Second Circuit Overturns Vermont Law Limiting The Right Of Persons with Mental Illness to Enforce Advance Directives

On August 1, 2003, the Second Circuit affirmed the district court decision in Hargrave and Vermont P&A v. Vermont, which had granted plaintiffs’ motion for partial summary judgment and had enjoined the enforcement of a state statute allowing civilly committed individuals with mental illness to be involuntarily medicated against the express instructions in their advance directive.

At issue in Hargrave  was Vermont’s “Act 114,” Vt. Stat. Ann. tit. 18, § 7624 et seq. , which allowed health care professionals to petition a family court for authority to involuntarily medicate persons who have been civilly committed and judged mentally ill.  Under Act 114, this authority could be granted even if it contradicted an individual’s legally prepared durable power of attorney for health care.  Vermont has no similar provision allowing a DPOA to be overridden for any other class of individuals.  Nanch Hargrave filed suit, challenging that Act 114 facially discriminates against individuals with mental illness in violation of the ADA Title II and Section 504 of the Rehabilitation Act, and the Vermont P&A intervened.  In 2002, the District Court ruled in favor of the plaintiffs and the state appealed to the Second Circuit.

Without much discussion, the Second Circuit affirmed the lower court’s denial of defendant’s motions to dismiss for mootness and lack of standing.  Below is a summary of the more detailed holdings regarding the ADA and Section 504 claims, which the Court discussed in tandem.

1) The Court rejected the state’s argument that, since at the time of civil commitment a court had found the plaintiffs to be “dangerous to self” these plaintiffs “fall into an exception to the ADA for otherwise qualified individuals who pose a significant risk to the health or safety of others.”  The Court stated that, “it is not certain that the direct threat defense applies outside of the employment context”, but even if it does, it does not exempt plaintiffs from ADA protections, because the determination of dangerousness had been made at the time of commitment, not at the time the DOPA is abrogated, which could be up to 45 days after commitment. 

2) The Court rejected the state’s claim that “Act 114 does not discriminate on the basis of mental illness because it does not threaten all the mentally ill within the State of Vermont, but rather, only the small class of people who are mentally ill, dangerous, committed to State custody, and incompetent to make treatment decisions.” The Court held that the fact that the law only applies to some people with mental illness is “irrelevant”.  The Court clarified that the discrimination arises from “a procedure whereby only mentally ill patients who have become incompetent may have their treatment preferences as expressed in their DPOAs overridden in family court; equally incompetent patients who are physically ill or injured enjoy the security of knowing that their DPOAs may only be abrogated in probate court after appointment of a guardian to protect their interests.” 

3) The Court rejected the state’s claim that an injunction on Act 114 “would fundamentally alter programs of civil commitment in Vermont” on the grounds that defendants failed to identify clearly the program that would be fundamentally altered, much less prove that changes would require anything more than reasonable modifications.

The decision can be downloaded from the web at: : http://caselaw.lp.findlaw.com/data2/circs/2nd/027160p.pdf or P&As can request a copy of the descision from info@ndrn.org .  Congratulations to the Vermont P&A; Susan Stefan of the Center for Public Representation, who authored an amicus brief on behalf of NAPAS and other national disability rights organizations; and the Bazelon Center for Mental Health Law, who coordinated the amicus strategy in this case.