422 U.S.

563
95 S.Ct. 2486
45 L.Ed.2d 396

J. B. O'CONNOR, Petitioner,
v.
Kenneth DONALDSON.
No. 748.
Argued Jan. 15, 1975.
Decided June 26, 1975.

Syllabus
Respondent, who was confined almost 15 years 'for care, maintenance,
and treatment' as a mental patient in a Florida state hospital, brought this
action for damages under 42 U.S.C. 1983 against petitioner, the
hospital's superintendent, and other staff members, alleging that they had
intentionally and maliciously deprived him of his constitutional right to
liberty. The evidence showed that respondent, whose frequent requests for
release had been rejected by petitioner notwithstanding undertakings by
responsible persons to care for him if necessary, was dangerous neither to
himself nor others, and, if mentally ill, had not received treatment.
Petitioner's principal defense was that he had acted in good faith, since
state law, which he believed valid, had authorized indefinite custodial
confinement of the 'sick,' even if they were not treated and their release
would not be harmful, and that petitioner was therefore immune from any
liability for monetary damages. The jury found for respondent and
awarded compensatory and punitive damages against petitioner and a
codefendant. The Court of Appeals, on broad Fourteenth Amendment
grounds, affirmed the District Court's ensuing judgment entered on the
verdict. Held:
1. 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, and
since the jury found, upon ample evidence, that petitioner did so confine
respondent, it properly concluded that petitioner had violated respondent's
right to liberty. Pp. 573-576.

2. Since the Court of Appeals did not consider whether the trial judge
erred in refusing to give an instruction requested by petitioner concerning
his claimed reliance on state law as authorization for respondent's
continued confinement, and since neither court below had the benefit of
this Court's decision in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992,
43 L.Ed.2d 214, on the scope of a state official's qualified immunity under
42 U.S.C. 1983, the case is vacated and remanded for consideration of
petitioner's liability vel non for monetary damages for violating
respondent's constitutional right. Pp. 576-577.
493 F.2d 507, vacated and remanded.
Raymond W. Gearey, Jr., Tallahassee, Fla., for petitioner, pro hac vice, by
special leave of Court.
Bruce J. Ennis, New York City, for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

The respondent, Kenneth Donaldson, was civilly committed to confinement as a

mental patient in the Florida State Hospital at Chattachoochee in January 1957.
He was kept in custody there against his will for nearly 15 years. The
petitioner, Dr. J. B. O'Connor, was the hospital's superintendent during most of
this period. Throughout his confinement Donaldson repeatedly, but
unsuccessfully, demanded his release, claiming that he was dangerous to no
one, that he was not mentally ill, and that, at any rate, the hospital was not
providing treatment for his supposed illness. Finally, in February 1971,
Donaldson brought this lawsuit under 42 U.S.C. 1983, in the United States
District Court for the Northern District of Florida, alleging that O'Connor, and
other members of the hospital staff named as defendants, had intentionally and
maliciously deprived him of his constitutional right to liberty.1 After a fourday
trial, the jury returned a verdict assessing both compensatory and punitive
damages against O'Connor and a codefendant. The Court of Appeals for the
Fifth Circuit affirmed the judgment, 493 F.2d 507. We granted O'Connor's
petition for certiorari, 419 U.S. 894, 95 S.Ct. 171, 42 L.Ed.,2d 138 because of
the important constitutional questions seemingly presented.

* Donaldson's commitment was initiated by his father, who thought that his son
was suffering from 'delusions.' After hearings before a county judge of Pinellas
County, Fla., Donaldson was found to be suffering from 'paranoid
schizophrenia' and was committed for 'care, maintenance, and treatment'
pursuant to Florida statutory provisions that have since been repealed.2 The

state law was less than clear in specifying the grounds necessary for
commitment, and the record is scanty as to Donaldson's condition at the time of
the judicial hearing. These matters are, however, irrelevant, for this case
involves no challenge to the initial commitment, but is focused, instead, upon
the nearly 15 years of confinement that followed.
3

The evidence at the trial showed that the hospital staff had the power to release
a patient, not dangerous to himself or others, even if he remained mentally ill
and had been lawfully committed.3 Despite many requests, O'Connor refused to
allow that power to be exercised in Donaldson's case. At the trial, O'Connor
indicated that he had believed that Donaldson would have been unable to make
a 'successful adjustment outside the institution,' but could not recall the basis
for that conclusion. O'Connor retired as superintendent shortly before this suit
was filed. A few months thereafter, and before the trial, Donaldson secured his
release and a judicial restoration of competency, with the support of the hospital
staff.

The testimony at the trial demonstrated, without contradiction, that Donaldson

had posed no danger to others during his long confinement, or indeed at any
point in his life. O'Connor himself conceded that he had no personal or
secondhand knowledge that Donaldson had ever committed a dangerous act.
There was no evidence that Donaldson had ever been suicidal or been thought
likely to inflict injury upon himself. One of O'Connor's codefendants
acknowledged that Donaldson could have earned his own living outside the
hospital. He had done so for some 14 years before his commitment, and
immediately upon his release he secured a responsible job in hotel
administration.

