In the Matter of Meddings ( 2019 )

In the Matter of Ronald Meddings, No. 2096, September Term 2018. Opinion by Wells, J.
ESTATES AND TRUSTS – GUARDIANSHIP – GUARDIANSHIP OF THE
PERSON – LESS RESTRICTIVE FORMS OF INTERVENTION
Ronald Meddings requested a bench trial after the Maryland Department of Health and
Mental Hygiene (“DHMH”) petitioned the circuit court for the appointment of a guardian
of his person. DHMH sought an order finding that Mr. Meddings was disabled and that
there was no less restrictive form of intervention other than a guardianship consistent with
his welfare and safety under Maryland Estates and Trusts Article § 13-705. Given Mr.
Meddings’ unrebutted diagnosis of schizophrenia, extremely violent behavior, and
unwillingness to take prescription medication to treat his psychosis, the court’s
appointment of a guardian was the least restrictive form of intervention that provided for
Mr. Meddings’ welfare and safety.
ESTATES AND TRUSTS – GUARDIANSHIP – GUARDIANSHIP OF THE
PERSON – LESS RESTRICTIVE FORMS OF INTERVENTION -- STANDARD
OF REVIEW
Ronald Meddings argues that the circuit court erred when it found that there was no less
restrictive form of intervention that was consistent with his welfare and safety under
Maryland Estates and Trusts Article § 13-705 other than the appointment of a guardian of
his person. In a bench trial such as this, we review the trial judge’s factual findings for
clear error.
Circuit Court for Howard County
Case No. C-13-FM-18-50
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2096
September Term, 2018
_____________________________________
IN THE MATTER OF RONALD MEDDINGS
_____________________________________
Friedman,
Beachley,
Wells,
JJ.
_____________________________________
Opinion by Wells, J.
_____________________________________
Filed: December 23, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-12-31 15:26-05:00
Suzanne C. Johnson, Clerk
The Circuit Court for Howard County granted Appellee, the Clifton T. Perkins
Hospital Center’s (“Perkins”) petition for a guardianship of the person for Appellant,
Ronald Meddings, a criminal defendant diagnosed with schizophrenia and atrial
fibrillation.1 Meddings has resided at Perkins since 2017 after he was found incompetent
to stand trial for assault. After a bench trial on Perkins’ petition, the court found that
Meddings was disabled and appointed Meddings’ brother, Fred Osborne, as his guardian.
Meddings filed a timely appeal and asks the following question: “Did the Trial Court
err in finding that no less restrictive form of intervention is available?”
For the reasons discussed below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Ronald Meddings, age 68, has had a long history of mental and physical health
problems. At some point during his life, Meddings was diagnosed with schizophrenia.
According to the testimony of his brother, Fred Osborne, Meddings has received at-home,
self-living, outpatient, and in-patient medical care since the 1970’s. In 2008, the circuit
court appointed a guardian to make decisions regarding Meddings’ finances and property.
In the Matter of Ronald L. Meddings, Circuit Court for Cecil County, Maryland, 07-D-08-
523.
1
Atrial fibrillation is defined as “an abnormal heart rhythm characterized by rapid and
irregular beating of the atria.” Heart Disease Other Related Conditions,
https://bit.ly/2q772d3, September 3, 2014.
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In 2017, while Meddings was being treated at a Veterans Administration Hospital
in Baltimore, he allegedly approached a nurse, grabbed her by the neck, and attempted to
choke her. As the nurse tried to defend herself, she and Meddings fell to the floor. Security
personnel had to forcibly remove Meddings from the nurse, but he continued to try to kick
her. As a result of this incident, the State charged Meddings with first and second-degree
assault. During that prosecution, the Department of Health and Mental Hygiene confirmed
that Meddings suffered from schizophrenia. The circuit court found Meddings
incompetent to stand trial and committed him to Perkins on August 7, 2017.
A. Issues that Led Perkins to File for Guardianship
A number of issues arose after Meddings was committed. First, Meddings refused
to take psychotropic medication or drugs prescribed to treat his atrial fibrillation. As a
result, Perkins resorted to the use of a Clinical Review Panel (“CRP”). A CRP is a group
of Perkins doctors and other medical professionals who convene at 90-day intervals to
review and approve Meddings’ anti-psychotic medicine. Once the panel approves the
medication, and if Meddings refuses to take it, Perkins staff may forcibly administer it to
him. From the time Meddings arrived at Perkins in August 2017 until April 2018, when
Perkins filed for guardianship, a CRP had to be convened three times. On each occasion,
the CRP determined that Meddings’ psychotropic medications, Squetiapine,
Oxcarbazepine, and Benztropine, were appropriate. Meddings was involuntarily
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medicated based on the panel’s approval. Even after taking these drugs, Meddings
remained actively psychotic.
Second, according to the testimony of Meddings’ doctors, treatment of Meddings’
atrial fibrillation is not subject to the CRP. Meddings was prescribed the drug Metoprolol
to treat his heart problem, but he refused to take it. With his atrial fibrillation untreated,
according to his doctors, Meddings risks having a heart attack or stroke. Meddings’ doctors
fear if he had either a stroke or heart attack, he will need additional medical treatment, in
which case the CRP would be ineffective as the CRP may be used only to treat Meddings’
mental health issues.
Third, Meddings did not have an advance medical directive. This fact complicated
the range of options available to Perkins should Meddings need somatic medical treatment,
since Meddings never made known his intentions for extraordinary medical intervention
should he be physically incapacitated and in need of such care. As there was no way to
force Meddings to treat his coronary problems via the CRP, the risk that he would need
some sort of somatic intervention increased.
To address these on-going concerns, on April 20, 2018, Perkins filed a petition in
the Circuit Court for Howard County seeking the appointment of a guardian for Meddings’
person. As Meddings did not have the funds to hire his own attorney, the court appointed
counsel for him. On May 31, 2018, the court named the Howard County Office of Aging
as Meddings’ temporary guardian, specifically to approve administration of somatic
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medication. After contacting Fred Osborne, Meddings’ brother, Perkins amended the
guardianship petition and added Osborne an interested party to the proceedings.
