Boggs v. New York City Health and Hospitals Corp.

• Citation: 523 N.Y.S.2d 71,132 A.D.2d 340
• Parties: In the Matter of the Application of Anonymous (Billie BOGGS), An Alleged Mentally Ill Patient, Petitioner-Respondent, v. The NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and Bellevue Hospital, Respondents-Appellants.
• Decision Date: 18 December 1987
• Court: New York Supreme Court Appellate Division

Page 71

523 N.Y.S.2d 71

132 A.D.2d 340

In the Matter of the Application of Anonymous (Billie BOGGS), An Alleged Mentally Ill Patient Petitioner-Respondent, v. The NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and Bellevue Hospital, Respondents-Appellants.

Supreme Court, Appellate Division First Department.

Dec. 18, 1987.

Robert M. Levy, of counsel (Norman Siegel and Eric Friedberg, New York City, attorneys), for petitioner-respondent.

Paul T. Rephen, of counsel (Leonard Koerner and June A. Witterschein with him, on the brief; Peter L. Zimroth, New York City, attorney) for respondents-appellants.

Before MURPHY, P.J., and SULLIVAN, ROSS, MILONAS and ROSENBERGER, JJ.

ROSS, Justice.

In this appeal, this Court must face the difficult dilemma that occurs everytime a balance must be struck between an individual's freedom, and the State's right to involuntarily confine such individual, in a mental hospital for treatment, when he is a danger to himself.

The precise issue presented to us is whether the respondents, New York City Health and Hospitals Corporation (NYCHH), and Bellevue Hospital (Bellevue), have presented clear and convincing evidence that the petitioner is suffering from a mental illness, which requires her immediate, involuntary commitment, to a hospital for care and treatment, since allegedly, if such illness is left untreated, it will likely result in serious harm to the petitioner.

While "[f]or many centuries, sovereign power has been exercised to confine mentally ill persons ...[,] it was in the nineteenth century that mentally ill persons first came to be seen as sick rather than cursed and as susceptible to aid through proper treatment ... [and] this attitude was gradually reflected in new legal procedures for deciding who should be confined in mental hospitals ..." (Note: Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv.L.Rev. 1288 (1966)).

In many of the States of this nation, including our own, the decision "to confine a person for compulsory psychiatric treatment ... [is conditioned] not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself [or herself] or to others, is great enough to justify such a massive curtailment of liberty ..." (Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972)) [material in brackets added].

The United States Supreme Court in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), held that "clear and convincing proof" is required by the Fourteenth Amendment to the United States Constitution to involuntarily commit an individual to a mental hospital in a proceeding brought under State law. Chief Justice Burger, writing for the Court in Addington v. Texas, supra at 425-428, 431, 99 S.Ct. at 1809-10, 1812, sets forth, in pertinent part, the reasoning by which that Court arrived at the "clear and convincing" standard:

"This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.... Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual....

The State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; [and] the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill....

Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior....

We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence....

There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense....

In addition, the 'beyond a reasonable doubt' standard historically has been reserved for criminal cases....

[Since we have] concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable doubt standard is not required, we turn to a middle level of burden of proof [clear and convincing] that strikes a fair balance between the rights of the individual and the legitimate concerns of the state...." [material in brackets added]

Ms. Billie Boggs (Ms. Boggs) is a forty year old woman, whose real name is Ms. Joyce Brown. She chooses to use the name Ms. Billie Boggs, since she admires a television personality of that name, and she desires to thwart her family's efforts to locate her. For the past year, Ms. Boggs has lived on the public sidewalk in front of a restaurant, located on 65th Street and Second Avenue, in New York County, and she has used this location as her bedroom, toilet and living room.

