Opinion
29267-IC.
2-10-2009
IN THE MATTER OF THE RETENTION OF C.C., a patient admitted to NASSAU UNIVERSITY MEDICAL CENTER HOSPITAL.
Joseph Hirsch, Esq., Mental Hygiene Legal Service, Mineola, NY, Petitioner's Attorney. Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato Einiger LLP, Allan Silver, Esq., Lake Success, NY, Respondent's Attorney.
The patient, hereinafter, C.C., hospitalized pursuant to §9.37 of the Mental Hygiene Law, requested a hearing to determine whether she is in need of involuntary hospitalization. The hearing was held on January 30, 2009. Her treating psychiatrist, Dr. S. testified on behalf of the hospital, as did C.C.'s court appointed temporary guardian, S.B., and two Adult Protective Services (APS) caseworkers, V.S. and K.M. C.C. testified on her own behalf. The hospital record was received in evidence, subject to the ability to object to any individual matters.
C.C. was brought to the Emergency Room of the hospital on the evening of December 15, 2008 as a result of 911 calls and after the police, the guardian and APS workers found C.C. living in a dilapidated dwelling with no heat, electricity or running water, during a snowstorm. She was admitted to a medical floor where she refused to allow medical examination or vital signs to be taken for three days. The blood test administered in the Emergency Room revealed no indication of malnutrition, nor did C.C. appear to be suffering from frostbite or other signs of exposure. Ultimately, on January 21, 2009 she was transferred to the psychiatric ward on the twelfth floor.
Dr. S. testified that C.C. had been hospitalized in 2004, under similar conditions, in that she was brought to the hospital because of an open APS investigation brought about by C.C. living in a house without heat, electricity or water and refusing services. She remained hospitalized for twelve days, but there was no psychiatric admission at that time. Upon the current admission, C.C. informed the hospital staff that she had been living without heat, electricity and water for two years, however, as was confirmed by the 2004 hospital record that information was false. The doctor came to learn that C.C. had actually been living like that for at least nine years.
Although C.C. is not delusional or suffering from hallucinations and does not have any cognitive deficits or indications of dementia, Dr. S. testified that in light of C.C.'s living conditions, her refusal to allow medical treatment for cellulitis/phlebitis, her diagnosis of very severe paranoid personality disorder, coupled with a pervasive distrust of people, poor insight and impaired judgment, she (C.C.) poses a danger to herself and needs to be cared for in a hospital. There is no indication that C.C. is a danger to others. She has not acted out against the neighbors she claims have vandalized her home nor has she been aggressive or a management problem on the ward.
APS caseworker, V.S. testified that she was first referred to C.C.'s home in 2001, possibly in the summer of that year. She observed that the grass was overgrown and the house was in poor condition. C.C. indicated to V.S. that she was working on a part-time basis investigating and assisting writers. C.C. refused services and the APS case was closed.
K.M., a second APS caseworker testified that she first became aware of C.C. in January 2004, because C.C. was deemed to be at risk due to the living conditions at her house. A mobile crisis unit interviewed C.C. and she was brought to the hospital for evaluation. Upon her release, C.C. returned to the house, despite the fact that she was still without heat, water and electricity and had again declined services. The case was closed in the spring, without services being provided, because the risk factors were less in the warmer weather.
V.S. was referred again to C.C. in 2007, at which time C.C. avoided contact, speaking only through a window, with V.S. During that visit C.C. complained about her neighbors wanting to take her house. The house had deteriorated, had missing shingles and damage to the rear roof. Due to the condition of the roof, V.S. checked with the building department and learned there were open violations on record with that agency. V.S. was not permitted to testify as to the nature of those violations. Once again, C.C. refused any offers of assistance and the case was closed.
Another referral in September, 2008 found C.C. refusing to talk, declining offers of assistance and again complaining that her neighbors were damaging her house. She testified that C.C. was not as oriented as she had been, was unreasonable and was aging. At that point V.S. recommended a guardianship proceeding because of the worsening condition of the house, extreme conditions including the lack of heat, water and electricity and her concern that animals would be entering the house through the hole in the roof and further, because C.C. continued to refuse services.
C.C. testified on her own behalf. While approaching the bench to take the stand, she apologized for "the pajamas". She was wearing "scrub"-like clothing covered by a sweater coat and her apparel did not seem at all inappropriate in a hospital setting. Her large tinted sunglasses did seem out of place in the courtroom, yet she made no mention of them.
C.C. acknowledged that she lost heat and electricity in 2000 and that she had been uncomfortable at times, but dressed in layers and thermal clothes to keep warm. She testified that she goes out every day to shop for groceries and uses bottled water to drink, cleanse herself and to flush the toilet. C.C. contradicted the doctor's testimony that C.C. told the doctor she eats only canned foods such as tuna fish and claimed that she purchases produce and prepared foods, as well as canned goods.
C.C. testified that in the 60's and early 70's, extended family members visited the home, but after the mid 70's, while she and her mother occasionally went to other family member's homes they did not entertain at home. Contact with other family members seems lacking, especially since her mother's death in 1985. It appears that in addition to refusing to allow APS workers into her home, for many years she also refused admission to her cousin, now her court appointed guardian.