B. Summary of Trial Testimony
On August 5, 2018, the court, sitting without a jury, heard testimony on Perkins’
petition for guardianship. At trial, Meddings’ psychiatrist at Perkins, Dr. Htwe, testified
that Meddings’ prior diagnoses of schizophrenia and atrial fibrillation were accurate.
According to Dr. Htwe, Meddings suffers from “psychosis, paranoia, hearing voices,” and
delusions. As a result, Meddings is often irritable and can frequently be heard yelling and
screaming.
According to Dr. Htwe, Meddings has had several violent outbursts that placed him
or others at risk of physical harm while at Perkins. For example, Dr. Htwe recounted that
on one occasion Meddings attempted to jump over the nurse’s station and tried to attack a
nurse. On a different occasion, Meddings threw his glasses over the nurse’s station. At
times, Meddings has thrown shoes at Dr. Htwe. On another occasion, Meddings assaulted
a Perkins security guard. During yet another episode, Meddings was so violent that he
required five restraints to contain him.
Regarding Meddings’ heart problems, Dr. Htwe testified that because of his atrial
fibrillation, a clot could form on Meddings’ heart. If this were to happen, Dr. Htwe feared
that Meddings might suffer “a stroke, heart attack, and lead[] to. . . losing[] the limbs for
instance causing gangrene.” Additionally, the doctors are unsure whether Meddings may
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also suffer from a “seizure disorder, chronic COPD, [and/or] chronic obstructive lung
disease.” According to Dr. Htwe, Meddings needs to see a heart specialist to treat his atrial
fibrillation and any other cardiovascular issues. Meddings was prescribed the drug
Metoprolol for atrial fibrillation. Dr. Htwe noted that, “95 percent of the time, he’s not
taking it. Lately he is not taking it.” Specifically, Dr. Htwe noted that Meddings did not
take the Metoprolol in July or August of 2018.
Dr. Htwe testified that Meddings does not understand the diagnosis for
schizophrenia nor for atrial fibrillation. In Dr. Htwe’s view, Meddings has no ability to
“understand, make, and communicate decisions with respect to his health care.” Meddings
refuses to voluntarily take medication, which Dr. Htwe believes to be a result of the
schizophrenia. Further, Dr. Htwe noted that Meddings has no healthcare advance directive
on file because “he is unable to do it and understand the concept of it. So [Perkins] couldn’t
do it” and Meddings does not have the ability to complete one at present. In fact, Perkins
never attempted to ask Meddings to sign one because “it’s very, very difficult to engage
him. Let alone the advance directive involves quite a bit of understanding.”
Dr. Htwe opined that the CRP is not an effective long-term treatment plan for
Meddings. In addition to the CRP not being able to approve somatic medications, Dr. Htwe
noted that the CRP is by necessity an adversarial process where he, as Meddings’ doctor,
is pitted against him. According to Dr. Htwe, the CRP “has already affected the . . .
relationship between me and him.” Further, according to Dr. Htwe, the CRP is time-limited
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in that the period for which involuntary medication is approved is only ninety (90) days.
In Dr. Htwe’s opinion, the CRP is an unstable procedure because a medication approval
could lapse without vigilant monitoring, leaving Meddings without a necessary drug. Dr.
Htwe alluded to an instance in January 2018 when Meddings’ psychotropic medicines ran
out, the CRP could not be convened quickly, and Meddings “was really out of control.”
“So we learned the hard way this January.” Overall, Dr. Htwe felt that the CRP was
unreliable and bad for the doctor-patient relationship.
A second psychiatrist at Perkins, Dr. Samer Patel, who sees Meddings several times
per year, testified that he has tried to communicate with Meddings about the schizophrenia
diagnosis. According to Dr. Patel, Meddings’ disorganized thinking leads Meddings to
believe that he is not schizophrenic. In fact, Dr. Patel said Meddings, “believes he is being
held [at Perkins] against his will and that we are poisoning him with medications.” When
asked if Meddings was ever part of a conversation about taking medications after discharge
from Perkins, Dr. Patel responded: “When I spoke with [Meddings in mid-June 2018,] he
said he did not feel he needed to take medications, that it was poison, and that we were
holding him hostage and feeding him poison.” Dr. Patel also tried to discuss Meddings’
somatic problems with him, which was similarly unsuccessful.
Like Dr. Htwe, Dr. Patel’s testimony described episodes of Meddings’ aggressive
behavior, including an incident that occurred in May 2018, when Meddings “ran to the
bathroom and tried to unscrew a pipe from the sink. When staff inquired what he was going
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to do he said he was going to unscrew it to assault staff with it.” Staff brought in security
personnel who restrained him.
Dr. Patel opined that Meddings lacks the capacity to make his own health care
decisions and testified that he thought a guardianship would be the best alternative. “I
think he would need guardianship to be able to maintain his safety at this time.” Dr. Patel
specifically stated that the CRP has undermined Meddings’ relationship with Dr. Htwe, his
primary psychiatrist, because Dr. Htwe has had to testify against Meddings at the CRP
hearings, “upsetting” Meddings. Dr. Patel also noted that the CRP cannot address
Meddings’ somatic needs.
Fred Osborne, Meddings’ brother who put himself forward to be Meddings’
guardian, also testified. Osborne stated that his brother “needs medical attention whether
he wants it or not. He needs to be medicated, he needs to be under care.” After recounting
Meddings’ physical and mental decline over more than a dozen years, Osborne told the
court:
I am here for purposes of meds more than anything else. I know that right
now he’s not capable of performing or doing and living on his own, or even
in a controlled out-patient kind of scenario. It’s not there. I just want the
Court to understand that I am here for him. That’s it.
At the end of the testimony and counsels’ arguments the court recessed. The judge
later returned and said the following:
Thank you very much. Well, I accept the expert testimony that the defendant
has schizophrenia, thought disorder, psychosis, paranoia, not fully oriented
in time, month, year. Doesn’t understand his diagnosis, won’t take his meds.
