In Re P.K. ( 2018 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2017-272
JANUARY TERM, 2018
In re P.K. } APPEALED FROM:
}
} Superior Court, Windham Unit,
} Family Division
}
}
} DOCKET NOS. 150-6-17 Wmmh &
180-7-17 Wmmh
Trial Judge: Katherine A. Hayes
In the above-entitled cause, the Clerk will enter:
Respondent P.K. appeals the court’s orders granting the State’s application for involuntary
treatment (hospitalization) and involuntary medication. On appeal, respondent argues: (1) that the
evidence does not support the court’s finding that she was a person in need of treatment at the time
of application, (2) that the evidence did not support the finding that she was a patient in need of
further treatment at the time of the hearing, (3) that the court shifted the State’s burden of proof
onto respondent, and (4) that the court erred in ordering involuntary medication where the State
had not met its burden of proof for involuntary treatment. The State argues that the order has
expired, and it has not sought further hospitalization, and therefore the matter is moot. We
conclude that an exception to mootness applies, and affirm.
The State filed a petition for involuntary treatment on June 21, 2017 and an application for
involuntary medication on July 18, 2017. The court consolidated the hospitalization and
medication cases, and held a hearing on July 21, 2017. The record demonstrates that on June 19,
2017, respondent was in the emergency department at the UVM Medical Center. Testimony was
presented by a hospital nurse, who treated respondent on June 19, a mental-health screener who
screened respondent on June 19, and a psychiatrist at the Brattleboro Retreat, who became
respondent’s treating psychiatrist after she was admitted to the Brattleboro Retreat on June 19.
The court made the following oral findings. Respondent has bipolar disorder, a serious
mental illness. She was in a significant manic phase of the illness and had disordered thoughts.
On the day she was admitted to UVM Medical Center, she exhibited an inability to exercise self-
control and her judgment and discretion were so lessened that she posed a danger of harm to
herself. She made threatening statements to the nurse and the mental-health screener. Further, she
was in a disorganized and confused mental state that made her unable to meet her own needs. At
the time of the hearing, she presented more calmly than when first admitted to the hospital, but
was still manic and had extremely disorganized thoughts. She continued to suffer from the same
mental illness and was unable to assess her own needs in a reasonable way. She denied having a
mental illness and the need for treatment. She made threats to other patients and staff, which
would put her at risk of harm.
Based on these facts, the court concluded that respondent was a person in need of treatment
at the time of admission and a patient in need of further treatment at the time of the hearing, and
that no less restrictive alternative treatment was available. The court granted the application for
involuntary treatment and ordered respondent be hospitalized for ninety days. The court also
granted the application for involuntary medication, finding that respondent was not competent to
make a decision regarding her own medication. Respondent appealed.
As an initial matter, we address the threshold question of whether the case is moot because
the orders on appeal expired after ninety days and therefore have no current effect on respondent.
See In re P.S., 167 Vt. 63, 67 (1997) (explaining case is moot when “the issues presented are no
longer live or the parties lack a legally cognizable interest in the outcome” (quotation omitted)).
Even a case that is moot will be reviewed if there are negative collateral consequences that might
attach or the “situation is capable of repetition, yet evades review.” Id. Here, the State argues that
there is no collateral consequence of the continued stigma of a mental-health diagnosis because
respondent does not challenge the existence of her mental illness. Cf. State v. J.S., 174 Vt. 619,
620 (2002) (mem.) (concluding that case was not moot because “the negative collateral
consequences of being initially adjudicated mentally ill and then involuntarily hospitalized may
continue to plague appellant with both legal disabilities and social stigmatization”). The State also
asserts that the situation is not capable of repetition because any future challenge to a
hospitalization order would be based on unique facts.
Respondent argues that negative collateral consequences are likely to result. She points to
the fact that under state law the hospitalization order must be reported to the National Instant
Criminal Background Check System and she will be precluded from possessing a firearm. 18
V.S.A. § 7617a; see 18 U.S.C. § 922(g)(4) (stating that it is unlawful for person, who has been
committed to “mental institution” to ship, possess, or receive firearm). She also argues that there
is lasting stigma from the finding of dangerousness and the need for involuntary treatment.
We conclude that given this is respondent’s first involuntary commitment, the resulting
consequence of prohibiting her from possessing a firearm is a sufficient collateral consequence to
preclude dismissal for mootness. See In re Walter R., 2004 ME 77, ¶ 11, 850 A.2d 346 (declining
to dismiss appeal from commitment order as moot due to collateral consequences including
prohibition against possessing firearm). Therefore, we turn to the substance of respondent’s
appeal.
On appeal, respondent argues that the State failed to meet its burden of proving by clear
and convincing evidence that she was a danger to herself or others at the time of admission or
application, as required by 18 V.S.A. § 7617(b).
