Sheltering Psychiatric Patients from the DeShaney Storm: A Proposed Analysis for Determining Affirmative Duties to Voluntary Patients

Table of ContentsI. Introduction 726II. Substantive Due Process and Affirmative Duties 731A. Substantive Due Process: A Charter of Negative Duties 733B. Affirmative Duty Exceptions: Youngberg and DeShaney 7341. Youngberg v. Romeo 7362. DeShaney v. Winnebago 737C. Affirmative Duties After DeShaney 7421 . The Functional Custody Exception 7442. The State-Created Danger Exception 746III. The Landscape of Mental Health Law and Public Psychiatric Hospitalization 748A. The Current Law of Voluntary and Involuntary Admissions 748B. Historical Context of Mental Health Law and Hospitalization 752TV. Circuit Split over Affirmative Duties to Voluntary Patients 757A. A Status-Based Approach to Affirmative Duties 7581. Sixth Circuit: Higgs v. Latham 7582. First Circuit: Monahan v. Dorchester 7613. Fifth Circuit: Walton v. Alexander 763B. A Fact-Based Approach to Affirmative Duties 7661. Eleventh Circuit: Spivey ?. Elliot 7672. Eighth Circuit: Kennedy v. Schafer and Shelton ?. Arkansas Department of Human Services 7683. Third Circuit: Torisky ?. Schweiker 773V. Concerns about Overreliance on Voluntary/ Involuntary Distinction 775A. Competency: Can Acutely Mentally 111 Patients Give Informed Consent? 775B. Coercion: How do External Forces Influence a Patient's Voluntary Status? 777VI. Proposed Analysis for Determining Duties to a Voluntary Patient 781A. The Proposed Analysis 781B. Benefits of this Approach 7831. The Proposed Analysis Appropriately Considers the Voluntary Distinction 7842. The Proposed Analysis Retains Doctrinal Integrity 7863. The Proposed Analysis Will Not Unduly Expand Affirmative Duties 788VII. Conclusions 790I. IntroductionThe government owes us nothing. That is, the Constitution does not require the government to protect us or to provide services.1 Instead, the Constitution restricts the government from acting.2 For example, citizens enjoy the sense of security provided by their local police force, but the police are not constitutionally obligated to respond to every emergency call.3 As a corollary to this "no-duty" rule, state actors generally cannot be liable for inaction.4 Plaintiffs who sue the state on an affirmative-duty based claim face a formidable challenge, and yet plaintiffs frequently assert the claims.5The no-duty rule is not without exception. In Youngberg v. Romeo,6 the Supreme Court ruled that states7 owe involuntarily committed state-hospital patients affirmative duties of care, protection, and rehabilitation.8 In the 1970s and 1980s, the Court also recognized affirmative duties for prisoners,9 for pre-trial detainees,10 and for arrestees.11 But in DeShaney v. Winnebago County Department of Social Services,12 the Supreme Court sharply cabined liability premised on affirmative-duty theories and fortified the general no-duty rule.13 Nonetheless, DeShaney reiterated Youngberg's rule that involuntary patients enjoy affirmative rights.14 And circuit courts generally interpret DeShaney as creating a rule that affirmative duties arise in three discrete scenarios: (1) formal custody; (2) functional custody; and (3) state-created danger.15State hospitals present a unique context for analyzing affirmative duties. Unlike criminal custodial settings, state laws set forth procedures for people to either voluntarily enter state hospitals or to be involuntarily committed. …