By William B. Miller, Jr., Esq. and

Wanda Otero-Ziegler, Esq.

 

Vermont mental health care providers must be familiar with the legal requirements for provision of services to patients coping with mental illness and substance abuse problems. It is the stated policy of the Vermont Legislature to work towards a mental health system that does not require coercion or the use of involuntary medication. Consistent with this, outpatient or partial hospitalization is preferred to inpatient treatment. Similarly, emergency treatment is permitted only when it is clearly necessary; and involuntary treatment when voluntary treatment is not possible. To effectuate legislative goals, it is essential that mental health practitioners understand the legal standards for treating patients in different circumstances.

The Department of Developmental and Mental Health Services is the state entity responsible for establishing policy and executing state programs and services concerning mental health.¹ The Board of Mental Health makes department policy.² The board has general jurisdiction of the mentally ill who have been discharged from hospitals by authority of the board, and of the mentally ill not hospitalized, so far as concerns their physical and mental condition, their care, management and medical treatment.

 

Confidentiality and Disclosure of Information

 

What are the confidentiality requirements in mental health?
Mental health providers are subject to strict confidentiality provisions. These provisions apply to anyone treating mental illness, including physicians, psychologists, social workers, mental health counselors, and nurses. [18 V.S.A. § 7101 (13). See also Rule 503, Vermont Rules of Evidence]. Violations of these provisions can subject providers to fines of up to $2,000.00 or imprisonment of up to one year, or both.³

 

The law provides that all certificates, applications, records and reports, which directly or indirectly identify a patient or former patient or an individual whose hospitalization or care has been sought, together with clinical information relating to such persons, “shall be kept confidential and shall not be disclosed by any person” subject to specific exceptions.⁴

 

The exceptions include:

• written consent by a legal guardian;

• state law provision requiring disclosure;

• an order of the court.⁵

In addition, written disclosure of relevant information⁶ to home care providers⁷ is mandatory provided that the patient, or his or her guardian, consents in writing.⁸  If the individual, or his or her guardian, does not consent to the disclosure, the placement will not occur unless the home care provider agrees, in writing, to the placement, absent disclosure.⁹

 

In turn, the home care provider must furnish to any person providing respite care,¹⁰ the individual's relevant information.¹¹ Where the home care provider has agreed to placement without disclosure, he or she must inform the respite provider of this.¹² Home care and respite providers, whether or not they agree to a placement, are subject to the confidentiality and disclosure requirements described above.¹³ Any written disclosure made in accordance with the above requirements must include notice of the confidentiality and disclosure requirements under Vermont law.¹⁴

 

Is there a duty to warn if a patient poses a danger?
Notwithstanding the confidentiality requirements discussed above, Vermont health care providers have a duty to take action in the event that they learn information which indicates that the patient poses a serious risk of danger to a third party. [Peck v. Counseling Service of Addison County, 146 Vt. 61 (1985)] In this situation, the provider must take whatever action is reasonable to protect the third party from harm. Such actions may include direct communication with the targeted party (if that party’s identity is known) or disclosure of the threat to law enforcement officers. Providers failing to make appropriate disclosures are subject to civil action by the injured party or his estate. [See also Tarasoff v. Regents of the University of California, 118 Cal. Rptr. 129 (Cal. 1974), modified by Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976).]

 

Admission
The principal statute governing inpatient hospitalization of mentally ill patients in Vermont is the Mental Health Act of 1968. The Act sets forth the legal requirements for voluntary, involuntary and emergency admission to designated hospitals.

 

What are the requirements for voluntary admission?
Title 18 provides that any person 14 years of age or over may apply for voluntary admission to a designated hospital for examination and treatment. The person must give his or her consent in writing on a form adopted by the department. The consent must include a representation that the person understands that his or her treatment will involve inpatient status, that he or she desires to be admitted to the hospital, and that he or she consents to admission voluntarily, without any coercion or duress.¹⁵  If the person is under 14 years of age, he or she must provide written consent as described above and, in addition, a parent or guardian must apply in writing for voluntary admission.

 

What are the requirements for involuntary admission?
Involuntary admissions are governed by 18 V.S.A. §7504, which provides that, “upon the application of an interested party,” a hospital may admit a patient for an emergency examination to determine if he or she is “a person in need of treatment.”¹⁶  An “interested party” is defined broadly to include a guardian, spouse, parent, adult child, close adult relative, a responsible adult friend or person who has the individual in his charge or care; as well as a mental health professional, a law enforcement officer, a licensed physician, a head of a hospital,¹⁷ a selectman, a town service officer or a town health officer.¹⁸

 

The written application for emergency examination must be accompanied by a certificate by a licensed physician who is not the applicant and must set forth facts and circumstances showing the need for an emergency examination and showing that the person is a person in need of treatment. The application and certificate together constitute the authority for transporting the person to a designated hospital for an emergency examination.

