is currently being considered for placement outside of South Mountain in a boarding home or personal care facility. (Sirolli Tr. 182-83).
45. Jean V., another former PSH patient discussed by plaintiffs' witnesses, was not on suicide precaution during the period preceding her scheduled visit to South Mountain as alleged by plaintiffs. No such notation appears on her medical order sheet or progress notes. If there were any such indications, they would be noted in accordance with standard PSH procedure. (Friedrich Tr. 213-15, Ex. D-6).
46. Jean V. was a volunteer patient at PSH who discharged herself from PSH prior to a scheduled visit to South Mountain to evaluate the facilities. The psychiatric discharge summary for Jean V. shows that she denied suicide ideation and was in good remission from her psychosis. (Friedrich Tr. 217; Exh. D-7).
47. PSH has experienced difficulty in hiring as many nurses as it wishes to meet patient needs. (Houston Tr. 122).
48. Because of that problem, PSH faces a possible termination of medical assistance certification which could result in a loss of $ 8-$ 9 million per year. It would be difficult for PSH to continue to function or exist should this happen. (Houston Tr. 139-40).
49. While resolving this funding problem is a matter of the highest priority to PSH officials, it is second to the priority of providing adequate care and treatment to PSH patients who do require hospitalization. (Houston Tr. 140).
50. Discharge of appropriate patients to South Mountain does have the incidental effect of improving PSH's nurse-to-patient ratio. (Houston Tr. 122). However, I credit the testimony of defendants' witnesses that patients are not discharged from PSH to South Mountain because of funding problems, but rather because, in the medical judgment of PSH, they no longer require a hospitalized environment and can benefit by the nursing and socialization advantages of South Mountain or like facilities.
As a preliminary matter, I dispose of defendants' contention that the individual plaintiff, Jane Doe, lacks standing to bring this suit since she is not among the group of 17 patients currently scheduled to be discharged and placed in South Mountain. I hold that Jane Doe has standing.
The requirements for standing are that plaintiff must allege such a personal stake in the outcome of the controversy as to warrant federal jurisdiction. "(W)hen a plaintiff's standing is brought into issue the relevant inquiry is whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S. Ct. 1917, 1924, 48 L. Ed. 2d 450 (1976). The injury must be one that can be traced to the challenged action of defendant, id., at 41, 96 S. Ct. at 1925. It can be either threatened or actual, id., (citing Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S. Ct. 1146, 1148, 35 L. Ed. 2d 536 (1973)). Here, assuming justiciability of plaintiffs' claims, Jane Doe has demonstrated at least a threatened injury to her as a result of defendants' discharge policies, since she is an actively psychotic patient and resident of PSH. As such, she may be subject at any future time to the discharge policies alleged by plaintiffs if her condition improves sufficiently. Thus, she has a "personal stake" in the outcome of the litigation.
2. Standards for Granting Preliminary Injunctive Relief
Temporary injunctive relief is an extraordinary remedy which should be granted only in exceptional circumstances since it is based on a limited hearing that produces an abbreviated set of facts. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir. 1980); Skehan v. Board of Trustees of Bloomsburg State College, 353 F. Supp. 542 (M.D.Pa.1973). It has been consistently held in this circuit that four factors must be examined and balanced to ascertain the propriety of a preliminary injunction. The moving party must generally show:
(1) a reasonable probability of eventual success in the litigation;
(2) that the moving party will suffer irreparable harm if the relief is not granted.
In addition, the court should consider, when relevant,
(3) the possibility of harm to the other interested persons from the grant or denial of the injunction; and
(4) the public interest.
Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980); Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980); Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 600-01 (3d Cir. 1979), cert. denied, 446 U.S. 956, 100 S. Ct. 2927, 64 L. Ed. 2d 814 (1980); Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 814-15 (3d Cir. 1978). Furthermore, when as in this case, the preliminary injunction is directed not merely to preserving the status quo, but to providing mandatory relief, the moving party bears a particularly heavy burden. Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Applying these standards to the facts as set forth above, I find that plaintiffs' motion for preliminary injunction must be denied.
