In re R.L.

IN_RE_RL.93-051; 163 Vt 168; 657 A.2d 180

[Filed 13-Jan-1995]

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. 93-051


In re R.L.                                   Supreme Court

                                             On Appeal from
                                             Waterbury Family Court

                                             December Term, 1993



Dean B. Pineles, J.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Janet Bull, Assistant
 Attorney General, Waterbury, for appellee Vermont Department of Mental Health
 and Mental Retardation 

Alexander Scherr and Bessie A. Weiss and Louise M. Pierson, Paralegals (On
 the Brief), Vermont Legal Aid, Waterbury, and Jeffrey A. Meyer of Shearman &
 Sterling, Washington, D.C., for appellant R.L. 

M. Jerome Diamond, Montpelier, for amici curiae American Civil Liberties
 Union (Vermont Chapter), Vermont Advocacy Network, Vermont Developmental
 Disabilities Council, and Vermont Protection and Advocacy, Inc. 


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


     GIBSON, J.     R.L. appeals the family court's involuntary
hospitalization order and its denial of his request for an order directing
the Vermont State Hospital (VSH) to accept him as a voluntary patient.  R.L.
claims that 18 V.S.A.  7703(a) authorizes involuntary treatment only where
voluntary treatment is "not possible," and that, in his case, the State
failed to show that voluntary treatment was not possible.  The family court
denied R.L's request because it concluded that R.L. was required to exhaust
the grievance procedures available at VSH prior to seeking judicial review of
his request for voluntary admission.  Although we conclude that the family
court erred by invoking the exhaustion doctrine, we affirm on other grounds. 

 

     R.L. was admitted to VSH for emergency examination on August 10, 1992. 
After the State filed its petition for involuntary treatment, and prior to
the commitment hearing, R.L.'s counsel proposed a settlement, requesting that
VSH admit R.L. as a voluntary patient.  Counsel for the State referred the
matter to the hospital treatment team.  The hospital treatment team felt that
R.L. was not an appropriate person for admission as a voluntary patient, and
denied the request.  At the commitment hearing on August 21, 1992, R.L. asked
the court through counsel to order VSH to admit him as a voluntary patient. 
The court declined to do so.  It concluded that VSH had discretion to accept
patients for voluntary treatment, and found no abuse of discretion by VSH in
denying R.L. voluntary admission.  The court also found that R.L. was a
person in need of treatment and ordered him committed to VSH.(FN1)  R.L.
thereafter moved for reconsideration of his request for voluntary treatment. 
The court denied the motion, reasoning that R.L. was required to exhaust his
administrative remedies before judicial review of the hospital's decision was
available.   This appeal followed. 

                                  I.

     We first address the family court's ruling that the exhaustion doctrine
prevented it from reviewing the hospital's refusal to admit R.L. as a
voluntary patient.  Requests for voluntary admission to VSH must be directed
to the hospital, and must include the written consent of the applicant.  18
V.S.A.  7503(a), (b).  Admission on an involuntary basis for emergency
examination does not preclude application for voluntary status.  See id. 
7508(d)(1) (patient admitted pursuant to emergency examination must be
released within seventy-two hours unless, within that period, patient has
been accepted for voluntary admission).  Even after involuntary commitment
pursuant to court order, a patient may request a transfer to voluntary
status.  Id. 

 

 7709 ("At any time, a patient may, with the permission of the head of the
hospital, have his status changed from involuntary to voluntary . . . .")
(emphasis added). 

     A patient who is denied voluntary status by the treatment team may
request review of the decision by the Chief Executive Officer (CEO) of the
hospital, and if not satisfied by the CEO's decision, the patient may appeal
to the Commissioner of Mental Health and Mental Retardation. See Vermont
State Hospital, Policy and Procedure Manual F-8 (rev. Jan. 1993).  The manual
provides criteria for evaluating a patient's suitability for conditional
voluntary status.  Id. F-10. A patient has a right to representation and to
present argument to the CEO, or to any independent fact-finder appointed by
the CEO.  Id. F-8.  The decision of the CEO must be in writing within a
reasonable time, and this decision is appealable to the Commissioner, who
must also rule within a reasonable time.  Id. 

     The family court concluded that it was prohibited from reviewing the
hospital's denial of R.L.'s request for voluntary admission because R.L. had
not exhausted the hospital's grievance procedures.  As a general rule, where
an agency has jurisdiction to decide an issue, a court will not interfere
with the agency's decision unless and until all administrative remedies have
been invoked or exhausted.  See Morean-Usher v. Town of Whitingham, 158 Vt.
378, 381, 610 A.2d 1108, 1110 (1992).  After the agency renders its decision,
the court generally has the authority to review the decision: 

       The agency has jurisdiction over the matter and the court only
       monitors the agency's decisions.  The court's jurisdiction stems
       completely from the agency's jurisdiction and the court's role in
       that particular administrative program.  The role may be extremely
       limited according to the prescribed standard for review; indeed the
       court may be given no function in the particular administrative
       program where the action is unreviewable.

