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Involuntary Mental Health Patient Should Not Have Been Released Pursuant to a Habeas Corpus Petition Without an “Examination Into the Patient’s Alleged Disability and Detention,” Despite the Hospital’s Untimely Request for Continued Detention (in Violation of the Mental Hygiene Law)/Appellate Court’s Ability to Hear a Moot Case Explained (Mootness Doctrine)

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that immediate release of an involuntaty patient from a mental health hospital pursuant to a writ of habeas corpus because of the facility’s failure to comply with the Mental Hygiene Law provisions for continued detention was reversible error.  Supreme Court should have conducted an examination into the patient’s alleged disability and detention.  The court discussed the nature and origin of the habeas corpus petition and the relationship between a habeas corpus petition brought under the Mental Hygiene Law and under Article 70 of the CPLR (finding them to be in essence the same). In addition, the Second Department discussed the mootness doctrine which, under certain circumtances, allows an appellate court to hear  a moot case.  The habeas corpus petition here had been rendered moot by the patient’s release:

Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” …. . Typically, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” … . However, an exception to the mootness doctrine permits a court to review a case if the controversy or issue involved is likely to recur, typically evades review, and raises a substantial and novel question … .Here, the release of the patient renders this appeal academic. We nevertheless exercise our discretion to review the issues raised on this appeal pursuant to the exception to the mootness doctrine because the primary issue raised is an important one which implicates both the patient’s fundamental liberty interest and the State’s interest in protecting the mentally ill, and is one which is likely to recur. Further, the primary issue involved here may typically evade review because “[t]he Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary . . . [and the law] require[s] frequent periodic review of a patient’s status, and the release of the patient unless OMH is granted successive court orders authorizing retention” … . * * *

Here, the patient was initially involuntarily hospitalized pursuant to Mental Hygiene Law article 9 due to his alleged mental illness and, thereafter, the petition for a writ was filed on the patient’s behalf. The purpose of the writ of habeas corpus was to determine whether the patient was being unlawfully detained (see CPLR 7002[a]… ). Therefore, in order to determine the cause and legality of the patient’s detention, the Supreme Court was required to examine the facts of the patient’s alleged mental disability and detention (see Mental Hygiene Law § 33.15[a], [b]; CPLR 7002). The Supreme Court’s failure to conduct the required examination constitutes reversible error. We note that the Hospital supported its untimely retention application with, inter alia, two certificates from the patient’s treating physicians. In those certificates, the physicians asserted that the patient was paranoid, unable to care for himself, and psychotic. Our determination should not be construed as an approval of the Hospital’s dilatory conduct in filing the retention application. There is no dispute that the Hospital failed to comply with Mental Hygiene Law § 9.33. Under the circumstances presented, however, the remedy for such noncompliance is not the immediate release of a patient. We also caution that our reasoning should not be construed to authorize an unlimited violation of article 9 of the Mental Hygiene Law so as to allow a patient to be involuntarily retained, without a hearing, indefinitely. People v Munsey, 2014 NY Slip Op 01782, 2nd Dept 3-19-14

 

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Re: A Mental Hygiene Law Civil Commitment Proceeding for a Sex Offender, Failure to Give the Jury an Adequate Explanation of the Meaning of “Sex Offense” May Have Resulted in an Unsupported “Mental Abnormality” Finding

The Second Department determined the trial court committed reversible error by not, upon defense counsel’s request, giving a further instruction to the jury on the meaning of “sex offense” as part of the jury charge on mental abnormality. The jury found the appellant had committed a sexually motivated felony and suffers from a mental abnormality (re: civil commitment of a sex offender under the Mental Hygiene Law). The appellant had pled guilty to the burglary of a woman’s home. During the burglary the appellant allegedly had “touched that woman’s vagina and buttocks with a hard object.” At the “Mental Hygiene Law” trial, the State presented evidence of appellant’s sexual behavior in prison which did not constitute a sex offense enumerated under the Mental Hygiene Law. The jury may not have understood how to evaluate the “unenumerated” behavior under the Mental Hygiene Law:

Here, the State’s evidence consisted predominantly of instances of the appellant’s sexually inappropriate acts that would not constitute sex offenses under Mental Hygiene Law article 10. Specifically, the State’s expert testified at length regarding instances in which the appellant masturbated while he could be observed by prison officers or by staff members while placed at a secure treatment facility, and his propensity to continue to act in a sexually improper manner. The appellant’s conduct, however, at most, might constitute the crime of public lewdness (Penal Law § 245), a class B misdemeanor, which is not one of the sex offenses enumerated under Mental Hygiene Law article 10. In light of the particular circumstances presented in this proceeding, the Supreme Court should have granted the appellant’s request to issue an expanded charge to the jury containing supplemental information as to the specific statutory meaning of “sex offense,” so that the jury could make a proper evaluation of the evidence.…

[T]he Supreme Court’s failure to either provide the statutory definition of “sex offense” under Mental Hygiene Law article 10 or to inform the jury that there is a distinction between a predisposition to commit a “sex offense” and a predisposition to commit nonenumerated acts of sexual misconduct could have misled the jury into making a finding of mental abnormality, based solely upon the evidence of the appellant’s predisposition to commit any improper sexual conduct. Consequently, a new trial is required … . Matter of State of New York v Adrien S, 2014 NY Slip Op 01175, 2nd Dept 2-19-14

