Fhagen v. Miller

• Decision Date: 06 January 1972
• Citation: 328 N.Y.S.2d 393,29 N.Y.2d 348,278 N.E.2d 615
• Parties: , 278 N.E.2d 615 Michael FHAGEN et al., Appellants, v. Alan D. MILLER, M.D., Individually and as Commissioner of Mental Hygiene of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 393

328 N.Y.S.2d 393

29 N.Y.2d 348, 278 N.E.2d 615

Michael FHAGEN et al., Appellants, v. Alan D. MILLER, M.D., Individually and as Commissioner of

Mental Hygiene of the State of New York, et al.,

Respondents.

Court of Appeals of New York.

Jan. 6, 1972.

Bruce J. Ennis, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Brenda S. Soloff, and Samuel A. Hirshowitz, New York City, of counsel), for respondents.

FULD, Chief Judge.

We are called upon to consider the constitutionality of sections 72 and 78 of the Mental Hygiene Law, Consol.Laws, c. 27, which provide for involuntary admission of certain types of mental patients. ¹

The plaintiff, former mental patients in New York State and New York City hospitals, asserting that they are in 'constant apprehension' of being committed under sections 72 and 78 seek a judgment declaring those provisions unconstitutional. In brief, it is their position that, in authorizing involuntary hospitalization without prior notice or judicial hearing, the challenged sections deprive them, as well as all others alleged to be mentally ill, of their liberty without due process of law.

The sections in question were part of an extensive change in the Mental Hygiene Law made upon the recommendation of a special committee to study procedures for the commitment of the mentally ill. (See Special Committee to Study Commitment Procedures of Association of the Bar of the City of N.Y., Mental Illness and Due Process--Report and Recommendations on Admission to Mental Hospitals under New York Law (1962).) Section 78 provides for the involuntary admission to an approved hospital, for no longer than 30 days, of any person who is 'alleged to be in need of immediate observation, care or treatment for mental illness' (subd. 1). ² Any interested party may arrange for his hospitalization; no doctor's certificate is required. However, if the patient or someone on his behalf gives notice in writing of his desire to be released, and it is determined that he requires care and treatment in a hospital beyond the 30-day period, an application must be made, within 10 days after the giving of such notice, for his hospitalization under section 72. The same procedure must be followed, at some time before expiration of the 30-day period, even if no request for release is made, as long as the patient is still in need of further hospital care and does not agree to hospitalization as a 'voluntary' or 'informal' patient (Mental Hygiene Law, § 71).

Early in 1970, the State Commissioner of Mental Hygiene promulgated a regulation which shortened section 78's retention period to 15 days and provided a number of other safeguards for involuntary patients (14 NYCRR 62.2; also Appendix 1, form 468a). For instance, section 62.2 of the regulations requires that a prospective section 78 patient, before being admitted to the hospital, must be 'forthwith examined by a staff physician' and prompt notice of his admission given the Mental Health Information Service. ³ In addition, he must be advised that he may demand his release at any time, receive a judicial hearing as to his need for hospitalization, with counsel if desired (14 NYCRR, Appendix 1, form 468a), and, beyond that that he must be accorded the right to habeas corpus relief (see, also, § 426).

Admission pursuant to section 72 of a person 'alleged to be mentally ill and suitable for care and treatment'--and this, of course, includes an individual transferred from section 7, status--may, as indicated above. (p. 394, n. 1), only be had on the certificate of two examining physicians accompanied by an application, made 10 days in advance of admission, from a relative, friend or specified official (subd. 1). Upon being brought to the hospital, the patient must be 'examined forthwith by a staff physician' before he is admitted (subd. 1). Within five days, written notice of such application, along with notice of his rights, must be given to the patient, to the Mental Health Information Service and to his 'nearest relative * * * other than the petitioner' (subd. 2). If a hearing is requested by any of these parties, the court must schedule one within five days of receipt of the request (subd. 3) and, if none is requested within 60 days, the patient's retention beyond that time must have court sanction ( § 73). In either case, retention is authorized for no more than six months without further judicial review and, thereafter, only pursuant to continued periodic review ( § 72, subd. 3; § 73). If dissatisfied with a court order for retention or transfer, a patient or someone acting on his behalf may obtain a 'rehearing and a review of the proceedings already had and of such order,' with a trial, by jury if desired, on the question of the patient's mental illness ( § 74).

