our involuntary institutionalization laws are days that are designed primarily for one purpose to protect the mentally ill from stop are so much so and decided at four fifty seven us three zero seven decided that there is an obligation to due process right of a person in custody to mental health facilities to reasonable safety imagine a situation where someone was involuntarily institutionalized because they attempted to kill themselves with razor blades in a warm bath or they tried to hang themselves and they were and for that reason they're in voluntarily institutionalized and then well in custody they're made they managed to do that precise harm and then a court determined that as a matter of law all that could never be a violation of the due process right precisely what occurred here here you have mr johnson who had been institutionalized eight times over eight months he'd just been institutionalized ten days before he had a repeated history of attempted sel here he's he's in voluntarily institutionalized because of the the of his an attempt to cut off his genitalia he tells the doctor repeatedly he intends to finish the job the doctor in his own in his own testimony dr massad said that he considered it a very high risk that mr johnson would do it a high risk that he would do it a substantial risk that he would do it this corresponds to the case law as to what defines it due process of the promise of your argument here is involuntary admission if we determined that johnson voluntarily admitted himself to the mental health complex on march thirteenth do you  i don't believe your honor because i believe he still would not be free to leave so the vote of the general rule has been that if a person is not free to leave if they're in custody even if what brought them there was voluntary institutionalization if they do not feel free to leave at that time then they irresponsibility that would be a substantial departure from professional care and that's the requirement of law it doesn't require criminal intent it does require such a stupid being told the part that the law gets used is is there subjective knowledge of a serious need of a substantial court cecille or high risk that those with doctors and nurses own terms to describe the situation here so in that circumstance putting leaving  scissors anywhere in the bathroom was itself something no minimally competent nursing professional with do under these circumstances that was precisely why the rules were clear this it was going to be a secure place he couldn't be even bandaged in the bathroom which admittedly is what took place here that could only be used in a careful way and couldn't even be used in his instance and yet that's what happened so in this case it would a minimally competent person would not do so it would be equivalent to a we have here a situation where depending on whose testimony was believed a nurse on the staff following a custom or practice on the floor someone who keeps saying i want to do this how do you distinguish that from the situation of created the circumstances you just gave us of a razor blade in the warm bath i think it's precisely the same so i think in both cases it worked the cover just the one on one observation period or the general practice on the floor a general practice all together for the precise reason that their main reason for existence is don't allow the self harm to occur so these are the minimally co to fight the safety rules that you have to do it separately you can't do it they are you have to do you can't use scissors or if you do you have to do it in a secure place where you see it goes back and forth so there's no risk of the person getting his hands on it where here it was an indication you have someone who keeps saying i want to do this it's the reason he's institutionalized and he keeps going into his back room that day and there says are sitting there i mean it i can imagine the horrifying circumstance in this as a matter of law that could never be a violation of substantive due process that we have such a substandard system of mental health care is to make it a mockery to the world that's never been the law that's not in the law the circuit that's not in the office supreme court and they're the district court just substituted itself for the depart from that well established precedent but even if he could the evidence presented at summary judgment in this record was it sufficient to meet the standard required just staying that claim that standard required the plaintiff to come forward with evidence substantial department from departure from accepted professional judgment practice or standards as to demonstrate that they did not actually base their decisions on any professional judgment that is that no minimally competent professional would have reached the same decision th stores did in this case now it's undisputed that the plaintiffs suffered from severe significant mental illness it's also in disputed that by the time he was removed from one to one observation the direct observation revert to and by the time that he heard the scissors were found in his room he had approved significantly and after more than a week of treatment and medication dr makary a doctor of psychology who had seen the play to each and every day he was in the behavioral health center decided in his professional judgment that it was reasonable and safe to remove him from one to one observation now the supreme court says the younger that this decision is made by professional is presumptively valid the fact that with the benefit of hindsight the plaintiff what his lawyer was hired expert believes that that was inappropriate decision well that might be basis for claimed medical malpractise but of course the scissors but even if we accept the version that they were left in the found under some towels in the bathroom he testified under oath that he has no idea how they got there he doesn't know how long they were there could have been there the day before or longer he doesn't know who left it there and he doesn't remember george changing his dressings that day in his room or elsewhere and therefore he doesn't remember having scissors he doesn't certainly doesn't remember being personal research personally responsible for leaving them in the new factual arguments to support his claim those claims are waived on the very first that's counsel cited the previous argument that alan case that says you can't present new factual arguments to support your claim on appeal  risk of letting him be fifteen minutes by himself or whether they thought he had graduated to that condition because i don't think let me talk first about the one to one issue and then talk about the standard for nurse brown leaving it in in the room so what plaintiff has done here is kind of picked and chosen some facts from the record and said the facts show that he was continually saying he was going to harm himself with a pair of scissors or whatever the fact of the matter is he'd been in in the behavioral health center for ten days his condition improved substantially he'd gone for more than forty eight hours without indicating he had any intention to harm himself he expressed we said he had no intention anymore to harm himself commit suicide cetera he was cooperating with his treatment he was otherwise feeling a positive outlook his condition was