Full opinion text
MEMORANDUM OPINION AND ORDER CONTIE, District Judge. Three patients at Western Reserve Psychiatric Habilitation Center, formerly Hawthornden State Hospital, initiated this action, pursuant to 42 U.S.C. § 1983, on January 7, 1976, to redress the alleged deprivation under color of law of rights guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiffs named as defendants the superintendent of Western Reserve Psychiatric Habilitation Center, the Governor of the State of Ohio, the director of the Ohio Department of Mental Health and Mental Retardation, the commissioner of the Division of Mental Health, the director of the Ohio Department of Health, the director of the Ohio Department of Public Welfare, and the Ohio Rehabilitation Services Commission. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343(3) and (4). Essentially, plaintiffs assert that the defendants, acting under color of law, have maintained conditions and practices at Western Reserve Psychiatric Habilitation Center which have deprived them of their right to be free from harm in violation of the Eighth Amendment, and their right to treatment and right to treatment in the least restrictive setting appropriate to their needs both in violation of the Fourteenth Amendment. As pendent state claims, it is further alleged that defendants have violated plaintiffs’ statutory rights to humane care and treatment, and to the least restrictive environment consistent with the treatment plan under the law of Ohio. With regard to the director of the Ohio Department of Health, the director of the Ohio Department of Public Welfare, and the Ohio Rehabilitation Services Commission, plaintiffs allege that they have wholly failed to fulfill their duties under federal and state law. Additionally, it is asserted that the latter two defendants are necessary parties for purposes of relief under Rule 19, Federal Rules of Civil Procedure. Equitable relief in the form of a permanent injunction is sought. Plaintiffs also request a declaratory judgment and an award of attorneys’ fees and the costs incurred in prosecuting this action. The defendants have essentially denied the allegations of the complaint. PROCEDURAL HISTORY Shortly after filing the original complaint, plaintiffs, having initiated this action in their own behalf and on behalf of all persons similarly situated, moved the Court on March 2, 1976 to certify the within action as a class action under Rule 23, Federal Rules of Civil Procedure. By Order of March 9, 1976, this Court certified the class consisting of all persons who now occupy or who will, during the pendency of this suit, occupy any ward or facility, exclusive of Geriatric Services, as patients at Hawthornden State Hospital as the class represented by the named plaintiffs. Pursuant to the consent and stipulation of all parties, a preliminary injunction was entered against the defendants on May 3, 1976. Said Order required the defendants to provide specific relief regarding the number and training and education of staff, patient evaluations, supplies, building improvements and further admissions. The preliminary injunction has subsequently been amended three times by agreement of plaintiffs and defendants due to certain changes of circumstances. The amendments were filed December 2, 1976, June 1, 1978, and March 16, 1979. On May 25, 1976, the Court granted the United States of America leave to intervene as a party plaintiff in this action. Its complaint in intervention alleging substantially the same violations of plaintiffs’ Eighth and Fourteenth Amendment rights was filed that same date. Thereafter, plaintiffs moved the Court separately to amend the class definition, and for leave to file an amended supplemental complaint. By Order of February 22, 1977, this Court granted the former motion and certified as the class represented by the .named plaintiffs the following: All persons who have at any time since March 2, 1976, occupied, or who will at any time during the pendency of this action occupy any ward or facility as patients at Western Reserve Psychiatric Habilitation Center (formerly Hawthorn-den State Hospital). Thus patients within the geriatric service were included in the class definition. Likewise on February 22,1977, the latter motion was granted and an amended supplemental complaint filed. This complaint added one named plaintiff as representative of the geriatric service patients; the other allegations are substantially the same as those of the original complaint. A consent judgment between plaintiffs, plaintiff-intervenor, and the director of the Ohio Department of Health was entered on December 29, 1977. Said judgment was consented to by the director for the purpose of compromising and settling all claims against this defendant. It in effect ordered the health department to follow certain procedures with regard to its programs and services, and the inspection of nursing homes, rest homes, and homes for the aging. Thereafter, this action proceeded to trial on the issue of liability. The Court duly heard extensive testimony and received numerous exhibits over 31 days in January and February, 1978. After the trial of this action and submission of the parties’ briefs, defendants moved the Court on June 27, 1978 to reopen the record. The purpose of said motion was to inform the Court of defendants’ decision to relocate the proposed forensic center on a site other than Western Reserve Psychiatric Habilitation Center. Plaintiffs subsequently joined in said motion and moved the Court to receive into evidence, as plaintiffs’ exhibit 217, the deposition of George Gintoli. This deposition was admitted by entry of July 24, 1978 and the motions to re-open the record are hereby granted. On April 24, 1979, plaintiffs moved the Court for a temporary restraining order enjoining any further construction of a fence or installation of security devices in or around cottage 21 of Western Reserve Psychiatric Habilitation Center until defendants meet certain conditions. A hearing thereon was duly held on April 25, 26, and 30, 1979. By Order of May 14, 1979, said motion was denied. Upon consideration of the entire record herein, the Court enters its findings of fact and conclusions of law as required by Rule 52(a), Federal Rules of Civil Procedure. HISTORICAL PERSPECTIVE The origins of official involvement by the State of Ohio in the care and treatment of the mentally ill can be traced to the early nineteenth century. As early as 1815, the legislature of Ohio passed a law providing for the examination of those persons alleged to be insane and for the care of their persons and property. Approximately six years later, the state appropriated $10,000 toward the establishment and support of the first state-funded asylum for the mentally ill, the “Commercial Hospital and Lunatic Asylum for the State of Ohio” in Cincinnati. Although primarily a county institution, the state contributed regularly to its maintenance. Thereafter in 1938, the first state institution for the care of the insane was authorized to be located in Columbus, Ohio. Admissions to said institution, however, were limited to curable cases only. The Constitution of the State of Ohio of 1851 provided that “institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state.” In adopting this provision, the state recognized and accepted responsibility for the care and treatment of the mentally ill in Ohio. As a result, the