In re K.M.

In re K.M.  (93-340); 165 Vt 569; 678 A.2d 1263

[Opinion Filed 07-May-1996]

                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-340

                              APRIL TERM, 1996


In re K.M.                           }     APPEALED FROM:
                                     }
                                     }
                                     }     District Court of Vermont,
                                     }     Unit No. 4, Waterbury Circuit
                                     }
                                     }     DOCKET NO. 97-93-Wy-MH-AIT


       In the above-entitled cause, the Clerk will enter:

       K.M appeals the family court's involuntary hospitalization order.  K.M
  argues that the court erred in granting the involuntary commitment order
  without requiring the State to prove that voluntary treatment was not
  possible in his case.  We reverse and remand.

       In April 1993, K.M was admitted to the Vermont State Hospital for
  "emergency examination" pursuant to 18 V.S.A. § 7504.  He was diagnosed as
  suffering depression and a personality disorder.  The State filed an
  application for involuntary treatment with the family court.  A few days
  before the hearing on the State's application, K.M. submitted a written
  request to register as a "conditional voluntary" patient.  As a conditional
  voluntary patient, K.M. could have been required to give four-days' notice
  before leaving the hospital.  During that time, the State could seek
  involuntary admission of the patient if necessary.  See 18 V.S.A. § 8010.
  K.M.'s treatment team told him that he would not be accepted as a
  conditional voluntary patient, and K.M requested a grievance hearing before
  the executive director of the hospital.  The grievance hearing was held on
  May 6, 1993;(FN1) the family court hearing on the State's application for
  involuntary commitment was held the next day.

       Although K.M. raised the issue of voluntary treatment at the
  involuntary commitment hearing, the court refused to consider whether
  voluntary treatment was possible.  Instead, the court limited its decision
  to whether or not K.M. met the criteria for commitment. The court found
  that K.M was a threat to himself and others and ordered that he be
  committed.

       On appeal, K.M. points to our recent decision in In re R.L., ___ Vt.
  ___, 657 A.2d 180 (1995), where we emphasized that involuntary treatment
  must be considered a last resort for the treatment of the mentally ill and
  noted that 18 V.S.A. § 7703(a) prohibits the State from using involuntary
  treatment where voluntary treatment is possible.  Id. at ___, 657 A.2d  at
  184.  We held that "once [a] patient puts in issue his request for
  voluntary treatment . . . the State must show by clear and convincing
  evidence that voluntary treatment is not feasible before the family court
  may enter an order for involuntary treatment."  Id.  K.M. maintains that
  the family court should not have ordered his commitment because the State
  did not show by clear and convincing

 

  evidence that voluntary treatment was not possible.

       We first reject the State's argument that K.M. was required to raise
  the issue of voluntary treatment as an affirmative defense.  R.L. requires
  only that the patient "put[] in issue" a request for voluntary treatment,
  which K.M. did by filing such a request with hospital officials and raising
  the issue at the commitment hearing.  Id.  This was certainly enough to put
  the request in issue, and require the State to show that voluntary
  treatment was not possible.  Id.  In any event, "affirmative defense" is a
  misnomer, as the State has the burden of proof on the issue.


       K.M. repeatedly raised the issue of voluntary treatment at the
  commitment hearing, and pursued his request for a change to voluntary
  status through administrative procedures. Moreover, K.M.'s treating
  physician testified that K.M. was competent to make his own decisions, and
  was willing to take prescribed medications and meet with his therapist. 
  K.M.'s expert witness also testified that K.M. was competent to make the
  decision to accept treatment. Although the court made no findings on this
  issue, this evidence suggests that K.M. may have been able to make the
  decision to voluntarily accept treatment.  Cf. id. at ___, 657 A.2d  at 185
  (voluntary treatment not possible because R.L.'s mental illness grossly
  impaired his judgment and thought processes, to extent that R.L. was
  incapable of making reasoned judgments).

       The State asks this Court to find, based on the record below, that
  conditional voluntary status was not possible for K.M. because he posed a
  danger to himself and others.  Granting K.M. conditional voluntary status
  is not, however, tantamount to releasing K.M.  As we have already noted, as
  a conditional voluntary patient, K.M. could be required to give four-days'
  notice of his intent to leave the hospital.  18 V.S.A. § 8010.  If his
  treatment team disagreed with his decision, the State could seek an
  involuntary commitment order during that time.  See In re M.D., ___ Vt.
  ___, ____, 655 A.2d 723, 725 (1994) ("As a practical matter, the level of
  administrative control over a voluntary patient is not less significant
  than control over involuntary patients.")  

       Although we conclude that the State did not meet its burden in this
  case, we are reluctant to reverse the commitment order outright.  The
  family court refused to consider the feasibility of voluntary treatment,
  and made no findings on the issue.  Moreover, it appears from the record
  that the court excluded evidence from the State on the issue of conditional
  voluntary treatment.  We therefore remand the case to permit the State to
  introduce this evidence.

       Reversed and remanded for further proceedings not inconsistent with
  this opinion.




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                                  Footnotes



FN1.  Several days after the commitment hearing, the hospital director
  denied K.M.'s request to change his status to voluntary.  K.M appealed this
  decision to the Commissioner of the Department of Mental Health, who upheld
  the director's decision.