in re M.C.

¶ 1 M.C. appeals the Lamoille Family Court’s decision to re 586 new his order of nonhospitalization (ONH). M.C. contends that the court erred in renewing his court-ordered treatment program when there was evidence that he is capable of continuing treatment voluntarily. We affirm. ¶ 2 M.C. is a 53-year-old man who suffers from chronic paranoid schizophrenia and experiences auditory hallucinations and delusional beliefs. He was hospitalized on several occasions during the 1970s, and, following his discharge on an ONH in 1981, he attempted to kill his brother with a shotgun. He was then committed to the Vermont State Hospital, where he remained until 1987. Since that time he has lived at a group home in Johnson, where he is supervised and receives anti-psychotic medication as his ONH requires. ¶ 3 M.C.’s ONH was initially of unlimited duration, but in 1998 Vermont law was changed to require annual judicial review. See 18 V.S.A. § 7621(c) (limiting court-ordered periods of treatment to one year). He has remained on an ONH since that time; some years by agreement of the parties and some years pursuant to a court order. When the State filed an application to renew M.C.’s ONH in April 2003, however, his attorney asserted that renewal was unwarranted because a voluntary course of treatment is feasible in his case. The family court concluded that M.C. remains a “patient in need of further treatment” pursuant to § 7101(16)(B),1 and that the ONH was the least restrictive means of administering that treatment. The court then renewed the ONH, and this appeal followed. ¶ 4 In judicial proceedings where involuntary mental health treatment is at issue, the State must prove its case by clear and convincing evidence. In re E.T., 2004 VT 111, ¶ 12, 177 Vt. 405, 865 A.2d 416. Once a patient raises the issue of voluntary treatment,2 the State must produce clear and convincing evidence that such treatment “is not feasible.” Id. (citations and quotations omitted). Our review of the family court’s decision is deferential, however, and we will reverse only if the court clearly erred in finding the requisite factual predicates. Id. ¶ 13 (citations and quotations omitted). ¶ 5 At the hearing below, the State presented the testimony of Dr. Judy Nepveu, M.C.’s treating physician at the group home. Dr. Nepveu testified that, despite taking medication, M.C. continues to hallucinate and hear voices coming from a “talking spot” on his forehead. He remains delusional, and sometimes be 587 lieves that familiar people have been taken over by “imposter[s].” Dr. Nepveu opined that M.C. is so preoccupied with his delusions that he is incapable of taking care of himself, and has to be reminded to perform basic daily tasks. She further testified that he lacks insight into his mental illness and does not understand the need to continue taking medication. She therefore expressed strong doubt that he is capable of continuing his treatment program voluntarily. After suggesting that M.C. is “just as dangerous as he ever was,” Dr. Nepveu concluded that “he needs to be under a court order because he has no idea that he needs help. And without help he would become dangerous____” ¶ 6 Dr. Robert Linder then testified on M.C.’s behalf. Dr. Linder said that he had evaluated M.C. several times since 1993, and that he had met with him twice in 2003 in preparation for the hearing. He testified that he had noticed some recent improvement in M.C.’s attitude toward his family and his medication, and said that M.C. now believes that he is “going to need to take medication indefinitely.” He agreed with Dr. Nepveu that M.C. lacks substantial insight into his mental illness, but suggested that he does recognize that he has been diagnosed with schizophrenia. He went on to say that M.C. has expressed a desire to be discharged from his ONH, and concluded that M.C. would voluntarily participate in treatment and services if he were not subject to the court order. ¶ 7 The court found Dr. Linder’s testimony ambivalent on the issue of whether M.C. was capable of complying with his treatment program in an unsupervised setting. Given Dr. Nepveu’s testimony, the court found that M.C. remained a “patient in need of further treatment,” 18 V.S.A. § 7101(16), and further found that voluntary treatment was not feasible. It concluded that the State had met the statutory requirements, demonstrating by clear and convincing evidence that M.C. required- further treatment, and further showing that the ONH was the least restrictive means of providing such treatment and protecting the public. The court then renewed the ONH for another year. On appeal, M.C. does not dispute that he needs further treatment, but he contends that the court erred in finding voluntary treatment is not feasible in his case. ¶ 8 In In re R.L., we held that the family court should consider several. factors in determining whether voluntary treatment is feasible for a particular patient, including “the patient’s capacity to consent to voluntary treatment, the impact voluntary treatment may have on the patient’s treatment plan, and whether the patient would, in fact, accept voluntary treatment.” 163 Vt. 168, 174, 657 A.2d 180, 184-85 (1995). That case dealt with a patient facing involuntary hospitalization, however, and we have recognized that “the feasibility of voluntary treatment involves additional considerations when the patient is no longer in the hospital.” In re E.T., 2004 VT 111, ¶ 11. In such a circumstance, it is appropriate for the court to also consider “the danger a patient poses to the community if treatment is discontinued.” Id. ¶ 9 There is adequate evidence in the record to support the family court’s finding that the State carried its burden in this case. Clear and convincing evidence is a demanding standard, but it “does not require that evidence in support of a fact be uneontradicted, ... [only] that the fact’s existence be highly probable.” Id. ¶ 12 (quotations omitted). In light of Dr. Nepveu’s testimony, the court did not clearly err in finding that M.C. lacked the capacity to consent to voluntary treatment, and that his potential failure to continue treatment would present a danger to the public. These findings, in turn, support the determination that M.C. remains a patient in need 588 of further treatment for whom voluntary treatment is not feasible. Accordingly, we affirm the court’s order renewing appellant’s ONH. Affirmed. Footnotes [1] The statute defines a “patient in need of further treatment” as: “A patient who is receiving adequate treatment, and who, if such treatment is discontinued, presents a substantial probability that in the near future his condition will deteriorate and he will become a person in need of treatment.” 18 V.S.A. § 7101(16)(B). A “person in need of treatment” is: “[A] person who is suffering from mental illness and, as a result of that mental illness, his capacity to exercise self-control, judgment or discretion in the conduct of his affairs and social relations is so lessened that he poses a danger of harm to himself or others.” Id. § 7101(17). [2] Despite the State’s contentions that M.C. has not raised the issue of voluntary treatment in “good faith,” the arguments that M.C.’s attorney advanced in the family court were sufficient to put voluntary treatment in issue. See In re E.T., 2004 VT 111, ¶ 7. (“[A] request, made through counsel in response to an application for continued treatment, [is] sufficient to put voluntary treatment in issue.”).