Vermont Senate Journal
Monday, April 13, 1998

http://www.leg.state.vt.us/docs/1998/journal/sj980413.htm

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House Proposal of Amendment Concurred In

House proposal of amendment to Senate bill entitled:

S. 103. An act relating to involuntary medication of mental health patients.

Was taken up.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 18 V.S.A. 7629 is added to read:

7629. LEGISLATIVE INTENT

(a) It is the intention of the General Assembly to recognize the right of a legally competent person to determine whether or not to accept medical treatment, including involuntary medication, absent an emergency or a determination that the person is incompetent and lacks the ability to make a decision and appreciate the consequences.

(b) This act protects this right through a judicial proceeding prior to the use of nonemergency involuntary medication and by limiting the duration of an order for involuntary treatment to no more than one year. The least restrictive conditions consistent with the person's right to adequate treatment shall be provided in all cases.

(c) It is the policy of the General Assembly to work towards a mental health system that does not require coercion or the use of involuntary medication.

(d) This act will render the J. L. v. Miller consent judgment no longer applicable.

Sec. 1a. 18 V.S.A. 7509 is amended to read:

7509. TREATMENT; RIGHT OF ACCESS

(a) Upon admission to the hospital *[for an emergency examination,]*  pursuant to 7508, 7617 or 7624, the person shall be treated with dignity and respect and shall be given such medical and psychiatric treatment as is indicated.

(b) *[He]* The person shall be given the opportunity, subject to *[regulations]* reasonable limitations, to communicate with others, including the reasonable use of *[the]* a telephone.

(c) *[He]* The person shall be requested to furnish the names of persons he or she may want notified of his or her hospitalization and kept informed of his or her status. The head of the
hospital shall see that such persons are notified of thestatus of the patient, how he or she may be contacted and visited, and how they may obtain information concerning him or her.

Sec. 2. 18 V.S.A. 7620(a) and (c) are amended to read:

(a) If, prior to the expiration of *[a 90-day order, pursuant to sections 7618(b)(2) or 7619 of this title]* any order issued in accordance with section 7623 of this title, the commissioner believes
that the condition of the patient is such that *[he]* the patient continues to require treatment, *[he]* the commissioner shall apply to the court for a determination that the patient is a patient in need of further treatment and for an order of continued treatment.

(c) *[The patient shall continue to receive treatment]* Any order of treatment issued in accordance with section 7623 of this title shall remain in force pending the court's decision on the
application.


Sec. 3. 18 V.S.A. 7621(b), (c) and (d) are amended to read:

(b) If the court finds that the patient is a patient in need of further treatment and requires hospitalization it shall order hospitalization for *[an indeterminate period]* up to one year.

(c) If the court finds that the patient is a patient in need of further treatment but does not require hospitalization, it shall order non-hospitalization for *[an indeterminate period]* up to one year.

(d) If at any time during the period of non-hospitalization ordered under subsection (c) of this section, it comes to the attention of the court, *[either]* that the person is not complying with the
order, or that the alternative treatment has not been adequate to meet the patient's treatment needs, the court may, after proper hearing:

(1) Consider other *[alternatives]* 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

(2) *[Enter a new order directing]* Order that the patient be hospitalized*[ for an indeterminate period]*, up to the expiration date of the original order.

(e) This section shall not be construed to prohibit the court from issuing subsequent orders after a new application is filed pursuant to section 7620 of this title.

Sec. 4. 18 V.S.A. 7624-7628 are added to read:

7624. PETITION FOR INVOLUNTARY MEDICATION

(a) The commissioner may commence an action for the involuntary medication of a person who is refusing to accept psychiatric medication and meets any one of the following three conditions:

(1) has been placed in the commissioner's care and custody pursuant to section 7619 of this title or subsection 7621(b) of this title;

(2) has previously received treatment under an order of hospitalization and is currently under an order of non-hospitalization:, or

(3) 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 of this title 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.

