State ex rel. Harkavy v. Consilvio

• Citation: 29 A.D.3d 221,812 N.Y.S.2d 496,2006 NY Slip Op 02451
• Decision Date: 30 March 2006
• Docket Number: 7675.
• Parties: STATE OF NEW YORK ex rel. STEPHEN J. HARKAVY, on Behalf of JOHN DOE NOS. 1 THROUGH 12, Respondent-Appellant, v. EILEEN CONSILVIO, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Appellant-Respondent.
• Court: New York Supreme Court Appellate Division

29 A.D.3d 221

812 N.Y.S.2d 496

2006 NY Slip Op 02451

STATE OF NEW YORK ex rel. STEPHEN J. HARKAVY, on Behalf of JOHN DOE NOS. 1 THROUGH 12, Respondent-Appellant, v. EILEEN CONSILVIO, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Appellant-Respondent.

7675.

Appellate Division of the Supreme Court of the State of New York, First Department.

March 30, 2006.

CROSS APPEALS from an order and judgment (one paper) of the Supreme Court, New York County (Jacqueline W. Silbermann, J.), entered on or about November 15, 2005. The order and judgment granted the habeas corpus petition insofar as ordering the conditional release of petitioners from involuntary commitment.

State of N.Y. ex rel. Harkavy v Consilvio, 10 Misc 3d 851, reversed.

Eliot Spitzer, Attorney General, New York City (Julie Loughran, Caitlin J. Halligan and Daniel Smirlock of counsel), for appellant-respondent.

Marvin Bernstein, Mental Hygiene Legal Service, New York City (Sadie Zea Ishee, Stephen J. Harkavy and Karen Gomes Andreasian of counsel), for respondents-appellants.

OPINION OF THE COURT

MALONE, J.

We are asked on this appeal to determine whether petitioners, all of whom at least three doctors have found so dangerously mentally ill as to require their involuntary civil commitment to inpatient psychiatric facilities, are subject to procedures under Mental Hygiene Law article 9, which applies to the general public, or Correction Law § 402, which applies to mentally ill prisoners. On the facts presented, we find no basis to provide petitioners heightened due process protections not afforded to their nonincarcerated counterparts and thus would hold that respondent Eileen Consilvio properly proceeded pursuant to the Mental Hygiene Law in committing petitioners for involuntary psychiatric hospitalization.

Much publicized in the news, this is an appeal and cross appeal from the partial grant of a habeas corpus petition, denominated one under CPLR article 70, for the release of 12 individuals currently committed to Office of Mental Health (OMH) psychiatric facilities. Each of the 12 petitioners was, immediately prior to his commitment, in the custody of the Department of Correctional Services (DOCS). Each was a felony sex offender about to be released from prison when two OMH physicians certified his need for commitment pursuant to Mental Hygiene Law § 9.27 based upon their examinations and their findings that in each case, petitioner suffered from a mental illness and without inpatient psychiatric treatment would likely seek additional sexual victims upon his release from prison into the broader community. And in each case, before the individual's release, the prison superintendent completed an application for involuntary commitment on medical certification. Then, upon the expiration of his sentence, each petitioner was transported to the OMH facility where he was examined by a third OMH physician, who found him in need of commitment.

None of the petitioners challenged his retention. Rather, over a month after the first petitioner was committed, Mental Hygiene Legal Service brought this proceeding on all of petitioners' behalf, arguing that petitioners' retention was unlawful because it should have been made, if at all, pursuant to the procedures of the Correction Law which, in contrast to Mental Hygiene Law § 9.27, provides for a precommitment hearing. Petitioners also argued that Mental Hygiene Law article 9 procedures as applied to them were unconstitutional. Respondent argued that Mental Hygiene Law article 9 was properly applied to petitioners because at the time they were committed, they were no longer serving sentences of imprisonment.

The IAS court granted the petition, finding that since the petitioners were never out of custody at the time of their commitment, they could only have been committed pursuant to the procedures of Correction Law § 402. It then directed respondent to allow for the examination of each petitioner by two independent examining physicians to be appointed by the court and ordered the immediate release of any petitioner who was not certified by both physicians as mentally ill, in need of care and treatment at a psychiatric hospital, and posing a substantial threat of physical harm to themselves or others.

