In re G.G.

• Citation: 165 A.3d 1075
• Decision Date: 03 February 2017
• Docket Number: No. 16–231,16–231
• Court: United States State Supreme Court of Vermont
• Parties: IN RE G.G.

165 A.3d 1075

IN RE G.G.

No. 16–231

Supreme Court of Vermont.

November Term, 2016

February 3, 2017

G.G., Pro Se, Berlin, Appellant.

Rebecca T. Plummer, Vermont Legal Aid, Inc., Montpelier, for Appellant.

William H. Sorrell, Attorney General, Bridget C. Asay, Solicitor General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Appellee State.

PRESENT: Reiber, C.J., Dooley, Robinson and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

EATON, J.

¶ 1. At the center of this appeal is the issue of whether mental health patients have a due process right to waive counsel and represent themselves in proceedings on continued treatment or involuntary medication. The patient in this case, G.G., appeals from the court's denial of requests by him and his counsel to let him represent himself in his mental-health proceedings and from the court's subsequent orders of continued treatment and involuntary medication. We hold that the Due Process Clause of the Fourteenth Amendment precludes G.G. from proceeding without representation in his involuntary medication and involuntary commitment hearings, given the State's exceedingly strong interest in an accurate determination on the merits of those hearings. Accordingly, we affirm the trial court's denial of G.G.'s motion to waive counsel and his attorney's motion to withdraw. Additionally, we affirm the decisions on the merits of G.G.'s continued treatment and involuntary medication orders.

¶ 2. G.G., the appellant, has been hospitalized at the Vermont Psychiatric Care Hospital (VPCH) since September 18, 2015, and has been subject to a sequence of renewed orders for involuntary medication since December 2015. On May 24, 2016, the State filed an application for G.G.'s continued treatment and hospitalization. On June 1, 2016, in light of the pending expiration of a ninety-day involuntary medication order dated March 4, 2016, the State filed an application seeking to involuntarily medicate G.G. with twenty milligrams of Prolixin

Decanoate (Prolixin ) by intramuscular injection every two weeks.¹ The family court consolidated the State's applications for continued treatment and involuntary medication and scheduled a hearing on June 8, 2016.

¶ 3. Prior to the hearing, G.G. filed a motion seeking to dismiss his attorney and proceed pro se, and his attorney simultaneously filed a motion to withdraw. The court informed G.G. of his right to counsel and "of the value of counsel in this highly technical arena" and "engaged in a colloquy similar to that employed in criminal cases to determine the propriety of [G.G.'s desired] waiver." Noting the "lack of controlling Vermont precedent" and taking account of another Vermont family court decision it called "persuasive," the court found that G.G.'s proffered waiver "was not knowing, intelligent and voluntary; and that [self-representation] was not in [G.G.'s] best interest." Additionally, because G.G. requested to represent himself shortly before the scheduled hearing, the court found that granting the request would have delayed the proceedings. The court therefore denied G.G.'s motion for self-representation and his attorney's motion to withdraw. Nevertheless, the court permitted G.G. to participate in cross-examination of the State's witnesses after his attorney concluded her examinations and allowed G.G. to make closing arguments.

¶ 4. Only two witnesses testified at the merits hearing: G.G. and his treating psychiatrist at the VPCH, Dr. Alisson Richards. The court adopted Dr. Richards's testimony as "fully credible" and found the following facts, based on her testimony, by the clear-and-convincing-evidence standard. G.G. has been diagnosed with "substantial mental illness—specifically, schizophrenia

." The symptoms of his illness include catatonia, sensitivity to physical contact, difficulty engaging with others, unilateral and rigid views that are not based in reality, and violent reactions to normal social situations. Because of his illness, G.G. has repeatedly been the subject of involuntary hospitalization orders, some of which followed "violent criminal behavior." G.G. "has little insight into his condition, does not accept that he had catatonia, does not believe any of his past hospitalizations were appropriate, and does not believe his condition has improved since his arrival at the VPCH."