To support an application for involuntary treatment, the State has the burden of
demonstrating by clear and convincing evidence that the respondent is a person in need of
treatment at the time of admission or application and a patient in need of further treatment at the
time of the hearing. See 18 V.S.A. § 7616(b) (setting burden of proof); id. § 7617(b) (explaining
circumstances when court may order hospitalization). The statute defines “a person in need of
treatment” as:
a person who has a mental illness and, as a result of that mental
illness, his or her capacity to exercise self-control, judgment, or
discretion in the conduct of his or her affairs and social relations is
so lessened that he or she poses a danger of harm to himself, to
herself, or to others.
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18 V.S.A. § 7101(17). The State may show a “danger of harm to others” by establishing, among
other things that “by his or her threats or actions he or she has placed others in reasonable fear of
physical harm to themselves.” Id. § 7101(17)(A)(ii).
Respondent argues that the evidence does not support the court’s finding by clear and
convincing evidence that at the time of admission or application, respondent was a person in need
of treatment because she presented a risk of harm to herself or others. This court gives deference
to the findings made by the trial court. In re N.H., 168 Vt. 508, 512-13 (1998) (“Even where the
standard of proof is clear and convincing evidence, we will uphold trial court findings as long as
there is substantial evidence to support them although they are contradicted by credible evidence.”
(quotation omitted)). It is for the trial court to assess the credibility of the witnesses and weigh the
evidence. Id. “The test on review is not whether this Court is persuaded that there was clear and
convincing evidence, but whether the factfinder could reasonably have concluded that the required
factual predicate was highly probable.” Id.Here, the evidence was sufficient to support the court’s finding that respondent was a
person in need of treatment at the time of admission and application. The emergency room nurse
testified that when respondent was admitted, staff had concerns that she presented a threat to safety;
respondent was agitated, respondent told the nurse she would hit her, and the nurse felt threatened
enough to move out of the room. The nurse also reported that respondent had stated earlier in the
day that she would kill everyone in the emergency room and would kill the psychiatrist.
Respondent argues that these were vague statements and would not put others in reasonable fear
of harm. Given the evidence that staff took the threats seriously, enacted appropriate responsive
protocols, and the nurse removed herself in response to respondent’s threat, the evidence was
sufficient to support the court’s finding that respondent was in need of treatment because she
presented a danger of harm to others. Therefore, we need not consider whether the evidence
supported the court’s finding that respondent posed a danger of harm to herself.
Respondent also contends that the evidence does not support the court’s finding that she
was a patient in need of further treatment, which is defined, in part, as “a person in need of
treatment.” 18 V.S.A. § 7101(16)(A). Respondent argues that the State did not demonstrate that
respondent was a person in need of treatment at the time of the hearing because there was no
evidence that she presented a risk of harm to others or herself.1 Respondent contends that the
threats and provocative behavior outlined by her psychiatrist were insufficient to demonstrate that
respondent made threats that would place others in reasonable fear of physical harm or that
demonstrated respondent was unable to look after her own needs.
As set forth above, a person in need of treatment is defined as someone who, due to mental
illness, is unable to exercise judgment to such a degree that she presents a danger of harm to others
or a danger of harm to herself. A danger of self-harm can be shown with evidence that, among
other things,
he or she has behaved in such a manner as to indicate that he or she
is unable, without supervision and the assistance of others, to satisfy
his or her need for nourishment, personal or medical care, shelter, or
1
A patient in need of further treatment can also mean “a patient who is receiving adequate
treatment, and who, if such treatment is discontinued, presents a substantial probability that in the
near future his or her condition will deteriorate and he or she will become a person in need of
treatment.” 18 V.S.A. § 7101(16)(B). The State concedes that it could not demonstrate this
because respondent was not receiving adequate treatment at the time of the hearing.
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self-protection and safety, so that it is probable that death,
substantial physical bodily injury, serious mental deterioration, or
serious physical debilitation or disease will ensue unless adequate
treatment is afforded.
Id. § 7101(17)(B)(ii).
The trial court found that respondent was a person in need of treatment at the time of the
hearing because due to her mental illness she was not able to assess her own needs in a reasonable
way, made threats to staff and others, her behavior put her at risk of harm from others, and her
obsessive behavior prevented her from adequately caring for herself. These findings are supported
by the testimony of P.K.’s psychiatrist that she was agitated, not sleeping well, underweight, was
refusing any kind of assistance, was “disinhibited” and was “antagonistic and provocative”
towards others to the point where another patient threatened violence against her. Further, that she
would quickly decompensate if released and be a greater risk of harm to herself. This is sufficient
to demonstrate that respondent was a person in need of treatment because without proper
supervision respondent would be unable to satisfy her need for nourishment or other self-care so
that “serious mental deterioration” would ensue.
We reject respondent’s argument that the court improperly shifted the burden onto her to
demonstrate that she could properly care for herself if discharged. The court did not require
respondent to make this affirmative showing. The State presented affirmative evidence upon
which the court relied to find that respondent presented a risk of harm to herself.
Because we conclude that the court’s decision regarding involuntary treatment was
supported by the evidence, there is no merit to respondent’s argument that the court lacked a basis
to reach the State’s application for involuntary medication.
Affirmed.
BY THE COURT:
Paul L. Reiber, Chief Justice
Marilyn S. Skoglund, Associate Justice
Harold E. Eaton, Jr., Associate Justice
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