DECISION ON WRIT OF HABEAS CORPUS PETITION PURSUANT TO CPLR ARTICLE 70 On August 25, 2023, the Petitioner, Phyllis C. (hereinafter “Petitioner”) filed a writ of habeas corpus pursuant to Civil Practice Law and Procedure (“CPLR”) article 70 (see CPLR §7002). A hearing was scheduled and held in accordance with CPLR §7009 on September 6, 2023. During the hearing, both parties presented their arguments before this Court. The Court, by short form order, granted the writ of habeas corpus, staying the patient’s release for twenty-four (24) hours to allow Respondent to appeal the order to the Appellate Division, Second Department. The decision herein expounds upon the Court’s rationale for granting the writ, and upon precedent supporting it. The Petitioner was involuntarily admitted to Zucker Hillside Hospital (hereinafter referred to as “Hospital”) on August 20, 2023. Notably, as of August 25, 2023, the Hospital had not released the Petitioner. The initial evaluation and requisite paperwork, as mandated by Mental Hygiene Law (“MHL”) §9.39, were completed on the day of admission. However, Petitioner alleged that the Hospital failed to complete a portion of the Office of Mental Health (“OMH”) 474 form, entitled “Examination to Confirm Need for Extension of Emergency Admission Beyond 48 Hours,” specifically, the portion of the form which pertains to the second evaluation to be performed by a psychiatrist as required by MHL §9.39, to be conducted within forty-eight (48) hours of the initial admission. This failure, the Petitioner argued, caused unlawful extension of the patient’s involuntary detention beyond the statutorily-permitted 48-hour period. The Petitioner further asserted that the Hospital’s non-compliance with MHL §9.39, and the ongoing detention without lawful justification infringed upon her Fifth and Fourteenth Amendment rights guaranteed under the United States Constitution for lack of due process. Consequently, the Petitioner sought a Writ of Habeas Corpus under CPLR article 70, demanding immediate release. In response, while admitting the oversight that the required OMH 474 form was left blank, the Hospital maintained that the mandated second evaluation was indeed conducted by a different physician on the psychiatric staff within the 48-hour window, who confirmed the initial findings of the first physician, and that other hospital records supported this fact. The Hospital contended that a notice was sent to the Petitioner, instead of the required OMH 474 form with the notification of the patient’s status, the amount of time that they will be kept in the hospital, and contact information for the patient’s counsel. Importantly, the diagnosis of the second psychiatrist was not included in the notice. Notwithstanding the lack of inclusion of the second diagnosis in th papers, the Hospital claims that the notice provided the Petitioner was sufficient as to her status, and the reason she was being retained. The Hospital argued at the hearing that not “every violation [of the statute] amounts to a due process violation or will entitle a patient to a writ of habeas corpus,” and, that the Hospital’s “omissions” did not rise to the level of a due process violation.” The Hospital also maintained that it can “rectify the violation by submitting a completed version of the [OMH 474] form now.” MHL §9.39 provides that the director of any hospital, approved by the Commissioner to admit and retain mentally ill patients, may retain an alleged mentally ill individual for up to fifteen (15) days. This retention is permissible only if a staff physician, upon examination, determines that the patient’s condition poses a significant risk of harm to themselves or others without hospital admission. Such an individual cannot be detained for more than forty-eight (48) hours unless another physician on the psychiatric staff of the hospital confirms the initial findings within that same time frame. Moreover, according to MHL §29.01, “The commissioner [of OMH] shall prescribe and furnish forms for use in procedures for admissions. Admission shall be had only upon such forms.” The question for the Court herein is whether the Hospital’s service of papers upon the patient, which included an OMH 474 form omitting statutorily required information regarding the second psychiatric evaluation amounted to a substantive and/or procedural due process violation warranting the granting of a Writ of Habeas Corpus. The Court must further determine whether the form defect can be rectified by merely filling in and submitting the missing report after the fact, without prejudicing the patient’s due process rights. DISCUSSION The Fifth Amendment of the United States Constitution states the following in relevant part: “No person shall be held to answer for a capital, or otherwise infamous crime ..nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…” The Fourteenth Amendment of the United States Constitution states the following in relevant part: “Section 1. … nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” Mental Hygiene Law §29.01 titled “Regulations and forms” states the following: “The commissioner shall have the power to make regulations governing admissions to