2004-570, IN THE MATTER OF B.T.

The respondent, B.T., appeals an order of the Hillsborough

on the brief and orally), for the petitioner. Craig, Wenners, Craig and Capuchino, of Manchester (Linda Capuchino Errors may be reported by E-mail at the following address:

Fox on the brief, and Mr. Fox orally), for the respondent. Disability Rights Center, Inc., of Concord (Cindy Robertson and James

errors in order that corrections may be made before the opinion goes to press. No. 2004-570 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough County Probate Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as conditional discharge. p. 2 MHC psychiatrist. This resulted in another temporary revocation of her

stated that she was not taking Abilify, a medication prescribed to her by her instead.

decompensation of her mental condition manifested by severe

B.T. from lowering her medication level. His testimony and report state:

recommended a psychological assessment by MHC. At this assessment, B.T. 2 Center Emergency Room, where a physician examined her for chest pains and planned to take St. John’s Wort, prescribed by her homeopathic physician, and complaining of chest pains.” The police took B.T. to the Catholic Medical

recommended treatment which has often resulted in rapid

conditional discharge and could result in another revocation, which dissuaded “schizoaffective disorder bipolar type” and “narcissistic personality disorder.”

call from B.T. in which she stated that she planned to stop taking Abilify and B.T. “wandering around Hanover Street in Manchester, NH in a confused state prescribed medications and testified that in early May 2004, DeVoe received a court. At the hearing, DeVoe described B.T.’s history of not taking her [B.T.] has a long and extensive history of noncompliance with her

medications prescribed by the MHC staff psychiatrist. discharge. One condition of her conditional discharge was that she take the prescribed medication. DeVoe warned B.T. that doing so would violate her Dr. Breitholtz examined B.T. in June 2004 and diagnosed her as having informed by B.T. that she had decided on her own to decrease her dosage of a Hampshire Hospital for twenty days. Additionally, in June 2003, DeVoe was

concerned about her condition. Later that day, the Manchester Police found commitment, which gave rise to a hearing on July 22, 2004, in the probate On June 7, 2004, DeVoe filed the instant petition for B.T.’s involuntary

exceed three years, expiring on June 4, 2004, but again received a conditional

temporarily revoked. The revocation resulted in B.T.’s admission to New

On May 13, 2004, DeVoe was notified that B.T.’s family members were

admission. In 2001, she was involuntarily admitted again for a period not to but she was conditionally discharged prior to the expiration of her two-year It is unclear from the record exactly when B.T. was released from the hospital, violations of the conditional discharge, her conditional discharge was speech, and preoccupation with side effects of the medications.” Due to her occasions and experienced what the petition describes as “agitation, pressured In December 2002, B.T. discontinued her required medications on two

court ordered her involuntarily admitted for a period not to exceed two years. medications and was hospitalized. During this hospitalization, the probate time, if any, to allow for conditional discharge. RSA 135-C:45, II.

p. 3 patient agrees to abide by the rules of the conditional discharge. RSA 135-

involuntary admission, the probate court shall include an appropriate period of

admitted to participate in treatment on an out-patient basis, provided that the

under RSA 135-C:45 or :46. Along with determining the length of the maximum duration of an involuntary admission is five years, unless renewed last for a maximum of ten days unless extended. RSA 135-C:31, :32. The commitment. III, which requires a lower standard of proof than an initial involuntary 135-C:27, :34; admission, which is commonly referred to as an “involuntary admission.” RSA involuntary emergency admission (IEA) or nonemergency involuntary Conditional discharge allows a person who has been involuntarily individuals involved in that system.

herself or others.

RSA 135-C:34 proceeding as an “involuntary admission”). An IEA may only conditional discharge.” see also In re Perley, 137 N.H. 209, 211 (1993) (referring to an Hospital for a period not to exceed three years for the express purpose of evidence for an extension of B.T.’s conditional discharge under RSA 135-C:45, herself.” The probate court ordered that B.T. be “admitted to New Hampshire may be involuntarily admitted into an approved treatment facility by either

provides for procedures used in the admission, maintenance, and release of RSA 135-C:34 and RSA 135-C:45. System,” establishes a system of mental health facilities in New Hampshire and analysis. RSA chapter 135-C, entitled “New Hampshire Mental Health Services illness as to create a potentially serious likelihood of danger to An overview of the applicable statutory scheme provides a context for our

proof under RSA 135-C:34. She also argues that she presented sufficient result of mental illness to create a potential serious likelihood of danger to that B.T. posed a danger to herself or others and therefore met the standard of The petitioner responds that she proved by clear and convincing evidence

involuntary commitment for the purpose of conditional discharge pursuant to presented insufficient evidence at the hearing to support an order of that [B.T] remains in such a mental condition as a result of mental B.T. appeals the probate court’s order, arguing that the petitioner of noncompliance with taking her medication . . . . It is my opinion and I feel without a conditional discharge there is a very high risk