Furthermore, Donaldson's frequent requests for release had been supported by

responsible persons willing to provide him any care he might need on release.
In 1963, for example, a representative of Helping Hands, Inc., a halfway house
for mental patients, wrote O'Connor asking him to release Donaldson to its
care. The request was accompanied by a supporting letter from the Minneapolis
Clinic of Psychiatry and Neurology, which a codefendant conceded was a 'good
clinic.' O'Connor rejected the offer, replying that Donaldson could be released
only to his parents. That rule was apparently of O'Connor's own making. At the
time, Donaldson was 55 years old, and, as O'Connor knew, Donaldson's parents
were too elderly and infirm to take responsibility for him. Moreover, in his
continuing correspondence with Donaldson's parents, O'Connor never informed
them of the Helping Hands offer. In addition, on four separate occasions
between 1964 and 1968, John Lembcke, a college classmate of Donaldson's and
a longtime family friend, asked O'Connor to release Donaldson to his care. On

each occasion O'Connor refused. The record shows that Lembcke was a serious
and responsible person, who was willing and able to assume responsibility for
Donaldson's welfare.
6

The evidence showed that Donaldson's confinement was a simple regime of

enforced custodial care, not a program designed to alleviate or cure his
supposed illness. Numerous witnesses, including one of O'Connor's
codefendants, testified that Donaldson had received nothing but custodial care
while at the hospital. O'Connor described Donaldson's treatment as 'milieu
therapy.' But witnesses from the hospital staff conceded that, in the context of
this case, 'milieu therapy' was a euphemism for confinement in the 'milieu' of a
mental hospital.4 For substantial periods, Donaldson was simply kept in a large
room that housed 60 patients, many of whom were under criminal commitment.
Donaldson's requests for ground privileges, occupational training, and an
opportunity to discuss his case with O'Connor or other staff members were
repeatedly denied.

At the trial, O'Connor's principal defense was that he had acted in good faith
and was therefore immune from any liability for monetary damages. His
position, in short, was that state law, which he had believed valid, had
authorized indefinite custodial confinement of the 'sick,' even if they were not
given treatment and their release could harm no one.5

The trial judge instructed the members of the jury that they should find that
O'Connor had violated Donaldson's constitutional right to liberty if they found
that he had

'confined (Donaldson) against his will, knowing that he was not mentally ill or
dangerous or knowing that if mentally ill he was not receiving treatment for his
alleged mental illness.

10

'Now, the purpose of involuntary hospitalization is treatment and not mere

custodial care or punishment if a patient is not a danger to himself or others.
Without such treatment there is no justification from a constitutional standpoint for continued confinement unless you should also find that (Donaldson)
was dangerous to either himself or others.'6

11

The trial judge further instructed the jury that O'Connor was immune from
damages if he

12

'reasonably believed in good faith that detention of (Donaldson) was proper for

the length of time he was so confined . . ..

13

'However, mere good intentions which do not give rise to a reasonable belief
that detention is lawfully required cannot justify (Donaldson's) confinement in
the Florida State Hospital.'

14

The jury returned a verdict for Donaldson against O'Connor and a codefendant,
and awarded damages of $38,500, including $10,000 in punitive damages.7

15

The Court of Appeals affirmed the judgment of the District Court in a broad
opinion dealing with 'the farreaching question whether the Fourteenth
Amendment guarantees a right to treatment to persons involuntarily civilly
committed to state mental hospitals.' 493 F.2d, at 509. The appellate court held
that when, as in Donaldson's case, the rationale for confinement is that the
patient is in need of treatment, the Constitution requires that minimally
adequate treatment in fact be provided. Id., at 521. The court further expressed
the view that, regardless of the grounds for involuntary civil commitment, a
person confined against his will at a state mental institution has 'a constitutional
right to receive such individual treatment as will give him a reasonable
opportunity to be cured or to improve his mental condition.' Id., at 520.
Conversely, the court's opinion implied that it is constitutionally permissible
for a State to confine a mentally ill person against his will in order to treat his
illness, regardless of whether his illness renders him dangerous to himself or
others. See id., at 522527.

II
16

We have concluded that the difficult issues of constitutional law dealt with by
the Court of Appeals are not presented by this case in its present posture.
Specifically, there is no reason now to decide whether mentally ill persons
dangerous to themselves or to others have a right to treatment upon compulsory
confinement by the State, or whether the State may compulsorily confine a
non-dangerous, mentally ill individual for the purpose of treatment. As we view
it, this case raises a single, relatively simple, but nonetheless important question
concerning every man's constitutional right to liberty.

17

The jury found that Donaldson was neither dangerous to himself nor dangerous
to others, and also found that, if mentally ill, Donaldson had not received
treatment.8 That verdict, based on abundant evidence, makes the issue before
the Court a narrow one. We need not decide whether, when, or by what
procedures, a mentally ill person may be confined by the State on any of the

grounds which, under contemporary statutes, are generally advanced to justify

involuntary confinement of such a personto prevent injury to the public, to
ensure his own survival or safety,9 or to alleviate or cure his illness. See
Jackson v. Indiana, 406 U.S. 715, 736737, 92 S.Ct. 1845, 1857 1858, 32
L.Ed.2d 435; Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31
L.Ed.2d 394. For the jury found that none of the above grounds for continued
confinement was present in Donaldson's case.10
18

Given the jury's findings, what was left as justification for keeping Donaldson
in continued confinement? The fact that state law may have authorized
confinement of the harmless mentally ill does not itself establish a
constitutionally adequate purpose for the confinement. See Jackson v. Indiana,
supra, 406 U.S., at 720 723, 92 S.Ct., at 18491851; McNeil v. Director,
Patuxent Institution, 407 U.S. 245, 248250, 92 S.Ct. 2083, 20862087, 37
L.Ed.2d 719. Nor is it enough that Donaldson's original confinement was
founded upon a constitutionally adequate basis, if in fact it was, because even if
his involuntary confinement was initially permissible, it could not
constitutionally continue after that basis no longer existed. Jackson v. Indiana,
supra, 406 U.S., at 738, 92 S.Ct., at 1858; McNeil v. Director, Patuxent
Institution, supra.

