Vermont Times

Editor: Shay Totten

E-mail: VTTimes@aol.com

Telephone: (802) 985-2400



Vermont Times
 
January 5, 2000 

Editorial (page 8) 


No More Force 


A Superior Court judge’s ruling to deny the state’s 
motion to vacate a nearly 15-year-old law should be 
read for what it is: A sign that all is not well 
with the state’s mental health laws. 

On December 30, Washington County Superior Court 
Judge Mary Miles Teachout denied another attempt by 
the state to sweep away the J.L. consent decree 
which has governed the state’s use of involuntary 
medication since 1985. Under its terms, J.L. class 
members cannot be involuntarily medicated unless 
a hearing officer finds that the person, if 
competent, would choose to be medicated. One 
specific right protected by substituted judgment 
is the right to have treatment decisions embodied 
in an advance directive, such as a durable power 
of attorney for health care, followed. 

In 1998, the Vermont Legislature passed Act 114, 
hoping to replace the J.L. consent judgment. Act 
114 differs in three major ways. First, it allows 
involuntary medication to take place at locations 
other than the Vermont State Hospital; second, it 
replaces administrative hearings with hearings in 
family court; and third, it eliminated the 
substituted judgment standard for making decisions 
and replaced it with a best medical interest 
standard that specifically limits the duration of 
an advance directive to 45 days. 

In order to replace J.L. with Act 114, the state 
had to meet a specific burden of proof, and it 
miserably failed to do so. Simply citing the 
passage of Act 114 as good enough reason to 
further undermine the constitutional rights and 
dignity of those deemed mentally ill, the state 
did little to prove that the new rules were any 
improvement over J.L., which, by itself, has 
flaws. Teachout’s ruling shows just how arrogant 
the state has been, and has shed light on the 
fact that the state has never been truly 
interested in what is best for patients, only 
maintaining the bureaucracy. 

Further, the fact that the constitutional 
protections offered by substituted judgment 
are nowhere to be found in either the 
legislation crafted by the legislature, or 
written into the administrative rules by the 
Department of Developmental and Mental Health 
Services, shows how negligent the state has 
been to those it so desperately wants us to 
think it is trying to protect. 

Allowing the DDMHS to work out a deal with the 
interested parties in court should also not be 
an option. In this instance, lawyers and state 
bureaucrats alone will make decisions affecting 
hundreds of Vermonters, and deny potentially 
thousands of others any say in the outcome by 
avoiding a public process. 

The only option that remains is for the 
legislature to repeal Act 114, then set to work 
on legislation which embodies the spirit of the 
J.L. consent decree and emboldens it, keeping 
intact the use of advanced directives (with no 
time limits), making sure the state has to meet 
its burden of proof before even filing a petition 
for forced drugging, and create an ombudsman 
whose sole job it would be to ensure the 
constitutional rights of those deemed mentally 
ill are being upheld, and that the state was 
living up to its responsibilities. 

Lawmakers can not continue to sit and let this 
issue be swept aside by bureaucrats who want to 
pass this along to regional agencies and 
hospitals which are not prepared to take on the 
role, and by those who believe it is truly in 
the best interest to rob people of their dignity 
and constitutional rights. 

Vermont Times

Editor: Shay Totten

E-mail: VTTimes@aol.com

Telephone: (802) 985-2400



Vermont Times
 
January 5, 2000
(pages 1,6)


Forced Drugging Legislation Dealt Blow 
by Court

by Shay Totten

The Vermont legislature may have an unexpected 
piece of legislation to return to work on 
before the session is over, and it’s not Act 60.

Act 114, which went into effect July 1, 1998 
established a new set of procedures and 
guidelines to expand forced drugging into the 
community, and to override the advance 
directives of people it deems to be mentally 
ill. In the waning moments of 1999, however, 
Superior Court Judge Mary Miles Teachout dealt 
a severe blow to the state’s efforts.