state hospital system was developed during the latter half of the 19th century. Such was apparently a humanitarian and progressive move at that time, and represented a marked improvement in the treatment and care of the mentally ill. Thus following legislative action in 1852, facilities were increased at the institution for the insane in Columbus. Thereafter state hospitals were established at Cleveland and Dayton in 1855, at Athens in 1874, at Toledo in 1888, and at Massillon in 1898. Hawthornden was initially operated as a farm for the Cleveland State Hospital from 1922 until 1938 at which time it began receiving patients transferred from other facilities. In 1941, however, Hawthornden State Hospital was established as a separate institution for the mentally ill. Its name was changed to Western Reserve'Psychiatric Habilitation Center in 1975. (Dx Y-l). WESTERN RESERVE PSYCHIATRIC HABILITATION CENTER Western Reserve Psychiatric Habilitation Center [hereinafter Western Reserve] is a state owned and operated hospital for the care and treatment of the chronically mentally ill. It provides long-term psychiatric and physical care for residents of four of Ohio’s 88 counties, namely Cuyahoga, Geauga, Lake and Lorain. Located approximately 16 miles from both Akron and Cleveland, Western Reserve occupies over 70 of the 600 acres purchased by the State of Ohio in 1923. Since that time 40 buildings have been erected in a campuslike manner with the intended purpose of providing residential, hospital, and administrative services for a population of 1200 patients. The oldest buildings known as cottages and now housing patients were constructed in the 1930’s. The most recent addition to the Western Reserve facility is the Geriatric Center which was completed in 1972 at a cost of $6,000,000. Since its inception, Western Reserve has served, and continues to serve, those individuals with a chronic mental illness. Most of its patients are referred from short-term acute care institutions of the state; the primary ones include Cleveland Psychiatric Institute, Fairhill Mental Health Center, and Fallsview Mental Health Center. Generally, patients are typically transferred from these facilities after a determination by the professional staff that long-term hospitalization and treatment is necessary. Further, a number of Western Reserve’s patients have been transferred from long-term state mental institutions; a smaller number represents individuals who come directly to Western Reserve or are residents of states other than Ohio. The patient population of Western Reserve is described as chronically mentally ill since the vast majority have experienced a mental disability of long duration. The characteristics of said population were ascertained in a demographic study by the research and evaluation division of the hospital. Said survey involved an inspection of the ward charts of the 775 patients at Western Reserve on September 15, 1976; the results thereof were published in May 1977. (Px 13). Although the survey deals only with the particular patient population at the above specified point in time, it appears to generally reflect the patients at Western Reserve both at the initiation of this suit and during trial. As shown by the survey, the average age of Western Reserve patients is 51 years, and the average patient has had 9.4 years of formalized schooling. The mean age at which the patient population experienced their first psychiatric hospitalization was 31.6 years; however, half of the population was hospitalized for the first time prior to age 27. Although the average length of hospitalization for the resident population in September 1976 was 5.4 years, the median length of hospitalization was only 2.6 years. The survey further indicated that the average number of prior psychiatric hospitalizations was 4.4, and that a typical Western Reserve patient has resided in two or three different psychiatric institutions. The average period of time spent in psychiatric institutions by the patient population was 16.2 years. Finally, the average patient has spent almost 80% of the time since his first institutionalization in psychiatric facilities. By diagnosis the majority of patients at Western Reserve are classified as experiencing some type of schizophrenic dysfunction. The balance of the patient population has been diagnosed as organic brain syndrome, major affective disorders, and mental retardation. In addition to the diagnostic classification of patients, the population at Western Reserve can be divided into essentially six categories. First, there is the geriatric group which consists of all individuals over 60 years of age. This group at the time of trial numbered approximately 290 patients. The second category of patients at Western Reserve is termed forensic and consists of those individuals who are sociopathic or violent and a danger to themselves or others. There were approximately only 60 forensic or dangerous patients then at Western Reserve. The third and largest category of patients are the chronic mentally ill who have been at Western Reserve between 5 or 15 and 20 years. As described above, these patients have suffered long periods of hospitalization and are frequently diagnosed schizophrenic. The fourth category of patients consists of acutely disturbed individuals who are suffering a severe mental or emotional trauma which requires immediate and intensive intervention. Such individuals numbered approximately less than 100 patients, and their hospitalization is of a relatively short duration. These patients generally remain at Western Reserve from 30 to 60 or 90 days and then are returned to the community from whence they came. The fifth and final category of patients constituting the population of Western Reserve consists of adolescents. Generally, these are individuals who are transferred to Western Reserve only until a bed is available for them at a state or public facility directed toward the care of individuals under 18 years of age. Thus the adolescent population at Western Reserve is temporary and transitory, and generally patients thereat are not less than 18 years old. Based on the foregoing, it is readily apparent that, in terms of all the demographic characteristics discussed above, the patient population at Western Reserve is extremely heterogeneous. Such heterogeneity can serve to enhance and stimulate patient social interaction. At the same time, however, it can render program planning and organization problematical. Finally, a brief outline of the organizational structure of Western Reserve will aid further analysis. On July 28, 1975, the hospital was restructured with the institution of the unit system or unitization. (Dx S-4). Such involved decentralization and the organization of individual living units of patients based upon their functioning level. Pursuant thereto, all patients and staff were assigned to a unit. Each unit is comprised of a quasi-homogenous group of patients in terms of their problems, behavioral assets and treatment needs, and an interdisciplinary treatment team of staff. The primary function of a unit is the direct delivery of service to the patients who reside therein. These patient living units are further organized for purposes of administration and programs into service areas. Each area thus consists of a number of units whose patients generally require similar services and programs. The service areas are: incoming