Paula Mindes
excerpted from: Paula Mindes, Tuberculosis Quarantine:
a Review of Legal Issues in Ohio and Other States , 10 Journal of Law
and Health 403-418, 413-417, 424-426 (1995-96) (160 Footnotes)
The power to isolate someone who has not committed a crime whether at
home or in a hospital is a form of civil commitment. The procedure by
which this is done may be administrative or judicial or both. At stake
in these proceedings on one side are the right of the community to be
protected, and the duty to care for people who may not be able to care
for themselves. Both are aspects of parens patriae. Individuals have an
obligation not to harm other members of the community by their actions.
On the other side are the constitutionally protected liberties of
individuals and their right to due process when they may be deprived of
liberty. In recent years there has been a major alteration in the law
governing involuntary incarceration in non-criminal cases. The community
may not deprive individuals of liberty without substantial reasons
demonstrated through convincing evidence, as shown in the following
cases from various jurisdictions.
One aspect of these procedural rights is the right to be represented
by counsel. In In Re Gault the Supreme Court required counsel to be
provided to juveniles who were before the court. These were not criminal
proceedings. Because incarceration could be the result of the court
action, counsel was nonetheless required. Humphrey v. Cady addressed the
curtailment of liberty in involuntary hospitalization succeeding a
prison Humphrey was held under the Washington State Sex Crimes Act,
which did not provide for jury determination of renewed commitment. He
had served his sentence and was recommited to prison. The Court remanded
the case to the trial court for an evidentiary hearing. It noted the
similarity between the renewal of commitment under civil law (which
required a jury trial) and the commitment in this case which did not.
Some sort of due process protection was in order "to justify such a
massive curtailment of liberty."
O'Connor v. Donaldson limited commitment of alleged mentally persons
who were not a threat to the community. Their liberty interests were
held to be paramount. In Addington v. Texas, the Court held that civil
commitment was a significant deprivation of liberty and could not be
imposed without due process protection, specifically addressing the
standard of proof to be used. Addington was committed when a court held
that he needed to be hospitalized for his safety and the safety of
others. The evidentiary standard applied by the court was proof by a
preponderance of the evidence. An appeals court reversed Addington's
commitment because the standard applied should have been proof beyond a
reasonable doubt. In noting that only one other state applied a
preponderance standard, the Supreme Court held that clear and convincing
evidence was the correct standard to be applied, in order to ensure due
process under the Fourteenth Amendment. It was already in use in the
majority of states. States might adopt higher standards if they wished
to but it was not necessary.
In Vitek v. Jones the Court said that even medical determinations
like mental illness assessments could not dispense with due process. If
someone who was not a prisoner was subject to involuntary
hospitalization, protected liberty interests would be unconstitutionally
infringed without due process under the Fourteenth Amendment. The Court
upheld the district court's requirements of notice, hearing, the right
to present and examine evidence, the right to an independent
decisionmaker and the right to counsel. Although four justices believed
that counsel should be provided for prisoners who could not afford
counsel, this was not the majority opinion. The court reasoned that the
demand for assistance required qualified and independent assistance, but
did not require the appointment of a licensed attorney. On this
reasoning, the court might not affirm the provision of counsel for
persons who are physically ill. On the other hand, if a court regarded
both proceedings as an exercise of parens patriae, it might provide the
same protections to the person with either disability.
This series of cases established that when someone is the subject of
a hearing which will adjudge them incompetent or insane, they have a
right to be represented by counsel. Vitek does not clearly afford the
right to appointed counsel. According to a recent Annotation, in certain
instances states do provide for appointed counsel. Persons being
adjudicated mentally ill must be able to consult with counsel, and
counsel should be able to cross-examine witnesses. The liberty interests
of the individual must be balanced against the severity of the threat
he/she is alleged to pose to society. Arguably, however, indigents may
not have a Constitutional right to appointed counsel in competency
hearings.
The proposition that people subject to involuntary commitment are
entitled to the assistance of counsel receives additional support from a
different line of cases. A recent review of individual rights in other
administrative proceedings asserts that adjudicative procedures
implicating fundamental rights may require counsel.
When public health authorities, as opposed to courts, make judgments
which apply law to facts they are engaged in adjudication. State laws
which permit quarantine decisions to be made by public health
authorities rather than courts create adjudication procedures. It
therefore appears that they are not exempt from due process
requirements.
New thinking in civil commitment law was focused on a quarantine case
for the first time Greene v. Edwards, a 1980 West Virginia case. Greene
had been committed to a hospital under court order issued pursuant to
the West Virginia Tuberculosis Control Act. A petition alleging that he
had active communicable TB had been filed with a state circuit court,
which scheduled a hearing. A copy of the petition and notice of the
hearing were served on Greene. He was not however advised of his right
to counsel. At the hearing an attorney was appointed for him but he was
not given time to confer with the attorney. As a result of the hearing
he was ordered to be committed to the hospital for treatment.
Greene filed for habeas corpus and alleged that his procedural due
process rights were violated in three principal ways: first, he was not
guaranteed the right to counsel; second, he was not given the right to
confront witnesses, cross-examine them or present his own; and lastly,
the standard of proof applied was not clear and convincing. In a per
curiam opinion, the West Virginia Supreme Court agreed with him on all
counts. The court began its analysis by recognizing the statutory
purpose of preventing an actively infected person from becoming a danger
to others, and then said "[a] like rationale underlies our statute
governing the involuntary commitment of a mentally ill person."
The court considered State ex rel. Hawks v. Lazaro, an involuntary
commitment case. In Hawks they had stressed state and federal
constitutional guarantees against deprivation of life, liberty or
property without due process of law. When someone is adjudged to be
insane there is a partial deprivation of liberty, which calls for due
process to be provided.