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He is aggressive, throwing things, assaulting officers, yelling and screaming,
trying to choke a nurse at the nurse’s station, fighting with his peers. And he
also has the somatic issue of atrial fibrillation which could be a very serious
impediment to his health in terms of blood clots and strokes and heart attacks.
I do find by clear and convincing evidence that the respondent lacks
sufficient understanding or capacity to make or communicate responsible
decisions concerning his health care. And that because of his mental
disability, schizophrenia, no less-restrictive form of intervention is available
that is consistent with his welfare and safety.
And I would appoint, hearing no objection, I would appoint Mr. Fred
Osbourne to serve as the guardian of his person.
And, Counsel, would you submit an order consistent with that?2
Meddings, through counsel, subsequently filed this appeal.
STANDARD OF REVIEW
The parties do not agree on the appropriate standard of appellate review. Meddings
urges us to employ the least deferential standard, namely, de novo review. He argues that
the circuit court committed legal error in interpreting Maryland Code Annotated (1974,
2017 Repl. Vol.), Estates and Trusts Article (“E&T”) §13-705(b)(2),3 when it determined
2
While we reproduce the court’s ruling here in full and conclude, as will be discussed, that
it is an adequate basis on which to affirm, we gently and respectfully note that the better
practice would be for the court to fully articulate the factors on which the court bases its
decision. Doing so will avoid confusion and establish a clear record should a reviewing
court be required to search for potential error.
3
(b) A guardian of the person shall be appointed if the court determines from clear and
convincing evidence that:
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that there “was no less restrictive form of intervention available in Meddings’ case.”
Meddings specifically states in a footnote that clear error should not be the standard. “[T]he
Trial Court made a legal conclusion based on findings of fact; thus, the clearly erroneous
standard does not apply.”
In support of his position, Meddings relies on our holding in Simbaina v. Bunay,
221 Md. App. 440 (2015), a custody case concerning a “special immigrant juvenile” (SIJ).
The Circuit Court for Baltimore City denied mother’s request to amend a judgment of
absolute divorce to include factual findings that the child at the center of the parties’
custody dispute was an SIJ. Id. at 447. In taking up the appeal, we acknowledged that,
generally, we review the circuit court’s denial of a motion to alter or amend judgment using
the abuse of discretion standard. Id. at 448. But we concluded that when the circuit court,
sitting as a court of equity, has issued an order that involves an interpretation and
application of Maryland constitutional, statutory, or case law, our Court must determine
whether the trial court's conclusions are ‘legally correct’ under a de novo standard of
(1) A person lacks sufficient understanding or capacity to make or communicate
responsible personal decisions, including provisions for health care, food, clothing, or
shelter, because of any mental disability, disease, habitual drunkenness, or addiction to
drugs; and
(2) No less restrictive form of intervention is available that is consistent with the person’s
welfare and safety
E&T § 13-705(b) (1974, 2017 Repl. Vol.).
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review.” Simbaina, 221 Md. App. at 448 (quoting Schisler v. State, 394 Md. 519, 535
(2006)).
Meddings also favorably cites Himelstein v. Arrow Cab, 113 Md. App. 530 (1997),
aff’d., Arrow Cab v. Himelstein, 348 Md. 558 (1998), in which this Court was asked to
consider whether a security interest held by the Maryland Motor Vehicle Administration
was an asset that could be used to satisfy a claim against Arrow Cab for injuries a
passenger, Himelstein, sustained in an accident involving a cab. Id. at 533. The issue was
whether Arrow Cab, as a separate entity, could use the security interest to satisfy the
judgment, or whether the security interest was an asset of individual cab owners who were
members of the unincorporated association trading as “Arrow Cab.” Id. at 531-32. The
Circuit Court for Baltimore City found that the interest was held by the individual cab
owners and could not be used to satisfy Himelstein’s judgment. Id. at 534-35.
Before considering the merits of Himelstein’s appeal, we first had to determine the
appropriate standard of review. As the matter was tried without a jury, we determined that
Rule 8-131(c) mandated that we apply clear error to the circuit court’s factual
determinations. Himelstein, 113 Md. App. at 536. But, because the central issue was the
circuit court’s interpretation of the Maryland Self-Insurance regulation (COMAR
20.90.02.19 (as in effect in 1997)), we concluded that the de novo standard was appropriate.
Id. “Because the trial judge's interpretation of the statute is a question of law, our standard
of appellate review is whether the lower court was ‘legally correct.’” Id. (citation omitted).
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Perkins, on the other hand, urges us to employ the “clearly erroneous” standard. In
Perkins’ estimation, the circuit court did not engage in interpretation of E&T § 13-705(b),
but, rather, only applied the facts presented at trial to the statute. Perkins finds support for
its position in L.W. Wolfe Enters., Inc. v. Maryland Nat’l Golf, L.P., 165 Md. App. 339(2005) and Webb v. Nowak, 433 Md. 666 (2013).
L.W. Wolfe was a contractor who performed work for Maryland National Golf but
was not paid. 165 Md. App at 342. After a show cause hearing, Wolfe was granted an
order establishing an interlocutory lien against Maryland National Golf. Id. Later, after
trial, Wolfe was denied a mechanic’s lien against Maryland National Golf, and the court
terminated the interlocutory order. Id. Wolfe then appealed.
We determined the “clearly erroneous” standard was appropriate because the trial
court exclusively made factual determinations and applied the law, rather than interpreting
it.
[A]t the hearing, Judge Adams referred exclusively to the contents of exhibits
and testimony when discussing her finding that the work was repair, in
contrast to her discussion of whether paving work was lienable, in which she
did discuss precedent. The lower court therefore applied the law in this
matter—it did not interpret it. As such, the “clearly erroneous” standard is
indeed the correct one and we will use it here.
Id. at 345. It should be noted that a second issue, review of the circuit court’s determination
of the value of repairs, required a legal determination. Consequently, we engaged in an
independent appraisal of whether the circuit court’s decision was legally correct. Id.
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In Webb, the Webbs sued their neighbors, the Nowaks, alleging that the Nowaks
removed timber from Webbs’ property. 433 Md. at 669. The Webbs sought compensatory
and punitive damages, as well as damages under a common law theory of trespass. Id. The
Nowaks filed a counterclaim seeking a declaratory judgment that they, in fact, owned the
disputed property. Id. After a bench trial, the Circuit Court for Washington County entered
a judgment in favor of Nowaks. Id. The Webbs appealed.
