Opinion
05-05-2023
J.W., Petitioner, v. Donna Anthony, M.D., Gracie Square Hospital, Respondent.
Petitioner, patient, was represented by Jessica Heymach with Mental Hygiene Legal Service in the First Department whose Director is Marvin Bernstein. And the Respondent, Gracie Square Hospital, was represented by Madelin Zwerling of Garfunkel Wild, P.C.
Unpublished Opinion
Petitioner, patient, was represented by Jessica Heymach with Mental Hygiene Legal Service in the First Department whose Director is Marvin Bernstein.
And the Respondent, Gracie Square Hospital, was represented by Madelin Zwerling of Garfunkel Wild, P.C.
William Franc Perry III, J.
The Petitioner brought a writ pursuant to article 70 of the Civil Practice Laws and Rules ("CPLR") after close of business on May 2, 2023. The parties fully argued the matter before this Court on May 4, 2023.
The Petitioner alleges that he has suffered numerous due process violations since he was brought in for a psychiatric evaluation on April 6, 2023. The Respondent argues that any violation was remedied by the later completion of the required examinations and admission paperwork under section 9.27 of the Mental Hygiene Law ("MHL"), that the Respondent is not the party that committed any due process violations and thus shouldn't be held responsible for such violations and that any alleged failure to follow the MHL did not rise to the level of a due process violation warranting Mr. W's release.
In People ex rel. Delia v. Munsey, 26 N.Y.3d 124 (NY Court of Appeals 2015) the Court of Appeals established that a patient admitted under the MHL has the right to bring a CPLR writ even though the MHL has its own writ provision found in MHL § 33.15. In Munsey, the Court released the patient finding that a retention application filed after the patient's prior legal status lapsed required the patient's release on a CPLR 70 writ. In finding a patient isn't restricted solely to a MHL writ, the Court differentiated between the two writ provisions. Specifically, that MHL § 33.15 provides that a MHL article 9 patient is entitled to bring a habeas proceeding where the commitment is legally authorized, but the patient believes that he or she has sufficiently recovered to be released whereas the patient may bring a CPLR writ when the patient is alleging that there is no legal authority for their confinement and thus any inquiry into their mental status or need for retention is impermissible. Munsey at 130-34. The Court opined that restricting the patient to only a writ where there had to be an examination of their mental status and need for further treatment would "essentially nullify the procedural due process provisions" contained within the MHL and "would permit the flagrant disregard" of MHL due process protections. Id. at 133. Based on the following facts, this proceeding alleges that Mr. W was held without legal authority and in violation of his due process rights. Thus, this matter was appropriately brought before this Court pursuant to Article 70 of the CPLR.
At one point, the Respondent argued that the Court should hear this case as a MHL § 33.15 writ and assess the Petitioner's alleged dangerousness. However, Munsey does not permit the Court to convert one writ to another but instead establishes that the patient has the right to both a MHL writ and a Common Law Writ. Id. At 134. It is up to the Petitioner to decide which writ to bring based on what is being alleged. Pursuant to Munsey, in a CPLR Article 70 writ this Court is not permitted to consider the alleged dangerousness of the Petitioner but only the legality of his confinement and whether there has been a violation of his due process necessitating his release.
The record establishes that on April 6, 2023, the Petitioner was brought by the New York Police Department ("NYPD") under arrest to the New York Presbyterian/Columbia University Irving Medical Center ("NY Presbyterian") Emergency Department for a psychiatric evaluation. Upon such psychiatric evaluation, the hospital admitted the Petitioner to its facility pursuant to section 9.40 of the MHL and a psychiatrist completed admission forms generated by the NY Office of Health ("OMH") finding that the Petitioner had an alleged "mental illness for which immediate observation, care and treatment is appropriate and which is likely to result in serious harm to the person or others". See MHL § 9.40. The hospital extended such observation beyond 24 hours when a second psychiatrist confirmed the need for Mr. W to continue to be observed and that he met the statutory criteria for such extended observation. Id. This confirmation examination extended Mr. W's involuntary confinement for up to 72 hours. Id. The hospital did not serve Mr. W with written notice at such time that his observation was extended as required by the MHL. See MHL § 9.40. Mr. W's MHL 72-hour admission status expired on the evening of April 9, 2023. NY Presbyterian did not complete any further paperwork authorizing his ongoing involuntary confinement for psychiatric evaluation and treatment until April 21, 2023.