Because the quarantine and involuntary commitment laws had similar
purposes and caused similar deprivations of liberty, the court held that
the same due process protections were required in Greene's case. Since
he had not been afforded these protections, a writ of habeas corpus was
granted, in addition to the right to a new hearing. The procedures
required were:
(1) an adequate written notice detailing the grounds and underlying
facts on which commitment is sought; (2) the right to counsel; (3) the
right to be present, cross-examine, confront and present witnesses; (4)
the standard of proof to be by clear, cogent and convincing evidence;
and (5) the right to a verbatim transcript of the proceeding for
purposes of appeal.
The court said this ruling would apply prospectively to similar
cases.
Due process elements similar to those in Greene are now in place in
many states. The 1993 revision of New York City's TB control procedures
included the right to counsel, appointment of counsel for indigents and
judicial review of commitment. Proof of the need for detention was to be
shown by clear and convincing evidence. In 1994 Washington State
required its board of health to adopt due process standards for public
health officers to use in case of involuntary detention, testing,
treatment or isolation of TB patients. Public health authorities draw on
civil commitment law in making recommendations for changes in TB law.
The Centers for Disease Control Recommendations of the Advisory
Council for the Elimination of Tuberculosis (ACET) says:
[a]s in commitment proceedings under state mental health laws, any
law under which a person may be examined, isolated, detained,
committed and/or treated for TB must meet due process and equal
protection requirements under state and federal statutes and
constitutions. Also, all patients who are subject to these legal
proceedings should be represented by legal counsel.
The next section examines Ohio law with respect to quarantine and
civil commitment.
V. OHIO CIVIL COMMITMENT LAW
Case law will be considered first because most of the cases precede
changes made in Ohio civil commitment law in 1989.
In the Fisher case inmates of a mental institution filed habeas
corpus writs alleging denial of due process under the Fourteenth
Amendment. They could not afford counsel and had not been provided with
counsel at their commitment hearings. The court, relying on Gault, supra
stated that there is a right to counsel in cases of civil commitment for
mental illness. The proceedings in both types of cases are
non-adversarial and may result in incarceration. The court was also
concerned that civil commitment hearings could use hearsay evidence
which would not be admitted in criminal cases. There was also not a good
enough written record to be used in case of appeal.
Because of the seriousness of the rights and liberty interests
involved the court held that due process required assistance of counsel.
Anyone subject to such a proceeding had to be advised of their rights
and have counsel appointed if they could not afford it. The right to
counsel might not be waived if the person was not competent to
understand the meaning of the action.
The Slabaugh case concerned a man who was committed without having an
opportunity to consult with counsel of his own choosing. The court had
appointed counsel for him in his absence, and refused to grant him a
continuance to obtain the counsel he wanted. The Appeals Court held that
this was an abuse of discretion and remanded the case. They did not
however accept the plaintiff's argument that the statute was
unconstitutionally vague as to what constituted grounds for commitment.
Under the Ohio Revised Code there are specific provisions to be
followed in involuntary commitment cases. In re Miller considered both
the emergency and non-emergency procedures. Miller was arrested and
hospitalized under an emergency commitment order. The court found that
he had not been given his due process rights under the law. He was not
told he had a right to a phone call to a lawyer or physician, the right
to counsel and independent psychiatric evaluation, and a hearing.
Because the case was reversed on these grounds, the court did not
address the appellant's arguments about the constitutionality of the
statute.
Unlike the sections of the Ohio Revised Code which concern
tuberculosis and quarantine, the Code is very specific about due process
protections for people who may be involuntarily hospitalized for mental
illness. Some of the relevant sections are:
§ 5122.05 - A person who is involuntarily detained must be
immediately provided with a written statement of his or her rights.
These rights include "a reasonable number" of phone calls to
an attorney and/or licensed mental health professionals; the right to
counsel and independent evaluation of his or her mental state. Both
counsel and independent mental health experts will be provided to the
indigent.
§ 5122.11 - Judicial hospitalization is initiated when an affidavit
is presented to the court alleging that a person is mentally ill subject
to hospitalization by court order. One or more types of evidence
(reliable information, direct knowledge, or written certification)
should accompany the affidavit. Temporary detention is permitted, if the
court determines there is probable cause to believe the individual is
mentally ill and subject to hospitalization by court order.
§ 5122.13 - The court refers the affidavit for investigation to
appropriate authorities, and receives a written report from them. The
report is not permitted to be submitted in evidence but a copy must be
provided to the respondent's counsel.
§ 5122.141 - This provision specifies in great detail the timing of
the required hearing. If the hearing is not held within the required
period of time the respondent must be discharged and the records
expunged.
§ 5122.15 - A full hearing must be held, at which the respondent
must be represented by counsel. The court will hear "only reliable,
competent and material evidence." An adversary process is required.
Proof must be by "clear and convincing evidence."
Both statutory and case law in Ohio are consistent with a national
consensus about involuntary civil commitment for mental illness.
According to Judge Donnelly of the Cuyahoga County Court of Common
Pleas Probate Division, quarantine cases have been so rare in the last
thirty years that the question of due process protections has not
arisen. While the right to counsel is not contained in the quarantine or
tuberculosis laws, he believes that all respondents in probate cases
automatically have a right to counsel. In his court anyone appearing in
a quarantine case would be told of their right to counsel. Counsel would
also be provided to indigents as in other types of cases. He concludes
that counsel is necessary by analogy to the commitment procedures in
mental illness. It is also necessary to satisfy Constitutional due
process requirements.
Other judges might have different opinions, given that the right to
counsel and related due process protections are not currently part of
quarantine law. The author believes that it would be preferable for Ohio
law in this area to reflect the principles incorporated in civil
commitment law.