hospitals, schools, and alcoholism facilities and the identification and processing of patients. He shall prescribe and furnish forms for use in procedures for admission. Admission shall only be had only upon such forms.” Mental Hygiene Law §9.03 titled “Admission to a hospital” states the following: “Unless otherwise specifically provided for by statute, a person with a mental illness shall be admitted to a hospital as an in-patient only pursuant to the provisions of this article, except that chemically dependent patients may be admitted to chemical dependence facilities operated by such hospitals under contract or agreement with the office of alcoholism and substance abuse services in accordance with the provisions of article twenty-two of this chapter. The section of the mental hygiene law under which a patient is admitted or under which any change of legal status is subsequently effected shall be stated in the patient’s record.” Mental Hygiene Law §9.27 titled “Involuntary admission on medical certification” states the following in relevant part: “(a) The director of a hospital may receive and retain therein as a patient any person alleged to be mentally ill and in need of involuntary care and treatment upon the certificates of two examining physicians, accompanied by an application for the admission of such person. The examination may be conducted jointly but each examining physician shall execute a separate certificate.” Mental Hygiene Law §9.39 titled “Emergency admissions for immediate observation, care and treatment” states the following in relevant part: “(a) The director of any hospital maintaining adequate staff and facilities for the observation, examination, care and treatment of persons alleged to be mentally ill and approved by the commissioner to receive and retain patients pursuant to this section may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. “Likelihood to result in serious harm” as used in this article shall mean: 1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm…. The director shall admit such person pursuant to the provisions of this section only if a staff physician of the hospital upon examination of such person finds that such person qualifies under the requirements of this section. Such person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital. Such person shall be served, at the time of the admission, with written notice of his status and rights as a patient under this section. Such notice shall contain the patient’s name. At the same time, such notice shall also be given to the mental hygiene legal service and personally or by mail to such person or persons, not to exceed three in number, as may be designated in writing to receive such notice by the person alleged to be mentally ill… (b) Within fifteen days of arrival at the hospital, if a determination is made that the person is not in need of involuntary care and treatment, he shall be discharged unless he agrees to remain as a voluntary or informal patient. If he is in need of involuntary care and treatment and does not agree to remain as a voluntary or informal patient, he may be retained beyond such fifteen day period only by admission to such hospital or another appropriate hospital pursuant to the provisions governing involuntary admission on application supported by medical certification and subject to the provisions for notice, hearing, review and judicial approval of retention or transfer and retention governing such admissions, provided that, for the purposes of such provisions, the date of admission of the patient shall be deemed to be the date when the patient was first received under this section. If a hearing has been requested pursuant to the provisions of subdivision (a), the filing of an application for involuntary admission on medical certification shall not delay or prevent the holding of the hearing.” Mental Hygiene Law §33.15 titled “Habeas corpus” states the following in relevant part: “(a) A person retained by a facility or the department or a relative or friend on his behalf is entitled to a writ of habeas corpus to question the cause and legality of detention upon proper application. (b) 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. The evidence shall include the clinical record of the patient and medical or other testimony as required by the court. The court may review the admission and retention of the person pursuant to the provisions of this chapter. The court shall discharge the person so retained if it finds that he is not mentally disabled or that he is not in need of further retention for inpatient care and treatment. (c) In a subsequent application for a writ, any party to the proceeding may introduce evidence or records from a prior hearing or trial and such records shall have the same force and effect as testimonial evidence. (d) the application for a writ of habeas corpus and the proceedings upon it shall follow the procedure set forth in article seventy of the civil practice law and rules. (e) The director of the facility where the person is detained shall forthwith notify the mental hygiene legal service of any such application for a writ and provide it with information as to the