Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2010-478

APRIL TERM, 2011

In re B.M. } APPEALED FROM: } } Superior Court, Washington Unit, } Family Division } } DOCKET NOS. 291/292/293/300-

11-10 Wnmh

Trial Judge: Stephen B. Martin

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

B.M. appeals a family division order granting the S tate’s application for involuntary medication and continued treatment, and committing B.M. on an order of hospitalization. On appeal, B.M. argues that the court (1) erred in com mitting him without a finding that B.M. was a risk of danger to himself and the community, (2) er red in finding B.M. incompetent to choose not to be medicated, and (3) failed to consider rea sonable alternative placements to hospitalization. We affirm.

B.M. is a twenty-four-year-old man who suffers from paranoid schizophrenia. He was admitted to the Vermont State Hospital (VSH) on Nov ember 12, 2010 after being identified as a person in need of treatment pursuant to 18 V.S.A. § 7508(d). At the time, he was under the care of the Commissioner of Mental Health pursuant to an order of non-hospitalization, which allowed him to live in the community under the supe rvision of a team leader. The order included several conditions including that B.M. was to take all medication as prescribed, to follow his treatment plan, to not possess weapons and to not h ave contact with a certain individual. Several months prior to his admission, the State filed a no tice of noncompliance with the order, alleging that B.M. missed key appointments, refused medicati on, engaged in behavior that posed a threat to others, used marijuana, and had contact with a p rohibited individual.

After B.M. was admitted, the State filed an applica tion for involuntary treatment. The State also filed an application for continued treat ment. In addition, because B.M. was refusing to accept prescribed medications at the VSH, the State filed a petition for involuntary medication.

The court consolidated all of the matters into one hearing. At the hearing, the court heard testimony from B.M.’s treating psychiatrist, his te am leader, his social worker, and B.M.

Based on the evidence, the court found the followin g facts. B.M.’s schizophrenia is manifested by disorganized speech, hallucinations, and unusual behavior. He believes he can read other people’s minds through his eyes. He is paranoid and sometimes insists on carrying a bat and knife for protection. Prior to his involun tary hospitalization, he entered the emergency2

room apparently suffering from sinus pressure and r equested that holes be drilled into his head to

release fluid. The court found that B.M. had faile d to comply with his order of nonhospitalization as alleged. In particular, the cou rt found that B.M.’s “behavior . . . posed a threat to others by walking in traffic and carrying swords , a machete and a baseball bat.” Since admission, he has refused treatment at the VSH, cho osing not to attend groups and not accepting

medication offered to him. He has been assaultive to VSH staff and two days prior to the hearing struck a staff member in the face, leaving a bloody swollen mark.

In terms of medications, the court found that B.M. has received Haldol on an emergency

basis on several occasions since admission and has responded well with minor side effects. In addition, B.M. has taken Geodon in the past and had a positive response with no side effects. The court found that B.M. “has no insight into his condition and does not believe that he has a mental illness. His suggestion that his symptoms b e treated with marijuana is not based on reality.” Therefore, the court found B.M. was not competent to make a decision concerning his medication. Given B.M.’s failure to participate in groups or other therapies, the court found

there were no alternative treatments. The court co ncluded that medication would allow B.M. to converse and engage in his treatment planning as we ll as alleviate the severity of his symptoms and progress towards discharge. Thus, the court co ncluded the benefits of treatment outweighed the risks. The court granted the application for c ontinued treatment and committed B.M. to the custody of the Commissioner under an order of hospi talization. The court also granted the petition for involuntary medication. B.M. appeals.

On appeal, B.M. argues that the court erred in (1) committing him absent evidence that B.M. was a risk of danger to himself and the commun ity; (2) disregarding B.M.’s testimony regarding his desire to not be medicated; and (3) f ailing to consider alternative placements.

B.M. first argues that there were insufficient grou nds to grant the application for continued treatment and order hospitalization becau se there was no evidence that during his period of non-hospitalization he “acted out against anyone or threatened anyone.” According to B.M., before he could be committed to the care of t he Commissioner, the State was required to show that he is a danger to himself or the public. In support, he cites 18 V.S.A. § 7101(17), the definition for a person in need of treatment.

