In re M.L.

In re M.L.  (96-040); 167 Vt. 53; 702 A.2d 92

[Filed 08-Aug-1997]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-040


In re M.L.                                   Supreme Court

                                             On Appeal from
                                             Washington Family Court

                                             November Term, 1996


Mary Miles Teachout, J.

       Wendy Beinner and Michael K. Benvenuto, and Charles Tetreault and
  Bessie Weiss, Law Clerks (On the Brief), Vermont Legal Aid, Waterbury, for
  appellant

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Janet Bull and
  Marybeth McCaffrey, Assistant Attorneys General, Waterbury, for appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J.   In this case we address an issue of first impression
  under Vermont's mental health statutes: whether the family court may issue
  an order of nonhospitalization that authorizes the State to rehospitalize
  the patient without a prior hearing if the patient violates certain
  treatment conditions.  Petitioner M.L. appeals from an order of
  nonhospitalization that includes a summary rehospitalization provision.  We
  agree that the provision violates the statutes governing orders of
  nonhospitalization, see 18 V.S.A. §§ 7618, 7621, and accordingly reverse.

                                     I.

       M.L. is a single man in his late thirties who has been diagnosed with
  chronic schizophrenia for many years.  As a result of his illness, M.L. has
  for several years been obsessed with A.K., a married woman in her sixties
  who works as a clerk dispatcher at the Shaftsbury state police barracks. 
  Prior to his most recent admission to the Vermont State Hospital (VSH),
  M.L. frequently contacted and harassed A.K.  M.L. first met A.K. when he
  went to the barracks to lodge a complaint against the organization that
  provided him with mental

 

  health services.  He later attempted to contact A.K. countless times, both
  at work and at home. He called her on the emergency lines at the barracks,
  and called back repeatedly after he was told of the danger to the public of
  tying up those lines.  Twice, he told A.K., "If you hang up on me again, I
  will kill you."  A number of times M.L appeared at the window of the police
  barracks and watched A.K. at work.  This sometimes occurred during the
  evening shift hours when A.K. was alone at the barracks.  He wrote A.K. at
  least thirty times, telling her that spirits were directing him to make
  contact with her.  He also called A.K. at home several times a day and
  sometimes during the early morning hours, saying that he had to talk to
  her.

       M.L. persisted in his attempts to contact A.K. despite several court
  orders, criminal complaints, and the sustained efforts of the state police
  to protect A.K.  On May 31, 1994, M.L. appeared on foot at A.K.'s home and
  stood in her front yard.  He led her husband on a chase into the woods and
  then reappeared on A.K.'s deck and approached her, until he was secured by
  her husband and two state police officers.

       Less than a month after this incident, in June 1994, the Bennington
  District Court committed M.L. to VSH for a ninety-day period.  See 13
  V.S.A. § 4822.  This was M.L.'s fifth admission to VSH.  When the State
  sought to extend the period of hospitalization, see 18 V.S.A. § 7620, the
  parties stipulated that M.L. would remain hospitalized until December 1994,
  and that if he were still hospitalized at that time, the State would then
  seek judicial review of the hospitalization order.  The State filed a
  request for judicial review on December 15, 1994.

       The court held two days of hearings in March 1995.  The State sought
  either an order of hospitalization or an order of nonhospitalization to be
  stayed for several months while the Department of Mental Health established
  a placement in the community with appropriate treatment and supervision. 
  The court issued an order of hospitalization, but stated that M.L. could
  request a further hearing in four months if a suitable community placement
  had not been arranged.

 

       During his stay at VSH, M.L. took his medication regularly, complied
  with hospital rules, and earned privileges to spend unsupervised time on
  the hospital grounds and in the town of Waterbury.  He did not attempt to
  contact A.K.  Nonetheless, although M.L. complied with his treatment
  program, he did not accept that he was mentally ill, that he needed
  treatment for his illness, or that his illness impaired his judgment.  In
  particular, according to his treating psychiatrist, M.L. continued to be
  obsessed with A.K. and angry with the state police.

