Zinermon v. Burch,
494 U.S. 113 (1990)
Key Issue: “[T]he very nature of mental illness makes it forseeable that a person needing mental health care will be unable to understand any proferred ‘explanation and disclosure of the subject matter’ of the forms that person is asked to sign, and will be unable to make ‘knowing and wilful decision’ whether to consent to admission.”
In providing by law that a mental patient must give informed consent to hospitalization but then failing to make provision for the patient’s competence to be examined at admission, Florida predictably violated the patient’s rights. Florida’s established procedure for involuntary placement needs to be applied “to all patients who cannot be admitted voluntarily, both those who are unwilling and those who are unable to give consent.”
In December 1981 Darrell Burch was wandering along a Florida highway, bruised, bloodied and disoriented. A good Samaritan picked him up and took him to a private mental health center in Tallahassee which, finding that he was suffering from paranoid schizophrenia and in need of longer term treatment, several days later transferred him to Florida State Hospital. At both the center and the hospital Burch signed voluntary admission and consent-to-treatment forms. He remained in the hospital for five months. Shortly after his release, Burch filed a complaint, stating he had been inappropriately commmitted, and did not remember signing any admission or treatment forms. The complaint reached the Florida Human Rights Advocacy Committtee which encouraged Burch to proceed with his grievance.
In February 1985 Burch filed a section 1983 lawsuit infederal district court against both Apalachee Community Mental Health Services (thecommunity mental health center in Tallahassee to which he was first taken) and FloridaState Hospital. He argued that his constitutional rights had been violated when he wastreated as a voluntary patient: because of evidence that his mental condition made himincapable of giving voluntary consent, he was entitled to the procedural safeguards of theinvoluntary placement procedure.
Until it reached the Supreme Court, the case would centeron a procedural question: did Burch have the right to bring a section 1983 lawsuit?Section 1983 gives plaintiffs in civil rights cases direct access to the federal courtsbut previous legal decisions have established that certain conditions must be met:plaintiffs do not have such access when l)their complaints are trivial 2)the officialactions complained of are in the nature of random negligence and (3) the state providesadequate “predeprivation” remedies or, due to the nature of the injuriousactions, can only provide adequate remedies after the injury has occurred. Burch did notchallenge Florida’s law which stipulated that a candidate for voluntary admission to amental hospital give his “express and informed consent.” His contention was thatboth the hospital (and the community mental health center, which was later dropped fromthe suit) had wilfully and wantonly failed to follow the law. Both the federal districtcourt and the Circuit Court of Appeals dismissed Burch’s suit on the grounds that theState of Florida gave plaintiffs like Burch an opportunity to obtain justice in the statecourt through its tort liability law and this was the only possible option because theviolation alleged was unauthorized and random, i.e. one the state could not predict.
But the Circuit Court of Appeals then took the unusual stepof rehearing the case — this time “en banc” with a full complement of thirteenjudges as distinct from the three member panel which had made the initial decision. Adivided court (8-5) now reversed itself: Burch’s Section 1983 lawsuit was proper and thesubstance of his claims would have to be considered by a federal court. At this point theState of Florida appealed. Under the name of Dr. Zinermon, Burch’s treatingphysician at the state hospital, it petitioned for review by the U.S. Supreme Court, whichhanded down its decision in Zinermon v. Burch in February 1990.
A divided Supreme Court (5-4) endorsed the decision of the Circuit Court of Appeals, ruling that Burch was entitled to bring suit under section 1983. Writing for the majority, Judge Blackmun noted that Florida’s law explicitly requires the patient to give “express and informed consent” and that “the very nature of mental illness makes it forseeable that a person needing mental health care will be unable to understand any proferred ‘explanation and disclosure of the subject matter’ of the forms that person is asked to sign, and will be unable to make a ‘knowing and wilful decision’ whether to consent to admission.” Yet, wrote Judge Blackmun, Florida statutes “do not direct any member of the facility staff to determine whether a person is competent to give consent, nor to initiate the involuntary placement procedure for every incompetent patient.” The state’s violation of the duty to investigate the patient’s competence to sign admission forms was therefore “fully predictable” (i.e. not a “random, unauthorized” violation of state law the state could not “predict or avert” as the state contended) and state officials could be found liable, if at trial they had failed to make the required examination of his capacity to give informed consent.
The decision went further. Relatively few states haveFlorida’s provision that the voluntary patient must give “express and informedconsent” for hospitalization. But the Court suggested that regardless of whether ornot a state had a law with language similar to that of Florida, the admitting facilitymight need to examine the patient’s competence to consent. In a footnote, the Courtobserved: “The characteristics of mental illness thus create special problemsregarding informed consent. Even if the state usually might be justified in taking at facevalue a person’s request for admission to a hospital for medical treatment, it may not bejustified in doing so, without further inquiry, as to a mentally ill person’s request foradmission and treatment at a mental hospital.” And in the body of the decision JudgeBlackmun wrote: Florida already has an established procedure for involuntary placement.The problem is only to enforce that this procedure is afforded to all patients who cannotbe admitted voluntarily, both those who are unwilling and those who are unable to giveconsent.”
Judge Blackmun’s opinion for the majority potentially undercuts the voluntary treatment system which has increasingly characterized care for the mentally ill. In the early 1960s the vast majority of patients were hospitalized involuntarily. Today, as a result of what have generally been viewed as desirable reforms, 73% of the 1.6 million annual admissions (including to private hospitals) are voluntary. Yet Dr. Paul Appelbaum, director of the law and psychiatry program at the University of Massachusetts Medical School, has noted that what little research there is on the capacities of patient to consent suggest that a large majority of presently voluntary patients have questionable capacity to make their own treatment decisions. If two-thirds had difficulty making competent decisions, that would mean 800,000 patients who would have to go through, in the words of the Supreme Court decision, the “established procedure for involuntary placement,” overwhelming that system. Moreover, many currently voluntary patients might not be eligible for involuntary commitment, failing to meet the “dangerousness” standard.
