Moore, Smith and Anderson, Circuit Judges. Moore, Circuit Judge (concurring in part and dissenting in part).
J. JOSEPH SMITH, Circuit Judge:
This is an appeal from an order of the United States District Court for the Eastern District of New York (Anthony J. Travia, Judge) granting defendants-appellees' motion for summary judgment and dismissing the complaint in an action brought pursuant to the federal civil rights statutes [42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)]. The opinion below is reported at 306 F. Supp. 1158 (1969). We reverse and remand for further proceedings as to the claim for damages resulting from the forced medication in violation of the plaintiff's right to freedom of religion under the First Amendment.
As a preliminary matter we note that jurisdiction is properly founded under 28 U.S.C. § 1343(3) since the rights infringed are unquestionably those of "personal liberty" rather than "property." [Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969); Johnson v. Harder, 438 F.2d 7 (2 Cir. 1971).]
Miss Miriam Winters is a 59 year-old spinster who has been supported under public assistance for over 10 years. For several years she had lived in a hotel in Brooklyn, New York and had created some difficulty there because of her constant demands that she be given a room with a private bath and because of her alleged failure to maintain a proper state of personal cleanliness.
In early 1967, she was told by her welfare case worker that she could obtain a room with a private bath with the approval of a physician or a psychiatrist. Accordingly, at her request, she was seen by Dr. Robert Reich, a psychiatric consultant to the Department of Welfare. Following this examination Miss Winters was told that she would be given a room with a private bath if she would move to the King Edward Hotel in Manhattan, which she agreed to do, and in mid-April she took up residence there. On May 2, 1968 when Miss Winters attempted to pay her rent for that month she was told by the hotel management that she could not continue to occupy the room she was in but would have to move to another room in the same hotel. This she refused to do, and as a result, the hotel management summoned the police, and she was taken by them to Bellevue Hospital where she was involuntarily admitted pursuant to section 78(1) of the New York Mental Hygiene Law, McKinney's Consol.Laws, c. 27.*fn1 On May 7, 1968 appellant was examined by two staff psychiatrists at Bellevue who certified her need for care pursuant to section 72(1) of the New York Mental Hygiene Law which provides for commitment for up to 60 days upon the filing of a "two physician certificate."*fn2
For 10 years prior to her admission to Bellevue Miss Winters had been a practicing Christian Scientist. When she was admitted she refused to allow a doctor to take her blood pressure stating to him that she was a Christian Scientist, and the Bellevue records contain several references to this fact indicating that the hospital clearly had notice of her religious beliefs. In spite of this, however, and over her continued objections she was given medication (for the most part rather heavy doses of tranquilizers, both orally and intramuscularly) continually from the time of her admission until she was discharged on June 18, 1968. On May 13, 1968 she was transferred from Bellevue to the Central Islip State Hospital on Long Island. Again the record clearly indicates that she brought her objections to physical medication to the attention of the hospital staff, but her protests were ignored.
The primary question raised in this appeal is whether appellant's constitutional rights were violated when she was given medical treatment over her objections, which were religious in nature, and whether she is therefore entitled to relief under the federal civil rights statutes.
It should be emphasized at the outset that appellant had never been found by any court to be "mentally incompetent," nor, so far as the record shows, were any facts alleged by the medical personnel who attended her which would justify a finding by a court of "mental incompetence." Neither did any court ever find that she was "mentally ill," although the two physicians who examined her (pursuant to section 72(1)) did state that in their opinion she was suffering from a "mental illness."
However, the law is quite clear in New York that a finding of "mental illness" even by a judge or jury, and commitment to a hospital, does not raise even a presumption that the patient is "incompetent" or unable adequately to manage his own affairs. Absent a specific finding of incompetence, the mental patient retains the right to sue or defend in his own name, to sell or dispose of his property, to marry, draft a will, and, in general to manage his own affairs.*fn3 Sengstack v. Sengstack, 4 N.Y.2d 502, 176 N.Y.S.2d 337, 151 N.E.2d 887 (1958); Finch v. Goldstein, 245 N.Y. 300, 157 N.E.146 (1927).
It is clear and appellees concede that if we were dealing here with an ordinary patient suffering from a physical ailment, the hospital authorities would have no right to impose compulsory medical treatment against the patient's will and indeed, that to do so would constitute a common law assault and battery. The question then becomes at what point, if at all, does the patient suffering from a mental illness lose the rights he would otherwise enjoy in this regard.
The court below was apparently of the view that any patient alleged to be suffering from a mental illness of any kind (even those confined under the "emergency" provisions of section 78(1) where the allegations of mental illness need not be made by a physician) loses the right to make a decision on whether or not to accept treatment. Judge Travia reasoned as follows:
In mental cases, the public interest in treating and caring for patients is greater than the public interest in cases of physical illness. Most patients who are physically ill will be able to determine that they need treatment and, when informed by their physicians, will be able to make a reasoned decision as to the type of treatment to which they wish to subject themselves. But a mental patient, because of the nature of his illness, may be unable either to seek appropriate treatment or to determine what treatment to allow. For the physically ill person, where there are no dependent children or communicable diseases involved, the danger from a refusal on religious or any other grounds to allow a particular type of treatment may be that the patient will die. Only the patient and his immediate family are likely to be aggrieved or injured as a result. On the other hand, where the mental patient is not properly treated, the condition may progressively worsen, and the patient may become a public burden and expense. Badly needed beds in mental hospitals may be occupied by those (few or many) who refuse treatment which competent and expert medical practitioners prescribe. Where the proposed treatment is conducive or necessary for the cure or amelioration of mental illness, the failure to provide it would be a step backward in the history of mental hygiene. [App. p. 124a].
Appellant argues, however, that if we concede the right of others to refuse treatment because they are Christian Scientists or hold similar religious views in this regard, then in the present case, where there is clear evidence that appellant's religious views pre-dated by some years any allegations of mental illness and where there was no contention that the current alleged mental illness in any way altered these views, there is no justification for defendants-appellees substituting their own judgment for that of their patient. The Illinois Supreme Court in In Re Brooks Estate, 32 Ill.2d 361, 205 N.E.2d 435 (1965) recently considered this question at some length.
When approaching death has so weakened the mental and physical faculties of a theretofore competent adult without minor children that she may properly be said to be (legally) incompetent, may she be judicially compelled to accept treatment of a nature which will probably preserve her life, but which is forbidden by her religious convictions, and which she has previously ...