       In April 1995, the State moved to modify the order of hospitalization
  to an order of nonhospitalization because an appropriate community
  placement was available.  The court granted the motion, subject to a number
  of restrictive conditions designed to ensure both proper treatment for M.L.
  and protection for A.K.  Specifically, the order of nonhospitalization
  stated that: (1) M.L. would receive twenty-four-hour-a-day supervision
  while living in the community; (2) if M.L. eloped from his treatment
  program, he could be arrested and returned to the program pursuant to 18
  V.S.A. § 7105; and (3) if M.L. eloped twice within one week, visited A.K.
  or her relatives, or traveled to the towns where A.K. lives and works, he
  could be immediately returned to VSH and held there for up to seventy-two
  hours prior to the State seeking judicial review.  This third condition
  authorizing M.L.'s summary rehospitalization is the subject of the present
  appeal.

                                     II.

       M.L. argues that the summary rehospitalization provision violates the
  statutes governing orders of nonhospitalization, which authorize a court to
  modify an order of nonhospitalization or issue an order of hospitalization
  "after proper hearing."  18 V.S.A. §§ 7618(b), 7621(d).(FN1) The State urges
  us to accept the family court's reasoning that summary rehospitalization is
  a

 

  form of treatment authorized by the statute.  See 18 V.S.A. § 7618(a) (if
  court finds that treatment program other than hospitalization is adequate
  to meet person's treatment needs, court shall order person "to receive
  whatever treatment other than hospitalization is appropriate"). On this
  view, the court's broad discretion in crafting an order of
  nonhospitalization includes the authority to require summary
  rehospitalization under certain circumstances.

       We are not persuaded by the State's attempts to reconcile summary
  rehospitalization of persons on orders of nonhospitalization with the
  statutory requirement that such orders be modified only after a proper
  hearing.  The State first argues that the statute requires only that a
  hearing be held before an order of nonhospitalization is modified, not
  before a person is rehospitalized.  This argument escalates form over
  substance.  The statutory scheme plainly envisions that a person on an
  order of nonhospitalization is, in fact, not hospitalized.  A court must
  issue an order of nonhospitalization if it finds that "a treatment program
  other than hospitalization" is adequate for a given person.  18 V.S.A. §
  7618(a) (emphasis added).  A court that makes such a finding "shall order
  the person to receive whatever treatment other than hospitalization is
  appropriate."  Id.  Although the order of nonhospitalization will not be
  judicially modified until a hearing is held, the order is effectively
  revoked when M.L. is removed from the community and returned to VSH.

       Nor do we read § 7618(a) as granting the family court discretion to
  override the hearing requirement and authorize summary rehospitalization
  under certain circumstances.  The court does have broad discretion to craft
  an appropriate order of nonhospitalization.  But, as we have already
  discussed, the statute draws a clear distinction between hospitalization
  and treatment other than hospitalization.  By its plain language, the
  statute limits orders of nonhospitalization to requiring "treatment other
  than hospitalization."  Id.  Thus, although the court may consider a wide
  range of options for treatment, summary rehospitalization is not one of
  those options. See Burlington Elec. Dep't v. Vermont Dep't of Taxes, 154
  Vt. 332, 335-36, 576 A.2d 450,

 

  452 (1990) (where meaning of statute is plain on its face, Court will
  enforce statute according to its terms).(FN2)

       Ultimately, the argument for summary rehospitalization turns not on
  statutory interpretation but on a practical problem: How can people such as
  M.L., who pose a risk of danger to the public or to specific individuals,
  be released from the state hospital and treated in the community? 
  According to the family court, M.L. "can be treated in the community
  consistent with public safety . . . only if highly structured conditions
  with immediate rehospitalization consequences are in place."  The State
  agrees, and maintains that the statutory hearing requirement should not be
  an obstacle that prevents M.L.'s release from VSH.

       Unfortunately for the State's argument, § 7618 plainly and explicitly
  requires a predeprivation hearing before a patient on an order of
  nonhospitalization may be rehospitalized. If this requirement appears to
  prevent M.L.'s release from the hospital, it is only because the State is
  seeking an order of nonhospitalization for a patient that is admittedly
  dangerous.  In effect, the State wants to release a patient from VSH but
  nonetheless avoid the risk that judicial procedures or an adverse judicial
  determination could in any way delay or prevent rehospitalizing M.L. should
  that be warranted.  The statutory scheme does not permit the State to
  retain this type of control over patients on orders of nonhospitalization,
  because those patients by statute gain a liberty interest that cannot be
  terminated without a prior hearing.  Cf. G.T. v. Stone, 159 Vt. 607, 611,
  622 A.2d 491, 493 (1992) (patient committed to VSH and

 

  conditionally released has liberty status that cannot be terminated without
  due process of law).