The ruling, issued December 30, denied a motion 
by the state to vacate a 14-year-old consent 
decree which has established a specific set of 
guidelines which had to be followed in order 
for a person to be forcibly drugged, otherwise 
known as involuntary medication. Known as the 
J.L. Consent Decree, it became a landmark 
ruling in the development of Vermont law 
concerning involuntary mental health treatment. 
Since that 1985 ruling, the state has, both in 
court and in the legislature, tried to get out 
from under the basic guidelines of the consent 
decree, all to no avail. That was until 1998 
when the legislature passed Act 114 which 
provided a new set of standards and procedures 
to be followed; upon passage the law was to 
vacate the consent decree.

Ira Morris, the assistant attorney general 
who represented the state Department of 
Developmental and Mental Health Services in 
the case, had no comment on the ruling. The 
state has several options it can choose: 
appeal the decision to the state Supreme 
Court, re-petition Superior Court with a 
better defined outline of changes and 
remedies to the consent decree, or 
possibly approach the legislature to make 
further changes to Act 114 in light of 
Teachout’s ruling. As well, Vermont Legal 
Aid, which represented a majority of the 
group protected by the consent decree had 
not opposed the state’s motion, and also 
could appeal the ruling.

“We’ve always said substituted judgment was 
the correct standard to use in these cases, 
I would hope this would be a signal to the 
state that they come to some kind of 
resolution to implement Act 114 with 
substituted judgment included in the 
legislation,” said Jack McCullough, of 
Vermont Legal Aid’s Mental Health Law 
Project. That notion was discussed during 
oral arguments, though the state dismissed 
the option. “This ruling, however, leaves 
that door open to them and I think it 
would be a win-win situation; I hope they 
take it.”

Those representing a segment of the group 
protected by the consent decree, and who 
opposed the state’s motion, were pleased 
with Teachout’s ruling, though felt it 
still left some key arguments unresolved.

Robert Appel, state Defender General, was 
generally pleased with the ruling, but 
concerned about Teachout’s interpretation 
of inmates not being included in the 
original consent decree and not affected 
by a change to Act 114.

Susan Aranoff, staff attorney for Vermont 
Protection & Advocacy, was disappointed 
that Teachout didn’t rule on some of the 
substantive legal issues raised by her and 
other opponents of the state’s motion, but 
was pleased overall. “Basically, she says 
the state had to prove this move would 
offer equal protection to people, and they 
haven’t met their burden of proof which 
would allow the consent decree to be swept 
aside. It cannot be overstated, however, 
that this is a significant ruling. And, 
even though it is a narrowly focused 
decision, it is on sound footing and it 
unlikely to be turned over on appeal, if 
one is made.”

Teachout’s ruling was based primarily on 
procedural failures by the state rather 
than intellectual legal arguments. She 
did leave the option open for the state 
to refile its petition with her court, 
opening the door for the state and 
interested parties to work together on 
solving the dilemma caused by the judge’s 
ruling.

Some long-time citizen opponents of the 
state’s effort to extend its ability to 
forcibly drug people believe Teachout’s 
ruling should be a wake-up call to state 
administrators and lawmakers.

“I believe [Act 114] should be repealed,” 
said Morgan Brown, one of several citizens 
who lobbied against the passage of Act 114.  
“After this ruling, there is no reason 
they shouldn’t even though they have a lot 
on their plate is controversial. In my 
opinion, no good can come from Act 114, or 
what the state could do with this now by 
refiling its petition; the state needs to 
live with what they signed when they signed 
the original decree.”

Another long-term observer of this process, 
Robert “Butch”Ponzio, said the ruling gives 
some hope that Act 114 can eventually be 
tossed out.

“Since colonial times, the care and control 
of people we deem to be crazy has moved 
from the smaller units of the family, to 
the community, and then to the state and on 
to the federal government,” says Ponzio. 
“The reason we had [the consent decree] in 
the first place was because of local 
abuses, from local hospitals and centers 
and the overseer of the poor, to name a few. 
The idea that the legislature is trying to 
reverse 200 years of evolved care is 
ridiculous. With care like this, it needs 
to be governed at the highest level to 
provide the utmost legal and constitutional 
protections.”

Those protections, Ponzio argues, are 
exactly what is missing from Act 114 and
Teachout’s ruling failed to reach any 
solution to enhance those constitutional 
protections.

