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November 10, 1981

Helen O'BANNON, et al.

The opinion of the court was delivered by: GILES


Pending before this court is plaintiffs' motion for a preliminary injunction pursuant to Fed.R.Civ.Pro. 65(a).

 Plaintiffs have instituted the underlying class action for declaratory and injunctive relief on behalf of mentally ill patients who are residents of Philadelphia State Hospital, a state psychiatric facility (hereinafter "PSH"), pursuant to 42 U.S.C. § 1983, the United States Constitution and state law, specifically the Pennsylvania Mental Health Procedures Act, 50 P.S. § 7101 et seq. (1976). *fn1"

 The complaint alleges, in essence, that residents of PSH are being unlawfully transferred to the South Mountain Restoration Center, a state nursing home, (hereinafter "South Mountain"). Plaintiffs contend that the transfers are unlawful to the extent that either: (1) patients are involuntarily transferred; or (2) patients who require the psychiatric hospitalization provided at PSH are transferred to South Mountain, which allegedly lacks psychiatric treatment facilities.

 Plaintiffs claim that patients who have been transferred to South Mountain have regressed, decompensated and suffered reactivation of their psychoses. As a result of such transfers, plaintiffs allege that former PSH patients have suffered pain and injury and are in danger of severe injury or even death.

 Plaintiffs, the Boarding Home Advocacy Team, Inc., a non-profit corporation, and Jane Doe, which is the fictitious name of a resident of PSH, by her next friend and guardian Chaplain Goldwin S. Pollard, commenced the suit on behalf of themselves and on behalf of all residents of PSH who defendants have discharged, or will discharge, from PSH into nursing homes either involuntarily or without supportive medical or social aftercare services necessary to protect the lives and health of such persons.

 Defendants are Helen O'Bannon, the Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania (hereinafter "DPW"), Scott Nelson, Deputy Secretary for Mental Health for DPW, and Robert Haigh, Deputy Commissioner for Mental Health for DPW. All defendants are being sued in their individual and official capacities, and are basically being sued for violation of their duties and responsibilities imposed upon them by state law with respect to the mentally ill. *fn2"

 Plaintiffs contend that the preliminary injunctive relief requested is appropriate and assert several bases for their position:

 (1) They assert that plaintiffs' procedural due process rights will be violated by the transfers. They contend that the transfers are involuntary and that the due process clause of the Fourteenth Amendment guarantees the right to a hearing prior to involuntary confinement. Further, they contend that 50 P.S. § 7207, which prohibits the transfer of voluntary mental patients between facilities without their consent, establishes a state created liberty interest which is arbitrarily abrogated by the non-consensual transfers.

 (2) Plaintiffs also assert that the due process clause of the Fourteenth Amendment gives rise to a right to treatment, a right to decent care and a right to be free from unreasonable harm. They contend that these rights are violated by transferring patients to a facility which does not provide adequate psychiatric facilities. Alternatively, plaintiffs contend that certain provisions of the Pennsylvania Mental Health Procedures Act, specifically 50 P.S. § 7103 and § 7104, create liberty interests in a right to decent care and a right to treatment which are arbitrarily abrogated by the transfers.

 Defendants oppose plaintiffs' motion for preliminary injunctive relief, asserting that plaintiffs have failed to satisfy the standards applicable to such relief, for the following reasons:

 1. Plaintiffs have not demonstrated that they will suffer irreparable harm.

 2. Plaintiffs have not established a likelihood of success on the merits, in that:

 (a) Neither the organizational nor the individual plaintiff has standing to bring the suit.

 (b) No liberty interest is created by state law and even if a liberty interest is so created, the procedures currently in effect satisfy due process.

 (c) The right to treatment guaranteed by the due process clause is inapplicable both factually and legally.

 After careful consideration of the pleadings, the evidence presented at the hearing, and the papers filed by the parties, plaintiffs' motion for preliminary injunction will be denied. This opinion shall constitute my findings of fact and conclusions of law for purposes of Fed.R.Civ.Pro. 52(a).


 At the hearing on September 10, 1981, the following facts were established:

 1. Philadelphia State Hospital ("PSH") is a state-operated hospital providing for the diagnosis, treatment, care or rehabilitation of mentally ill persons. (Amended Complaint P 21, and Answer to Amended Complaint, P 21).

 2. South Mountain is a state-owned and licensed nursing home providing skilled and intermediate nursing care to approximately 815 patients. (Sirolli Tr. 159-60, 187).

 3. Most of the patients at South Mountain are former mental patients. (Sirolli Tr. 160).

 4. South Mountain's staff has experience in serving former mental patients. (Sirolli Tr. 160, 187-88).

 5. South Mountain provides its patients a full range of medical services, including podiatry, speech and hearing, and dental clinics. South Mountain has x-ray, physical and occupational therapy, social services, and psychology departments and a full medical laboratory. Consulting physicians provide services in other areas. (Sirolli Tr. 188). South Mountain offers patients the freedom to participate in a variety of social and recreational activities, and allows some of its residents to freely go off-grounds into the local community. (Sirolli Tr. 190-92, 202).

 6. Six physicians are employed on a full-time basis at South Mountain and make daily rounds on their assigned wards. (Sirolli Tr. 186-189).

 7. These physicians have a significant degree of experience in working with psychotropic medications. Each physician receives approximately fifty hours of state-funded training per year, a significant portion of which is devoted to psychotropic medications. (Sirolli Tr. 186-87).

 8. Two consulting psychiatrists provide psychiatric care on the South Mountain grounds to patients who need it for a minimum of 12 hours a week. (Sirolli Tr. 172). The consulting psychiatrists are available for additional hours as needed, whether on the grounds of South Mountain or by telephone. (Sirolli Tr. 206).

 9. If a patient at South Mountain develops a need for in-patient psychiatric care, emergency psychiatric treatment is available at Chambersburg Hospital, located approximately 15 miles from South Mountain, through the Franklin County Mental Health Program. (Sirolli Tr. 173-74). This service has been needed only once during the past two years. (Sirolli Tr. 174).

 10. Every new patient admitted to South Mountain is evaluated by the psychology department and South Mountain's psychiatrists within one month of their arrival, or as time allows. (Sirolli Tr. 173).

 11. Long-term psychiatric patients, who are able to be discharged from hospitals, generally require only a small amount of a psychiatrists' time-15 minutes every two months. (Houston Tr. 131).

 12. Seventeen more PSH patients have been identified for admission to South Mountain. (Houston Tr. 120). All patients currently under consideration for discharge from PSH to South Mountain are voluntary patients. (Defendants' Memorandum in Opposition to Motion for Preliminary Relief, Affidavit of John K. Fong, P 9).

 13. Many PSH patients are elderly and have been institutionalized for years. They are more in need of nursing care than active, intensive psychiatric treatment. (Houston Tr. 122-23; Powell Tr. 88).

 14. Simply because an individual has some degree of mental illness, or is receiving psychotropic medication, does not necessarily mean that the person requires residence in a psychiatric ...

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