Opinion
No. 301108/2016.
08-15-2016
In the Matter of the Application of Dr. Ili SALAM, Director of Medicine at Kingsboro Psychiatric Center, Petitioner, for an Order Authorizing the Medication of PG, a Patient at Said Hospital.
The Court consolidated for hearing Kingsboro Psychiatric Center's (KPC) application for (i) a two year retention under Mental Hygiene Law (MHL) § 9:33 and (ii) medication over objection for patient PG (PG). After trial, the court is granting the hospital's application for retention for a period of up to thirty (30) days from the date of this order. The court also grants in part the hospital's application for treatment over objection.
FACTS:
PG is a 58 year old male. He suffered a traumatic brain injury in a work related accident in 2001. He has been diagnosed with (i) psychotic disorder due to another medical condition with delusions, (ii) psychotic disorder due to another medical condition with hallucinations, (iii) mild neurocognitive disorder due to traumatic brain injury and (iv) schizoaffective disorder. He was hospitalized for psychiatric illness from 7/10/02–5/6/03. In 2007 the Court appointed both a personal needs guardian and a financial guardian for PG. He was subsequently admitted to Kings County Hospital from 2/26/08–4/11/08. He resided in a group home (Canarsie House ) from 2005–2011 and was re-admitted to Kings County Hospital on July 15, 2011 and transferred to KPC on January 12, 2012, where he remains today.
PG's current admission was precipitated by NYC Emergency Medical Services being called by his residence due to his disorganized behavior evidenced by a verbal and physical altercation with his roommate and residence staff.
PROCEDURAL POSTURE:
Since PG's admission to KPC, the hospital has received the following authorizations for further retention of PG pursuant to MHL § 9.33 :(i) six (6) months on consent effective March 29, 2012; (ii) one (1) year on consent effective October 4, 2012; (iii) up to ninety (90) days (no hearing requested) effective October 10, 2013; (iv) up to six (6) months stipulated effective January 16, 2014; (v) up to six (6) months stipulated effective October 23, 2014; and (vi) one (1) year retention order after hearing before Judge Wade on June 18, 2015. During the four year history of PG's involvement with the mental health part, neither of his appointed guardians were parties to these proceedings.
Kingsboro Psychiatric Center has submitted this application for further retention of PG for a period not to exceed two (2) years. A hearing was held on July 7, 2016 and July 14, 2016 and the Court went to KPC on July 19, 2016, to determine whether PG requires further involuntary psychiatric care and treatment.
THE LAW:
Pursuant to Mental Hygiene Law § 9:33, to retain a patient involuntarily, Kingsborough Psychiatric Center must prove by clear and convincing evidence that the patient is mentally ill, in need of continued supervised care and treatment and poses a substantial threat of physical harm to himself and/or others. See Matter of Harry M., 96 A.D.2d 201 [2d Dept.1983], In re Paulina D., 104 AD3d 883 [2d Dept.2013] ; In re Harvey S., 38 AD3d 908 [2d Dept.2007].
Pursuant to 14 NYCRR 527.8, in order for the court to grant the hospital's application for medication over objection, the hospital must show by clear and convincing evidence that the patient lacks the capacity to make a reasoned decision regarding treatment, the treatment is in the best interest of the patient, the benefits of the treatment outweighs the risks, and this is the least restrictive alternative available. See Rivers v. Katz, 67 N.Y.2d 485 [1986] ; In re Marietta Mc., 125 AD3d 581 [2d Dept 2015].
RETENTION APPLICATION
Dr. Vikas, a psychiatrist at KPC testified on behalf of the hospital. She stated that PG has a diagnosis of schizoaffective disorder. He exhibits signs and symptoms of that illness including selective mutism and delusions. Dr. Vikas stated that PG often stands in the hallway and stares blankly. She testified that it appears that he responds to internal stimuli because he makes unprovoked bizarre statements (such as “the food is poisoned” and “his roommate tried to kill his ex-wife”). Dr. Vikas testified that the patient lacks insight into his medical condition (diabetes ) and denies having a psychiatric or medical condition. When offered medication to control his diabetes, he shakes his head and walks away. PG is manageable on the unit. He takes his psychiatric medication and handles his activities of daily living (ADLs) adequately. According to Dr. Vikas, his refusal to acknowledge his medical condition and need for corresponding medication, evidences his impaired judgement and makes him a danger to himself.
Dr. Vikas admitted that the hospital lacks a long term treatment plan for PG and his condition remains the same. The hospital does not have a discharge plan either because PG refuses all attempts to meet with his treatment team, refuses to engage in discharge discussions, and refuses to accept placement. According to Dr. Vikas, if a patient refuses to go to a residence, the hospital cannot force him and has not done so for many years. She concludes that PG's lack of engagement coupled with refusal to take medication shows that he is unable to survive safely in the community, and thus not suitable for discharge. In her professional opinion, continued care in the hospital is essential to his welfare. See Ford v. Daniel R., 215 A.D.2d 294 [1st Dept.1995].