 

What are the requirements for emergency admission?
In emergency circumstances where a certification by a physician is not available without serious and unreasonable delay, a law enforcement officer or mental health professional may make an application, not accompanied by a physician’s certificate, to any district or superior judge for a warrant for an immediate examination. The application must be based on the personal observation of conduct which provides reasonable grounds to believe that the person is a person in need of treatment, and that he or she presents an immediate risk of serious injury to himself or others if not restrained.¹⁹

 

Where a law enforcement officer or mental health professional personally observes such conduct, he or she is permitted to take the person into temporary custody immediately but must apply to the court without delay for the warrant.

 

If the judge is satisfied that a physician's certificate is not available without serious and unreasonable delay, and that probable cause exists to believe that the person is in need of an immediate examination, the court may order the person to submit to an immediate examination at a designated hospital. If necessary, the court may order the law enforcement officer or mental health professional to transport the person to a designated hospital for an immediate examination.

Upon emergency admission to a designated hospital, the person must be immediately examined by a licensed physician. If the physician certifies that the person is in need of treatment, then the hospital is required to hold the person for an emergency examination in accordance with Title 18, § 7508. However, if the physician does not certify that the person is a person in need of treatment, then the person must be immediately discharged and returned either to the place from which she or he was taken, or to such place as the she or he reasonably directs.

 

How long can people in need of treatment be held?
Vermont law provides that upon a physician’s certification that a person is “in need of treatment,”²⁰ a Section 7508 emergency examination must be completed by a psychiatrist “as soon as practicable, but no later than one working day after admission.”²¹ It is important to note that if the person was admitted on an application and physician's certificate, the examining psychiatrist cannot be the same physician who signed the certificate. If the examining psychiatrist does not agree that the person is a person in need of treatment, the psychiatrist must immediately discharge the person and return him to the place from which he was taken, or to another location if reasonably requested.

 

If, however, the examining psychiatrist agrees that the person is in need of treatment, the person’s hospitalization may continue for an additional 72 hours, the so-called “72-hour hold.”

At the end of the 72-hour hold period, the hospital must discharge the person except in two circumstances. During the 72-hour hold, some persons agree to voluntary admissions. In the alternative, an application for involuntary treatment may be filed with the district court of the proposed patient's residence; or, if the proposed patient is a non-resident, in any district court²² in which case the patient will remain hospitalized pending the court's decision on the application.

 

What rights do admitted patients have?
Vermont law requires that a patient admitted to a designated hospital be treated with dignity and respect. In addition to providing such medical and psychiatric treatment as is indicated, the hospital must give the person the opportunity, subject to reasonable limitations, to communicate with others. This includes the reasonable use of a telephone.²³

The hospital must also request contact information for any individuals that the patient wishes to have informed of the hospitalization and kept informed of the patient’s status. The head of the hospital is responsible for ensuring that the patient’s designated contacts are notified of the patient’s status. Further, the designated contacts must be informed of how the patient may be contacted or visited, and how they may obtain information about the patient.²⁴

Retention or Preliminary Hearings  

A person admitted to a designated hospital for emergency examination may, within 5 days after admission, request the district court to conduct a preliminary hearing to determine whether there is probable cause to believe that she or he was a person in need of treatment at the time of his or her admission.²⁵ Where such a request is made, the court must conduct the hearing within three working days of the filing of the request.²⁶ The court must provide notice of the hearing to the patient or his attorney, the hospital and the attorney for the applicant.

 

An individual has the right to be present and represented by legal counsel at the preliminary hearing.²⁷ If the court determines that, at the time of his admission, there was probable cause to believe that the individual was a person in need of treatment, the individual shall be ordered held for further proceedings in accordance with the law. However, if probable cause is not established, the individual must be ordered discharged from the hospital and the court will order him returned to the place from which he was transported or to his home.²⁸

 

Treatment Over Patients’s Objection

 

What is required on an application for involuntary treatment?
The law provides that no person may be treated involuntarily unless they are found to be a person in need of treatment or a patient in need of further treatment.²⁹ However, an interested party may commence proceedings for the involuntary treatment of an individual. This is accomplished by filing an application for involuntary treatment with the court.³⁰ The application must be filed in the district court of the proposed patient's residence.³¹ But, if the proposed patient is a non-resident, the application may be filed in any district court.³²

 

An application for involuntary treatment must contain:

• The name and address of the applicant; and

• A statement of the current and relevant facts upon which the allegation of mental illness and need for treatment is based.³³

The application must be signed and submitted by the applicant under penalty of perjury; and must be accompanied by either:

• A certificate of a licensed physician, executed under penalty of perjury, stating that she or he has examined the proposed patient within five days of the date the petition is filed, and is of the opinion that the proposed patient is a person in need of treatment, including the current and relevant facts and circumstances upon which the physician's opinion is based; or

• A written statement by the applicant that the proposed patient refused to submit to an examination by a licensed physician.³⁴

The law requires that before an examining physician completes the certificate of examination, she or he consider available alternative forms of care and treatment that might be adequate to provide for the person's needs, without requiring hospitalization.³⁵

 

What right does a person have to counsel in an involuntary treatment proceeding?
When an application for involuntary treatment is filed, the court must appoint an attorney for the proposed patient, and transmit a copy of the application, the physician’s certificate, if any, and a notice of hearing to the proposed patient, his attorney, guardian, or any person having custody and control of the proposed patient; the state’s attorney, or the attorney general; and any other person the court believes has a concern for the proposed patient’s welfare.³⁶ A copy of the notice of hearing must also be transmitted to the applicant and certifying physician.³⁷

