and determine if a full hearing is appropriate. Presumably, many patients, upon advice of counsel, will waive their right to a hearing. Therefore, the total number of comprehensive adjudicatory proceedings will be far fewer than the maximum potential of 600. See supra note 12.
In effectuating the plaintiffs' rights to due process, Justice Harlan's admonition should be recognized -- "budgetary inadequacies should not be permitted to stand in the way of . . . otherwise sound constitutional principles." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). Accordingly, this Court concludes that the plaintiffs' liberty interests coupled with the risk of erroneous commitment outweigh the District's concern with increased administrative burdens.
F. Class of Patients Entitled to Automatic Review
Today's ruling that patients committed under an unconstitutional standard of proof are entitled to a judicial hearing applies to all patients in the relevant subclasses. Defendants contention that those individuals who waived their right to a judicial hearing are not entitled to a judicial reexamination of their commitment status ignores the elementary requirements necessary for a valid waiver. Waivers are only valid if knowingly and intelligently made and approved by the court. In re Gault, 387 U.S. 1, 33, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1966); Suzuki v. Quisenberry, 411 F. Supp. 1113, 1129 (D. Haw. 1976). The court must independently approve the waiver and affirm the Mental Health Commission's report according to the prevailing constitutional standard of proof. In re Nelson, 408 A.2d 1233 (D.C. 1979). However in all decisions prior to 1973, patients were deciding whether to waive their rights based on the unconstitutional "preponderance" standard. This Court is not empowered to speculate whether these individuals would have waived their right to trial if they knew the state had to prove their mental illness by "clear and convincing" evidence. Their waivers cannot be considered knowingly and intelligently made according to current constitutional standards. Each patient with the advice of counsel should have the opportunity to reevaluate his or her decision according to the appropriate standard and obtain proper approval by the courts.
G. Right to Judicial Review for Patients Committed Before 1965
Plaintiffs' rights to due process entitle them to judicial review of their commitment and fully satisfy their request for relief for members of both subclasses. Therefore, the Court will refrain from analyzing the constitutionality of the now-defunct predecessor to the Ervin Act.
The Supreme Court in O'Connor recognized the dilemma faced by society in deciding how to properly care for the mentally ill. It noted that releasing an unprepared patient onto the community often does not improve the patient's living standards or enhance his or her freedom.
However, the decision today is not adding to the crisis of the de-institutionalized. An entitlement to judicial review does not mean an entitlement to automatic release but only a review to determine if each plaintiff's commitment is consistent with existing constitutional standards. Nor is this Court intervening in the therapeutic judgments of the medical profession. Courts should readily defer to a physician's clinical judgments as to appropriate treatment. Youngberg v. Romeo, 457 U.S. 307, 315, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). But, by rigorously guaranteeing the mentally ill's procedural rights, courts can help insure that the commitment decision will actually advance society's therapeutic and protective goals.
An appropriate Order will be entered.
Consistent with the Memorandum Opinion entered on this day, it is this 19th day of May, 1987,
That plaintiffs' motion for partial summary judgment is granted. Counsel for the parties shall confer immediately and arrange a mutually agreeable schedule for the hearings. If counsel are unable to reach agreement, plaintiffs' counsel shall submit an appropriate order with a proposed hearing schedule, by June 8, 1987.