       If a patient is so dangerous that such control is necessary to ensure
  public safety, then the patient is not an appropriate candidate for an
  order of nonhospitalization.  Indeed, M.L.'s order of nonhospitalization,
  which requires constant supervision and authorizes summary
  rehospitalization, is so restrictive that it is better characterized as a
  plan for hospital treatment in a community setting.(FN3)  The trend toward
  deinstitutionalization may require the State to seek more restrictive and
  secure community placements for patients who are too dangerous to live
  unsupervised in the community.  Unless the relevant statutes are amended,
  however, the court may not authorize summary rehospitalization of patients
  on orders of nonhospitalization.

       The dissent claims that our decision "upsets the careful legislative
  balance between patients' rights and public safety."  Post, at 1.  To the
  contrary, our decision follows the Legislature's intent as expressed in the
  language of the governing statutes.  The dissent notes that, based on the
  trial court's findings, an order of nonhospitalization would not be prudent
  without a summary rehospitalization provision.  But, as we have already
  discussed, the statute requires a hearing before an order of
  nonhospitalization may be changed to an order of hospitalization.  Simply
  put, based on the trial court's findings, M.L. is too dangerous to be
  placed on an order of nonhospitalization unless that order eviscerates the
  statutory hearing requirement.  Although the courts have broad discretion
  to fashion appropriate orders of nonhospitalization, we are not free to
  override statutory procedures to find some way for a dangerous patient to
  live in the community.

       The dissent may be correct that our decision will not help M.L., who
  as a result of our holding is more likely to remain hospitalized.  The
  Legislature, however, has the option to revisit the mental health statutes
  and adapt the statutory requirements to respond to the increasing pressures
  for deinstitutionalization.  As long as it acts within constitutional
  bounds, designing

 

  procedures that protect both mentally ill patients and the public is the
  province of the Legislature.

       In light of our decision, we remand this case to the family court for
  reconsideration of its order.  We express no opinion as to whether M.L.
  should continue on an order of nonhospitalization or whether, as the court
  originally concluded, M.L. is too dangerous to be released without a
  provision for summary rehospitalization.  M.L. argues that statutory
  emergency procedures, such as the emergency examination, 18 V.S.A. § 7504,
  and the warrant for immediate examination, id. § 7505, combined with the
  other restrictive conditions in the order, are sufficient to prevent harm
  to A.K., and that summary rehospitalization provides no additional
  protection.  Rather than address this issue now, we prefer to remand for
  the family court's reconsideration in light of our holding that summary
  rehospitalization provisions may not be included in orders of
  nonhospitalization.  A substantial period of time has elapsed since the
  court issued its order, and M.L.'s current situation may be quite
  different.  The family court is better situated to make this determination.

       Reversed and remanded.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


  ------------------------------------------------------------------------------
                                  Footnotes


FN1.  M.L. also argues that the court's order violates his due process
  rights by depriving him of his liberty without a hearing.  Cf. G.T. v.
  Stone, 159 Vt. 607, 613-14, 622 A.2d 491, 494-95 (1992) (federal and
  Vermont constitutions require hearing before patient's conditional
  discharge may be revoked, unless patient poses imminent danger of harm to
  self or others).  As we conclude that the summary rehospitalization
  provision violates the relevant statutory provisions, we do not address the
  constitutional claim.

FN2.  The dissent's reliance on In re A.C., 144 Vt. 37, 470 A.2d 1191
  (1984), is misplaced. In A.C., we noted that the statutory scheme governing
  the care of mentally retarded persons was not "`fine-tuned enough to
  distinguish between the varying needs and circumstances of each of the
  patients.'"  Id. at 42-43, 470 A.2d  at 1194 (quoting In re M.G., 137 Vt.
  521, 526, 408 A.2d 653, 656 (1979)).  Without question, the same is true in
  this context; the statute governing orders of nonhospitalization does not
  attempt to "fine-tune" treatment options for specific situations.  See 18
  V.S.A. § 7618(a) (court shall order "whatever treatment other than
  hospitalization is appropriate" for individual).  The court's discretion is
  nonetheless bounded by statutory limits, as we recognized in A.C., where we
  emphasized that "close adherence to the statutory scheme is essential." 144
  Vt. at 42, 470 A.2d  at 1194.  To claim that the court, in its discretion,
  has the authority to override a specific statutory requirement stretches
  discretion to the breaking point.

