You have added another facet to this record. Thank you for helping to show us the problems with which we are confronted.

Thank you.

Mr. BRUNNER. Thank you, Senator. We certainly appreciate the opportunity to testify here today.

Senator Moss. Our next witness is Mr. Louis M. Thrasher, Director of the Office of Special Litigation, Department of Justice, Washington, D.C.

STATEMENT OF LOUIS M. THRASHER, DIRECTOR, OFFICE OF SPECIAL LITIGATION, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

Mr. THRASHER. Mr. Chairman, Mr. Stanley Pottinger was originally scheduled to testify, but he has been called away for another meeting, and he has asked me to sit in for him and to present his address, if that is acceptable to the committee.

My name is Louis M. Thrasher, Director of the Office of Special Litigation of the Civil Rights Division, which is the office which is responsible for the litigation the Department is conducting concerning the right of treatment of mentally ill and mentally retarded persons. Senator Moss. Well, you may proceed.

Do you have Mr. Pottinger's statement-are you just reading his statement or are you making a separate statement?

Mr. THRASHER. I am prepared to read his statement, Senator.
Senator Moss. All right. Go ahead.

Mr. THRASHER. Permit me to express my pleasure in being invited to appear before the Subcommittee on Long-Term Care and Health of the Elderly.

RIGHTS OF INMATES PROTECTED

The Civil Rights Division has been playing an active role in establishing and protecting the rights of mentally handicapped persons since 1973 when we initiated our participation in the Wyatt case, which established the constitutional right to treatment for such involuntarily confined persons.

In 1974, we established a litigation office which is charged with protecting the rights of inmates, including children and physically and mentally handicapped persons of all ages.

I might point out at the outset, there is no statutory authority for the Division to be participating in such cases.

It is our experience that constitutional rights of persons throughout the country who are institutionalized in all kinds of governmentoperated institutions are being seriously violated, and we have been conducting litigation in this area since 1971.

Our Office of Special Litigation is now participating in 17 cases throughout the country concerning the rights of mentally ill and retarded persons, juvenile delinquents, dependent and neglected children, the aged and chronically, physically ill.

We have continued our participation in the landmark "right to treatment case," Wyatt v. Stickney, 344. F. Supp. 377, 344 F. Supp. 387, M.D. Ala. 1972, which established minimal constitutional standards of treatment for involuntarily committed mentally ill and retarded persons.

We supported the right to treatment on appeal and Wyatt was affirmed sub nom. Wyatt v. Aderholt, 503 F. 2d 1305, 5th cir. 1974.

The Wyatt court held that when a person is involuntarily civilly committed for purposes of receiving treatment, that basic principles of due process require that treatment in fact be provided.

We have conducted the Wyatt type right to treatment litigation for retarded persons during this period in cases in New York: New York Association for Retarded Children and Parisi v. Carey, C.A. Nos. 72356/357, E.D. N.Y.; Pennsylvania-Halderman and United States v. Pennhurst, C.A. No. 74-1345, E.D. Pa.; Maryland-United States v. Solomon, C.A. No. 74-181, D. Md.; North Carolina-North Carolina Association for Retarded Children and United States v. North Carolina, C.A. No. 3050, E.D. N.C.; Nebraska-Horacek and United States v. Exxon, C.A. No. 72-L-299, D. Nebraska; and in Montana-United States v. Kellner, C.A. No. 73–138, D. Montana.

LAX COMMITMENT STANDARDS

It has been our experience in all of this litigation of the right to treatment, while commitment standards are fairly lax, and, therefore, many people can easily fit within the commitment standards of different States. All of the States institutions which are involved in these lawsuits are released upon recovery to normal condition to such an extent the person may return to the community.

Obviously without treatment, this condition would never be achieved, and the committed would return to a lifetime sentence without any treatment being involved. In such a case we conducted litigation, which was the Wyatt case, and litigation was conducted in the States I mentioned.

During this period we have also conducted the Wyatt-type right to treatment litigation for mentally ill persons in Ohio-Davis v. Watkins, 384 F. Supp. 1196, N.D. Ohio 1974; South Carolina-Alexander and United States v. Hall, C.A. No. 72-209, D. S.C.; and in TexasJenkins v. Cowley, C.A. No. 3-74-394-C, N.D. Texas.

