In the Matter of Radcliffe M. (Anonymous), appellant. Colleen Kiernan, Unit Chief, Central New York Psychiatric Center, Green Haven Satellite Unit, respondent. Index No. 668/16
- September 19, 2017
Hygiene Legal Service, Mineola, NY (Michael Neville, Dennis
B. Feld, and Felicia B. Rosen of counsel), for appellant.
T. Schneiderman, Attorney General, New York, NY (Anisha S.
Dasgupta and David S. Frankel of counsel), for respondent.
C. BALKIN, J.P. SYLVIA O. HINDS-RADIX COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
proceeding for permission to administer a course of
medication to a patient without his consent, Radcliffe M.
appeals from an order of the Supreme Court, Dutchess County
(Sproat, J.), dated April 1, 2016, which, after a hearing,
granted the petition.
that the order is modified, on the facts, by (1) deleting the
provision thereof stating "Reasonable Alternatives[:]
Alternative antipsychotics such as... oral/intramuscular
Prolixin, oral/intramuscular Abilify, Zyprexa, Geodon,
Seroquel, or Trilafon. Oral/intramuscular Risperdal is also a
reasonable alternative, however the patient has reported
previous side effects, limiting its indication in [Radcliffe
M.'s] treatment, " and (2) adding thereto a
provision stating that the order shall expire on April 1,
2018; as so modified, the order is affirmed, without costs or
March 30, 2016, the petitioner commenced this proceeding for
authorization to administer a course of medication to the
appellant, Radcliffe M., without his consent. Radcliffe M. is
a state inmate who, in 2006, began serving an indeterminate
sentence of imprisonment for his conviction of, among other
things, attempted murder in the first degree. On September
27, 2007, approximately one year after beginning his
sentence, Radcliffe M. was admitted to the mental health
observation unit of the Central New York Psychiatric Center,
and was diagnosed with schizophrenia and unspecified
hearing was held on the petition, which Radcliffe M. declined
to attend. However, Radcliffe M. was represented at the
hearing by appointed counsel. The sole witness was the
petitioner's expert psychiatrist, Brandon Reynolds, who
testified that, upon the expiration of a prior order
authorizing treatment of Radcliffe M. over his objection,
Radcliffe M. refused to continue treatment with the
medication Haldol Deconoate, despite an explanation of that
drug's benefits, potential risks, and alternative
medications. The prior order authorized the petitioner to
treat Radcliffe M. over his objection for a period of one
year, commencing in March 2015 and expiring in March 2016.
Reynolds opined with a reasonable degree of psychiatric
certainty that Radcliffe M. suffers from schizophrenia, that
he lacks the capacity to make decisions regarding his
psychiatric care and treatment, and that continued treatment
with Haldol Deconoate is in Radcliffe M.'s best
interests. Reynolds opined that, without the medication,
Radcliffe M. posed a high risk of violence toward others.
conclusion of the hearing, Radcliffe M.'s attorney
argued, inter alia, that the petitioner had failed to
establish its case by clear and convincing evidence.
Radcliffe M.'s attorney also objected to the
petitioner's proposed order on the ground that it lacked
an expiration date. The petitioner's counsel asked
whether Radcliffe M.'s counsel would agree to a two-year
order, but Radcliffe M.'s counsel declined to accept the
offer. The Supreme Court stated that it was considering
making the order expire after "five [years] at a
minimum, " noting Radcliffe M.'s "extremely
long history of psychiatric illness." Nevertheless,
after further colloquy, the court granted the petition and
signed the proposed order as drafted, without including an
expiration date. In addition to permitting the use of Haldol
Decanoate, the order also permits, inter alia, the use of
"Reasonable Alternatives[:] Alternative antipsychotics
such as . . . oral/intramuscular Prolixin, oral/intramuscular
Abilify, Zyprexa, Geodon, Seroquel, or Trilafon."
Additionally, the order provides that
"[o]ral/intramuscular Risperdal is also a reasonable
alternative, however the patient has reported previous side
effects, limiting its indication in [Radcliffe M.'s]
treatment." Radcliffe M. appeals.
State may administer a course of medical treatment against a
patient's will if it establishes, by clear and convincing
evidence, that the patient lacks the capacity to make a
reasoned decision with respect to proposed treatment (see
Rivers v Katz, 67 N.Y.2d 485, 497), and 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; see Matter of Adam K., 110
A.D.3d 168, 172). Whether a mentally ill patient has the
capacity to make a reasoned decision with respect to
treatment is a question of fact for the hearing court, the
credibility findings of which are entitled to due deference
(see Matter of Harvey S., 38 A.D.3d 906, 907;
Matter of William S., 31 A.D.3d 567, 568). Here, the
petitioner established by clear and convincing evidence that
Radcliffe M. lacks the capacity to make a reasoned decision
with respect to continuing a course of treatment of Haldol
Deconoate (see Matter of Harvey S., 38 A.D.3d at
907). Further, the petitioner established by clear and
convincing evidence that the proposed course of treatment
with Haldol Deconoate was narrowly tailored to give
substantive effect to Radcliffe M.'s liberty interest,
taking into consideration all relevant circumstances,
including his best interests, the benefits to be gained from
the treatment, the adverse side effects associated with the
treatment, and any less intrusive alternative treatments
(see Rivers v Katz, 67 N.Y.2d at 497-498).
the petitioner failed to offer any testimony or evidence at
the hearing with respect to the additional medications
included in the order as "Reasonable Alternatives"
and, therefore, the petitioner failed to establish by clear
and convincing evidence its entitlement to medicate Radcliffe
M. with any alternative medication over his objection (see
Matter of Jay S. [Barber], 118 A.D.3d 803, 805).
Although Reynolds' affidavit submitted in support of the
petition included a list of proposed reasonable alternatives
to Haldol Deconoate, "[t]he petition and [Reynolds'
affidavit] are the functional equivalent of a complaint in a
civil action . . . [and] are not considered evidence"
(Matter of Gail R. [Barron], 67 A.D.3d 808, 812
[citation omitted]). Accordingly, the provision of the order
authorizing the administration of "Reasonable
Alternatives" over Radcliffe M.'s objection, must be
deleted. We note that our determination in this regard is
without prejudice to the commencement of a new petition for
authorization to administer alternative medications.
although the petitioner established that a course of Haldol
Deconoate was narrowly tailored to give substantial effect to
Radcliffe M.' s liberty interest, it failed to establish
by clear and convincing evidence that a nondurational order
authorizing the administration of that medication was
narrowly tailored to give substantial effect to Radcliffe
M.'s liberty interest. A nondurational order is
appropriate where it is established that treatment will allow
the patient to become stabilized and restore the
patient's ability to make reasoned decisions regarding
the management of his or her mental illness (see Matter
of Mary Ann D.,179 A.D.2d 724, 725; Matter of
McConnell,147 A.D.2d 881, 881-882). In such
circumstances, "the order's forcefulness will end as
soon as [the patient] is no longer so incapacitated"
(Matter of McConnell, 147 A.D.2d at 882). The
petitioner failed to establish that Radcliffe M.' s
ability to make reasoned decisions regarding his ...