19

A finding of 'mental illness' alone cannot justify a State's locking a person up

against his will and keeping him indefinitely in simple custodial confinement.
Assuming that that term can be given a reasonably precise content and that the
'mentally ill' can be identified with reasonable accuracy, there is still no
constitutional basis for confining such persons involuntarily if they are
dangerous to no one and can live safely in freedom.

20

May the State confine the mentally ill merely to ensure them a living standard
superior to that they enjoy in the private community? That the State has a
proper interest in providing care and assistance to the unfortunate goes without
saying. But the mere presence of mental illness does not disqualify a person
from preferring his home to the comforts of an institution. Moreover, while the
State may arguably confine a person to save him from harm, incarceration is
rarely if ever a necessary condition for raising the living standards of those
capable of surviving safely in freedom, on their own or with the help of family
or friends. See Shelton v. Tucker, 364 U.S. 479, 488490, 81 S.Ct. 247, 252
253, 5 L.Ed.2d 231.

21

May the State fence in the harmless mentally ill solely to save its citizens from
exposure to those whose ways are different? One might as well ask if the State,
to avoid public unease, could incarcerate all who are physically unattractive or

socially eccentric. Mere public intolerance or animosity cannot constitutionally

justify the deprivation of a person's physical liberty. See, e.g., Cohen v.
California, 403 U.S. 15, 2426, 91 S.Ct. 1780, 17871789, 29 L.Ed.2d 284;
Coates v. City of Cincinnati, 402 U.S. 611, 615, 91 S.Ct. 1686, 1689, 29
L.Ed.2d 214; Street v. New York, 394 U.S. 576, 592, 89 S.Ct. 1354, 1365 1366,
22 L.Ed.2d 572; cf. U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534, 93
S.Ct. 2821, 28252826, 37 L.Ed.2d 782.
22

In short, 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. Since the jury
found, upon ample evidence, that O'Connor, as an agent of the State, knowingly
did so confine Donaldson, it properly concluded that O'Connor violated
Donaldson's constitutional right to freedom.

III
23

O'Connor contends that in any event he should not be held personally liable for
monetary damages because his decisions were made in 'good faith.'
Specifically, O'Connor argues that he was acting pursuant to state law which, he
believed, authorized confinement of the mentally ill even when their release
would not compromise their safety or constitute a danger to others, and that he
could not reasonably have been expected to know that the state law as he
understood it was constitutionally invalid. A proposed instruction to this effect
was rejected by the District Court.11

24

The District Court did instruct the jury, without objection, that monetary
damages could not be assessed against O'Connor if he had believed reasonably
and in good faith that Donaldson's continued confinement was 'proper,' and that
punitive damages could be awarded only if O'Connor had acted 'maliciously or
wantonly or oppressively.' The Court of Appeals approved those instructions.
But that court did not consider whether it was error for the trial judge to refuse
the additional instruction concerning O'Connor's claimed reliance on state law
as authorization for Donaldson's continued confinement. Further, neither the
District Court nor the Court of Appeals acted with the benefit of this Court's
most recent decision on the scope of the qualified immunity possessed by state
officials under 42 U.S.C. 1983. Wood a Strickland, 420 U.S. 308, 95 S.Ct.
992, 43 L.Ed.2d 214.

25

Under that decision, the relevant question for the jury is whether O'Connor
'knew or reasonably should have known that the action he took within his
sphere of official responsibility would violate the constitutional rights of

(Donaldson), or if he took the action with the malicious intention to cause a

deprivation of constitutional rights or other injury to (Donaldson).' Id., at 322,
95 S.Ct. at 1001. See also Scheuer v. Rhodes, 416 U.S. 232, 247248, 94
S.Ct. 1683, 1692, 40 L.Ed.2d 90; Wood v. Strickland, supra, 420 U.S., at 330,
95 S.Ct., at 1005 (opinion of Powell, J.). For purposes of this question, an
official has, of course, no duty to anticipate unforeseeable constitutional
developments. Wood v. Strickland, supra, at 322, 95 S.Ct., at 1004.
26

Accordingly, we vacate the judgment of the Court of Appeals and remand the
case to enable that court to consider, in light of Wood v. Strickland, whether the
District Judge's failure to instruct with regard to the effect of O'Connor's
claimed reliance on state law rendered inadequate the instructions as to
O'Connor's liability for compensatory and punitive damages.12

27

It is so ordered.

28

Vacated and remanded.

29

Mr. Chief Justice BURGER, concurring.

30

Although I join the Court's opinion and judgment in this case, it seems to me
that several factors merit more emphasis than it gives them. I therefore add the
following remarks.

31

* With respect to the remand to the Court of Appeals on the issue of official
immunity from liability for monetary damages,1 it seems to me not entirely
irrelevant that there was substantial evidence that Donaldson consistently
refused treatment that was offered to him, claiming that he was not mentally ill
and needed no treatment.2 The Court appropriately takes notice of the
uncertainties of psychiatric diagnosis and therapy, and the reported cases are
replete with evidence of the divergence of medical opinion in this vexing area.
E.g., Greenwood v. United States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, 100
L.Ed. 412 (1956). See also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43
L.Ed.2d 103 (1975). Nonetheless, one of the few areas of agreement among
behavioral specialists is that an uncooperative patient cannot benefit from
therapy and that the first step in effective treatment is acknowledgment by the
patient that he is suffering from an abnormal condition. See e.g., Katz, The
Right to TreatmentAn Enchanting Legal Fiction? 36 U.Chi.L.Rev. 755, 768
769 (1969). Donaldson's adamant refusal to do so should be taken into
account in considering petitioner's good-faith defense.