 

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A Sex Offender Cannot Be Confined to a Treatment Facility as Part of “Strict and Intensive Supervision” under Article 10

The Court of Appeals, in a full-fledged opinion by Judge Rivera (over a dissent), determined that, pursuant to Article 10 of the Mental Hygiene Law, a sex offender could either be confined or placed under strict and intensive supervision (SIST), not both.  Here the hearing court determined the People did not meet their burden demonstrating the offender (Nelson D) should be confined, but included confinement in a treatment facility (Valley Ridge) as part of strict and intensive supervision:

We conclude that article 10 provides for only two dispositional outcomes, confinement or an outpatient SIST regime. Therefore, we agree with Nelson D. that, absent a finding of the type of condition that statutorily subjects him to confinement, his placement at Valley Ridge constitutes involuntary confinement, in violation of the plain language of Mental Hygiene Law article 10.  We also agree that involuntary commitment, as part of a SIST plan, deprives Nelson D. of the statutorily proscribed procedures mandated for confinement under article 10. Matter the State of New York v Nelson D, 194, CtApp 11-26-13

 

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ARTICLE 10 PROCEEDINGS ARE CIVIL IN NATURE, HOWEVER THE COURT ANALYZED WHETHER RESPONDENT COULD REPRESENT HIMSELF AND WHETHER HE WAS AFFORDED EFFECTIVE ASSISTANCE USING THE CRIMINAL LAW STANDARDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that Article 10 sex-offender commitment proceedings are civil in nature, but analyzed respondent’s request to represent himself and whether respondent received ineffective assistance under the criminal-law standards:

Supreme Court did not err in denying respondent’s request to proceed pro se. Assuming, without deciding, that a respondent in a Mental Hygiene Law article 10 proceeding has the same right of self-representation as a criminal defendant …, respondent’s request here was denied based on his failure to meet two prongs of the three-prong test:

“A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … .

Respondent made his request to proceed pro se only two business days before the second trial was scheduled to begin, which the court properly found untimely … . …The court properly denied his request based on … comments indicating that he would attempt to disrupt or prevent the orderly conduct of the trial …, along with the untimeliness of the request. …

Respondent was not deprived of the effective assistance of counsel. Initially, we hold that while Mental Hygiene Law article 10 proceedings are civil rather than criminal, and that ineffective assistance of counsel may only be considered in civil litigation if extraordinary circumstances are present, the indefinite and involuntary nature of confinement that may result in this type of proceeding constitutes such an extraordinary circumstance … .

Applying the criminal standard, we must determine whether “the evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” … . Matter of State of New York v Timothy BB., 2013 NY Slip Op 07774 [113 AD3d 18], Third Dept 11-21-13

 

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Experts’ Use of Unreliable Hearsay in Article 10 Trial Violated Due Process

The Court of Appeals, in a full-fledged opinion by Judge Rivera (with a concurring opinion) determined the use of unreliable hearsay by the People ‘s experts in an Article 10 civil commitment trial of a convicted sex offender violated the offender’s right to due process of law.  The court explained that hearsay related to convictions was reliable, hearsay supported by admissions is reliable, hearsay related to acquittals and otherwise unsupported uncharged accusations is unreliable, and hearsay about criminal charges that result in neither acquittal nor conviction require close scrutiny (probative value versus prejudicial effect):

Due process requires any hearsay basis evidence to meet minimum requirements of reliability and relevance before it can be admitted at an article 10 proceeding.  In article 10 trials, hearsay basis evidence is admissible if it satisfies two criteria.  First, the proponent must demonstrate through evidence that the hearsay is reliable.  Second, the court must determine that “the probative value in helping the jury evaluate the [expert’s] opinion substantially outweighs [its] prejudicial effect” (cf. Fed Rules Evid rule 703).  These reliability and substantial relevance requirements provide a necessary counterweight to the deference juries may accord hearsay evidence simply because an expert has propounded it.  The requirements prevent an expert from serving as a passive conduit for hearsay, yet allow the jury to evaluate expert opinions by considering reliable and probative evidence.  This rule gives the judge an active role in managing the article 10 proceeding and preserving its integrity.  Matter of State of New York v Floyd Y, 182, CtApp 11-19-13

 

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Surrogate’s Court Could Not Award Attorney’s Fees for Services Provided to Decedent’s Legatee (as Opposed to Services which Benefitted the Estate)

The Second Department upheld Surrogate’s Court’s ruling that it did not have jurisdiction to award attorney’s fees for the attorney’s (Klein’s) handling of Mental Hygiene Law article 81 proceeding to have decedent’s legatee (Theodore) declared an incapacitated person:

