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Lessard v. Schmidt

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Lessard v. Schmidt 349 F. Supp. 1078 (E.D. Wis. 972),
vacated and remanded, 414 U.S. 473, on remand, 379
F. Supp. 1376 (E.D. Wis. 1974), vacated and
remanded, 421 U.S. 957 (1975), reinstated, 413 F.
Supp. 1318 (E.D. Wis. 1976)

Key Issue:  "dangerousness... based upon finding of recent overt act" and provision of "due process safeguards... that are accorded those accused of crime"

Summary:

Lessard v. Schmidt transformed mental health law. A federal district court in Milwaukee struck down Wisconsin's commitment law as unconstitutional. Setting aside traditional parens patriae grounds for commitment, the three-judge court set a narrow dangerousness standard: involuntary commitment was only permissible when "there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others." Moreover, the court for the first time required that commitment proceedings provide the mentally ill with all the protections accorded the criminal suspect -- among them a right to counsel, a right to remain silent, exclusion of hearsay evidence and a standard of proof beyond a reasonable doubt.

Background:

To the police who picked up Alberta Lessard in October 1971 after a reported suicide attempt, and the judge who committed her for treatment (she was diagnosed as suffering from paranoid schizophrenia), it must have seemed like a routine case. But Lessard enlisted the federally funded Milwaukee Legal Services, which brought a class action suit on behalf of all adults held on the basis of Wisconsin's involuntary civil commitment statutes. The suit challenged both the grounds on which the state committed mentally ill individuals (as being overly vague) and the procedures that were used. Wisconsin, like most other states at that time, had a loose commitment statute, providing that a mentally ill individual (defined as someone who "requires care and treatment for his own welfare, or the welfare of others in the community") could be committed if "a proper subject for custody and treatment."

Procedures were also relaxed, with judges relying heavily on psychiatric opinion and the patient having little if any input and no right to counsel. In the case of Alberta Lessard, the judge had appointed a guardian ad litem to act in her best interests, but in their opinion, the Lessard judges complained that he did not serve an adversary role. Actually, Miss Lessard appears to have spent less than a month in the hospital: perhaps because she quickly enlisted Milwaukee Legal Services, she was sent home on an out-patient "parole" basis, although the underlying commitment order was extended each month until the federal district court ruling in the case in October 1972.

The Decision(s):

With a single exception (the patient's right to have adversary counsel present during the psychiatric examination), the federal district court accepted every demand put forth by Milwaukee Legal Services. The court ruled the patient had the right to all the same protections accorded the criminal suspect: effective and timely notice of the "charges" against him; mandatory notice of right to a jury trial; a right to appointed counsel; a right to remain silent; exclusion of hearsay evidence; and a standard of proof beyond a reasonable doubt. And the court ruled that Wisconsin's statutes, in permitting a judge to commit an individual if, upon a preponderance of evidence, it found he was mentally ill and "a proper subject for custody and treatment" violated constitutional due process protections. Such protections required that a judge only commit an individual if he found, beyond a reasonable doubt, that the individual was dangerous "based upon finding of recent overt act, attempt or threat to do substantial harm to oneself or another." The judges suggested that dangerousness to self as a ground for commitment needed to be even more narrowly defined than dangerousness to others: "Even an overt attempt to substantially harm oneself cannot be the basis for commitment unless the person is found to be 1) mentally ill and 2) in immediate danger at the time of the hearing of doing further harm to oneself.

In their decision, the judges acknowledge, but dismiss, the traditional argument that due process safeguards in commitment hearings can be less stringent than in criminal cases because the state is acting in the role of parens patriae, with the aim of treating rather than punishing the individual. On the contrary, the judges maintain, "the interests in avoiding civil commitment are at least as high as those of persons accused of criminal offenses." They declare that the civil deprivations faced by the mental patient are more serious than those confronting the felon, the stigma is worse, and the mortality rates in mental hospitals are higher.

