2017 VT 10
By Elizabeth Kruska
GG is hospitalized for his mental health issues. He’s been in the Vermont Psychiatric Care Hospital (VPCH) since September 2015 and has remained there under a series of renewed orders.
GG’s case had been reviewed in court several times, and the State sought to extend his hospitalization order again. These orders can only be extended for short periods of time because people can’t be committed indefinitely without periodic judicial review. The State also sought to have GG medicated involuntarily. This is a big deal; people can’t be medicated against their will without a court order.
GG didn’t want to be medicated, and he didn’t want to stay at the VPCH. And a bit before his hearing on the matter, he decided he didn’t want to be represented by a lawyer, either. Consistent with his wishes, his lawyer filed a motion to withdraw.
They got to the court hearing and the judge took up the issue of whether or not GG could represent himself. The judge did a colloquy with GG and ultimately decided that it was not in GG’s best interest to represent himself. But, he did ask GG to participate in the hearing and allowed him to help cross examine witnesses and make an argument. GG testified, along with his treating doctor from the hospital. After taking the evidence, the judge granted the State’s request for continued treatment and medication.
GG appealed the trial court’s finding that he was a person in need of further treatment and the medication order. He also appealed the order saying he could not represent himself. SCOV does two things: first, they allow GG to submit a brief and participate in the oral argument, because one of the issues involves self-representation. Second, they affirm on both issues.
This is very interesting from a constitutional standpoint. GG has a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. If this was a criminal case, he would be allowed to represent himself under the Sixth Amendment. The right of self-representation is limited, though. The United State Supreme Court has recognized that although criminal defendants have the right to represent themselves, if a defendant is not competent to represent himself the court can override his or her request.
The State feels that GG did not make his request to represent himself in a timely fashion. GG raised the issue a couple days before the hearing, though, so the court felt this was enough time for everyone to be on notice of his wishes. He was taking a long-acting medication, and he had enough medication in his system that even if the hearing needed to have been continued a couple days, it would have been fine to go forward then. It would not have been fine to have a hearing of this nature while GG was not taking medication. Because of his diagnosis and symptoms, without medication he likely would not have been able to participate in the hearing in a meaningful way, let alone try to represent himself.
GG says he should be able to represent himself because he didn’t want an attorney making decisions for him. Other states have confronted the issue of whether someone can represent him or herself in a mental health commitment proceeding, and there’s no general consensus. Some states allow it, some states don’t. Also, judges are the ultimate gatekeepers of evidence, and they’re the ones who run their courtrooms. They have to be sure that the information they’re getting so that they can make findings is reliable and real. It’s within the purview of a judge to decide if he or she believes a defendant or respondent is capable of representing him or herself.
SCOV looks at the Sixth Amendment. I know I’ve said this before. It is my humble opinion that the Sixth Amendment is the finest of the Amendments. How about a high-five to James Madison for his fine work on drafting the Bill of Rights. The Sixth Amendment protects the right of an individual. The Due Process clause is concerned with procedure as a whole. Bearing these two constitutional concerns together, SCOV lands on the side of prohibiting self-representation in commitment matters. SCOV recognizes the liberty interest, but finds that, especially in situations where the court is concerned about making rulings regarding mentally ill people, self-representation probably isn’t going to work. These hearings happen for very few people; people who are already committed to hospitals and/or people who need to be medicated forcibly so they can be treated.
The State, of course, has an interest in making sure the hearings happen fairly. Medicating someone against his or her will is incredibly serious, and it is extremely important that these hearings are conducted properly so the court can get the best possible evidence. Public policy is in favor of doing everything short of forcible medication, and there’s a danger that the hearings will go wrong if the patients are representing themselves.
SCOV also points out that the controlling statute here says a patient shall be afforded counsel. SCOV reads “shall” to mean must (because that’s what it means . . . well, that’s usually what it means). I’ll just say that when I read this, I picked up on “afforded,” and thought there was some wiggle room here. I think there could have been an argument to be made that the option to have counsel is what shall be made, not necessarily that there shall be counsel. I’m not saying I disagree with SCOV’s analysis, I just picked up on something different. This is how we lawyer-types will never run out of things to talk about. Ever.
The other problem, of course, is that the class of litigants who will be affected by this are very likely not competent to represent themselves due to their mental health. Don’t get me wrong, there are plenty of people with mental health diagnoses out there doing all sorts of things, including representing themselves in court. But to get to the point of this serious commitment proceeding, the person doesn’t just have a diagnosis. The person is actively suffering from symptoms of the illness and is somehow a danger to others or to themselves. In GG’s case, he suffered from symptoms that included catatonia, which could prevent him from doing even the most basic things. There’s a real possibility if he was outside and went into a catatonic state he could suffer hypothermia and die. That’s a danger to himself, and public policy tends to err on the side of not wanting people to suffer hypothermia and die.
GG also raised a concern that there could have been a mistake made and that he could have been committed or medicated if he had left his representation in the hands of someone else. SCOV is sympathetic to this, but is not swayed. Under the Vermont Rules of Professional Conduct (I have a pdf of this on my phone; it’s come in handy more times than I’d have ever thought), a lawyer is required to maintain a normal lawyer-client relationship with a client as much as possible—including clients suffering a disability. Lawyers can’t substitute their judgment for that of their clients. And, in cases like this, the patients have the right to participate and testify. Not every situation will call for the patient to cross-examine witnesses, but it was certainly a solution and it worked here.
With respect to the substance of the hearing, GG appealed the finding that he was a patient in need of further treatment. This is a fact-dependent inquiry, and the trial court is required to make findings by clear-and-convincing evidence. It’s a high standard, and rightfully so: the State is seeking to deprive someone of his liberty so it’s not as if a little bit of evidence is enough to back up that decision. The trial court took evidence from the treating physician, who was able to give the court information about GG and about his history of mental-health issues and treatment. Although GG tried to argue that the doctor wasn’t credible, the trial court credited her testimony in finding that GG needed further treatment and that the right place for that was the hospital.
GG also appealed the order for further involuntary medication. SCOV reviews the trial court to see if there’s sufficient evidence for the factfinder to have reasonably concluded, with a high probability that GG was refusing his medication.
In reviewing the evidence below, SCOV found that GG was refusing one particular kind of medication, and that the order was appropriately granted. Now, of course, a person can refuse to take medication as prescribed. In this context, though, there has to be a showing of competency on the part of the patient to be able to make this decision. The court would have to make findings that the patient understood the consequences of refusing the medication. In this case, GG, likely as a result of his mental illness, could not understand that by not taking the medication, his symptoms were and could become far worse. The medication he was supposed to take had side effects (and he readily took medication to combat those), and he could talk about the side effects. But he couldn’t seem to land on why it was that the medication was prescribed in the first place.
There are seven factors the trial court is supposed to consider as to whether involuntary medication should continue. The trial court went through those factors and found that GG should continue on the medication.
So, on both fronts, SCOV affirms.