In the Matter of Adam K. (Anonymous), respondent. Kathleen Iverson, Director of Creedmoor Psychiatric Center, appellant. Index No. 501168/11
APPEAL by the petitioner, Kathleen Iverson, in a proceeding for permission to administer medication to a patient without his consent, from an order of the Supreme Court (Martin J. Schulman, J.), entered in Queens County on September 28, 2011, which, after a hearing, in effect, denied the petition and dismissed the proceeding.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Cecelia Chang and Patrick J. Walsh of counsel), for appellant.
Mental Hygiene Legal Service, Mineola, N.Y. (Lesley M. DeLia, Scott M. Wells, and Dennis B. Feld of counsel), for respondent.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, L. PRISCILLA HALL, JJ.
OPINION & ORDER
The petitioner, the director of a state facility, Creedmoor Psychiatric Center (hereinafter Creedmoor), commenced this proceeding for permission to administer antipsychotic medication to an involuntarily committed patient over his objection. At the hearing on the petition, Creedmoor chose not to present the testimony of the patient's treating psychiatrist, and called a single expert witness who had interviewed the patient on one occasion and reviewed the patient's records. The Supreme Court, applying "the missing witness rule, " denied the petition after making an adverse inference against Creedmoor that the treating psychiatrist, had he been called, would have given testimony unfavorable to Creedmoor. This appeal raises the issues of whether the missing witness rule was properly applied under the circumstances of this case and, if so, whether Creedmoor satisfied its burden of establishing the grounds for its petition by clear and convincing evidence. Here, the missing witness rule was properly applied and Creedmoor failed to meet its burden by clear and convincing evidence.
The Regulatory Framework
The procedures for administering treatment over the objection of an involuntarily committed patient are set forth in detailed regulations promulgated by the Commissioner of the New York State Office of Mental Health, pursuant to Mental Hygiene Law § 7.09(b) (see 14 NYCRR 501.1[a], 501.2[b]). A facility must follow stringent procedures prior to filing a petition seeking court authorization to administer the treatment (see 14 NYCRR 527.8[c]). The process requires a series of clinical evaluations of the patient, all of which must be completed within 24 hours (see 14 NYCRR 527.8[c][ii]).
First, the patient's treating physician must determine that the treatment is in the patient's best interests in light of all relevant circumstances, including the risks, benefits, and alternatives to treatment, and that the patient lacks the capacity to make a reasoned decision concerning treatment. The treating physician must forward the evaluation and findings to the clinical director with a request for further review, and notify, in writing, the patient, Mental Hygiene Legal Services (hereinafter MHLS), and any other representative of the patient (see 14 NYCRR 527.8[c][ii][a]).
Second, the clinical director must appoint a physician to review the patient's record, and personally examine the patient, to evaluate whether the proposed treatment is in the patient's best interests and whether the patient has the capacity to make a reasoned decision concerning treatment. If the reviewing physician determines that treatment over objection is appropriate, the physician must personally inform the patient of that determination (see 14 NYCRR 527.8[c][ii][b]). Alternatively, if there is a substantial discrepancy between the opinions of the treating physician and the reviewing physician regarding the patient's capacity or best interests, the clinical director may appoint a third physician to conduct an evaluation (see 14 NYCRR 527.8[c][ii][b]).
Finally, if, after completion of the evaluation by the reviewing physician (or physicians), the patient continues to object to the proposed treatment, the clinical director must make a determination on behalf of the facility. If the director finds that the patient lacks capacity, and that treatment over objection is in the patient's best interests, the director may apply for court authorization to administer the treatment and so notify the patient, MHLS, and any other patient representative. However, if the director makes the opposite determination, the patient's objections must be honored (see 14 NYCRR 527.8[c][ii][b]).
"[T]he due process clause of the New York State Constitution (art I, § 6) affords involuntarily committed mental patients a fundamental right to refuse antipsychotic medication, " and "due process requires that a court balance the individual's liberty interest against the State's asserted compelling need on the facts of each case to determine whether such medication may be forcibly administered" (Rivers v Katz, 67 N.Y.2d 485, 492, 498). Thus, in a proceeding for court authorization to administer medication over a patient's objection pursuant to the State's parens patriae power, the clinical director has the burden of demonstrating by clear and convincing evidence, first, that the patient "lacks the capacity to determine the course of his own treatment, " and second, that "the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments" (id. at 497-498).
By petition dated August 31, 2011, Creedmoor sought an order permitting the administration of certain antipsychotic medications to Adam K. (hereinafter the patient) over his objection. In the petition, Clinical Director William A. Fisher averred that the patient, who had no family involvement, suffered from a mental illness requiring treatment, refused medication, and was not competent to make an informed and reasoned treatment decision. Creedmoor sought authorization to administer certain medications and, as a last resort, in the event that the patient continued to refuse medication, sought to dispense the medications via nasogastric tube. In support of the petition, Creedmoor submitted the affidavits of two physicians, Thulasi R. Reddy and Robert Mathew, who opined with reasonable medical certainty that the patient was not competent to make an informed, reasoned decision concerning treatment and that it would be in the best interests of the patient to be treated as proposed. Both doctors relied on two documents prepared by Mathew: a "Clinical Summary" and an "Evaluation for Treatment over Objection" (hereinafter the Evaluation).
In his Clinical Summary, Mathew noted the following: the patient, 63 years old, homeless, and Polish-speaking, had been continuously hospitalized since 2010 and had been involuntarily admitted to Creedmoor in April 2011. The patient had a medical history which included traumatic brain injury, cognitive deficiencies, and alcohol abuse, and he was diagnosed with a cognitive disorder, psychosis secondary to the traumatic brain injury, and bilateral frontal encephalomalacia. The patient was very loud and disruptive and had a history of assaultive behavior at other facilities. Mathew stated that the patient was "refusing his medications most of the time" and his response to medication had been "poor." He did not attend group therapy and was not making progress. Mathew further stated that when he or other staff members attempted to converse with the patient, he became angry and started shouting in Polish. A Polish-speaking nurse and a therapy aide would translate, and the patient also spoke some English. Mathew concluded that the patient was "very psychotic, disorganized, noncompliant with treatment, [and] unable to care for himself" and, thus, court authorization was needed to treat him over his objection.
In his Evaluation, Mathew stated that the patient had experienced a "partial to fair response" to the antipsychotic medications haldol and depakote benztropine. When the patient objected to treatment, he would state, "I am not sick." The recommended treatment included certain doses of haldol decanoate, benztropine, divalproex sodium, and seroquel, and the recommended "reasonable alternative" to those medications included certain doses of prolixin or prolixin decanoate and olanzapine. The reasonably foreseeable adverse effects of these medications included sedation, muscle spasm, extra pyramidal side effects, metabolic side effects, risk of tardive dyskinesia, and neuroleptic malignant syndrome. In Mathew's opinion, without treatment, the patient ...