Dir. of Cmty. Servs. for the Country of Nassau v. K–W (In re Application of James R. Dolan)

37 Misc.3d 337

950 N.Y.S.2d 419

2012 N.Y. Slip Op. 22177

In the Matter of the Application of James R. DOLAN, Jr., Director of Community Services for the Country of Nassau, Pursuant to the Mental Hygiene Law, Petitioner,For an Order Authorizing continued Assisted Outpatient Treatment for

v.K–W, Respondent.

Supreme Court, Nassau County, New York.

June 29, 2012.

Nicholas Esposito, Esq., Nassau County Department of Social Services, Uniondale, Attorney for Petitioner.

Cathy Anagnostopoulos, Esq., Mineola, Attorney for Respondent.

GARY FRANKLIN KNOBEL, J.

Respondent's oral application for an order appointing an “independent” psychiatrist, at state or county expense, to evaluate the respondent, and appear at the adjourned hearing in this proceeding to “rebut” the testimony of the psychiatrist who examined the respondent on behalf of the petitioner, is denied.

This is a proceeding held pursuant to Mental Hygiene Law § 9.60 to determine whether the respondent should receive continued assisted outpatient treatment (“AOT”). The hearing on the petition at bar has been adjourned to July 10, 2012, to allow the Court to rule on the issues raised in the oral motion made by the respondent at the close of his direct testimony. The respondent contests the proposed continuation of a court-ordered treatment plan, as well as taking any psychotropic medication.

Respondent contends that even though the Mental Hygiene Law § 9.60 and Judiciary Law § 35 do not specifically authorize the Court to appoint an “independent psychiatrist” to examine a respondent in an AOT proceeding, the Court has the inherent authority to make that appointment. Moreover, respondent argues, “fundamental fairness” dictates that an independent psychiatrist must be appointed by the Court, and compensated by the state or county, when an indigent respondent makes that request in an AOT proceeding. The latter argument raises an issue of apparent first impression.

Mental Hygiene Law § 9.60, commonly known as Kendra's Law, was enacted by the Legislature in 1999 in response to the tragic death of Kendra Webdale, who was pushed from a subway platform into an oncoming subway train by an individual with a long psychiatric history of schizophrenia who had failed to take his medication. The statute allows certain persons to petition the Court to compel a mentally-ill person (who meets eight criteria) to comply with a comprehensive, supervised, court-ordered outpatient treatment plan which would allow the person to hopefully remain safely in the community and lead more productive and satisfying lives with the help of family, friends and mental health professionals, and not be hospitalized ( see, Matter of K.L., 1 N.Y.3d 362, 366, 774 N.Y.S.2d 472, 806 N.E.2d 480; L. 1999, ch. 408, § 2). One appellate court has characterized the aforesaid outpatient treatment plan as “involuntary” ( see, Matter of William C., 64 A.D.3d 277, 279, 880 N.Y.S.2d 317).

In the underlying hearing at bar, the psychiatric expert retained by the petitionerpursuant to Mental Hygiene Law § 9.60(e)(3), Dr. Alexander Bardey, testified that he examined the respondent and that his diagnosis is that the respondent suffers from bi-polar disorder and marijuana abuse disorder. Dr. Bardey, an independent contractor who is not employed by the petitioner, further testified that the respondent's non-compliance with medication causes him to decompensate into an agitated psychotic and manic state, and results in repeated psychiatric hospitalizations (Transcript [“Tr.”] at 3). To support that opinion, Dr. Bardey testified that despite being under the auspices of an AOT order dated August 4, 2011 (Knobel, J.), the respondent nevertheless needed to be hospitalized three months later on November 11, 2011, for a one day period, and again on December 29, 2011 for 25 days (Tr. at 3). Dr. Bardey also accused the respondent of submitting falsified urine toxicology screens by submitting water instead of urine since the sample tested at 100 degrees, “consistent with hot water rather than human urine” (Tr. at 4, 7). Dr. Bardey warned that the respondent's non-compliance with housing rules is jeopardizing the respondent's residing at a rooming house in Elmont. In conclusion, Dr. Bardey opined that the respondent continued to need structure, supervision and treatment—to insure compliance with the proposed treatment plan of psychotropic medication, therapy and a support team, and to control and alleviate respondent's substance abuse problem—in an effort to return the respondent “to a more functional status in the community.” (Tr. at 4). Dr. Bardey recommended that the respondent receive a 50 milligram intra-muscular injection of Haldol Decanoate by the ACT team, and that the respondent would orally self-administer 15 milligrams of the antipsychotic medication Zyprexa each evening (Tr. at 5).