2 C. H. Koch, Jr., Administrative Law & Practice  10.26 (1985).  Under the
exhaustion doctrine, the reviewing court's jurisdiction over the agency
decision is appellate in nature.  By invoking the exhaustion doctrine in the
present case, the family court assumed, incorrectly, that 

 

it had appellate jurisdiction to review the actions of the Commissioner of
Mental Health and Mental Retardation. 

     Section 454 of Title 4 grants the family court exclusive jurisdiction
over a number of proceedings, including mental health proceedings "filed
pursuant to chapters 179, 181, and 185 of Title 18."  See 4 V.S.A.  454. 
It is a court of limited jurisdiction and its jurisdictional grant must be
strictly construed.  See Allen v. Allen, ___ Vt. ___, ___, 641 A.2d 1332,
1335 (1994) (Dooley, J., concurring); cf. In re M.C.P., 153 Vt. 275, 302, 571 A.2d 627, 642 (1989) (juvenile court exercises limited statutory powers and
does not have authority to employ particular procedure absent statutory
authorization); In re V.C., 146 Vt. 454, 457, 505 A.2d 1214, 1217 (1985)
(court may order commissioner of mental health to provide adequate treatment
to mentally ill but it has no authority to order commissioner to place VSH
patient in out-of-state facility; specific means of complying with law
requiring adequate treatment are within commissioner's special expertise). 
Although the court has "all of the equitable and other powers of the superior
court as to civil matters within its jurisdiction," 4 V.S.A.  453(a), the
jurisdictional grant does not specify any general appellate jurisdiction. 
Thus, the family court's jurisdiction is markedly different from that of the
superior court, which has "appellate jurisdiction of causes, civil and
criminal, appealable to the court."  4 V.S.A.  113.  The family court's
only appellate jurisdiction authorized by statute is over decisions from the
family court magistrate.  4 V.S.A.  465. 

     Further, Title 18 does not provide for appeals to the family court from
any administrative decision regarding mentally ill patients.  There are,
however, routes of appeal to the superior court from any decision of the
board of mental health, 18 V.S.A.  7112, and for any decision of the
commissioner "relating to the charge for the care and treatment of a
patient."  18 V.S.A.  8111; see also id.  8837 (superior court has
jurisdiction to enforce  8835 & 8836 after exhausting administrative
remedies).   We conclude that the family court lacks appellate 

 

jurisdiction to review administrative decisions and therefore erred by
invoking the doctrine of exhaustion in the present case. 

                                  II.

     The family court was correct, however, in examining the possibility of
voluntary treatment for R.L. prior to its decision on reconsideration. 
Although a person seeking treatment at VSH on a voluntary basis must direct a
written request to the hospital, 18 V.S.A.  7503 (a), (b),  7703(a)
provides that involuntary treatment "shall be utilized only if voluntary
treatment is not possible."  (Emphasis added.)  The family court may enter an
involuntary treatment order if it finds that, at the time of the petition and
the hearing, the proposed patient suffers from a mental illness and, as a
result of that illness, poses a danger of harm to himself or others.  18
V.S.A.  7617(b) & 7101(17).  The State must prove that involuntary
treatment is necessary by clear and convincing evidence.  18 V.S.A. 
7616(b).  Prior to ordering any course of involuntary treatment, the family
court must examine appropriate alternatives to ensure that the patient
receives treatment in the least restrictive manner.  Id.  7617(c).  In this
case, R.L. sought commitment as a voluntary patient.  Failure by the court to
consider alternatives fairly presented by the record renders an involuntary
hospitalization order invalid.  In re R.A., 146 Vt. 289, 291, 501 A.2d 743,
744 (1985). 

     We have applied  7617(c)'s least-restrictive-alternative requirement
to involuntary psychiatric examination orders pursuant to 18 V.S.A.  7614. 
See In re W.H., 144 Vt. 595, 598, 481 A.2d 22, 25 (1984).  In so doing, we
require the court to examine voluntary alternatives first before resorting to
an involuntary order.  Id. at 599, 481 A.2d  at 25.  We recognize that
involuntary treatment for mental illness is "`a massive curtailment of
liberty,'" often resulting in social stigmatization.  Id. at 597, 481 A.2d  at
24 (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972)); see also In re M.D.,
No. 94-16, slip op. at 5 (Vt. Dec. 30, 1994) (difference in status is of
"great significance" to patient; involuntary commitment proceedings can
result in negative social consequences).  Additionally, we have noted that
"`[t]he best 

 

interests of the mentally ill lie more often than not in treatment that does
not involve commitment.  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.'" 
In re W.H., 144 Vt. at 597, 481 A.2d  at 25 (quoting In re Harris, 654 P.2d 109, 115 (Wash. 1982)). 

