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In re Mental Hygiene Legal Service

Supreme Court of New York, Third Department

July 13, 2017

In the Matter of MENTAL HYGIENE LEGAL SERVICE et al., Appellants,
v.
ANNE MARIE T. SULLIVAN, as Commissioner of Mental Health, et al., Respondents.

          Calendar Date: June 6, 2017

          Sheila E. Shea, Mental Hygiene Legal Service, Albany (Shannon Stockwell of counsel), for appellants.

          Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

          Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.

          DEVINE, J.

         Appeal from a judgment of the Supreme Court (Farley, J.), entered September 29, 2016 in St. Lawrence County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of the St. Lawrence Psychiatric Center finding that petitioner Mental Hygiene Legal Service was not statutorily entitled to be present at petitioner D.J.'s treatment planning meetings.

         Having been adjudicated "a dangerous sex offender requiring confinement" (Mental Hygiene Law § 10.10 [a]), petitioner D.J. was committed to the St. Lawrence Psychiatric Center and enrolled in the Sex Offender Treatment Program. Respondent Commissioner of Mental Health is required to "develop and implement a treatment plan" for D.J. and others in his position (Mental Hygiene Law § 10.10 [b]; see Mental Hygiene Law § 29.13 [a]) and, "[i]n causing such a plan to be prepared or... revised," the patient and specified individuals must be "interviewed and provided an opportunity to actively participate" (Mental Hygiene Law § 29.13 [b]).

         In 2016, D.J. asked that his counsel in the Mental Hygiene Law article 10 proceeding, assigned through petitioner Mental Hygiene Legal Service (hereinafter MHLS), accompany him to treatment planning meetings. The requests of D.J. and, later, his counsel were denied, with the chief of service for the Sex Offender Treatment Program, Bryan Shea, explaining that counsel was not entitled to attend treatment planning meetings as a matter of law and that counsel's presence would be therapeutically counterproductive. Shea left open the possibility that a MHLS attorney could participate in a patient's treatment planning, but explained that such would be contingent upon the attorney having a "genuine[] interest[] in the care of the patient" and guaranteeing "that [he or she was] no longer acting in the role of legal representative" and would keep "any information [received] during treatment planning... confidential" from MHLS.

         Petitioners thereafter commenced this CPLR article 78 proceeding against respondents, arguing that the refusal to allow counsel for MHLS to attend treatment planning meetings was infected by legal error as well as arbitrary and capricious. Following joinder of issue, Supreme Court disagreed and dismissed the petition. Petitioners now appeal.

         Mental Hygiene Law § 29.13 requires that a written treatment plan be prepared for a patient such as D.J.; this plan must take into account "any relevant standards, guidelines, and best practices" (Mental Hygiene Law § 10.10 [b]) and provide "a statement of treatment goals; appropriate programs, treatment or therapies to be undertaken to meet such goals; and a specific timetable for assessment of patient programs as well as for periodic mental and physical reexaminations" (Mental Hygiene Law § 29.13 [b]). Certain individuals "shall be interviewed and provided an opportunity to actively participate" in the preparation or revision of this plan, including any "authorized representative of the patient, to include the parent or parents if the patient is a minor, unless such minor [16] years of age or older objects to the participation of the parent or parents and there has been a clinical determination by a physician indicating that the involvement of the parent or parents is not clinically appropriate and such determination is documented in the record" (Mental Hygiene Law § 29.13 [b]) [1]. Likewise, a "significant individual" requested by a patient 16 years of age or older, "including any relative, close friend or individual otherwise concerned with the welfare of the patient, other than an employee of the facility," is entitled to participate (Mental Hygiene Law § 29.13 [b]).