MHL § 29.01 provides that the OMH commissioner "shall prescribe and furnish forms for use in procedures for admission. Admission shall be had only upon such forms."
The Respondent points out that from April 6, 2023 until April 17, 2023, Mr. W remained under the custody of the NYPD and wasn't free to leave such custody. However, that ignores the fact that Mr. W was entitled to a MHL hearing requesting to leave a hospital where he was being held against his will for psychiatric evaluation and treatment. On this record, Mr. W was not free to leave NY Presbyterian Hospital and was being held outside the protections and without the rights of the MHL. NYPD was not the organization keeping the Petitioner inside a hospital nor the organization that admitted him to such facility and who decided he needed to continue to involuntarily remain there. Mr. W was continuously held in the medical emergency room not free to leave the hospital and simultaneously under arrest by the NYPD and handcuffed and guarded by NYPD officers for eleven days. During such time Mr. W was followed and offered treatment by hospital psychiatric staff. The record before this Court was that the arraignment was delayed because the Petitioner refused to be fingerprinted.
On April 17, 2023, Mr. W was released on his own recognizance at his arraignment. At such time, NY Presbyterian transferred Mr. W from its medical emergency room to its psychiatric emergency room. The record shows that between April 17, 2023 and April 21, 2023, no further admission or conversion paperwork pursuant to the Mental Hygiene Law was completed pertaining to the Petitioner; however, he was not free to leave the hospital. The record shows that on April 19, 2023, Mr. W was served with his written notice of his status and rights on his long lapsed and last MHL status which had expired ten days prior. On the same date he received his written notice of his [expired] status and rights, Mr. W submitted a letter to the hospital demanding his release. On April 21, 2023, a two physician certificate was completed pursuant to MHL § 9.27, and Mr. W was transferred from NY Presbyterian's psychiatric emergency room to Gracie Square Hospital where he is currently confined. The record reflects that he also submitted a letter requesting to leave NY Presbyterian on April 21, 2023.
Technically, MHL § 9.40 is a provision that applies only to a Comprehensive Psychiatric Emergency Program and not general emergency rooms; however, the Petitioner did not allege this was a due process violation nor is this Court finding it to be one in this case.
The Munsey decision stated that "a patient may be involuntarily committed only where the standards for commitment and the procedures set forth in the Mental Hygiene Law-which satisfy the demands of due process-are met". Munsey at 132-33. The Court went on to state that is "not to say that every violation of the Mental Hygiene Law amounts to a due process violation or will entitle a patient to a writ of habeas corpus but, "[w]ithout a court order of continued retention [in accordance with the Mental Hygiene Law], or the consent of the patient, the hospital must release the patient". Id. at 133. Numerous cases have since applied the reasoning from Munsey to other violations of the MHL and found patients were illegally detained and ordered their release finding that hospitals' failures to follow other MHL provisions were due process violations. See State of NY ex rel. Hector F. v Lopez, 69 Misc.3d 191 (2020) (finding that conducting the statutorily required 2nd examination pursuant to MHL § 9.39 within 48 hours was a" significant protection" provided in the MHL and doing the exam two days late mandated the Petitioner's release and could not be remedied or "cured" by conducting the examination two days later) and Matter of Krisleidy C., 60 Misc.3d 850 (Kings Sup. Ct. 2018) (ruling that after an untimely filing of a MHL § 9.13(b) application by the hospital, the Court's only recourse was to discharge the patient to signal to the Hospital that its failure to comply with the procedural safeguards of the Mental Hygiene Law will not be tolerated").