32

Perhaps more important to the issue of immunity is a factor referred to only

obliquely in the Court's opinion. On numerous occasions during the period of
his confinement Donaldson unsuccessfully sought release in the Florida courts;
indeed, the last of these proceedings was terminated only a few months prior to
the bringing of this action. See 234 So.2d 114 (1969), cert. denied, 400 U.S.
869, 91 S.Ct. 104, 27 L.Ed.2d 109 (1970). Whatever the reasons for the state
courts' repeated denials of relief, and regardless of whether they correctly
resolved the issue tendered to them, petitioner and the other members of the
medical staff at Florida State Hospital would surely have been justified in
considering each such judicial decision as an approval of continued
confinement and an independent intervening reason for continuing Donaldson's
custody. Thus, this fact is inescapably related to the issue of immunity and must
be considered by the Court of Appeals on remand and, if a new trial on this
issue is ordered, by the District Court.3

II
33

As the Court points out, ante, at 570 n. 6,-the District Court instructed the jury
in part that 'a person who is involuntarily civilly committed to a mental hospital
does have a constitutional right to receive such treatment as will give him a
realistic opportunity to be cured,' (emphasis added), and the Court of Appeals
unequivocally approved this phrase, standing alone, as a correct statement of
the law. 493 F.2d 507, 520 (CA5 1974). The Court's opinion plainly gives no
approval to that holding and makes clear that it binds neither the parties to this
case nor the courts of the Fifth Circuit. See ante, at 577-578, n. 12. Moreover,
in light of its importance for future litigation in this area, it should be
emphasized that the Court of Appeals' analysis has no basis in the decisions of
this Court.

A.
34

There can be no doubt that involuntary commitment to a mental hospital, like

involuntary confinement of an individual for any reason, is a deprivation of
liberty which the State cannot accomplish without due process of law. Specht
v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 1211, 18 L.Ed.2d 326 (1967).
Cf. In re Gault, 387 U.S. 1, 1213, 87 S.Ct. 1428, 14351436, 18 L.Ed.2d
527 (1967). Commitment must be justified on the basis of a legitimate state
interest, and the reasons for committing a particular individual must be
established in an appropriate proceeding. Equally important, confinement must
cease when those reasons no longer exist. See McNeil v. Director, Patuxent
Institution, 407 U.S. 245, 249250, 92 S.Ct. 2083, 20862087, 32 L.Ed.2d
719 (1972); Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32

L.Ed.2d 435 (1972).

35

The Court of Appeals purported to be applying these principles in developing

the first of its theories supporting a constitutional right to treatment. It first
identified what it perceived to be the traditional bases for civil commitment
physical dangerousness to oneself or others, or a need for treatmentand
stated:

36

'(W)here, as in Donaldson's case, the rationale for confinement is the 'parens

patriae' rationale that the patient is in need of treatment, the due process clause
requires that minimally adequate treatment be in fact provided. . . . 'To deprive
any citizen of his or her liberty upon the altruistic theory that the confinement
is for humane therapeutic reasons and then fail to provide adequate treatment
violates the very fundamentals of due process." 493 F.2d, at 521.

37

The Court of Appeals did not explain its conclusion that the rationale for
respondent's commitment was that he needed treatment. The Florida statutes in
effect during the period of his confinement did not require that a person who
had been adjudicated incompetent and ordered committed either be provided
with psychiatric treatment or released, and there was no such condition in
respondent's order of commitment. Cf. Rouse v. Cameron, 125 U.S.App.D.C.
366, 373 F.2d 451 (1967). More important, the instructions which the Court of
Appeals read as establishing an absolute constitutional right to treatment did not
require the jury to make any findings regarding the specific reasons for
respondent's confinement or to focus upon any rights he may have had under
state law. Thus, the premise of the Court of Appeals' first theory must have
been that, at least with respect to persons who are not physically dangerous, a
State has no power to confine the mentally ill except for the purpose of
providing them with treatment.

38

That proposition is surely not descriptive of the power traditionally exercised

by the States in this area. Historically, and for a considerable period of time,
subsidized custodial care in private foster homes or boarding houses was the
most benign form of care provided incompetent or mentally ill persons for
whom the States assumed responsibility. Until well into the 19th century the
vast majority of such persons were simply restrained in poorhouses,
almshouses, or jails. See A. Deutsch, The Mentally Ill in America 3854, 114
131 (2d ed. 1949). The few States that established institutions for the
mentally ill during this early period were concerned primarily with providing a
more humane place of confinement and only secondarily with 'curing' the
persons sent there. See id., at 98113.

39

As the trend toward state care of the mentally ill expanded, eventually leading
to the present statutory schemes for protecting such persons, the dual functions
of institutionalization continued to be recognized. While one of the goals of this
movement was to provide medical treatment to those who could benefit from it,
it was acknowledged that this could not be done in all cases and that there was a
large range of mental illness for which no known 'cure' existed. In time,
providing places for the custodial confinement of the so-called 'dependent
insane' again emerged as the major goal of the States' programs in this area and
remained so well into this century. See id., at 228271; D. Rothman, The
Discovery of the Asylum 264295 (1971).