FN3.  In some ways, M.L. had greater liberty while at VSH, where he
  was able to travel freely and without supervision through the grounds and
  the town of Waterbury.

-------------------------------------------------------------------------------
                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-040


In re M.L.                                   Supreme Court

                                             On Appeal from
                                             Washington Family Court

                                             November Term, 1996


Mary Miles Teachout, J.

       Wendy Beinner and Michael K. Benvenuto, and Charles Tetreault and
  Bessie Weiss, Law Clerks (On the Brief), Vermont Legal Aid, Waterbury, for
  appellant

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Janet Bull and
  Marybeth McCaffrey, Assistant Attorneys General, Waterbury, for appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       MORSE, J., dissenting.   The Court holds that Vermont law prohibits
  the temporary, summary rehospitalization of an involuntary mental health
  patient for violating the conditions of his order of nonhospitalization. 
  In doing so, the Court upsets the careful legislative balance between
  patients' rights and public safety.  Although purportedly based on statute,
  the decision cannot be reconciled with the statutory scheme.  Although
  appearing to protect the rights of patients, the decision in fact
  frustrates the policy favoring outpatient treatment whenever feasible.
  Indeed, today's decision benefits virtually no one, least of all M.L. and
  other mental health patients similarly situated.  Accordingly, I
  respectfully dissent. 

                                     I.

       An understanding of the Court's misjudgment requires a brief overview
  of the governing statutory scheme.  The law requires the least restrictive
  treatment program available for mental health patients.  Before ordering
  that an individual be hospitalized, the trial court must consider whether
  appropriate treatment is available outside of a hospital setting.  See 18
  V.S.A. § 7617(c)
  
 

  ("Prior to ordering any course of treatment, the court shall determine
  whether there exists an available program of treatment . . . which is an
  appropriate alternative to hospitalization.").  The legislative policy
  could not be more explicit: "Outpatient or partial hospitalization shall be
  preferred to inpatient treatment."  Id. § 7703.

       As this Court has recognized, the trial court may exercise its
  equitable powers to craft the least restrictive treatment program available
  consistent with the needs of the individual patient.  "Although close
  adherence to the statutory scheme is essential, we have previously
  recognized that `[n]ot even the statutory language can be fine-tuned enough
  to distinguish between the varying needs and circumstances of each of the
  patients.'"  In re A.C., 144 Vt. 37, 42-43, 470 A.2d 1191, 1194 (1984)
  (quoting In re M.G., 137 Vt. 521, 526, 408 A.2d 653, 656 (1979)).

       Consistent with the foregoing policy, the statute provides that a
  court "shall order" that an involuntary mental health patient receive
  treatment in a nonhospital setting if it "is adequate to meet the person's
  treatment needs."  18 V.S.A. § 7618(a).  If the patient fails to comply
  with the order, or the alternative treatment has proved to be inadequate,
  the court may, "after proper hearing," consider other treatment options,
  modify the order, or enter a new order directing that the patient be
  hospitalized for the remainder of the term.  Id. § 7618(b).

       The specific question before the Court is whether, as part of an
  individual treatment plan, an order of nonhospitalization may provide that
  a violation of its terms will result in the patient being immediately
  returned to the Vermont State Hospital, to be followed by a prompt judicial
  hearing under § 7618(b).  The first point to be noted in this regard is the
  absence of any statutory language either expressly authorizing or
  prohibiting such a provision.  The authority would seem, nevertheless, to
  be implicit in the legislative policy favoring nonhospitalization whenever
  feasible, and the court's express mandate to craft a treatment plan
  consistent with this policy tailored to the individual needs of the
  patient.

 

       The facts here present a classic case in point.  M.L.'s treating
  psychiatrist testified, and the trial court found, that an order of
  nonhospitalization would not be prudent unless the treatment plan included
  provisions for summary return.  As accurately detailed in the Court's
  opinion, M.L. has been diagnosed with schizophrenia for years, has been
  obsessed with a woman, A.K., who works in the Shaftsbury state police
  barracks, has a history of violent and impulsive conduct, and has
  controlled his behavior through medication and therapy.  With the support
  of his treating psychiatrist, M.L. was placed in a nonhospitalized
  community-treatment setting.  The treatment plan set forth in the order of
  nonhospitalization provided that he could be returned to the State
  hospital, and afforded a hearing within seventy-two hours, if he eloped
  from the program more than once within a week, visited A. K., or traveled
  to her home or place of work.