We are also participating in cases to determine due process standards for civil commitment of mentally handicapped persons in Pennsylvania-Bartley v. Kremens, C.A. No. 72-2272, E.D. Pa., mentally ill and retarded children: Iowa-Stamus and United States v. Leonhardt, C.A. No. 73-126-2, S. D. Iowa, all mentally ill persons; and in Ohio-Ewing v. Gaver, C.A. No. C-74-147, N.D. Ohio, all mentally ill persons.

We are actively participating in the landmark right to rehabilitation case concerning incarcerated juvenile delinquents in TexasMorales v. Turman, 383 F. Supp. 53, E.D. Texas 1974.

The theory of the right to rehabilitation for juvenile delinquents who are incarcerated for purposes of receiving rehabilitative care and treatment is modeled on the right to treatment found in the Wyatt case for mentally handicapped persons.

We have extended our activities in the juvenile rights area by intervening in a Louisiana suit-Gary W. and United States v. Stewart, C.A. No. 74-2412, E.D. La., concerning the care and treatment provided to Louisiana children, dependent and neglected, emotionally disturbed, mentally retarded, and delinquent, who are placed in privately operated child-care facilities in Texas.

DIFFERENT STANDARD OF PROTECTION

Pat Wald, a previous witness, testified before the committee and has pointed out that on many occasions State statutory schemes provide a different standard of protection when children are being committed to institutions than when an adult is so committed, and we have participated in the cases I mentioned in North Carolina, in Pennsylvania, attacking that discrepancy, so as to better protect the commitment of children, and the courts have held in our favor.

We have similar cases concerning standards for commitment of mentally ill persons in Iowa and Ohio. We are also participating in litigation in what we believe is a landmark juvenile right to juvenile case, which I already mentioned, Morales v. Turman, throughout the State of Texas.

In that case, we argued that the basic principle of care for delinquent children was essentially the same as enunciated by the district court of Alabama, concerning mentally retarded and mentally ill persons, so that even when a State elects to take a delinquent child and commit him for purposes of rehabilitation, as opposed to criminal punitive care, then the State has an obligation to live up to this promise of rehabilitative care. In Morales v. Turman we proved substantial, cruel, and unusual punishment, and the court in that_case found the constitutional right to treatment; in fact, ordered two State institutions closed because of conditions. That case is now on appeal in the fifth circuit, and we are participating in this.

We are also participating in a lawsuit, Gary W. and United States v. Stewart, which is a case which should interest this committee.

That is the State of Louisiana which has a practice, as many States have, of taking retarded or emotionally disturbed persons, delinquent children, and contracting with private care facilities out of the State. The facilities in this particular case are in Louisiana and in_east Texas, where many of the persons are entrusted to the care of the State of Louisiana, and are shifted across the State line in Texas. That suit should go to trial earlier next year.

Probably more in the line of interest of this committee at this time is a suit that we have against the State of Pennsylvania, to enforce the fire safety standards associated with the HEW medicare and medicaid programs in privately and publicly operated skilled nursing facilities which house the beneficiaries of those programs throughout the State of Pennsylvania.

FATAL NURSING HOME FIRES

As the committee knows, Pennsylvania receives money in return for what it promises to conduct the safety code standards and to enforce the standards. We allege in a suit, after taking money, Pennsylvania did not do the service, and as a result thereof, several nursing home fires-fires that were fatal-did occur.

That case is proceeding through pretrial discovery, and should go to trial sometime in the spring.

We believe our litigation program in the right to treatment area concerning mentally ill and retarded persons and juvenile delinquents has been particularly productive in establishing basic constitutional

principles which have been followed by Federal courts and by several States in recently adopted legislation and administrative practices. The Supreme Court of the United States in its recent opinion in O'Connor v. Donaldson, June 26, 1975, held that:

a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.

We have long been aware of the danger of over-institutionalizing our mentally ill citizens both in the sense of confining too many of such persons and in the sense of too severely restraining their personal liberties.

