In re G.G.

• Decision Date: 15 November 2019
• Docket Number: No. 19-002,19-002
• Court: Vermont Supreme Court
• Parties: IN RE G.G.

224 A.3d 494

IN RE G.G.

No. 19-002

Supreme Court of Vermont.

September Term, 2019

November 15, 2019

John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for Appellant.

Thomas J. Donovan, Jr., Attorney General, and Eleanor L.P. Spottswood, Assistant Attorney General, Montpelier, for Appellee State of Vermont.

Zachary Hozid and Patricia Shane, Student Intern, Disability Rights Vermont, Montpelier, for Amici Curiae Disability Rights Vermont and Vermont Psychiatric Survivors, Inc.

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

REIBER, C.J.

¶ 1. This is an appeal from an order of the family division permitting the State to involuntarily medicate patient G.G. Prior to being hospitalized, patient executed an advance directive indicating that he did not wish to be administered antipsychotic medications. The family division determined that patient lacked capacity to execute the advance directive and therefore his instructions did not control the involuntary medication proceeding. Patient claims that the family division lacked authority to invalidate the advance directive and its determination that he lacked capacity was not supported by substantial evidence. We hold that the family division had the authority to consider the validity of the advance directive in the context of an involuntary medication proceeding but agree that its decision lacked the required evidentiary support. We therefore reverse the decision and vacate the involuntary medication order.

¶ 2. The following facts are derived from the court's order and are not challenged on appeal. Patient is a thirty-four-year-old man who has been diagnosed with schizophrenia

. He was first diagnosed with the illness when he was twelve years old. His current hospitalization is the sixth time he has stayed at Brattleboro Retreat. He was previously hospitalized at the Retreat from early April to June 2017. Patient has a history of unpredictable violence and unprovoked aggression toward hospital and treatment facility staff, police, and others. Patient has also exhibited catatonia, or periods of immobility and inability to respond to others and the elements around him.

¶ 3. During his 2017 hospitalization at the Retreat, patient was administered Prolixin

Decanoate 12.5 mg pursuant to a court order. He continued to take Prolixin on an outpatient basis after his June 2017 discharge. During this period, he appropriately maintained his own apartment, was able to effectively engage in conversations with others, and obtained and held a job. According to one of his psychiatrists, when patient was not taking Prolixin he was withdrawn and appeared to be almost totally indifferent to his personal hygiene and physical well-being.

¶ 4. Prolixin

has a number of potential side effects including muscle stiffness, episodes of extreme muscular rigidity, Parkinson-like tremors, and a feeling of restlessness with a compulsion to stay in motion. The medications Cogentin and Ativan are usually effective in managing these side effects and alleviating the discomfort caused by Prolixin. One potential long-term side effect of Prolixin is tardive dyskinesia, or a set of involuntary movements that may remain after a person stops taking the medication.

¶ 5. In a statement patient wrote in July 2017, patient stated that Prolixin

altered his mood, negatively affected his memory and ability to think clearly, and caused physical discomfort including a need to move. His care providers did not observe patient to be suffering from any of the identified side effects of Prolixin.

¶ 6. On August 2, 2017, while he was living in the community, patient executed an advance directive for health care. In the document, he states: "Do not do the following, they will not help and may even make matters worse: ... Administer any psychiatric drugs, especially ‘antipsychotics/neuroleptics’ or ‘mood stabilizers.’ " Patient further stated, "I want no neuroleptics or antipsychotics under any circumstances. I want no psychiatric drugs, including mood stabilizers. I want no medications I do not desire at the time." He stated "I do not consent to or authorize my designated agent or others to allow any medication or treatment I decline [to be] administered or performed. I do not want any neuroleptics, antipsychotics, or mood stabilizers." He checked a box next to a paragraph stating "I am aware that the medication decisions I state in this document may result in longer hospital stays and may also result in an Application for Involuntary Treatment being filed or in my being involuntarily committed or treated. I have made my treatment decisions with full awareness of these and other possibilities." He prioritized the interventions he preferred in the following order: separation by distance, followed by seclusion, physical restraints, seclusion and physical restraints, with medication in pill, liquid, and injected form last. The advance directive was witnessed and signed by two individuals, one of whom is a registered nurse who testified at the involuntary medication hearing.

