Matter of MacGilvary v Thomas I.

[*1] Matter of MacGilvary v Thomas I. 2008 NY Slip Op 52655(U) [22 Misc 3d 1121(A)] Decided on December 17, 2008 Suffolk County Ct Hensley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 19, 2009; it will not be published in the printed Official Reports.

Decided on December 17, 2008
Suffolk County Ct

In the Matter of the Application of Thomas MacGilvary, C.S.W., C.A.S.A.C., Director of Community Services, by his Designee Ann Marie Csorny, L.C.S.W., Suffolk County Division of Community Mental Hygiene Services, Suffolk County Department of Health Services, Petitioner For an Order Extending Assisted Outpatient Treatment for,

against

Thomas I., Respondent



040358/2008



Christine Malafi

Suffolk County Attorney

Attorney for Petitioner

Suffolk County Department of Law

Family Court, Social Services Bureau

by:

Brian B. Mulholland, Esq.

Assistant County Attorney

400 Carleton Avenue

Central Islip, NY 11722

Sidney Hirschefeld, Director

Mental Hygiene Legal Services

80-45 Winchester Boulevard

Queens Village, New York 11427

by:

Lawrence J. Germano, III, Esq.

Arthur A. Baer, Esq.

Dennis B. Feld, Esq.

Attorney for Respondent

Paul M. Hensley, J.

On November 19, 2008, a Kendra Hearing was held pursuant to Section 9.60 of the Mental Hygiene Law. Section 9.60 of the Mental Hygiene Law, known as "Kendra's Law", was enacted in 1999 in wake of the high-profile death of Kendra Webdale on January 3, 1999, as a result of being pushed in front of a moving subway train by Andrew Goldstein, a man with a long psychotic history. The legislative history of the statute is summarized by the First Department in In Re: Manhattan Psychiatric Center, 285 AD2d 189, 728 NYS2d 37, 40 (1st Dept., 2001).

The legislature finds that there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization. The legislature further finds that there are mentally ill persons who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization.

The legislature further finds that some mentally ill persons, because of their illnesses, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and care givers often must stand by helplessly and watch their loved ones and patients decompensate. Effective mechanisms for accomplishing these ends include: the establishment of assisted outpatient treatment as a mode of treatment; improved coordination of care for the mentally ill persons living in the community; the expansion of the use of conditional release in psychiatric hospitals; and the improved dissemination of information between and among mental health providers and general hospital emergency rooms.

The legislature further finds that if such court ordered treatment is to achieve its goals, it must be linked to a system of comprehensive care, in which state and local authorities work together to ensure that outpatients receive case management and have access to treatment services. The legislature, therefore, finds that assisted outpatient treatment as provided in this act is compassionate, not punitive, will restore patients' dignity, and will enable mentally ill persons to lead more productive and satisfying lives.

(See, L.1999, c. 408, §2, 34A, McKinney's MHL §9.60 [Supp. 2001] at 54-55).

The Court may order a patient to obtain assisted outpatient treatment if it finds by clear and convincing evidence that:

(1)the patient is eighteen years of age or older; and

(2)the patient is suffering from a mental illness; and

(3)the patient is unlikely to survive safely in the community without supervision, based on a clinical determination; and [*2]

(4)the patient has a history of lack of compliance with treatment for mental illness that has;

(I) at least twice within the last thirty-six months been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition or;

(ii) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period in which the person was hospitalized or incarcerated immediately preceding the filing of the petition, and

(5)the patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan; and

(6)in view of the patient's treatment history and current behavior, the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others as defined in section 9.01 of this article, and

(7)it is likely that the patient will benefit from assisted out patient treatment; ...(§9.60[c])

Mental Hygiene Law §9.60(j)(1) provides:

If after hearing all relevant evidence, the court does not find by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpatient treatment, the court shall dismiss the petition.