case.” CPLR Art. 70, which applies to common law or statutory writs of habeas corpus and common law writs of certiorari pertaining to alleged unlawful detention, sets forth the manner that the special proceeding is brought by notice of petition. (See CPLR §7001 et seq.) In People ex rel. DeLia v. Munsey (26 NY3d 124 [2015]), the hospital failed to apply for court authorization of its continued involuntary retention of the patient after the court-ordered three month retention period had expired. The hospital argued that MHL §33.15 precluded CPLR Article 70: while it conceded that it had erroneously retained the patient without authorization for six weeks, the hospital contended that it was still improper to release the patient without a hearing; and then only if the court found him to be mentally fit for discharge. The Court of Appeals discussed the relationship between MHL §33.15, the habeas corpus statute of the NY Mental Health Law, and CPLR Article 70. Specifically, the Court of Appeals found that MHL §33.15 did not preclude the use of writ of habeas corpus under CPLR article 70. “The legislature surely did not intend, an interpretation of §33.15 that would render meaningless such significant protections as are provided in Mental Hygiene Law article 9,” it said. Instead, the Court went on to say, MHL §33.15 “merely clarifies that an Article 9 patient is entitled to bring a habeas proceeding where the commitment is authorized, believes he or she has sufficiently recovered to be released.” Munsey at 134. Conversely, where a patient’s “detention is unauthorized because the hospital has failed to comply with statutory procedural requirements, the patient may proceed under the habeas corpus provisions of CPLR Article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state” (Munsey at 130-131; see also Matter of Hector F. v. Lopez, 69 Misc 3d 191, 196 [Sup Ct, NY County 2020]). In citing Project Release v. Prevost (722 F2d 960, 967 [2d Cir 1983]) and People ex rel. Tweed v. Lipscomb (60 NY 559, 569 [1875]), the Court in Munsey also stated that “[t]his is not to say that every violation of the MHL amounts to a due process violation or will entitle a patient to a writ of habeas corpus but, ‘[w]ithout a court order of continued retention [in accordance with the Mental Hygiene Law], or the consent of the patient, the hospital must release the patient.” In State ex rel. Hector F. v. Lopez, (69 Misc 3d 191 [Sup Ct, NY County 2020]), cited by patient’s counsel on the instant matter, petitioner who had been involuntarily admitted to a mental health facility, filed a petition for a writ of habeas corpus pursuant to CPLR Article 70 on the grounds that Bellevue Hospital Center (“Bellevue”) failed to conduct a timely confirmatory psychiatric evaluation by a second hospital staff psychiatrist within the 48 hour time period required by MHL§9.39. Petitioner claimed that this failure violated his Fifth and Fourteenth Amendment rights guaranteed by the United States Constitution, and demanded his immediate release from Bellevue. Petitioner had been involuntarily admitted to the hospital under MHL §9.39. At issue was the hospital’s failure to timely complete the section of the OMH 474 form entitled “Examination to Confirm Need for Extension of Emergency Admission Beyond 48 Hours.” The Court determined that due process requirements were not met. That section, which required information from a confirming examination from a second psychiatrist on the OMH 474 form, was left blank. The confirmatory examination took place on the fourth day of the patient’s hospitalization, two days beyond the time period prescribed by statute. The question in that matter was whether the two-day delay in conducting the second examination while Petitioner continued to be involuntarily held at Bellevue violated a “significant protection” under the MHL, mandating Petitioner’s release. The court found that the failure to timely conduct the second evaluation infringed upon the Petitioner’s due process rights. Bellevue’s effort to rectify the missing confirming examination beyond the 48-hour limit did not remedy the violation. The court further noted that the OMH 474 form provided crucial legal information to the involuntarily committed patient, and that involuntary civil commitment relies heavily on the assessments of examining doctors. Accordingly, it was paramount for the hospital to strictly adhere to the provisions of MHL. In citing Project Release v. Prevost at 974-975, the Lopez court found that New York’s involuntary statutory scheme might have been declared unconstitutional without the “layers of professional review and observation” absent in the Lopez matter. At the hearing, Hospital’s counsel contended that Lopez was distinguishable from the within matter, because among other things, it involves a delay in conducting a required examination of the patient. Hospital contended that in the case herein, the required examination had been performed within the time prescribed by statute, just not included in the form. Applying the standards that established by Munsey and Lopez, the question of whether the violation of the MHL by the Hospital here amounts to a due process