[T]he Senate Judiciary Committee endorsed a bill Tuesday that seeks to clarify a controversial Vermont Supreme Court decision affecting mental health professionals.
The committee voted 4 to 1 to pass S.3, which addresses the decision Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services. The bill now moves to the full Senate.
The Department of Mental Health says the court’s ruling has contributed to a backlog of people awaiting inpatient treatment by causing providers to hold patients for longer periods.
In the Kuligoski decision, the Vermont Supreme Court ruled that lower courts must hear a case alleging that mental health providers did not sufficiently warn and train caretakers about a former patient who could become dangerous if he stopped taking his medication.
The patient, Evan Rapoza, had exhibited symptoms associated with schizophrenia, according to court documents. After being released from treatment facilities, Rapoza allegedly assaulted Michael Kuligoski to the point of permanent disability. Kuligoski’s family sued on his behalf, resulting in the decision.
“They created a new duty that really went beyond ‘duty to warn’ but ‘duty of how to provide care,’ and from my perspective didn’t really respect the individual’s rights to make choices for themselves,” said Julie Tessler, the executive director of Vermont Care Partners, an alliance of providers.
In tort law, “duty” refers to a legal obligation that must be kept to prevent harm toward others. Establishing that a person has a duty is a preliminary step in proving that person was negligent.
S.3 would make it clear that mental health providers need to break confidentiality and warn about a potentially dangerous patient only if the patient makes a threat against a specific identifiable person.
Additionally, the bill requires mental health providers to write detailed discharge plans that include “all necessary information on the client or patient’s condition to enable (caretakers named in the discharge plan) the ability to carry out his or her discharge functions.”
In the Kuligoski case, the plaintiffs argued that the Brattleboro Retreat and Northeast Kingdom Human Services did not sufficiently train Rapoza’s parents about what danger he could pose to others if he stopped taking his medication.
Tessler said the responsibilities of providers under the Kuligoski decision appeared “very amorphous” and could apply “if at any time in the future there was something that happened.” She said that was unreasonable because “human nature is just not that predictable.”
The original version of S.3 explicitly sought to overrule the Kuligoski decision and return to a standard set in 1986 in a Vermont Supreme Court case called Peck v. Counseling Service of Addison County. The bill now says that it only clarifies the implications of the Kuligoski decision.
Sen. Dick Sears, D-Bennington, the chair of the Senate Judiciary Committee, said he does not agree with everything in the bill. But he said it was important for the Legislature to address the implications of the Kuligoski decision and debate any remaining issues on the Senate floor.
“I thought it was important to clarify the ‘duty to warn,’” Sears said. “I’m not sure that we needed a section on discharge planning, but I want to move the bill through the legislative process.”
Sen. Alice Nitka, D-Windsor, was the only committee member who voted against the bill. She said S.3 does not do enough to protect the public and that the section on discharge planning doesn’t go far enough.
Nitka said there is nothing in the current bill that requires someone in the mental health field to review a patient’s discharge plan if someone violates the plan.
Additionally, she disagrees with the provisions saying mental health providers need to warn about a potentially dangerous patient only in the case of an identifiable target.
Nitka used the example of someone who threatens to kill a barber. “If you didn’t call all the five barbers in town, I think that that’s not right,” she said.
Sears addressed the concern that the Kuligoski decision has made providers more cautious about releasing patients.
“The testimony (we received) is that we have held up a lot of people in more restrictive settings, and the goal here is to move them out of more restrictive settings, move them into the community,” he said.