“The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends” … . Although the Surrogate’s Court Procedure Act authorizes the court to fix and determine attorney’s fees for services rendered to a beneficiary of an estate (see SCPA 2110[1]), “[t]he only proper parties before the Surrogate on an accounting are creditors or those claiming to be creditors of the decedent” … . Contrary to Theodore’s contention, “the Surrogate’s Court has no jurisdiction over a claim by a creditor against a distributee or legatee of an estate” … . However,”the Surrogate has jurisdiction to determine, and is in the best position to determine, which legal services performed by [an attorney] benefitted the estate, and which benefitted only the individual interests of [a party]” … . Since the record supports the Surrogate’s determination that the services performed by Klein benefitted Theodore personally rather than the decedent’s estate, the court, in effect, upon reargument, properly adhered to its determination that it lacked jurisdiction to set Klein’s fee… . Matter of Tarlow, 2013 NY Slip Op 07491, 2nd Dept 11-13-13

 

Article 81 Guardianship Hearing Should Not Have Been Held in the Absence of the Alleged Incapacitated Person; Counsel Should Have Been Appointed for the Alleged Incapacitated Person

The Second Department determined a hearing pursuant to Mental Hygiene Law article 81 to appoint a guardian for the person and property of an alleged incapacitated person should not have been held in the absence of the alleged incapacitated person.  The court further held counsel should have been appointed for the alleged incapacitated person:

The Supreme Court erred in conducting a hearing in the appellant’s absence. There was no evidence presented at the hearing that the appellant was unable to be present in court, that she was unable to participate in the hearing, or that no meaningful participation would result from her presence … . Furthermore, the court failed to set forth in the resulting order and judgment of appointment a sufficient factual basis for conducting the hearing without the appellant being present (see Mental Hygiene Law § 81.11[d]…).

Moreover, since there was no evidence that the appellant made an informed decision to refuse the assistance of counsel, the Supreme Court should have appointed counsel to represent her… Matter of Gulizar NO (Rudy O), 2013 NY Slip Op 07489, 2nd Dept 11-13-13

 

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False Imprisonment Claims Against Hospital for Involuntary Confinement Turn on Finding of Medical Malpractice

In affirming the dismissal of a complaint against a hospital for false imprisonment based on involuntary confinement pursuant to the Mental Hygiene Law, the Third Department explained the relevant analysis. Plaintiff had made death threats against family members:

Pursuant to the Mental Hygiene Law, an individual may be temporarily confined on an involuntary basis where he or she has “a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself[, herself] or others” (Mental Hygiene Law § 9.39 [a]).  We agree with Supreme Court that all of plaintiff’s claims against the hospital are, in effect, claims for false imprisonment, inasmuch as they are all based upon allegations of unlawful seizure and involuntary confinement… .  These claims all turn upon a finding of medical malpractice because “[c]ommitment pursuant to Mental Hygiene Law article 9 is deemed privileged in the absence of medical malpractice”… .  Accordingly, the hospital was required to make a prima facie showing that its medical treatment did not depart from accepted standards of care… . Tienken v Benedictine Hospital, 514164, 3rd Dept 10-31-13

 

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Error to Preclude Witness for Sexual Offender in Article 10 Proceeding

In a Mental Hygiene Law article 10 proceeding to determine whether Enrique D, a sexual offender, suffered from a mental abnormality justifying civil confinement, the Court of Appeals determined the judge erred in refusing to allow a former girlfriend, Naomi N, to testify about whether Enrique ever tried to offend against her and whether Enrique respected her “boundaries:”

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying.  Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.”  This provision manifestly does not limit a respondent to expert witnesses.  The pertinent question is whether a witness — expert or lay — has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS — non-consent.  The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex offending conduct.  With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a longstanding fixation on nonconsenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.  Matter of State of New York v Enrique D, 168, CtApp 10-22-13

 

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“Missing Witness Rule” Properly Applied in Bench-Trial Proceeding to Determine Whether Antipsychotic Medication Should Be Administered to Involuntarily Committed Patient Over Patient’s Objection—Treating Psychiatrist Not Called by Facility

In a full-fledged opinion by Justice Angiolillo, the Second Department determined the “missing witness rule” was properly applied in a civil, bench-trial proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. The psychiatric center which brought the proceeding did not call the treating psychiatrist as a witness and relied exclusively upon the testimony of a psychiatrist who had reviewed the records. The trial court determined the failure to call the treating psychiatrist gave rise to an inference adverse to the position of the psychiatric center and, under the facts which indicated there may have been disagreement with the reviewing psychiatrist’s findings, the dismissal of the psychiatric center’s petition was warranted.  In explaining the relevant procedures and the applicability of the “missing witness rule,” the Second Department wrote:

The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c][4]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][4][ii]).

First, the patient’s treating physician must determine that the treatment is in the patient’s best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][4][ii][a]).

Second, the clinical director must appoint a physician to review the patient’s record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient’s best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][4][ii][b][1]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient’s capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][4][ii][b][2]).

Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient’s best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient’s objections must be honored (see 14 NYCRR 527.8[c][4][ii][b][3]). * * *

“A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party” … . Where one or more of these elements is absent, the movant is not entitled to the charge … .Moreover, the missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness … .The missing witness rule is related to the broader principle that “[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” … Matter of Adam K, 2013 NY Slip Op 05631, 2nd Dept 8-14-13

 

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