In re P.S.

Annotate this Case
In re P.S.  (96-208); 167 Vt. 63; 702 A.2d 98

[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. 96-208

In re P.S.                                   Supreme Court

                                             On Appeal from
                                             Washington Family Court

                                             January Term, 1997

Mary Miles Teachout, J.

       Michael Benvenuto, Vermont Legal Aid, Inc., Waterbury, for appellant

       Jeffrey L. Amestoy, Attorney General, Montpelier, Ira N. Morris and
  Jessica G. Porter, Assistant Attorneys General, and Marybeth McCaffrey,
  Special Assistant Attorney General, Waterbury, for appellee Department of
  Developmental and Mental Health Services

PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
          (Ret.), Specially Assigned

       DOOLEY, J.   P.S. appeals the Washington Family Court's decision to
  revoke her order of nonhospitalization, and enter a new order of
  hospitalization, based upon findings that she was not complying with the
  order and was a patient in need of further treatment.  The issues raised on
  appeal are (1) whether the family court's findings are supported by clear
  and convincing evidence, and (2) whether the applicable statutes, or (3)
  the Vermont or federal constitution, require a court to find that a patient
  is dangerous to herself or others at the time of revocation of an order of
  nonhospitalization.  We conclude that the issue regarding the family
  court's findings is moot; we affirm the trial court's application of the
  "patient in need of further treatment" standard in determining whether to
  rehospitalize P.S.

       P.S. was formerly a patient at the Vermont State Hospital and is
  mentally ill.  In April 1995, she was released from the hospital on an
  order of nonhospitalization pursuant to 18 V.S.A. § 7621(c).  The order
  provided for extensive supervision by the community mental


  health agency in the area in which P.S. went to reside.  She was required
  to take all medicine prescribed by her psychiatrist and to take it in the
  presence of agency staff if they so required. She was required to comply
  with her treatment plan and keep all appointments with her case manager. 
  Initially, she was required to live in a facility with twenty-four-hour
  supervision, but the agency could, and did, allow her to move to her
  personal condominium on August 15, 1995.

       The family court made the following finding about P.S.:

     She requires for this illness, both medication and frequent, regular
     contact with mental health professionals.  Her illness has a long
     history with a well established pattern in which she periodically
     stops taking her medication, decompensates to a serious degree,
     such that she requires hospitalization.  Her history establishes that
     in the early stages of decompensation she refuses medication,
     shows poor judgment, becomes angry and irritable.  Her history
     also shows that she tends to decompensate rapidly, which is
     characteristic of her particular form of mental illness.  She can do
     so within a period of two to four weeks.  Her history also shows
     that it takes quite a long time for her to respond to the resumption
     of medication and to get back on track after a period of

       On August 24, 1995 the Commissioner of Mental Health and Mental
  Retardation, acting on behalf of the State pursuant to 18 V.S.A. § 7621(d),
  notified the family court that P.S. was out of compliance with the court's
  order of nonhospitalization, and requested permission to rehospitalize P.S.
  due to her noncompliance.  At the hearing on the petition, the State
  produced evidence showing that P.S. had refused to take her medication in
  front of staff, was unable to keep all her medical appointments, and
  occasionally missed her day treatment program.  The court found that P.S.'s
  behavior violated the order of nonhospitalization and that

     [i]f she were to receive no treatment for her mental illness, at this
     time she would most certainly decompensate within a matter of
     days. . . .  And within a matter of a few days, she represents a
     danger to herself in that her judgment and mood are so seriously
     affected by her mental illness, that she'd be unable to provide for
     her daily needs.

  The court found P.S. to be a patient in need of further treatment and that
  hospitalization "is adequate and appropriate to her condition."  The court
  revoked the order of nonhospitalization


  and ordered P.S. to be hospitalized.

       P.S. filed a motion to reconsider the court's revocation order,
  arguing that the court incorrectly revoked her order of nonhospitalization
  on a finding of future dangerousness, rather than a finding of current
  dangerousness.  On March 28, 1996, the family court issued an opinion,
  affirming its decision to revoke the order of nonhospitalization and
  concluding that the appropriate standard for revocation is that of a
  patient in need of further treatment.  P.S. appeals the court's findings
  and the standard of dangerousness used at the revocation hearing.


