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05/15/92 MATTER DONALD PLUMMER

May 15, 1992

IN THE MATTER OF DONALD PLUMMER, APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Samuel B. Block, Trial Judge)

Before Rogers, Chief Judge, and Schwelb and Wagner, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Chief Judge Rogers. Concurring opinion by Associate Judge Schwelb. Dissenting opinion by Associate Judge Wagner.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : In these consolidated appeals, appellant Donald Plummer, a civilly committed adult, raises several challenges to the validity of his commitment as an involuntary inpatient at Saint Elizabeths Hospital ("the Hospital"). He contends that (1) the court order revoking his earlier outpatient commitment was invalid because the Hospital failed to file a timely revocation petition after appellant was returned to the institution; (2) the revocation order was invalid because the Hospital failed to demonstrate at the revocation hearing that indefinite inpatient commitment was the least restrictive treatment alternative; and (3) once the Hospital released him to the community on indefinite convalescent leave, he became a de facto outpatient, requiring the Hospital to honor his due process rights when returning him to the institution. We agree with appellant's third contention, and accordingly reverse. *fn1

I

Appellant was originally civilly committed in 1983, and ordered to participate in an outpatient course of treatment under the supervision of the Hospital. D.C. Code § 21-545 (b) (1989). The outpatient commitment order allowed the Hospital to return appellant to the Hospital for inpatient treatment if he failed to participate in outpatient treatment, or if his condition deteriorated, for up to five days, with oral notice to his counsel within twenty-four hours of his return to the Hospital. At the end of five days, the Hospital was required to restore appellant to outpatient status unless, within that period, the Hospital had petitioned the court for revocation of the outpatient order.

Between 1983 and 1986 appellant participated in outpatient treatment. Although on several occasions he failed to comply with the prescribed course of treatment, and was returned to the Hospital for brief periods of inpatient treatment, appellant resided in the community for the vast majority of that three-year period and received outpatient care. On October 28, 1986, after failing for approximately one month to take his medication, appellant was returned to the Hospital in a deteriorated mental state. The Hospital filed a timely notice of rehospitalization with the court, and the trial Judge issued an ex parte order finding probable cause for appellant's return to the Hospital.

On November 6, 1986, the Hospital filed a petition to revoke appellant's outpatient commitment status. After a hearing at which a psychiatrist from the Hospital and appellant's sister testified, the trial Judge concluded that appellant required inpatient hospitalization, at least for "eight weeks or a little bit more." The Judge revoked appellant's outpatient commitment, and ordered appellant committed as an inpatient "for an indefinite period." Appellant's challenge to this order is the basis for appeal No. 86-FM-1697.

After the revocation order, appellant spent just over a month in the Hospital, and was then released on "temporary leave." *fn2 On February 18, 1987, the Hospital placed appellant on "convalescent leave," which meant that he was allowed to remain in the community for an indefinite period, receiving occasional "outpatient services" from the Hospital. On May 28, 1987, appellant filed a motion with the trial court, asking that his commitment order be modified to reflect the fact that he was now effectively an outpatient. See Super. Ct. Civ. R. 60 (b) (1990). By the time the trial Judge heard oral argument on September 16, 1987, appellant had resided in the community for eight months, receiving outpatient psychiatric services from the Hospital. The trial Judge denied the motion, relying in large part on an affidavit from one of appellant's treating physicians. The affidavit indicated that although appellant had continued to keep his outpatient appointments, "there has been no increase in his insight to mental illness and no change in his mental attitude." Thus, appellant retained the legal status of an inpatient, subject to return to the Hospital without any due process rights. This order is the basis for appeal No. 87-FM-1239. *fn3

II

After appellant's outpatient status was revoked, the Hospital kept him in the institution for a period of weeks, and then released him on indefinite convalescent leave on February 18, 1987. Appellant contends that once he was released to live in the community for an indefinite period of time, he became a de facto outpatient, entitled to the same due process rights as a patient who is originally committed as an outpatient. See In re Richardson, 481 A.2d 473 (D.C. 1984). We agree.

The court in Richardson, supra, stated that the question posed by the case was "the appropriate procedures to be followed when reexamining a mentally ill individual, on an inpatient basis, who has previously been permitted to live in the community." Id. at 476. The court concluded that (1) "the Superintendent of the Hospital must provide the court with an affidavit within twenty-four hours of a patient's return to the institution," (2) the court must "make a prompt, ex parte determination that the patient has failed to abide his treatment regimen or has suffered a deterioration in his condition," (3) "patient's counsel must also be provided with a copy of the affidavit within twenty-four hours of the patient's return," and (4) "both the patient and his counsel shall be informed in writing that the Hospital must either release him after the fifth day of institutional care and observation, or thereafter move for a prompt adversary judicial hearing seeking the permanent revocation of his outpatient status." Id. at 480-81. A committed outpatient must receive these so-called " Richardson rights" when the Hospital returns him or her to the institution.

