The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-00-55
DkM~ KEN- 11/2.9/200\
VIRGINIA GREEN,
Petitioner
Vv. DECISION AND ORDER
COMMISSIONER, DEPARTMENT
OF MENTAL HEALTH, MENTAL
RETARDATION, and SUBSTANCE
ABUSE SERVICES,
Respondent
This matter is before the court on petitioner’s 80C appeal from final agency
action. Virginia Green is a patient at the Augusta Mental Health Institute (AMHI).
In May of 2000, she was transferred to a unit at AMHI which modified her
“treatment plan” to awaken Ms. Green one hour earlier each week until she was
awake by 8:00 a.m. each morning. Petitioner had not agreed to be awakened before
11:00 a.m.. Ms. Green is not under guardianship and asserts that she has the right to
refuse treatment or services under the Rights of Recipients of Mental Health
Services. Accordingly, Ms. Green filed a grievance under Department regulations.
A level III grievance hearing was held by order of the Commissioner and a
Recommended Decision was issued by the hearing officer. The fundamental issue is
whether the waking of Ms. Green against her will and without her consent before
11:00 a.m. constitutes such “treatment” as to violate her right to refuse all or several
services.
The hearing officer found, as fact, that the petitioner was admitted to AMHI
in February of 1997. In May of 2000, she was transferred to a different unit in the
hospital. Prior to the transfer, seven different psychiatrists had treated her. The
clinical staff was concerned about grievant's sleeping and waking cycle of sleeping
late in the morning and staying up late at night. Her previous treating physician
concluded that her health was best served by honoring that established cycle. Upon
her transfer, a decision was made to make changes in the petitioner’s sleeping cycle.
The reason for this change was that the medical unit “has a milieu that is
therapeutic and the grievant’s treating psychiatrist wanted the grievant to be able to
be part of that milieu.” The treating psychiatrist wanted Ms. Green to participate in
activities on the unit and felt that she could not make an informed choice about
whether she wanted to participate without being able to try things out. Many of
these treatment activities take place before 11:00 a.m. The treating psychiatrist
wishes to maximize petitioner’s participation in the outside world by giving the staff
the greatest possible contact with her. Accordingly, the doctor feels that Ms. Green’s
“waking cycle must be altered to reflect the activity cycle of the unit and staff.”
It is undisputed that Ms. Green has consistently refused to consent to being
awakened before 11:00 a.m. By regulation, the recipients of mental health services
have the right to refuse all or some of the services or treatment offered. The same
regulation providing these rights does not define the term “services” but does
define “treatment.” It means:
Treatment means any activity meant to prevent, ameliorate, prevent
deterioration of, or cure a recipient’s mental health problem or mental
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illness and includes behavioral, psychological, medical, social,
psychosocial and rehabilitative methods that meet usual and
customary standards in the field of mental health treatment.
The hearing examiner concluded that the record does not support the
position of AMHI that the primary reason for the wakening has to do with the
practical matters of scheduling on the unit. Rather, the examiner found that the
record tends to suggest that the convenience of the unit is rather a minor
consideration. The hearing examiner was satisfied that the normal waking and
sleeping cycle is meant to “prevent, ameliorate, prevent deterioration of, or cure the
grievant’s mental health problem.” Accordingly, the examiner found the decision
to wake the petitioner early is treatment and required petitioner’s consent. The
Administrative Hearing Officer therefore concluded that AMHI did violate the
rights of Ms. Green.
This Recommended Decision was forwarded to the Commissioner along with
AMHI’s exceptions to the Recommended Decision. By her final decision dated July
18, 2000, the Commissioner of the Department Mental Health, Mental Retardation,
and Substance Abuse Services specifically adopted the Findings of Fact as contained
in Hearing Officer Rogers-Tomer’s Recommended Decision. However, she declined
to adopt the Recommended Decision, instead adopting the interpretation of the
regulations offered in the exceptions filed by AMHI. The Commissioner concluded
that “the practice of waking the grievant prior to 11:00 a.m. does not constitute
treatment as defined under Part A, sec. II(Q) of the ‘Rights of Recipients of Mental
Health Services,’ nor is it a service.” From this decision, this 80C appeal is before the
court.
When the decision of an administrative agency is appealed pursuant to M.R.
Civ. P. 80C, this court reviews the agency’s decision directly for abuse of discretion,
errors of law, or findings not supported by the evidence. Centamore v. Dep't of
Human Services, 664 A.2d 369, 370 (Me. 1995).- In reviewing the decisions of an
administrative agency, the court should “not attempt to second-guess the agency on
matters falling within its realm of expertise” and the court’s review is limited to
“determining whether the agency’s conclusions are unreasonable, unjust or
unlawful in light of the record.” Imagineering v. Superintendent of Ins., 593 A.2d
1050, 1053 (Me. 1991). Under this standard, it is important for the court to examine
the respondent’s final decision to be clear as to the basis for her conclusion.
It is first noted that the Commissioner adopts the findings of fact as made by
the hearing officer. Secondly, she adopts the interpretation of the regulations
offered by AMHI’s exceptions. The position of the hospital as recited in the
exceptions is that:
The activity of gradually converting Ms. Green to a schedule more in
keeping with the routine of the hospital does not fit in the definition of
treatment in the Rights of Recipients. Certainly, the change in sleep
routine promotes the opportunity to undertake the activities that
would qualify as treatment. However, the evidence from the hearing
demonstrates that the change in sleeping pattern, though it may
facilitate treatment activities, is not treatment as defined in the
regulation.