 

The notice of hearing must set forth the date and time of the hearing and contain a list of the proposed patient’s rights at the hearing.³⁸ If the court believes that notice to the proposed patient is likely to cause injury to the proposed patient or others, the court will direct the patient’s legal counsel to give the proposed patient oral notice prior to written notice under circumstances most likely to reduce the likelihood of injury.³⁹

 

Once the proceedings for involuntary treatment are commenced and notice is given, the court will, “as soon as practicable,” authorize examination of the proposed patient by a psychiatrist. This is done on motion of one of the parties, or of the state of Vermont, or on the court’s own motion. The evaluation must be completed by someone other than the physician making the original certification. The examination and subsequent report or reports are paid for by the state of Vermont and the physician’s findings are reported to the party requesting the report or to the court if it requested the examination.⁴⁰

 

How do hearings for involuntary treatment proceed?
Upon receipt of an application for involuntary treatment, the court is required to set a date for a hearing within ten days from the date of receipt of the application or 20 days from the date of receipt of the application if a psychiatric examination is ordered under Section 7614 (Psychiatric Examination).⁴¹ The court has discretion to continue the hearing and may grant either party an extension of time of up to seven days for good cause.⁴²

 

Both the applicant and the proposed patient have a right to appear at the hearing to testify. In addition, the attorneys for the state and the proposed patient have the right to subpoena, present and cross-examine witnesses, and present oral arguments to the court. The court may, at its discretion, receive the testimony of any other person.⁴³ Although the proposed patient has the right to attend the hearing, she or he is not required to do so. Rather, she or he may attend at his election, subject to reasonable rules of conduct. The court may exclude all persons not necessary for the conduct of the hearing.⁴⁴

 

At the hearing, the state's attorney for the county in which the hearing takes place or the attorney general, at his discretion, has the burden to prove its case, by clear and convincing evidence.⁴⁵ The attorney for the state may dismiss the application at any stage of the proceeding.⁴⁶ If the court finds that the proposed patient either was not a person in need of treatment at the time of admission or application, or is not a patient in need of further treatment at the time of the hearing, the court will dismiss the application.⁴⁷

 

However, if the court finds that the proposed patient was a person in need of treatment at the time of admission or application, and is a patient in need of further treatment at the time of the hearing, the court has several options. It may order the person:

• hospitalized in a designated hospital;

• hospitalized in any other public or private hospital if she or he and the other hospital agree; or 

• to undergo a program of treatment other than hospitalization.⁴⁸

Before ordering any treatment, the court must determine whether there is an available program of treatment for the person which is an appropriate alternative to hospitalization.⁴⁹ In making this decision, the court must order testimony by an appropriate representative of a hospital, a community mental health agency, public or private entity or agency or a suitable person, who will assess the availability and appropriateness of treatment programs other than hospitalization.⁵⁰

 

Moreover, prior to ordering the hospitalization of a person, the court will inquire into the adequacy of treatment to be provided to the person by the hospital. The court may not order hospitalization unless the hospital in which the person is to be hospitalized can provide him with treatment which is adequate and appropriate to his condition. The court will give preference to a hospital located nearest to the person's residence, except when the person requests otherwise or there are other compelling reasons for not following the preference.⁵¹

 

If the court issues an initial order of hospitalization, the initial order will expire 90 days from the date of the hearing.⁵² However, if prior to the expiration of the order, the commissioner believes that the patient requires further treatment, the commissioner will apply to the court for such a determination and for an order of continued treatment.⁵³ The application must contain:

• a statement of reasons for the commissioner's determination that the patient needs further treatment;

• a statement describing the treatment program provided to the patient; and

• the results of that course of treatment.⁵⁴

The filing of the application stays the expiration of the initial treatment order pending the court’s decision.⁵⁵

 

What happens in a hearing for continued treatment?
A hearing on a petition for continued treatment follows the same procedure as the initial hearing for involuntary treatment.⁵⁶ If the court finds that the patient is a patient in need of further treatment and requires hospitalization, the court may order hospitalization for up to one year.⁵⁷ If the court finds that the patient is a patient in need of further treatment but does not require hospitalization, the court may order treatment on an outpatient basis for up to one year.⁵⁸

 

If at any time during a period of ordered non-hospitalization, it comes to the attention of the court that the person is not complying with the court’s order, or that the alternative treatment has not been adequate to meet the patient's treatment needs, the court may, after proper hearing, choose from several options. The court may:

• consider other treatments not involving hospitalization, modify its original order, and direct the patient to undergo another program of alternative treatment for an indeterminate period, up to the expiration date of the original order; or

• order that the patient be hospitalized, up to the expiration date of the original order.⁵⁹

If at any time during a period of ordered non-hospitalization, it comes to the attention of the court that the patient is not a patient in need of further treatment, the court shall order the patient discharged.⁶⁰

 

