dissenting.
I respectfully dissent. Our court remands for further findings concerning whether Kathleen Kennedy’s change in mental condition and course of treatment may have effectively converted her status from that of voluntary patient to involuntary patient. If so, then the court states that this situation is sufficiently similar to incarceration or institutionalization to give rise to § 1983 liability for a failure to protect. My dissent is twofold: First, I fail to see any disputed facts that might indicate that Kathleen’s patient status changed from voluntary to involuntary, and second, even if there is a genuine dispute of fact on this issue, I believe that the imposition of liability arising from such a de facto change in status was not clearly established law at the time of this tragedy.
In order to give rise to a constitutional duty to protect, both DeShaney, 489 U.S. at 199-200, 109 S.Ct. at 1005, and our opinion in Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir.1993), require a showing that the state by some “affirmative exercise of its power” restrained an individual’s liberty against her will and rendered her unable to care for herself. In my opinion, after DeShaney, the voluntary admission of a mental patient does not result in the required state-imposed restraint of liberty, against the patient’s will, that is necessary to establish liability for failure to protect. Nor can the worsening of the patient’s mental condition and a change of treatment modality to more frequent observations substitute for the affirmative exercise of liberty-restraining state power.
It is undisputed that at the time of her admission, Kathleen was a voluntary mental patient. She was admitted, not committed. Her course of treatment required that she be placed under Protective Suicide Precautions, a medical status which mandates frequent interaction with and constant supervision by staff members. This medical status, which was part of her voluntarily requested treatment, is the only possible showing of an affirmative exercise of state power that can be found in this case. Our court’s opinion concludes that there might be an issue of fact by speculating that once Kathleen was placed under Protective Suicide Precautions she may have effectively become an involuntary patient because her mental condition was such that if her parents had requested her release, the director could (not would) have exercised his discretion to refuse her release. Finding no facts to support this speculation, I respectfully disagree.
Under Missouri law, it is possible that a voluntary minor patient’s admission status may change to that of an involuntarily detained patient if the minor patient or her parents request her release, and the release *297is denied. By statute, the head of a facility “may refuse” the release of a voluntarily admitted minor patient when the patient is both “mentally disordered and, as a result, presents a likelihood of serious physical harm to himself or others,” but may do so only if an application for detention is made to a Missouri court. Mo.Rev.Stat. § 632.155(2). This statutory authority to refuse the release of a voluntarily admitted minor patient, however, is discretionary with the head of the facility, not mandatory upon a showing of the requisite mental condition. In that respect I disagree with the court’s characterization of this provision as a “duty placed on state officials.” Ante, at 295. Until the head of a facility is presented with the opportunity and actually exercises the authority to refuse the release of a voluntary minor patient, the state has not taken any affirmative action to restrain the voluntary patient’s liberty against her will within the meaning of De-Shaney. Importantly, the record in this ease contains no assertion or evidence that Kathleen’s course of treatment was against Kathleen’s will or her parents’ will, or that her parents sought to remove Kathleen and were denied release from this course of treatment.
Instead of pointing to disputed facts that might demonstrate an affirmative exercise of power by the state, our court’s opinion suggests that the status of a patient can change automatically from voluntary to involuntary whenever the patient’s condition is both “mentally disordered” and poses a “likelihood of serious physical harm” to herself or to others as described in Mo.Rev.Stat. § 632.155(2), such that the director “could lawfully have detained her if either she or her parents had requested her release.” Ante at 295 (emphasis added). Under this reasoning, the mere treatment of a serious mental condition which falls within the terms of the statute becomes a state-imposed restraint of liberty. If this be true, then I fear that we have effectively obliterated the rule that a duty to protect arises only when the state affirmatively exercises its power to restrain a person’s liberty against the person’s will. See DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005; Dorothy J., 7 F.3d at 732.
Furthermore, the de facto evolution from voluntary to involuntary status based upon a worsening medical condition as suggested by our court would actually create a constitutional right to involuntary commitment status whenever a patient’s condition is such that she could lawfully be detained. This cannot be. There is no constitutional right to involuntary commitment, regardless of an individual’s mental condition. See Wilson v. Formigoni, 42 F.3d 1060, 1066 (7th Cir.1994).
Our court’s opinion, ante, at 295, asserts that Rev.Mo.Stat. § 632.300(2) (requiring a mental health coordinator to “request a peace officer to take or cause [a] person to be taken into custody and transported to a mental health facility” if the mental health coordinator has reasonable cause to believe that the likelihood of serious physical harm by such person to himself or others as a result of a mental disorder is “imminent”) creates a duty which, by parity of reasoning, indicates that a patient with similar mental health problems already at the facility has no absolute right to release. Here again our court substitutes the mere existence of unexercised state power for the reality of affirmative state action. Kathleen’s parents were absolutely free to remove her from the hospital unless and until a state actor exercised the power to detain her authorized by the Missouri statute. In my opinion, neither the possibility for detention under this statute nor the reasoning employed by our court can create affirmative state action in a ease where none in fact has occurred. Although “[f]acts change,” ante, at 296, and although the facts of a given case could indicate a change from voluntary to involuntary status if they included an actual decision to detain made under the statute, I maintain that unless the facts of a case indicate that the state has affirmatively acted to restrain a person’s liberty, they are insufficient to subject state actors to § 1983 liability. An unexercised discretionary power under state law to detain and evaluate a person with apparent mental health problems is not the kind of affirmative state action DeShaney requires as a prerequisite to § 1983 liability.
To summarize, Kathleen was voluntarily admitted, not committed, and there is no evidence to suggest that her status as a voluntary patient actually changed before her tragic and untimely death. Her parents did not request her release, there is no indication that she was restrained against her will or *298her parents’ will, and there is simply no dispute of fact to suggest any affirmative exercise of power by the state that was keeping Kathleen restrained of her liberty at the time of her death.
Even assuming arguendo that it is possible to demonstrate a question of fact concerning whether Kathleen’s worsening condition combined with more frequent medical observation resulted in an affirmative state act restraining Kathleen’s liberty in a manner similar to that of involuntary institutionalization, the qualified immunity defense remains available because this certainly would be new law since DeShaney, and it cannot be said to have been clearly established at the time of Kathleen’s death. My research has revealed no cases indicating constitutional liability in this type of situation after DeShaney and prior to the filing of this opinion.
For these reasons, I would not remand for more factual inquiry but would affirm the district court’s grant of qualified immunity.