The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Plaintiffs are mentally retarded adult women who receive habilitation services from the District of Columbia through the Mental Retardation and Developmental Disabilities Administration ("MRDDA"), a component of the Department of Human Services. By their next friends, they bring this action for violations of their constitutional and civil rights under 42 U.S.C. § 1983 ("§ 1983"), alleging that MRDDA employs an unlawful practice of authorizing elective surgical procedures on behalf of retarded persons*fn1 in its care without adequately attempting to ascertain their wishes or consult with family members. Plaintiffs assert these claims on their own behalf as well as for a putative class of all mentally retarded persons who have received habilitation services from the District of Columbia and for whom District officials have consented to elective surgical procedures.*fn2
Plaintiffs sought a preliminary injunction requiring MRDDA generally to apply the "substituted judgment standard," and specifically to comply with a provision of the D.C. Code which outlines both who may provide consent for medical treatment or surgeries performed on a legally incompetent person as well as the steps that must be undertaken to establish that consent. D.C. Code § 21-2210(a) -- (b). On April 29, 2005 this court granted the preliminary injunction [#102], indicating that a more complete discussion of its reasoning would follow. This memorandum provides the court's rationale for its decision.
Defendant first maintains that plaintiffs lack standing to obtain preliminary injunctive relief because "plaintiffs' injuries did not occur pursuant to a policy, currently in place or in place at the time the action was filed"; and that defendant's "allegedly unlawful conduct causing harm to plaintiffs occurred before the current legislative scheme providing for consent was put in place." Def.'s Opp'n at 4-5. To support this argument, defendant cites to this court's ruling on plaintiffs' motion for class certification.*fn3 Jane Does I Through III v. District of Columbia, 216 F.R.D. 5, 11-12 (D.D.C. 2003) ("Jane Does I"). Defendant's argument is wholly without merit.
In Jane Does I, the court noted that, "in order to assert claims for prospective injunctive relief, a plaintiff must demonstrate, not only that she has been harmed in the past, but 'that she is realistically threatened by a repetition [of the violation].'" Id. at 10 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Plaintiffs' efforts then fell short because they failed to "allege a risk of future injury, [or] introduce evidence to adequately support such a claim," and because "the court knows of no individual harmed by the conduct at issue within the past six years," Jane Does I, 216 F.R.D. at 13.
Plaintiffs' amended complaint, however, cures all three deficiencies in standing which the court identified in Jane Does I: it asserts that MRDDA replaced the policy in effect at the time of the named plaintiffs' injuries with "another surgical consent policy but did not remedy the constitutional infirmities" of the earlier policy, Am. Compl. at 1-2, ¶ 12; improperly authorized surgical procedures for members of the putative class from 1970 through the present, id. ¶¶ 46-49; and continues to authorize such surgeries, placing plaintiffs at risk for future violations of their rights, id. ¶ 12. Beyond the allegations in the complaint, plaintiffs state that current MRDDA Administrator Dale Brown has consented to 175 elective invasive procedures pursuant to the allegedly unlawful policy between 2002 and early 2005, Pls.' Mot. for Prelim. Inj. at 2; Brown herself testified that she will continue to apply the agency's policy and practices regarding consent. Brown Dep. at 69, 29. Plaintiffs continue to receive habilitation services from MRDDA, and are therefore subject to application of the policy. Pls.' Mot. for Prelim. Inj. at 1. Plaintiffs, therefore, establish standing sufficient to obtain prospective injunctive relief.*fn4
B. Legal Standard for Preliminary Injunction
A preliminary injunction is an "extraordinary remedy" that should only issue "when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). A court considering a preliminary injunction request must examine four factors, namely whether:
(1) plaintiffs will be "irreparably harmed if an injunction is not granted"; (2) there is a "substantial likelihood" that plaintiffs will succeed on the merits; (3) an injunction will "substantially injure" defendant; and (4) the public interest will be furthered by the injunction. Serono Labs., Inc., v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998). These four factors "interrelate on a sliding scale" and must be considered in relation to one another, with the result that "if the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." Id. at 1318 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)).
C. MRDDA's Consent Policy
MRDDA's predecessor, the Bureau of Habilitation Services, adopted a policy in 1990 governing "Permission for Medical, Dental, Surgical Treatment" for wards under its care ("H-18"). Pls.' Ex. 2.*fn5 The policy required that for "treatment and non-invasive diagnostic procedures," "[i]nformed consent must be given by the parent or Superintendent/Guardian," id. at 1. While the policy noted that "[f]amily contact is attempted," H-18 essentially outlined a consent mechanism for the agency's Superintendent alone, who, "on recommendation of the primary care physician, dental officer, or the Chief of Health Services signs the authorization form . . . granting the necessary permission for treatment." Id.
