Involuntary outpatient commitment (Vermont)

For continuation of an outpatient treatment order, the statutory and constitutional burden on the state is to prove by clear and convincing evidence that failure to renew the order will result in the person posing a threat of harm to self or others in the near future; evidence of the individual’s repeated mental deterioration when off of medications is not sufficient alone In re

T.S.S., 2015 VT 55 (Vt. Apr. 10, 2015)

Respondent T.S.S., a person diagnosed with paranoid schizophrenia, had been involuntarily committed in 2003 due to severe delusions and extreme lack of self-care. He was released from the hospital in November 2003, but placed under an order of nonhospitalization (ONH) for continued outpatient treatment. That order was renewed annually for a period of years, but was not renewed in 2008. In 2012, T.S.S. was arrested for “unlawful mischief,” a misdemeanor, but was found incompetent to stand trial. That charge was dropped when T.S.S. agreed to an ONH that required his continuing outpatient treatment, including medication. T.S.S. did not contest renewal of that ONH in 2013, but he did object in 2014, and an evidentiary hearing was held.

At the evidentiary hearing, a doctor testified that T.S.S. had “demonstrated a clear pattern that…he, on orders of non-hospitalization, [would] take medications and improve significantly. But when he [was] off the order of non-hospitalization, he quickly [went] off medications and deteriorate[d].” Although the doctor testified that the deterioration was unavoidable—estimating that T.S.S. would deteriorate mentally within one year—he could not predict when T.S.S. would deteriorate to the point of posing a danger of harm to himself or others. The superior court granted the application for a continued ONH.

Vermont law allows continued ONHs for a person whose “capacity to exercise selfcontrol, 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” when it is shown “that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment.” See 18 Vt. Stat. Ann. §§ 7101(16), (17). The Vermont superior court held that the phrase “near future” referenced “when the condition will deteriorate and not necessarily when the patient will become a person in need of treatment.” Thus, the State need only prove that a defendant’s “condition will deteriorate in the near future and this will inevitably lead to him” needing treatment.

On appeal, T.S.S. argued that the superior court had erred in its interpretation of the statute. The Supreme Court of Vermont agreed, holding that the proper determination was “whether T.S.S. [was] likely to pose a danger to himself [or others] in the near future.” Although it was “undisputed that T.S.S.'s care-providers sought a continued ONH because they…want to protect him from making a choice that would lead him, eventually, to become a danger to himself,” the Court emphasized that “the fact is, people who do not pose an imminent danger to themselves or others have a right to autonomy that includes the right to make decisions about the most personal of matters, even if those decisions are deemed by others to be profoundly ill-advised.” The Court also noted that basing a continued ONH on “a finding that the person is likely to become a person in need of treatment at some point in the future (however distant)” would “present serious constitutional concerns…That a person could or will ‘eventually’ become a person in need of treatment is, standing alone, a thin reed upon which to predicate a continued intrusion upon fundamental liberty.”

Because the “last specific evidence of T.S.S. actually posing a danger to himself” dated back “more than 10 years,” the Court found that the record was not sufficient to conclude that T.S.S. was likely to become a danger to himself or others in the near future.

Found in DMHL Volume 34 Issue 2