THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Susan K., a psychiatric patient, did not voluntarily waiver her right to counsel in this proceeding to provide treatment without her consent:

… [T]he petitioner commenced this proceeding for permission to administer electro-convulsive therapy and various proposed psychotropic drugs to Susan K., a patient at a psychiatric facility, without her consent. Following a hearing, at which the Supreme Court permitted Susan K. to proceed pro se, the court issued an order authorizing the petitioner to administer the proposed course of treatment over Susan K.’s objection. Susan K. appeals. * * *

Supreme Court did not discuss with Susan K. the dangers and disadvantages of proceeding pro se, did not apprise Susan K. “of the ‘importance of the lawyer in the adversarial system of adjudication,'” and did not elicit an acknowledgment that Susan K. understood the perils of self-representation … . Because the court failed to conduct a sufficiently searching inquiry of Susan K. to ensure that her waiver of the right to counsel was made knowingly, intelligently, and voluntarily, we must reverse the order and remit the matter to the Supreme Court … for a new hearing and a new determination after proper advisements and inquiry into Susan K.’s understanding of the consequences of self-representation. Matter of Susan K. (Hamilton), 2023 NY Slip Op 06369, Second Dept 12-13-23

Practice Point: Here a psychiatric patient represented herself in a proceeding seeking to provide treatment without her consent. The judge did not make sure the patient understood the dangers of self-representation. Matter remitted.