On August 19, 2019 the Court orally granted Petitioner’s application for an order authorizing the Office of Mental Health and Department of Corrections and Community Supervision to proceed with the involuntary treatment of Respondent “DJ” a patient at the Central New York Psychiatric Center Great Meadow Satellite Unit. The Court is now issuing a written decision memorializing the basis for that ruling which was previously set forth orally on the record. Respondent — who is 25 years of age — is an inmate at the Great Meadow Correctional Facility. He is serving a sentence of 7 to 8 years for, inter alia, robbery in the first degree. As noted he is currently a patient in Great Meadow’s Central New York Psychiatric Center Satellite Unit. Respondent suffers from schizoaffective disorder, depressive type; antisocial personality disorder; and cannabis use disorder, moderate. According to his treating psychiatrist at the Facility, he was admitted to Kings County Hospital for approximately three weeks in June 2012 “for agitation, irritability and hostile attitude after an argument at a party that resulted in a fractured jaw.” He was apparently “escorted to the emergency room by police after family members called 911[and] reported that they were afraid of him after he picked up a knife and threatened them when they wanted to take him to the [hospital].” Respondent was prescribed the antipsychotic Risperdal as a result of this hospitalization and received outpatient treatment in the community following his discharge. He apparently attempted suicide “by hanging in 2013 and 2014[,] requiring medical treatment.” He was then arrested on the robbery charges in 2015. Following his arrest he was transferred to Riker’s Island with active medications of Risperdal and Benadryl (for side effects), but he refused to take them. In April 2015 “he made multiple skin abrasions by cutting himself on his right forearm.” He then “injured his hand by cutting and by punching the wall in May 2015″ and “attempted to hang himself with a shoelace in June 2015.” Following his sentencing in 2016 he was transferred to Groveland Correctional Facility and continued in his refusal to take the Risperdal. In June 2016, “he disassembled his state razor while showering and swallowed the metal portions.” He then restarted the Risperdal in August 2016, and also began taking the anti-depressant Wellbutrin. Respondent was subsequently transferred from Groveland to Elmira Correctional Facility where, in June 2018, he was again reported to be “off [his] medications.” He was encouraged to restart the medications and, while he refused to restart the Rispersal, he agreed to restart the Wellbutrin. His compliance, however, was not consistent. Later that same month he “was found with a weapon in his cell [that] he planned on using…to harm himself, thinking it would get him transferred to a different facility.” Respondent was thereafter transferred to Green Haven Correctional Facility and Fishkill Correctional Facility, respectively. He continued in his refusal to take Risperdal and, in November 2018, he stopped taking the Wellbutrin as well because — after being caught “cheeking” the tablet form of the medication — it “was crushed and [he] was suspicious about how nurses prepare[d] the liquification of the tablets.” In or around December 2018, he was transferred to Five Points Correctional Facility where he was “observed to have delusional thoughts both persecutory and grandiose in nature.” Specifically, he “reported to his therapist…that he believe[d] the officers [were] trying to sabotage him” and “he was working on a lab report from a scientific research that he was reading.” He was transferred to Great Meadow in or around February 2019. At that time he indicated that he stopped taking the Risperdal and Wellbutrin because of several side effects, including “developing male breast” and “pass[ing] out.” His medical records, however, do not suggest any such side effects. On April 14, 2019, “after receiving a [Special Housing Unit] sentence for unhygienic act, [respondent] made a threat that he [would] hang up or cut up.” “He asked the therapist to call his family and ‘tell them [he was] dead.” He was then admitted to the Residential Crisis Treatment Program (RCTP) — an acute mental health observation unit — from April 15, 2019 to April 17, 2019. He was then readmitted on April 24, 2019 “after cutting his arm in the shower requiring 4 sutures.” Since that time, respondent has “started to decompensate” further, “report[ing] paranoid delusions that he does not trust [Office of Mental Health] staff and security.” He has “disorganized thoughts,…over productive speech, [is] depressed and state[s he is] ‘not sure why [he is] still alive’.” On May 1, 2019, “he was covering [him]self with a sheet and lying on the floor when seen…by [his] primary therapist” and “[h]e mumbled incoherently…stat[ing] ‘I have to get to the castle because they’re coming, they’ll get me’.” He believes “he has a life sentence” and does not “‘believe in what the computer says’.” The suicidal ideation and paranoid delusions continued to worsen in June and July 2019. The treating psychiatrist evaluated respondent on July 15, 2019 and stated as follows: “[Respondent] reported he is ‘not good. I kind of give up, they won’t let me go home.’ When he was asked about his understanding about his mental illness he answered ‘Nothing, I don’t want to talk or trust anyone any more because they lied to me.’ At the end of the interview the same question was asked and he answered ‘Nothing.’ He is aware that he is in Comsock, NY. He knows it is June or July. He believes it is 1919. Suicidal ideations and plans were assessed. [Respondent] reported that, ‘I want to kill myself, before somebody will kill me first. I don’t want them to take my spirit. If anyone who takes a person’s life, he will take their spirit’.” The psychiatrist opines that respondent “has no understanding about his mental illness [and] has impaired insight and judgement [sic] to the need [for] taking psychiatric medication to attain and maintain stability.” She recommends that he be treated with Risperdal for his psychosis and Congentin to reduce side effects. The application of petitioner, Unit Chief of Great Meadow’s Central New York Psychiatric Center Satellite Unit, seeks authorization to administer these medications to respondent over his objection. The relief requested is based upon the seminal case of Rivers v. Katz (67 NY2d 485 [1986]) (hereinafter Rivers), wherein the Court of Appeals held as follows: “[I]n situations where the State’s police power is not implicated, and the patient refuses to consent to the administration of antipsychotic drugs, there must be a judicial determination of whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State’s parens patriae power. The determination should be made at a hearing following exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8. The hearing should be de novo, and the patient should be afforded representation by counsel. The State would bear the burden of demonstrating by clear and convincing evidence the patient’s incapacity to make a treatment decision. If, after duly considering the State’s proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure, the court determines that the patient has the capability to make his own treatment decisions, the State shall be precluded from administering antipsychotic drugs. If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, the court must determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria” (id. at 497-498 [citations omitted]). At the outset, petitioner failed in its submissions to allege that all administrative review procedures have been exhausted. While Rivers holds that a determination should be made at a hearing following the exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8, it further holds that the review procedures set forth in the regulation are inadequate (see id. at 498). With that said, 14 NYCRR 527.8 was promulgated in response to Rivers and sets forth the procedures to be followed prior to seeking Court authorization for treatment over objection. As summarized in Matter of Bronx Psychiatric Ctr. (283 AD2d 73 [2001]), 14 NYCRR 527.8 requires as follows: “First, the patient’s treating physician must make a determination that the proposed treatment is in the patient’s best interests and that the patient lacks the capacity to make a reasoned decision concerning the treatment. Once this evaluation is made, he or she informs the Clinical Director of his [or her] determination and requests further review. He or she is also required to notify [Mental Hygiene Legal Service] and any other representative of the patient of his [or her] request and determination. The clinical director then conducts the review or…may appoint a designee to be a reviewing physician. The reviewing physician personally examines the patient and reviews his or her records. Finally, the clinical director conducts a final review and determines whether to seek a court order” (id. at 75). Here, it appears that petitioner has followed the administrative review procedure set forth in 14 NYCRR 527.8. As set forth above, respondent was examined by the treating psychiatrist who determined that he “lacks capacity to make reasoned decisions concerning his treatment” and, further, “that it would be in [his] best interests…to be treated according to the proposed treatment outlined in [her Evaluation].” A consulting psychiatrist then reviewed respondent’s medical records and examined him on July 23, 2019 in the presence of counsel provided by Mental Hygiene Legal Service. This consulting psychiatrist reached the same conclusion as the treating psychiatrist. With that said, to the extent that the application failed to include any allegations with respect to petitioner’s compliance with 14 NYCRR 527.8, this issue was addressed and compliance established on the record before this Court proceeded to consider the application. Having thus established full compliance with 14 NYCRR 527.8, petitioner, by medical records and testimony, has demonstrated by clear and convincing evidence that (1) respondent is without capacity to make a treatment decision; and (2) that the proposed treatment is narrowly tailored to protect his liberty interest. Demonstration of these two factors warrants that the application be granted (see e.g. Matter of Sawyer [R.G.], 68 AD3d 1734, 1734-1735 [2009]). Therefore, upon consideration of the Petition of Christopher Boydston, Unit Chief of Central New York Psychiatric Center Great Meadow Satellite Unit, sworn to July 26, 2019, together with the Affidavit of Fatima Bautista, M.D. sworn to July 16, 2019 including her proposed “Evaluation for Treatment Over Objection” dated July 15, 2019, the Affidavit of Nicole Charder, M.D., sworn to July 26, 2019 including her proposed “Evaluation for Treatment Over Objection” dated July 26, 2019, the testimony of Fatima Bautista, M.D., the previously issued written Order dated August 19, 2019 and following oral argument held on August 19, 2019, and having heard the arguments of Ryan L. Abel, AAG appearing on behalf of the petitioner and Matthew Bliss, Esq., Mental Hygiene Legal Services appearing with and on behalf of the respondent, It is SO ORDERED. ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied. The original of this Decision and Order has been filed by the Court. Counsel for petitioner is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: August 29, 2019 Lake George, New York
