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In re Application of State

Supreme Court, Oneida County

March 9, 2017

In the Matter of the Application of THE State of New York, Petitioner,
v.
Richard Z., an Inmate in the custody of the New York State Office of Mental Health, Respondent.

          Joseph Muia, Jr., Esq., Attorney General's Office

          December Sutton, Esq., Attorney General's Office

          Janine E. Rella, Esq., Mental Hygiene Legal Services

          James C. Tormey, J.

         By way of background, on August 13, 2015 this Court found that the Respondent, Richard Z., was not presently receiving "meaningful treatment" while at the Central New York Psychiatric Center (hereinafter referred to as CNYPC). The Court further found that Richard Z.'s's expert, Dr. Kostavdakis, provided credible testimony, and part of that testimony was that, if the Court placed Richard Z. on Strict and Intensive Supervision and Treatment (hereinafter referred to as "SIST") pursuant to Mental Hygiene Law Article 10 §10.01(c), Richard Z. would need access to appropriate treatment to address his individual needs, which may include chemical therapy. Dr. Kostavdakis recommended various conditions for a release on SIST, as discussed further in this Order. As part of the conditions, Dr. Kostavdakis urged the Court to consider the possibility of medication to help Richard Z. manage his sexual urges. According to Dr. Kostavdakis, part of that monitoring would be to track Richard Z.'s response and potential side effects to medication. Additionally, Dr. Kostavdakis recommenced (1) GPS monitoring, (2) in-person reporting, (3) random/supervised urine analysis screens, (4) on-going involvement in structured cognitive behavioral treatment for sexual offenders, once weekly, with monthly reports sent to the Department of Parole, (5) limited and/or supervised contact with family, and (6) limited and supervised contact with females, along with the other 85 or so standard conditions of SIST release.

         Since 2011, and during the course of this case, Richard Z. has requested chemical therapy, which would substantially reduce his sexual urges, and has proven in scientific tests [1] to assist in the reduction of recidivism to less than 3%. He has, however, been denied such treatment by the Office of Mental Health because of alleged potential side effects concerning bone density and a perceived lack of "informed consent".

         After taking testimony, this Court appointed the world-renowned expert, Dr. John Bradford [2], to render expert advice to the Court for a program of "meaningful treatment" for Richard Z. as a condition of SIST. Dr. Bradford then provided an evaluation report to this Court after a review of Richard Z.'s history and medical records, and a 5-hour personal interview with Richard Z., which this Court believes was appropriate and necessary in order to diagnose and treat Richard Z. In doing so, Dr. Bradford has made various recommendations to this Court for treatment, indicating that the treatment he has recommended "would likely place Richard Z. at a low risk for future sexual offense recidivism and violent recidivism to the point that he could be released to the community on strict supervision". This recommendation includes a regimen of chemical therapy, specifically Lupron Acetate.

         Dr. Bradford has rendered expert advice to the Court for a program of meaningful treatment of Richard Z. as a condition of SIST. Dr. Bradford indicated that Richard Z., by virtue of age, has a reduced risk of sexual offense recidivism. He has completed programs for sexual offenders in a correctional facility as well as the CNYPC. From a diagnostic standpoint, utilizing the World Federation of Societies of Biological Psychiatry guidelines, it is Dr. Bradford's opinion that Richard Z. should be treated as part of a pre-release program with a luteinizing hormone-releasing hormone agonist, specifically Lupron (Leuprolide Acetate). Dr. Bradford indicated that Richard Z. has agreed to engage in anti-androgen treatment. He explained the use of that treatment to Richard Z. and how it would result in pharmacological castration, and the potential side effects which are treatable. Dr. Bradford recommended that this, in addition to strict conditions of supervision, would most likely place Richard Z. as a low risk for future sexual offense recidivism and violent recidivism to the point that he could be released on strict community supervision. Dr. Bradford was clear that Richard Z.'s release should be conditioned on treatment with a luteinizing hormone-releasing hormone agonist, specifically Lupron, in doses recommended by his report. Dr. Bradford also indicated that the release on SIST should include the usual requirements of restricted community living, including curfew, refraining from the abuse of alcohol and non-prescription drugs, and any other supervision requirements the Court sees fit, including GPS monitoring.