       We must first determine whether the issues raised by P.S. are moot. 
  The general rule is that a case becomes moot when the issues presented are
  no longer "live" or the parties lack a legally cognizable interest in the
  outcome.  In re H.A., 148 Vt. 106, 108, 528 A.2d 756, 757 (1987).  The
  actual controversy must be present at all stages of review, not just when
  the case was filed.  See Doria v. University of Vermont, 156 Vt. 114, 117,
  589 A.2d 317, 319 (1991). At the time of argument to this Court, P.S. had
  been released under a new order of nonhospitalization and was living in the
  community.  Thus, the order she appeals no longer has any effect on her
  commitment status or residence.  As a result, the case is moot unless it
  fits within an exception to the mootness doctrine.

       This Court has recognized two exceptions to the mootness doctrine
  which might apply to all or part of this case.  First, a case is not moot
  when negative collateral consequences are likely to result from the action
  being reviewed.  See State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633
  (1984).  In the past, we have applied this exception to commitment cases
  due to the social stigmatization that remains after being involuntarily
  committed in a state facility.  Id. at 364, 477 A.2d  at 633; State v.
  O'Connell, 136 Vt. 43, 45, 383 A.2d 624, 625 (1978) (negative collateral
  consequences can apply in mental health commitment cases because "[t]he
  legal disabilities radiating from the label of mentally incompetent are
  myriad").  Second, a case is not moot when the underlying situation is
  capable of repetition, yet evades review. See State


  v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987).  This exception
  applies only if: "(1) the challenged action was in its duration too short
  to be fully litigated prior to its cessation or expiration, and (2) there
  was a reasonable expectation that the same complaining party would be
  subjected to the same action again."  Weinstein v. Bradford, 423 U.S. 147,
  149 (1975).

       Whether the trial court's findings are supported by clear and
  convincing evidence does not fall within either of the exceptions to
  mootness.  First, the exception for negative collateral consequences does
  not apply because P.S. has already been committed a number of times in the
  past.  In addition, the issue on appeal is the location of commitment, not
  the fact of commitment.  We do not believe that any additional collateral
  consequences hinge on the result of this appeal.  Cf. In re C.C., 150 Vt.
  112, 113, 549 A.2d 1058, 1059 (1988) (where patient concedes she is
  mentally ill, adverse collateral consequences from order of involuntary
  medication are "minimal"; dispute over order is mooted by State's statement
  that it would no longer enforce order); O'Connell, 136 Vt. at 45, 383 A.2d 
  at 625 (ruling that exception applies must be based on facts of case before
  court; fact that patient had been hospitalized on one prior occasion "does
  not necessarily vitiate the collateral consequences of the contested
  commitment"); In re M.A.C., 134 Vt. 522, 523, 365 A.2d 254, 255 (1976) (on
  record before court, mental health commitment case was moot).  Second, the
  exception for situations capable of repetition yet evading review does not
  apply because the court's findings were specific to August 1995; any future
  revocations of P.S.'s order of nonhospitalization will be based on new fact
  patterns. See State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370 (1993)
  (exception to mootness does not apply because repetition of fact pattern is

       The standard of dangerousness to be applied at revocation hearings
  does, however, fall within the exception for situations capable of
  repetition yet evading review.  Given P.S.'s past history, the general
  circumstances that gave rise to the revocation of P.S.'s nonhospitalization
  order are likely to occur again.  Furthermore, the parties continue to
  disagree on when the Commissioner may intervene and seek revocation of the
  nonhospitalization order, and what


  standard of dangerousness should apply at the revocation hearing.  We
  therefore conclude that the standard of dangerousness to be applied at
  revocation hearings of nonhospitalization orders is not a moot issue.  See
  Condrick, 144 Vt. at 364, 477 A.2d  at 633 (1984).


       P.S. contends that, under the Vermont mental health statutes, an order
  of nonhospitalization may not be revoked unless the Commissioner proves
  that a patient is dangerous to himself or others at the time of the
  revocation hearing.  In the terminology of the mental health statutes, the
  issue is whether the trial court must find that the patient is a "person in
  need of treatment" or a "patient in need of further treatment."  A "person
  in need of treatment" is defined as "a person who is suffering from mental
  illness and, as a result of that mental illness, his capacity to exercise
  self-control, judgment, or discretion in the conduct of his affairs and
  social relations is so lessened that he poses a danger of harm to himself
  or others." 18 V.S.A § 7101(17) (emphasis added).  A "patient in need of
  further treatment" is defined as "(A) A person in need of treatment, or (B)
  A patient who is receiving adequate treatment, and who, if such treatment
  is discontinued, presents a substantial probability 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) (emphasis added).