improving and as a matter of professional judgment it was appropriate though that the benefit of the hindsight maybe not a good idea to remove him from one to one observation now with regard to george the plaintiff under the professional judgment standard has to show that she was aware of a significant risk to his health a significant medical need and that she consciously disregarded that's akin to a deliberate indifference approaching intentional conduct has to be conduct which shocks the conscience and in this case first of all the plate is already waived the argument that nurse george's individual responsible second body can't identify her as the individual who did it and third of all her conduct certainly does not rise to that level she hasn't treated the plaintiff during his initial ten days and fourteen days now since he actually attempted to cut his genitalia she comes in on the weekend she has access readily access ready access to the last three days of she's a part time person to get correct so she has limited knowledge of his full history but certainly knows he had in the past of penchant for hurting himself but at the time she's there he's already been removed for a couple of days from one to one observation so he's on general observation like the rest of the floor he specifically stating that he has no intention to harm him self to kill himself and cetera he's displaying according to the records and her notes in particular no harmful or uncooperative behaviors and so on and so forth he's cooperated with treatment he's mainly with other patients on the unit and so on so it does it does the plaintiff has to prove that he intentionally left the scissors there no but it has to be conduct approaching that i mean certainly there's no evidence even that she was aware that there was a sharp object scissors or whatever in his room and said you know what the nurse on the next shift will get there that sounds to me like conscious disregard there's no evidence that this was anything other than inadvertence whether it was her or the nurse on the shift the night before or the housekeeper who overlooked the scissors if they had fact were there under a towel in the bathroom there is no indication that this is anything other  that the constitution is not required to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend and living together in society that's what we're talking about here rather the due process clause was intended to prevent government of french officials from abusing their power or employing it as an instrument of oppression the degree of culpability must be that which shocks the conscience conduct the file its decencies of civilized conduct these offensive that not comport with traditional ideas of fair play and decency and so on nurses are permitted to use scissors on the job it's an instrument of their job they are supposed to use them in glued in for changing dressing in the treatment room which is of course exactly what nurse george said that she did but even if she had made a bad judgement perhaps figuring that the plane it was off one to one its condition was improving he wasn't talking about hurting himself and she blades in hot water this is a nurse doing her job with the instruments of her job and perhaps inadvertently leaving them there i also want to point the court's attention to a recent case here in the seventh circuit colbert versus city of chicago which gets to the claims under the fourteenth amendment against of for a number of officers who had done a search of his home and damaged property and there he named four out of the ten officers involved in the search but said that he couldn't identify which one was somehow entitled to here and that issue was never raised in the pleadings never recent summary judgment never raised in the plaintiff's opening brief and was mentioned only for the first time in reply so that's wigged but in any event there is no authority for the suggestion that a plaintiff was voluntarily admit a patient has voluntarily admitted who has that petition withdrawn and then agrees to become a voluntary had met is then entitle to a hearing to allow him to voluntarily admitted himself or treat an involuntary or emergency patient had he requested just charge that he somehow becomes an involuntary patient that's simply contrary to the law i mean there is no there's no law that suggests that were the case then every individual has voluntarily admitted all of whom must be advised that they can be and must be destroyed at any time unless the treatment director decides that they are dangerous and then mr barnes i know you have a few things you probably want to cover but i wonder i hope that you will cover whether exactly what evidence there is a record with points the finger at nurse george as being the fifteen to twenty three seventy eight to seventy eight colon to through four and fifteen seventy eleven six what do you for him to i'm sorry it's what the citations will be deanne you're right so the to the record that were at the stop at the just left look good so at the district court level she was identified and the question was whether there's a reasonable inference that he left the scissors there they argue that because there was a reasonable inference that someone else could have that that means there's no reasonable a matter of law that she did that's never been a law otherwise we have a situation where all you have to do as a medical professional is simply deny knowledge of how it got there and nobody can ever be held responsible for the very harm shock the conscience did and what they established suffices is simply subjective knowledge of a serious need and a substantial risk that doctors don't notice that her nurses don't notice the nurses review of the doctor's notes all talk about a serious need of a substantial risk fact that's exactly where it substantial risks he also uses the words high risk and very high risk of a particular harm that meets the definition of a serious need as to the issue of involuntary to institutional station questions whether  institutionalization explanation was he didn't think it met because he thought it was negligence so we were sponsored to their argument which was their alternative argument to affirm the district court and so responded accordingly and that raises issues that here they didn't follow their own rules under procedural due process he clearly wasn't three to leave or a jerk at least reasonably infer that under the circumstances both of which would negate the involuntary institutionalization claim critically the issue informed consent we're not arguing that because he's mentally ill constant delusional thoughts disorganized speech depressed affect decreased in diminished ability to even concentrate a complete sense high risk and very high risk and i would of serious self mutilation spontaneous self harm because he was suffering from constant quote acute psychosis the court the doctor's own words were not that he didn't substantially improve enough for anything in his drug cocktail to change it all is that we know here like is that this is all really about is there a reason other than medical care number three twenty three for what they did we know what that what they did that quick staffing on the weekends back when suddenly changed his one on one observation he didn't change a single thing