Before addressing the merits, the Court of Appeals considered whether we were
correct in applying the clear error standard of review. Id. at 675. Before the Court of
Appeals, the Webbs argued that because the appeal concerned the interpretation of a deed,
a reviewing court should apply a de novo standard. Id. at 676. The Nowaks argued that a
boundary dispute, not the interpretation of a deed, was the issue on appeal. Therefore, in
the Nowaks’ view, we applied the proper standard, clear error. Id. The Court of Appeals
agreed with the Nowaks, holding:
We agree with Respondents’ [the Nowaks’] contention that the “clearly
erroneous” standard is the correct standard of appellate review for this case.
In Union United Methodist Church, Inc. v. Burton, 404 Md. 542, 556 (2008),
we held that “the ultimate determination by the circuit court of the proper
location of [a] disputed boundary is a question of fact, which we shall review
for clear error.” Further, according to Millar v. Bowie, 115 Md. App. 682,
688 (1997) “[i]t is clear that a decision of a trial judge, sitting without a jury,
that resolves a boundary line dispute, is not to be disturbed unless clearly
erroneous.”
Webb, 433 Md. at 676.
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In Meddings’ case, the circuit court conducted a bench trial to determine whether a
guardianship was appropriate. Accordingly, we look to Rule 8-131(c), which states in its
entirety:
(c) Action Tried Without a Jury.—When an action has been tried without a
jury, the appellate court will review the case on both the law and the
evidence. It will not set aside the judgment of the trial court on the evidence
unless clearly erroneous, and will give due regard to the opportunity of the
trial court to judge the credibility of the witnesses.
Md. Rule 8-131(c). Writing for this Court in Starke v. Starke, 134 Md. App. 663, 669
(2000), Judge Moylan made clear that “Rule 8–131(c) applies only to verdicts, conferring
on an appellate court the authority to review a verdict on the evidence.” Indeed, “no such
review of the sufficiency of the evidence was traditionally available in a court trial,
however, because a judge, in his capacity as a legal referee, was not required to make a
legal ruling before submitting the case to himself, in his capacity as a fact finder.” Id. As
has been noted, the Rule informs us that the circuit court’s factual determinations that form
the court’s verdict are subject to clear error review. Himelstein, 113 Md. App. at 536. “This
Court ‘will not set aside the judgment of the trial court on the evidence unless clearly
erroneous, and will give due regard to the opportunity of the trial court to judge the
credibility of the witnesses.’” L. W. Wolfe, 165 Md. App. at 343 (citations omitted). “If
there is any competent and material evidence to support the factual findings of the trial
court, those findings cannot be held to be clearly erroneous.” Id.-13-
Our research has found scant discussion of the appropriate standard of review in
adult guardianship cases. However, in one case, Mack v. Mack, 329 Md. 188, 191 (1993),
the Court of Appeals affirmed in part and reversed in part a circuit court’s decision
regarding the guardianship of Ronald Mack, an adult who was hospitalized in “a persistent
vegetative state.” Specifically, the Court of Appeals reviewed the circuit court’s decision
to appoint a temporary guardian before the court sorted out dueling petitions for
guardianship between Mack’s father and Mack’s wife. Id. 194-95. The circuit court also
ordered that life support could not be withdrawn, as Mack’s wife desired, because, in the
circuit court’s estimation, the evidence was unclear as to Mack’s intentions regarding such
measures when he was conscious. Id. at 195-96.
The majority, noting that the trial judge found the evidence conflicting, simply
stated that the circuit court’s factual findings were “not clearly erroneous.” Id. at 217. In
a concurring and dissenting opinion, Judge Chasanow, citing Rule 8-131(c) wrote: “The
majority fails to take into consideration [the] basic legal principle [that] when a trial judge
sits without a jury, an appellate court will not set aside the trial court’s judgment on the
evidence unless it was clearly erroneous.” Id. at 230.
We also observe that we review a circuit court’s factual findings for child custody
orders for clear error. In In Re Adoption/Guardianship No. 3598, 347 Md. 295, 311-12
(1997), the Court of Appeals applied the “clearly erroneous” standard when evaluating the
circuit court’s factual findings for a decree of adoption granted through a private adoption
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agreement, and questions were raised as to whether the adoption was in accord with the
Interstate Compact on the Placement of Children (ICPC). The Court of Appeals held
similarly in In re Adoption of Cadence B., 417 Md. 146 (2010), where the circuit court
determined that reunification was impossible in a Child In Need Of Assistance (CINA)
case, and proceeded to open adoption. In this instance, the Court of Appeals reviewed the
circuit court’s findings of fact using the clear error standard. Id. at 155-56.
We note that in Mack, when the Court of Appeals addressed whether the wife’s
Florida-issued appointment as her husband’s guardian was valid in Maryland under the
Full Faith and Credit clause of the U.S. Constitution, the Court noted that, “although
Maryland appellate courts have not spoken on jurisdiction in the guardianship context,
cases dealing with jurisdiction in child custody matters are analogous.” 329 Md. at 199.
From this review of case law, we confirm an established principle of appellate
review: a trial court’s factual findings will be reviewed for clear error. See In re Adoption
of Cadence B., 417 Md. at 155-56; In Re Adoption/Guardianship No. 3598, 347 Md. at
311-12; Wolfe, 165 Md. App. at 343; Himelstein, 113 Md. App. at 536. But a trial court’s
legal rulings are accorded no deference and we exercise our independent review to
determine whether the trial court was legally correct. See Simbaina, 221 Md. App. at 448;
Wolfe, 165 Md. App. at 345. The appropriate standard of review is determined by whether
the circuit court, in reaching its decision, applied the facts adduced at trial to a statute, or
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whether the decision was based on the interpretation of a statute. See Webb, 433 Md. at
676.
Further, we observe that guardianship proceedings, whether they involve minors or
adults, are equitable proceedings. The appointment of a guardian is a matter within the
court’s discretion.