       To capture the essence of the difference, the parties have often
  referred to the former standard as one of present dangerousness and the
  latter standard as one of future dangerousness. P.S. argues that the
  present dangerousness standard must apply to this revocation proceeding;
  the Commissioner argues that the future dangerousness standard applies. 
  Although we understand the difference the parties are presenting, we stress
  that the real difference is in the effect, or anticipated effect, of
  treatment.  All standards attempt to predict future actions based on past
  conduct and necessarily look to future dangerousness.  The "person in need
  of treatment" standard assumes that there is no ongoing treatment to
  respond to the person's mental health condition.  The "patient in need of
  further treatment" standard applies to both a person in need


  of treatment as well as a patient who is already receiving adequate
  treatment; in the latter case, the statute looks to the effect of
  discontinuing treatment.

       P.S. contends that the plain language of the statute governing
  nonhospitalization orders mandates the "person in need of treatment"
  standard.  That statute provides:

  (d) If at any time during the period of nonhospitalization ordered
  under subsection (c) of this section, it comes to the attention of the
  court, either that the person is not complying with the order, or that the
  alternative treatment has not been adequate to meet the patient's treatment
  needs, the court may, after proper hearing:

  . . .

       (2) Enter a new order directing that the patient be hospitalized
       for an indeterminate period.

  18 V.S.A. § 7621(d).  P.S. argues that the term "proper hearing" in §
  7621(d) implies a hearing in which the court determines whether the
  respondent is a "person in need of treatment."

       In construing a statute, our objective is to implement the intent of
  the Legislature. Lemieux v. Tri-State Lotto Comm'n, 164 Vt. 110, 113, 666 A.2d 1170, 1173 (1995).  We look to the whole of the statute and every part
  of it, its subject matter, the effect and consequences, and the reason and
  spirit of the law.  Id.  Where a statute is unambiguous, we apply the plain
  meaning of the words chosen.  Id.

       We cannot say that the plain language of the statute supports P.S.'s
  argument.  The statutory language does not contain a specific standard of
  dangerousness, beyond proof that the patient violated the order of
  nonhospitalization and that hospitalization is appropriate.  In addition,
  the Legislature has clearly demonstrated that it knows how to specify a
  standard of dangerousness because it has included one in other subsections
  of the statutory section we are construing.  See 18 V.S.A. §§ 7621(b), (c).

       Thus, we must look at the whole of the statutory scheme in order to
  discern the legislative intent.  It is helpful to look first at how the two
  standards involving dangerousness are used in the rest of the mental health
  commitment scheme.  An application for involuntary


  commitment must be accompanied by a certificate of a licensed physician,
  prepared within five days of the filing of the petition, that the proposed
  patient is a "person in need of treatment," or by a statement that the
  proposed patient refuses to submit to an examination by a licensed
  physician.  Id. § 7612(e).  At the hearing, the State must prove by clear
  and convincing evidence that the person was a "person in need of treatment"
  at the time of emergency admission to the hospital or application and that
  the person is a "patient in need of further treatment" at the time of
  hearing.  Id. §§ 7616(b), 7617(b).  If the State meets its burden, the
  court can order that the patient be hospitalized or "undergo a program of
  treatment other than hospitalization."  Id. § 7617(b).  The initial
  treatment order has a duration of ninety days.  Id. §§ 7618(a), 7619.  It
  may be extended thereafter if the court finds that the patient is a
  "patient in need of further treatment."  Id. § 7621(b), (c).

       Although the statute requires the State to show a proposed patient is
  a "person in need of treatment" at the time of application for original
  commitment, no subsequent decision requires a showing of dangerousness. 
  The statutory structure assumes that treatment will reduce or eliminate the
  risk of harm from the patient's conduct.  See id. § 7617(e).  If the
  treatment is effective, a treated patient will not be dangerous.  As a
  result, subsequent decisions about how and where a patient will receive
  treatment involve predictions about the effect of discontinuing treatment,
  rather than dangerousness.

       In light of the statutory structure, we cannot hold that the words
  "proper hearing" in § 7621(d) require the State to prove that the
  respondent is a "person in need of treatment."  The Legislature intended
  that nonhospitalized patients receive treatment, and that decisions about
  the place of treatment be based on the predicted effect of that treatment. 
  It would be inconsistent to require a finding that a patient is a "person
  in need of treatment" to order hospitalization after a period of
  nonhospitalization, but to allow an order of indefinite hospitalization to
  be based only on a finding that the patient is "in need of further
  treatment."  Moreover, the effect of P.S.'s construction of the statute is
  to require the State to meet the requirements of a new commitment


  after the breach of the terms of a nonhospitalization order.  The order
  would actually be the equivalent of a discharge from commitment with no
  means of enforcing its terms.  We will not construe the statutes in such an
  irrational fashion.  See State v. Quinn, ___ Vt. ___, ___, 675 A.2d 1336,
  1338 (1996).