violation hinges upon whether the statutory form should be counted as a “significant protection” as are provided in MHL article 9. If so, any violations of the statute, including the completion and exchange of such forms amount to a due process violation requiring granting the writ. This court finds guidance on the standard of “significant protections” in other precedents. In Matter of Krisleidy C., 60 Misc 3d 850, 852 [Sup Ct, Kings County 2018], the hospital filed an application under the MHL to involuntarily retain a patient that had voluntarily admitted herself into the hospital for psychiatric care. The patient served a notice, commonly referred to as a “three day letter,” requesting her release. Once the hospital received the letter, under MHL 9.13(b), it could either release the patient within seventy-two (72) hours of receipt of the letter or to file an application for involuntary retention. The court conducted a hearing under MHL §9.13, and found that the hospital, which filed a late application for involuntary retention, had done neither. Applying the holding in Munsey, the Court found that the patient had been illegally detained upon the hospital’s failure to submit a timely application seeking involuntary retention timely. Accordingly, the patient was discharged forthwith pursuant to the writ of habeas corpus section of the CPLR, §7010. In J.W. v. Anthony, 79 Misc 3d 1201(A) [Sup Ct, NY County 2023], the petitioner patient was admitted to a hospital emergency room for a psychiatric evaluation while under arrest by the New York Police Department (“NYPD”). After the evaluation, the petitioner was admitted to the hospital under MHL §9.40, and a hospital psychiatrist completed OMH admission forms. The hospital determined that the petitioner had an alleged “mental illness for which immediate observation care and treatment is appropriate and which is likely to result in serious harm to the person or others.” The hospital later extended petitioner’s observation time to 72 hours upon a second psychiatrist confirming that petitioner required additional observation, and that he met the statutory criteria for it. However, the hospital failed to serve the petitioner with the statutorilyrequired written notice until ten (10) days later. The hospital also failed to complete any further paperwork authorizing the patient’s continued confinement until 12 days later, by way of a new examination based on MHL §9.27. The petitioner was subsequently arraigned and released on his own recognizance on the criminal case, but he was not free to leave the hospital. The court, citing Munsey, ruled that late MHL §9.27 paperwork did not remedy and erase the due process violations arising from the patient being held without a legal status under the MHL. The court ultimately ruled that a writ was warranted, and ordered the patient released. FINDINGS Involuntary civil commitment to a mental institution has been recognized as “a massive curtailment of liberty” (see Project Release v. Prevost, 722 F2d 960, 971 [2d Cir 1983]; citing Vitek v. Jones, 445 US 480 [1980]). “There can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” (See Project Release v. Prevost, 722 F2d 960, 971 [2d Cir 1983]; citing O’Connor v. Donaldson, 422 US 563, 579 [1975]). Here, as in Lopez, the constitutionality of MHL §9.39 is also anchored in its “layers of professional [and judicial] review” and it is paramount for the physicians to strictly adhere to the provisions set by the MHL when conducting these reviews and evaluations. This Court recognizes the distinguishable elements in the matter herein from Lopez, where a required second confirmatory psychiatric evaluation was performed outside of the statutory time period. In the instant matter, the Hospital contended that second evaluation was performed properly within the rules of MHL, but that a section of the OMH 474 was unintentionally left blank. Upon a plain reading of the language of MHL §29.01, involuntary admissions, “shall be had only upon such forms.” The OMH 474 form provides crucial legal information to the involuntarily committed patient; without it, the he or she is left with little information concerning his or her rights and status while the involuntary confinement continues. Notwithstanding a notice sent to the patient containing some information, such notice did not contain the confirming diagnosis of the second psychiatrist which formed the basis of the retention. The Court herein finds that the OMH 474 form is a “significant protection” to patient’s due process right set by MHL §9.39 and MHL §29.01, and that the patient’s continued confinement after the failure to serve proper notice regarding such continued retention constituted a clear due process violation cannot be “rectified” or “cured” by submissions after the statutory time period has elapsed. Therefore, the writ of habeas corpus is granted; however, as this case involves an issue of first impression with significant consequences for parties, the enforcement of the Order is STAYED for twenty-four (24) hours to allow Respondent to appeal to the Appellate Division, Second Department. This constitutes the decision of this Court. Dated: October 17, 2023