We strongly support the principle that mentally handicapped persons who require care by the State are entitled to such treatment in that setting which is the least restrictive of personal liberty.

To support State efforts consistent with this principle, we filed an amicus brief in Stoner v. Miller, a suit by persons released from mental hospitals in New York seeking to strike down a local ordinance which had the effect of keeping them from living in hotels in Long Beach.

While the case had very limited direct impact, we felt it was important that the State's program of releasing nondangerous patients not be thwarted by local resistance. We believe that the O'Connor opinion in its basic thrust is supportive of the principle that persons who require mental health care are entitled to receive such care in the least restrictive setting.

HEAVY BURDEN PLACED ON STATES

The decision places a heavy burden on the States to justify involuntary commitments. The Court indicated that such a massive infringement of personal liberty must be based upon a showing of dangerousness to self or to others.

While we have not yet found that the elderly mentally ill pose a unique legal problem-1970 census data reflects 113,043 residents of mental health institutions age 65 and over-we have become aware that many elderly persons are placed in mental institutions solely because they are aged and senile, but not mentally ill.

It will be difficult for States to justify retention of such persons in mental institutions under the principles set forth in Donaldson. We presume that the presence of such elderly residents in mental hospitals is a reflection of a lack of quality nursing home facilities, which problem these subcommittees are intimately familiar with.

As the rights of the mentally handicapped become more firmly established, it is likely that more and more residents of mental institutions will be moved to nursing homes. Therefore, the nursing home problems are likely to get worse in terms of whether such facilities can provide safe, proper care for their residents.

As I have pointed out earlier, we are involved in one lawsuit concerning nursing homes in Pennsylvania. The thrust of our suit there is to enforce the fire safety standards associated with the HEW medicaid and medicare programs.

In addition, we are presently investigating the caliber of care provided in nursing homes which are operated by local governments to

determine whether Wyatt-like legal principles supportive of a right to treatment would apply to such settings.

In conclusion, we commend the committees on their interest in this very important area. If we can provide any further information, we will be glad to do so upon request.

Senator Moss. Thank you very much for that statement, and we are pleased that the Civil Rights Division is engaged in litigation of these matters. The mentally ill, of course, are entitled to care. We would be pleased if you would let us know if there is any statutory authority you need to enable you to do your job better. We would be glad to get your recommendations.

INTERPRETATION OF LAW QUESTION

Mr. THRASHER. Well, the problem is, Senator, in terms of standing, to initiate a lawsuit, and that is, while the person whose constitutional rights are being denied, obviously he has standing to seek redress. There is some legal question, though, as to whether the Attorney General of the United States can seek to protect those same constitutional rights.

It is our theory in the litigation, in accord with the cases, the Attorney General has standing to seek relief of the rights, where there is a widespread and severe denial of such constitutional rights of these persons.

In all of the right-to-treatment cases, if I may address an issue raised by the Senator, when questioning a prior witness as to whether or not such litigation interfered too much with the administrative discretion of the State hospital superintendent, all of this litigation goes to, not what the decisions will be made concerning an individual person's treatment, but rather all of the litigation goes to what levels of staffing and care and procedures are necessary before any kind of care whatever is capable of being delivered.

The courts have not found whether any individual person's treatment program is appropriate for that person, but what they have established is a basic minimum upon which care would be capable of being ordered.

Senator Moss. Well, thank you. We do appreciate your response. Our next witness will be Dr. Robert N. Butler, M.D., psychiatrist and author, Washington. D.C. Dr. Butler, we are pleased to have you come before us, and we look forward to your statement.

STATEMENT OF DR. ROBERT N. BUTLER, PSYCHIATRIST AND AUTHOR, WASHINGTON, D.C.

Dr. BUTLER. I appreciate the opportunity to be here, Senator Moss. This historic Donaldson decision is a significant extension of civil liberties of Americans.

People alleged to have mental and emotional problems should not be incarcerated against their wishes and not given treatment. That is one side, the right to release.

The other side of the right-to-treatment concept is precisely the right to treatment, when it is desired, and when it is necessary. It is to that respect that I would like to particularly address my remarks.