In the Matter of MENTAL HYGIENE LEGAL SERVICE et al., Appellants,
ANNE MARIE T. SULLIVAN, as Commissioner of Mental Health, et al., Respondents.
Calendar Date: June 6, 2017
E. Shea, Mental Hygiene Legal Service, Albany (Shannon
Stockwell of counsel), for appellants.
T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondents.
Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.
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.
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]).
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.
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.
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  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]) . 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
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  [internal quotation
marks and citation omitted], lv denied 25 N.Y.3d 906');">25 N.Y.3d 906
; 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 ).
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.
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
; 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 ,
cert denied 454 US 858 ; see Public
Health Law § 2504 ). 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]).
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)
. 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.
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)
. 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 ...