Ughetto v. Acrish

• Decision Date: 20 July 1987
• Citation: 130 A.D.2d 12,518 N.Y.S.2d 398
• Parties: Thomas UGHETTO, et al., Respondents-Appellants, v. Wendy ACRISH, etc., et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 398

518 N.Y.S.2d 398

130 A.D.2d 12

Thomas UGHETTO, et al., Respondents-Appellants, v. Wendy ACRISH, etc., et al., Appellants-Respondents.

Supreme Court, Appellate Division Second Department.

July 20, 1987.

Robert Abrams, Atty. Gen., New York City (Judith A. Gordon, Thomas P. Dorsey and Robert L. Schonfeld, of counsel), for appellants-respondents.

Mental Hygiene Legal Service, Wingdale (Francis M. Savastano, Robert A. Feenick and William M. Brooks, of counsel), for respondents-appellants.

Before MOLLEN, P.J., and BROWN, NIEHOFF and KOOPER, JJ.

BROWN, Justice.

On this appeal we are asked to determine whether plaintiffs, involuntarily committed patients at the Harlem Valley Psychiatric Center, are entitled to have their counsel present during psychiatric examinations conducted by psychiatrists whom the hospital intends to have testify at judicial retention hearings, and whether the plaintiffs may assert their privilege against self-incrimination and refuse to submit to such examinations. We answer the first question in the affirmative and the second in the negative.

At the time of the commencement of this action, the plaintiffs were involuntarily retained as patients at Harlem Valley Psychiatric Center (the hospital) under judicial retention orders issued pursuant to Mental Hygiene Law § 9.33. Since the plaintiffs refused to consent to remain at the hospital as voluntary patients under the soon-to-expire retention orders and had no reason to believe that they would be released, they anticipated that the hospital would seek authorization for their continued involuntary retention. Intending to exercise their right to request a hearing to challenge the need for further retention (Mental Hygiene Law § 9.33), the plaintiffs anticipated that in accordance with hospital policy, following the application for a further court order or the patients' request for a hearing, the hospital would direct a nontreating psychiatrist to interview each of them for the purpose of having that psychiatrist testify at their retention hearings.

Accordingly, the plaintiffs commenced this action for a declaratory judgment and injunctive relief in which they challenged the procedures employed by the hospital in conducting those preretention hearing examinations. Specifically, they sought a declaration that they have a right to have counsel present whenever they are examined by either a treating or a nontreating psychiatrist whom the hospital intends to have testify at their retention hearings, and that their privilege against self-incrimination attaches whenever a nontreating psychiatrist examines them for purposes of testifying at their retention hearings such that they may refuse to submit to such examinations. The plaintiffs also sought an affirmative injunction to require the hospital to notify their counsel whenever they are to be examined by either a treating or nontreating psychiatrist whom the hospital intends to have testify at a retention hearing and to permit counsel to attend and observe the examination.

Following joinder of issue, the plaintiffs moved for summary judgment declaring the rights of the parties in their favor and for the injunctive relief sought. In its opposition papers, the hospital asked that summary judgment be granted in its favor pursuant to CPLR 3212(b).

By decision and order dated September 13, 1985, the Supreme Court, Dutchess County (Lange, J.), held that the privilege against self-incrimination does not attach at the prehearing psychiatric interview. On the second issue, however, the court declared that the right to counsel does apply at the prehearing psychiatric interview but held in abeyance, pending the submission of further briefs, the question of whether this right required that counsel be permitted to attend that interview (Ughetto v. Acrish, 130 Misc.2d 74, 494 N.Y.S.2d 943). Thereafter, by judgment dated February 26, 1986, Special Term (Lange, J.), inter alia, declared that the privilege against self-incrimination does not attach to the prehearing psychiatric interview and that the plaintiffs could not refuse to submit to such an examination, that the right to counsel applies at a prehearing interview by a psychiatrist who will testify, to the extent that counsel may observe the interview, that the hospital, in its discretion, must either permit the plaintiffs' counsel to observe the interview, or preserve the interview by means of videotape to be made available to counsel, with no other means being permissible unless stipulated to by the parties, that when counsel is permitted to be present or to view the interview through an observation mirror, counsel's function is to be limited to that of an observer and to take notes and counsel shall not be permitted to advise the client not to answer questions or to make objections, that when counsel is permitted to observe, the interview shall be held on 24-hours notice to counsel, and finally, that the judgment shall apply to any interview conducted by a psychiatrist whom the hospital intends to have testify at a retention hearing, whether treating or nontreating.