In other words, AMHI asserts that the contribution to the prevention, amelioration,
prevention of deterioration of or cure of recipient’s mental health problem is an
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incidental benefit but does not elevate the hospital’s actions to a violation of
petitioner’s right to refuse treatment. Said another way, the Commissioner
determined that waking Ms. Green at 8:00 a.m. in the morning was a process by
‘which the hospital made Ms. Green available for treatment rather than treatment
itself.
Petitioner argues that the Commissioner’s conclusion is not supported by
substantial evidence or was affected by errors of law. While it is a close call, any
doubt in the mind of the court over the wisdom over the Commissioner’s ultimate
conclusion is not sufficient to reverse the decision. Contrary to petitioner’s
argument, an agency’s interpretation of its own internal rules and procedures is
entitled to deference unless the rule or regulation plainly compels a contrary result.
Hale-Rice v. Maine State Retirement System, 1997 ME 64, ¥ 12, 691 A.2d 1232, 1236.
Dr. Arnold testified at the hearing about the benefits of having Ms. Green
adapt to the “therapeutic milieu” of the unit. He further testified that waking her at
an earlier hour was grounded on more practical considerations to have her
ultimately take part in unit activities which would be unquestionably considered
treatment. On that close question, the court is obligated to defer to the
Commissioner’s conclusion that while waking Ms. Green earlier would allow her
the opportunity to participate in treatment, the waking itself is not treatment.
The petitioner also argues that waking Ms. Green is a service to which she has
the right to refuse. The petitioner urges the court to adopt a dictionary definition of
the word. However, the dictionary definition includes “help, use, benefit” and is in
many respects somewhat synonymous with treatment.
Finally, petitioner argues that the refusal on the part of the Commissioner to
agree with the Recommended Decision is a violation of due process. Indeed, in the
Chief Advocate’s reply to exceptions filed with the Commissioner, it is argued that
there is no reason for the Commissioner to make an independent decision but that
the hearing examiner herself /himself should be fully empowered to make such
decisions. Apparently, petitioner is satisfied that reaching a different conclusion to
the same set of facts is a violation of due process. In this regard, this court has
previously concluded that the process of 80B or 80C appeals is sifficient due process
protection to meet the constitutional requirements. The exhaustion of these state-
law remedies is necessary before a litigant may bring an independent claim on
procedural due process grounds.
To the extent the petitioner believes that a liberty interest is involved, this
court is satisfied that once a liberty interest has been identified it becomes necessary
to determine what process is due. Board of Regents v. Roth, 408 U.S. 564 (1972).
Three factors have been adopted as an analytical tool to determine the specific
dictates of due process. Mathews v. Eldridge, 424 U.S. 319 (1976). First, the private
interest that will be affected by the official action; second, the risk of erroneous
deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government's
interest, including the fiscal and administrative burdens that the additional
procedural requirement would entail. Id. at 325. For purposes of the present
analysis, even assuming a liberty interest is at issue, the risk of erroneous
deprivation through the present procedures is very minimal. Petitioner has been
afforded a hearing below, now has this court’s attention to her complaints on
appeal, and will, if she so desires, have the right to appeal this court’s decision to the
Law Court. The process afforded her is constitutionally sufficient.
For all the reasons cited above, the entry will be:
The final agency action of the Department of Mental Health,
Mental Retardation, and Substance Abuse Services is AFFIRMED.
Dated: November 2 , 2000 epi
Donald H. Marden
Justice, Superior Court
Date Filed
8/16/00
__Kennebec ss S—<Csé« Dee’ NN. APOO-55
County
Action ____ Petition for Review
Virgina Green VS.
B0C ~ S MARDEN
Comm. Lynn Duby, DMHMRSAS
Plaintiff's Attorney
Jack Comart, Esq.
P.O. Box 2429
Augusta, Maine 04338
Defendant’s Attorney
Katherine Greason, AAG (9/5/00)
6 State House Station
Augusta, Maine 04333
Date of
Entry
8/17/00 Petition for Review of Final Abency Action M.R.Civ.P.80C with Incorporated
Independent Claims for Relief, filed. s/Comart, Esq.
8/21/00 Amended Petition for Review of Final Agency Action M.R.Civ.P. 80C with
Independent Claims for Relief, filed. s/Comart, Esq.
Motion to Specify Future Course of Proceedigns, filed. s/Comart, Esq..-
Proposed Order, filed.
9/5/00 Answer to Amended Petition with Independent Claims, filed. s/Greason, AAG
9/11/00 Stipulation Specifying Future Course of Proceedings, filed. s/Greason, AAG.
Stipulation, filed. s/Greason, AAG. & Ender, Esq.
9/18/00 Certified Administrative Record, filed. s/Greason, AAG.
9/19/00 Notice of briefing schedule mailed to attys of record.
9/21/00 Motion and Incorporated Memorandum of Law for Stay And/Or Preliminary In-
junctive Relief, filed. s/Comart, Esq.
10/3/00 Reply to Motion for Stay or Preliminary Injunctive Relief, filed. s/Greason,
AAG.
10/6/00 Attorneys notified by telephone of hearing on 10/10/00 at 11:30 a.m.
10/10/00 Hearing had on motion for injunctive relief, Hon. Donald Marden Presiding.
Cook, C.R.
No courtroom clerk present. Attys made arguments to the court. Court
denies motion and will entertain a motion for expedited hearing on appeal.
MOTION FOR STAY/INJUNCTIVE RELIEF, Marden, J.
After hering, for reasons stated on the record, motion DENIED.
Copies mailed to attys of record.
10/18/00 Petitioner's Brief, filed. s/Comart, Esq. ME