Vermont Protection & Advocacy argued in 
court, as did others, that the judicial 
standard set out in Act 114 to allow forced 
drugging to occur after hurdling a “best 
interest” standard rather than “substituted 
judgment” is a dangerous move, and strips 
class members of the constitutional 
protection offered by substituted judgment. 

Substituted judgment puts greater emphasis on 
the written wishes of an individual or their 
family before forcing medical treatment. 

The J.L. consent judgment has governed the 
state’s use of involuntary medication since 
1985. Under its terms, class members cannot 
be involuntarily medicated unless a hearing 
officer finds that the person, if competent, 
would choose to be medicated. This standard 
for making a decision is called “substituted 
judgment.” The substituted judgment standard 
for making decisions affords people greater 
rights than does the best medical interest 
standard. One specific right protected by 
substituted judgment is the right to have 
treatment decisions embodied in an advance 
directive, such as a durable power of 
attorney for health care, followed.

In 1998, the Vermont Legislature passed Act 
114, hoping to replace the J.L. consent 
judgment and become the law of the land 
regarding involuntary medication. Act 114 
differs from the J.L. consent judgment in
three major ways, according to Vermont P&A. 
First, it allows involuntary medication to 
take place at locations other than the 
Vermont State Hospital; second, it replaces 
administrative hearings with hearings in 
family court; and third, it eliminated the 
substituted judgment standard for making 
decisions and replaced it with a best 
medical interest standard that specifically 
limits the duration of an advance directive 
to 45 days.

In order for the consent decree to be 
wiped clean and replaced with Act 114, the 
state had a two-prong proof of burden to 
meet; Teachout ruled the state met neither. 
First, the state must meet its burden to 
show a significant change in circumstances 
warranting revision since the time of the 
case resulting in the consent order. 
Second, the proposed modification must be 
suitably tailored to address the identified 
change, the judge said in her ruling.

“... the court concludes that the State may 
be able to show a change of circumstances 
in that the procedural aspects of Act 114 
have arguably increased the procedural 
protections for members of the class. Such 
a change could possibly support a revision 
of the Consent Decree to replace the 
administrative hearings and other 
procedures established in the Consent 
Decree with the court hearings and other 
procedural protections of Act 114. That is 
not, however, what the State is seeking. 
The State relies on the passage of Act 114 
as the basis for eliminating all of the 
provisions of the Consent Decree, including 
the substantive standard, without showing 
that the change in the substantive judgment 
standard provides substantive protections at 
least as great or greater as those in the 
Consent Decree ... The State seeks to 
vacate the Consent Decree so that the 
substituted judgment standard will be 
replaced with the substantive standard in 
Act 114, but it has not met its burden to 
prove that there will be no loss of 
protection on substantive standards 
available to [Vermont State Hospital] 
patients who do not voluntarily agree to 
medication,” Teachout ruled in her order.

Likewise, the state failed to meet the 
second prong of the burden of proof.

“The entire elimination of the panoply 
of protections contained in the Consent 
Decree is not suitably tailored to address 
the issue of whether provisions of the 
Consent Decree might properly be changed 
by legislation because they increase the 
level of protection, or provide a level at 
least as great. Indeed, it is only when the 
extent of a change warranting relief has 
been established that the analysis can 
proceed to whether a proposed 
modification is suitably tailored to the 
change,” Teachout ruled.

Though Teachout failed to rule directly 
on the issue of whether substituted 
judgment is constitutionally protected, 
she did drop hints that the state might 
be best to revise its petition and iron 
out the kinks in their petition by working 
with the interveners.
 
In essence, Judge Teachout seems to imply 
in her ruling that elements of the consent 
decree could be merged with Act 114. 
Teachout hints at a provision which though 
not “briefed and argued, and is only 
tangentially related to the motion” she 
still addresses: Allowing individual 
members of the plaintiff class to waive 
their rights under the decree and proceed 
under the rules of Act 114. Though an 
interesting concept, Aranoff points out 
that the members of the class have been 
deemed mentally incompetent to make 
decisions and therefore couldn’t, under 
the state’s terminology, be able to make 
such a decision on their own.