40

In short, the idea that States may not confine the mentally ill except for the
purpose of providing them with treatment is of very recent origin,4 and there is
no historical basis for imposing such a limitation on state power. Analysis of
the sources of the civil commitment power likewise lends no support to that
notion. There can be little doubt that in the exercise of its police power a State
may confine individuals solely to protect society from the dangers of significant
antisocial acts or communicable disease. Cf. Minnesota ex rel. Pearson v.
Probate Court of Ramsey County, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744
(1940); Jacobson v. Massachusetts, 197 U.S. 11, 2529, 25 S.Ct. 358, 360
362, 49 L.Ed. 643 (1905). Additionally, the States are vested with the historic
parens patriae power, including the duty to protect 'persons under legal
disabilities to act for themselves.' Hawaii v. Standard Oil Co., 405 U.S. 251,
257, 92 S.Ct. 885, 888, 31 L.Ed.2d 184 (1972). See also Mormon Church v.
United States, 136 U.S. 1, 5658, 10 S.Ct. 792, 807808, 34 L.Ed. 481
(1890). The classic example of this role is when a State undertakes to act as
"the general guardian of all infants, idiots, and lunatics." Hawaii v. Standard Oil
Co., supra, 405 U.S., at 257, 92 S.Ct., at 888, quoting 3 W. Blackstone,
Commentaries *47.

41

Of course, an inevitable consequence of exercising the parens patriae power is

that the ward's personal freedom will be substantially restrained, whether a
guardian is appointed to control his property, he is placed in the custody of a
private third party, or committed to an institution. Thus, however the power is
implemented, due process requires that it not be invoked indiscriminately. At a
minimum, a particular scheme for protection of the mentally ill must rest upon
a legislative determination that it is compatible with the best interests of the
affected class and that its members are unable to act for themselves. Cf.
Mormon Church v. United States, supra. Moreover, the use of alternative forms
of protection may be motivated by different considerations, and the
justifications for one may not be invoked to rationalize another. Cf. Jackson v.
Indiana, 406 U.S., at 737 738, 92 S.Ct., at 18571858. See also American Bar

Foundation, The Mentally Disabled and the Law 254255 (S. Brakel & R.
Rock ed. 1971).
42

However, the existence of some due process limitations on the parens patriae
power does not justify the further conclusion that it may be exercised to confine
a mentally ill person only if the purpose of the confinement is treatment.
Despite many recent advances in medical knowledge, it remains a stubborn fact
that there are many forms of mental illness which are not understood, some
which are untreatable in the sense that no effective therapy has yet been
discovered for them, and that rates of 'cure' are generally low. See
Schwitzgebel, The Right to Effective Mental Treatment, 62 Calif.L.Rev. 936,
941948 (1974). There can be little responsible debate regarding 'the
uncertainty of diagnosis in this field and the tentativeness of professional
judgment.' Greenwood v. United States, 350 U.S., at 375, 76 S.Ct., at 415. See
also Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping
Coins in the Courtroom, 62 Calif.L.Rev. 693, 697719 (1974).5 Similarly, as
previously observed, it is universally recognized as fundamental to effective
therapy that the patient acknowledge his illness and cooperate with those
attempting to give treatment; yet the failure of a large proportion of mentally ill
persons to do so is a common phenomenon. See Katz, supra, 36 U.Chi.L.Rev.,
at 768769. It may be that some persons in either of these categories,6 and
there may be others, are unable to function in society and will suffer real harm
to themselves unless provided with care in a sheltered environment. See, e.g.,
Lake v. Cameron, 124 U.S.App.D.C. 264, 270271, 364 F.2d 657, 663664
(1966) (dissenting opinion). At the very least, I am not able to say that a state
legislature is powerless to make that kind of judgment. See Greenwood v.
United States, supra.

B
43

Alternatively, it has been argued that a Fourteenth Amendment right to

treatment for involuntarily confined mental patients derives from the fact that
many of the safeguards of the criminal process are not present in civil
commitment. The Court of Appeals described this theory as follows:

44

'(A) due process right to treatment is based on the principle that when the three
central limitations on the government's power to detainthat detention be in
retribution for a specific offense; that it be limited to a fixed term; and that it be
permitted after a proceeding where the fundamental procedural safeguards are
observedare absent, there must be a quid pro quo extended by the
government to justify confinement. And the quid pro quo most commonly
recognized is the provision of rehabilitative treatment.' 493 F.2d, at 522.

45

To the extent that this theory may be read to permit a State to confine an
individual simply because it is willing to provide treatment, regardless of the
subject's ability to function in society, it raises the gravest of constitutional
problems, and I have no doubt the Court of Appeals would agree on this score.
As a justification for a constitutional right to such treatment, the quid pro quo
theory suffers from equally serious defects. this ground. E.g., Developments in
the LawCivil discussion that due process is not an inflexible concept. Rather,
its requirements are determined in particular instances by identifying and
accommodating the interests of the individual and society. See, e.g., Morrissey
v. Brewer, 408 U.S. 471, 480484, 92 S.Ct. 2593, 25992602, 33 L.Ed.2d
484 (1972); McNeil v. Director, Patuxent Institution, 407 U.S., at 249250, 92
S.Ct., at 20862087; McKeiver v. Pennsylvania, 403 U.S. 528, 545555, 91
S.Ct. 1976, 19861991, 29 L.Ed.2d 647 (1971) (plurality opinion). Where
claims that the State is acting in the best interests of an individual are said to
justify reduced procedural and substantive safeguards, this Court's decisions
require that they be 'candidly appraised.' In re Gault, 387 U.S., at 21, 2729,
87 S.Ct., at 1440, 14431445. However, in so doing judges are not free to read
their private notions of public policy or public health into the Constitution.
Olsen v. Nebraska ex rel. Western Reference & Bond Ass'n, 313 U.S. 236, 246
247, 61 S.Ct. 862, 865866, 85 L.Ed. 1305 (1941).