C.C. testified that after her mother's death a neighbor approached her and told her he wanted to purchase the house. She indicated it was not for sale, but that other properties on the block were. She said the neighbor was insistent it had to be her house and due to her unwillingness to sell the house that neighbor, and at least one other, began their ongoing efforts to vandalize her house. She testified that her front door had been vandalized and shingles were removed from her house and roof by the neighbors. She took no steps to protect herself from the alleged vandals.
C.C. denied that she had not paid taxes since her mother's death, testifying that she had paid taxes up until 1989 or 90. C.C. explained that things became difficult for her after a car accident in 1987. She testified that her automobile was hit in the rear and she suffered a pinched nerve. The pain was so severe that she took muscle relaxants, which rendered her unable to work or function. After four months the insurance company cut off benefits saying her pain was due to arthritis and degenerative disc disease. She said she was in a lot of pain and took muscle relaxants for five years and subsequent to that suffered three years of intermittent pain, which "took a lot out of" her.
C.C.'s home is in foreclosure due to her failure to pay taxes for over 19 years. She testified that she now plans to sell the house to a man who offered what she felt was a fair price and that she would close quickly and relocate. She gave no indication of where she would go or how she would get there, nor was any evidence of the proposed sale presented. C.C.'s guardian testified that the house had already been sold pursuant to a foreclosure of the tax lien, however the check bounced and title has not passed.
Dr. S. testified that when C.C. was transferred to the psychiatric ward, she ordered a medical consultation to determine the cause of a rash on C.C.'s leg. C.C. allowed the two doctors to examine the rash, but thereafter refused any treatment. The diagnosis was cellulitis infection of the skin/phlebitis. The doctors wanted to start her on antibiotics and perform an ultrasound. Her only reason for declining the antibiotics and ultrasound prescribed was her outrage over Dr. S.'s psychiatric diagnosis on the treatment plan. Although Dr. S. testified that the rash preceded her hospitalization, C.C. denied it, but did acknowledge that Dr. S. said that the inflamation of her leg had "been cooking a long time before it made its appearance and that I came in with it." When asked about her refusal to get medical care for her rash/inflamation, C.C. indicated that she would seek medical attention when she left the hospital. It did not appear, however that she has seen a doctor on her own, and that her last medical evaluation was when she was brought to the hospital in 2004 by the mobile crisis team. She testified that she would not sign anything (including the consent forms for treatment) in the hospital as a form of protest of her psychiatric diagnosis.
Her guardian, S.B., appointed in an Article 81 proceeding in December, 2008, testified that C.C. was afraid to sign papers for fear of losing her home. The temporary guardian is a second cousin of C.C., but prior to the guardianship proceeding, she had not seen C.C. for four years. She testified that there was a hole in the roof several feet wide, approximately the size of a large desk. S.B. further testified that while C.C. refused to allow her into the house, she admitted that the roof above the living room is sinking in. Indeed, C.C. testified that there were two layers of shingles on the roof. S.B. is fearful that the roof will collapse and that animals have or will enter the house through the hole, as will the elements, all to the detriment of her ward.
It is beyond cavil that it must be established by clear and convincing evidence that a person is mentally ill and poses a substantial threat of physical harm to herself or others to justify hospitalization against the patient's will. ( Matter of Luis A., 13 AD3d 441, 786 NYS2d 560 (2d Dept., 2004); Matter of Carl C., 126 AD2d 640, 511 NYS2d 144, [2d Dept., 1987]). A threat of physical harm can be the refusal or inability to meet such essential needs as food, clothing, or shelter. (See Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed.2d 323 (U.S. Tex., 1979); O'Connor v. Donaldson, 422 U.S. 563, 93 S. Ct. 2486, 45 L. Ed.2 396 (U.S. Fla., 1975); Matter of Harry M., 96 AD2d 201, 468 NYS2d 359 (2d Dept., 1983); Matter of Edward L., 137 AD2d 818, 525 NYS2d 281 (2d Dept., 1988); Matter of Francine T., 302 AD2d 533, 755 NYS2d 276 (2d Dept., 2003); Matter of Luis A., supra ). A mere showing of mental illness or eccentricity is insufficient to retain a patient involuntarily admitted to a mental facility ( Matter of Carl C., supra ; Matter of Perra, 14 Misc 3d 438, 827 NYS2d 587 [Sup. Ct., Oneida Co., 2006]).
I have credited the doctor's testimony, unrebutted, but for C.C.'s self-serving denial of mental illness, that C.C. suffers from severe paranoid personality disorder. She is pervasively distrustful. C.C. testified that she does not trust people, which has been borne out by the APS workers and the doctor who testified to her guarded speech and refusal to discuss certain topics. Furthermore, C.C. has, since 1985, harbored the belief that her neighbors are vandalizing her home and she is becoming increasingly vocal in her complaints about the neighbors. She has expressed a fear or refusal to sign papers, both in the hospital and in the community. C.C., a former teacher, is intelligent and articulate, but does not appear to have worked steadily for years. She has refused any assistance in the form of food stamps and other social services, but has accepted money from her brother in order to purchase food. There seems to be an inability to comprehend the consequences of her actions and reality, in that she failed to pay taxes for 19 years, was notified of foreclosures (the court docket reflects three, stemming back to 2001), yet now, after a foreclosure sale, she baldly professes to have found a purchaser. She also denies that her roof is in danger of collapse, believing that it is merely missing shingles. Her plans for what she will do after the house is sold are vague, to say the least.