[A] court of equity assumes jurisdiction in guardianship matters to protect
those who, because of illness or other disability, are unable to care for
themselves. In reality the court is the guardian; an individual who is given
that title is merely an agent or arm of that tribunal in carrying out its sacred
responsibility . . . . [A]ll the parties here should be reminded that appointment
to that position rests solely in the discretion of the equity court and the
administering of that office as it pertains to both the person and property of
the ward is subject to judicial control.
Kicherer v Kicherer, 285 Md. 114, 118-19 (1979).
We favor the analogy between adult and juvenile guardianship cases. We conclude
that in reviewing whether a circuit court properly decided to appoint a guardian for an
adult, we adopt a tri-partite and interrelated standard of review. Factual findings will be
reviewed for clear error, while purely legal determinations will be reviewed without
deference, unless the error be harmless. As to the ultimate conclusion of whether an adult
guardianship is appropriate, the circuit court’s decision will not be disturbed unless there
has been a clear abuse of discretion. See In re Adoption of Cadence B., 417 Md. at 155-
56; In Re Adoption/Guardianship No. 3598, 347 Md. at 311-12.
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DISCUSSION
I. The Parties’ Contentions
A. Meddings
Meddings argues that the trial court should have found there were less restrictive
alternatives to a guardianship. In his brief and at oral argument, Meddings asserted that
Perkins has three alternatives at its disposal that are less restrictive than a guardianship: (1)
the CRP, (2) a surrogate decision maker, and (3) an advance directive.
According to Meddings, pursuant to E&T § 13-705(b), at trial, Perkins had to prove
by clear and convincing evidence that Meddings “lack[ed] sufficient understanding or
capacity to make or communicate responsible decisions concerning his person,” and that
“no less restricted intervention” to guardianship existed. Citing Spengler v. Sears,
Robebuck & Co., 163 Md. App. 220, cert. denied, 389 Md. 126 (2005), Meddings notes
that we defined “clear and convincing” as meaning “‘highly probable,’ not ‘merely
probable.’” Id. at 247 (citation omitted). Meddings argues that a guardianship is the most
restrictive alternative in that it deprives him of “the right to make nearly all decisions.” In
short, Meddings argues that Perkins did not prove by clear and convincing evidence that a
guardianship was the least restrictive alternative.
1. The CRP
In Meddings’ view, one less restrictive alternative that the trial court rejected is the
CRP. Maryland Code Annotated (1991, 2018 Repl. Vol.), Health-General Article (“HG”)
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§ 10-708 provides the statutory authority for the CRP.4 Meddings claims that it would be
a less restrictive alternative to a guardianship and preferable because the CRP would
provide him with due process protections against arbitrary forced medication. Meddings
notes that Perkins may seek a CRP if Meddings refuses medication for 72 hours or more. 5
The CRP must convene within nine days.6 The treatment plan would be valid for a ninety
day period but may be renewed.7
According to Meddings, most importantly, the CRP affords him notice, the
opportunity to be present, request witnesses, have a lay advisor, and gives him the
opportunity to appeal the administrative law judge’s decision to the circuit court.8
Meddings notes in his brief that the CRP “allows for both continuity of care and protection
of due process rights.”
Meddings asserts that despite Perkins’ protests that the CRP harms the patient-
physician relationship, “guardianship can also be contentious and harm the doctor-patient
4
Specifically, HG § 10-708(b) provides:
(b) Medication may not be administered to an individual who refuses the medication,
except:
(1) In an emergency, on the order of a physician where the individual presents a danger to
the life or safety of the individual or others; or
(2) In a nonemergency, when the individual is hospitalized involuntarily or committed for
treatment by order of a court and the medication is approved by a panel under the
provisions of this section.
5
MD. CODE ANN., HEALTH-GEN. § 10-708(j).
6
MD. CODE ANN., HEALTH-GEN. § 10-708(n)(1).
7
MD. CODE ANN., HEALTH-GEN. § 10-708 (n)(2)(i).
8
MD. CODE ANN., HEALTH-GEN. § 10-708(d), (e), and (l).
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relationship,” because if a patient refuses treatment a doctor may seek consent “from other
sources.” Further, according to Meddings, even with guardianship, a patient may still be
non-compliant with taking prescribed medication. Further, according to Meddings, the
guardian might not be able to force compliance, as would be the case with a CRP.
2. Surrogate Decision-Makers
Meddings asserts that another less restrictive form of intervention would be a
surrogate decision-maker. Dr. Htwe testified that Meddings refuses to take his heart
medication. According to Meddings, while a guardian can approve a heart medication, the
guardian cannot force the ward to take the medication. The thrust of Meddings’ argument
is that if Perkins needs someone to approve Meddings’ heart medication, then a surrogate
decision-maker could perform that task, and a surrogate decision-maker would be a less
restrictive form of intervention than a guardianship.
3. Advance Directive
The other form of intervention Meddings claims as a less restrictive alternative to
guardianship is an advance healthcare directive. Meddings argues that Perkins did not
present him with an opportunity to sign an advance directive. He notes that Dr. Patel
testified in his physician’s certificate supporting the petition for guardianship that
Meddings was mentally unable to complete an advance directive, because of his
schizophrenia. Meddings argues that Dr. Patel, however, has not “presented [Meddings]
with any legal matters.” Meddings asserts that Perkins and the circuit court should have
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given him the opportunity to try to sign an advance directive before either concluded that
he could not understand the concept and benefits of an advance directive.
B. Perkins
Perkins argues that the trial court properly found by clear and convincing evidence
that there was not a less restrictive intervention available for Meddings’ safety and welfare,
except guardianship. Answering Meddings’ arguments, Perkins asserts that the issue isn’t
whether a less restrictive form of intervention exists, rather, the issue is “whether a less
restrictive alternative was available and consistent with Mr. Meddings’ own welfare and
safety needs.” Perkins insists that by removing the consideration for what is “available
which is consistent with his welfare and safety,” Meddings attempts to unreasonably
narrow the court’s inquiry to simply “a binary question” of whether alternatives to
guardianship existed.