service; personal rehabilitation service; social re-education service; outward bound service; geriatric service; the infirmary; forensic service; and the medical-surgical service. Additionally, there are two nonresidential service areas, after care service and ancillary service; the former provides community placement and monitoring services, while the latter supervises medical support services. At the time of trial, Western Reserve was preparing for the implementation of unitization phase two. Such involves a further reorganization of the hospital structure into residential and nonresidential projects. The goal of unitization phase two is the provision of meaningful programming which is community oriented or community based. The physical settings, social situations, and expectations are to share as closely as possible the attitudes and values of life outside the hospital. It is to provide a new vocational service, additional evaluation and counseling services, and expanded community programs. FACTUAL ANALYSIS With the above brief description of Western Reserve clearly in view, the Court shall now proceed to address the main areas of concern to the plaintiffs. Essentially, the Court after reviewing all the testimony and evidence has identified six critical or key issues: living conditions; staff; medical care; administration of drugs; therapeutic treatment; and alternate settings. In so doing, the Court notes that each area has not remained static, but is characterized by development and change. Thus in discussing these issues the Court shall refer to three relevant time frames: pre-April 1975; April 1975 to May 1976; and May 1976 to present. These three periods have been determined to be significant by reference to two events. First, in April 1975 defendants Moritz and Fireman assumed the positions of director of the Ohio Department of Mental Health and Mental Retardation [hereinafter the department] and superintendent of Western Reserve, respectively. Second, on May 3, 1976, the preliminary injunction herein was entered pursuant to the stipulation and consent of the parties. As will be shown more fully below, said events brought about substantial changes at Western Reserve. LIVING CONDITIONS In 1971 the Citizens Task Force on Mental Health and Retardation was commissioned by the then Governor of Ohio to review conditions in the state institutions. Their findings were highly critical of the neglect and abuse of the mentally ill committed to Ohio’s mental institutions and hospitals. In their trial brief, defendants admit that Western Reserve was among the institutions cited by this task force. They further acknowledge that patients at Western Reserve were housed in overcrowded cottages, and were subject to supervision and abuse by an undermanned and indifferent staff. Such dehumanizing conditions existed in 1975 when the state defendants assumed their respective offices. Indeed prior to April 1975 and continuing thereafter into 1976, the living conditions at Western Reserve were essentially substandard and dangerous to both the mental and physical health of the patients. Housekeeping and maintenance were extremely poor; many of the physical structures presented fire and safety hazards, while patient areas were generally filthy and malodorous. Moreover, the cottages or patient living quarters were so crowded that privacy and quiet were nonexistent even during the night. The eradication of such antitherapeutic, dangerous, and inhuman conditions was apparently one of the priorities of the defendants after April 1975. Yet despite such priority, these conditions continued to exist well into 1976. It appears that such was in great part a function of inadequate numbers of staff. As discussed more fully below, in 1975 the staff shortage at Western Reserve became exacerbated due to a budgetary crises which prompted a considerable reduction in the workforce. Prior to May 1976, staff levels at Western Reserve were insufficient to provide custodial care; there simply were not enough staff to protect the lives and safety of the patients. With the entry of the preliminary injunction, defendants were required to hire a substantial number of new staff members. Included therein was the requirement that 28 housekeepers be added to the maintenance staff. Further, defendants were required to formulate a plan for building improvements. Among the improvements to be included in such plan were the following: installation of safety devices; remedying of hazardous conditions; repair, replacement and provision of sanitary conditions; division of units into wards housing no more than 30 patients; provision for the privacy of patients; and alterations to the interiors of buildings in order to provide adequate and therapeutic patient activity areas. As a result of defendants’ compliance with such requirements, the physical conditions of Western Reserve have greatly improved. Thus Western Reserve is no longer an inhuman and dangerous place. It is clean and safe. Generally, the living conditions and overall environment at Western Reserve are adequate for the provision of care and treatment to mentally ill patients, with one exception. The one exception is cottage 21 which houses patients living in units of the incoming and forensic services. Initially, the physical condition of this facility presents numerous hazards: security is poor; there are problems with ventilation; the doors leading to patient rooms do not meet fire safety code requirements; and there are cracks in the building foundation which may become serious in the future due to a fault underneath the structure. Further, cottage 21 lacks treatment space and a therapeutic environment. Indeed it appears to be a dangerous place for patients. At trial considerable testimony was presented by defendants regarding plans for a new forensic facility on the grounds of Western Reserve. Such facility was actually one of three regional forensic psychiatric centers to be developed as a replacement for Lima State Hospital. It assertedly would have corrected the numerous shortcomings in the treatment and living conditions existing in the forensic service. Apparently as a result of significant public opposition, however, the state has agreed to locate the proposed forensic facility for northeastern Ohio on a site other than Western Reserve. Yet defendants have not submitted or developed alternate plans to remedy the acknowledged deficient living and treatment conditions of cottage- 21. Indeed it appears that no significant improvements or renovations of this facility have been made to date. Therefore, the Court finds that cottage 21 has been, and continues to be, a hazardous, unsafe and antitherapeutic facility for patients. The living conditions and environment are clearly inadequate for the provision of care and treatment to mentally ill persons. The problem of overcrowding in the cottages was also addressed by the preliminary injunction. The injunction required that no more than 30 patients be housed in a single ward. Further, following the renovations undertaken in accord therewith, there were to be no units housing patients with more than two beds per room. Prior to this, however, the defendants attempted to relieve the overcrowded condition at Western Reserve by decreasing the patient population. Such is reflected in the admission and discharge figures for Western Reserve. In the case of admissions, readmissions or transfers into