The defendants, the hospital's Executive and Clinical Directors, now appeal from so much of the judgment which declared that the plaintiffs have a right to counsel at a pre-retention hearing examination by a psychiatrist whom they intend to have testify at the retention hearing, and which declares the methods and conditions by which such right shall be exercised. They also appeal from so much of the prior order dated September 13, 1985, as initially granted that branch of the plaintiffs' motion which was for summary judgment on their claim that they have the right to counsel at the prehearing psychiatric interviews. The plaintiffs' cross-appeal from so much of the judgment as denied that branch of their motion for summary judgment which was for a declaration that the privilege against self-incrimination attaches at a prehearing psychiatric interview, and declared that the privilege against self-incrimination does not attach to prehearing psychiatric interviews.

The defendants' appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the defendants' appeal from the judgment (CPLR 5501[a][1] ).

With respect to the judgment, there are certain threshold procedural matters to be addressed. Firstly, there exists the issue of mootness, since the retention orders pursuant to which the plaintiffs were being retained at the commencement of these proceedings have long since expired. It appears, however, that certain of the plaintiffs continue to be retained under subsequently issued orders, although the hospital indicates that the plaintiff Norris is no longer a patient at the hospital. In any event, we are satisfied that the issues raised herein are of the type which are likely to be repeated and would otherwise evade review and we therefore conclude that the appeal is not moot (see, Howell v. McGinity, 129 A.D.2d 60, 516 N.Y.S.2d 694 [2d Dept., 1987]; Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876; Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 332 N.E.2d 303).

Another procedural issue with which we must concern ourselves deals with the scope of the judgment herein, which states, in the last decretal paragraph, that it "applies to any interview conducted at the Harlem Valley Psychiatric Center by a psychiatrist whom defendants intend to have testify at a retention hearing, whether the psychiatrist is a treating or nontreating physician". The hospital objects to this language on two grounds. First, it notes that there was never any request or order certifying this case under CPLR article 9 as a class action on behalf of all persons situated similarly to the plaintiffs, and therefore it argues that it was error to extend the scope of the judgment to cover patients other than the plaintiffs. While we agree, and accordingly modify the judgment by deleting the provision thereof which states that the judgment applies "to any interview" and substitute therefor a provision that the judgment applies "to interviews of the plaintiffs", we nevertheless note, as the hospital readily concedes, that since this case involves governmental action, any similarly-situated patients will be protected by principles of stare decisis (Matter of Jones v. Berman, supra, at 57, 371 N.Y.S.2d 422, 332 N.E.2d 303; Matter of Bey v. Hentel, 36 N.Y.2d 747, 749, 368 N.Y.S.2d 826, 329 N.E.2d 661).

The hospital's second objection with regard to the declaration scope is that it extends the right to counsel to examinations by both treating and nontreating physicians where the purpose of the examination is to prepare for testimony at a retention hearing. We conclude, however, contrary to the hospital's view, that in this respect the order was proper. While, as a matter of present policy, the hospital apparently only has nontreating physicians conduct these prehearing interviews, the rationale for permitting counsel to observe an examination conducted solely in preparation for a hearing--and not as a part of the regular course of treatment--applies equally whether the interviewer is a treating or a nontreating physician. Further, the petition specifically requested a declaration as to examinations by both treating and nontreating physicians.

We thus move to the two substantive issues presented on these appeals which concern the fundamental question as to what due process protections are available to involuntarily-retained patients of a mental health facility.

The Fourteenth Amendment to the United States Constitution provides, in relevant part, that "[n]o State shall * * * deprive any person of...