Green v. Commissioner of MHMRSAS
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MAINE SUPREME JUDICIAL COURT			      	                   Reporter of Decisions
Decision:	2001 ME 86
Docket: 	Ken-01-1
Argued:	May 17, 2001
Decided:	June 6, 2001

Panel:	         WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

VIRGINIA GREEN

v.

COMMISSIONER OF THE DEPARTMENT OF MENTAL HEALTH,
MENTAL RETARDATION AND SUBSTANCE ABUSE SERVICES

CLIFFORD, J.

	[¶1]  Virginia Green appeals from a judgment entered in the Superior
Court (Kennebec County, Marden, J.) affirming the decision of the
Commissioner of the Department of Mental Health, Mental Retardation and
Substance Abuse Services that Green could be awakened at 8:00 a.m. without
her informed consent.  Green contends that waking her constitutes
"treatment" or "services" that requires her informed consent, and that the
Commissioner's decision-making process violated her constitutional right of
due process.  We disagree and affirm the judgment.
	[¶2]  Virginia Green was admitted to the Augusta Mental Health
Institute (AMHI) in February of 1997.  Green is an involuntary patient as a
result of a judgment entered after a finding of not guilty by reason of insanity
in the death of her mother.  See 17-A M.R.S.A. § 39 (Supp. 2000);
15 M.R.S.A. § 103 (Supp. 2000).  She is diagnosed with bipolar disorder, for
which she takes mood-stabilizing and anti-depressive medications.  Until
recently, Green resided in the Stone North Middle unit of AMHI, where she
was permitted to sleep until noon each day. 
	[¶3]  In May of 2000, Green was involuntarily moved to the Stone
North Upper (SNU) unit of AMHI, where the decision was made to awaken
Green an hour earlier each week until she was awake at 8:00 a.m. each day. 
On May 28, 2000, Green filed a grievance with the Superintendent of AMHI
requesting that she not be awakened before 11:00 a.m. each day.  She argued,
among other things, that waking her constituted treatment, which AMHI
was not permitted to administer to her without her informed consent
pursuant to the Rights of Recipients of Mental Health Services (Rights of
Recipients).{1}  The Superintendent denied Green's grievance.
	[¶4]  Green appealed the Superintendent's decision to the
Commissioner of the Department of Mental Health, Mental Retardation and
Substance Abuse Services.  The Commissioner requested that a hearing
officer conduct the hearing and provide a recommended decision.  See
34-B M.R.S.A. § 1203(4) (Pamph. 2000).  Following a hearing, the hearing
officer issued a recommended decision organized into three sections with
capitalized headings:  "STIPULATED FINDINGS," "FINDINGS OF FACT," and
"REASONS FOR DECISION."  The FINDINGS OF FACT section consisted
primarily of the historical facts of the case, such as Green's diagnosis, her
sleep-wake cycle, her transfer to SNU, and SNU's decision to wake Green at
8:00 a.m.  In the REASONS FOR DECISION section, the hearing officer
concluded that waking Green constituted treatment, to which Green did not
consent, and recommended that the Commissioner find that SNU's plan to
wake Green at 8:00 a.m. violated her rights and should cease.  Both parties
filed exceptions to the hearing officer's recommended decision.
	[¶5]  The Commissioner's final decision specifically adopted the
FINDINGS OF FACT section issued by the hearing officer, but did not adopt
the REASONS FOR DECISION section.  Instead, the Commissioner adopted
AMHI's interpretations of the regulations contained in its exceptions, which
stated that waking Green did not constitute treatment or services, and was
instead intended (1) to give Green an opportunity to participate in such
treatment to which she may consent, (2) to give the clinical staff a chance to
observe Green, and (3) for smooth hospital operation.  The Commissioner
therefore denied the requested relief.
	[¶6]  Green then filed a petition for review of the Commissioner's
decision pursuant to M.R. Civ. P. 80C along with independent claims for
relief. Following a hearing, the court (Marden, J.) entered a judgment
affirming the Commissioner's decision.  Green then filed this appeal.
	[¶7]  The rules promulgated in the Rights of Recipients are the focus
of this appeal.  According to these rules, treatment of or services to a patient
may be administered only if one of the following is true:  (1) an emergency
requires it, (2) the patient gives informed consent for the treatment,
(3) AMHI proceeds with an administrative hearing to override a patient's
refusal, (4) the service being administered is involuntary hospitalization,
(5) the services rendered are forensic services, or (6) for those under
guardianship, with the guardian's consent to the treatment.  See Rights of
Recipients of Mental Health Servs. §§ A.III.F, B.V.A (Jan. 1, 1995).  The
parties agree and have stipulated that none of these conditions has been
satisfied here-no emergency requires that Green be awakened before
11:00 a.m., Green did not consent to being awakened before 11:00 a.m.,
AMHI has not sought an administrative hearing, the service at issue does not
involve involuntary hospitalization or forensic services, and Green is not
subject to guardianship.
	[¶8]  Rather, the dispute in this case is whether waking Green
constitutes "treatment" or "services" within the meaning of the Rights of
Recipients, and thus requires the existence of one of the foregoing
conditions above before it can be administered.  The parties agree that
"services," although not specifically defined in the Rights of Recipients, is
largely synonymous with "treatment," which is defined as, "any activity
meant to prevent, ameliorate, prevent deterioration of, or cure a recipient's
mental health problems or mental illness and includes behavioral,
psychological, medical, social, psychosocial and rehabilitative methods that
meet usual and customary standards in the field of mental health
treatment."  Rights of Recipients of Mental Health Servs. § A.II.P
(Jan. 1, 1995).
	[¶9]  Because the Superior Court acted in its appellate capacity, we
directly review the decision of the administrative agency, in this case, the
Commissioner.  See Davric Me. Corp. v. Me. Harness Racing Comm'n,
1999 ME 99, ¶ 7, 732 A.2d 289, 293.  The Commissioner's decision is
reviewed for abuse of discretion, error of law, or findings not supported by
substantial evidence in the record.  See id.  The factual findings of the
Commissioner must be affirmed unless clearly erroneous.  See Imagineering,
Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). 
Furthermore, we defer to an agency in those areas within its expertise
unless a statute or regulation compels a contrary result.  Id.  Matters
involving the rights of recipients of mental health treatment are within the
Commissioner's expertise, whose statutory duties include the "general
supervision, management and control of . . . employees and clients of all
state institutions," and who "may perform any legal act relating to the care,
custody, treatment, relief and improvement of the residents of state
institutions . . . ."  34-B M.R.S.A. §§ 1203(1), 1204(1) (1988).