Western Reserve, there has been a substantial and continuous decrease since fiscal year 1975. While in fiscal year 1974 there were 1068 said admissions or transfers, in fiscal 1975 there were only 769, in fiscal year 1976 there were only 447, and in fiscal year 1977 there were a mere 393. Further, for the three year period commencing 1974 and ending 1976, 2059 patients were either discharged from resident status or transferred from resident status to extramural care. Specifically, in 1974 the patient population at Western Reserve experienced the discharge or transfer of 682 patients. During 1975, 780 patients were removed from resident status, and in 1976, 596 patients were either discharged or transferred from said status. The result of the defendants’ actions in the area of admissions and discharges was of course a decline in the total patient population at Western Reserve. Whereas Western Reserve served 957 resident patients in January 1975, it accommodated only 709 said patients in November 1977. (Dx H-6). At the time of trial, Western Reserve’s population fluctuated between 725 and 750 patients compared to a population often numbering over 1000 prior to 1975. Thus it is readily apparent that due to the affirmative policies and practices of the defendants, the overcrowded condition at Western Reserve in terms of patient population has been relieved and remedied. Prior to April 1975, another significant problem at Western Reserve consisted of the physical and sexual abuse of patients by staff members. The alarming scope and number of such incidents led the defendants thereafter to cause an investigation by the Ohio State Highway Patrol. Said investigation confirmed the serious and widespread nature of such instances, and ultimately led to the indictment of a number of staff members for a variety of criminal offenses. At the same time the defendants instituted discharge or removal proceedings against each employee who was found to have engaged in any type of patient abuse or exploitation; such actions resulted in the removal of approximately 100 staff members. Although staff abuse of patients was formerly quite prevalent at Western Reserve, the defendants have significantly minimized the incidents thereof since assuming their respective offices. While the existence of even one such incident is undesirable, it must be recognized that staff abuse of patients in mental institutions is always a problem by virtue of the nature of the patients and the institution. The Court finds, however, that as a result of the defendants’ policies and practices incidents of patient abuse by staff are atypical and do not constitute a significant problem at Western Reserve. Specifically, two policies in particular appear to have contributed to the minimization of patient abuse at Western Reserve. First, defendant Moritz promulgated on October 23, 1975 Ohio Department of Mental Health and Mental Retardation Executive Order No. G-2 dealing with client abuse and neglect. Said order, effective October 31, 1975, made it the responsibility of the superintendent of each state facility for the mentally ill to appoint a committee of institutional staff to investigate alleged instances of client abuse and neglect, and to inquire and make recommendations as to the ability of the employee involved to function in a direct care position. The superintendent was further charged with responsibility for implementing appropriate disciplinary action including written reprimand, suspension, and removal where allegations of abuse were substantiated. In compliance with said order, Western Reserve has established a patient abuse committee which has investigated reported incidents of physical and sexual abuse of patients by staff, and made recommendations to the superintendent as to the appropriate action to be taken in cases thereof. Employees at Western Reserve have been reprimanded, suspended, and removed as a result of the committee’s investigations and recommendations to the superintendent. The order and its implementation appear to function effectively as a deterrent to patient abuse and a method of disciplining offenders. Second, on June 30, 1976, defendant Moritz promulgated Executive Order No. G-26 with regard to the advocacy, promotion and protection of clients’ rights. This order which became effective August 26, 1976 required each institution for the mentally ill to designate a client rights advocate. Among the responsibilities assigned to such individual was the duty to assist patients especially in the area of abuse and neglect. Western Reserve implemented said order promptly by appointing a chief patient advocate for the institution and designating staff within each unit as additional patient advocates. The latter are responsible for paying particular attention to the rights of patients and notifying appropriate persons, including the chief advocate, the hospital administration or the advocate division within the department, of any violation of those rights. Thus since August 1976, Western Reserve has developed perhaps the most extensive patient advocacy system of any hospital in the state. A final area of concern within the ambit of the living conditions at Western Reserve is the use of restraints or seclusion of patients. The current policy of the department with regard to restraint of patients was promulgated in Executive Order No. G-3, effective June 28, 1973. The purpose of said order was to establish a policy which would provide for the use of restraints only as an emergency measure and to prohibit their use as punishment. The policy as outlined in the order is essentially in compliance with the standards accepted today by most public mental institutions. (Px 54). Although there are instances of abuse of such policy at Western Reserve, the record herein does not establish an overly excessive and improper use of restraints and seclusion. STAFF One of the most important issues in this litigation involves the staff of Western Reserve. Essentially it is a question of the adequacy of the staff in terms of both number, and education and training. An adequate staff is, of course, necessary to the provision of care and treatment. As previously indicated, the department experienced a budgetary crisis in early February 1975. In order to stay within the bounds of its budget allocation, the department initiated a selective hiring freeze. As a result Western Reserve was not allowed to replace staff, and incurred the transfer of approximately 30 personnel to the Division of Mental Retardation. Such reduction in staff necessitated the closing of some patient living units, and the concomitant reassignment of staff. More importantly, however, the loss of staff made adequate care and treatment of the patient population virtually impossible. Thus in 1975, the need for additional staff was the most crucial need of Western Reserve. Counsel for the parties herein have stipulated that the number of staff per patient ratio prior to May 1976 was not satisfactory. The defendants were keenly aware of the staff shortage problem at Western Reserve. Such awareness and concern prompted the agreement to hire a substantial number of additional staff which was formalized in the preliminary injunction entered May 3,1976. Specifically, defendants agreed to hire 253.5 additional staff members at Western Reserve as set forth therein. Therefore, when the preliminary injunction was filed herein there were 