Even a short stay in a mental facility, say the judges "may have long lasting effects on the individual's ability to function in the outside world." Given all this, say the judges, even in the case of those who might benefit from treatment, "the rational choice in many instances would be to forego treatment." Moreover, the judges assert that even if the individual satisfied the requirements of being mentally ill and imminently dangerous, he should only be hospitalized involuntarily "as a last resort" and the effort should be made to find "less drastic means for achieving the same basic goal."

The only point on which the judges demurred with the procedural changes demanded by Milwaukee Legal Services had to do with the presence of the patient's attorney during the psychiatric interview. The judges asserted they were not sure that the presence of counsel at this point would be beneficial enough to the individual to outweigh the state's interest in an effective examination. "[W]e think it appropriate to permit the state to demonstrate that other means, such as recording the interviews and making available to defense counsel the written results of the interview, will prove as effective in maintaining the individual's rights with less disruption to the traditional psychiatrist-patient relationship."

The decision was appealed, and was twice vacated and remanded by the U.S. Supreme Court. In each case the District Court substantially reinstated its earlier decision (there were a few minor changes such as substituting "imminent likelihood" for "extreme likelihood" ("that if the person is not confined he will do immediate harm to himself or others").

Significance:

Lessard v. Schmidt revolutionized mental health law. It was the beginning of the end for the broad commitment statutes that were then the general rule, as state after state followed Wisconsin in sharply constricting or all but abandoning the traditional parens patriae grounds for commitment in favor of strictly focusing on the police power. Involuntary civil commitment ceased being viewed as a primarily medical decision (albeit one authorized by a court). It is now viewed as a quasi-criminal proceeding, with the individual to be accorded all the procedural protections of the criminal law. From now on, primarily lawyers not doctors would make commitment decisions.

Lessard turned out to be the high water mark for involuntary commitment law. Most states stopped short of implementing all the restrictions demanded by the Lessard court: few states would follow Wisconsin in according patients the "right to remain silent" (the psychiatric interview was regarded as too important a piece of evidence) or in imposing a "beyond a reasonable doubt" standard for commitment.

Comment:

Prior to Lessard, commitment statutes were too broad and vague and procedural protections absent. In so far as it drew attention to this problem, the decision played a valuable role. Unfortunately, the decision (as so many that would follow) was permeated by the anti-psychiatric assumptions that had come in vogue in the 1960s: it veered between assuming mental illness was untreatable to arguing that commitment for treatment seriously damaged the individual, and in most cases he was better off foregoing treatment than being hospitalized for it. Describing commitment as "a massive curtailment of liberty," the judges showed no recognition that a disease process had already curtailed the individual's liberty and that treatment might be necessary to restore the person's autonomy in any meaningful sense of the word. There was no sense in the decision that treatment might offer benefits to patients or that unlike criminal and jailer, doctor and patient had a common interest in securing the patient's improved health.

In their decision, the judges complain that in 1963 almost three times as many persons were confined in mental institutions in the United States as were incarcerated in all prisons administered by the states and federal government. Lessard contributed heavily to the current situation, where state hospitals have been emptied, and large numbers of mentally ill people, untreated, inhabit our prisons and jails - if they do not, as Darrold Treffert (himself a Wisconsin psychiatrist) put it, "die with their rights on."

In the years since the Lessard decision, judges have come to accept as a matter of course the dangerousness standard it decreed as the only acceptable one. But in the immediate aftermath of the decision, many judges who saw mentally ill patients were incensed and at least briefly, rebellious. The words of a Milwaukee judge, left behind by history, can nonetheless serve as a fitting epitaph on the Lessard decision: "Abrogation of parens patriae must lead to preposterous and barbarous results. It means that a person who is not imminently dangerous to himself or dangerous to others but who is incapable of making a decision as to a present urgent need for hospitalization could not be hospitalized. Therefore, as a trial court, I do not propose sua sponte to overrule a doctrine which has been part of the warp and woof of our law for centuries and which is an essential tool to protect persons who are thus unfortunately circumstanced."

 
 

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