46

The quid pro quo theory is a sharp departure from, and cannot coexist with, due
process principles. As an initial matter, the theory presupposes that essentially
the same interests are involved in every situation where a State seeks to confine
an individual; that assumption, however, is incorrect. It is elementary that the
justification for the criminal process and the unique deprivation of liberty
which it can impose requires that it be invoked only for commission of a
specific offense prohibited by legislative enactment. See Powell v. Texas, 392
U.S. 514, 541544, 88 S.Ct. 2145, 21582160, 20 L.Ed.2d 1254 (1968)
(opinion of Black, J.).7 But it would be incongruous, for example, to apply the
same limitation when quarantine is imposed by the State to protect the public
from a highly communicable disease. See Jacobson v. Massachusetts, 197 U.S.,
at 2930, 25 S.Ct., at 362 363.

47

A more troublesome feature of the quid pro quo theory is that it would elevate a
concern for essentially procedural safeguards into a new substantive
constitutional right.8 Rather than inquiring whether strict standards of proof or
periodic redetermination of a patient's condition are required in civil
confinement, the theory accepts the absence of such safeguards but insists that
the State provide benefits which, in the view of a court, are adequate
'compensation' for confinement. In light of the wide divergence of medical
opinion regarding the diagnosis of and proper therapy for mental abnormalities,

that prospect is especially troubling in this area and cannot be squared with the
principle that 'courts may not substitute for the judgments of legislators their
own understanding of the public welfare, but must instead concern themselves
with the validity under the Constitution of the methods which the legislature
has selected.' In re Gault, 387 U.S., at 71, 87 S.Ct., at 1466 (Harlan, J.,
concurring and dissenting). Of course, questions regarding the adequacy of
procedure and the power of a State to continue particular confinements are
ultimately for the courts, aided by expert opinion to the extent that is found
helpful. But I am not persuaded that we should abandon the traditional
limitations on the scope of judicial review.
C
48

In sum, I cannot accept the reasoning of the Court of Appeals and can discern
no basis for equating an involuntarily committed mental patient's unquestioned
constitutional right not to be confined without due process of law with a
constitutional right to treatment.9 Given the present state of medical knowledge
regarding abnormal human behavior and its treatment, few things would be
more fraught with peril than to irrevocably condition a State's power to protect
the mentally ill upon the providing of 'such treatment as will give (them) a
realistic opportunity to be cured.' Nor can I accept the theory that a State may
lawfully confine an individual thought to need treatment and justify that
deprivation of liberty solely by providing some treatment. Our concepts of due
process would not tolerate such a 'trade-off.' Because the Court of Appeals'
analysis could be read as authorizing those results, it should not be followed.

Donaldson's original complaint was filed as a class action on behalf of himself

and all of his fellow patients in an entire department of the Florida State
Hospital at Chattahoochee. In addition to a damages claim, Donaldson's
complaint also asked for habeas corpus relief ordering his release, as well as
the release of all members of the class. Donaldson further sought declaratory
and injunctive relief requiring the hospital to provide adequate psychiatric
treatment.
After Donaldson's release and after the District Court dismissed the action as a
class suit, Donaldson filed an amended complaint, repeating his claim for
compensatory and punitive damages. Although the amended complaint retained
the prayer for declaratory and injunctive relief, that request was eliminated
from the case prior to trial. See 493 F.2d 507, 512513.

The judicial commitment proceedings were pursuant to 394.22(11) of the

State Public Health Code, which provided:

'Whenever any person who has been adjudged mentally incompetent requires
confinement or restraint to prevent self-injury or violence to others, the said
judge shall direct that such person be forthwith delivered to a superintendent of
a Florida state hospital, for the mentally ill, after admission has been authorized
under regulations approved by the board of commissioners of state institutions,
for care, maintenance, and treatment, as provided in sections 394.09, 394.24,
394.25, 394.26 and 394.27, or make such other disposition of him as he may be
permitted by law . . ..' Fla.Laws 19551956 Extra. Sess., c. 31403, 1, p. 62.
Donaldson had been adjudged 'incompetent' several days earlier under
394.22(1), which provided for such a finding as to any person who was
'incompetent by reason of mental illness, sickness, drunkenness, excessive use
of drugs, insanity, or other mental or physical condition, so that he is incapable
of caring for himself or managing his property, or is likely to dissipate or lose
his property or become the victim of designing persons, or inflict harm on
himself or others . . ..' Fla.Gen.Laws 1955, c. 29909, 3, p. 831.
It would appear that 394.22(11)(a) contemplated that involuntary
commitment would be imposed only on those 'incompetent' persons who
'require(d) confinement or restraint to prevent self-injury or violence to others.'
But this is not certain, for 394.22(11)(c) provided that the judge could
adjudicate the person a 'harmless incompetent' and release him to a guardian
upon a finding that he did 'not require confinement or restraint to prevent selfinjury or violence to others and that treatment in the Florida State Hospital is
unnecessary or would be without benefit to such person . . ..' Fla.Gen.Laws
1955, c. 29909, 3, p. 835 (emphasis added). In this regard, it is noteworthy
that Donaldson's 'Order for Delivery of Mentally Incompetent' to the Floida
State Hospital provided that he required 'confinement or restraint to prevent
self-injury or violence to others, or to insure proper treatment.' (Emphasis
added.) At any rate, the Florida commitment statute provided no judicial
procedure whereby one still incompetent could secure his release on the ground
that he was no longer dangerous to himself or others.
Whether the Florida statute provided a 'right to treatment' for involuntarily
committed patients is also open to dispute. Under 394.22(11)(a), commitment
'to prevent self-injury or violence to others' was 'for care, maintenance, and
treatment.' Recently Florida has totally revamped its civil commitment law and
now provides a statutory right to receive individual medical treatment.
Fla.Stat.Ann. 394.459 (1973).
3