       We do not believe that our decision in In re R.A., 146 Vt. 289, 501 A.2d 743 (1985) requires a different result.  In R.A., we concluded that
  the State must provide "adequate and appropriate" treatment both at the
  original commitment and when it seeks to extend commitment indefinitely. 
  Id. at 290, 501 A.2d  at 743.  By extension, P.S. argues that the "person in
  need of treatment" standard applies to both the original commitment and to
  all later stages in the commitment proceedings, including the decision
  whether to revoke an order of nonhospitalization.  We disagree.  In R.A.,
  it was entirely consistent with the statutory scheme to hold that the
  State's obligation to provide adequate and appropriate treatment continued
  throughout the period of commitment, even though the statutory statement of
  that standard was contained only in a section governing the original
  commitment decision.  Indeed, it would have been irrational to hold that
  the State's obligation to provide treatment ended with the commitment of
  the patient.  Here, the use of a legal standard applicable to the original
  commitment decision in deciding whether to revoke an order of
  nonhospitalization is inconsistent with the statutory scheme and would
  produce an irrational result.

       We therefore hold that, to the extent that 18 V.S.A. § 7621(d)
  requires the State to show dangerousness to revoke a nonhospitalization
  order, it is sufficient that it prove that the patient is a "patient in
  need of further treatment" as defined in 18 V.S.A. § 7101(16).


       Even if not statutorily required, P.S. contends that her
  nonhospitalization order may not be revoked under the federal and state
  constitutions unless the State proves that she is a "person in need of
  treatment."  We hold that the federal and state constitutions do not
  require the State to prove that P.S. is "a person in need of treatment" in
  order for the court to revoke her order


  of nonhospitalization, and conclude that the "patient in need of further
  treatment" standard complies with due process of law.

       P.S.'s constitutional arguments rely primarily on the United States
  Supreme Court decision in O'Connor v. Donaldson, 422 U.S. 563 (1975) and
  the decision of this Court in G.T. v. Stone, 159 Vt. 607, 622 A.2d 491
  (1992).  O'Connor holds that a state may not confine mentally ill persons
  "involuntarily if they are dangerous to no one and can live safely in
  freedom."  422 U.S.  at 575.  As explained in Addington v. Texas, 441 U.S. 418, 426 (1979):

     The state has a legitimate interest under its parens patriae power
     in providing care to its citizens who are unable because of
     emotional disorders to care for themselves; the state also has
     authority under its police power to protect the community from the
     dangerous tendencies of some who are mentally ill. . . .  [T]he
     state has no interest in confining individuals involuntarily if they
     are not mentally ill or if they do not pose some danger to
     themselves or others.

  These limits apply not only at the time of original commitment but
  throughout the period of confinement.  See O'Connor, 422 U.S.  at 575;
  Foucha v. Louisiana, 504 U.S. 71, 77 (1992).

       In G.T. v. Stone, 159 Vt. at 611, 622 A.2d  at 493, this Court held
  that a patient committed to the Vermont State Hospital and conditionally
  discharged "has a liberty status that cannot be terminated without due
  process of law."  The constitutional ruling was necessary because, despite
  the similarity between the position of a patient under an order of
  nonhospitalization and a patient who has been conditionally discharged from
  the hospital, the Legislature had not provided for a prerevocation hearing
  for a conditionally discharged patient. We held that federal due process
  requires a hearing prior to recommitment "unless immediate recommitment is
  required because the person poses an imminent danger of harm to himself or
  another."  G.T., 159 Vt. at 613, 622 A.2d  at 494.  We reached the same
  result under the Vermont Constitution.

       P.S. argues that (1) following G.T., she has a due process right to a
  hearing before her order of nonhospitalization may be revoked, and (2) that
  O'Connor requires the court to apply


  a present dangerousness standard at the revocation hearing.  Although we
  agree with the first step of the argument, we do not accept the second
  step.  G.T. is a procedural due process decision that does not address
  substantive due process standards applicable to commitment or continued
  confinement of mental patients.  To the extent that the decision requires
  that hearings be based on a "person in need of treatment" standard, it is
  because the conditional discharge statute contains this standard.  As
  decided above, the statute governing revocation of nonhospitalization
  orders allows use of a "patient in need of further treatment" standard.