How is a petition for involuntary medication handled?
The commissioner may commence an action for the involuntary medication of a person who is refusing to accept psychiatric medication, provided the person meets one of the following three conditions:

• has been placed in the commissioner's care and custody pursuant to Title 18, section 7619 (initial order of hospitalization) or subsection 7621(b) (patient in need of further treatment);

• has previously received treatment under an order of hospitalization and is currently under an order of non-hospitalization; or

• has been committed to the custody of the commissioner of corrections as a convicted felon and is being held in a correctional facility which is a designated facility pursuant to section 7628 (protocol for designated hospitals administering involuntary medication) and for whom the Department of Corrections and the Department of Developmental and Mental Health Services have jointly determined that involuntary medication would be appropriate pursuant to subdivision 907(4)(H) of Title 28 (mental health services for inmates). [18 V.S.A. § 7624(a)(1)-(3)]

The action by the commissioner is initiated by filing a petition for involuntary medication in the family court in the county in which the person is receiving treatment. [18 V.S.A. § 7624(b)] It must include a certification from the treating physician, executed under penalty of perjury, that includes the following information:

• the nature of the person's mental illness;

• the necessity for involuntary medication, including the person's competency to decide to accept or refuse medication;

• any proposed medication, including the method, dosage range, and length of administration for each specific medication;

• a statement of the risks and benefits of the proposed medications, including the likelihood and severity of adverse side effects and its effect on the person's prognosis with and without the proposed medications; and the person's health and safety, including any pregnancy;

• the current relevant facts and circumstances, including any history of psychiatric treatment and medication, upon which the physician's opinion is based;

• what alternate treatments have been proposed by the doctor, the patient or others, and the reasons for ruling out those alternatives; and

• whether the person has executed a durable power of attorney for health care in accordance with the provisions of subchapter 2 of chapter 111 of Title 18, and the identity of the health care agent designated by the durable power of attorney. [18 V.S.A. § 7624(c).61]

What happens during a hearing on a petition for involuntary medication?
If the commissioner files a petition for involuntary medication, the court must hold a hearing within seven days of the filing.⁶² The hearing on the petition will be conducted in accordance with the same procedures applicable to an application for involuntary treatment.⁶³ Thus, the commissioner has the burden of proof by clear and convincing evidence.⁶⁴ In determining whether or not the person is competent to make a decision regarding the proposed treatment, the court must consider whether the person is able to make a decision and appreciate the consequences of that decision.⁶⁵

 

The court will follow the person's competently expressed written or oral preferences regarding medication, if any, unless the commissioner demonstrates that the person's medication preferences have not led to a significant clinical improvement in the person's mental state in the past within an appropriate period of time.⁶⁶

 

If the person has not expressed any medication preferences or if the court finds that the person's medication preferences have not led to a significant clinical improvement in the person's mental state in the past within an appropriate period of time, the court must consider at a minimum, in addition to the person's expressed preferences, the following factors:

• The person's religious convictions and whether they contribute to the person's refusal to accept medication;

• The impact of receiving medication or not receiving medication on the person's relationship with his or her family or household members whose opinion the court finds relevant and credible based on the nature of the relationship;

• The likelihood and severity of possible adverse side effects from the proposed medication;

• The risks and benefits of the proposed medication and its effect on the person's prognosis and the person's health and safety, including any pregnancy; and

• The various treatment alternatives available, which may or may not include medication. [18 V.S.A. §7626(c)(1)-(5)]

 

Care and Treatment
During a patient’s stay at a designated hospital, the head of the hospital is responsible for providing reasonable means and arrangements, including the posting of excerpts from relevant statutes, for informing patients of their right to discharge and other rights and for assisting them in making and presenting requests for discharge.⁶⁷

 

How can applications for discharge be filed?
A patient who has been ordered hospitalized may apply for discharge to the district court within which the hospital is located. Similarly, a patient who has been ordered to receive treatment other than hospitalization may apply for discharge to the district court which originally entered the order. [18 V.S.A. § 7801(a)] In its discretion, the court may transfer the matter, for the convenience of witnesses or for other reasons, to the district court within which the treatment is centered or in which the patient resides. [18 V.S.A. § 7801(a)]

 

Applications for discharge may be made no sooner than 90 days after the issuance of an order of continued treatment or no sooner than six months after the filing of a previous application for discharge. [18 V.S.A. § 7801(a)] The hearing on the application is held in accordance with the procedures set forth in Title 18, sections 7613, 7614, 7615 and 7616. [18 V.S.A. § 7801(b)]

 

If the court finds that the applicant is not a patient in need of further treatment, it will order the patient discharged. [18 V.S.A. §7801(c)] If, however, the court finds that the applicant is a patient in need of further treatment, it must deny the application and order continued treatment for an indeterminate period in accordance with Title 18, section 7621(b), (c) and (d). [18 V.S.A. § 7801(d)]

 

Is a hospital required to do administrative review for discharge?
Absent an application by the patient, the hospital is nonetheless required to review the condition of every patient “as regularly as practicable, but not less often than every six months.” [18 V.S.A. § 7802] Whenever the head of a hospital or the board certifies that the patient is not a patient in need of further treatment, the patient must be discharged [18 V.S.A. § 7802].

