S. 103; VLA/MHLP's position on its "non-position"

Morgan Brown (morganbrown@hotmail.com)
Fri, 12 Dec 1997 07:40:51 PST


Below is a forward of the text of a speech given by  Jack McCullough, 
the Director of the Mental Health Law Project (MHLP) of Vermont Legal 
Aid (VLA), regarding MHLP's postion on its "non-position" concerning S. 
103-Vermont's forced drugging legislation that is pending before the 
Vermont Legislature. Anyone who wants to comment to Jack about this can 
e-mail or phone him via the contact information listed below. Those 
e-mailing comments to Jack may also c.c. to me if you are comfortable 
doing so-it is not required.

Morgan <morganbrown@hotmail.com>
P.S. For more information on S. 103, please visit my home page, the 
address is listed below:
Norsehorse's Home Turf: http://members.tripod.com/~Norsehorse/

For comments people can reply to Jack McCullough via e-mail at:
JMccull171@aol.com or Jack can be telephoned at (802) 241-3222.
-------Forwarded text--------


Presented at the public hearing concerning S-103
November 21, 1997

Good morning. My name is Jack McCullough, and I am the director of 
the Mental Health Law Project of Vermont Legal Aid. I have represented 
clients in mental commitment proceedings in Vermont since 1983, and I
have been the director of the Mental Health Law Project for about two
years. Vermont Legal Aid has worked against forced treatment and for 
expanded personal autonomy for persons with mental illnesses at the 
Vermont State Hospital for over twenty-five years.
I want to start by giving a brief history of the issue of involuntary
medication. Fifteen years ago there were no restrictions on the use of 
involuntary medication at the Vermont State Hospital.
Vermont Legal Aid brought a class action on behalf of all clients 
committed to the State Hospital and the outcome of that lawsuit was 
what is now known as the J.L. consent judgment, which was entered
in 1985, and which established the current process of review of 
involuntary medication applications by a Human Services Board hearing 
officer applying a standard of substituted judgment. Over the years 
since we agreed to the J.L. consent judgment we have achieved many 
major victories on behalf of the members of the class. For example, 
it used to be common for VSH psychiatrists to seek orders giving them 
blanket authorization to administer whatever medications they saw
fit, but through the development of case law, in which the hearing 
officers rejected those requests, we arrived at a point at which 
those orders are no longer requested. In addition, in the years that
have followed the entry of the consent judgment there have been many 
attempts by the State to attack, evade, or otherwise avoid the effect 
of the consent judgment that it voluntarily entered into. These
attempts have included court challenges in a number of different 
Vermont courts, including the Vermont Supreme Court, and they have 
uniformly been resolved in favor of maintaining the relief obtained by
the J.L. class.

For at least the last year or two the State has been interested in 
pursuing an involuntary medication bill as part of its efforts to 
"close" the State Hospital. I use the term "close" in quotation
marks, because of course we all understand that the actual project 
under way is not to close, but rather to reduce the size of, the 
Hospital. Particularly in the last year or so the State has portrayed
this legislation as necessary to achieve its goal of reducing the 
Hospital population, although the fact that the census is now down 
almost to the target level suggests that this legislation may not, 
in fact, be essential to the State's attainment of its goal.
A little more than a year ago the State approached the Mental Health 
Law Project, as the attorney for the J.L. class and the entity that 
regularly represents VSH  patients in mental commitment litigation, 
with an initial proposal for involuntary medication legislation. The
State's initial proposal was terrible, and would have represented a 
substantial retreat from the protections we were able to obtain in 
the J.L. litigation. At that point we made the judgment that the best
way for us to preserve the gains we had made, both in the consent 
judgment and since then, would be to talk to the State and see how 
receptive they would be to our concerns. In our discussions with
them we made sure to be very clear that we would probably never be 
able to come to support the bill, but that if we saw enough 
improvements it might be possible for us to agree not to oppose it.
The result of these discussions was that the State moved a long way 
from their initial proposal. While it still was not anything we could 
support, we concluded that the bill had improved enough that we were 
willing to discontinue our opposition to the bill. Throughout the 
legislative session last year, and testimony and debate in several 
committees in the Senate and the House, the bill, from our 
perspective, continued to improve. I am convinced that the efforts of 
Vermont Legal Aid have been effective in improving the protections 
provided by this bill.
Our overall approach to the involuntary medication issue, and our 
goals throughout the legislative process, were the following: 
First, to minimize the use of involuntary medication, bearing
in mind that in our judgment we are not likely to move to a system in 
which there is no involuntary treatment. 
Second, to be sure that whatever system is put in place will base
involuntary medication decisions on the appropriate standard. 
And third, to ensure that whatever system is created will contain 
adequate procedural protections for persons faced with the possibility
of involuntary medication. It was based on these considerations that 
we decided that we would not oppose the present version of S-103.
Having said that, it is clear that S-103 is not a perfect bill. There 
are several changes that, in our view, would make it better than it 
now stands. First, we believe that a more appropriate standard for 
decisions on involuntary medication applications is substituted 
judgment; that is the standard set forth in J.L. and we believe that it 
is the  most appropriate standard for such decisions. If it is not 
possible  to reach agreement on a substituted judgment standard we would 
amend proposed 
7625(c), which now provides that "the court shall first consider 
the individual's previously expressed written or oral preferences 
. . ." to provide that "the court shall give primary consideration 
to the individual's previously expressed written or oral preferences." 
I believe that this is the intention of the present language, but that 
this change will make this intention more  explicit. 
Second, we would amend proposed  7625(g) to limit the term of any 
involuntary medication order to three months, and require a new 
application for any involuntary medication beyond that time.
Third, we provide that the same standards and procedures should apply 
to the medication decisions of guardians. 
Fourth, we would delete  2 of the bill in its entirety. This section 
allows for an application for continued treatment to be filed 
following the expiration of an initial ninety-day order of
nonhospitalization. In our view it is preferable to limit orders of 
nonhospitalization not arising out of a discharge from a hospital to 
ninety days, so that people who may be experiencing their first
episode of mental illness, and who can be maintained in the community 
without a court order requiring treatment, have the opportunity to do 
Finally, as a stylistic matter we would suggest that proposed  7624 
be divided into subsections (a) and (b), with subsection (a) 
concluding after the first subsection (2) and subsection (b) 
beginning with "The petition shall be filed . . ." and continuing 
through the end of the section.
I am optimistic that it will be possible for the Department and the 
advocates to continue discussing these issues in the coming weeks, 
and that the bill which is finally enacted will reflect the work of 
all sides, and will be even more protective of individual rights than
the current proposal.
Thank you.
For comments people can reply to Jack McCullough via e-mail at:
JMccull171@aol.com or Jack can be telephoned at (802) 241-3222.
If you e-mail comments to Jack, and you feel comfortable sending me a 
copy of your comments, please c.c. to Morgan W. Brown at:

Montpelier Vermont USA

P.S. Have you visited Norsehorse's Home Turf recently? If you want to 
explore more on S. 103, you'll find some information there.
Norsehorse's Home Turf: http://members.tripod.com/~Norsehorse/ 

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