Opinion
XXXXX
05-15-2023
In the MATTER OF A.M., Defendant, a Patient at Manhattan Psychiatric Center.
The facility, Manhattan Psychiatric Center, which is run by N.Y. State Office of Mental Health was represented by Assistant Attorney General, Jose Velez, the People were represented by ADA Lauren Angelo of the Manhattan District Attorney's Office and the patient was represented by Jessica Botticelli of the Mental Hygiene Legal Service in the First Department whose Director is Marvin Bernstein.
The facility, Manhattan Psychiatric Center, which is run by N.Y. State Office of Mental Health was represented by Assistant Attorney General, Jose Velez, the People were represented by ADA Lauren Angelo of the Manhattan District Attorney's Office and the patient was represented by Jessica Botticelli of the Mental Hygiene Legal Service in the First Department whose Director is Marvin Bernstein.
A.M. ("Defendant") is a patient currently hospitalized at Manhattan Psychiatric Center pursuant to Criminal Procedure Law ("CPL") § 330.20. The instant proceeding before this Court is an application filed by the Office of Mental Health ("OMH") on April 26, 2023 requesting that Mr. M be allowed Unescorted Furloughs to the community pursuant to CPL § 330.20 (10). In response to such application, the New York County District Attorney's Office ("DA"), who is a party to this proceeding representing The People, has requested a hearing on the Unescorted Furlough application and filed an Order to Show Cause dated April 28, 2023 requesting a subpoena for the Defendant's medical records from August 30, 2022 to the present. The New York Attorney General's Office ("AG") on behalf of OMH filed a letter brief arguing that it was not opposed to the DA's Office receiving the Defendant's medical records but was opposed to the release of the requested incident reports as such reports are confidential, not maintained within Mr. M's medical record and are therefore not subject to discovery in this matter. The DA submitted a written response arguing the incident reports are relevant to this proceeding and that the DA needs them to prepare for a hearing in this matter. Mental Hygiene Legal Service on behalf of the Defendant did not take a position on the disclosure of his incident reports.
Manhattan Psychiatric Center is a psychiatric hospital that is run by the NY State Office of Mental Health.
This request was made with notice to the patient that his records are being sought and providing him an opportunity to be heard on such request as required by the New York Court of Appeals. Matter of Miguel M. 17 N.Y.3d 37, 926 N.Y.S.2d 371, 950 N.E.2d 107 (N.Y. Court of Appeals 2011).
On May 11, 2023, this Court ordered OMH to turn over any incident reports to the Court for its in camera review. OMH promptly complied with such order on May 11, 2023 and turned over the one incident report, in both an unredacted and redacted form, pertaining to Mr. M during the time period requested. The Court has reviewed the incident report and has found it relevant to the proceeding and thus orders that the redacted version be turned over to all the parties on or before May 22, 2023. The Court agrees with OMH's proposed redactions in their entirety as the redactions are necessary to maintain the privacy of a different patient under OMH's care.
In response to the parties’ arguments on this matter and the Court's prior order, the Court issues this decision. The Court agrees with the AG, that Education Law § 6527(3) does prohibit the disclosure of OMH incident reports in certain circumstances. This section specifically bars the disclosure of OMH incident reports when such reports are sought pursuant to Article 31 of the Civil Practice Laws and Rules ("CPLR"). The AG's Office cites Katherine F. v. State , 94 N.Y.2d 200, 702 N.Y.S.2d 231, 723 N.E.2d 1016 (App. Div., 1st Dept. 1999) and argues that it barred the disclosure of OMH incidents reports in Mr. M's case. However, Katherine F. , was a civil suit for damages, the exact circumstances where the Education Law § 6527(3) explicitly prohibits the disclosure of incident reports, when they are being sought under the discovery provisions of Article 31 of the CPLR. See St. Elizabeth's Hosp. v. State Bd. of Professional Medical Conduct, Dep't of Health , 174 A.D.2d 225, 579 N.Y.S.2d 457 (App. Div., 3rd Dept. 1992) (ruling that the confidentiality provision contained in Education Law § 6527(3) is "properly seen as aimed at prevention of disclosure to private litigants or the public at large" and did not bar disclosure where the State Board of Professional Medical Conduct seeks said materials in order to investigate a complaint of professional misconduct lodged against a physician). Numerous Courts have allowed the disclosure of incident reports when they are being sought in other circumstances outside of Article 31 of the CPLR. See Matter of Civil Serv. Empls. Assn. v. New York State Pub. Empl. Relations Bd. , 46 A.D.3d 1037, 847 N.Y.S.2d 280 (App. Div., 3rd Dept. 2007) (finding that the disclosure prohibition contained in Education Law § 6527(3) was inapplicable as the incident reports were sought in furtherance of union's obligation to defend its members in an administrative disciplinary proceeding and further finding that the Public Employment Relations Board's solution to first review the reports in camera balanced the union's need for such reports while recognizing the confidentiality of the information assimilated in the course of a quality assurance review); Matter of Mental Hygiene Legal Serv. v. Maul 36 A.D.3d 1133, 827 N.Y.S.2d 777 (App. Div., 3rd Dept. 2007) (providing MHLS incident reports as the request for documents was not made under the authority of CPLR Article 31 but instead as part of MHLS's statutory obligation to investigate allegations of abuse or mistreatment); People v. A. , Index No. XXXXX (Bronx Sup. Ct. 2022) and People v. P. Index No. XXXXX (Queens Sup. Ct. 2023) (allowing for possible disclosure of incident reports in applications brought pursuant to CPL 330.20 after in camera review by the respective courts).
The Court finds that in this matter the interest of justice significantly outweighed the need for confidentiality especially when the Court first reviewed the incident report in camera to determine whether it was relevant to the instant proceeding, the report will be appropriately redacted prior to disclosure and where the DA has assured the Court and the parties that it is using the patient's records solely for this litigation and will otherwise keep the records confidential. See MHL § 33.13(c)(1). The Court's in camera inspection addressed the Petitioner's valid confidentiality concerns while providing the DA the relevant documents it is entitled to as a party to this matter. The AG's argument that the incident reports are not kept in patients’ records due to confidentiality concerns is not dispositive of this issue as such incident reports may contain pertinent information relating to the legal status, need for retention and care and treatment of the patient. See MHL 33.13(a). Incident reports can involve the investigation of incidents of attempted suicidality, violent behavior or leaving the facility without consent, all which would be extremely relevant to the instant proceeding. See MHL 29.29(1)(i), (ii) and (v). Thus, by their very nature incident reports may be relevant to the parties’ case in a hearing where this Court is tasked with determining if the issuance of unescorted furloughs for Mr. M is warranted by his clinical condition and is consistent with the safety and welfare of the public and Mr. M. See CPL 330.20(10). After the Court's review of the April 18, 2023 incident report regarding Mr. M, it finds that it is in fact relevant to the pending application before this Court, and thus the parties are entitled to it in redacted form with their assurances to utilize it for a hearing in this matter and otherwise maintain its confidentiality.
The argument that such in camera review by the judiciary would somehow stifle future investigations is not convincing as these reports are already discoverable by MHLS, a patient advocacy organization, and the New York Justice Center which is a prosecutorial agency. Education Law § 6527(3) protects the investigative and the quality control process from the discovery process under Article 31 of the CPLR but allows disclosure when sought under other provisions.
The fact that such incidents, if they exist, would surely also be documented in the Patient's medical record does not bar examination of the incident reports to see if they expand on such documentation or provide additional relevant and important details.
This constitutes the decision and order of this Court.