804.5 staff members at Western Reserve. The staffing required by the preliminary injunction numbered 1016.1 persons. As of November 5,1977, however, there were 1023.0 staff employed at Western Reserve. Thus the defendants have gone beyond what was required by their \agreement and the injunction in order to provide care and treatment for the patient population. These increased staff levels naturally mean that there has been a marked improvement in the staff-patient ratio at Western Reserve. Whereas in January 1976 there were .92 staff per patient at Western Reserve, as of November 5, 1977 the number of staff per patient was 1.43. (Dx P). Such represents an important increase in the overall availability of staff to provide care and treatment for the patient population. Further by comparison to five other state facilities which also provide extended care, Western Reserve ranks quite favorably. As of December 17, 1977, Lima State Hospital had the best staff-patient ratio with 2.06 staff per patient. After Lima, Dayton Mental Health Center and Western Reserve ranked next with staff-patient ratios of 1.46 and 1.42 respectively. The other three state institutions had the following number of staff for each patient: Toledo Mental Health Center, 1.37; Cambridge Mental Health and Mental Retardation Center, 1.07; and Massilon State Hospital, .91. (Dx G-6). As is readily apparent, Lima State Hospital generally had considerably more staff for its patient population than each of the five other institutions. The population at Lima, however, is considerably different from that of the other long-term care facilities. Lima is a maximum security institution housing primarily violent and dangerous individuals who therefore require more supervision. In view thereof; the number of staff per patient at Western Reserve is, by comparison, not significantly disproportionate to that at Lima. Indeed Western Reserve appears to have one of the best staff-patient ratios for a state extended care hospital with a comparable population. Additionally, Western Reserve’s staff-patient ratio as of November 30, 1977 was better than that of each of the Division of Mental Health’s nine extended care hospitals. While the average staff per person ratio of such facilities was 1.18, Western Reserve had 1.43 staff per patient at that time. Also, while the average ratio showed an improvement from January 1975 of 47.61%, Western Reserve’s staff-patient ratio improved 62.06% from what it was in January 1975, namely .885. (Dx H-6). There is no generally accepted rule of thumb for the ratio of staff to patients in an institution for the chronically mentally ill. Such hospitals nationally apparently have slightly more than one staff person per patient. At facilities for the acutely ill, however, the ratio is closer to two staff per patient. Thus, it appears that, as of November 1977, Western Reserve was a little above the existing standard or norm in facilities for the chronically mentally ill. Further, the staff-patient ratio does reflect upon the quality of the service, care and treatment rendered at an institution for the mentally ill. Although it is only one factor and there is not a directly proportionate relationship between said ratio and such quality, it is highly significant. Of similar importance in determining the adequacy of care and treatment at a hospital for the mentally ill is the training and experience of the staff. It is apparent that, prior to the agreement formalized in the preliminary injunction herein, the personnel at Western Reserve were generally not qualified in terms of formal education or training and experience to provide effective care and treatment to the patient population. Since the injunction and as a result thereof, however, the hiring and recruiting policies and practices of Western Reserve show a determination to hire the best available qualified persons. In order to render effective care .and treatment, a hospital for the mentally ill must not only hire qualified individuals, but must assure the continuation of their training and education during their employment. Providing and assisting in such is a responsibility of the hospital. Prior to May 1976, Western Reserve had an extremely small number of training programs for its staff. A meaningful orientation program for new staff members was essentially nonexistent. The programs that were available consisted of one for psychiatric aides and one dealing with the administration of psychotropic drugs. Generally the training and education that was available to personnel at Western Reserve was sorely inadequate. The preliminary injunction required the commencement of a program of initial and continuing education and training for all staff members at Western Reserve. This requirement could be implemented because enough additional staff were likewise required to be hired under the terms of the injunction; the staff shortage at Western Reserve prior thereto precluded the establishment of any such meaningful program. As a result an education program and service has been created at Western Reserve. Although it still appears to be limited in scope, there has been an improvement in the orientation, education and training available to staff. Yet the educational program and service was not adequate at the time of trial to provide the initial and continuing training and education of personnel essential to rendering effective care and treatment. MEDICAL CARE In addition to addressing the mental health of its patients, Western Reserve also attends to their physical health and well-being. Medical care and treatment is provided at Western Reserve by three different means. Initially, such care is given directly to patients on each unit by the particular physician assigned thereto. Those patients requiring more extensive care are transferred to the medical-surgical service which is essentially a hospital within the hospital. Said service has about 32 beds for the provision of inpatient care by a staff comprised mostly of nurses and hospital aides. Finally, those patients requiring continuous medical care and attention are treated at the infirmary. Generally, these are geriatric patients with chronic physical disabilities such as diabetes, epilepsy, Huntington’s chorea, and serious heart disorders. At the time of trial for example, there were 50 patients housed in the infirmary and half of those were nonambulatory. Although Western Reserve provides a wide range of medical care, it does not have the resources and facilities to offer all the services provided by a general hospital. Thus those patients needing specialized medical care or surgery are transferred to a general hospital in Akron. With regard to the quality of medical care at Western Reserve, plaintiff relies primarily upon the survey by Dr. Peter H. Slugg. The major portion thereof was directed toward a review of medical care as of December 29, 1976. (Px 22). In making this study Dr. Slugg reviewed the autopsy protocols and corresponding patient charts of nine patients who had died between January 1975 and August 1976. He also examined on December 17 and 29, 1976 the charts of 18 patients then at Western Reserve. In so doing, Dr. Slugg acknowledged that such retrospective reviews do have inherent problems and limitations. Although relevant information can be obtained thereby and such review is a professionally accepted method of assessing the adequacy of medical care, it is not