Concerned about this potential impact of the decision, theAmerican Psychiatric Association established a task force to come up with a policy forcomplying with the Zinermon decision without disrupting the present largely voluntarysystem of care: its conclusions were approved by the APA’s board of trustees in December1992. The task force recommended a brief in-hospital clinical assessment of capacity basedon easy-to-meet substantive standards: the patient need only understand he was beingadmitted to a psychiatric hospital and “by verbal, written, or behavioral actions,express agreement with the admission decision.” Following up on this, some stateshave altered procedures to require some indication of capacity before accepting voluntaryhospitalization, e.g. Massachusetts now provides a form on which the admitting physicianis required to certify that the patient can understand that he is coming into the hospitalfor treatment, and that there may be limitations on his ability to leave — the key itemsin the APA’s Task Force Report on Consent to Voluntary Hospitalization.
Given its explosive potential, the Zinermon decision has not had much impact. In part this was because the Supreme Court decision had referred to the need for “an inquiry” into the patient’s capacity to give informed consent, without spelling out procedures or going into detail on the substance of informed consent. The APA task force, by making the criteria for showing capacity to consent to hospitalization so easy, made even severely psychotic people eligible. (Psychiatric records showed that Burch had believed he was “in heaven” at the time of his hospital admission, which was taken as a particularly compelling indication that he was incompetent to give consent to admission. Presumably, under the APA guidelines, if Burch said he was in heaven and the admitting clinician explained no, he was in a hospital, and Burch nodded, he too would have met the requirement for capacity.) Another factor in limiting Zinermon’s impact has been that the decision has not been enthusiastically embraced, i.e. followed up with more lawsuits in the same vein, by the mental health bar, which has no desire to dismantle the largely voluntary system of care and to return to the days when involuntary commitment was the norm. However, while the APA may have achieved damage control, the obvious danger is that in establishing liberal competency standards so as to permit voluntary patients to obtain treatment, the APA will pave the way for civil libertarian mental health advocates to demand equivalent easy competency standards for involuntary patients to refuse treatment.
There is a sense in which the Zinermon decision waslogically inevitable: it was an “but-the-emperor-has-no-clothes” response to thefictions underpinning our mental health law since the 1960s. Reforms of that era sought toencourage voluntary treatment (e.g. assumed patients to be competent so they kept alltheir civil rights) while discouraging involuntary commitment (requiring the patient tomeet the dangerousness standard, setting up a host of procedural roadblocks). But giventhe nature of mental illness, as the Supreme Court rightly noted, a great many patients,like Burch, at the time of hospital admission are not “competent” as that termis normally defined. By pointing up the fallacy of the mental health system in assumingcompetence where it does not exist, the Supreme Court exposed the well-intentioned shamunderlying the “reformed” mental health system.
What the Zinermon decision demonstrates is the need to endthe dichotomy between the standard for voluntary and involuntary treatment. Currently, in many states, voluntary patients can be treated because they need treatment,involuntary patients only because they are dangerous. This was the whole basis of Burch’ssuit, and Justice Blackmun referred to it in his opinion for the majority. In suggestingthat a patient unable to give truly informed consent be required to undergo involuntarycommitment procedures, Justice Blackmun noted that such persons will “not necessarilymeet the statutory standard for involuntary placement” and “it is at leastpossible that if Burch had had an involuntary hearing, he would not have been found tomeet the statutory standard for involuntary placement, and would not have been confined atFlorida State Hospital.” In other words, Burch was so much sicker than the normalvoluntary patient — so psychotic, disoriented, and delusional — he might well have beenentitled to his “freedom!” The suit really points up the absurdity of the law infailing to provide a common “need for treatment” standard applicable to thementally ill regardless of their mode of hospital admission.
A final note: Even the issue of Burch’s competency was notas clear-cut as it appeared in the Supreme Court decision. In the lower courts, thehospital had never filed an answer to Burch’s complaint, never contested his allegations,merely made a procedural bid to dismiss the case. As a result, as Justice Blackmunnoted in his decision, for purposes of reviewing the case, “the factual allegationsof Burch’s complaint are taken as true.” Burch maintained that he had been”seized,” “confined and imprisoned” against his will, and subjected”to involuntary commitment and treatment for a period from December 10, 1981 to May7, 1982.” And he produced hospital records describing him as psychotic, confused,hallucinating and disoriented. But if the case had gone to trial matters might not haveseemed so simple. Burch signed another authorization of treatment form two weeks after hisadmission — did he still think he was “in heaven” after two weeks of treatment?More telling, Burch returned voluntarily from two weekend furloughs with his family in theperiod from December to May throwing into doubt the description of himself as”confined and imprisoned” for five months. Perhaps in recognition of theweakness of the case, it was settled shortly after the Supreme Court decision for a mere$35,000, including damages, costs and attorney fees. (Besides, how had Burch been damaged?A very sick man, he had been restored to health in the span of a few months by thehospital he sued.)
Note: This analysis draws in part on Rael Jean Isaac and Samuel Jan Brakel’s essay on the Zinermon case “Subverting Good Intentions: A Brief History of Mental Health Law ‘Reform'” Cornell Journal of Law and Public Policy, Fall 1992