Court-Appeals-Building New York Court of Appeals building. Photo: Rick Kopstein/NYLJ.

An attorney for the state argued before the New York Court of Appeals on Tuesday that a convicted sex offender confined at a mental health facility in the North Country should not have a categorical right to have an attorney present at meetings to help develop a treatment plan.

The case, according to an attorney for the individual, could set a precedent for other mental health patients retained in facilities who commonly ask that their attorney be present during treatment planning meetings.

It’s a rare instance of litigation between two state agencies, brought by the Mental Hygiene Legal Service, a state agency, against the Office of Mental Health on behalf of a convicted sex offender currently committed to the St. Lawrence Psychiatric Center. MHLS provides legal representation for individuals receiving services for a mental disability, regardless of that person’s criminal history.

The individual, referred to by the court and litigants as D.J., was adjudicated as a dangerous sex offender, which required him to be confined under a section of the state’s mental hygiene law. The law also required officials to develop a treatment plan for him. Part of developing that plan included meetings with D.J., who was also allowed under the statute, Mental Hygiene Law §29.13(b), to have either an “authorized representative” or “significant individual” present.

The question for the Court of Appeals is whether the individual’s attorney from MHLS qualified as the individual’s “authorized representative” or “significant individual.” Neither is clearly defined under the statute.

D.J. had asked that his attorney from MHLS be allowed to attend his treatment meetings, but officials at the psychiatric center said counsel was not legally entitled to attend and that the presence of such a person could be counterproductive to his treatment. The denial prompted the lawsuit from D.J. and MHLS.

St. Lawrence Supreme Court Justice Mary Farley dismissed the lawsuit, saying the state’s mental hygiene law does not give attorneys with MHLS the right to attend treatment planning meetings. The Appellate Division, Third Department, affirmed that decision and said those attorneys qualify as neither an “authorized representative” nor “significant individual” under the statute.

Shannon Stockwell, who argued before the Court of Appeals on behalf of D.J. and MHLS, said the statute was intended to allow the patient to choose who they wanted with them at meetings, whether they be counsel or another individual. Stockwell is deputy director of MHLS in the Third Judicial Department.

“I think they’re entitled to liberal construction. They’re meant to protect the interests of disabled individuals,” Stockwell said. “I think when [the statute] was amended to include the term ‘significant individual,’ if you look at the legislative history, the assemblyman who introduced the legislation specifically indicated that the intent was to allow patients to select any individual of his or her choosing.”

Associate Judge Eugene Fahey questioned the purpose of having an attorney present in a meeting intended to develop a medical treatment plan for an individual’s mental health.

“That would be great, as if you were his mother, wife, brother, sister, or someone like that,” Fahey said. “But an attorney is going to come in and give medical advice?”

Stockwell said the kind of advice the attorney would be giving in a treatment meeting would not necessarily be about the patient’s health. It would be about their history and preferences, he argued.

“It’s not medical advice. Our clients typically aren’t new to the mental health system by the time they end up in a mental hygiene facility,” Stockwell said. “They may have been on a multitude of medications over the years and have had a conversation with us.”

Kathleen Treasure, an assistant solicitor general who argued on behalf of the Office of Mental Health, said the state is not necessarily against allowing attorneys to be present at meetings as an individual’s “authorized representative” or “significant individual.” Its position, according to Treasure, is to have those requests decided individually, rather than allowing attorneys to take on that role without question.

“I think it has to be a case-by-case analysis because the commissioner and the facility are charged with taking care of, and the treatment of, the individual and they have to look at, what are the facts here in appointing this person as a significant individual,” Treasure said. “MHLS, here, is asserting a blanket right. So, that’s what we’re objecting to.”

Treasure said there have been instances in the past where an attorney was allowed to attend a treatment meeting and later told the patient not to cooperate with the state’s plan for them. That outcome is more likely if an attorney is always allowed to attend those meetings, Treasure said.

Stockwell, meanwhile, warned the court about the possible consequences of its decision if it prohibits attorneys from serving as someone’s “significant individual” or “authorized representative.” He said it could have an unintended impact on other individuals who already have an attorney attend treatment meetings.

“I would just point out to the court that the Appellate Division’s holding is not limited to secure treatment facilities. It’s a pretty broad brush interpretation of our enabling statute,” Stockwell said. “I would submit that if we’re unable to attend treatment planning meetings in all other mental hygiene facilities, it would be a disaster in terms of MHLS and how we’re serving our clients. We go to treatment meetings all day throughout the state.”

A decision in the case is expected to be handed down in February.

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