The sole statutory procedure for release required a judicial reinstatement of a

patient's 'mental competency.' Public Health Code 394.22(15) and (16),

Fla.Gen.Laws 1955, c. 29909, 3, pp. 838841. But this procedure could be
initiated by the hospital staff. Indeed, it was at the staff's initiative that
Donaldson was finally restored to competency, and liberty, almost immediately
after O'Connor retired from the superintendency.
In addition, witnesses testified that the hospital had always had its own
procedure for releasing patientsfor 'trial visits,' 'home visits,' 'furloughs,' or
'out of state discharges'even though the patients had not been judicially
restored to competency. Those conditional releases often became permanent,
and the hospital merely closed its books on the patient. O'Connor did not deny
at trial that he had the power to release patients; he conceded that it was his
'duty' as superintendent of the hospital 'to determine whether that patient having
once reached the hospital was in such condition as to request that he be
considered for release from the hospital.'
4

There was some evidence that Donaldson, who is a Christian Scientist, on

occasion refused to take medication. The trial judge instructed the jury not to
award damages for any period of confinement during which Donaldson had
declined treatment.

At the close of Donaldson's case in chief, O'Connor moved for a directed

verdict on the ground that state law at the time of Donaldson's confinement
authorized institutionalization of the mentally ill even if they posed no danger
to themselves or others. This motion was denied. At the close of all the
evidence, O'Connor asked that the jury be instructed that 'if defendants acted
pursuant to a statute which was not declared unconstitutional at the time, they
cannot be held accountable for such action.' The District Court declined to give
this requested instruction.

The District Court defined treatment as follows:

'You are instructed that a person who is involuntarily civilly committed to a
mental hospital does have a constitutional right to receive such treatment as will
give him a realistic opportunity to be cured or to improve his mental condition.'
(Emphasis added.) O'Connor argues that this statement suggests that a mental
patient has a right to treatment even if confined by reason of dangerousness to
himself or others. But this is to take the above paragraph out of context, for it is
bracketed by paragraphs making clear the trial
judge's theory that treatment is constitutionally required only if mental illness
alone, rather than danger to self or others, is the reason for confinement. If
O'Connor had thought the instructions ambiguous on this point, he could have
objected to them and requested a clarification. He did not do so. We accordingly

have no occasion here to decide whether persons committed on grounds of

dangerousness enjoy a 'right to treatment.'
In pertinent part, the instructions read as follows:
'The Plaintiff claims in brief that throughout the period of his hospitalization he
was not mentally ill or dangerous to himself or others, and claims further that if
he was mentally ill, or if Defendants believed he was mentally ill, Defendants
withheld from him the treatment necessary to improve his mental condition.
'The Defendants claim, in brief, that Plaintiff's detention was legal and proper,
or if his detention was not legal and proper, it was the result of mistake,
without malicious intent.
'In order to prove his claim under the Civil Rights Act, the burden is upon the
Plaintiff in this case to establish by a preponderance of the evidence in this case
the following facts:
'That the Defendants confined Plaintiff against his will, knowing that he was
not mentally ill or dangerous or knowing that if mentally ill he was not
receiving treatment for his alleged mental illness.
'(T)hat the Defendants' acts and conduct deprived the Plaintiff of his Federal
Constitutional right not to be denied or deprived of his liberty without due
process of law as that phrase is defined and explained in these instructions . . ..
'You are instructed that a person who is involuntarily civilly committed to a
mental hospital does have a constitutional right to receive such treatment as will
give him a realistic opportunity to be cured or to improve his mental condition.
'Now, the purpose of involuntary hospitalization is treatment and not mere
custodial care or punishment if a patient is not a danger to himself or others.
Without such treatment there is no justification from a constitutional stand-point for continued confinement unless you
should also find that the Plaintiff was dangerous either to himself or others.'
7

The trial judge had instructed that punitive damages should be awarded only if
'the act or omission of the Defendant or Defendants which proximately caused
injury to the Plaintiff was maliciously or wantonly or oppressively done.'

Given the jury instructions, see n. 6 supra, it is possible that the jury went so far
as to find that O'Connor knew not only that Donaldson was harmless to himself
and others but also that he was not mentally ill at all. If it so found, the jury was

permitted by the instructions to rule against O'Connor regardless of the nature

of the 'treatment' provided. If we were to construe the jury's verdict in that
fashion, there would remain no substantial issue in this case: That a wholly sane
and innocent person has a constitutional right not to be physically confined by
the State when his freedom will pose a danger neither to himself nor to others
cannot be seriously doubted.
9

The judge's instructions used the phrase 'dangerous to himself.' Of course, even
if there is no foreseeable risk of self-injury or suicide, a person is literally
'dangerous to himself' if for physical or other reasons he is helpless to avoid the
hazards of freedom either through his own efforts or with the aid of willing
family members or friends. While it might be argued that the judge's
instructions could have been more detailed on this point, O'Connor raised no
objection to them, presumably because the evidence clearly showed that
Donaldson was not 'dangerous to himself' however broadly that phrase might be
defined.