The parties dispute whether Mr. W's illegal confinement began on April 9, 2023 or began on April 17, 2023 after he was released on his own recognizance from his criminal matter. However, any due process violation is a due process violation, the number of days the violation occurred go to the severity not whether a petitioner's due process rights and protections under the MHL were violated. In fact, the very constitutionality of the MHL is based on the due process protections it contains specifically the various levels of professional and judicial review and its notice provisions, just to name a few. See Project Release v. Prevost, 722 F.2d 960, 974-75 (2d Cir. 1983). Munsey did not find the length of the delay to be the due process violation, instead the due process violation was the fact that the patient was being confined without legal authority and outside the due process protections of the MHL. Munsey at 132-33. This Court finds that involuntarily holding a patient for psychiatric treatment outside of the Mental Hygiene Law for twelve days or for four days, both to constitute due process violations and pursuant to Munsey require the granting of this Writ.
Respondent further argued that the late MHL § 9.27 paperwork remedies any prior illegalities and due process violations. However, this goes against Munsey, where a late filed retention application didn't remedy and erase the due process violation which occurred when the patient was being held without a legal status under the MHL. See also Lopez v. Perez, 194 A.D.2d 467 (NY App. Div., 1st Dept. 1993) (finding that the submission of physicians' certificates regarding a different patient was a jurisdictional defect that could not be remedied by the hospital refiling an application with the correct physicians' certificates after the expiration of the 72-hour period); See Hector F. at 354 (ruling that failure to conduct a MHL § 9.39 confirmation examination by a physician within 48 hours was a "due process violation [that] cannot be 'rectified' days later, and as in Munsey, requires the granting of the Writ."); See Krisleidy C. at 851-52; See Matter of State of NY ex rel. Giffen v Hoffman, 161 A.D.3d 512 (App. Div., 1st Dept. 2018) (finding reversible error and granting writ based on a hospital's failure to send a clear letter requesting release to the court forthwith as required pursuant to MHL § 9.31).
The parties disagree about whether the Respondent, Gracie Square Hospital, committed any due process violation as it accepted the patient with completed admission paperwork. This is a distinction without a difference. As stated supra, Mr. W's confinement did not become legal and erase prior significant due process violations by conducting required psychiatric examinations and completing the accompanying forms twelve days late. This untimely due process does not remedy the fact that Mr. W had 12 days without any of the rights enumerated under the MHL, nor the fact that he wasn't timely notified of his status and rights including his right to free legal representation by the Mental Hygiene Legal Service ("MHLS") or his right to judicial review of his confinement, nor the fact that his letters requesting to leave the hospital did not lead to the prior hospital filing the necessary paperwork for the Petitioner to have a judicial hearing reviewing his confinement. In order to release the Petitioner pursuant to a CPLR writ, this Court is not required to find that the Respondent, the facility the Petitioner was transferred to, committed the illegalities, the Court must instead find that Mr. W's due process was violated during this ongoing admission and confinement as he was held outside the confines of the MHL for numerous days. See Matter of Jane P., 9 Misc.3d 1054, 1058 (Sup. Ct. Broome County 2005) (releasing patient from current facility patient was transferred to based on statutory violation occurring at transferring facility). The Respondent also argued that the fact that MHLS as Petitioner's attorney didn't discover the violations closer in time to their occurrences should somehow negate the violations. Illegal confinement does not become acceptable or legal because it was untimely discovered. In fact, the violation in Munsey was discovered six weeks after it occurred and that didn't negate the fact that it happened and could not be remedied by belatedly filing the statutorily required application for further retention. Munsey at 128-29.
The Petitioner argued that the Respondent had an obligation to investigate the legality of the Petitioner's hospitalization prior to accepting him for transfer.
The parties disagreed about whether these letters had been forwarded to MHLS by NY Presbyterian and there was no clear record put before this Court on this issue. The first letter was submitted while the Petitioner had no MHL admission or retention status and the second letter was submitted the same day his MHL § 9.27 paperwork was completed and he was transferred to Gracie Square. Pursuant to MHL § 9.31 such requests for a hearing are to be filed forthwith. In this matter, Gracie Square, who was not the party who received the April 19th or the April 21st, letters filed a MHL § 9.31 application on May 1, 2023.
Based on the foregoing, the Respondent is ordered to release the Petitioner by 5:00pm today. This constitutes the order of this Court.