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K.P. v. Albanese

Decided: August 9, 1985.

K.P., P.D., E.M., B.J., ET AL., INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED AT TRENTON PSYCHIATRIC HOSPITAL, P.W., K.P., P.D., ET AL., INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED AT TRENTON PSYCHIATRIC HOSPITAL, APPELLANTS,
v.
GEORGE ALBANESE, COMMISSIONER, DEPARTMENT OF HUMAN SERVICES, RICHARD WILSON, ACTING DEPUTY COMMISSIONER, DEPARTMENT OF HUMAN SERVICES, DENNIS LAFER, ACTING DIRECTOR, DIVISION OF MENTAL HEALTH AND HOSPITALS, FRANK CUOMO, CHIEF EXECUTIVE OFFICER, TRENTON PSYCHIATRIC HOSPITAL, RESPONDENTS



On appeal from Superior Court of New Jersey, Chancery Division, Mercer County. (A-2233-84T5) On appeal from agency action of the Department of Human Services, Divisions of Mental Health and Hospitals. (A-3058-84T5)

Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.

Gaynor

These consolidated appeals challenge the program promulgated by the Department of Human Services, Division of Mental Health and Hospitals, and policies adopted at the Trenton Psychiatric Hospital pertaining to patients' privileges as they affect civil committees who have been ordered discharged pending appropriate placements.

The appellants, on behalf of themselves and other patients at the Trenton Psychiatric Hospital (TPH) who have been, or will be, adjudicated eligible for discharge from the hospital pending appropriate placement (DPP), initiated an action in the Chancery Division by the filing of a class action complaint, subsequently amended, and by obtaining an order directing the respondents to show cause why the system employed at TPH to control their liberty should not be designed and implemented so that their hospital environment is no more restrictive than the placement to which they are to be discharged, and why the "Privilege Levels System for Grounds Passes" in effect at TPH should not be voided as violative of their constitutional and statutory rights. The respondents moved for a dismissal of the complaint or summary judgment in their favor contending that appellants' rights were not being violated by the policy concerning the patients' privileges. In response, appellants cross-moved for summary judgment and to strike certain portions of

the affidavit of respondent, Frank Cuomo, Chief Executive Officer at Trenton Psychiatric Hospital, which had been submitted in support of respondents' motion for summary judgment. The parties having acknowledged the absence of any factual issues, the matter was decided without trial. The court denied appellants' motions for summary judgment and the striking of portions of the Cuomo affidavit and their application for class certification. Respondents' motion to dismiss the complaint was denied but their motion for summary judgment was granted. The present appeal followed.

Appellants also appeal to this court from the final action of the Department of Human Services, Division of Mental Health and Hospitals, and TPH, in promulgating the standards for patients' privilege levels and the hospital's policy and procedures in implementing the system.

The appeals were consolidated by order of this court.

In denying the requested relief in the Chancery action, Judge Levy concluded that despite appellants' classification as DPP's the hospital had a duty to provide appropriate care for them penidng their placement which validly could result in some restriction of their liberty as determined by clinical evaluations. In his view, insuring appellants a safe and orderly transition to an appropriate placement required their continued confinement at a privilege level commensurate with their physical and mental condition, and that this purpose was being served by application of the privilege levels system in effect at TPH. Further, if the clinical decision was disputed, the administrative procedures within the hospital system provided a suitable and adequate remedy. Application for certification as a class action was denied as the judge considered the general prerequisites of a class action had not been established.

In challenging this determination, appellants contend it improperly denies them the right to an environment commensurate with and no more restrictive that the placement to which they have been ordered discharged, it impermissibly permits

them to be treated as if they were still civil committees and deprives them of significant liberty interests without due process. They further claim that the existence of a dispute as to material facts precluded a summary disposition and administrative remedies available to them were insufficient to address their objections to the restrictions imposed upon their liberty by application of the privilege levels system in the hospital. Additionally, appellants assert the court erred in denying their request for class certification and their motion to strike certain portions of the Cuomo affidavit.

Appellants argue that having been discharged pending placement they are entitled to enjoy an environment which is no less restrictive than the setting to which they have been ordered discharged, and that this right is being denied because of the restrictions on their freedom of movement which may be imposed by reason of the unbounded clinical discretion permitted under the privilege levels system in effect at TPH. It is urged this system thus permits clinicians to make decisions regarding their liberty without affording them even the barest notion of due process. They claim there is no legal basis for placing greater restrictions on their movement while awaiting placement at the hospital then will be imposed once they are discharged to the community, and that, in fact, their statutorily granted rights are abrogated by the operation of the privilege levels system at TPH. Additionally, appellants contend that subjecting them to this system improperly permits the hospital to treat them as if they were still civil committees, thereby disregarding their discharged status.

It is further asserted by appellants that the TPH procedure providing for a patient's request for review of treatment is an inadequate remedy as their claims do not present matters of treatment but questions of liberty over which a clinician cannot be presumed to have any expertise as in matters of treatment. They further suggest that such an administrative review would be futile.

In attacking the procedure followed in the adoption and promulgation of the privilege standards and policies, appellants point out it was accomplished without notice, without providing an opportunity for public comment and without publication in total contravention of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1, et seq. Accordingly, they urge this court to invalidate the regulations for failure to comply with the rulemaking procedural requirements of the APA.

In response, respondents assert that Judge Levy applied the correct standard of review of a state administrative policy and properly ruled on the cross-motions for summary judgment that the challenged procedures did not violate appellants statutory or constitutional rights. They further contend he did not err in ruling that appellants' administrative remedies with respect to individual complaints must be utilized before seeking judicial relief or that class certification was not appropriate. Respondents also argue that the regulations were promulgated in accordance with their statutory authority to regulate the internal administration of State psychiatric hospitals and thus this action was exempt from the procedural requirements of the APA.

Trenton Psychiatric Hospital is one of several State psychiatric facilities operated by the New Jersey Department of Human Services, Division of Mental Health and Hospitals. N.J.S.A. 30:1-7, N.J.S.A. 30:1-9. Respondents are the officials responsible for administering TPH and overseeing the care and treatment provided to the patients therein until they are actually discharged from the hospital. N.J.S.A. 30:4-5 and 6. By way of exercising his statutory responsibilities to safeguard patients within his custody and to provide them with appropriate medical care and other professional services, the chief executive officer of TPH, pursuant to the Division's regulations, instituted the levels of privilege system complained of by appellants. This system now provides four levels of privileges designed so that the individual needs and circumstances of patients may be met in the exercise of their freedom of movement, with Level I

being the most restrictive of patients' liberties and Level IV the least restrictive. The Privilege Levels Systems as promulgated and applied by respondents at TPH contain the following ...


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