The probate court ruled that B.T. was “of such mental condition as a

ideation. She expresses minimal insight into her mental condition agitation, emotional lability, delusional thinking and paranoid the prior order for involuntary admission and conditional discharge.

p. 4 hearing, the probate court could not have applied RSA 135-C:45, III to renew the legislature did not see fit to include. consider what the legislature might have said or add language that beyond it for further indication of legislative intent, and we will not

led to the person’s dangerous condition. necessary to prevent the recurrence of the circumstances which 22, 2004. Since B.T.’s conditional discharge had expired at the time of the discharge also expired on June 4, 2004. The hearing at issue occurred on July involuntary admission order. RSA 135-C:51, II. Accordingly, B.T.’s conditional a statute’s language is plain and unambiguous, we need not look

respondent to remain on conditional discharge if such treatment is

conditional discharge cannot exceed the period of time remaining on an ascribe the plain and ordinary meanings to the words used. When prior to the filing of the instant petition. Cf. RSA 135-C:39 (2005). A to the record, B.T.’s latest involuntary admission expired on June 4, 2004, respondent be on a conditional discharge at the time of the hearing. According RSA 135-C:45, III (emphasis added). This provision expressly requires that the

facility, or renew such an order, for the purpose of permitting the hearing, the court may order involuntary admission to a receiving If the respondent is on a conditional discharge at the time of the first examine the language of the statute, and, where possible, RSA 135-C:45, III states:

omitted). Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citations C:45, III. to support an extension of B.T.’s involuntary admission pursuant to RSA 135-

court. RSA 135-C:50, II. as expressed in the words of the statute considered as a whole. We period of time remaining on the involuntary admission ordered by the probate review de novo. We are the final arbiters of the legislature’s intent treatment facility. RSA 135-C:51. A conditional discharge may not exceed the The interpretation of a statute is a question of law, which we

We first address DeVoe’s argument that she presented sufficient evidence

permanent revocation of the conditional discharge, which requires a return to a C:50. Failure to comply with such rules may result in a temporary or person is in such mental condition as a result of mental illness as p. 5 released on conditional discharge.

case:

led to the person’s dangerous condition.

facility for treatment on an involuntary basis shall be whether the conditional discharge. The respondent must be admitted before he can be

the following was the applicable standard for the involuntary admission in this admission. The parties agree that the probate court correctly determined that sufficient proof presented at the hearing to support an order for an involuntary necessary to prevent the recurrence of the circumstances which 5 medical, psychiatric, or psychological care or treatment is longer requires inpatient treatment but a prescribed regimen of

determining whether a person should be admitted to a receiving scheme creates a two-step process for an admission for the purposes of

requires an initial admission, and a potential readmission, there must be

recovered from his mental illness to such an extent that he no

The standard to be used by a court, physician, or psychiatrist in admission precede an allowance for conditional discharge. Thus, the statutory

Because an order of admission for the purposes of conditional discharge

of conditional discharge shall be appropriate when the person has if any, to allow for conditional discharge. Admission for purposes include in the duration of said order an appropriate period of time,

RSA 135-C:45, II. The plain language of this statute requires that an order of of conditional discharge:

interpretation, which is a question of law, we apply our made.” RSA 567-A:4 (1997). As our analysis also requires statutory unless they are so plainly erroneous that such findings could not be reasonably

support or tainted by error of law.” findings and rulings of the trial court unless they are lacking in evidential In any order of admission to a receiving facility, the court shall review sufficiency of the evidence claims as a matter of law and uphold the

RSA chapter 135-C permits a court to order admission for the purposes

statutory interpretation, as stated above.

N.H. 441, 442 (2002). “The findings of fact of the judge of probate are final

an involuntary commitment for the purposes of conditional discharge. “We We next address whether DeVoe presented sufficient evidence to support

II. Admission for the Purposes of Conditional Discharge both types of admissions. p. 6 the criteria for dangerousness under RSA 135-C:27 as stated above apply to likelihood of danger, not in what the danger is. We conclude, therefore, that

danger to himself or others,” RSA 135-C:34. The difference lies in the

standard requires that the person pose a “potentially serious likelihood of danger to himself or others,” RSA 135-C:27, while the involuntary admission primary difference is that an IEA requires that the person pose a “likelihood of

which is similar to the involuntary admission standard in RSA 135-C:34. The

result of mental illness to pose a likelihood of danger to himself or others,”

statutory scheme for guidance.” term or phrase is not specifically defined, we look to other provisions of the for involuntary emergency admission if he is in such mental condition as a The standard for an IEA set out in RSA 135-C:27 is: “A person shall be eligible to our analysis of RSA 135-C:34, as both statutes employ similar standards.

Breitholtz termed “decompensation,” which includes “severe agitation,

define “danger to himself or others,” though RSA 135-C:27 does. “Where a

admission is not ordered. RSA 135-C:27. The same criteria reasonably apply

her medications. When she did, she experienced what DeVoe and Dr. B.T. had poor insight into her illness and a history of choosing to discontinue The evidence of B.T.’s dangerousness presented at the hearing was that RSA 135-C:34, which governs involuntary admissions, does not specifically

one’s own welfare such that there is a likelihood of serious debilitation if of “serious bodily injury” to oneself or another or a lack of capacity to care for requires a threat of, a likelihood of, an attempt to inflict, or an actual infliction

evidence.