 

At the patient’s request, the hospital must provide reasonable notice to the patient’s attorney of all hearings on the issue of granting a discharge [18 V.S.A. § 7802]. The patient's attorney must be afforded an opportunity to attend [18 V.S.A. § 7802]. In the absence of any attorney the board must notify the district court so that an attorney can be appointed.

 

What are the patient’s rights to communication and visitation?
Unless the head of the hospital determines that it is necessary for the medical welfare or needs of the patient or the hospital to impose restrictions, every patient is entitled:

• to communicate by sealed mail or otherwise with persons, including official agencies, inside or outside the hospital; 

• to receive visitors and to make and receive telephone calls; and

• to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, enter contractual relationships, and vote on his own initiative, unless he has been adjudicated incompetent and has not been restored to legal capacity [18 V.S.A. § 7705(a)(1)-(3)].

Notwithstanding any limitations or restrictions imposed,⁶⁸ every patient is entitled to communicate by sealed mail with the board, the commissioner, his attorney, his clergyman and the district judge, if any, who ordered his hospitalization.⁶⁹ In addition, a patient's clergyman or an attorney at law retained by or on behalf of any patient or appointed for him by any court must be admitted to visit at all reasonable times.⁷⁰

 

Can a patient’s status change from involuntary to voluntary?
At any time, a patient may, with the permission of the head of the hospital, have his status changed from involuntary to voluntary upon making application as provided in section 7503 (application for voluntary admission).⁷¹

 

 

Electroconvulsive Therapy (ECT)
The commissioner is charged with oversight of the use of electroconvulsive therapy in Vermont and may adopt rules to govern the practice of electroconvulsive therapy. The commissioner's duties include:

• establishment of a uniform informed consent process, forms, and materials; 

• oversight and monitoring of all facilities administering electroconvulsive therapy; and

• the collection of statistical data on the use of electroconvulsive therapy from all treating facilities.⁷²

 

Sterilization
It is the policy of the state of Vermont to allow voluntary and involuntary sterilizations of mentally retarded adults under circumstances which will ensure that the best interests and rights of such persons are fully protected. Thus, no mentally retarded person⁷³ may be sterilized without his or her consent unless there is a prior hearing in the superior court under Title 18, Ch. 204. Moreover, no mentally retarded person under the age of eighteen may be sterilized.⁷⁴ “Sterilization” is a surgical procedure, the purpose of which is to render an individual incapable of procreating.⁷⁵  

 

What does the law require for voluntary sterilization?
Any mentally retarded person over the age of eighteen may obtain a voluntary sterilization, provided they have neither a guardian nor protective services worker with the power to consent to non-emergency surgery.⁷⁶

 

The law requires that the mentally retarded person freely, voluntarily and without coercion, personally request a physician to perform a sterilization. In addition, the mentally retarded person must give informed consent to the sterilization in that the physician has provided a complete explanation concerning both the nature and irreversible consequences of a sterilization procedure, and the availability of alternative contraceptive measures.⁷⁷

 

The physician must be satisfied that the consent is based on an understanding of the information provided. In addition, before undertaking the procedure, the physician must personally obtain evidence of the person's retention of that understanding for at least ten days following the explanation.⁷⁸

 

The consent for voluntary sterilization must be in writing and signed by the mentally retarded person,⁷⁹ and the person must be informed and aware that consent may be withdrawn at any time prior to the operation.⁸⁰ Finally, the physician must have reviewed medical records and psychological assessments of the mentally retarded person.⁸¹

 

Can a petition to determine competency to consent be filed?
If a physician refuses to perform a voluntary sterilization because she or he is not satisfied that the mentally retarded person has the ability to give informed consent, the mentally retarded person may file a petition in superior court for a determination of the person's competency to consent to the sterilization.⁸²

 

The petition must set forth:

• the name, age and residence of the person to be sterilized; 

• the names and addresses of the petitioner and parents, guardians, spouse and nearest relative of said person;

• the mental condition of said person;

• a statement of said person's ability to give informed consent to the sterilization; and 

• said person's ability to pay for legal counsel.⁸³

Once a petition is filed, the court will appoint a qualified mental retardation professional to examine the mentally retarded person and present evidence to the court as to that person's ability to give informed consent.⁸⁴ The hearing on the petition will be limited to determining the mentally retarded person's competency to consent to a sterilization.⁸⁵

 

If, after the hearing, the court determines on the basis of clear and convincing proof that the mentally retarded person is competent to consent and has given the required consent, it shall order that a voluntary sterilization may be performed.⁸⁶ However, if the court determines that the mentally retarded person is not competent to give consent it shall inform the person that she or he has the right to petition the court for an involuntary sterilization.⁸⁷

 

What happens during a hearing to determine competency to consent?
Once a petition to determine competency to consent is filed, the court must set a time and place for the hearing not more than 45 days from the receipt of the petition.⁸⁸ Not less than 20 days prior to the date set for the hearing, the court will require that the petitioner serve respondent with the petition and notice of hearing.⁸⁹

 