       These conditions were carefully designed to protect M.L. from the
  harmful effects of long-term institutionalization and, at the same time,
  adequately safeguard A.K. should M.L. attempt to contact her.  Despite his
  demonstrated ability to function successfully in the community, M.L. had
  not recognized or understood his obsession with A.K., and needed to know
  that his return was a "certainty if he violat[ed] these restrictions."  The
  trial court thus found, based on the evidence, that the summary return
  provision constituted an "essential component" of M.L.'s treatment program.

       The Court is persuaded, nevertheless, that the summary return
  condition violates the statutory requirement of a hearing prior to
  modification of the nonhospitalization order or the entry of a new order of
  hospitalization.  18 V.S.A. § 7618(b).  On the contrary, the order is
  perfectly consistent with the statutory scheme.  No modification of the
  existing treatment program or new order of hospitalization may occur until
  the statutory hearing, which must be requested within seventy-two hours of
  M.L.'s return.  Nor does the provision effectively eviscerate the hearing
  requirement or "escalate[] form over substance," as the Court charges.
  Ante, at 4.  A prehearing emergency hold of approximately seventy-two hours
  does not remotely

 

  resemble a post-hearing hospitalization order of ninety days.  To equate
  the two is to exalt form over substance.

       Again, the issue must be viewed in its overall statutory context.  In
  addition to an order of nonhospitalization, the State Hospital may
  "conditionally discharge . . . any patient who may be safely and properly
  cared for in a place other than the hospital."  Id. § 8007(a).  A
  conditional discharge becomes absolute at the end of its term, and thus
  represents a substantial step beyond nonhospitalization toward
  independence.  See Id. § 8007(c).  Yet even in these circumstances, as we
  held in G.T. v. Stone, 159 Vt. 607, 613, 622 A.2d 491, 494 (1992), a
  patient may in an emergency be immediately rehospitalized if afforded a
  prompt post-commitment hearing.  It would be irrational under the existing
  statutory scheme to allow summary rehospitalization of a conditionally
  discharged patient who is close to completion of a treatment program, while
  disallowing the same for a patient on an order of nonhospitalization in an
  ongoing treatment program.

       As the trial court here noted, the emergency-hold provisions of 18
  V.S.A. §§ 7504 and 7505, to which the Court in G.T. referred, do not
  represent a practical alternative to the summary-return condition in his
  nonhospitalization order.  Both statutes are designed for the person "in
  need of treatment" whose behavior suggests an imminent danger to the
  patient or others.  M.L. is in a different category; he is already in
  treatment, and as such the State need only demonstrate that he is "in need
  of further treatment," i.e., a patient "who, if such treatment is
  discontinued, presents a substantial probablility that in the near future
  his condition will deteriorate and he will become a person in need of
  treatment."  18 V.S.A. § 7101(16); see In re P.S., No. 96-208, slip op. at
  8 (Vt. Aug. 8, 1997).  If M.L. eloped from the program, he might or might
  not represent an imminent danger to A.K., but based upon his treatment
  history there is certainly a substantial probability of such danger.  The
  threat to A.K. could eventuate, moreover, before a formally scheduled
  hearing occurred.

 

       The summary-return provision, in short, represented a legitimate and
  practical means of accommodating the patient's interests and the public
  safety.

                                     II.


       Relying on Stone, M.L. also contends that the summary-return provision
  violates his constitutional right to due process.  On the contrary, with
  respect to individuals on conditional discharge, Stone held that summary
  commitment was constitutional when the specific facts giving rise to the
  imminent danger were documented, and an adequate hearing was initiated
  promptly thereafter.  159 Vt. at 613, 622 A.2d  at 494. M.L.'s order of
  nonhospitalization contained similar due process protections.  It set forth
  specific provisions which, if violated, would signal a substantial
  likelihood of danger to A.K. based upon his treatment history, and required
  a hearing shortly after his return.  The process afforded was thus
  sufficient for a patient on an order of nonhospitalization with a treatment
  history akin to M.L.'s.

       The Court has done patients like M.L. no favor by increasing the
  likelihood of their prolonged stay in the hospital as opposed to
  community-based treatment.  Accordingly, I would affirm the judgment.  I am
  authorized to say that Chief Justice Allen joins in this dissent.





                              _______________________________________
                              Associate Justice