Significantly, Mental Hygiene Law §9.60(j)(2) provides:

If after hearing all relevant evidence, the court finds by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpatient treatment, and there is no appropriate and feasible less restrictive alternative, the court may order the subject to receive assisted outpatient treatment for an initial period not to exceed six months. In fashioning the order (emphasis added), the court shall specifically make findings by clear and convincing evidence that the prepared treatment is the least restrictive treatment appropriate and feasible for the subject. The order shall state an assisted outpatient treatment plan, which shall include all categories of assisted outpatient treatment, as set forth in paragraph one, subdivision (a) of this section, which the assisted outpatient is to receive, but shall not include any such category that has not been recommended in both the proposed written treatment plan and the testimony provided to the court pursuant to subdivision (I) of this section. [*3]

Accordingly, in order to grant a petition for assisted outpatient treatment (AOT), a Court must find that the criteria of the Mental Hygiene Law §9.60(c) is be met by clear and convincing evidence and that there is no appropriate and feasible less restrictive alternative. By the plain language of Mental Hygiene Law §9.60(j)(2), the Court may not include any such category that has not been recommended. In other words, the Court may not make the treatment plan more restrictive (see, In Re: Manhattan Psychiatric Center, 285 AD2d 189, 728 NYS2d 37 [1st Dept., 2001]) where the hearing Court was reversed for seeking an independent psychiatrist concurring in the patient's release before his release; In Re: Endress, 189 Misc 2d 446, 732 NYS2d 549 [NY Sup., 2001] where the hearing Court was horrified by the perceived inadequacies of the proposed plan or even discharging the patient at all but was without authority to make the plan more restrictive. That Court went on to say that the Court must either accept or reject the plan). The issue before this Court is quite different. If the criteria of Mental Hygiene Law §9.60(c) has been met, but the treatment plan is overly restrictive, may the Court "in fashioning the order" (Mental Hygiene Law §9.60[j][2]) strike that portion which is not the least restrictive alternative to make it so? The plain language of the statute (Mental Hygiene Law §9.60[j][2]) indicates that a Court not only may "fashion" such an order, but also "shall" specifically make findings by clear and convincing evidence that the proposed treatment (not the proposed treatment plan) is the least restrictive treatment appropriate and feasible for the subject. While a Court is powerless in preventing the release of an untreated, dangerous person with a plan that fails to address the untreated condition (In Re: Endress, 189 Misc. 446, 732 NYS2d 549 at 554 [NY Sup., 2001]) due process and the legislature's intent that the assisted outpatient treatment provided in the statute is compassionate, not punitive, and will restore patients' dignity and will enable mentally ill persons to lead more productive and satisfying lives, permits a Court to strike that portion of the plan that is overly restrictive.

In the matter sub judice, Petitioner seeks an order extending assisted outpatient treatment for Respondent Thomas I., pursuant to Mental Hygiene Law §9.60(k), "for a period not to exceed one year from the expiration date of the current order" (see also, Cohen v. Anne C., 301 AD2d 446, 753 NYS2d 500 [1st Dept., 2003]). This Court finds by clear and convincing evidence from the testimony of Dr. Marsha Tanenberg-Karant, the previous order which this Court took judicial notice of, and Respondent's own testimony that:

(1)Respondent, Thomas I., is over the age of 18, having been born in November 1965;

(2)Respondent, Thomas I., suffers from a mental illness, which has been diagnosed as Bipolar I Disorder, a mental illness as defined in 1.03(20) of the Mental Hygiene Law and described in the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association;

(3)Respondent, Thomas I., is unlikely to survive safely in the community without supervision, based upon a clinical determination; [*4]

(4)Respondent, Thomas I., has a history of lack of compliance with treatment for mental illness, that, inter alia, at least twice within the within the 36 months prior to the filing of the initial petition for assisted outpatient treatment was a significant factor necessitating hospitalization, to wit:

(5)Respondent, Thomas I., as a result of his mental illness, is unlikely to participate voluntarily in the treatment recommended in the treatment plan;

(6)In view of Respondent Thomas I.'s treatment history and current behavior, he is in need of assisted outpatient treatment in order to prevent a relapse or deterioration of his present mental status which would be likely to result in serious harm to himself or others as defined in §9.01 of the Mental Hygiene Law;

(7)Respondent, Thomas I., will likely benefit from assisted outpatient treatment.