C.C. has been advised that she may be suffering from either of two potentially deadly, if left untreated, conditions; cellulitis or phlebitis, yet she has refused treatment, thereby creating a danger to herself. ( Consilvo v. Diana W., 269 AD2d 310, 703 NYS2d 144 [1st Dept., 2000]). I do not credit her testimony that she will seek treatment for her medical condition upon her release. While not corroborated by medical testimony and without regard for the underlying cause of her inflamation/rash, C.C. testified that without treatment it is getting better, already dismissing the condition. She will clearly not seek treatment for her psychiatric condition because she denies that she is suffering from mental illness.
While it is unthinkable that C.C. has been living in the middle of one of the wealthiest counties in the nation for nine years without heat, electricity or running water, she has, thus far, been fortunate enough to survive. Her steadfast determination, pioneer spirit and boundless independence have served her well over the years. However, during C.C.'s hospitalization, a 93 year old Bay City, Michigan man was not as fortunate. It was reported that the medical examiner indicated that he died "a slow, painful death" caused by freezing, inside his home, just days after the power company restricted his use of electricity due to non-payment. The lack of water and refrigeration, in addition to other unsanitary conditions, was found to be "a threat of imminent danger" in a neglect proceeding ( In re Lillian H., 254 AD2d 237, 679 NYS2d 142 [1st Dept., 1998]). No utilities, heat or running water resulted in a finding of "imminent danger"( Matter of Tad M., 123 Misc 2d 1071, 475 NYS2d 996 (Fam. Ct., Richmond Co., 1984); State of Louisiana v. Russo, 567 So.2d 703 [Louisiana Ct. App. 3rd Cir., 1990]). The New York City Administrative Code finds the lack of hot water to be an emergency condition ( Matter of Bozart Realty Corp., 65 Misc 2d 55, 316 NYS2d 709 [Sup. Ct. Bronx Co., 1970]). Even in the widely publicized case of Billie Boggs, Ms. Boggs, a 40 year old homeless woman, while living on a sidewalk, provided heat for herself in the form of an air vent. ( Matter of Billie Boggs, 132 AD2d 340, 523 NYS2d 71 (1st Dept., 1987); app. dism. 70 NY2d 972, 525 NYS2d 796, 520 NE2d 515 [1988]).
There is no bright line rule as to at what age the lack of heat becomes deadly, as opposed to simply dangerous, but there can be no doubt that living in extreme conditions, such as those existing in C.C.'s house, is dangerous, especially to C.C., given her age and physical condition. The fact that C.C. has successfully weathered severe winter conditions in the past does not mean that she will continue to be so lucky, nor that such conditions are not dangerous. C.C. is nearly 61 years of age, suffering from arthritis, degenerative disc disease, varicose veins and possibly cellulitis or phlebitis, yet she does not recognize these changes in her life or prolonged exposure in a decaying building as posing any danger to herself.
While C.C. continues to express her will to persevere under the most adverse and trying conditions, the Court must weigh all of the competing interests. This is not a case of trying to confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by herself or with the help of willing and responsible family members (See O'Connor v. Donaldson, supra ), nor is it proposed that C.C. be deprived of her liberty merely for the purpose of providing treatment. ( Matter of Francine T., supra; Matter of Luis A., supra; Matter of Scopes, 59 AD2d 203, 398 NYS2d 911, [3rd Dept., 1977]).
C.C.'s constitutional right to live as she chooses, however unorthodox, difficult and challenging her choice may be, has repeatedly and correctly been respected and honored by APS, as well as the hospital. There does not appear to be a rush to judgment and resultant infringement on C.C.'s freedom. The cumulative effect of all of the circumstances presented to this Court demonstrate, however, clearly and convincingly, that C.C. is now in danger, due to her failure to care for her basic needs. In balancing C.C.'s constitutional right to follow her own desires and choose her destiny with the state's parens patriae power to protect and provide care to its citizens, unable to care for themselves due to mental illness, I find, that under the facts herein, she must be retained for care and treatment in the hospital against her will.
Upon careful consideration of the demeanor of the witnesses and all of the evidence, C.C. is in need of retention. She suffers from a mental illness, which has been diagnosed as severe paranoid personality disorder; inpatient care and treatment are essential for her welfare, in that, if released, she poses a substantial risk of harm to herself; her judgment is so impaired that she is unable to understand the need for such care and treatment and she fails to perceive the danger she presents to herself.
It is ORDERED that the request for C.C.'s release is denied and the patient may be retained for care and treatment at the above named hospital for a period not to exceed 60 days from the date of admission.
The foregoing constitutes the Order of this Court.