Bates v. Harvey

• Court: Superior Court of Maine
• Decided: November 22, 2006
• Docket: KENcv-89-88
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss DOCKET NO. CV-89-88 flM - l, E- N - I b',i,;j '2 vc7y

PAUL BATES, et al.,

Plaintiffs DECISION

BRENDA HARVEY, et al.,

Defendants '~~~ 9 1 Nnr AYW'? .-$

On July 6, 2006, the ~dM23bi1stdrc8&d&i!nally approved the policy for a

tobacco-free environment at the Riverview Psychiatric Center. 716 / 06 Recommended

Decision; see Jt. Ex. 2. On July 21, 2006, the plaintiffs filed an objection to the

Recommended Decision pursuant to paragraph 295 of the Settlement Agreement. A &

novo hearing was held on October 30,2006.

The parties stipulated that (1)smolung is an addiction that poses a serious health

risk and, (2) secondhand smoke poses a health risk to nonsmokers. Jt. Ex. 8, q[q[ 5-7. A

majority of current patients at Riverview (approximately 66) smoke and the great

majority of those patients, 85-95%, oppose the proposed policy. Id.at q[q[ 1, 3, 10. The

great majority of the staff, 80-90%, support the proposed policy. Id.at q[ 10. Many patients identify negative financial and health impacts of smolung. Id. at q[ 10. If appropriate based on their circumstances, patients at Riverview are permitted multiple

free-time breaks and fresh-air breaks during which smoking is permitted. Some

patients decline to participate in other activities in order to be able to smoke during

these breaks.

Riverview Superintendent David Proffitt noted at the hearing that significant amounts of time and six full-time staff positions are devoted to distributing and collecting smolung materials to patients and monitoring these smoking breaks. Some

patients negotiate their participation in treatment by obtaining permission to smoke.

Based on his observations and discussions at Riverview, Court Master Daniel Wathen

concluded that the operation of the entire hospital is driven by efforts to accommodate

smoking breaks and that smoking undermines the effectiveness of this "very expensive

operation."

If the policy is implemented, Riverview is prepared to continue to offer nicotine

replacement, counseling, support groups, and behavior therapy to assist patients who

smoke. In addition, Riverview will be able to provide a smoke-free therapeutic

environment. As required by the terms of the Settlement Agreement, education and

treatment will be offered, not mandated, pursuant to the policy. Settlement

Agreement, g[¶ 32(h); 152, 159; Jt. Ex. 2, ¶¶ III(l)(b); m(l)(b)(ii);III(l)(d);III(2)(a)-(c);cf.

Pl.'s. Mem. at 6.

The plaintiffs argue that the proposed policy should not be adopted because it

violates various terms of the Settlement Agreement. See Settlement Agreement, ¶ ¶ 32(b), (d), (f), (h)'; 134; 139(b); 151; 152; and 159;2 Pl.'s 10/16/06 Mem. at 4-€L3 Smolung

is not a "need", "right", "activity", "entitlement", or "basic human right" addressed by the

1 Paragraph 32 is part of a section "listing many principles governing administration of a comprehensive mental health system 'to meet class members' needs."' Bates v. Dep't of Behavioral and Developmental Serv., 2004 ME 154, q[ 65, 863 A.2d 890, 906-07. These provisions are not a specific mandate. Id.,863 A.2d at 907. 2 In his order dated 1/30/04, the Court Master declined to approve a proposed policy for a tobacco-free environment at AMHI. He stated that even if a no-smolung policy did not implicate the terms of the Settlement Agreement under ordinary circumstances, "the imposition of a no-smoking policy at a time when the Court-appointed receiver is in charge of the operation of the hospital clearly implicates the terms of the Settlement Agreement." Jt. Ex. 5 at 1-2. In his order dated 4/18/06, the Court Master stated, "the formation of a smolung policy for patients implicates the terms of the Settlement Agreement and is subject to review and approval by the Court Master." Jt. Ex. 6 at 4. At the time of that order, no proposed smolung policy had been presented to the Court Master. Until he had a policy to review, he presumed that a smolung policy could implicate the provisions of the Settlement Agreement. 3 Plaintiffs' counsel also identified paragraph 32(a) in correspondence to the Court Master. Jt. Ex. 7 at 1. Settlement Agreement. See Settlement Agreement, ¶¶ 32(a), (b), (d), (f), (h); 151. 159.4

Smoking is not part of "the basic rhythm of [the patients'] lives" that must be preserved.

See id. at ¶ 151. Neither smolung nor creating a tobacco-free environment constitutes -- treatment. See id. at ¶¶ 32(h), 152, 159. A tobacco-free environment does not add

unacceptable restrictions to the setting or means for treatment. See id. at ¶ 32(d).