Respondent acknowledged that he suffers from bi-polar disorder (Tr. at 8). However, he believes that the psychotropic medication he is taking is “unhelpful and malevolent in their own ways ... and that you wind up in the hospital by taking that medicine ... I started getting incredibly agitated, incredibly paranoid ... [T]he medication had me in such a sedated and bizarre state of mind I couldn't properly function ... Haldol makes me very irrational ... I don't believe I have any major brain chemistry malfunction, so I believe the use of medications in my particular situation is ... an injustice and imposition ... I think what would be just would be taking me off the medication and taking me off AOT. I don't think I am a threat or a danger to myself or others ... I'm trying to get married, start a family, get a career going. I've been working in the community, giving music lessons for several years. Part of the medications forced me to shut down ... because I was so irrational and so out of it from these medications I was forced to withdraw from many of my music lessons ... [T]hese medications [are] destroying my life” (Tr. at 10–11).Respondent maintained that the medications causes him to be paranoid, e.g., that when he walks down the street he thinks people are following him, or when he was hospitalized he thought hospital personnel were vampires (Tr. at 12, 13). Respondent conceded “that there is an absolute need for [him] to be in substance abuse counseling” and that he “would be in favor of an AOT mandate that requires [only] substance abuse counseling and toxicology” (Tr. at 14). Respondent admitted that he was hospitalized in a psychiatric ward in 2011 after he ingested “a pill of some sort.” (Tr. at 12). His counsel asked for the Court to appoint an “independent” psychiatrist who, possibly, would substantiate respondent's contentions that he does not require anti-psychoticmedication. Counsel claimed that respondent could not afford to hire his own expert and that Judiciary Law § 35 permits the Court to appoint an “independent” psychiatrist to examine an indigent respondent. No proof of respondent's indigency was submitted at the hearing or with respondent's attorneys' memorandum of law.

When construing a statute the Court seeks to discern and give effect to the Legislature's intent by initially giving weight to the clear wording of the statute's language ( see, Roberts v. Tishman Speyer, 13 N.Y.3d 270, 286, 890 N.Y.S.2d 388, 918 N.E.2d 900).

Judiciary Law § 35, entitled the “Assignment of Counsel to indigent persons and appointment of physicians in certain proceedings,” states inter alia in subdivision (1)(a) that “when [a court] orders a hearing in a civil proceeding to commit or transfer a person or retain him in a state institution when such person is alleged to be mentally ill, mentally defective or a narcotic addict ... the Court may assign counsel to represent such person if it is satisfied that he is financially unable to obtain counsel ...” [emphasis added]. Subdivision 4 states that “[i]n any proceeding described in paragraph a of subdivision one of this section, when a person is alleged to be mentally ill, mentally defective or a narcotic addict, the court which ordered the hearing may appoint no more than two psychiatrists, certified psychologists or physicians to examine and testify at the hearing upon the condition of such person. A psychiatrist, psychologist or physician so appointed shall ... receive reimbursement for expenses reasonably incurred and reasonable compensation for such services, to ... not exceed two hundred dollars ... except that in extraordinary circumstances the court may provide for compensation in excess of the foregoing limits.”

This statute clearly does not include or contemplate assisted outpatient treatment hearings, especially when the patient is not in a hospital at the time of the hearing. Instead, the legislative concern is toward mentally-ill individuals who are either civilly confined or face civil confinement and require the appointment of legal counsel because they cannot afford to hire their own attorney. Against this backdrop of civil custody the legislature also authorized the appointment by the Court of an independent psychiatrist or psychologist to examine the mentally-ill person and testify at the hearing. What is not clear from the statute, however, is whether the appointment of that psychiatrist or psychologist is based upon the patient's indigency, as in the appointment of an attorney to represent that person. In sum, if civil confinement in a “state” institution is at stake, or the patient is involuntarily committed in a state hospital (a public hospital is a state actor, see Vanbrocklen v. Erie County Med. Ctr., 96 A.D.3d 1394, 949 N.Y.S.2d 300 [4th Dept. 2012] ), the Court can appoint both legal counsel and an independent psychiatric evaluation of that patient/respondent. Although Judiciary Law § 35 does not address specifically proceedings where the issue concerns an objection by the patient to the forced taking of psychotropic medication, the Appellate...