Mental Hygiene Legal Service ex rel. Aliza K. v. Ford

• Decision Date: 03 December 1998
• Parties: , 705 N.E.2d 1191, 1998 N.Y. Slip Op. 10,724 MENTAL HYGIENE LEGAL SERVICES, on Behalf of ALIZA K., Respondent, v. Michael FORD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 150

683 N.Y.S.2d 150

92 N.Y.2d 500, 705 N.E.2d 1191, 1998

N.Y. Slip Op. 10,724

MENTAL HYGIENE LEGAL SERVICES, on Behalf of ALIZA K., Respondent, v. Michael FORD, Appellant.

Court of Appeals of New York.

Dec. 3, 1998.

Dennis C. Vacco, Attorney-General, New York City (Thomas D. Hughes, Barbara G. Billet and John W. McConnell of counsel), for appellant.

Karen Gomes Andreasian, New York City, and Marvin Bernstein for respondent.

OPINION OF THE COURT

LEVINE, J.

Aliza K. is an involuntarily committed civil patient hospitalized at Manhattan Psychiatric Center (MPC), a civil mental health facility of the State Office of Mental Health (OMH). She was charged with aggravated harassment after having already served two sentences for stalking, threatening and harassing her former employer (with whom she apparently at one time had a romantic involvement) and the staff of his business. The new charges were dismissed after she was found unfit to proceed to trial. Aliza K. was then transferred from the criminal detention facility at Rikers Island pursuant to CPL § 730.40. On March 14, 1994, she was admitted into MPC pursuant to Mental Hygiene Law § 9.33. She was diagnosed as suffering from an erotomanic delusional disorder, which caused her to believe that her former employer still loved her and to compulsively seek contact with him. The employer had to obtain an order of protection against her, and despite the order, at MPC Aliza K. repeatedly stated that she would never stop pursuing him. Following some physical altercations with hospital staff, she was transferred to the Intensive Psychiatric Service unit of MPC, a locked ward which is reserved for the most violent patients.

On May 3, 1995, MPC requested that Aliza K. be transferred to Kirby Forensic Psychiatric Center (Kirby), one of the two secure OMH facilities in the State (see, 14 NYCRR § 57.1). Aliza K.'s treating psychiatrist prepared a clinical summary giving the medical reasons for the transfer application. According to that summary, Aliza K. had made 10-20 calls to her former employer's business or home each day, and she assaulted staff when they tried to prevent her from using the telephone to call him. She also threatened people at her employer's place of business who tried to shield him from her calls. She wrote to him daily, writing his surname as her last name on the return address, as if she were married to him. She repeatedly tried to kick down the nursing station door to gain access to the telephone inside. Her behavior required her to be kept in seclusion and to be given emergency medication to modify her aggressive physical behavior. On a daily basis, she had to be physically restrained by staff in attempts to prevent injury to others. The one time she was outside the Intensive Psychiatric Service unit in the last 14 months, she threw a large rock at an employee's head and tried to escape. She stated that she would hurt anyone who got in the way of her reuniting with her former employer.

On May 5, 1995, the OMH Commissioner authorized the transfer to Kirby and, as required by 14 NYCRR § 57.2, notified Mental Hygiene Legal Services (MHLS) of the transfer. When petitioner objected to the transfer, the Commissioner appointed another psychiatrist who was independent from the hospital to evaluate her. After the independent psychiatrist examined Aliza K. and interviewed the treating psychiatrist at MPC who had prepared the clinical summary, she confirmed that the determination to issue a transfer order was medically justified.

On May 10, 1995, Aliza K. commenced this proceeding by serving MPC with a writ of habeas corpus to block the transfer or to obtain her release, claiming that she had a right to a judicial hearing prior to a nonemergency transfer to a secure OMH facility. Supreme Court converted the proceeding into a declaratory judgment action and consolidated that action with the writ. The court, after enjoining the transfer, granted her motion for summary judgment on both due process and equal protection grounds, and declared that a hearing provision must be read into 14 NYCRR § 57.2 so that no transfer of any person could take place prior to a judicial hearing. The Appellate Division rejected petitioner's equal protection argument but agreed on due process grounds that a judicial hearing was required prior to a transfer (242 A.D.2d 417, 663 N.Y.S.2d 1). The Appellate Division concluded that since the primary motivation for the transfer was not a general medical diagnosis but rather security concerns, a judicial hearing was required prior to a nonemergency transfer to a secure OMH facility. The case was appealed as of right upon stipulation for judgment absolute (CPLR 5601[c] ), and now we reverse.

