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Speaker Law

Injunction Properly Issued to Prevent Transfer of Protected Individual

Posted on Friday, May 31, 2019

The probate court properly issued a permanent injunction to prevent the Lenawee Community Mental Health Authority from transferring a protected individual to another facility because the transfer would be detrimental to the protected individual’s well-being, the Michigan Court of Appeals has ruled.

In In re Guardianship of Lisa Brosamer (Docket No. 346394), the Lenawee Community Mental Health Authority argued that the probate court (1) abused its discretion by granting a permanent injunction to prevent the transfer of Lisa Brosamer, a protected individual, to a different facility and (2) erroneously applied MCL 330.1536, effectively rewriting this section of the Michigan Mental Health Code.

MCL 330.1536 says: “ (1) A resident in a center may be transferred to any other center, or to a hospital operated by the department, if the transfer would not be detrimental to the resident and the responsible community mental health services program approves the transfer. (2) The resident and his or her nearest relative or guardian shall be notified at least 7 days prior to any transfer, except that a transfer may be effected earlier if necessitated by an emergency. In addition, the resident may designate 2 other persons to receive the notice. If the resident, his or her nearest relative, or guardian objects to the transfer, the department shall provide an opportunity to appeal the transfer. (3) If a transfer is effected due to an emergency, the required notices shall be given as soon as possible, but not later than 24 hours after the transfer.”

The Court of Appeals affirmed the probate court’s decision in a published opinion.

“Far from judicially revising MCL 330.1536 or creating a ‘veto right,’ the probate court narrowly tailored its role in the case to the only issue it was statutorily authorized to determine: whether respondent’s proposed transfer of Lisa would be detrimental to Lisa’s well[-]being,” the Court of Appeals wrote. “We are not left with a definite and firm conviction that a mistake was made. To the contrary, the probate court’s finding with respect to detriment was well supported by the evidence.”

The ruling is a victory for developmentally disabled individuals in Michigan. The Court of Appeals has made it clear that, when the transfer of a protected individual is a concern, a protected individual’s guardian may indeed prevail over the authority of a community mental health agency, as long as the evidence supports that the transfer would be detrimental to the protected person’s well-being.

Protected Individual

Lisa Brosamer is intellectually disabled and cannot care for herself or manage her affairs. Since 2009, she has resided at a community placement facility called College Avenue.

In September 2018, Lisa’s guardian (the petitioner) filed a petition in Lenawee County Probate Court claiming the respondent, Lenawee Community Mental Health Authority, planned to transfer Lisa from College Avenue to Westhaven, another community placement facility. The petitioner requested an ex parte order denying the transfer, asserting it would be detrimental to Lisa’s well-being under MCL 330.1536.

The probate court granted the requested ex parte relief and later conducted a full hearing. Rather than presenting testimony, the respondent offered three affidavits from its own employees stating that Lisa’s transfer would not be detrimental to her and, as a result, it was statutorily entitled to move ahead with the transfer. Meanwhile, the petitioner presented four witnesses familiar with Lisa’s situation, all of whom testified the move would be detrimental to Lisa. In addition, Lisa’s lawyer-guardian ad litem stated that, in his opinion, the probate court should favor the testimony of the petitioner because of the petitioner’s direct involvement in Lisa’s welfare and because the petitioner’s history with Lisa made the petitioner the most capable of predicting the outcome of a transfer.

The probate court ruled that the move “certainly does appear to be something that would be detrimental to Lisa.” Accordingly, the probate court granted the petitioner’s request for permanent injunctive relief.

The respondent appealed.

Detrimental Decision

On appeal, the respondent claimed the probate court erred in determining that transferring Lisa to another facility would be detrimental to her well-being and, in so doing, the probate court revised MCL 330.1536 to create a right for guardians to veto the decisions of mental health authorities when the Legislature did not intend for such a veto to exist.

“We disagree,” the Court of Appeals said.

The Court of Appeals pointed out the evidence in the case primarily came from seven people: three affiants and four testifying witnesses. “Of those seven people, only four of them provided evidence that they had either a history with Lisa or daily interaction with Lisa such that they might reasonably be capable of opining as to how the proposed transfer might affect Lisa’s well[-]being,” the Court said. “All four of the witnesses demonstrated a personal history with Lisa, and all of them concluded that transferring Lisa to Westhaven would be detrimental.”

Meanwhile, none of the affidavits that the respondent provided “suggested that the affiants had a history with Lisa comparable to petitioner’s witnesses,” the Court of Appeals observed.

“Overall, witnesses deeply familiar with Lisa testified that transferring Lisa from College Avenue would be detrimental to her well[-]being,” the Court of Appeals stated, finding the probate court did not judicially rewrite MCL 330.1536 or create a “veto right.” Rather, the Court said the probate court tailored its role to the only issue it was statutorily allowed to decide: whether Lisa’s transfer would be detrimental to her well-being.

The probate court’s finding with respect to detriment “was well supported by the evidence,” the Court of Appeals held.

Injunction Is Reasonable Remedy

The respondent also argued the probate court abused its discretion by granting a permanent injunction. According to the respondent, the injunction “went too far” because it enjoined the respondent from ever transferring Lisa to another facility.

“We disagree,” the Court of Appeals said, noting the injunction served to protect Lisa’s overall interests. “There was a substantial amount of testimony that Lisa’s transfer to Westhaven would be detrimental to her well[-]being, not simply because Westhaven was less suited to Lisa’s needs than College Avenue, but because Lisa was well adjusted, familiar, and thriving at College Avenue, and thus, transfer of Lisa to any other facility would be detrimental.”

Regarding other possible remedies, the respondent argued – contrary to the evidence presented – that Lisa’s transfer would not be detrimental, the Court of Appeals explained. Thus, “injunctive relief would seem the most adequate means of ensuring that respondent does not transfer Lisa to the detriment of her well[-]being. There is no evidence that petitioner made any unreasonable delays in filing her petition for an injunction, nor is there evidence that petitioner engaged in any form of misconduct. Being sensitive to the fact that respondent must walk the tightrope of balancing the needs of consumers – sometimes against one another – with the limited resources that it has, MCL 330.1536 is clear that respondent cannot transfer a consumer if the transfer would be detrimental to that consumer. Thus, the relative hardship on respondent that the injunction imposes is no greater than the hardship imposed by MCL 330.1536 itself.”

On the other hand, the hardship that Lisa might endure if she was transferred to the detriment of her well-being is significant, the Court of Appeals observed.

Moreover, while third parties and the public have an interest in the respondent’s ability to transfer consumers and balance its resources for the benefit of the community, “Lisa has the right to be free of detrimental transfers, and with respect to MCL 330.1536, the interests of third parties in transfers that might be detrimental to Lisa are not relevant to whether the transfer is permissible,” the Court of Appeals stated, noting that “nothing bars respondent from seeking to have the injunction lifted if a transfer that would not be detrimental to Lisa’s well[-]being arises.”

In addition, the injunction would not be impractical to enforce, the Court of Appeals said.

Based on the foregoing, and because there was no adequate remedy at law to ensure that Lisa would not be transferred, “the probate court’s injunction was not outside the range of reasonable and principled outcomes,” the Court of Appeals concluded.

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