On July 13, 2016, the court heard testimony from Mr. David Rostan, PG's personal needs guardian who described some of the patient's treatment & placement history. Mr. Rostan stated that his duties as personal needs guardian included looking after PG's best interest, determining his residence, looking after his medical needs and assisting him in his communication. Mr. Rostan opposes the hospital's retention application. He feels the patient has not progressed during his four years at KPC and a less restrictive environment would be in the patient's best interest. He stated there was a consensus in 2014 to discharge PG to the Transitional Placement Program (TPP) on the grounds of Kingsboro but the hospital withdrew its support for that placement. Mr. Rostan met with Mental Hygiene Legal Services (MHLS) and the hospital treatment team in April 2016 but there was no discussion of the patient's discharge at that meeting. Mr. Rostan would like PG to be placed in a permanent group home, but no specific facility had been identified.
The court went to KPC on July 19, 2016, to observe and hear from PG as he had not attended any of the previous retention hearings. However, despite the Court's attempts to engage him in conversation, PG refused or was unable to participate in any discussion regarding his placement or treatment.
Based on the totality of the evidence, the court finds that the hospital has shown by clear and convincing evidence the patient is mentally ill and poses a danger to himself or others. He is clearly unable to care for himself. PG has to be in a supervised environment. See Boggs v. New York City Health and Hosps. Corp., 132 A.D.2d 340 [1st Dept.1987] ; Matter of Carl C., 126 A.D.2d 640 [2d Dept.1987].
The testimony bears out that the hospital has not changed his psychiatric medication for some time, and PG has not improved. While, in the court's opinion, it is unfortunate that PG remains in a psychiatric hospital for an extensive period of time, a suitable discharge option has not been presented. PG cannot be discharged without one. See Mental Hygiene Law § 29.15. A carefully tailored discharge plan to an appropriate care facility is key to this patient's success. In the court's analysis, it appears that a more aggressive search for appropriate placement could result in a suitable discharge plan for PG.
Additionally, it is important that going forward, there is a dialogue between the Guardianship and Mental Hygiene parts when it comes to actions affecting this patient. Pursuant to Mental Hygiene Law § 81.22, the guardian has the responsibility to provide for the personal needs of the incapacitated person. The guardian is charged with: (i) making all residential and care arrangement for PG, taking his functional limitations into account, (ii) making decisions regarding social environment and other social aspects of his life, and (iii) consenting to or refusing generally accepted routine or major medical or dental treatment. Therefore, the hospital and guardian should be working in unison to ensure that PG is discharged to a facility where his personal and medical needs can be met.
MEDICATION APPLICATION:
Dr. Lee, PG's medical doctor at KPC, testified in support of KPC's application for treatment over objection. PG has been diagnosed with Type 2 Diabetes and a traumatic brain injury. Dr. Lee testified that he has not been able to examine PG. He is recommending medication along with various screening tests, some of which are invasive including colonoscopy with general anesthesia, CT–Scan with and without contrast, MRI, and EEG.
In order to treat a patient over their objection, the hospital must prove by clear and convincing evidence that the patient lacks the capacity to make a reasoned decision regarding his treatment, that the treatment is in the patient's best interest, the benefits of the treatment outweigh the risks, and the proposed treatment is the least restrictive alternative which is narrowly tailored to the patient. The court finds that beyond treatment for PG's known medical conditions of diabetes and constipation, the hospital has not met its burden by clearing and convincing evidence that this treatment is in PG's best interest, and is narrowly tailored to his needs.
The court is authorizing the following medication as per KPC's request to control PG's diabetes, Metformin 500 mg orally twice daily to 1 gram orally twice daily. Glucose monitoring with glucose test strips using finger stick one to four times a day up to seven (7) days per week or less. Insulin regular 2 to 10 units up to four times daily up to seven day per week OR in the alternative, sitagliptin 100 mg orally daily. Glipizide (Glucotrol ) 5 to 20 mg orally in AM, or glyburide (Diabeta ) 2.5 to 5 mg orally in the AM, Insulin Glargine (Lantus ) 2–100 units subcutaneous daily AND for constipation Colace 100 to 400 mg orally daily in single or divided doses, OR in the alternative laculose 15 to 30 ml (10 grams/15 ml) per day in single or divided doses.
The balance of the hospital's request for treatment is denied as it does not meet the criteria under the law.
Ordered that Kingsboro Psychiatric Center is authorized to retain PG for a period of up to thirty (30) days from the date of this order. KPC is to serve a copy of this Order on David Rostan.
This constitutes the decision and order of the Court.