Over the course of the subject year, Ms. Boggs has been observed on an almost daily basis by persons affiliated with Project Help, which is an emergency psychiatric service for allegedly mentally ill homeless persons, who live on the streets in New York City (Hearing Transcript (HT) at 48). The personnel of this organization are comprised of a clinical team of psychiatrists, nurses and social workers, who travel around New York City, for the purpose of identifying persons, who live in the street, and who appear to be particularly in need of immediate psychiatric hospital treatment, due to the fact that those persons appear to be in danger of doing serious harm to themselves or others (HT at 48-49).

On October 28, 1987, Dr. Lincoln Robert Asher Hess (Dr. Hess), who is a psychiatrist with Project Help, determined, after a number of observations of Ms. Boggs, at her location on the pavement, that Ms. Boggs was severely mentally ill, and that she needed immediate hospitalization, since she posed a danger of serious harm to herself. Thereafter, Project Help arranged for Ms. Boggs' transportation, against her will, to Bellevue Hospital (Bellevue), pursuant to § 9.39 of the Mental Hygiene Law (MHL). In pertinent part, subdivision (a) of § 9.39 of the MHL authorizes a hospital to receive and retain 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 ... [herself] or others ..." [material in brackets added].

The next day, following her hospitalization, on October 29, 1987, Ms. Boggs gave notice that she wished to challenge her involuntary hospitalization and requested a hearing pursuant to § 9.31 of the MHL, and instituted the instant proceeding in the Supreme Court, New York County, against respondents the New York City Health and Hospitals Corporation (NYCHHC) and Bellevue Hospital (Bellevue). Respondents NYCHHC and Bellevue opposed.

A hearing was conducted, and both the petitioner and respondents presented evidence. Ms. Boggs was present, and represented by counsel throughout the Hearing. Her counsel, upon her behalf, waived all of her rights of confidentiality and consented to have the press attend the hearing. The Transcript of the Hearing is approximately six hundred (600) pages.

The respondents presented their case first, in opposition to Ms. Boggs' release, and that case consisted of the testimony of four psychiatrists (Drs. Hess, Maeve Mahon (Dr. Mahon), Albert Sabatini (Dr. Sabatini), and Luis R. Marcos (Dr. Marcos)); Ms. Jane Putnam (Ms. Putnam), who is a psychiatric social worker; Ms. Willie Mae James (Ms. James), who is Ms. Boggs' older sister; and, Mr. Mark Lerner (Mr. Lerner), who took a number of photographs of Ms. Boggs living in the street.

On direct examination, Dr. Hess, after his qualification as an expert by the Court, testified, that he works as a psychiatrist with Project Help three days a week; in the course of his duties with Project Help, he first saw Ms. Boggs in the street on July 23, 1987; on that occasion, he approached her, with the knowledge that Ms. Boggs had exhibited hostility to Project Help's staff in the past; he observed that Ms. Boggs was dressed in disheveled clothing; although, it was not raining, Ms. Boggs was twirling an open umbrella to avoid eye contact with him and the persons passing by; at that time, Dr. Hess heard Ms. Boggs speaking in rhymes, and, according to the witness, the content of these rhymes was sexual, and related to Dr. Hess' and Ms. Boggs' genitals; in the witness' professional opinion this type of verbalization is referred to as "Clanging", and is indicative of a thought disorder, in which a person transfers their thinking from one thought to another without any logical sequence (HT at 44).

The second time Dr. Hess observed Ms. Boggs in the street was five days later, on July 28, 1987. Since the first time that he had seen her, Dr. Hess testified, in substance, that Ms. Boggs' clothing had become more disheveled, dirty and torn, and she was barefoot. When Dr. Hess attempted to speak to Ms. Boggs, she cursed him, flipped open her skirt and exposed her nude buttocks, and made references to his genitals. In Dr. Hess' professional opinion, on July 28th, Ms. Boggs appeared to be flat, and disordered, which he testified is characteristic of schizophrenia.

Dr. Hess made his third street observation of Ms. Boggs on September 22, 1987. As before, Dr. Hess found Ms. Boggs at the same location, which was the sidewalk at Second Avenue near 65th Street. In pertinent part, Dr. Hess testified that Ms. Boggs' clothes...