In re Lucas QQ.

• Decision Date: 23 November 2016
• Parties: In the Matter of LUCAS QQ. Mahfuzur Rahman, as Acting Clinical Director of the Greater Binghamton Health Center, Respondent; Lucas QQ., Appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 92

43 N.Y.S.3d 534

2016 N.Y. Slip Op. 07904

In the Matter of LUCAS QQ.

Mahfuzur Rahman, as Acting Clinical Director of the Greater Binghamton Health Center, Respondent;

Lucas QQ., Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 23, 2016.

Sheila E. Shea, Mental Hygiene Legal Service, Albany (Cailin C. Brennan of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.

LYNCH, J.

Appeal from an order of the Supreme Court (Guy, J.), entered November 12, 2015 in Broome County, which granted petitioner's application, in a proceeding pursuant to Mental Hygiene Law article 33, to authorize petitioner to administer antipsychotic and other medications to respondent.

On October 1, 2015, respondent, a 24–year–old graduate student, was involuntarily admitted to the Greater Binghamton Health Center (hereinafter GBHC), a psychiatric hospital operated by the Office of Mental Health (hereinafter OMH) (see Mental Hygiene Law §§ 7.17, 9.37 ). Respondent had not previously been treated for a mental illness on either an inpatient or outpatient basis. Respondent's treating psychiatrist at GBHC, Bernardo Izaguirre, diagnosed him with "[u]nspecified schizophrenia

spectrum disorder" and prescribed a course of antipsychotic and other medications, which respondent refused to take. As a result, petitioner, GBHC's acting clinical director, commenced this proceeding pursuant to Mental Hygiene Law article 33 on October 29, 2015, seeking an order permitting involuntary treatment. The petition was supported by the affidavit of Izaguirre and a reviewing psychiatrist, Xiaoying Chang.

A hearing was held on November 2, 2015, in which respondent declined the representation offered by counsel from Mental Hygiene Legal Service and opted to represent himself. Only Izaguirre and respondent testified. We take note that during respondent's cross-examination of Izaguirre, as well as respondent's direct testimony, respondent exhibited a coherent understanding in challenging the medication treatment plan as overbroad. At the close of proof, Supreme Court granted the petition. Three days later, the court issued an order that authorized petitioner, and any facility to which respondent might be transferred, to administer an extensive list of medications and to obtain respondent's past psychiatric and medical records as needed to facilitate his treatment. Respondent was discharged from GBCH on December 21, 2015, shortly after filing a notice of appeal.

The threshold question is whether the appeal has been rendered moot given respondent's release and the expiration of the challenged order. We do agree with petitioner that the order expired by its terms upon respondent's discharge from GBHC. The exception to the mootness doctrine applies where an issue (1) could readily recur, (2) will typically evade review, (3) is of public importance and (4) represents a substantial and novel issue yet to be decided by this Court (see Matter of Bezio v. Dorsey, 91 A.D.3d 1051, 1052, 937 N.Y.S.2d 393 [2012], affd. 21 N.Y.3d 93, 967 N.Y.S.2d 660, 989 N.E.2d 942 [2013] ). As pointed out in respondent's brief, there were 322 applications for authorization to forcibly treat patients who are within the Third Department during 2014—a contention that adequately demonstrates that proceedings of this nature will readily recur. Since the duration of these orders is tied into the treatment of the patient, who may, as here, be discharged before an appeal is even perfected, we agree that these proceedings do typically evade review (compare Matter of Anonymous v. New York City Health & Hosps. Corp., 70 N.Y.2d 972, 974, 525 N.Y.S.2d 796, 520 N.E.2d 515 [1988] [involuntary commitment litigation does not inherently and typically evade appellate review] ). And, certainly, the proceeding is of public importance because it implicates a patient's "fundamental liberty interest to reject antipsychotic medication" (Rivers v. Katz, 67 N.Y.2d 485, 495, 504 N.Y.S.2d 74, 495 N.E.2d 337 [1986] ).

As to whether a substantial and novel issue has been presented, we fully recognize that the governing standard has been in place since the Court of Appeals decision in Rivers v. Katz , 67 N.Y.2d at 497–498, 504 N.Y.S.2d 74, 495 N.E.2d 337. The state is authorized to administer medication against a patient's wishes when it establishes by clear and convincing evidence that the patient lacks "the capacity to make a reasoned decision with respect to proposed treatment," and "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" (id. at 497, 504 N.Y.S.2d 74, 495 N.E.2d 337 ). Whether a patient lacks such capacity presents a question of fact for the trial court to address (see Matter of Jay S. [Barber ], 118 A.D.3d 803, 804, 988 N.Y.S.2d 68 [2014] ; Matter of Joseph O., 245 A.D.2d 856, 856, 666 N.Y.S.2d 322 [1997] ). What we find significant and novel here is how that standard is to be met by a petitioner and applied by the trial court with respect to the formulation of a medication treatment plan, and, for that reason, we will address the merits of the appeal (see Mental Hygiene Legal Servs. v. Ford, 92 N.Y.2d 500, 505–506, 683 N.Y.S.2d 150, 705 N.E.2d 1191 [1998] ; Matter of Anthony H. [Karpati ], 82 A.D.3d 1240, 1241, 919 N.Y.S.2d 214 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4030052 [2011] ).

The fundamental flaw...