¶ 7. After patient stopped taking Prolixin

, his schizophrenic symptoms gradually worsened. In May 2018, while at the facility where he received outpatient services, he pushed a staff member off the porch and injured her. He was taken into custody for an emergency mental-health evaluation and involuntarily hospitalized at the Brattleboro Retreat. In June 2018, he was committed to the care and custody of the Commissioner of the Department of Mental Health.

¶ 8. In July 2018, the Commissioner applied for a court order authorizing the Department to involuntarily administer Prolixin and other medications to patient. The court appointed counsel for patient and a merits hearing was held over two days in September 2018.

¶ 9. The court issued a written decision granting the application for involuntary medication. The court concluded that there was clear and convincing evidence that patient lacked capacity to complete the advance directive and therefore the advance directive did not control the involuntary medication proceeding. The court found that the other statutory requirements for an order for involuntary medication were satisfied: patient was refusing to voluntarily accept prescribed antipsychotic medications while he was under the care of the Commissioner, he lacked the competence to refuse medication, his schizophrenic symptoms had continued to worsen, and alternative treatments had not been effective. It accordingly granted the petition. Patient appealed.

¶ 10. On appeal, patient first claims that the family division lacked authority to rule on the validity of the advance directive because only the probate division may invalidate an advance directive. The scope of the family division's authority is a question of statutory interpretation that we review without deference. See In re Willey, 2010 VT 93, ¶ 11, 189 Vt. 536, 14 A.3d 954 (mem.) (explaining that challenge to superior court's jurisdiction over settlement proceeds is question of law that this Court would review without deference). Our primary goal in interpreting a statute is to effectuate the intent of the Legislature. Id. We begin by looking at the plain language of the statute.

State v. Pecora, 2007 VT 41, ¶ 4, 181 Vt. 627, 928 A.2d 479 (mem.). When statutes deal with the same subject matter or have the same objective, we construe them together. Bd. of Trustees of Kellogg-Hubbard Library, Inc. v. Labor Relations Bd., 162 Vt. 571, 574, 649 A.2d 784, 786 (1994).

¶ 11. Chapter 231 of Title 18 governs advance directives for health-care decisions. In an advance directive, an adult may "direct the type of health care desired or not desired by the principal," including "specific treatments that the principal desires or rejects when being treated for a mental or physical condition or disability." 18 V.S.A. § 9702(a)(5). An advance directive may direct decisions regarding treatment of mental-health conditions. See id. § 9701(12) (defining health care as "any treatment, service, or procedure to maintain, diagnose, or treat an individual's physical or mental condition"). The statute permits a person to refuse medication and treatment, including life-sustaining treatment.¹ Id. § 9702(a)(7).

¶ 12. Section 9703 provides that "[a]n adult with capacity may execute an advance directive at any time." 18 V.S.A. § 9703(a). The advance directive must be dated, executed by the principal, and signed in the presence of two or more witnesses at least eighteen years of age "who shall sign and affirm that the principal appeared to understand the nature of the document and to be free from duress or undue influence at the time the advance directive was signed." Id. § 9703(b). A properly executed advance directive is presumed to be valid. Id. § 9717.

¶ 13. The statute provides a procedure for revoking an advance directive. Section 9718 states that a social worker or health-care provider may file a petition "in the Probate Division of the Superior Court." Id. § 9718(a). The petition must include a supporting affidavit and "may request ... that the advance directive be revoked on the grounds that the principal lacked capacity to understand the nature of the advance directive." Id. § 9718(b)(1).

¶ 14. G.G. argues that § 9718 provides the exclusive procedure for invalidating an advance directive for lack of capacity and that the family division therefore had no authority to revoke his advance directive in the involuntary medication proceeding. We disagree.

¶ 15. Our conclusion is based on the language of chapter 181 of Title 18, which governs judicial proceedings for involuntary treatment. That statute permits the Commissioner of the Department of Mental Health to file an application for involuntary medication of a person who is refusing to accept psychiatric medication. Id. § 7624(a). When, as here, the person is in the care and custody of the Commissioner, the application "shall...