In re M.D.

IN_RE_MD.94-016; 163 Vt 130; 655 A.2d 723

[Filed 30-Dec-1994]

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. 94-016


In re M.D.                                Supreme Court

                                          On Appeal from
                                           Windham Family Court

                                          September Term, 1994



Robert Grussing III, J.

Christopher C. Moll, Windham County Deputy State's Attorney, Brattleboro, for
plaintiff- appellee 

Geoffrey F. Walsh, Vermont Legal Aid, Inc., Springfield, for defendant-appellant


PRESENT:  Allen, C.J., Dooley, Morse and Johnson, JJ. and Maloney, Supr. J.,
Specially Assigned 



  JOHNSON, J.  We hold today that the Commissioner of Mental Health and
Mental Retardation has authority to transfer patients in the care and custody
of the State, whether as voluntary or involuntary patients, under the
Interstate Compact on Mental Health, 18 V.S.A.  9001-9052 (Compact). 
Because the family court erred in its interpretation of the Compact, we
reverse its order involuntarily committing M.D., a nonresident patient who
was denied a transfer as a voluntary patient. 

  In June 1993, after her therapist diagnosed her as possibly suffering from
multiple personality disorder, M.D., a life-long resident of Connecticut,
voluntarily enrolled in an in- patient psychiatric treatment program at the
Brattleboro Retreat.  In July, she was released to out-patient care and
returned to Connecticut.  After an attempted suicide, she returned to the
Retreat in August and admitted herself as a voluntary patient.  The Retreat
staff diagnosed M.D. as suffering from a multiple personality disorder,
post-traumatic stress disorder, and borderline 

 

personality disorder. Treating physicians considered her a high risk for
repeated suicide attempts. 

  M.D. paid for her treatment at the Retreat through private insurance
coverage.  When her coverage was about to expire, the Retreat filed an
involuntary treatment petition in the Windham Family Court.  The petition was
joined by the State.  Without funding, the Retreat would be forced to release
her even though all parties agreed that M.D. was in need of further
treatment.  M.D. sought to dismiss the involuntary treatment proceedings, but
only because she was willing to continue her treatment voluntarily at either
the Retreat, or at a hospital in Connecticut. 

  M.D.'s ultimate goal, and that of the Commissioner, was to transfer M.D. to
a facility in her home state of Connecticut.  M.D. and the Commissioner
differed, however, about whether it was necessary for M.D. to become an
involuntary patient before she could be transferred to a Connecticut hospital
pursuant to the Compact.  The Commissioner determined that he was not in a
position to implement a transfer without an order of hospitalization, and
that he had no authority to transfer M.D. as a private patient of the
Retreat. 

  The family court agreed with the Commissioner that to effect the transfer,
M.D. had to be involuntarily committed.  The court concluded that voluntary
treatment was not possible, at least not at the Retreat, apparently because
the Retreat maintained it would be forced to release M.D. without payment or
a commitment order.  The court made no findings on whether voluntary
treatment was available for M.D. as a state patient, and the record is
unclear on whether the State would have accepted M.D. as a voluntary patient.
 The court granted the application for involuntary treatment and gave the
Commissioner of Mental Health and Mental Retardation custody of M.D. for a
period not to exceed ninety days for hospitalization and treatment at the
Retreat.  M.D. remained at the Retreat, subject to the involuntary treatment
order, until she was released two months later.  After her release, she
returned to Connecticut and continued out-patient treatment without further
hospitalization. 

 

M.D. appeals the family court's involuntary treatment order.(FN1)  She
argues that (1) the family court violated the Mental Health Act, 18 V.S.A.
 7101-9317, by ordering involuntary treatment when voluntary treatment
was possible, and (2) the family court erred as a matter of law in
determining that only patients subject to an involuntary treatment order may
be transferred by means of the Compact.  The Commissioner maintains that
voluntary treatment was not possible because only involuntary patients may be
transferred under the Compact. 

  The crucial issue in this case is whether the Commissioner had the
authority to transfer M.D. to another facility without a commitment order. 
Any transfer of a nonresident patient to an out-of-state facility is governed
by the Compact.  18 V.S.A.  7902.  The purpose of the Compact is "to
provide the necessary legal basis for the institutionalization or other
appropriate care and treatment of the mentally ill and mentally retarded
under a system that recognizes the paramount importance of patient welfare." 
Id.  9001.  The Compact administrator for each state is responsible for
coordinating any transfers to or from that state.  Id.  9010.  In Vermont,
the Commissioner is the designated Compact administrator.  Id.  9051. 

  The Compact does not distinguish between voluntary and involuntary patients
in the care and custody of the state in authorizing a transfer between
states.  The transfer provision of the Compact states: 

            The duly accredited officers of any state party to this
            compact, upon the establishment of their authority and the
            identity of the patient, shall be permitted to transport any
            patient being moved pursuant to this compact through any and
            all states party to this compact, without interference. 