Already determined to be dangerous and in need of t reatment, the law does not require the State to demonstrate anew that B.M. presented a danger. We have explained that while the initial designation of a person as one in need of t reatment requires a showing of dangerousness, “subsequent decisions about how and where a patient will receive treatment involve predictions about the effect of discontinuing treatment, rather than dangerousness.” In re P.S., 167 Vt. 63, 71 (1997). An order of non-hospitalization may be revoked if the State proves that “the patient violated the order of non-hospitalization and that hospitalization is appropriate.” Id. at 70; see 18 V.S.A. § 7621. To revoke an order of non-hospitali zation the State is not required to show present dangerousness, but “it is sufficient that i t prove that the patient is a ‘patient in need of further treatment’ as defined in 18 V.S.A. § 7101(1 6).” In re P.S., 167 Vt. at 72. Although superfluous in this regard, we note that the court did find B.M. presented an ongoing danger by virtue of his possession of weapons and his behavio rs in conjunction with his diagnosed paranoia.3

Here, B.M. had already been declared a person in n eed of treatment and was under an order of non-hospitalization, which contained condi tions for his proper treatment. B.M.

concedes that he violated the terms of the order. It was therefore up to the court to determine

whether he was in need for further treatment and if hospitalization was appropriate.

The evidence supports the court’s finding that B.M. continues to be a person in need of further treatment and that hospitalization was prop er. “A patient in need of further treatment” is defined as a “patient who is receiving adequate tre atment, and who, if such treatment is discontinued, presents a substantial probability th at in the near future his condition will deteriorate and he will become a person in need of treatment.” Id. § 7101(16)(B). The court found that after B.M. stopped complying with his tr eatment plan, his condition deteriorated—he engaged in behavior that posed a threat to himself and others as displayed by his action of carrying weapons and his request that holes to be d rilled into his head. Contrary to B.M.’s assertion, the State was not required to show that B.M. “ever used any of those potential weapons as weapons or as a threat.” Because the sta ndard is whether there is a risk of future harm, the State does not have to wait until a perso n “actually becomes dangerous to intervene.” In re P.S., 167 Vt. at 74; see In re E.T., 2008 VT 48, ¶ 5, 184 Vt. 273 (reiterating that extension of commitment does not depend on evidence of recent overt acts). The State properly met its burden in this regard.

Next, B.M. argues that the court improperly disrega rded his testimony regarding his reasons for not taking medication and erred in find ing that he was incompetent to refuse medication. Before issuing an order for involuntar y medication, the court must determine “whether the person is able to make a decision and appreciate the consequences of that decision.” 18 V.S.A. § 7625(c). The State has the burden of d emonstrating a patient’s incompetence by clear and convincing evidence. Id. § 7625(b). We uphold the court’s findings “as long as there is substantial evidence to support them although th ey are contradicted by credible evidence.” In re E.T., 2008 VT 48, ¶ 6 (quotation omitted).

The court found that B.M.’s “paranoia has prevented any meaningful discussion of the

risks and benefits of treatment” and therefore he i s not competent to make a decision about his medication. These findings are supported by the te stimony of B.M.’s psychiatrist, who explained that B.M. does not have the capacity to m ake a decision regarding medication. B.M.

believes he does not have an illness and believes t hat all medications are in his head. Further, B.M. has disrupted speech so that it is difficult t o have a conversation with him and follow his train of thought. Therefore, there was no error in the court’s finding of B.M.’s incompetence.

B.M.’s testimony does not undermine the court’s fin ding. Regarding medication, B.M. testified simply that he felt he did not need medic ation and that it slowed him down. The court was within its discretion to rely on the psychiatri st’s testimony. Further, B.M.’s assertion that his six months without medication proves he does no t need it is without merit and, instead, tends to corroborate his incompetence and lack of insight . As the court found, during this untreated period, B.M.’s condition deteriorated and he exhibi ted behavior that was potentially harmful to

himself and others.

B.M.’s final argument is that the court did not con sider alternative placements. Before ordering hospitalization, the court should consider the existence of alternatives. 18 V.S.A.4

§ 7617(c). The court considered and reasonably rej ected any alternative. The court explained that given B.M.’s refusal to participate in any typ e of group therapy and B.M.’s ongoing need for medication, no alternative treatment options were a vailable. This finding is supported by B.M.’s psychiatrist’s testimony that there was no less res trictive facility that could treat B.M. given his

need for medication and his assaultive behavior. T herefore, the court properly considered alternatives and rejected them based on credible ev idence.

Affirmed.

BY THE COURT:

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice