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PROJECT RELEASE v. PREVOST

December 29, 1978

PROJECT RELEASE, Individually and on behalf of its members and all others similarly situated, Carrie Greene, Individually and on behalf of all others similarly situated, Plaintiffs,
v.
James PREVOST, Individually and as Commissioner of the New York State Department of Mental Hygiene and Office of Mental Health, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

This civil rights action, brought pursuant to 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3), challenges the constitutionality of the standards for civil commitment of mentally ill persons embodied in various provisions of the New York Mental Hygiene Law ("MHL") and the procedures used in such commitments. Specifically, the action is brought to declare MHL §§ 9.13, 9.27 and 9.39 unconstitutional and to enjoin their enforcement to the extent they are declared constitutionally inadequate. *fn1"

 Plaintiffs are a non-profit corporation ("Project Release") suing individually and on behalf of its members, and an individual ("Carrie Greene") currently committed to Creedmoor Psychiatric Center. They seek to maintain the action as representatives of a class variously described as "all persons who have been or may in the future be involuntarily committed to mental hospitals" (Complaint P 5) and as "all individuals who are or have been confined in all facilities operated by the New York State Department of Mental Hygiene" (Plaintiffs' Memorandum in Support of Motion for Class Certification at 4). The defendant is the Commissioner of the New York State Department of Mental Hygiene. Motions for class certification have been held in abeyance pending disposition of the motion to dismiss now before the court.

 Plaintiffs allege that the substantive standards for involuntary commitment contained in the MHL are constitutionally vague and overbroad. Section 9.13 provides for voluntary admission of "any suitable person in need of care and treatment" who makes a written application therefor. Such a "voluntary" patient shall be released upon written application on three days notice unless the director within that time seeks a court order to retain the patient on the ground that he is "in need of involuntary care and treatment." *fn2" Section 9.27 permits involuntary admission of anyone "alleged to be mentally ill and in need of involuntary care and treatment" upon certification by two examining physicians, the application of one of the patient's friends, or relatives, or of an official of a public or voluntary agency, and an examination by a member of the psychiatric staff of the hospital. *fn3" Section 9.39 provides for "emergency" 15-day admission to a proper facility of "any person alleged to have a mental illness for which immediate observation, care, and treatment" is appropriate and "which is likely to result in serious harm to himself or others." The phrase "likelihood to result in serious harm" is defined in the article as:

 
"(1) substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or
 
"(2) a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm." *fn4"
 
These provisions of the MHL are allegedly infirm in that they permit commitment of persons who do not meet the following standard:
 
"(a) The person has a serious mental disorder, and
 
"(b) The person's disorder is susceptible to treatment by existing medical or psychological techniques, and
 
"(c) Adequate personnel and other resources exist at the proposed facility to provide such treatment as will afford the person with a realistic opportunity to be cured or to improve, and
 
"(d) The person presents a substantial and present risk of serious physical harm to himself or others, and
 
"(e) The person has recently committed an act which caused or reasonably should have caused serious physical harm to himself or others, and
 
"(f) The person cannot receive the necessary help in any less restrictive setting." (Complaint P 17.)
 
The complaint further alleges that the provisions are procedurally defective and deny due process in that they fail to provide such ...

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