(b) A petition for involuntary medication shall be filed in the family court in the county in which the person is receiving treatment.

(c) The petition shall include a certification from the treating physician, executed under penalty of perjury, that includes the following information:

(1) the nature of the person's mental illness;

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

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

(4) a statement of the risks and benefits of the proposed medications, including the likelihood and severity of adverse side effects and its effect on:

(A) the person's prognosis with and without the proposed medications; and

(B) the person's health and safety, including any pregnancy;

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

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

(7) whether the person has executed a durable power of attorney for health care in accordance with the provisions of chapter 121 of Title 14, and the identity of the health care agent designated by the durable power of attorney.

(d) A copy of the durable power of attorney, if available, shall be attached to the petition.

7625. HEARING ON PETITION FOR INVOLUNTARY MEDICATION; BURDEN OF PROOF

(a) A hearing on a petition for involuntary medication shall be held within seven days of filing and shall be conducted in accordance with sections 7613, 7614, 7615(b)-(e) and 7616 of this title.

(b) In a hearing conducted pursuant to this section, sections 7626 and 7627 of this title, the commissioner has the burden of proof by clear and convincing evidence.

(c) In determining whether or not the person is competent to make a decision regarding the proposed treatment, the court shall consider whether the person is able to make a decision and appreciate the consequences of that decision.

7626. DURABLE POWER OF ATTORNEY

(a) If a person who is the subject of a petition filed under section 7624 of this title has executed a durable power of attorney in accordance with the provisions of chapter 121 of Title 14 for health
care, the court shall suspend the hearing and enter an order pursuant to subsection (b) of this section, if the court determines that:

(1) the person is refusing to accept psychiatric medication;

(2) the person is not competent to make a decision regarding the proposed treatment; and

(3) the decision regarding the proposed treatment is within the scope of the valid, duly executed durable power of attorney for health care.

(b) An order entered under subsection (a) of this section shall authorize the commissioner to administer treatment to the person, including involuntary medication in accordance with the
direction set forth in the durable power of attorney or provided by the health care agent acting within the scope of authority granted by the durable power of attorney. If hospitalization is
necessary to effectuate the proposed treatment, the court may order the person to be hospitalized.

(c) In the case of a person subject to an order entered pursuant to subsection (a) of this section, and upon the certification by the person's treating physician to the court that the person has
received treatment or no treatment consistent with the durable power of attorney for health care for 45 days after the order undersubsection (a) of this section has been entered, then the court shall reconvene the hearing on the petition.

(1) If the court concludes that the person has experienced, and is likely to continue to experience, a significant clinical improvement in his or her mental state as a result of the treatment or
nontreatment directed by the durable power of attorney for health care, or that the patient has regained competence, then the court shall enter an order denying and dismissing the
petition.

(2) If the court concludes that the person has not experienced a significant clinical improvement in his or her mental state, and remains incompetent then the court shall consider the remaining evidence under the factors described in subdivisions 7627(b)(1)-(5) of this title and render a decision on whether the person should receive medication.

7627. COURT FINDINGS; ORDERS

(a) The court shall issue an order regarding all possible findings pursuant to this section, and for persons subject to a petition pursuant to subdivision 7624(a)(3) of this title the court shall first
find that the person is a person in need of treatment as defined by subdivision 7101(17) of this title.

(b) If a person who is the subject of a petition filed under section 7625 of this title has not executed a durable power of attorney, the court shall 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.

(c) If the court finds that there are no medication preferences or 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 shall consider at a minimum, in addition to the person's expressed preferences, the following factors:

(1) The person's religious convictions and whether they contribute to the person's refusal to accept medication.


(2) 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.

(3) The likelihood and severity of possible adverse side effects from the proposed medication.

(4) The risks and benefits of the proposed medication and its effect on:

(A) the person's prognosis; and

(B) the person's health and safety, including any pregnancy.

(5) The various treatment alternatives available, which may or may not include medication.

(d) If the court finds that the person is competent to make a decision regarding the proposed treatment or that involuntary medication is not supported by the factors in subsection (b) of this section, the court shall enter a finding to that effect and deny the petition.

(e) If the court finds that the person is incompetent to make a decision regarding the proposed treatment and that involuntary medication is supported by the factors in subsection (b) of this
section, the court shall make specific findings stating the reasons for the involuntary medication by referencing those supporting factors.

(f) If the court grants the petition, in whole or in part, the court shall enter an order authorizing the commissioner to administer involuntary medication to the person. The order shall specify the types of medication, the dosage range, length of administration and method of administration for each. The order for involuntary medication shall not include electric convulsive therapy, surgery or experimental medications. The order shall require the person's treatment provider to conduct monthly reviews of the medication to assess the continued need for involuntary medication, the effectiveness of the medication, the existence of any side effects, and shall document this review in detail in the patient's chart.

(g) For a person receiving treatment pursuant to an order of hospitalization, the commissioner may administer involuntary medication as authorized by this section to the person for up to 90 days, unless the court finds that an order is necessary for a longer period of time. Such an order shall not be longer than the duration of the current order of hospitalization.

(h) For a person who had received treatment under an order of hospitalization and is currently receiving treatment pursuant to an order of nonhospitalization, if the court finds that without an order for involuntary medication there is a substantial probability that the person would continue to refuse medication and as a result would pose a danger of harm to self or others, the court may order hospitalization of the person for up to 72 hours to administer involuntary medication as ordered under this section.

(i) The court may authorize future 72-hour hospitalizations of a person subject to an order under subsection (g) of this section to administer involuntary medication for 90 days following the initial
hospitalization, unless the court findsthat an involuntary medication order is necessary for a longer period of time. Such an order shall not be longer than the duration of the current order of nonhospitalization.

(j) A future administration of involuntary medication authorized by the court under subsection (h) of this section shall occur as follows:

(1) The treating physician shall execute and file with the commissioner a certification executed under penalty of perjury that states all the following:

(A) The person has refused medication.

(B) The person is not competent to make a decision regarding medication and to appreciate the consequences.

(C) The proposed medications, the dosage range, length of administration and method of administration.

(D) The substantial probability that in the near future the person will pose a danger of harm to self or others if not hospitalized and involuntarily medicated.

(2) Depending on the type of medication ordered, the commissioner shall provide two to 14-days' notice, as set forth in the initial court order, to the court, the person and the person's attorney.
The notice shall be given within 24 hours of receipt by the commissioner of the physician's certification and shall state that the person may request an immediate hearing to contest the
order. The person may be hospitalized in a designated hospital on the date specified in the notice for up to 72 hours in order to administer involuntary medication.

(k) An order for involuntary medication issued under this section shall be effective concurrently with the current order of commitment issued pursuant to section 7623 of this title.

(l) The treating physician shall provide written notice to the court to terminate the order when involuntary medication is no longer necessary.

(m) At any time, the person may petition the court for review of the order.

(n) As used in this section "household members" means persons living together or sharing occupancy.

7628. PROTOCOL

The department of developmental and mental health services shall develop and adopt by rule a strict protocol to insure the health, safety, dignity and respect of patients subject to administration of involuntary psychiatric medications in any designated hospital. This protocol shall be followed by all designated hospitals administering involuntary psychiatric medications.

Sec. 4a. Rule 12(d) of the Vermont Rules for Family Proceeding is revised to read:

(d) Judgment Pending Appeal In Actions Under Rule 4 and in Involuntary Treatment Actions.

When an appeal has been taken from a judgment in an action under Rule 4 of these rules, the court in its discretion may, during the pendency of the appeal, grant or deny motions for modification or enforcement of that judgment made under Rule 4 of these rules. When an appeal has been taken from an order of involuntary treatment, nonhospitalization or hospitalization or
involuntary treatment, in an action pursuant to *[18 V.S.A. 7611-7623]* chapter 181 of Title 18, the court in its discretion may, during the pendency of the appeal, grant or deny applications for
continued treatment, modify its order, or discharge the patient, as provided in 18 V.S.A. 7617, 7618, 7620, 7621. The court shall certify forthwith to the Supreme Court any order entered under this subdivision.

