Edward L., Matter of

• Decision Date: 29 February 1988
• Citation: 525 N.Y.S.2d 281,137 A.D.2d 818
• Parties: In the Matter of EDWARD L. (Anonymous), Appellant; Pilgrim Psychiatric Center, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 281

525 N.Y.S.2d 281

137 A.D.2d 818

In the Matter of EDWARD L. (Anonymous), Appellant Pilgrim Psychiatric Center, Respondent.

Supreme Court, Appellate Division Second Department.

Feb. 29, 1988.

Mental Hygiene Legal Service, West Brentwood (Francis M. Savastano, Ines T. Aull, Kim L. Darrow and Dennis B. Feld, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Yolanda Pizarro and Robert L. Schonfeld, of counsel), for respondent.

Before LAWRENCE, J.P., and EIBER, HARWOOD and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a proceeding for an order of retention pursuant to Mental Hygiene Law § 9.27, the appeal is from an order of the Supreme Court, Suffolk County (Willen, J.), dated December 11, 1987, which, upon rehearing and renewal, continued the appellant's retention pursuant to an order of the same court (Hurley, J.), dated October 16, 1987.

ORDERED, that the order dated December 11, 1987, is reversed, on the law and the facts, without costs or disbursements, and the respondent Pilgrim Psychiatric Center is directed to release the appellant.

On July 14, 1987, the appellant was admitted to the Pilgrim Psychiatric Center pursuant to Mental Hygiene Law § 9.27. The hospital sought and obtained an order allowing it to retain the appellant for a six-month period expiring April 16, 1988. Pursuant to Mental Hygiene Law § 9.33, the appellant requested a rehearing, which was heard by a different Judge. During the hearing, over the appellant's objection, the court admitted into evidence the appellant's complete hospital records which contained the notes of numerous members of the hospital's staff. The hospital's sole witness, Dr. Alain Kruh, one of the appellant's treating psychiatrists at the hospital, used the record and its comments as the basis for his opinions that the appellant was mentally ill and that he poses a substantial risk of danger to himself or to others ( see, e.g., People ex rel. Adams v. Acrish, 133 A.D.2d 873, 520 N.Y.S.2d 426). Following the hearing, the court upheld the initial retention order and continued the appellant's retention. We conclude that the evidence upon which the doctor's opinions and the court's conclusions were based was insufficient, and, therefore, reverse.

In order to obtain or continue an order of commitment, the hospital must establish by clear and convincing evidence, not only that the patient is in need of further care and treatment, but that the patient is mentally ill and poses a substantial threat of physical harm to himself or others (see, People ex rel. Adams v. Acrish, supra; Matter of Harry M., 96 A.D.2d 201, 206, 468 N.Y.S.2d 359). " '[I]t is possible for many non-violent persons who suffer from a mental disease * * * to live outside of an institution, and when they prefer to do so, regardless of the wisdom of their decision or the strength of their reasoning powers, they have their constitutional right to follow their own desires' " ( Matter of Harry M., supra, at 207, 468 N.Y.S.2d 359, quoting from Kendall v. True, 391 F.Supp. 413, 418). The record was nearly devoid of evidence that the appellant is a danger to himself or to others. The little evidence that could support the necessary conclusions was plainly insufficient.

Dr. Kruh stated that he believed that appellant needed hospitalization because he lacked insight and judgment. He said the appellant lacked insight because of his denials that he was mentally ill, and judgment because he wanted to return to the community without...