Although Richardson arose in the context of a patient whose original commitment order authorized "outpatient" treatment, we agree with appellant that similar considerations apply here. Every person committed, whether as an inpatient or an outpatient, has the right to treatment by the least restrictive means. Id. at 479. Once the Hospital releases an inpatient to live in the community for an indefinite period of time, that patient obtains an "interest in not being erroneously deprived of his freedom to remain in the community." Id. at 482.

Several courts from other jurisdictions have also recognized the important liberty interest possessed by committed inpatients who are released on indefinite leave. See In re Application of True, 103 Idaho 151, 645 P.2d 891 (1982); see also Birl v. Wallis, 619 F. Supp. 481 (M.D. Ala. 1985); Lewis v. Donahue, 437 F. Supp. 112 (W.D. Okla. 1977) (three-Judge court); Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975) (Higginbotham, J.); In re Commitment of B.H., 212 N.J. Super. 145, 514 A.2d 85 (1986). As the court in Application of True, supra, stated:

The granting of out-patient standing did change [the patient's] situation -- she ceased to be a person who was institutionalized and became a person permitted to enjoy a substantial degree of liberty. Conversely, revocation of leave effected an involuntary transfer from a relatively non-restrictive environment to a restrictive one, and a correlative deprivation of a measure of freedom.

103 Idaho at ; 645 P.2d at 896 (quoting Lewis v. Donahue, supra, 437 F. Supp. at 114). These courts have analogized conditional release from a mental hospital to parole. Because the Supreme Court has held that a parolee is entitled to notice and a hearing before the state can revoke his conditional liberty, Morissey v. Brewer, 408 U.S. 471, 482, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), courts have concluded that a patient on indefinite leave from an institution is similarly entitled to certain due process rights when returned to the institution for inpatient care:

The liberty at stake in a civil commitment proceeding is as valuable an interest as the liberty at stake in a criminal trial. And the Supreme Court has unanimously held that the "conditional liberty" of the paroled criminal falls within the scope of the Fourteenth Amendment and is entitled to the protection of the Due Process Clause. . . . I cannot see how the "conditional liberty" of the paroled mental patient differs in any significant respect from the "conditional liberty" of the paroled criminal. . . .

Meisel v. Kremens, supra, 405 F. Supp. at 1256 (citations omitted); see also Birl v. Wallis, supra, 619 F. Supp. at 490 ("due process requires that mental patients . . . be given certain basic procedural safeguards before they are returned from trial visit"); Lewis v. Donahue, supra, 437 F. Supp. at 114 (holding unconstitutional a statute "which permits the revocation of out-patient or convalescent leave without notice or opportunity to be heard prior to re-institutionalization"); Application of True, supra, 103 Idaho at , 645 P.2d at 903 (the "minimum due process requirements" for return of an inpatient on conditional leave are prompt written notice of the reasons for re-institutionalization, and a hearing before a neutral body as soon as reasonably possible); Annotation, Right to Notice and Hearing Prior to Revocation of Conditional Release Status of Mental Patient, 29 A.L.R. 4TH 394 (1984); Note, Constitutional Law: The Summary Revocation of an Involuntary Mental Patient's Convalescent Leave -- Is it Unconstitutional?, 33 OKLA. L. REV. 366 (1980). But see Hooks v. Jaquith, 318 So. 2d 860 (Miss. 1975). *fn4

The District of Columbia Hospitalization of the Mentally Ill Act, D.C. Code §§ 21-501 to 21-592 (1989) ("the Act"), is designed to protect the liberty interests of the patient. See In re Feenster, 561 A.2d 997, 999 (D.C. 1989). With the advances in the medical treatment of the mentally ill, the old distinctions between inpatients on convalescent leave and outpatients may lose much of their clarity. As the Hospital has modified its methods of treatment, the courts have tried to be supportive of those efforts. But while old definitions of "inpatient" and "outpatient" may give way to new arrangements, what remains clear is the protection that is afforded to the patient under the statute. When a patient who is living outside the Hospital suffers a relapse after ceasing to take his or her medication, and the Hospital determines that the patient can function indefinitely on convalescent leave outside the Hospital, the patient acquires procedural rights that must be respected before the patient can be involuntarily returned to the Hospital for an indefinite period of time. Appellant, as a committed inpatient on indefinite convalescent leave, was entitled to protection similar to those described in Richardson, supra, 481 A.2d at 480-81. *fn5

Accordingly, because appellant became a de facto outpatient once the Hospital placed him on indefinite convalescent leave, appellant must be granted the legal status of an outpatient, see Feenster, supra, 561 A.2d at 1000; *fn6 the judgments in appeal Nos. 87-FM-1239, and 87-FM-1423 are reversed, and the case is remanded to the trial court with instructions to order that appellant's outpatient commitment be restored in accordance with this opinion. *fn7

Reversed and remanded with instructions.

ROGERS, Chief Judge, Concurring: I write separately because our prior decisions make clear that appellant's other contentions are equally persuasive. The court order revoking appellant's outpatient status was invalid because (1) the Hospital failed to file a timely revocation petition, and (2) the Hospital failed to demonstrate at the hearing that indefinite inpatient treatment was the least restrictive alternative. The liberty interests at stake are too precious to allow the ...


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