         The question to be answered here is whether counsel for D.J. is necessarily an "authorized representative" or a "significant individual" within the meaning of Mental Hygiene Law § 29.13 (b). The statute does not define either term and, since this is an issue of "pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent," we owe no deference to respondents' interpretation ( Matter of Kent v Cuomo, 124 A.D.3d 1185, 1186 [2015] [internal quotation marks and citation omitted], lv denied 25 N.Y.3d 906');">25 N.Y.3d 906 [2015]; see Matter of Lawrence Teachers' Assn., NYSUT, AFT, NEA, AFL-CIO v New York State Pub. Relations Bd., __ A.D.3d __, 2017 NY Slip Op 04944, *2 [2017]). Our review of the statutory language nevertheless leads us to agree that counsel for a patient does not fall within either category as a matter of law.

         The statute does not provide a precise definition for "authorized representative" or "significant individual" but, under "the familiar canon of construction of noscitur a sociis, we ordinarily interpret the meaning of an ambiguous word [or phrase] in relation to the meanings of adjacent words" ( Matter of Kese Indus. v Roslyn Torah Found., 15 N.Y.3d 485, 491 [2010]; see McKinney's Cons Laws of NY, Book 1, Statutes § 239 [a]). The only example cited for an "authorized representative" is the parent of a minor patient who, of course, "has a right to consent to medical treatment on [his or her child's] behalf" ( Matter of Storar, 52 N.Y.2d 363, 380 [1981], cert denied 454 US 858 [1981]; see Public Health Law § 2504 [2]). The example accordingly suggests that an "authorized representative" is one "authorized" to make treatment decisions on the patient's behalf, which is consistent with the general meaning of the term as a person with "some sort of tangible delegation to act in [another's] shoes" ( Anderson v United States Dept. of Labor, 422 F.3d 1155, 1180 [10th Cir 2005]; see e.g. 45 CFR 46.102 [c]; 18 NYCRR 387.1 [e]).

         The legislative history confirms this interpretation, revealing that the language was narrowly drafted so that individuals authorized to assist "in drawing up the treatment plan" could attend the planning meetings (Mem of Economic Development Board, Bill Jacket, L 1976, ch 332, at 5). Indeed, the "significant individual" category was later added so that the "[m]any individuals [who] do not have an authorized representative available" could have someone present at treatment planning meetings to advocate for their "needs and preferences" (Letter of Assistant Counsel, State Commission on Quality of Care for the Mentally Disabled, Bill Jacket, L 1993, ch 135, at 13) [2]. Counsel does not have authority to make these types of decisions on behalf of a client - instead, counsel must maintain a conventional attorney-client relationship with an impaired client so far as possible and then take steps to consult with individuals who have decision-making authority or ensure the appointment of such an individual ( see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.14 [a], [b]) - and it follows that counsel is not an "authorized representative" for purposes of Mental Hygiene Law § 29.13.

         Of far more interest is whether counsel for a patient is a "significant individual" within the meaning of Mental Hygiene Law § 29.13. Again referring to adjacent terms, we note that "significant individual" is in a statute devoted to securing appropriate mental health treatment and surrounded by references to parents, relatives and friends, strongly suggesting that the phrase refers to someone interested in the patient's welfare and knowledgeable about his or her personal situation rather than someone tasked with providing legal counsel. The legislative history bears these intimations out, describing an individual as "significant" if he or she is "concerned with the welfare of the patient" and able to engage with treatment providers on therapeutic goals, "the needs of the patient and the existence... of informal caregivers who may collaborate... in appropriate treatment and discharge planning" (Mem, Bill Jacket, L 1993, ch 135, at 6). The commission whose earlier study sparked the statutory amendments also advocated for their passage and, in so doing, remarked upon "the need for staff to nurture family and informal supports while individuals are hospitalized and... help individuals to develop such supports in order to promote a successful return to the community after hospitalization, and when possible, to avoid rehospitalization" (Letter from State Commission on Quality of Care for the Mentally Disabled, May 17, 1993, at 1, Bill Jacket, L 1993, ch 135) [3]. While the commission did not describe what it meant by "informal supports," its underlying report refers to consultation with "consumer and family groups, as well as established providers of informal support programs" such as organizations that offer psychiatric rehabilitation and support services for the mentally ill (State Commission on Quality of Care for the Mentally Disabled, Discharge Planning Practices of ...


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