In support of its position, Perkins asks us to consider Department of Health and
Mental Hygiene v. Dillman, 116 Md. App. 27 (1997), in which we held that the word
“available,” means “practically and actually available.” Id. at 36. William Dillman was
confined to the Rosewood Center, a Department of Health and Mental Hygiene-run
(DHMH) facility for individuals with developmental disabilities. Id. at 30. Dillman had
committed two different criminal offenses, which the State later dismissed, but Dillman
remained at Rosewood. Id. The question arose whether Dillman met the criteria for
continued confinement at Rosewood consistent with the notice and admission requirements
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found in the version of the code then in effect, HG § 7-503(a).9 Id. An administrative law
judge (ALJ) found that Dillman needed supervision. Id. DHMH thought that Dillman
would be a good candidate for a community-based facility, but it did not have the funds to
pay for such a placement. Id. at 31. As a result, the ALJ required Dillman to stay at
Rosewood. Id. at 32.
Dillman sought judicial review. He argued that he could reside in a less restrictive,
community-based facility, but DHMH refused to place him in the less restrictive residence
because it did not have the money to pay for it. Id. at 32-33.
We held that DHMH could consider whether funding was available when
determining the least restrictive facility in which to place an involuntarily committed
individual even though his behavior might suggest he was able to live in a less restrictive
environment. Id. at 39-40. In reaching that decision, we said that,
the legislature intended the term “available” within the meaning of H.G. § 7–
503(e)(1)(iii) and Title 7 to require a showing by clear and convincing
evidence that an individual's needs cannot be met in a less restrictive setting
that is practically and actually available. This interpretation necessarily
permits the ALJ to take financial considerations into account.
Id. at 40 (emphasis supplied). Perkins asks us to apply this same reasoning to E&T § 13-
705(b) and hold that the sentence “no less restrictive form of intervention is available that
9
Maryland Code Annotated (1986, 1991 Repl. Vol.), Health-General Article § 7-503. This
section was held unconstitutional in Reese v. Department of Health and Mental Hygiene,
177 Md. App. 102 (2007), where we held that a mentally challenged petitioner was denied
due process when she was not afforded a contested hearing when application to a State
residential center was denied.
-21-
is consistent with the person's welfare and safety” means, no less restrictive form of
intervention is practically and actually available that is consistent with the person's welfare
and safety.
For the same reasons that Doctors Htwe and Patel articulated in their trial testimony,
Perkins argues in its brief that the CRP, a surrogate decision-maker, and use of an advance
directive are not “practically available” alternatives in Meddings’ case because they are
inconsistent with his health and welfare. The CRP, according to Perkins, is an adversarial
proceeding detrimental to the patient-physician relationship. Further, in Perkins’
estimation, it is cumbersome and “unreliable,” in that renewal of a CRP is for three-month
intervals and should a patient such as Meddings run out of his psychotropic medicine, a
new panel cannot be readily re-convened. According to Perkins’ doctors, Meddings does
not believe he suffers from a mental illness and has such disorganized thinking that he
cannot understand the concept of an advance directive. Therefore, trying to get him to
adopt one would be a futile exercise. Finally, regarding a surrogate decision-maker,
consistent with HG § 5-605(d)(2), Perkins argues that a surrogate “may not authorize
treatment for a mental disorder.” Having heard and considered these alternatives at trial,
Perkins argues that the circuit court properly found by clear and convincing evidence that
a guardian was the least restrictive alternative for Meddings.
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II. ANALYSIS
We begin our analysis with E&T § 13-705(a) which states that “[o]n petition and
after any notice or hearing prescribed by law or the Maryland Rules, a court may appoint
a guardian of the person of a disabled person.”10 “Disabled person” is defined in E&T §
13-705(a) as an individual who “has been judged by a court to be unable to provide for the
person’s daily needs sufficiently to protect the person’s health or safety for reasons listed
in E&T § 13-705(b) of this title and … as a result of this inability requires a guardian of
the person.”11
A circuit court “may grant to a guardian of a person only those powers necessary to
provide for the demonstrated need of the disabled person.”12 The court has discretion in
the setting the decision-making powers of the guardian as well as the length of the
guardianship.13 In addition, the trial court can tailor the guardianship order to meet the
needs of the ward.14 The circuit court may appoint a guardian that has “the same rights,
powers, and duties that a parent has with respect to an unemancipated minor child;” “the
right to custody of the disabled person to establish the disabled person’s place of abode
10
MD. CODE ANN., EST. & TRUSTS § 13-705 (1974, 2019 Repl. Vol.)
11
MD. CODE ANN., EST. & TRUSTS § 13-101(f)(ii) (1974, 2019 Repl. Vol.).
12
MD. CODE ANN., EST. & TRUSTS § 13-708(a)(1) (1974, 2019 Repl. Vol).
13
MD. CODE ANN., EST. & TRUSTS § 13-708(a)(2).
14
MD. CODE ANN., EST. & TRUSTS § 13-708(b)
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within and without the State;” or “the power to give necessary consent or approval for:
medical or other professional care, counsel, treatment, or service.”15
In Meddings’ case, the record shows that Perkins filed a petition for guardianship
of Meddings’ person, he was served with notice, the court appointed counsel for him, and
he presented evidence at trial as to why a guardianship was not necessary. Neither side
disputes that the requirements of E&T § 13-708(a) were satisfied. Further, we note that
pursuant to E&T § 13-708(b), the court limited the guardian’s decision making powers to
“consent to necessary protective services and to consent to the disabled person’s placement
in a nursing home or other appropriate living arrangement” and “consent to medical or
other professional care, counsel, treatment, or service for the disabled person, including,
but not limited to, psychiatric care, medication, and treatment for Ronald Meddings,
including treatment expressly refused by Ronald Meddings.” The trial court did not limit
the duration of the guardianship pursuant to E&T § 13-708(a).
