Savastano v. Nurnberg
| Decision Date | 16 September 1987 |
| Citation | 529 N.Y.S.2d 403,139 Misc.2d 593 |
| Parties | Francis M. SAVASTANO, etc., et al. v. Dr. George NURNBERG, etc., et al. |
| Court | New York Supreme Court |
Mental Hygiene Legal Services by Nan E. Shapiro, Mineola, for plaintiffs.
Peter L. Zimroth, Corp. Counsel of the City of New York by George Gutwrith, New York City, for Dr. Nurnberg.
Robert Abrams, Atty. Gen. by Robert Schoenfeld, New York City, for Dr. Steven Katz.
This is an action for a Judgment declaring that section 29.11 of the Mental Hygiene Law and 14 NYCRR 517.4, which permit the transfer of involuntarily committed mentally ill patients from an acute-care facility to a long-term facility, over objection, and without a prior judicial hearing as to the need for such transfer, are violative of mentally ill patients' right to due process of law under the New York State and United States Constitutions. Plaintiffs further move for a permanent injunction prohibiting defendants from transferring any objecting patient to a long-term facility without a prior court hearing. Defendants cross-move to dismiss the complaint for failure to state a cause of action and by affidavit, on the further ground of mootness. By separate notice of motion, plaintiffs move for leave for plaintiff Wanda Owens to intervene and for class certification. By separate notice of motion, plaintiffs move for a preliminary injunction.
Although defendants move to dismiss for failure to state a cause of action, the parties have agreed to have this action decided on the merits. The Court will, therefore, proceed accordingly.
Plaintiff Savastano is the Director of the Mental Hygiene Legal Service, an agency authorized pursuant to Article 47 of the Mental Hygiene Law to advocate for and protect the rights of institutionalized, mentally ill patients. Plaintiffs Nabriet, Cornwall and Fuentes, at the commencement of this litigation, were patients involuntarily retained in the psychiatric ward of Queens Hospital Center (hereinafter "QHC"), an acute-care municipal facility under the auspices of the Health and Hospitals Corporation, whom defendants sought to transfer, over objection, pursuant to section 29.11 of the Mental Hygiene Law, to Creedmoor Psychiatric Center, a long-term facility (hereinafter "Creedmoor") operated by the New York State Office of Mental Hygiene (hereinafter "OMH"). The three patients have since been released.
Defendant Dr. George Nurnberg is the Director of Psychiatry at QHC and has the ultimate responsibility for the decision to transfer an objecting patient to Creedmoor. Defendant Dr. Steven Katz is the Commissioner of Mental Health of New York State and has the ultimate responsibility for promulgating rules and regulations governing the implementation of the Mental Hygiene Law pursuant to statutory authority.
In 1984, subdivision (i) was added to section 29.11 of the Mental Hygiene Law. Said subdivision provides:
"If at the time the commissioner orders the transfer of an involuntary patient from a hospital to a hospital operated by the state, there is pending a request for a hearing or a decision by a court on the question of need for involuntary care and treatment the commissioner may either (i) stay his order of transfer until completion of the hearing, or (ii) direct the transfer to take place and the director of the state facility shall be substituted in all legal proceedings regarding continued retention of the patient."
Thus, it is clear, and plaintiffs do not maintain otherwise, that pursuant to this subdivision an involuntarily committed patient may be transferred to a State facility for intermediate or long-term care before a judicial hearing is held on the issue of the involuntary commitment. It is this section and the following rules that are at issue in this proceeding.
On October 10, 1986 the Commissioner, pursuant to the authority vested in him by subsection (a) of section 29.11 of the Mental Hygiene Law, promulgated new rules embodied in 14 NYCRR 517. The rules applicable to a resolution of the dispute herein provide:
(i) the reasons for the application, indicating how the patient is expected to benefit from the transfer;
(ii) the name and address of the applicant and the applicant's relationship to the patient;
(iii) the name of the hospital where the patient currently resides and the name of the hospital to which transfer is proposed;
(iv) the age of the patient;
(v) the admission status of the patient;
(vi) the written consent of the patient (or the patient's parent or guardian, if appropriate) or a summary of the appeal procedure and result (see paragraph [c][3] of this section); and
(vii) the written consent of the receiving hospital, if application is not being made directly to the receiving hospital.
"(2) If the sending hospital's director or the designee thereof is the applicant, the application should additionally include the following material:"
(i) a summary of the patient's clinical record to date;
(ii) the results of all pertinent physical and laboratory examinations; and
(iii) all pertinent legal documents.
(i) Appeal. The director of the sending hospital may delegate to the clinical director the authority to hear an appeal. The patient may elect to have a person represent him or her. The appeal may be conducted informally, without adhering to rules of evidence and recordkeeping. The director or clinical director shall:
(a) review the patient's clinical history.
(b) give the patient, the Mental Hygiene Legal Service and any patient representative an opportunity to discuss the patient's objections to the transfer with the director or clinical director; and
(c) consider the criteria for transfer described in subdivision (d) of this section and determine whether, on balance, the patient's best interests would be served by transfer to another hospital.
(ii) Upon completion of the appeal, the director or clinical director shall inform the patient, the MHLS and any patient representative of the results. If the patient is still to be transferred, the director or the designee thereof may request an order of transfer and shall inform the patient, the MHLS and any patient representative of the anticipated date of transfer, when known.
"(d) Criteria for transfer. (1) Suitability of the hospital. Transfer of a patient between hospitals shall be authorized when it is determined to be in the best interests of the patient. In making the determination of which hospital better serves the best interests of the patient, the following factors shall be considered:"
(i) The patient's need for continued inpatient treatment.
(ii) The patient's need for services which are more readily available or which can be more effectively provided at the receiving hospital.
(iii) Proximity of the sending and receiving hospitals to the patient's significant others.
(iv) The ability of the sending hospital to provide adequate overall treatment of the patient, as affected by:
(a) overcrowding;
(b) reduction or elimination of services beneficial to the patient; and
(c) reduction in the number of approved beds.
(v) The ability of the receiving hospital to provide adequate overall treatment of the patient, as affected by:
(a) overcrowding;
(b) the availability of services beneficial to the patient; and
(c) bed capacity.
(ii) In addition to satisfying subparagraph (i) of this paragraph, a patient to be transferred from a municipal or general hospital in New York City to a hospital operated by the Office of Mental Health must satisfy the following requirements, unless waived by the commissioner or a designee thereof:
(a) the patient must not require acute psychiatric care; and
(b) the patient must require, or be expected to require in the future, intermediate or long-term psychiatric care.
(iii) The patient must be medically cleared.
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Savastano v. Nurnberg
...for failure to state a cause of action, the parties had agreed to have the action decided on the merits ( Savastano v. Nurnberg, 139 Misc.2d 593, 594, 529 N.Y.S.2d 403, supra). The court further noted that while the three named patients had been discharged from QHC without transfer to Creed......