Despite a hospital’s late application to extend the involuntary confinement of a mentally ill man, a judge should not have ordered his release without a hear- ing, a Brooklyn appellate court has ruled.
“When the Supreme Court is presented with an untimely retention application, it generally cannot dismiss the retention application and direct the patient’s release absent an inquiry into the patient’s alleged mental disability and detention,” Justice John Leventhal (See Profile) of the Appellate Division, Second Department, said in People ex rel. Stephen S. v Munsey, 2012-09913.
The patient’s release was stayed pending appeal, but he was discharged about a month after March 7, 2013 oral arguments. The panel still opted to rule on the case in its decision released Wednesday.
In June 2012, Queens Supreme Court Justice Martin Schulman (See Profile) granted a state Office of Mental Health application to involuntarily hospitalize Stephen S.
Schulman said the patient was to be retained at the now-shuttered Holliswood Hospital for no more than three months.
More than a month after the deadline, Mental Hygiene Legal Service filed a habeas corpus petition on Stephen’s behalf, saying in light of the missed deadline for release, Stephen was being illegally detained.
The hospital countered by seeking to extend retention, asserting Stephen was “paranoid and unable to care for [him]self.”
Its application included two certificates from Stephen’s treating physicians and a psychiatric summary that said Ste- phen’s be-havior was “unremarkable” when medicated. But the summary said he had a history of becoming “dangerously assaultive” when insufficiently medicated.
For example, Stephen allegedly stabbed a hospital staffer in the neck and, just days before the habeas filing, attacked the reporting psychiatrist.
When Stephen was produced before Schulman, his attorneys argued there was no legal mandate for continued retention. Moreover, they noted they filed the writ pursuant to CPLR article 70, which codifies the common law habeas writ and requires no hearing.
The hospital said precedent instructed that the remedy for an administrative error like the one here was a hearing, not release.
Schulman said a hearing was “almost a non-remedy,”adding that he would have had to conduct a hearing if the hospital got filed its application on time.
He sustained the writ, and the hospital appealed.
The hospital insisted CPLR article 70 did not apply and instead asserted Mental Hygiene Law §33.15 pertains to involuntary commitments.
That provision, under § 33.15 (a) and (b) says patients are entitled to file habeas petitions “to question the cause and legality of detention … Upon the return of such a writ of habeas corpus, the court shall examine the facts concerning the person’s alleged mental disability and detention.”
Moreover, the hospital said there was no substantial difference between the dictates of CPLR article 70 and MHL §33.15.
Mental Hygiene Legal Service said the hospital incorrectly lumped the two statutes together, with the common law writ being the right cure for the hospital’s failure to follow procedures on seeking judicial authorization to keep an involuntary patient.
The authorization process is spelled out in MHL §9.33, which says hospitals have to apply for retention “during the period of retention authorized by the last order of the court.”
In his decision, Leventhal, pointed to several cases that backed the conclusion that when weighing a hospital’s tardy application for continued retention, courts had to weigh a patient’s liberty interests against a state interest in caring for the mentally ill and preventing violence.
“The doctrine of stare decisis requires us to adhere to the principle that where a hospital has failed to fully comply with the retention procedures set forth in Mental Hygiene Law §9.33, the immediate release of a patient is not the automatic remedy,” Leventhal wrote.
He discarded Stephen’s assertion that because the habeas petition was filed under CPLR article 70, MHL §33.15′s examination requirements were inapplicable.
“A writ of habeas corpus, ostensibly filed on behalf of the patient pursuant to CPLR article 70, is still governed by the specific provisions of Mental Hygiene Law §33.15. Thus, the Supreme Court could not simply sustain the writ on the ground that CPLR article 70 does not explicitly require such an examination,” the judge wrote.
Leventhal said the decision should not be viewed as condoning the hospital’s indisputably late application for continued retention—which he called “dilatory conduct.”
Leventhal also warned that the decision’s reasoning “should not be construed to authorize an unlimited violation of article 9 of the Mental Hygiene Law so as to allow a patient to be involuntarily retained, without a hearing, indefinitely,” he said.
Eric Broutman of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger in Lake Success represented Holliswood Hospital.
Broutman said in an interviews that theruling “reaffirmed” views that the First and Second Departments have held for awhile, namely that judges had to conduct hearings “as opposed to outright releasing [patients] when there was some sort of administrative error.”
Broutman noted that when Stephen was released, his treating physician concluded his concluded he had improved and could be safely discharged.
Stephen S. was represented by Lesley DeLia, Ana Vuk-Pavlovic, and Dennis Feld of counsel of Mental Hygiene Legal Service in Mineola.