C:34, we must define “danger to himself or others” as used in that section. potentially serious likelihood of danger to herself or others under RSA 135-

danger to oneself or danger to others, in the context of an IEA, RSA 135-C:27 (decided December 9, 2005). In establishing the criteria for proving either

To determine whether the facts support the finding that B.T. poses a

295, 298 (2001). of liberty and social stigmatization, are substantial.” In re Richard A., 146 N.H. because “[t]he private interests at stake in civil commitment proceedings, loss

Id. The standard of clear and convincing evidence is significant

N.H. 634, 640 (2004). We will uphold the probate court’s ruling unless no prove dangerousness by clear and convincing evidence. In re Sandra H., 150 a/k/a Cass, 132 N.H 478, 485 (1989); RSA 135-C:36, I(b). The petitioner must must plead specific acts or actions demonstrating dangerousness. In re Fasi RSA 135-C:34 (emphasis added). To support such a finding, the petitioner

others. to create a potentially serious likelihood of danger to himself or act and the history of the respondent.

p. 7 court’s determination will depend upon the nature and circumstances of the whether the actions are sufficiently recent or sufficiently similar to affect the attach substantial weight to past actions demonstrating dangerousness, but

potentially serious likelihood of danger to herself or to others. 7 approximately five years prior to the hearing, however. The trial court may insufficient to prove by clear and convincing evidence that B.T. poses a symptoms of agitation, delusion, disorganized thinking, and paranoia are

pains or her walking on a street.

that the statutory scheme seeks to advance.

had the potential to cause her serious bodily injury. The overdose occurred subsequent overdose. Her overdose is neither recent nor similar to the events actual or likely serious bodily injury. We therefore conclude that B.T.’s discontinued her medication multiple times and there is no evidence of a possibility of future dangerousness. Id. Since B.T.’s overdose in 1999, she has actual infliction of “serious bodily injury” on herself or on another. reveals no likelihood of serious bodily injury caused by B.T.’s claims of chest present dangerousness. Id. at 484. Such acts merely help to predict the acts or actions required to demonstrate a threat, a likelihood, an attempt, or an Proof of the commission of past dangerous acts is not tantamount to proof of C:34 to herself or to anyone else. These symptoms do not satisfy the specific system.” RSA 135-C:1, III. We must interpret a statute in light of the policy In re Fasi a/k/a Cass, 132 N.H. at 485.

B.T.’s overdose, on the other hand, was undoubtedly a specific act that 135-C:34 requires clear and convincing proof of specific acts demonstrating

also insufficient to prove her present or future dangerousness. The record walking on a street complaining of chest pains and her overdose in 1999, are illness; however, such symptoms do not make her “dangerous” under RSA 135- insufficient to involuntarily admit any person into the mental health services The physical manifestations of B.T.’s mental illness, specifically, her

experiences symptoms of mental illness.

involuntary admission based solely on the existence of a mental illness. RSA Aeronautics, 152 N.H. 30, 38-39 (2005). We may not, therefore, order an

when off her medication may support a finding that B.T. suffers from a mental “It is the policy of this state that mental illness in and of itself is

ordered. The evidence simply shows that, when off her medication, B.T. such that there was a likelihood of serious debilitation if admission was not finding that B.T. demonstrated a lack of capacity to care for her own welfare a/k/a Cass, 132 N.H at 485; RSA 135-C:36, I(b). The trial court made no

The evidence of agitation, delusion, and paranoia that B.T. experiences

DeVoe presented evidence that, in 1999, B.T. overdosed on pain medications. emotional lability, delusional thinking and paranoid ideation.” Additionally, report is insufficient to justify commitment.”

p. 8 of law to support the finding of dangerousness.

without evidence of dangerous conduct, even the most persuasive psychiatrist’s

hold that the evidence submitted to the trial court was insufficient as a matter

mental condition does not automatically operate to trigger commitment; illness. We have held, however, that “a psychiatrist’s finding of a dangerous potentially serious likelihood of danger to herself or others due to her mental commitment without clear and convincing proof of her dangerousness. We

demonstrating a potentially serious likelihood of dangerousness.

standard. Dr. Breitholtz’s report and testimony assert that B.T. poses a her illness, she cannot be deprived of her personal liberty by an involuntary

commitment without clear and convincing evidence of specific acts or actions BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

Dr. Breitholtz’s expert opinion that B.T. met the involuntary commitment Though we recognize that B.T. might benefit from medical treatment for

Despite Dr. Breitholtz’s expert opinion, there cannot be an involuntary

Additional evidence of B.T.’s dangerousness presented at the hearing was

determining her future dangerousness. that gave rise to the petition, and therefore has insufficient probative value for