absolutely accurate or a substitute for actual examination of a patient. It must be further recognized that Dr. Slugg’s survey involved, as of December 29, 1976, the evaluation of a total of 27 patient charts. By contrast, the patient population at Western Reserve numbered 756 on October 5, 1976. (Dx 0). Thus it appears that only approximately 2% of the patients at Western Reserve were actually studied. Such percentage would probably be even smaller if all of the patients who were treated and cared for at Western Reserve from January 1975 until December 29, 1976 were taken into consideration. Based on such chart reviews, interviews with six physicians at Western Reserve, and a tour of the medical-surgical service, Dr. Slugg concluded: In summary, the level of medical care offered and available to residents at WRPRC is below generally recognized standards, in some areas inappropriate and in other areas non-existent. Plaintiffs’ exhibit 22 at V-2. As stated above, however, said conclusion is premised upon an extremely limited analysis. Moreover, Dr. Slugg himself admitted that other physicians may disagree with some of his report, and that honest differences do exist among physicians in the care of patients. Further, with the benefit of hindsight, for example after an autopsy, he has found a diagnosis to be incorrect which previously may have seemed indicated by the symptomology. In view of the foregoing, the Court finds that Dr. Slugg’s conclusions as to the adequacy of medical care at Western Reserve prior to December 29, 1976 are predicated upon a limited and insufficient foundation. Thus little weight shall be accorded to them. Further, they do not reflect the quality of medical care at Western Reserve subsequent to that time. Of more significance than Dr. Slugg’s conclusions are some of his findings with regard to the medical care and treatment provided patients at Western Reserve. Specifically important are those findings of particular problems in such care which have been otherwise supported and demonstrated in the record herein. Indeed both prior to and after the entry of the preliminary injunction on May 3, 1976, there were deficiencies in the medical care at Western Reserve. Before May 3, 1976, many problems arising in the delivery of medical care to Western Reserve patients were attributable to the staff. Several unlicensed physicians were employed by the hospital in direct patient care and permitted to conduct physical examinations of patients with little or no supervision. Some physicians also had difficulty with the English language, and others lacked training, experience, and orientation in areas of particular importance to institutionalized chronically ill patients. Overall there was a lack of leadership, poor organization, administration and supervision of the medical staff. Continuing medical education was nonexistent and not encouraged. Valuable consultants in specialized fields were not available. Staff other than medical personnel lacked training in cardiopulmonary resuscitation. Other problems in the medical care at Western Reserve included antiquated and nonoperational oxygen and resuscitation equipment. Further there was a failure to give each patient an annual and complete physical examination. Routine medical tests were either not conducted or not performed with any degree of regularity. The preliminary injunction addressed a number of these problems. Initially, it required the hiring of 5.5 full-time equivalent physicians licensed to practice medicine in Ohio. Said physicians were to be qualified to provide services appropriate to the needs of Western Reserve patients including gynecology and other specialized services. Further, commencing May 24, 1976, each patient was to be given a thorough medical and physical examination. Such examination was to include, among others, the following: an electrocardiogram (EKG) for patients over 40 years of age, or if such was medically indicated; a PAP test for female patients; all tests routinely performed in a complete physical examination or necessary to monitor side effects of drugs, including blood tests, liver function test, and urinalysis; procedures adequate to diagnose skin diseases; procedures adequate to diagnose side effects of psychotherapeutic medication; and an examination of eyes, vision and hearing. In order to ascertain whether Western Reserve was in compliance with these requirements, the research and evaluation division conducted a survey of service documentation. (Px 13). The method employed therein involved the inspection of the ward charts for the 775 patients residing at Western Reserve on September 15, 1976. The results showed that 771 patients had completed physical examination forms in their charts, and that 95.9% of the charts had forms which were less than one year old. Only 32.2% of the completed physical examination forms, however, addressed each of the 21 different areas to be evaluated. Further, there appears to have been no systematic and consistent evaluation of visual acuity, hearing and skin by the physicians. With regard to electrocardiograms (EKG), 38.1% of the patients over 40 years of age had one within the past year. Less than 13% of the female patients at Western Reserve had any record of a PAP test, and a mere 6.5% of the females had one within the year. Between 92% and 95% of the patient population, however, had the three routine blood serum tests within the past year. Slightly under 75% of the patient population had a chest x-ray within the previous year, and 89.5% had a urinalysis within such time frame. A mere 2.7% had no PPD Tuberculin test record in their charts, but 10.6% were in need of such testing. Although only 6.4% of the patients had an electroencephalogram (EEG) report in their charts, there was no way to determine whether such were medically indicated. Finally, only nine patients had no record of a dental visit; 97.4% had a dental visit within the last year. (Px 13). Thus the survey reveals that, as of September 15, 1976, Western Reserve was not in substantial compliance with most of the physical examination requirements of the preliminary injunction. Said survey, however, was conducted a little less than four months after the complete patient evaluations were commenced. Therefore, a follow-up study was made in May 1977 utilizing the same method as the initial survey. (Px 14). The only significant improvement, however, was the increase in the administration of the PAP test and EKG. As of May 1977, 86.2% of all female patients at Western Reserve had a PAP test within the last year; such represents an increase of 79.7% over the September 1976 figure. Similarly, 70.3% of the patients over 40 years of age had an EKG within the past year as compared with only 37.5% in September 1976 for a 32.8% increase therein. Shortly thereafter, further significant affirmative action was taken to eliminate the problems in the delivery of medical care at Western Reserve and to assure the provision of acceptable medical treatment. Consultants were obtained and available on a regular basis in neurology, dermatology, gynecology, and urology. Two internists joined the medical staff in the summer of 1977; Dr. Kieve Shapiro, hired as head of the medical-surgical service, has had specialized training and experience in emergency medicine. Further, unlicensed physicians are no longer being hired by Western Reserve and extensive efforts have been made to