The respondent is represented by counsel throughout the proceeding. Once the petition is filed, the court must notify the respondent that she or he has the right to counsel. If the petition states that the respondent cannot afford counsel, the court will appoint counsel to be paid by the state or set a hearing to determine the respondent's ability to pay. The court may also require appointment of a guardian ad litem for the respondent. Counsel will receive copies of the comprehensive evaluations required as part of the court’s conduct of the hearing and such other documents as may be received and issued by the court.⁹⁰

 

The respondent, the petitioner and all other persons who have been provided notice may attend the hearing, testify, present evidence and subpoena, present and cross-examine witnesses, including those who prepared the comprehensive evaluation. The court may exclude any person not necessary for the conduct of the hearing.⁹¹

 

When can involuntary sterilization be performed?
Any sterilization sought on behalf of a mentally retarded person or requested by any person who has been denied a voluntary sterilization, is considered an involuntary sterilization.⁹² Involuntary sterilizations may be performed only after a hearing in the superior court. For the purposes of involuntary sterilization, the mentally retarded person subject to a petition for sterilization is called the “respondent.”⁹³ The hearing is held in accordance with the procedures applicable to a hearing to determine competency for voluntary sterilization. In addition, a petition for involuntary sterilization must also set forth the relation of the person to be sterilized to the petitioner; and the reasons and supporting facts why sterilization is in the best interest of the person.⁹⁴

 

For purposes of involuntary sterilization, the court must first determine that the respondent is not competent to give informed consent.⁹⁵ The court must determine further that sterilization is in the best interests of the respondent. The court will do so by considering the following factors:

• that the respondent is physically capable of conceiving a child;

• that the respondent is likely to engage in sexual activity at present or in the near future under circumstances which may result in pregnancy;

• that the nature of the respondent's disability renders the respondent incapable now or in the future of caring for a child;

• that the respondent's disability is not likely to improve, nor does medical knowledge exist to establish that an advance in treatment of the disability is likely; and

• that no effective, less drastic alternative to sterilization is medically indicated which will meet the needs of the respondent.⁹⁶

The court will order the commissioner of developmental and mental health services to arrange for the preparation of a comprehensive medical, psychological and social evaluation of the person through community mental health agencies affiliated with the department. The evaluation must be completed within thirty days of the receipt of the petition. The medical report will be prepared by a physician and describe the physical condition of the respondent and the availability of the effective alternative contraceptive measures to meet the needs of the person. The psychological report must include a diagnosis of the person's intellectual ability and social functioning. The social report will be prepared by a qualified mental retardation professional, and shall describe the respondent's developmental and social functioning.⁹⁷

 

The petitioner shall have the burden of proving the elements of the petition by clear and convincing evidence.⁹⁸ The evaluation shall be received into evidence, if the persons who prepared the evaluation are available for the hearing or subject to service of subpoena. However, the court shall not be bound by the evidence contained in the evaluation, but shall make its determination upon the entire record.⁹⁹

 

If upon completion of the hearing and consideration of the record the court finds that the mentally retarded person is competent to give informed consent and no such consent has been given, no sterilization may be ordered.¹⁰⁰

 

If upon completion of the hearing and consideration of the record the court finds that the person is incompetent to consent and that the sterilization is in the best interests of the person, it shall order that an involuntary sterilization may be performed.¹⁰¹ Any party to a proceeding related to the sterilization of a mentally retarded person has the right to appeal from a judgment issued by the court within 30 days, under the Vermont rules of appellate procedure.¹⁰²

  

Are sterilization proceedings confidential?
All proceedings regarding sterilization of mentally retarded persons are closed to the public, and the records are sealed unless requested to be opened by the respondent.¹⁰³

 

 

Transportation/Restraints

 

What are the commissioner’s responsibilities for transporting patients?
The commissioner is responsible for ensuring that all reasonable and appropriate efforts consistent with public safety are made to transport or escort a person to and from any inpatient setting, including escorts within a designated hospital or the Vermont State Hospital, in a manner which accomplishes the following:

• prevents physical and psychological trauma;

• respects the privacy of the individual; and

• represents the least restrictive means necessary for the safety of the patient.¹⁰⁴

The commissioner also has the authority to designate by rule the professionals who may transport patients under the commissioner's care and custody.¹⁰⁵

 

Mechanical restraints are not to be applied to a patient unless it is determined by the head of the hospital or his designee to be required by the medical needs of the patient or the hospital. Every use of a mechanical restraint and the reasons for the use of the mechanical restraints must be made a part of the clinical record of the patient under the signature of the head of the hospital or his designee.¹⁰⁶
 

 

Transfer of Patients

 

How are intrastate transfers ordered?
The commissioner may authorize the transfer of patients among and between any of the following: the Vermont State Hospital, the Brattleboro Retreat, and designated hospitals if he determines that it would be consistent with the medical needs of the patient to do so.

 

Whenever a patient is transferred, written notice must be given to his attorney, his legal guardian, if any, spouse, parent or parents, or, if none be known, to any other interested party. In all such transfers, due consideration must be given to the relationship of the patient to his family, legal guardian, or friends, so as to maintain relationships and encourage visits beneficial to the patient.

