Right to “qualified and independent assistance”

In Doe v. Austin, the Sixth Circuit considered the rights of persons with intellectual disabilities who are under a guardianship where the guardian has admitted the person to a facility. 848 F.2d 1386 (6th Cir. 1988). The Austin court found that such individuals were not voluntary patients. And as involuntary patients, the Equal Protection Clause of the Fourteenth Amendment required that they be afforded the same procedural protections as those provided to individuals subject to civil commitment proceedings due to their mental health. Id. at 1394-95.

The court listed the procedural requirements established by the U.S. Supreme Court in Vitek v. Jones, 445 U.S. 480 (1980) for inmates being involuntarily transferred to a mental health facility, which included the provision of “qualified and independent assistance”. The Austin court stated:

Without question, due process requires that [intellectually disabled] adults in Kentucky receive, at a minimum, the procedural safeguards listed above. If these basic safeguards are required before an inmate is transferred from a prison to a mental hospital, surely a person thought to be [intellectually disabled] must be afforded at least the same level of protection before being removed from an ostensibly unfettered existence in society to the confines of an institution.

Austin, 848 F.2d at 1394. The court rejected the idea that the participation of the parents of the proposed patient would constitute “qualified and independent assistance”, stating that “such assistance could hardly be deemed to be independent.” Id. at 1394 n.7 (internal citations omitted).

However, because it is not clear whether the Sixth Circuit contemplated “qualified and independent assistance” to mean an attorney, this development is classified as “qualified.” The Austin court was silent on the matter, and although it relied on Vitek, the U.S. Supreme Court’s decision in Vitek was a plurality; only four out of five of the majority concluded that providing an attorney was necessary. [Justice Powell’s opinion, a concurrence in part, expressed that he disagreed with the Court’s opinion “that the requirement of independent assistance demands that a licensed attorney be provided.” Vitek v. Jones, 445 U.S. 480, 497-500 (1980) (Powell, J., concurring)].

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