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08/21/72 In Re Jerome Curry

August 21, 1972


Before turning to the merits of Curry's challenge to these first two stages, we must consider the government's twopronged suggestion that the case is now moot. First, the government would have it that Curry lost the right to litigate the validity of his confinement during the first stage (48 hours) and the second stage (7 days) as soon as the hospital moved into the third stage by initiating judicial proceedings. The government's theory is that confinement under the third stage rests exclusively on the pendency of judicial proceedings, and that once such proceedings have been set in motion, confinement is authorized under 21-528 "notwithstanding any other provision of this subchapter . . . .." Even if the hospital or the district court had blundered during the first or second stage, the government reasons, confinement under the third stage would still be proper so long as the procedural requirements of the third stage had been fully observed. Curry concedes that there was no independent error in stage three.



Bazelon, Chief Judge, Fahy, Senior Circuit Judge, and Leventhal, Circuit Judge.


In an earlier opinion we considered only one of the issues arising from petitioner's involuntary confinement at St. Elizabeths Hospital. Following his hospitalization as an emergency patient, petitioner raised a number of difficult contentions concerning the procedures which had been invoked to authorize his commitment and concerning what he termed an absence of any meaningful program of treatment during the period of his confinement. We considered first the argument that petitioner had a right to treatment even during the period of emergency hospitalization, and held on October 19, 1971, that the "overall therapeutic process -- which begins with observation and diagnosis to determine whether treatment is required -- must be initiated as soon as the period of involuntary hospitalization begins." *fn1 In resolving this question at the outset, we hoped to insure that during our consideration of the remaining questions Curry would either be participating in a program of diagnosis and treatment (which is, after all, the assumption on which the power of civil commitment purports to rest), or that he would no longer be subject to involuntary and pointless hospitalization. Accordingly, we turn now to the remaining contentions.

Curry's protracted skirmish with St. Elizabeths Hospital began on September 27, 1971, when he appeared at the George Washington University Hospital, stating that he heard voices in his head telling him to "go die," and "leave," and complaining of electric devices in his head which were controlling his behavior. The events which led up to Curry's hospitalization at St. Elizabeths were described briefly in our earlier opinion:

After interviewing Curry, a doctor at the hospital advised him, for reasons that the papers before us do not make entirely clear, that he could not be admitted for treatment at George Washington. The doctor further suggested that he file an application for treatment at St. Elizabeths, which Curry was unwilling to do. The doctor then executed an application for emergency hospitalization, and sent him in an ambulance to St. Elizabeths. There is some indication that Curry reaffirmed at St. Elizabeths his desire to be treated as a voluntary patient, although at argument the government disclaimed any knowledge on the issue. The hospital admitted Curry as an involuntary, emergency patient pursuant to D.C. Code § 21-522.

452 F.2d at 1361 (footnote omitted).

In light of our opinion of October 19 remanding the case to the District Court for a hearing forthwith on Curry's allegations that he was receiving no more than custodial care, the District Court held an evidentiary hearing, and heard testimony of petitioner and a number of staff members at St. Elizabeths. On the basis of that testimony, the court made findings of fact and concluded that Curry was "receiving medical and psychiatric treatment consistent with the diagnosis of the experts and that such treatment is something more than 'custodial care.'" We express no opinion on the adequacy or validity of the District Court's findings in view of petitioner's concession that "though in some respects we disagree with Judge Corcoran's findings, on balance we do not contest that in this case the patient was receiving something (though not much) more than 'custodial care.' Thus, we do not object to the Government's suggestion that the Court need not further consider this facet of the case." *fn2 I.

Petitioner's encounter with involuntary civil commitment can best be understood by dividing into four stages the procedure applied to his case. The first stage was confinement for up to a maximum of 48 hours under the authority of D.C.Code § 21-522. That 48-hour period of confinement must be predicated on an application by a police officer, public health official, or "physician of the person in question," *fn3 who asserts that hospitalization is required because the person is or appears to be mentally ill and dangerous to himself or others.

At the end of the initial 48-hour period, the hospital refused to release Curry and proceeded to the second stage by applying under 21-523 for a court order "authorizing the continued hospitalization of the person for emergency observation and diagnosis for a period not to exceed 7 days from the time the order is entered." In response to the hospital's petition, the district court entered an order authorizing the 7-day commitment. *fn4

Instead of releasing Curry at the end of the seven days of confinement under § 21-523, the hospital moved the case into the third stage by initiating judicial proceedings for long-term hospitalization. Section 21-528 authorizes the hospital to hold a person "during the course of the judicial proceedings," even if the 7-day period of emergency commitment has already lapsed.

The fourth stage involves the judicial proceeding itself, which must be commenced by the filing of a petition under § 21-541 with the Commission on Mental Health, and which may lead ultimately to a judicial determination that the person is mentally ill and dangerous. Curry's seemingly inexorable advance toward long-term civil commitment was finally halted at this fourth stage. On November 5, 1971, Curry was unconditionally discharged from the hospital because the Commission had concluded on the previous day that he was mentally ill but not dangerous.

On this appeal Curry raises a direct challenge only to the procedures invoked during the first and second stages -- the stages of emergency hospitalization. He has no apparent quarrel with the third and fourth stages, except insofar as those procedures were predicated on, and made possible by, his presence in the hospital ...

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