In finding by clear and convincing evidence that the subject of the petition meets the criteria for assisted outpatient treatment, here, continued assisted outpatient treatment, the next step in the Court's inquiry is: does the proposed treatment plan provide the least restrictive treatment appropriate and feasible for the subject (Mental Hygiene Law §9.60[j][1][2])? The order shall state an assisted outpatient treatment plan, which shall include all categories of assisted outpatient treatment, as set forth in paragraph one of subdivision (a) of this section, which (emphasis added) the assisted outpatient is to receive... (Mental Hygiene Law §9.60[j][2]). In other words, the Court shall determine the appropriate treatment limited by "shall not include any such category that has not been recommended in both the proposed written treatment plan and the testimony..." (Mental Hygiene Law §9.60[j][2]). The assisted outpatient treatment plan presented to the Court is the least restrictive treatment that is appropriate and feasible with the exception of the requirement that the Federation of Organizations act as a representative payee for management of Respondent's funds.

Mental Hygiene Law §9.60(a)(1) contains no language that refers to financial management as an aspect of the "mode of treatment" (see, Laws 1999, ch. 408, §2 [Legislative Findings]) or part of the case coordination (see, Mental Hygiene Law §9.60(i)(1). In Re: MacGilvary, 196 Misc 2d 469, 765 NYS2d 433, 43 [Suffolk County Supreme, 2003]). Assisted outpatient treatment, which the Court is authorized to direct for a patient pursuant to Mental Hygiene Law §9.60, is defined by the statute as including specified categories of services "and any other services within a local or unified services plan developed pursuant to article forty-one of the Mental Hygiene Law". The local services plan includes services for those suffering from alcoholism, alcohol abuse, substance abuse or substance dependence (see, Mental Hygiene Law §41.03[3]; see, In Re: MacGilvary, supra ). Respondent, Thomas I., herein does not suffer from alcoholism, alcohol abuse, substance abuse or substance dependence. (Both the prior treatment [*5]plan dated May 21, 2008 presented by Dr. Chatterjee, M. D., Psychiatrist and the current plan presented by Dr. Marsha Tanenberg-Karant, M.D., Psychiatrist, do not include alcohol or substance abuse counseling and treatment as a category of service recommended to be provided). While Dr. Marsha Tanenberg-Karant recommendation in the proposed treatment plan is understandable given Respondent's prior episode of homelessness, the recommendation is not the least restrictive alternative. Moreover, the question remains whether such an order is authorized by Mental Hygiene Law §9.60 or by Article 41 of the Mental Hygiene Law. While Suffolk County Department of Health Services contracts with the Federation of Organizations to specifically provide representative payee services, financial management and financial education to persons with mental illnesses as part of its local and unified service plan pursuant to Article forty-one of the Mental Hygiene Law (see, In Re: MacGilvary, 196 Misc 2d 469, 765 NYS2d 433, 437 [Supreme Court Suffolk County, 2003]), this Court not need to reach the issue in this case whether Article 41 is applicable to Respondent.

Now, upon motion of Christine Malafi, by Brian B.Mulholland, A.C.A., as attorneys for Ann Marie Csorny, L.C.S.W., as designee for Thomas McGilvary, C.S.W., C.A.S.C., the Suffolk County Director of Community Services pursuant to New York Mental Hygiene Law,

Ordered and adjudged, the Respondent, Thomas I., shall receive and accept Assisted Outpatient Treatment for the duration of this Order and Judgment, consisting of the treatment plan of Dr. Marsha Tanenberg Karant, dated November 6, 2008, which is annexed hereto and made a part hereof and that such treatment is in the Respondent's best interests, and is the feasible and appropriate alternative form of treatment for the Respondent with the exception of the requirement that the Federation of Organizations act as a representative payee for management of Respondent's funds, which is stricken, and it is further,

Ordered and adjudged, that the Director of Community Services shall arrange for all the categories of service to the Respondent that are set forth in the annexed treatment plan for the duration of this Order and Judgment.

Ordered and adjudged, that the Director of Community Services or his designee is authorized to provide a copy of this ORDER and JUDGMENT and documents referenced to herein and annexed hereto to persons properly interested, including all court ordered treatment agencies and personnel, and that such persons and agencies are authorized to report the status of compliance with the treatment ordered herein to the Director of Community Services or his designee as such information is required to be obtained by the Director of Community Services pursuant to mental Hygiene Law §9.60 et. Seq., and the exchange of information is authorized under Mental Hygiene Law §33.13.

Ordered and adjudged, this Order and Judgment is effective until November 19, 2009. [*6]

Dated:__________________

______________________________

Hon. Paul Hensley, Acting J.C.C.