I.

	[¶10]  Green first contends that AMHI's purpose in waking her at
8:00 a.m. is for treatment-related rather than institutional reasons such as
scheduling and organization.  She emphasizes the "meant to" language of
the treatment definition, and contends that whether or not something is
treatment depends on the intent or purpose in administering it.  The
hearing officer concluded that waking Green was "meant to prevent,
ameliorate, prevent deterioration of, or cure the grievant's mental health
problem," a finding Green argues may not be overturned unless clearly
erroneous.  The crux of Green's argument is that because the hearing officer
found that waking Green was treatment, and because the Commissioner
then adopted the hearing officer's findings of fact, the Commissioner erred
in finding that waking Green was not treatment.
	[¶11]  We disagree.  By the plain language of her written decision, the
Commissioner adopted only the historical findings of fact contained under
the FINDINGS OF FACT heading in the hearing officer's recommended
decision rather than all the findings and conclusions found throughout the
recommended decision.  The Commissioner's decision states, "I adopt the
Findings of Fact as contained in [the hearing officer's] Recommended
Decision."  The capitalization of "Findings of Fact" clearly indicates the
Commissioner's intent to refer to the heading rather than to all findings of
fact, which would not be capitalized.  The hearing officer's conclusion that
waking Green was for treatment rather than institutional purposes was
located in the REASONS FOR DECISION section, which the Commissioner
did not adopt.
	[¶12]  It is the Commissioner's findings that are subject to review for
clear error and not those of the hearing officer.  See Kelley v. Comm'r, Me.
Dep't of Human Svcs., 591 A.2d 1300, 1303 (Me. 1991).  As the
unsuccessful party at the trial level, in order to disturb the Commissioner's
findings, it is Green's burden to show more than that there was competent
evidence to support her position; she has to demonstrate that there was no
competent evidence to support those findings.  See Minot Sch. Comm. v.
Minot Educ. Ass'n, 1998 ME 211, ¶ 6, 717 A.2d 372, 375.  There is ample
evidence in the record to support the Commissioner's conclusion that
waking Green (1) gave her an opportunity to participate in treatment to
which she consented, (2) gave the clinical staff a chance to observe Green,
and (3) benefitted smooth hospital operation.  This evidence included
testimony regarding the schedule and morning routine at SNU.  The
hospital begins by waking all patients between 7:15 a.m. and 8:15 a.m. to go
over their daily schedule and serve them breakfast.  Medications are also
dispensed at that time, and a morning meeting is held to orient patients to
time and weather, to determine if any patient needs to see the medical
doctor or social worker, to review the day's activities, to take questions, to
remind patients of their appointments, and to see if any patient wants a
privilege or day pass.  Treatment groups begin at 9:00 a.m., some of which
Green has been encouraged, but not forced, to attend.  The medical doctor
also sees patients in the morning.  Testimony further indicated that the
purpose of waking Green was to provide her with the opportunity to
participate in treatment that occurred prior to 11:00 a.m.
	[¶13]  We discern no error in the Commissioner's conclusion that
creating an opportunity to receive treatment is not treatment itself.  The
authority to oversee management of AMHI, including providing the
opportunity for treatment, is vested in the Commissioner, not in the
patients.   Green has no right to refuse AMHI's provision of the opportunity
for treatment.  That is AMHI's very mission.  To conclude otherwise would
mean that AMHI's every action, including the provision of shelter, light, and
heat would constitute treatment, and would lead to an absurd result. 
Therefore, competent evidence exists to support the Commissioner's
findings and we will not overturn them.