In July of 1969, about a year before the present proceeding was brought, Fhagen commenced a suit in the District, Court for the Southern District of New York--in which plaintiff Winters later moved to intervene--raising essentially the same constitutional objections to the Mental Hygiene Law as are here advanced. Judge Weinfeld, who heard the matter, held that substantial constitutional issues were posed and ordered the convening of a three-judge court to entertain the action. (See Fhagen) v. Miller, D.C., 306 F.Supp. 634.) That tribunal, in April 1970, decided to retain jurisdiction but to abstain from passing upon the questions presented until our State courts had an opportunity to consider the challenged provisions of the Mental Hygiene Law (312 F. Supp. 323).

Two months later, the plaintiffs instituted the present action in which, as noted above, they seek a declaration that sections 72 and 78 are unconstitutional. They subsequently moved for summary judgment, and the defendants countered with a cross motion to dismiss the complaint. Among their other contentions, the plaintiffs urged that, in order to meet due process requirements, a person may be confined under section 78 only if the term, 'in need of immediate observation, care or treatment for mental illness', were to be construed as 'dangerously mentally ill'. ⁴ The court at Special Term, 65 Misc.2d 163, 317 N.Y.S.2d 128, rejected the plaintiffs' arguments, decised that the challenged provisions were constitutional and dismissed the complaint. The Appellate Division, 36 A.D.2d 926, 321 N.Y.S.2d 61, although it concurred in Special Term's conclusion of constitutionality, modified the judgment to the extent of striking from it the paragraph dismissing the complaint and substituting in its place a provision declaring the sections in question valid. We agree with that disposition.

Due process does, ordinarily, demand reasonable notice and an opportunity to be heard In advance of confinement or restraint. However, as we declared in Matter of Coates, 9 N.Y.2d 242, 249, 213 N.Y.S.2d 74, 79, 173 N.E.2d 797, 801), 'where immediate action is necessary for the protection of society and for the welfare of the allegedly mentally ill person, (it) does not require notice or hearing as a condition precedent to valid Temporary confinement.' (Emphasis supplied.) In other words, due process does not guarantee "any particular form or method of * * * procedure"; a mental patient so confined, we went on to say in Coates, is not unconstitutionally deprived of his liberty so long as he is afforded an opportunity within a reasonably short period 'to litigate fully the question of (his) mental illness and the propriety of the proceedings which led to (his) confinement'. (Matter of Coates, 9 N.Y.2d, at p. 249, 213 N.Y.S.2d, at p. 79, 173 N.E.2d, at p. 801.)

Although Matter of Coates is primarily concerned with 'continued' confinement, it points the conclusion here. One 'afflicted with mental disease', as defined in our statute (Mental Hygiene Law § 2, subd. 8), need not be violent or dangerous to justify a short confinement prior to notice and an opportunity to be heard. The public is entitled to prompt protection against the acts of such a person which, Though not dangerous, might, if committed by a sane person, constitute a punishable offense or which, by reason of his urgent need for immediate care and treatment, might harm others, albeit in a nonviolent manner. The 'protection of society'--which we declared in Coates authorizes 'immediate action' in the case of one allegedly mentally ill (9 N.Y.2d, at p. 249, 213 N.Y.S.2d at p. 79, 173 N.E.2d at p. 801)--requires more than the mere prevention of serious crimes of violence; it reasonably, and necessarily, includes the preservation of public order and public health. As Justice Bloustein stated at Special Term, 'if the allegedly mentally ill person is engaging in conduct which, if committed by a sane person, would constitute disorderly conduct, criminal nuisance, public lewdness, or sexual abuse of a minor, the State's legitimate interest in protecting society would warrant that person's temporary confinement as surely as if the individual was engaging in conduct amounting to felonious assault or homicide' (65 Misc.2d 163, 170, 317 N.Y.S.2d 128, 136).

Moreover, since due process is not a concept to be rigidly applied, it is not offended if notice and a hearing follow confinement of a mental patient in an urgent case, as long as he...