Statutory Framework

"Unless otherwise specifically provided for by statute," Mental Hygiene Law article 9 governs all admissions of mentally ill patients to inpatient psychiatric facilities which the director oversees (Mental Hygiene Law § 9.03). The Mental Hygiene Law in general, and section 9.27 in particular, places primary authority over admissions in the hands of doctors and ensures that commitment occurs only after several preconditions have been met. First, at least two physicians must certify that an individual is "mentally ill"¹ according to the statutory scheme, that involuntary care and treatment is necessary or essential to his welfare and that his "judgment is so impaired that he is unable to understand the need for such care and treatment" (Mental Hygiene Law § 9.01; § 9.05[b]; § 9.27[a]; see Matter of Gilliard v Sanchez, 219 AD2d 500 [1995]). Second, the two physician certifications must be accompanied by an application for admission executed within 10 days prior to admission by one of several statutorily designated persons (Mental Hygiene Law § 9.27[b]). Third, the prospective patient must be brought to the inpatient psychiatric facility and examined there forthwith by a third physician who must concur with the conclusion of the two original certifying physicians (Mental Hygiene Law § 9.27 [e]).

A patient may demand a hearing before Supreme Court within 60 days of his involuntary admission (Mental Hygiene Law § 9.31); if no such demand is made, he can be held for only 60 days, unless an application is made authorizing continued retention for up to six months (Mental Hygiene Law § 9.33[a], [b]). Upon receipt of such application, the patient may demand, or the court on its own motion may calendar, a hearing on the need for involuntary retention (Mental Hygiene Law § 9.33[c]). Finally, within 30 days after an adverse decision following a Mental Hygiene Law § 9.31 or § 9.33 hearing, a patient may demand a rehearing and review of the prior proceeding before a jury (Mental Hygiene Law § 9.35).

Similarly, the procedures set forth in the Correction Law ensure that only inmates who are both mentally ill and in need of inpatient care and treatment are committed involuntarily (Correction Law § 400[4]). If a mentally ill person undergoing a sentence of imprisonment cannot be safely held in the prison, application is made by the prison superintendent to the court to cause an examination to be made of such person by two examining physicians (Correction Law § 402[1]). In New York City, the petition seeking commitment must include two physician certificates stating that the prisoner is mentally ill and in need of care and treatment, and must be served personally upon the alleged mentally ill prisoner (Correction Law § 402[2]-[3]). The court may, upon request or its own motion, hold a hearing and, if deemed advisable, examine the alleged mentally ill person either in or out of court (Correction Law § 402[4]-[5]).

The inmate upon his commitment becomes an "inmate-patient" (Mental Hygiene Law § 29.27[a]) and is in the custody of OMH for the period stated in the order of commitment. If hospitalization is no longer necessary, custody of the inmate reverts back to DOCS and OMH's responsibility for him terminates (Mental Hygiene Law § 29.27[e], [f]). If, on the other hand, continued hospitalization beyond the authorized period or expiration of sentence is necessary, retention must be made in accordance with Mental Hygiene Law article 9 (Mental Hygiene Law § 29.27[c]; Correction Law § 404[1]).

Discussion

It is a cardinal rule of statutory construction that all parts of an act should be harmonized, to be read and construed together in a manner most consistent with the overall legislative intent (Matter of Pilgrim Psychiatric Ctr. [Christian F.], 197 AD2d 204, 207 [1994]; McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98). Completely overhauled by the Legislature in 1976, Correction Law article 16 along with the inmate-patient provision of Mental Hygiene Law § 29.27, was enacted to ensure that, in concert with DOCS, OMH provide mentally ill inmates appropriate psychiatric care in both prison and psychiatric hospitals when necessary, and upgrade the quality of care while at the same time providing adequate assurances of security for the duration of the inmate's sentence (Governor's Mem approving L 1976, ch 766, § 1, reprinted in 1976 McKinney's Session Laws of NY, at 2445; Mem of State Exec Dept, reprinted in 1976 McKinney's Session Laws of NY, at 2397-2398). Because the Correction Law applies only to persons undergoing a sentence of imprisonment, it contemplates return to a DOCS facility. Indeed, Correction Law § 404(1) states that the Mental Hygiene Law commitment procedures control where a hospitalized inmate no longer serving a sentence becomes a free individual.

Based upon the facts presented here, we believe that the Supreme Court's holding that Correction Law § 402 governs petitioners' commitments is inconsistent with its plain meaning and legislative intent. The Correction Law clearly does not apply to the two petitioners whose applications were submitted on the date of their release. As to the remaining 10 petitioners, whose applications were submitted from one to four days prior to their conditional release, release to parole supervision or expiration of their terms, there was no possibility that they would be returned back to DOCS' custody as the Correction Law contemplates. Moreover, a few hours or days remaining in the sentence of these individuals as of the time of the application did not, as Supreme Court postulated, render them "person[s]...