Initially, we reject Aliza K.'s contention that the case should be dismissed because it has become moot. On October 8, 1998, Aliza K. was still residing at MPC, having never been transferred to Kirby because of the decisions of the courts below. After a retainer hearing on whether she should remain in custody at all (see, Mental Hygiene Law § 9.33), Supreme Court ordered her release from OMH. OMH appealed the order, and on October 13, 1998, the parties stipulated to a two-week stay of the release order to permit OMH to prepare a discharge plan.

Even if Aliza K.'s present status renders this appeal moot as to her, the exception to the mootness doctrine for issues that are likely to recur applies. The Mental Hygiene Law contemplates that involuntary hospitalization in a mental health facility is often brief and temporary. That statute and its implementing regulations require frequent periodic review of a patient's status, and the release of the patient unless OMH is granted successive court orders authorizing retention (see, Mental Hygiene Law § 9.33; 14 NYCRR § 57.4[b] ). It follows that this is the kind of case that falls within the exception in that it is likely to recur, will typically evade review, and is substantial and novel (see, Matter of Chenier v. Richard W., 82 N.Y.2d 830, 832, 606 N.Y.S.2d 143, 626 N.E.2d 928). Therefore, we turn to the merits of the case.

The administrative rules governing the nonemergency transfers of involuntarily committed patients to secure facilities are set forth in 14 NYCRR part 57. Under those regulations, the director of the transferring hospital is required to submit a written request to the Commissioner of OMH demonstrating that (1) there is a substantial risk that the patient may cause physical harm to other persons, (2) reasonable efforts at treatment have been made without eliminating that risk, and (3) the patient needs the close supervision provided at a secure facility (14 NYCRR § 57.2[a] ). A copy of the director's request, together with a copy of 14 NYCRR part 57, must be provided to the patient, MHLS and the patient's nearest relative if known ( § 57.2[a][3] ). If the Commissioner finds that the application sets forth facts justifying the transfer, the director again must notify the patient, MHLS and the patient's closest relative.

The patient or anyone on the patient's behalf has the opportunity to object to the transfer with "appropriate written arguments supported by documents, statements, and affidavits" ( § 57.2[c] ). Upon objection to the transfer by the patient or the patient's representative, the transfer is stayed until the Commissioner designates a qualified and independent psychiatrist to interview the patient and other knowledgeable parties, and to prepare a report and recommendation regarding the transfer ( § 57.2[d] ). The report is provided to the Commissioner, the patient and the patient's representatives, and they are afforded the opportunity to comment upon it and to submit additional evidence in opposition to the transfer (id.). Before the transfer takes place, the Commissioner must notify all the interested parties of the decision, and the transfer is stayed for at least 24 hours to enable the patient to take any legal action deemed appropriate (id.). The patient may initiate a CPLR article 78 proceeding to challenge the transfer ( § 57.6).

Unlike MPC, all the patients at Kirby are continuously subject to heightened security irrespective of their conduct. Also, because a high percentage of the patients at Kirby are transferred from the criminal justice system as incompetent to stand trial (see, CPL art. 730) or are committed as a result of having been found not criminally responsible by reason of mental disease or defect (see, CPL § 330.20), the stigma of being a patient at Kirby may be greater than that of being hospitalized at MPC. Thus, Aliza K.'s transfer implicates a liberty interest which triggers rights to procedural due process (see, Matter of Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 167, 350 N.Y.S.2d 889, 305 N.E.2d 903; Vitek v. Jones, 445 U.S. 480, 494, 100 S.Ct. 1254, 63 L.Ed.2d 552). We conclude, however, that the requirements of due process were satisfied under the circumstances of this case.

In determining what process is constitutionally due Aliza K. regarding her transfer to a secure mental health facility, we weigh the three factors identified in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18:

"[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail"(id., at 334-335, 96 S.Ct. 893).

First, we consider the liberty interest at stake. On the record before us, this is not a situation, like ...