hire qualified physicians. A policy has been adopted whereby physician requests for the transfer of patients to the medical-surgical service are honored and not questioned. Similarly, guidelines have been developed for the transfer of Western Reserve patients to other facilities. In that regard, every member of the five person hospital team responsible for transporting a patient to another hospital has training in advance first aid and cardiopulmonary resuscitation. Additionally prior to any transfer, Dr. Shapiro confers with the receiving physician at the Akron general hospital before the patient arrives. Further, the department has adopted a policy regarding continuing medical education for physicians, and such is encouraged and supported. As indicated above, one of the serious problems with the medical care delivery system at Western Reserve was the lack of leadership, and poor organization, administration and supervision of the medical staff. It appears, however, that with the appointment of Dr. Magdi Rizk as Medical Coordinator on October 11,1977, a significant step was taken toward the elimination of such problem. Within the short period between his appointment and the trial herein, Dr. Rizk undertook a considerable number of projects and acted to assure quality medical care for all patients at Western Reserve. He contracted with three board certified psychiatrists to serve as consultants to Western Reserve. Similarly he obtained the services of a board certified psychologist with special education in psychopharmacology on a consultant basis. Said individual lectures once a week at Western Reserve and reviews difficult cases wherein a patient does not respond to treatment. Also, Dr. Rizk recruited three physicians to join the full-time staff at Western Reserve; one is a medical doctor with an extensive background in mental health and two are board eligible psychiatrists. Additionally, Dr. Rizk conducts medical staff meetings every two weeks and has made attendance thereat mandatory except in case of an emergency. These meetings are designed to help the physicians better meet their responsibilities, and often include other staff members in an effort to promote staff understanding and cooperation. Dr. Rizk has also written a comprehensive orientation schedule for new physicians which will last approximately two full days or sixteen hours. Also he encourages and supports continuing education for physicians, and their attendance at seminars, conferences and special courses. He also initiated a self-medication program for patients able to take their own medication; at the time of trial a small number of patients were on self-medication. Based on the foregoing and all of the evidence in the record herein, the Court finds that the medical care provided at Western Reserve prior to May 3, 1976 was generally inadequate. Since that time, efforts have been made to eliminate deficiencies in the medical care delivery system, and improve the overall level of medical care and treatment provided to Western Reserve patients. Although there are still instances of inadequate or inappropriate care, plaintiffs have not shown that such is the prevailing practice or general rule. Thus the Court concludes that the present level of medical care and treatment available at Western Reserve is consistent with minimally acceptable community standards. ADMINISTRATION OF DRUGS The fourth major issue raised herein concerns the manner in which psychotropic drugs are administered to patients at Western Reserve. Essentially psychotropic drugs are a class or group of drugs which primarily affect the human mind or human behavior. They are chemicals which affect the brain and nervous system, and alter emotions, feelings and consciousness. The basic categories of psychotropic drugs include the following: antipsychotic; antidepressant; antianxiety; antimanic; stimulants; and sedative hypnotic depressants. The study of these drugs is termed psycho-pharmacology. Psychotropic drugs first came into fairly widespread use in psychiatry around the middle 1950’s. They are generally used in the treatment of patients presenting a certain behavioral syndrome. They are prescribed in order to reduce such syndrome, and render the patient more amenable to other forms of treatment or intervention. Today psychotropic drugs are probably the most common form of treatment for mental and emotional disturbances. At Western Reserve psychotropic drugs form an important part of the treatment given patients. The five major categories of such drugs being used are: antipsychotic or major tranquilizers; antianxiety or minor tranquilizers; antidepressants; anticonvulsants; and lithium salts. (Dx C-2). A review and analysis of drug use at Western Reserve was made in December 1976 by Dr. Alberto DiMascio, director of psychopharmacology services for the Department of Mental Health of the Commonwealth of Massachusetts. (Px 162). Dr. DiMascio first collected information from the physicians at Western Reserve regarding the major physical disabilities, diagnosis, and medications of 699 patients. Then he and a colleague examined all the data provided for each of 356 randomly selected patients. They thus analyzed the medication practices at Western Reserve as of December 1,1976. The results of the survey revealed that, as of December 1, 1976, 85% of the 356 patients reviewed were receiving at least one psychotropic drug. Of those patients, the vast majority or 87% were on an anti-psychotic medication. Polypharmacy or the use of two or more psychotropic drugs was found in 18% of the patients studied. The average number of both psychotropic and medical drugs prescribed to Western Reserve patients was 2.5. In 22% of the patients surveyed who were taking antipsychotic drugs, antiparkinson medications were also prescribed. It was further found that weekend-free medication schedules were almost nonexistent, whereas 35 of the patients examined might have been placed on such a regimen. Additionally, in studying the medications prescribed with regard to whether such were consistent with appropriate prescribing practices, Dr. DiMascio and his associate found a substantial number of practices that they believed should be questioned or altered. Among the major problems cited was the use of medications which did not appear appropriate in light of the given diagnosis or symptomatology. Indeed in 17% of the cases surveyed, Dr. DiMascio questioned whether the medication given was indicated by the patient’s symptoms or diagnosis. The second major problem was found to be the use of the same medication for a prolonged time period without a remission of the patient’s symptoms. Based upon the then exhibited symptomatology, there were 78 instances, or 12% of the total practices questioned, which involved patients who had been taking the same neuroleptic drug for over six months, and yet still presented considerable symptomatology. Dr. DiMascio did not, however, study whether the physicians had tried alternate medications without success, and thus returned to the ones which still showed some symptoms because such did relieve the condition to a degree. Another problem area was found to be the use of prn or “pro re nata” (according as the circumstances may require) medications for patients receiving psychotropic drugs. It was also noted that there was a high use of concentrate forms of neuroleptic drugs which are more expensive than capsule or