Id.  9006.  This provision contains no language indicating that a patient
must be involuntary to be transferred.  The transfer provision's only
requirement is that a state must establish its authority over the patient. 
We conclude that the state can satisfy this requirement for any patient in
the care and custody of the state. 

 

     In Vermont, patients in the care and custody of the state may be either
voluntary or involuntary.  The statute indicates a strong preference for
voluntary treatment whenever feasible. Id.  7703(a) ("Involuntary treatment
shall be utilized only if voluntary treatment is not possible."); 1977, No.
252 (Adj. Sess.),  1 ("Treatment on a voluntary basis shall be preferred to
involuntary treatment and in every case, the least restrictive conditions
consistent with adequate treatment shall be provided.").  Voluntary state
patients may be admitted according to the procedures outlined in  7503. 
Involuntary treatment requires a judicial procedure outlined in 
7611-7623.  Furthermore, state patients may be hospitalized in either the
Vermont State Hospital or the Retreat.  18 V.S.A.  7401(5) (the
Commissioner may "supervise the care and treatment of patients at the Retreat
in the same manner and with the same authority that he supervises patients at
the Vermont State Hospital"). 

     As a practical matter, the level of administrative control over a
voluntary patient is not less significant than control over involuntary
patients.  Upon admission, a voluntary patient must sign a consent form
stating that the patient understands that the treatment will involve
inpatient status.  18 V.S.A.  7503(b).  "A person admitted to a hospital
shall be subject to the control and treatment of the head of the hospital and
the board until his condition warrants his release, or until he has been
lawfully removed or otherwise discharged."  Id.  7502.  A voluntary patient
may not leave at will.  The patient must give written notice to the head of
the hospital. Id.  8010(a).  If the patient agreed at the time of admission
that release could be delayed, the head of the hospital, upon a determination
that the patient is a patient in need of further treatment, has four days to
file involuntary commitment proceedings.  Id.  8010(b).  During these
proceedings, the patient remains in the hospital.  Id.  Accordingly, both
voluntary and involuntary patients are in the State's custody and cannot
leave the hospital at will. 

     Thus, for purposes of transfer under the Compact, all the Commissioner
had to do was admit M.D. as a voluntary state patient while the transfer
details were being worked out with the receiving facility in Connecticut. 
Committing M.D. involuntarily to do exactly the same 

 

thing was wholly unnecessary because M.D. was not asserting a right to leave
the hospital. 

     Although the difference in status may not have been significant for the
Commissioner, it was of great significance to M.D.  It is beyond dispute that
involuntary commitment proceedings can result in negative social
consequences.  See In re W.H. 144 Vt. 595, 597, 481 A.2d 22, 24 (1984)
(negative social consequences may result from involuntary commitment
proceedings); State v. Condrick, 144 Vt. 363, 364, 477 A.2d 632, 633 (1984)
(collateral consequences of being found mentally ill include legal
disabilities and social stigmatization).  On the other hand, the decision to
seek professional help voluntarily demonstrates recognition of the problem,
an important first step to recovery.  See O'Connor v. Donaldson, 422 U.S. 563, 579 (1975) (Burger, C.J., concurring) ("[T]he first step in effective
treatment is acknowledgment by the patient that he is suffering from an
abnormal condition."); In re Splett, 572 N.E.2d 883, 887 (Ill. 1991) ("[A]
patient who voluntarily undertakes therapy is more likely to be rehabilitated
than one who is involuntarily required to undergo treatment.").  Furthermore,
the preference for voluntary treatment encourages people who need
professional help to seek assistance.  See In re W.H. 144 Vt. at 599, 481
A.2d at ___ ("`Voluntary avenues must be explored before invoking the mandate
of involuntary commitment.  If commitment is always associated with force,
those who need help may be diverted from seeking assistance.'") (quoting In
re Harris, 654 P.2d 109, 115 (Wash. 1982)). 

     The policies of both Vermont's Mental Health Act and the Compact are
entirely consistent with this preference for recognizing the importance of a
patient's therapeutic status as a voluntary patient.  See 1977, No. 252 (Adj.
Sess.),  1 (amendment to Mental Health Act indicating that Vermont's policy
is to prefer voluntary treatment); 18 V.S.A.  9001 (Compact "recognizes the
paramount importance of patient welfare").  We hold that the Commissioner
may, in his discretion, transfer any patient in state custody under the
Compact, whether the patient's status is voluntary or involuntary.  Because
the family court erroneously interpreted the Compact, it failed to consider
adequately whether M.D. could continue as a voluntary state 

 

patient.  See 18 V.S.A.  7617(c) ("The court shall not order hospitalization
without a thorough consideration of available alternatives."). 

       Reversed. 



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                                Footnotes

FN1.  Although M.D. has been discharged, her case is not moot because of the
 stigma associated with involuntary commitment cases.  State v. Condrick, 144
 Vt. 363, 364, 477 A.2d 632, 633 (1984).