 

Due consideration must also be given to the separation of functions and to the divergent purposes of the Vermont State Hospital, the Brattleboro Retreat, and designated hospitals. No patient may be transferred to a correctional institution without the order of a court of competent jurisdiction. Nor may a patient be transferred to a designated hospital unless the head of the hospital or his designee first accepts the patient.¹⁰⁷

 

How are interstate transfers ordered?
The transfer of nonresident patients to out-of-state facilities is governed by the Interstate Compact on Mental Health.¹⁰⁸ The transfer of nonresident patients from an out-of-state institution or hospital to a hospital in Vermont for the purpose of being near relatives or friends is at the discretion of the commissioner. In making the decision, the commissioner must take into consideration the relationship of the patient to his family, legal guardian, or friends, in order to maintain those relationships and encourage visits beneficial to the patient.¹⁰⁹

 

Can patients be transferred to federal facilities?
The commissioner may cause a hospitalized patient to be transferred to an agency of the United States if the agency certifies that accommodations are available and that the individual is eligible for care or treatment in a hospital or institution of that agency.¹¹⁰ Notice of the transfer must immediately be given to the district judge who ordered the individual to be hospitalized, and the attorney, guardian, if any, spouse, and parent or parents, or if none be known, an interested party, in that order.¹¹¹

 

However, no person may be transferred to a federal facility if she or he is confined pursuant to conviction of any felony or misdemeanor, or if she or he has been acquitted of a criminal charge solely on the ground of mental illness, unless prior to transfer the district judge who originally ordered hospitalization enters an order for the transfer after appropriate motion and hearing. Any person so transferred shall be deemed to be hospitalized by that agency pursuant to the original order of hospitalization.¹¹²

 

 

Release and Discharge

 

When discharging or releasing a patient, must be done?
No patient may be discharged or granted a conditional release from a hospital without suitable clothing. In addition, any indigent patient discharged or granted a conditional release must be furnished suitable transportation for his return home and an amount of money prescribed by the head of the hospital to enable the patient to meet his immediate needs.¹¹³

 

Can patients be granted a visit permit?
The head of a hospital may grant a visit permit of not more than 30 days to any patient under his charge. The granting and revocation of visits is made in accordance with rules and procedures adopted by the head of the hospital.¹¹⁴

 

What are conditional discharges?
Either the board or the head of a hospital may conditionally discharge any patient who may be safely and properly cared for in a place other than the hospital.¹¹⁵ A conditional discharge may extend for a term of six months, but cannot exceed 60 days unless the head of the hospital determines that a longer period will materially improve the availability of a program of treatment which is an alternative to hospitalization.¹¹⁶ Unless it is sooner revoked or renewed, a conditional discharge shall become absolute at the end of its term.¹¹⁷

 

A conditional discharge may be conditioned on participation in outpatient, after-care, or follow-up treatment programs, and is subject to such other conditions and terms as are established by the granting authority.¹¹⁸ “So far as practicable and appropriate,” each patient granted a conditional discharge, is provided with continuing treatment on an outpatient or partial hospitalization basis.¹¹⁹ The patient must be given a written statement of the conditions of his release, the violation of which can cause revocation.¹²⁰

 

A conditional discharge may be renewed by the granting authority at any time before it becomes absolute if the head of a hospital first determines that such renewal will substantially reduce the risk that the patient will become a person in need of treatment in the near future.¹²¹

 

How are conditional discharges revoked?
A conditional discharge may be revoked by the board or the head of the hospital at any time before that discharge becomes absolute if the patient fails to comply with the conditions of the discharge. Such revocation authorizes the return of the patient to the hospital and constitutes sufficient warrant for a law enforcement officer or mental health professional to take the patient into custody and return him to the hospital.¹²²

 

Upon return to the hospital, the patient must be examined immediately by a physician who must orally explain to the patient the purpose of the examination and the reasons why the patient was returned to the hospital.¹²³

 

If the examining physician certifies in writing to the head of the hospital that, in his opinion, the patient is a person in need of treatment, the revocation becomes effective and the patient is readmitted to the hospital. However, if the examining physician does not so certify, the revocation is cancelled and the patient must be returned to the place from which he was taken.¹²⁴

 

If the patient is readmitted to the hospital, she or he may apply immediately for a judicial review of this admission, and she or he must be given a written notice of this right and of the right to legal counsel.¹²⁵

 

What happens during an administrative discharge?
A patient may be discharged at any time by the head of the hospital if she or he determines that the patient is clinically suitable for discharge.¹²⁶ When a judicially hospitalized patient is administratively discharged, the head of the hospital must notify the applicant, the certifying physician, the court, and anyone who was notified at the time the patient was hospitalized.¹²⁷

 

Similarly, a person responsible for providing treatment other than hospitalization to a patient ordered to undergo such treatment, may terminate the alternative treatment if the provider considers the patient clinically suitable for termination of treatment. The provider must notify the court.¹²⁸  

 