A. Plaintiffs Have Not Demonstrated a Reasonable Likelihood of Success on the Merits
The gravamen of plaintiffs' complaint is that the procedures and policies adopted by defendants regarding the discharge of PSH patients to South Mountain do not adequately protect them from being discharged either involuntarily or from being discharged into an institution which lacks adequate psychiatric treatment facilities. These discharge policies and procedures allegedly violate certain liberty interests created either by state law or by the due process clause of the Fourteenth Amendment, including the right to treatment, the right to decent care, the right to be free from unreasonable harm and the right to a hearing prior to transfer.
I have serious doubts as to whether the purported liberty interests claimed by plaintiff are appropriately asserted in this case. A liberty interest can spring from the Constitution itself or can arise from state statutes or practices. Rennie v. Klein, 653 F.2d 836, 842 (3d Cir. 1981). The plaintiffs claim liberty interests springing from both sources. Treating the constitutionally grounded liberty interests first, plaintiffs claim that the right to treatment, the right to decent care, and the right to be free from unreasonable harm arise by virtue of the due process clause of the Fourteenth Amendment. Plaintiffs have cited no authority defining the scope of these liberty interests to include persons, such as plaintiffs, who are voluntarily committed to mental institutions and who wish to remain in a more restrictive institution once discharge to a less restrictive environment is medically determined to be appropriate. In this circuit, the cases which have considered the right to treatment and the right to decent care have done so in the context of involuntarily committed patients. Scott v. Plante, 641 F.2d 117 (3d Cir. 1981) (appeal pending). Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980), cert. granted, 451 U.S. 982, 101 S. Ct. 2313, 68 L. Ed. 2d 838 (1981) (en banc). Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981) (en banc).
Similarly it is not clear that a liberty interest in consensual transfers arises under the due process clause. Plaintiffs assert that since one cannot be involuntarily committed without a hearing, one cannot be involuntarily transferred without a hearing. What plaintiffs do not recognize is that voluntary patients may not have a constitutional right to remain at a particular institution once discharge is deemed appropriate. See 50 P.S. § 7206(c) (facility not required to continue in-patient treatment once director determines such treatment not medically indicated). Cf. O'Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467, 65 L. Ed. 2d 506 (1980) (no due process rights implicated in decertification of nursing home and subsequent transfer of patients.) In any event, the application of these rights is sufficiently unclear at this juncture to warrant denial of preliminary injunctive relief.
Similarly, plaintiffs' claims to state-created liberty interests are subject to doubt. The purported source of the state-created liberty interest in consensual transfers is 50 P.S. § 7207, which requires written consent by a voluntary patient before transfer. Since the statute on its face applies to transfers between mental institutions and not to discharges to a nursing home, it is not clear under these facts that it creates a liberty interest in consensual discharge. Plaintiffs' alternative contention is that state-created liberty interests in decent care and adequate treatment arise under 50 P.S. § 7103 and § 7104, which specify that adequate treatment shall be given to both voluntary and involuntary patients. However, these sections must be read in light of 50 P.S. § 7206(c), which provides that patients are subject to discharge if they are no longer deemed medically appropriate for in-patient psychiatric care. Given the latter section, it is at least arguable that the scope of any right to treatment or decent care created by state statute does not encompass a right to remain at PSH once discharge has been deemed medically appropriate.
Even assuming these liberty interests are appropriately asserted under the facts of this case, a conclusion which is far from clear, there is no evidence that these interests have been arbitrarily abridged by defendants' policies and procedures.
The general approach for testing challenged state procedures under a due process claim has been summarized as follows. Assuming the existence of a protectible liberty or property interest, three factors must be considered in determining "what process is due" to protect the asserted interest: (1) the private interest; (2) the risk of an erroneous decision through the procedures used as well as the value of any additional safeguards, and (3) the governmental interest, including fiscal or administrative burdens which would be imposed by other procedural requirements. Rennie v. Klein, 653 F.2d 836, 848 (3d Cir. 1981); Parham v. J.R., 442 U.S. 584, 600, 99 S. Ct. 2493, 2503, 61 L. Ed. 2d 101 (1979) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976)).
Under these criteria, I find that the procedures established satisfy due process. For purposes of the present discussion, I shall assume that a private interest exists in consensual transfers and in receiving treatment that is both appropriate and adequate to the needs of the patient, whether this latter interest is labelled as right to adequate treatment, to decent care, or to be free from unreasonable harm.