       We agree that the State is required to comply with O'Connor at all
  stages of the commitment process, including the revocation of an order of
  nonhospitalization.(FN1)  We do not agree that O'Connor prevents use of a
  "patient in need of further treatment" standard for revocation of an order
  of nonhospitalization.  Although O'Connor, and later decisions that have
  followed it, have stated the general proposition that mentally ill persons
  who are not in any sense dangerous to themselves or others may not be
  involuntarily confined, the Supreme Court has never created a
  constitutional definition of "dangerous."  Indeed, the Court in Addington
  acknowledged that "the substantive standards for civil commitment may vary
  from state to state." Addington, 441 U.S.  at 431.  Recently, in Kansas v.
  Hendricks, 65 U.S.L.W. 4564, 4568 (U.S. June 23, 1997), the Supreme Court
  reaffirmed this view, stating that it has "never required State
  legislatures to adopt any particular nomenclature in drafting civil
  commitment statutes."(FN2)

       In this context, dangerousness is an "amorphous concept" that is
  highly dependent on its application.  See Note, Involuntary Civil
  Commitment: The Dangerousness Standard and Its


  Problems, 63 N.C. L. Rev. 241, 246 (1984).  Many states have defined the
  concept with no more certainty and imminence than our "patient in need of
  further treatment" standard, and these definitions have generally been
  upheld by state and federal courts.  See Hendricks, 65 U.S.L.W. at 4568;
  Project Release v. Prevost, 722 F.2d 960, 971-74 (2d Cir. 1983); In re Pima
  County Mental Health, 817 P.2d 945, 946 (Ariz. Ct. App. 1991); People v.
  Taylor, 618 P.2d 1127, 1134 (Colo. 1980); In re Beverly, 342 So. 2d 481,
  486 (Fla. 1977); In re Albright, 836 P.2d 1, 6 (Kan. Ct. App. 1992); In re
  LaBelle, 728 P.2d 138, 143-46 (Wash. 1986).

       We signaled in In re L.R., 146 Vt. 17, 20-22, 497 A.2d 753, 755-57
  (1985), that we would view the concept of dangerousness flexibly in
  accordance with the circumstances before us.  In that case, we declined to
  adopt an overt act requirement, finding it was not a prerequisite to
  compliance with due process.  Id. at 21, 497 A.2d  at 756.  We upheld a
  determination that a patient was sufficiently dangerous to be a person in
  need of treatment on findings of decompensation very similar to those
  present here.  Id. at 22, 497 A.2d  at 757.

       We also emphasize that the State is using a "patient in need of
  further treatment standard" for a patient it has treated and for whom there
  is specific evidence of the effect of rejection of medication.  Under
  P.S.'s view of the constitutional requirements, the State has to wait until
  she actually becomes dangerous to intervene.  The result would be a
  "revolving door" syndrome characterized by recurring commitments,
  medication, rejection of medication, and crisis intervention.  See In re
  LaBelle, 728 P.2d  at 145; P.E. Van Horn, Revocation of Conditional Release
  in New York State: What Process is Due?, 27 Colum. J.L. & Soc. Probs. 523,
  523-24 (1994).  We see no constitutional barrier to using a predictive
  dangerousness standard where the patient is receiving adequate treatment,
  as the statute requires, and the State has evidence of the result of
  withdrawal of that treatment.

       Finally, we believe that the State must have adequate tools to enforce
  the conditions of the nonhospitalization order.  In some cases,
  alternatives to rehospitalization may be adequate and should be used.  See
  18 V.S.A. § 7621(d)(1) (on noncompliance with order, court may


  "[c]onsider other alternatives, modify its original order and direct the
  patient to undergo another program of alternative treatment"); In re W.H.,
  144 Vt. 595, 598, 481 A.2d 22, 25 (1984).  We do not believe, however, that
  due process deprives the State of the remedy of rehospitalization where
  appropriate and necessary.

       P.S. has specified no reason why the result should be different under
  the Vermont Constitution, and accordingly we have not considered separately
  claims based on that source.


                              FOR THE COURT:

                              Associate Justice


FN1.  P.S. confuses the procedural due process holding of G.T. v.
  Stone with the substantive due process holding of O'Connor.  The fact that
  we held in the  former case that the liberty interest of a conditionally
  discharged patient is sufficient to invoke procedural due process
  protections is irrelevant to the contours of any dangerousness requirement
  imposed by substantive due process.

FN2.  Although Kansas v. Hendricks involves a challenge to the
  definition of mental abnormality used in the Kansas Sexually Violent
  Predator Act, its reasoning is equally applicable to the definition of
  dangerousness.  Indeed, the Court characterized the standard of
  dangerousness in the Kansas Act as one of "future dangerousness."  65
  U.S.L.W. at 4567.