Adoption of the policy does not violate the ated terms of the Settlement Agreement.

The record shows that the policy is reasonable and its anticipated benefits will

outweigh potential costs. As Superintendent Proffitt stated, facilitating smoking at

Riverview has a negative effect in an environment where people are encouraged to

make healthy choices and try new healthy behaviors.

Many patients desire to continue smolung. One such patient, speaking for many,

said that he had to give up many dungs at Riverview and would not like to give up

cigarettes. Dr. Swartz agreed that tobacco addiction is harder to overcome than alcohol

or drug addiction. fiverview is prepared to assist those who need and want help in

meeting h s challenge. It is time for Riverview to join all other hospitals in Maine in

providing "a healthy, substance abuse-free treatment environment that promotes health

and well-being." Jt. Ex. 2 at I; see Recommended Deasion at 2; Jt. Ex. 8, ¶ 9; Jt. Ex. 3.

The entry is

The Policy for a Tobacco-free Environment at fiverview Psychiatric Center, Joint Exhibit 2 is APPROVED with the conditions specified in the Master's Recommended Decision dated July 6,2006.

Date: November 22,2006 +

Justice, Superior Cou

4 Paragraph 134 addresses the adequacy of storage space. Paragraph 139 addresses any smolung areas. Settlement Agreement, q[q[ 134; 139(b). Date Filed 2 / 2 7 i8 9 Kennebec Docket No. CV89-88 COURT MASTERCOY!I~ WATHEN SPECIAL ASSIGNMENT: .- Action 80C (zkhx!%--- H ~ ~ ~ - ~ ~ s k k +8e&ee€+a&.r ~ ~ ~ ~ . . ,,, - - - 4eeT-+&~-*+~~-+~6~&.+. JUSTICE MILLS F ' _, - A~--u-&d-St-rT-%.-PrW~Y-r-&W36 289-7264

- Peter Darvin! Esq. (Canners) 178 MIDDLE;s~ SUITE 402- . Portland 04101 S u s a n P a r k e r , Dr. W a l t e r Konm a n a A vs. Paul Bates, e t a l s J ~ ~ - ~ H .- R o~ l l i n~ I v~e s ~ .) n2 ~ I- -~ -----k Z L . - - , Plaintiff's Attorney 6 &LZ-A-LL &LII-J-~.~W-~~-F~-~L, 1 Defendant's Attorney R + r t r a r d - + h - - e o l + a f i ~ ~ ~ ~ ~ ~ ~ ~ %a $ y ne e~ ) - K a t h e r i n e reason ,AAG 1 3't-er~en-~t. - P h y l l i s G a r d i n e r , AAG,. L , . - . -. bgA-.--Sem;--ie-E3ber3p- Q 7 Q ( ,Augusta, ME 04333 639&Gw~+ ..i) -Carmen L. Coulombe,AAG . +433f) A & , I, k ,

Aug-ay-++e--- - ' s t a t e House S t a . 6 ME .. Augusta, Me. 04333 Date of e o ' I 3 1G. - . - Helen B a i l e y Esq. -- - Augusta Me 04338

2/27/89 Complaint filed. s/~oldman,Esq.

3/6/89 Acceptance of s e r v i c e f i l e d . Served on Susan Parker,Comm. o f M e n t a l H e a l t h a c c e p t e d b y C a b a n n e Howard,AAG o n 3 / 2 / 8 9 . -C I 318189 I E n t r y of appearance f i l e d . s/Woodruff,Esq.

11 319'89 3/13/89 I 1 M o t i o n t o s p e c i f y c o u r s e o f p r o c e e d i n g s and memorandur,~ i n support thereof filed.

Motion f o r e n l a r g e m e n t of s/Goldman,Esq.

tine filed. s/~oward,AAG.

3/14/89 Motion for enlargement of time is Granted. Defendants shall have until April 21, 1989 to file their responsive pleading. s/Lipez, J. Copies to attorneys.

3/28/89 Notice of Setting issued for conference of counsel on 4/7/89 at 1:00 p.m. 4/3/89 Motion for Class Certification filed. s/Goldman, Esq. 4/3/89 Affidavit of Richard Estabrook filed. s/Goldman, Esq. 4/3/89 Plaintiffs' Memorandum of Law in Support of Motion for Certification of Plaintff Class filed. s/Goldman, Esq.

1 4114189 I Proposed Order specifying course of s/Goldman,Esq. proceedings f i l e d .

-, i -). ( 4/18/89 1 Answer of Defendants filed. s/Crawford, AAG. 4/26/89 On 4/24/89, Order Specifying Future Course of Proceedings filed. s/Brody, C.J. / Copies to attorneys. (