As previously noted, E&T § 13-708(b) is at the heart of the dispute. Interestingly,
neither party challenges the contention raised in the guardianship petition that Meddings
“lacks sufficient understanding or capacity to make or communicate responsible personal
decisions, including provisions for health care, food, clothing, or shelter, because of any
mental disability.” Nevertheless, Meddings argues that there are “less restrictive form[s]
of intervention … available that [are] consistent with [his] welfare or safety.” Among
15
MD. CODE ANN., EST. & TRUSTS § 13-708(b)(1)-(2), (9)(i).
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them, according to Meddings is the CRP, use of an advance healthcare directive, and a
surrogate healthcare decision maker.
A. Rejection of the Use of an Advance Directive Was Not Clear Error
As we see it, Meddings’ argument concerning the use of an advance directive is
without merit. Reviewing the statutory authority for the use of advance directives, we
observe that “[a]ny competent individual may, at any time, make a written or electronic
advance directive regarding the provision of health care to that individual.”16 “In the
absence of a validly executed or witnessed advance directive, any authentic expression
made by an individual while competent of the individual’s wishes regarding health care for
the individual shall be considered.” 17 Further, we note that HG § 5-602(b)(2) provides
that “any competent individual may, at any time … appoint[] an agent to make health care
decisions for the individual under the circumstances stated in the advance directive.”18
To be valid, written advance directives must be dated, signed, and must be witnessed
by two different people, while electronic advance directives are effective upon an
authentication of the signer.19 An advance directive can be made orally.20 An advance
directive becomes operable when two physicians certify in writing that the patient is
16
MD. CODE ANN., HEALTH-GEN. § 5-602(a)(1) (2008, 2019 Repl. Vol.).
17
MD. CODE ANN., HEALTH-GEN. § 5-602(a)(2).
18
MD. CODE ANN., HEALTH-GEN. § 5-602(b)(2).
19
MD. CODE ANN, HEALTH-GEN. § 5-602(c)(1), (3).
20
MD. CODE ANN., HEALTH-GEN. § 5-602(d).
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incompetent.21 Finally, we note that “[a]ny person authorized to make health care decisions
under this section shall base those decisions on the wishes of the patient.”22
The most significant element of a valid advance directive is that the maker be
competent to create it. The undisputed evidence adduced at trial is that Meddings is
mentally incompetent because he suffers from schizophrenia. Dr. Htwe, Meddings’
psychiatrist at Perkins, described Meddings as “floridly schizophrenic” and cannot
understand the concept of an advance directive. In his current state, Meddings has
repeatedly refused medication to treat his mental illness. Arguably, if Meddings had
executed an advance directive when competent, and later refused anti-psychotic and
somatic medications, Meddings’ agent could refuse both treatments as doing so would be
consistent with Meddings’ stated wishes. For these reasons, we cannot find that the circuit
court’s decision to reject the use of an advance directive was clear error.
B. Rejection of the Use of a Surrogate Decision Maker Was Not Clear Error
For similar reasons, we cannot determine that the circuit court’s rejection of the use
of a surrogate decision-maker was clear error either. Preliminarily, we note that a qualified
surrogate “may make decisions about health care for a person who has been certified to be
incapable of making an informed decision and who has not appointed a health care agent
21
MD. CODE ANN., HEALTH-GEN. § 5-602(e).
22
MD. CODE ANN., HEALTH-GEN. § 5-605(c)(1).
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in accordance with this subtitle or whose health care agent is unavailable.”23 “Any person
authorized to make health care decisions for another under this section shall base those
decisions on the wishes of the patient.”24 In our view, the use of a surrogate decision-
maker, of necessity, presupposes that the person designating the surrogate be competent to
do so. It is an uncontested fact that Meddings is mentally incompetent. Of additional
significance in this case, is that “[a] surrogate may not authorize: . . . treatment for a mental
disorder.”25 One of the chief reasons Perkins desired the appointment of a guardian was
to authorize treatment for Meddings’ somatic and mental health issues. A surrogate could
not accomplish the latter task. We do not perceive clear error in the court’s rejection of the
use of a surrogate decision-maker in Meddings’ case.
C. Rejection of the CRP Was Not Clear Error
Finally, we consider Meddings’ argument regarding the CRP. Meddings’ chief
argument in favor of the CRP is that it affords him due process or an opportunity to contest
forced medication. Prior to 1991, a previous version of HG § 10-708 authorized a form of
the CRP that did not consider or address the due process rights of an individual confined
to a state-run facility who refused medical treatment of a mental disorder. (See HG § 10-
23
MD. CODE ANN., HEALTH-GEN. § 5-605(a)(2) (1993, 2019 Repl. Vol.).
“Unavailable” in this sense means the doctor cannot determine if there is, who is, where
the healthcare agent is, or that the health care agent or surrogate decision maker does not
respond timely to a doctor’s requests for information about the patient’s wishes. MD.
CODE ANN., HEALTH-GEN. § 5-605(a)(1)(iii).
24
MD. CODE ANN., HEALTH-GEN. § 5-605(c)(1).
25
MD. CODE ANN., HEALTH-GEN. § 5-605(d)(2).
-27-
708, Chapter 480, Laws of Maryland 1984). Pursuant to the previous version of the statute,
a CRP could convene and authorize the forced medication of a person without notice.
Williams v. Wilzack, 319 Md. 485 (1990) raised a constitutional challenge to the statute.
The Court of Appeals, seeking guidance in federal precedent, specifically, in Washington
v. Harper, 494 U.S. 210 (1990), held that the original version of HG § 10–708 “did not
afford the requisite procedural due process protections to which [an individual] was
entitled.” Williams, 319 Md. at 509–10.
In 1991, the General Assembly passed H.B. 588, which repealed the prior statute
and replaced it with a version that still permitted the use of a CRP to consider whether to
forcibly medicate a mentally ill person confined to a state-run facility who refused to be
medicated, by notifying the person of the location, time, and date that the panel will
convene, to be present, ask questions, present witnesses, and ask the assistance of a lay-
advisor. In short, the 1991 version of HG § 10-708 provided an array of due process rights
previously not afforded a mentally ill patient confined to a state facility.