Sec. 5. REPORT

(a) On January 15, 1999 and annually thereafter, the commissioner of developmental and mental health services shall report to the House and Senate Committees on Judiciary and Health and Welfare on the following:

(1) Any problems that the department, the courts, and the attorneys for the state and patient have encountered in implementing Sec. 4 of this act.

(2) The number of petitions for involuntary medication filed by the state pursuant to 18 V.S.A. 7624 and the outcome in each case.

(3) Copies of any trial court or supreme court decisions, orders, or administrative rules interpreting Sec. 4 of this act.

(4) Any recommended changes in the law.

(b) Before submitting the report required in this section, the department shall solicit comments from organizations representing persons with mental illness and organizations representing families with members with mental illness, direct care providers, persons who have been subject to proceedings under 18 V.S.A. 7624, treating physicians, attorneys for the patients, courts, and any other member of the public affected by or involved in these proceedings.

(c) The department shall also present the report required in this section and the study required in Sec. 6 of this act to its Systems Improvement Committee for analysis and recommendations to the
department.

Sec. 6. STUDY AND REPORT

(a) An annual independent study shall be commissioned by the department of developmental and mental health services which shall:

(1) evaluate and critique the performance of the institutions and staff of those institutions that are implementing the provisions of this act;

(2) include interviews with persons subjected to orders of involuntary medication and their families on the outcome and effects of the order;

(3) include the steps taken by the department to achieve a mental health system free of coercion; and

(4) any recommendations to change current practices or statutes.

(b) The person who performs the study shall prepare a report of the results of the study, which shall be filed with the general assembly and the department annually on January 15.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment? Senator McCormack moved that the Senate concur in the House proposal of amendment with an amendment, as follows:

In Sec. 4, by striking out 7626 of 18 V.S.A. in its entirety and inserting in lieu thereof a new 7626 to read as follows:

7626. DURABLE POWER OF ATTORNEY

(a) If a person who is the subject of a petition filed under section 7624 of this title has executed a durable power of attorney in accordance with the provisions of chapter 121 of Title 14 for health
care, the court shall dismiss the petition if the court determines that:

(1) the person is refusing to accept psychiatric medication; and

(2) such refusal is within the scope of the valid, duly executed durable power of attorney for health care.

(b) If the court finds that the person was not competent when the person executed the durable power of attorney, the court shall not dismiss the petition under subsection (a) of this section and
shall proceed with the hearing on the petition.

Which was disagreed to on a roll call, Yeas 10, Nays 19.

Senator McCormack, having demanded the yeas and nays, they were taken
and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Hallowell, Hooker, Illuzzi, Kittell, MacDonald, McCormack, Ptashnik, Ready, Rivers, Spaulding.

Those Senators who voted in the negative were: Ankeney, Backus, Bahre, Bartlett, Bloomer, Brownell, Canns, Chard, Costes, Cummings, Doyle, Greenwood, Ide, Maynard, Mazza, Riehle, Sears, Shumlin, Snelling.

Those Senators absent and not voting were: Ehrich.

Thereupon, the recurring question, Shall the Senate concur in the House proposal of amendment? was decided in the affirmative on a roll call, Yeas 23, Nays 6.

Senator Ready, having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ankeney, Backus, Bahre, Bartlett, Bloomer, Brownell, Canns, Chard, Costes, Cummings, Doyle, Greenwood, Hooker, Ide, Kittell, MacDonald, Maynard, Mazza, Riehle, Rivers, Sears, Shumlin, Snelling.

Those Senators who voted in the negative were: Hallowell, Illuzzi, McCormack, Ptashnik, Ready, Spaulding.

Those Senators absent and not voting were: Ehrich.


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