Applying the second factor set forth above, I find that the procedures adopted adequately protect these interests. The credited testimony is that logical and thorough procedures have been established both at South Mountain and PSH to assure that persons identified for discharge and admission to South Mountain are appropriately placed. Treatment teams at PSH, who are very familiar with the individual patient concerned, make a placement decision based on certain rational criteria, including age, degree of mental disease, lack of family contact, requirement for nursing care. These placement decisions are then subject to a second level of review by the staff at South Mountain based on certain additional logical criteria, and based on an on-site interview of the patient conducted by the South Mountain staff. South Mountain is free to reject the potential candidates for discharge from PSH. There is even a provision for a thirty (30) day "trial visit" period during which PSH patients are subject to a period of particularly close evaluation to determine compatibility.
Thus, professional judgment is exercised both at PSH and South Mountain to assure that patients will not be a danger to themselves or to others upon placement in the less restrictive environment of South Mountain. Essentially, defendants have made a medical judgment that patients placed in South Mountain are capable of being discharged and will benefit from the care they receive there. Ultimately, defendants hope that the individual's quality of life will be improved by the discharge.
The elaborate two-level system of review established has apparently been effective, on the whole, since all but 3 of the last 100 persons discharged to South Mountain remain there. Plaintiffs do not directly attack the procedures themselves. Rather, they challenge their application asserting that defendants have improperly discharged patients to South Mountain simply to reduce the nurse-patient ratio, so as to be eligible for federal funding. As evidence of the inappropriate application of the procedures, plaintiffs cite the case of Jean V., a patient who was slated for transfer to South Mountain when she was allegedly known to be suicidal. However, the evidence established that this patient was not on suicide precaution and was in remission from her psychosis at the time she was considered for placement. Under the circumstances, this individual's case hardly establishes that suicidal or actively psychotic patients are improperly admitted to South Mountain.
Plaintiffs also presented testimony by a staff member/social worker at PSH who noticed an unprecedented rise in discharges to South Mountain. The import of this testimony was that many persons whom he had identified as patients in need of in-patient psychiatric care were being discharged in order to reduce the nurse-patient ratio for federal funding purposes. However, subsequent testimony established that the review process performed by this witness was an administrative process undertaken to determine patients' eligibility for third party payment. His review was separate from and not binding upon the medical judgments exercised by the treatment team. I credit the testimony of defendants' witnesses that decisions as to patient discharge and placement are made at the ward level, based on an individualized assessment of the patient's needs, and are not governed by administrative concerns about the nurse-patient ratio.
Aside from a coincidental rise in the number of discharges, plaintiffs do not establish sufficient evidence that medicaid concerns predominate PSH's concern for the appropriate placement of its patients. To the contrary, there was testimony that while it is desirable to reduce the nurse-patient ratio, the first priority is always proper patient care. Divergent medical judgments, and not any arbitrary, erroneous or improper action on the part of the defendants, lie at the heart of the dispute. The staffs of South Mountain and PSH have each made a medical judgment, based on rational criteria, that certain patients are capable of being discharged to a less institutional and less restrictive environment. Plaintiffs disagree with the medical judgment made in some of the cases. This disagreement does not amount to a violation of plaintiffs' asserted liberty interests.
In order to protect against the alleged inappropriate transfer of PSH patients to South Mountain, plaintiffs propose the following additional safeguards: a review by a medical professional chosen by plaintiffs and a review by the court. Neither safeguard is required by due process. In Parham v. JR, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979), the United States Supreme Court found, in the context of procedures established for the commitment of a juvenile,
"(due) process is not violated by use of informal, traditional medical investigative techniques.... The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a (patient) is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the (individual) requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted."
Id. at 607-08, 99 S. Ct. at 2506-07.
Here, there is every reason to believe that defendants' procedures satisfy due process, since they provide for evaluation and review by competent medical and professional personnel at both hospitals.
Neither is the further protection of an adversary hearing, as advocated by plaintiff, required by due process. As the court further stated in Parham v. JR, 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979):
Although we acknowledge the fallibility of medical and psychiatric diagnosis-(citations omitted) we do not accept the notion that the shortcomings of specialists can always be avoided by shifting the decision-to an untrained judge or administrative hearing officer after a judicial type hearing.... (T)he supposed protections of an adversary proceeding to determine the appropriateness of medical decisions for the commitment and treatment of mental and emotional illness may well be more illusory than real. (citations omitted).