         Based upon the testimony and the reports of both expert doctors in this case, Dr. Kostavdakis and Dr. Bradford, it is clear to this Court that meaningful treatment includes treatment with medication (chemical therapy) in order to facilitate the safe release of the Respondent, Richard Z., on SIST pursuant to Mental Hygiene Law Article 10 §10.01(c). It is clear that meaningful treatment for SIST would include medication, as set forth in Dr. Bradford's report, in the form of Lupron, and that Richard Z. should be entitled to receive that medication if he chooses to do so, and be released on SIST.

         The Court's position has not changed nor has it altered since the beginning of this process under Mental Hygiene Law Article 10. If treatment is available for these individuals that can help the individuals become safe in the community and productive outside of the psychiatric institution, then that medication should be made available to the individual for release. This is consistent with the clear legislative intent and the plain reading of Mental Hygiene Law Article 10 § 10.01 which provides "offenders [shall] have access to proper treatment" including "an integrated approach that is based on evolving scientific understanding, flexible enough and sufficient to provide meaningful treatment", and which, in Richard Z's case, is consistent with the recommendations of the sex offender experts, Dr. Bradford and Dr. Kostavdakis, in regard to the use of chemical therapy treatment for Richard Z.

         This Court ordered all parties to appear, in order to formulate a release under SIST, which will include terms and conditions that Richard Z. can understand, acknowledge and give an informed allocution prior to his release under SIST; the conditions shall include medication necessary in order to assist him in treatment for his mental abnormality on a SIST program as recommended by the two experts in this case. The parties appeared on December 8, 2016. On that date, this Court was under the belief, through the Office of Mental Health records and reports received from the New York State Attorney General's Office, and provided to Counsel for Richard Z., that Richard Z. was being presented to formulate a release under SIST. This would include an acknowledgment by Richard Z. that he understood and agreed to his release under strict and intensive supervision and treatment under the conditions, which would include his treatment with an anti-androgen medication, namely Depot Lupron, which is necessary to assist him in treatment for his mental abnormality under a SIST program, and would render him "safe" to be released into the community.

         According to exhibits that were previously presented to the Court, the issue surrounding the ability of Richard Z. to be prescribed Lupron; the expert-recommended anti-androgen drug to assist Richard Z. in controlling his sexual urges centers around the effect that the drug may have on his bone density. The Central New York Psychiatric Center treatment providers received a full medical report regarding Richard Z.'s bone density, and the medical providers convened to discuss the results. It was determined by the medical team that Richard Z. would be able to physically tolerate Lupron therapy with some added medications to slow any associated bone loss. The evidence further indicated that this determination would be discussed with Richard Z., and he would need to communicate his "informed consent" as to whether or not he is agreeable to begin Lupron therapy. Four (4) days after the medical team discussed the matter on November 17, 2016, Dr. Elisabeth Gray, who was newly assigned to this case as a psychiatrist for Richard Z., conducted an interview. Richard Z. has been in civil confinement at CNYPC for nine (9) years and one (1) month as of this court date, and was confined for 30 years prior to that time in prison. It was clearly represented to this Court that Richard Z. had been asking CNYPC to consider him since 2011 for Lupron treatments. Lupron is an off-label prescription utilized as an anti-androgen in treating sex offenders, and has been regularly testified to by experts to successfully assist sex offenders who are released into the community. In fact, CNYPC has utilized Lupron on several of their sex offender patients for these medical purposes without Court orders.

          "INFORMED CONSENT" V. MOTIVATION

         On November 22, 2016 at 1:00 p.m., Dr. Elisabeth Gray, along with others, scheduled an "informed consent" conference relative to the treatment of Richard Z. utilizing Depot Lupron [and] Alendronate. Dr. Gray testified that she had recently been reassigned to take over the sex offender treatment program three or four days prior to the informed consent conference. Dr. Gray further testified that she does not have a background in ...


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