Matter of Benjamin T. v Stephany

[*1] Matter of Benjamin T. v Stephany 2015 NY Slip Op 51278(U) Decided on July 27, 2015 Supreme Court, Broome County Guy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2015
Supreme Court, Broome County

In The Matter of the Retention of Benjamin T., a patient, Petitioner,

against

Mark E. Stephany, Acting Executive Director, Greater Binghamton Health Center, Respondent.



2015-1799



Mental Hygiene Legal Service Third Dept. by Hollie S. Levine, Esq., Principal Court Attorney

Office of the Attorney General by Douglas H. Squire, Esq., Assistant Attorney General
David H. Guy, J.

Benjamin T. was originally admitted to Greater Binghamton Health Center (GBHC) on June 19, 2015, under color of Mental Hygiene Law §9.37, which provides for involuntary admission upon certificate and application of the Director of Community Services. Mr. T. objects to his continued retention and on June 29, 2015, he requested a hearing pursuant to Mental Hygiene Law §9.37(a) and §9.31(a).

The matter came before the Court for a hearing on July 16, 2015. Mr. T. was represented by Mental Hygiene Legal Service of the Third Department, Hollie S. Levine, Esq., of counsel and Mark E. Stephany, Acting Executive Director of GBHC was represented by the Office of the Attorney General, Douglas Squire, Esq., Assistant Attorney General, of counsel.

Testimony was received from Dr. Bernardo Izaguirre based on his meeting with Mr. T. the day before the hearing and his review of Mr. T.'s records. Mr. T.'s treating physician was unavailable to testify before the Court. Betsy Bellos, Mr. T.'s social worker for both this and his prior admission to GBHC, also testified for the GBHC. Mr. T. testified in support of his request for discharge.

In order to authorize Mr. T.'s continued involuntary retention at GBHC, the facility must show, by clear and convincing evidence that Mr. T. is "in need of retention" as defined by Mental [*2]Hygiene Law and that his continued confinement is based on his posing "a real and present threat of substantial harm to himself or others." Matter of Scopes, 59AD 2d 203, 205(3rd Dept., 1977).

The key issue in this retention case is whether Mr. T. at this time "poses a real and present threat of substantial harm to himself or others" Id. Dr. Izaguirre's testimony on this issue centered on Mr. T.'s multiple arrests. The arrests are reportedly in the medical record which accompanies Mr. T. upon admission to this and other facilities. The doctor's attempted testimony regarding the factual underpinnings of these arrests was inadmissible over the hearsay objection of Mr. T.'s counsel.

Mr. T. testified on his own behalf and was questioned about his arrest record. He testified in a credible way to a string of arrests by local police in his home community, arising from admittedly loud and disruptive behavior by Mr. T. However, Mr. T.'s unrebutted testimony was that there were no violent acts associated with any of his arrests. He also testified credibly to an understanding that his pattern of treatment by local law enforcement officials is different than it would be for someone without Mr. T.'s history; another person without a history of hospitalizations might well receive an appearance ticket rather than be arrested.

Weighing the evidence, the Court finds that GBHC has not satisfied its burden of showing by clear and convincing evidence that Mr. T. at this time poses a real and present threat of substantial harm to himself or others.

GBHC is directed to release Mr. T. "forthwith". MHLS §9.31(d). The Court notes the requirement that GBHC provide discharge planning to Mr. T., in connection with his release. Dix v. Maul, 38 AD3d 972 (3rd Dept., 2007). As noted by that court, "the plain language of Mental Hygiene Law §29.15(f) requires [GBHC] to provide discharge planning to all patients, without specifying or exempting any patients based on the method of their release or discharge." Id at 973. Article 29 of the Mental Hygiene Law is equally applicable to patients subject to MHL Article 9 or MHL Article 15. Mr. T.'s discharge, "shall be in accordance with a written service plan prepared by staff familiar with [his] case history .and in cooperation with appropriate social services officials and directors of local government units." MHL §29.15(f).

This Decision constitutes the Order of the Court

DATED: July 27, 2015

Hon. David H. Guy,

Acting Justice Supreme Court 6JD