II.

	[¶14]  Green also contends that the Commissioner violated her right
of due process by making findings without hearing evidence.  She argues
that, pursuant to Pelkey v. City of Presque Isle, 577 A.2d 341 (Me. 1990),
only the hearing authority who heard the evidence presented and assessed
the witnesses' credibility is permitted to make findings.{2}  We disagree.  The
holding of Pelkey is distinguishable from the present case because in Pelkey,
members of the Board who had neither heard nor considered any evidence
in association with the plaintiff's case issued findings of fact.  In contrast,
the Commissioner in this case considered the evidence and the submissions
of the parties, as well as the findings and recommendations issued by the
hearing officer, before issuing a decision.
	[¶15]  Although there is a liberty interest in refusing treatment,
Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990), that liberty
interest is not implicated here because waking Green is not treatment. 
Furthermore, we have stated many times that due process does not require
that the decision-maker in an administrative hearing hear or read all the
testimony.  See, e.g., New England Tel. & Tel. Co. v. Pub. Utils. Comm'n, 448
A.2d 272, 279 (Me. 1982).  "As long as the [decision-making] officer both
familiarizes himself with the evidence sufficient to assure himself that all
statutory criteria have been satisfied and retains the ultimate authority to
render the decision, he can properly utilize subordinate officers to gather
evidence and make preliminary reports." Harold D. Smith & Sons, Inc. v.
Fin. Auth. of Me., 543 A.2d 814, 818 (Me. 1988).  In fact, statutory authority
specifically authorizes the use of hearing officers to make proposed findings. 
5 M.R.S.A. § 9062(4) (1989).  Furthermore, the Commissioner is permitted
to "contract for the services of [a] hearing examiner or examiners, who shall
conduct all adjudicatory proceedings pursuant to the Maine Administrative
Procedure Act . . . ."  34-B M.R.S.A. § 1203(4) (Pamph. 2000).  No authority,
however, binds the agency decision-maker to the findings contained in the
hearing officer's report.  The Commissioner's failure to adopt the
recommended decision of the hearing officer was therefore not error.  	
	The entry is:
			Judgment affirmed.
                                                        

Attorneys for plaintiff:

Patricia Ender, Esq., (orally)
Jack Comart, Esq.
Pine Tree Legal Assistance, Inc.
P O Box 2429
Augusta, ME 04338-2429

Attoneys for defendant:

G. Steven Rowe, Attorney General
Katherine Greason, Asst. Attorney General (orally)
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES********************************

{1}	.  The Rights of Recipients of Mental Health Services, a set of rules promulgated
pursuant to the Maine Administrative Procedure Act, 34-B M.R.S.A. § 3003 (1988 & Pamph.
2000), states:

Recipients have the right to refuse all or some of the services offered, subject to
the exceptions noted below. . . . Only the following services may be imposed
against a recipient's wishes:

	1.	Involuntary hospitalization . . . ;

	2.	Forensic services . . . in a residential or hospital setting;

	3.	Services permitted under applicable law in the case of a person
	under guardianship, upon the guardian's informed consent and within
	the limits of the guardian's authority;

	4.	Emergency treatment in a residential or hospital setting during a
	psychiatric emergency, pursuant to procedures set out in these rules; or

	5. 	Treatment in a residential or hospital setting pursuant to the
	administrative hearing provisions of these rules for individuals who
	lack capacity to consent to services.

Rights of Recipients of Mental Health Svcs. § A.III.F (Jan. 1, 1995).  Furthermore, "Recipients
have the right to informed consent for all treatment."  Rights of Recipients of Mental Health
Svcs. § B.V.A (Jan. 1, 1995). 

{2}	.  In Pelkey, the plaintiff applied for a special exception permit from the Presque Isle
Zoning Board of Appeals.  Pelkey, 577 A.2d at 342.  The Board denied his application, but issued
no findings of facts to show the basis of its decision.  Id.  The plaintiff then filed a complaint in
the Superior Court, which remanded the case to the Board for issuance of findings of fact.  Id. at
342-43.  The Board issued the required findings without further hearing or notice.  Id. at 343.  In
the meantime, however, the composition of the Board had changed and therefore, three of the
five members of the Board that issued the findings after remand had heard no evidence in
association with the plaintiff's application.  Id.  We held that, "Procedural due process also
assumes that Board findings will be made only by those members who have heard the evidence
and assessed the credibility of the various witnesses."  Id.