Under the current version of the statute, the determination to involuntarily medicate
a resident at a state-run facility may only be made if the notice requirements delineated in
-28-
HG § 10-708 (d)(1-2) 26 and (e)(1-3)27 are met. Afterward, the panel may approve the
administration of medication if:
(1) The medication is prescribed by a psychiatrist for the purpose of treating
the individual's mental disorder;
(2) The administration of medication represents a reasonable exercise of
professional judgment; and
(3) Without the medication, the individual is at substantial risk of continued
hospitalization because of:
26
(d)(1) The chief executive officer of the facility or the chief executive officer’s
designee shall give the individual and the lay advisor written notice at least 24 hours prior
to convening a panel.
(2) Except in an emergency under subsection (b)(1) of this section, medication or
medications being refused may not be administered to an individual prior to the decision
of the panel. MD. CODE ANN., HEALTH-GEN. § 10-708 (d)(1-2)
27
(e)(1) The notice under subsection (d)(1) of this section shall include the following
information:
(i) The date, time, and location that the panel will convene;
(ii) The purpose of the panel; and
(iii) A complete description of the rights of an individual under paragraph (2) of this
subsection.
(2) At a panel, an individual has the following rights:
(i) To attend the meeting of the panel, excluding the discussion conducted to arrive at a
decision;
(ii) To present information, including witnesses;
(iii) To ask questions of any person presenting information to the panel;
(iv) To request assistance from a lay advisor; and
(v) To be informed of:
1. The name, address, and telephone number of the lay advisor;
2. The individual’s diagnosis; and
3. An explanation of the clinical need for the medication or medications, including
potential side effects, and material risks and benefits of taking or refusing the medication.
(3) The chairperson of the panel may:
(i) Postpone or continue the panel for good cause, for a reasonable time; and
(ii) Take appropriate measures necessary to conduct the panel in an orderly manner.
-29-
(i) Remaining seriously mentally ill with no significant relief of the mental
illness symptoms that:
1. Cause the individual to be a danger to the individual or others while in
the hospital;
2. Resulted in the individual being committed to a hospital under this title
or Title 3 of the Criminal Procedure Article; or
3. Would cause the individual to be a danger to the individual or others if
released from the hospital;
(ii) Remaining seriously mentally ill for a significantly longer period of time
with the mental illness symptoms that:
1. Cause the individual to be a danger to the individual or to others while in
the hospital;
2. Resulted in the individual being committed to a hospital under this title
or Title 3 of the Criminal Procedure Article; or
3. Would cause the individual to be a danger to the individual or others if
released from the hospital; or
(iii) Relapsing into a condition in which the individual is unable to provide
for the individual's essential human needs of health or safety.
HG § 10-708(g). As previously noted, HG § 10-708(n)(1), mandates that the approval is
valid for a maximum of 90 days. And HG § 10-708(n)(2)(i) requires the CRP can meet
after the expiration of the 90 days to renew the approval.
The Court of Appeals has determined that HG § 10-708 is not unconstitutional on
its face. Allmond v. Department of Health and Mental Hygiene, 448 Md. 592 (2016).
However, in Allmond, the Court held that compliance with substantive due process rights
meant that authorization for involuntary medication may only be constitutionally carried
out when there exists an “overriding justification,” such as a need to render a pretrial
detainee competent for trial. Id. at 596.
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While Perkins’ use of the CRP provides Meddings with due process protections, its
regular use seemingly comes at a price, which, arguably in Meddings’ case, would not be
consistent with his long-term best interests. This may be so for the following reasons.
First, Meddings has consistently and adamantly refused to take not only his anti-psychotic
medication, but also his somatic medication. The CRP had been convened three times
during the first eight months that Meddings had been at Perkins, meaning that the CRP had
to be used every month Meddings was there.28 Even with these regular interventions
Meddings remains actively psychotic and a danger to himself and others. Doctors Htwe
and Patel recounted a half-dozen violent episodes where others faced risk of significant
injury at Meddings’ hands. The incidents at the nurses’ stations, particularly the incident
at the Baltimore V. A. Hospital, were extremely violent.
A parallel concern is that between the second and third renewals of the CRP, Perkins
could not form a new panel in time to renew Meddings’ psychotropic medications.
According to Dr. Htwe, Meddings went without medication for a few days and “he was
really out of control.” To paraphrase Dr. Htwe, the doctors at Perkins “learned the hard
way” that the CRP was not a reliable means to address Meddings’ adamant refusal to take
psychotropic medication.
Second, because the evidence at trial showed that Meddings will not willingly take
anti-psychotic medication, it seems certain that Perkins will have to employ the CRP
28
August 2017 to April 2018.
-31-
procedure throughout Meddings’ confinement there (or at another DHMH facility). At age
68, still “floridly psychotic,” and without “immediate plans to discharge him,” it is very
likely that Meddings will require routine 90-day CRP interventions for the foreseeable
future.
Third, Dr. Htwe testified that the use of the CRP undermines his relationship with
Meddings. Dr. Patel also testified that Dr. Htwe’s relationship with Meddings suffered as
a result of the adversarial nature of the CRP proceedings. If improving Meddings’ mental
health is a realistic goal, then it does not seem that the regular use of the CRP helps achieve
this. Indeed, based on the uncontradicted testimony of two psychiatrists, the habitual use
of the CRP seems to undermine the doctor-patient relationship by creating an ever-
widening fissure between doctor and patient.
Fourth, the use of the CRP does not address Meddings’ heart problems. Dr. Htwe
testified that without medical intervention, specifically a means to forcibly administer
medication to combat atrial fibrillation, Meddings risks having a heart attack or stroke,
either of which could be fatal. In addition to taking somatic medication, Dr. Htwe testified
that Meddings requires significant medical intervention including an electrocardiogram
and “a follow-up with a heart specialist.” The evidence adduced at trial revealed that the
CRP cannot help Meddings with any of these medical needs. We cannot find that the court
committed clear error in rejecting the long-term use of the CRP in favor of guardianship.
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Based on these considerations, we do not conclude the circuit court committed clear
error in any of its factual findings. The circuit court’s decision to appoint a guardian for
Meddings, finding that it was the least restrictive alternative for him, was within the court’s
sound discretion. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED.
APPELLANT TO PAY COSTS.
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