What are the procedures for discharge or detention of voluntary patients?
If a voluntary patient notifies the hospital in writing that she or he desires to leave the hospital,¹²⁹ she or he must be promptly released unless she or he agreed in writing at the time of admission that such release could be delayed.¹³⁰

 

If the patient previously agreed that release could be delayed, or if the head of the hospital determines that the patient is a patient in need of further treatment, the patient may be detained for up to four days from receipt of the patient’s written notice. Before expiration of the four-day period, the hospital must either release the patient or apply to the district court for involuntary admission. If an application is made to the court, the patient will remain in the hospital pending the court's decision.¹³¹

 

 

Special Considerations for Mentally Ill Users
of Drugs and Alcohol

 

Who is considered a drug addict?
Vermont law defines a “drug addict” as “a person who shows signs of mental illness because of his use of drugs, hallucinogens, stimulants or sedatives or who has an uncontrollable desire for their use or consumption.”¹³²

 

Can drug addicts be hospitalized?
A drug addict may be admitted to a designated hospital and provided with care and treatment in the same manner and under the same conditions as a mentally ill person.¹³³ However, no drug addict may be admitted to a hospital for voluntary treatment for a period in excess of six months.¹³⁴ If she or he is admitted by order of the district court, the court order must specifically provide for a maximum of six months in the hospital.¹³⁵

 

Can a conditional discharge be granted to drug addicts?
The board of mental health, in its discretion, may grant a conditional discharge to a patient admitted as a drug addict after the expiration of one month from the date of admission and may revoke any conditional discharge so granted. A revocation by the board at any time prior to the expiration of the original term of hospitalization is sufficient warrant for the return of the patient to the hospital from which she or he was discharged. The patient will remain there until a subsequent conditional discharge or the expiration of the full term from the date of the original admission.¹³⁶

 

Are outside visits permitted for drug addicts?
In the discretion of the head of a hospital, a patient admitted as a drug addict may be permitted to visit a specifically designated place for up to five days and return to the same hospital. The visit may be allowed to see a dying relative, to attend the funeral of a relative, to obtain special medical services, to contact prospective employers or for any compelling reason consistent with the welfare or rehabilitation of the patient.¹³⁷

 

 

Recent Developments in the Law

What is the any willing provider law?
A recently enacted “any willing provider” law mandates that insurers provide identical reimbursement, regardless of whether treatment is provided by a member of its provider network. The new law is an amendment to the state's 1997 mental health parity law, which required insurers to provide comparable coverage for mental and other medical conditions. Following the passage of the 1997 statute, mental health clinicians complained that managed care networks were limiting care many residents by not covering the services of established clinicians for patients new to the insurance network. The new legislation, effective July 1, 2006, establishes the right of patients to treatment from practitioners of their choice, subject only to the requirement that they be licensed and certified by the state of Vermont.[i]

How has the law regarding transportation of individuals in state custody changed?
The Vermont Legislature recently approved a law ending the mandatory use of restraints on minors and others transported by the state for purposes of mental health care. The law was passed in response to public outrage at the publication of photographs of an 11-year-old autistic boy transported to the Brattleboro Retreat in leg irons and handcuffs. The new measure (H 306) bars state officials who oversee the transport of minors, adults, and pregnant women for mandated care from using restraints unless individual circumstances warrant their use. Moreover, in cases where restraints are used, senior state officials must describe in writing why they are required for that patient. The effect of the law is not to ban the use of restraints but rather, to limit the use of restraints to situations in which they are clinically called for.[ii]

Can health care providers be sued over patient suicides?
Increasingly, families of patients who have committed suicide sue health care providers as a result of their alleged failure to provide appropriate medical care and ensure the safety of their patients. Plaintiffs typically allege that the health care provider was negligent in failing to diagnose and treat the patient and that this failure was the proximate cause of the suicide. While these cases can pose significant problems of proof, health care providers should be mindful of this trend and take all necessary steps when faced with a suicidal patient [Wilkins v. Lamoille County Mental Health Services, Inc., 2005 Vt. 121].

 

Forms and Crisis Numbers

 

Where can I obtain mental health services information?
Mental health services forms may be obtained by downloading them from the Vermont Agency of Human Resources Department of Health website at http://healthvermont.gov/mh/forms/forms.aspx or by mail from Vermont Department of Health

Division of Mental Health, 108 Cherry Street Burlington, VT 05402.

 

Information is also available by calling the following numbers:

 

	Telephone	Fax
Adult Mental Health	(802) 652-2000	(802) 652-2005
Child, Adolescent & Family MH	(802) 652-2000	(802) 652-2005
Vermont State Hospital	(802) 241-1000	(802) 241-3001
TTY Relay Service	1-800-253-0191

 

Vermont Crisis Numbers 

County	Provider	Telephone
Addison	Counseling Service of Addison County	(802) 388-7641
Bennington	United Counseling Service	(802) 442-5491
Caledonia	Northeast Kingdom Mental Health	(802) 748-3181
Chittenden	Crisis Services of Chittenden County	(802) 863-2400
Chittenden	Baird 1st Call (for children's crises)	(802) 864-7777
Essex	Northeast Kingdom Mental Health	(802) 334-6744
Franklin	Northwe