10

O'Connor argues that, despite the jury's verdict, the Court must assume that
Donaldson was receiving treatment sufficient to justify his confinement,
because the adequacy of treatment is a 'nonjusticiable' question that must be left
to the discretion of the psychiatric profession. That argument is unpersuasive.
Where 'treatment' is the sole asserted ground for depriving a person of liberty, it
is plainly unacceptable to suggest that the courts are powerless to determine
whether the asserted ground is present. See Jackson v. Indiana, 406 U.S. 715,
92 S.Ct. 1845, 32 L.Ed.2d 435. Neither party objected to the jury instruction
defining treatment. There is, accordingly, no occasion in this case to decide
whether the provision of treatment, standing alone, can ever constitutionally
justify involuntary confinement or, if it can, how much or what kind of
treatment would suffice for that purpose. In its present posture this case
involves not involuntary treatment but simply involuntary custodial
confinement.

11

See n. 5, supra. During his years of confinement, Donaldson unsuccessfully

petitioned the state and federal courts for release from the Florida State
Hospital on a number of occasions. None of these claims was ever resolved on
its merits, and no evidentiary hearings were ever held. O'Connor has not
contended that he relied on these unsuccessful court actions as an independent
intervening reason for continuing Donaldson's confinement, and no instructions
on this score were requested.

12

Upon remand, the Court of Appeals is to consider only the question whether
O'Connor is to be held liable for monetary damages for violating Donaldson's
constitutional right to liberty. The jury found, on substantial evidence and under

adequate instructions, that O'Connor deprived Donaldson, who was dangerous

neither to himself nor to others and was provided no treatment, of the
constitutional right to liberty. Cf. n. 8, supra. That finding needs no further
consideration. If the Court of Appeals holds that a remand to the District Court
is necessary, the only issue to be determined in that court will be whether
O'Connor is immune from liability for monetary damages.
Of necessity our decision vacating the judgment of the Court of Appeals
deprives that court's opinion of precedential effect, leaving this Court's opinion
and judgment as the sole law of the case. See United States v. Munsingwear,
340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36.
1

I have difficulty understanding how the issue of immunity can be resolved on

this record and hence it is very likely a new trial on this issue may be required;
if that is the case I would hope these sensitive and important issues would have
the benefit of more effective presentation and articulation on behalf of
petitioner.

The Court's reference to 'milieu therapy,' ante, at 569, may be construed as

disparaging that concept. True, it is capable of being used simply to cloak
official indifference, but the reality is that some mental abnormalities respond
to no known treatment. Also, some mental patients respond, as do persons
suffering from a variety of physiological ailments, to what is loosely called
'milieu treatment,' i.e., keeping them comfortable, well nourished, and in a
protected environment. It is not for us to say in the baffling field of psychiatry
that 'milieu therapy' is always a pretense.

That petitioner's counsel failed to raise this issue is not a reason why it should
not be considered with respect to immunity in light of the Court's holding that
the defense was preserved for appellate review.

See Editorial, A New Right, 46 A.B.A.J. 516 (1960).

Indeed, there is considerable debate concerning the threshold questions of what

constitutes 'mental disease' and 'treatment.' See Szasz, The Right to Health, 57
Geo.L.J. 734 (1969).

Indeed, respondent may have shared both of these characteristics. His illness,
paranoid schizophrenia, is notoriously unsusceptible to treatment, see
Livermore, Malmquist, & Meehl, On the Justifications for Civil Commitment,
117 U.Pa.L.Rev. 75, 93, and n. 52 (1968), and the reports of the Florida State
Hospital staff which were introduced into evidence expressed the view that he
was unwilling to acknowledge his illness and was generally uncooperative.

This is not to imply that I accept all of the Court of Appeals' conclusions
regarding the limitations upon the States' power to detain persons who commit
crimes. For example, the notion that confinement must be 'for a fixed term' is
difficult to square with the widespread practice of indeterminate sentencing, at
least where the upper limit is a life sentence.

Even advocates of a right to treatment have criticized the quid pro quo theory
on this ground. E.G., Developments in the Law Civil Commitment of the
Mentally Ill, 87 Harv.L.Rev. 1190, 1325 n. 39 (1974).

It should be pointed out that several issues which the Court has touched upon in
other contexts are not involved here. As the Court's opinion makes plain, this is
not a case of a person's seeking release because he has been confined 'without
ever obtaining a judicial determination that such confinement is warranted.'
McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249, 92 S.Ct. 2083,
2086, 32 L.Ed.2d 719 (972). Although respondent's amended complaint alleged
that his 1956 hearing before the Pinellas County Court was procedurally
defective and ignored various factors relating to the necessity for commitment,
the persons to whom those allegations applied were either not served with
process or dismissed by the District Court prior to trial. Respondent has not
sought review of the latter rulings, and this case does not involve the rights of a
person in an initial competency or commitment proceeding. Cf. Jackson v.
Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972);
Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967);
Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270,
60 S.Ct. 523, 84 L.Ed. 744 (1940).
Further, it was not alleged that respondent was singled out for discriminatory
treatment by the staff of Florida State Hospital or that patients at that institution
were denied privileges generally available to other persons under commitment
in Florida. Thus, the question whether different bases for commitment justify
differences in conditions of confinement is not involved in this litigation. Cf.
Jackson v. Indiana, supra 406 U.S., at 723730, 92 S.Ct., at 18501854;
Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).
'Finally, there was no evidence whatever that respondent was abused or
mistreated at Florida State Hospital or that the failure to provide him with
treatment aggravated his condition. There was testimony regarding the general
quality of life at the hospital, but the jury was not asked to consider whether
respondent's confinement was in effect 'punishment' for being mentally ill. The
record provides no basis for concluding, therefore, that respondent was denied
rights secured by the Eighth and Fourteenth Amendments. Cf. Robinson v.
California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).