tablet medication. Finally, the use of t. i. d. (3 times per day) and q. i. d. (4 times per day) dosage schedules for 14% of the patients receiving psychotropic medications was questioned. Generally, such medications can be given much less frequently; nevertheless, said frequent dose practice is probably consistent with minimally accepted professional standards. Based upon the results of his survey, Dr. DiMascio concluded that there was room for improvement in the prescribing practices of the physicians at Western Reserve. Indeed it appears that, as of December 1, 1976, there were many medication practices which were not based upon scientific or clinical evidence, and did not meet standards acceptable to recognized professionals in the area. Thus Dr. DiMascio recommended that an extensive education program be initiated for all staff and especially physicians on the use of psychopharmacological agents, and that a monitoring program be established to review prescribing patterns and medication usage. Recognizing that problems existed in the use of psychotropic drugs, Western Reserve implemented a number of programs and policies to correct them. In December 1976, the education service prepared a guide book on psychotropic medications for all patients and their families. It was designed to provide them with basic information about such drugs in order that patients might be better informed about and become more actively involved in their treatment program. Further as of January 1, 1977, only licensed physicians, registered nurses, and licensed practical nurses with specialized training in pharmacology were authorized to dispense psychotropic drugs. Moreover, the frequent use of psychotropic medication and the concern over the side effects thereof led Western Reserve to institute a drug monitoring system apparently in early 1977. Said system was an outgrowth of the development of drug profiles for each patient begun by the director of Western Reserve’s pharmacy shortly after assuming his position on October 4, 1976. The monitoring system involves the recording of all physicians’ orders for medication on the patient’s drug profile card. Such profile is then reviewed by the director of the pharmacy or another pharmacist for any potential adverse drug interaction or an apparent inconsistency between the prescription and the patient’s diagnosis. If a question arises as to the medication prescribed, the pharmacist communicates such in writing to the medical coordinator who, after reviewing the matter, in turn forwards his written comments to the treating physician for his review and response. When the prescribing physician’s response is inappropriate or his judgment is unsubstantiated, the medication is adjusted accordingly. Thus the drug monitoring system at Western Reserve involves both a clinical pharmacist knowledgeable in psychopharmacology and the medical coordinator. It is a fairly sophisticated system designed to detect and prevent possible harmful side effects and drug interactions. It appears that Western Reserve is in the vanguard in developing a drug monitoring system; the majority of long-term mental hospitals currently do not have such a practice. During the summer of 1977 defendant Fireman, who has his doctorate in psycho-pharmacology, gave a course in psychotropic medications; attendance thereat was mandatory for all physicians. Similarly, training or education programs in the administration of psychotropic medications have been mandated for nursing personnel. Finally, as discussed previously with regard to medical care, the preliminary injunction herein required that each patient be given a complete medical examination. Specifically included within the scope of said examination were all tests necessary to monitor for side effects of drugs, and procedures adequate to diagnose side effects of psycho-therapeutic drugs. Further, written procedures for monitoring chemotherapeutic regimens were to be developed by April 26, 1976. As a result thereof a chemotherapeutic monitoring system was developed and became fully operational on October 4, 1976. Essentially the system utilizes laboratory tests to monitor the use of certain chemotherapeutic agents. It is specifically directed toward all newly admitted patients, patients on psychotropic drugs, lithium and tridione, and epileptic patients on anticonvulsant therapy. An interim review of the overall effectiveness of the chemotherapeutic monitoring system was made by Western Reserve’s research and evaluation division on January 25, 1977, a little over four months after its implementation. (Px 26). The results showed that a substantial number of admissions tests were incomplete, and that, according to specific test documentation, patients had not received required laboratory tests. Further, patients on lithium were ineffectively monitored, and no controls were provided for monitoring those on tridione. (Px 26). Thus it appears that the system was not operating effectively in January 1977. By mid-April 1977, however, significant positive change had occurred in Western Reserve’s efforts to monitor those patients being given certain medications. Such was revealed in a follow-up study of the system conducted at that time. (Px 27). The study involved a comprehensive examination of the laboratory documentation of tests provided all patients under the system from January 24, 1977 to March 31, 1977. It was found that 87% of the newly admitted patients received all required laboratory tests; of the 13% that did not, several refused such services and others did not require specific ones. With regard to those patients on psychotropic drugs, approximately 92% received all laboratory tests as scheduled. The one patient identified as receiving anticonvulsive medication had all required tests. Similarly, the 12 patients on lithium medication were being monitored effectively. Finally, although no patient was then on a tridione regimen, controls had been set up to monitor such cases. The review did indicate, however, that there was a continuing need to make sure that all patients on the specified medications were identified and under the monitoring system. Nonetheless, commendable strides have been made in providing an effective chemotherapeutic monitoring system. Therefore, the Court concludes that prior to 1977 the drug practices at Western Reserve were generally not in accord with recognized professional standards. Although there were instances of practices that were consistent with those in other hospitals for the mentally ill or with minimally accepted community standards, there were a considerable number of questionable or inappropriate prescribing practices. In late 1976 and early 1977, however, Western Reserve proceeded to initiate programs and policies which have served to monitor medication usage and to effectively curb any potential undesirable or harmful consequences of psychotropic drug treatment. THERAPEUTIC TREATMENT An essential function of Western Reserve is the provision of nonmedical therapeutic treatment. Such treatment includes psychiatric, psychological, vocational, and educational activities and programs. It is plaintiffs’ contention herein that Western Reserve has in the past failed, and continues to fail, to provide patients with therapeutic treatment. Prior to the entry of the preliminary injunction on May 3, 1976, there were few written or planned therapeutic programs for the patients at Western