¶ 5. The court found that G.G.'s schizophrenia

significantly impaired his capacity to exercise self-control, judgment, or discretion in the conduct of his affairs and social relations and that he therefore represented a danger and a potential danger to others. The court credited Dr. Richards's testimony regarding her own fear of G.G., the "great lengths" to which she went in avoiding areas of disagreement during therapy, and her opinion that G.G.'s illness caused him "to view reality in a distorted manner and to react with violence." For example, G.G admitted to a situation in which a VPCH nurse encouraged him to engage in more eye contact and he responded by grabbing her and slapping her face because, he later explained to Dr. Richards, "the nurse wanted physical contact, and she got it." Prior to his admission at the VPCH, G.G. acquired a machete, a stun gun, and pepper spray and told Dr. Richards that he was angry when his parents took those articles from him. The court also found that if G.G. were discharged, he would soon become a danger to himself, in part because he was refusing to take Prolixin, which controlled his malignant catatonia. Specifically, G.G.'s past catatonic episodes left him unable to speak or walk for hours at a time, causing muscle degeneration and rendering him incapable of caring for himself, and after one episode, G.G. suffered hypothermia from self-exposure to the elements.

¶ 6. Despite the danger that catatonia poses to G.G.'s wellbeing, he has been adamant that he does not wish to take Prolixin

because he "does not believe he needs it for any condition, does not believe it has improved his condition, [and] does not like how it makes him feel." Instead, G.G. has made it clear to Dr. Richards that he would, if released, take other medications that he has stockpiled but that have failed to control his symptoms in the past and resulted in his present hospitalization.

He maintains that he will not take Prolixin

if not subject to court order and has actively attempted to interfere with its administration at the VPCH. When the VPCH began using injectable Prolixin, G.G. squeezed his arm so hard that the nurse was unable to administer the shot effectively, and when he was taking daily oral doses of Prolixin, the administration of the medication caused him and the staff great anxiety and stress. Although Dr. Richards did not ask G.G. directly whether he would voluntarily take Prolixin while at the hospital, the court credited her opinion that she did not need to ask in light of G.G.'s "long-held antipathy to Prolixin and his clear plan to cease its use once released and free of court compulsion." Thus, the court concluded, G.G. would represent a danger to himself if discharged because of the risk that he would discontinue his medication and again suffer the effects of malignant catatonia.

¶ 7. Additionally, the court found that G.G. lacks insight into his own illness and is not competent to decide whether to take medication. G.G. denied having malignant catatonia

and denied that any of his physical ailments were related to his mental illness. The court credited Dr. Richards's testimony that "[G.G.]'s condition causes a distorted view of reality that skews his perception as to his condition and the need for appropriate medication," and renders him "unable to balance the need for medication against the possible risks." The court considered those potential risks—which include tardive dyskinesia, tremors, muscle rigidity, seizures, in rare cases neuroleptic malignant syndrome (NMS), and pain with injection—relative to the benefits of continued administration of Prolixin, and concluded that the benefits to G.G. outweighed the potential risks. Specifically, the court found that since being subjected to forced medication orders in December 2015, G.G. has improved significantly and that Prolixin has been the cause of his improved mental condition, but without Prolixin G.G.'s prognosis was not good and his condition would worsen. The court credited Prolixin with helping G.G. "emerge[ ] from his catatonic state" and begin to engage in social activities like Scrabble and karaoke and found that if G.G. remains on Prolixin, his symptoms may be managed and he may eventually be able to return to the community in a supervised setting. The court found that the alternative drugs that G.G. preferred were ineffective and that the risk of G.G. suffering Prolixin's most severe side effects could be mitigated and the less severe side effects effectively managed. Thus, the court concluded, there was no alternative effective treatment to Prolixin, and given G.G.'s inability to balance the benefits of Prolixin against its risks, he was not competent to decide whether to take the medication.

¶ 8. Based on these findings, the court determined that G.G. was "a patient in need of further treatment" under 18 V.S.A. § 7101(16)(A) and (B) and concluded that there was no less restrictive alternative than to hospitalize G.G. First, the court reasoned, "[G.G.] has little insight into his condition and would not voluntarily take the medication that has resulted in his improved condition." Second, "[G.G.] requires significant staff supervision to ensure that his violent proclivities are contained and controlled." Third, the court considered alternative placement for G.G.—specifically, the Middlesex Therapeutic Community Residence—but found that G.G. does not wish to go there. On the other hand, the court found that "[t]he VPCH provides appropriate services to treat [G.G.]'s condition. It can ensure that [he] is offered treatment in a safe environment...