     The reasoning that grounded our decision in W.H. applies with equal
force to civil commitment proceedings pursuant to  7617.  Indeed, the
Legislature has mandated that involuntary treatment be a last resort; the
State is prohibited from using involuntary treatment where voluntary
treatment is possible.  See 18 V.S.A.  7703(a); see also 1977, No. 252
(Adj. Sess.),  1 (setting forth state policy: "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.").  The family court's oversight role under Title 18 requires it to
ensure that the State follow this legislative mandate.  Cf. In re Harris, 654 P.2d  at 115 ("The potential curtailment of liberty requires the intervention
of an impartial third party to ensure . . . that sufficient investigation has
occurred, and that commitment is the least restrictive alternative.  These
are uniquely judicial concerns that will ensure the system is not abused.").
The family court must make certain that a patient is not subject to an
involuntary treatment order in those cases where voluntary treatment is
feasible. 

     Therefore, we hold that once the patient puts in issue his request for
voluntary treatment, whether as a residential or as a nonresidential patient,
the State must show by clear and convincing evidence that voluntary treatment
is not feasible before the family court may enter an order for involuntary
treatment.  Cf. In re Commitment of an Alleged Mentally Disordered Person,
699 P.2d 1312, 1313 (Ariz. Ct. App. 1985) (requiring involuntary treatment
only where patient unwilling or unable to accept treatment voluntarily is
justified by medical efficacy of voluntary treatment and constitutional
concerns that arise when state compulsion not shown to be necessary); In re
Chorney, 825 P.2d 330, 335 (Wash. Ct. App. 1992) (where patient has put 

 

in issue voluntary treatment, state must show that patient has not in good
faith volunteered for treatment before court may order involuntary
treatment).  The State must carry this burden because it is the State that
"`must ultimately justify depriving a person of a protected liberty interest
by determining that good cause exists for the deprivation.'"  In re G.K., 147
Vt. at 178, 514 A.2d  at 1033 (quoting Doe v. Gallinot, 657 F.2d 1017, 1023
(9th Cir. 1981)). 

     We emphasize that the State's burden to show that voluntary treatment is
not feasible arises only after the proposed patient raises that issue.  Cf.
In re Chorney, 825 P.2d  at 335 (patient must first put good faith voluntary
status in issue before state must prove patient not a good faith voluntary
patient).  Among the factors the court may consider are the patient's
capacity to consent to voluntary treatment, the impact voluntary treatment
may have on the patient's treatment plan, and whether the patient would, in
fact, accept voluntary treatment.  See, e.g., In re Alleged Mentally
Disordered Person, 699 P.2d  at 1313 (state must show clearly and convincingly
that patient is unwilling or unable to accept voluntary treatment); In re
Chorney, 825 P.2d  at 335 (to qualify for voluntary status, proposed patient
must not only express willingness to follow procedures and treatment plan,
but must also have track record demonstrating that willingness). 

     In the present case, we uphold the involuntary hospitalization order
because the State sustained its burden to show that voluntary treatment of
R.L. was not possible.(FN2)  The State's primary witness was Dr. Munson, who
was treating R.L. pending the court's decision and who had treated R.L. in
the past.  Dr. Munson testified that voluntary treatment would lead to
instability and undermine R.L.'s treatment.  He further testified that R.L.
was too volatile and that he was not able to make a meaningful agreement to
be a voluntary patient.  In its findings, the court stated that R.L.'s mental
illness was such that it grossly impaired his judgment and his 

 

thought processes, and that R.L. was incapable of making reasonable
judgments.  In addition, the court found that there was no evidence that R.L.
would voluntarily accept community-based treatment and that there were no
less-restrictive alternatives presently available to meet his needs.  The
court's findings were based on clear and convincing evidence. 

     Although the court's findings and conclusions did not specifically focus
on whether voluntary treatment was possible, the record is clear that such
treatment was not feasible.  In addition to R.L.'s inability to make reasoned
judgments, calling into question his capacity to submit to voluntary
treatment, the success of R.L.'s treatment depended on an order for
involuntary treatment.  The findings and conclusions support the court's
order for involuntary hospitalization. 

     Affirmed.

                                   FOR THE COURT:



                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice




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                             Footnotes

FN1.    R.L. does not challenge the court's finding that he was in need of
 treatment at the time of his emergency examination or at the time of the
 commitment hearing.  See 18 V.S.A.  7617(b). 

FN2.  Because we conclude that the family court properly rejected R.L.'s request
 for voluntary treatment, we do not reach R.L.'s claim that the family court
 has authority to order VSH to admit a voluntary patient.