A revised policy, H-6, dated January 15, 1992, replaced H-18. Pls.' Ex. 3 at 1. Several changes appeared in H-6. While the new policy incorporated H-18's language on obtaining consent for "treatment and non-invasive diagnostic procedures," H-6 stated that "[i]nformed consent must be given by the parent or Guardian," eliminating the "Superintendent" as an independent provider of informed consent. Id. at 1. Unlike its predecessor, H-6 also included provisions for "elective surgery, dental treatment or invasive diagnostic procedures," noting that for such procedures the "MRDDA Administrator is responsible for signing the informed consent form . . . which grants permission for the medical treatment." Id. The Administrator "will sign" the consent form after being "adequately advised" of the medical need for the procedure, "alternative treatments, expected outcome . . . , [and] nature and degree of risks." Id. at 2. Without establishing an order of priority for giving consent, or discussing the interrelation between the Administrator's consent authority and the family's, H-6 also provided that "[i]nformed consent obtained from the family must have two staff signatures" on the consent form. Id.
H-6 has received considerable scrutiny from this court. In Boyd v. Howard University, Civil Action No. 97-02567, Mem. Op. (D.D.C. Dec. 23, 1999), a mentally retarded woman under MRDDA's care brought suit against the agency, alleging that in consenting on her behalf for elective surgical procedures, MRDDA violated her substantive and procedural due process rights. In granting summary judgment for the plaintiffs on their § 1983 claim, the court held that by failing to "incorporate any attempt to include [the patient's] desires" in granting consent for surgical procedures, MRDDA "flatly violated" both the substantive and procedural due process rights of the persons under its care. Id. at 21-22.
In 1998, however, H-6 was superseded by a policy entitled "Consent for Health Care Decisions," identified by Transmittal Letter Number 357, and dated August 10, 1998 ("1998 Policy"). The replacement of H-6 was a significant and explicit rationale for the court's previous opinion in this case, denying plaintiffs' initial motion for class certification. Jane Does I, 216 F.R.D. at 11-12 (noting that "there has been no showing that plaintiffs are likely to be subjected to [H-6] again, because, quite simply, Policy H-6 no longer exists." (citation and internal quotation marks omitted)). In Jane Does I, the court found that plaintiffs failed to show that they or any members of the putative class suffered injury under the 1998 Policy, adding that plaintiffs seemed to "not really challeng[e] a 'policy' at all, and are instead challenging isolated decisions by District decision-makers." Id. at 12.
The 1998 Policy requires that MRDDA obtain information on a "determination of a customer's incapacity to consent, pursuant to Sec. 21-2204 of the Health Care Decisions Act of 1988,"; identification of known family members; "information on the efforts to locate family members, even if the attempts were unsuccessful"; and information on the physicians and medical procedures involved. Pls.' Ex. 4 at 2. The 1998 Policy then directs that MRDDA case managers "search, identify and/or verify information on any available family member." Id. Once such efforts are exhausted, the 1998 Policy provides different procedures for obtaining consent depending upon two factors: whether MRDDA can locate family members to provide consent, and whether the medical procedures for which consent is needed are "emergency" or "non-emergency." Id. at 3-5. Whether the procedure is emergency or non-emergency, if MRDDA case workers locate family members, the treating physician "will then be advised that he or she should contact the family member for the consent," with MRDDA limiting its own role to "monitor[ing] the situation and  obtain[ing] the necessary consents to allow MRDDA access to the medical records." Id. at 3. For a non-emergency procedure, if "a family member(s) is not located or refuse to consent to the medical or dental procedure," MRDDA then requests information from the treating physician, including "a statement as to the urgency of the medical or dental procedure," "a confirmation that the health care provider has discussed the procedure with the customer," and copies of two certifications of incapacity. Id. at 4. MRDDA (through the medical staff of its Clinical Services Division) then prepares a package of information including the materials provided by the physician, which it then forwards to the Office of Corporation Counsel for the District of Columbia, "with a cover letter requesting the appointment of a guardian for the customer." Id. at 5.
The 1998 Policy was itself replaced by yet another policy, this one titled "Securing Medical and Dental Care for MRDDA Consumers," and dated effective January 1, 2003 ("2003 Policy"). Pls.' Ex. 5. The 2003 Policy is much more expansive than its predecessors, covering topics such as quality assurance, medical standards, and records retention. Insofar as the issues raised by plaintiffs complaint are concerned, the relevant section of ...