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In re Endress

Other Lower Courts

October 16, 2001

In the Matter of Philip R. Endress, as Director of Community Services for the County of Oneida, Petitioner, for an Order Authorizing Assisted Outpatient Treatment for Barry H., Respondent.

Page 447

COUNSEL

Randall Caldwell, County Attorney of Oneida County (Robert R. Reittinger of counsel), for petitioner.

Mental Hygiene Legal Service (Emmett J. Creahan, Lisa L. Paine and Stephen C. Clark of counsel), for respondent.

OPINION

Robert F. Julian, J.

Relief Requested:

Approval of an outpatient treatment plan pursuant to Kendra's Law which petitioner, during the hearing thereon, moved to withdraw; (2) a determination that the court may not refer the respondent to the District Attorney regarding facially criminal conduct prior to and during institutionalization; and (3) granting anonymity and a sealing of the record.

Holding:

Page 448

Petitioner's motion to withdraw the petition is denied. (2) The assisted outpatient treatment plan proposed in the petition is approved and its implementation is ordered. (3) There was a failure to treat a serious aspect of Mr. H.'s diagnosis during the inpatient stay, and a failure to provide for this diagnosis in the proposed outpatient treatment plan. The court, despite its opinion that the discharge is totally inappropriate, is powerless to reverse the decision to discharge Mr. H. or modify the treatment plan. The court urges an amendment to section 9.47 of the Mental Hygiene Law to allow the Director of Community Services to challenge the discharge of patients where in the Director's opinion the discharge is arbitrary, capricious, and an abuse of discretion. (4) The transcript and exhibits are referred to the District Attorney for investigation of Mr. H.'s facially criminal conduct. The court is empowered to make such a reference under the Mental Hygiene Law in the interest of justice and because the District Attorney is an interested party. (5) The record is otherwise sealed pursuant to the Mental Hygiene Law. The patient is granted anonymity and is to be referred to as Barry H.

Discussion:

Barry H. is a man who has had numerous psychiatric hospitalizations and multiple contacts with the criminal justice authorities. A psychological assessment updated to June 15, 2001 by John S. Wilson, PhD, and included in Mr. H.'s records in evidence, includes four single-spaced pages reciting Mr. H.'s institutional history starting in 1974. Mr. H. has a record of many psychiatric interventions, hospitalizations, and criminal arrests.

As will be discussed in this opinion, Mr. H. carries a disputed diagnosis of schizophrenia and an undisputed diagnosis of antisocial personality disorder. He also carries several diagnoses pertaining to sexual perversion, including fetishism, frotteurism and paraphilia.

He has a long-standing record of violent assault; inappropriate touching; exposing himself to children; and preoccupation with sex, including sex with children. His first arrest for public lewdness was in 1981, although there is also suggestion in the record that he was arrested twice for indecent exposure in 1980.

An application was made by the Oneida County Commissioner of Mental Health for an order pursuant to Mental Hygiene Law § 9.60 et. seq. (Kendra's Law) and Mental Hygiene Law § 9.47 (b) ...


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