Supreme Court, New York County, June 9, 2020

Mental Hygiene Legal Service, First Department, Appellate Division, Bellevue Hospital Center Field Office, New York City (Kent Mackzum of counsel), for petitioner.

McAloon & Friedman, P.C., New York City (Kenneth Ellison of counsel), for respondent.

This matter comes before the court upon involuntary patient Hector F.'s petition for a writ of habeas corpus pursuant to CPLR article 70. Mr. F. is currently held at Bellevue Hospital Center. The petition raises what appears to be an issue of first impression concerning whether failure timely to have a confirmatory psychiatric evaluation by a second hospital staff psychiatrist within the statutory time frame for such a confirmatory examination violated Mr. F.'s 5th and 14th Amendment rights to due process and therefore mandates his release from the facility.

There is no dispute that Hector F. was brought to the hospital involuntarily on May 22, 2020, where he was examined, pursuant to Mental Hygiene Law § 9.39, by a Bellevue psychiatrist (see writ, exhibit A). Petitioner alleges that within 48 hours of that date, as of May 24, 2020, Mr. F. had not yet received the second, independent, psychiatric examination, as mandated by Mental Hygiene Law § 9.39 for an involuntary admission (see exhibit A, Office of Mental Health [OMH] form OMH 474, § III [Examination to Confirm Need for Extension of Emergency Admission Beyond 48 Hours]). The writ seeks immediate release of Mr. F., alleging that "personal examination by a confirming psychiatrist is required to legally admit someone [involuntarily] to a hospital pursuant to [Mental Hygiene Law] § 9.39 . . . and [without this examination], Hector F.'s purposed admission pursuant to [Mental Hygiene Law] § 9.39 is illegal, and his continued retention improper and unlawful" (writ at 2), an incurable due process violation.

Respondent opposes the release on three separate grounds: (i) a confirming examination by a psychiatrist was done on the fourth day (although not the second day), which allegedly cured the "inadvertent omission" that was "recognized and rectified," or (ii) although the confirming examination page of form OMH 474, § III (Examination to Confirm Need for Extension of Emergency Admission Beyond 48 Hours) remained unfilled, treatment by Dr. P. on the second day (May 23, 2020) satisfied Mental Hygiene Law § 9.39, and (iii) not "every violation" of the statute "amounts to a due process violation or will entitle a patient to a writ of habeas corpus," and that these "omissions" do not rise to the level necessary to grant the writ.{**69 Misc 3d at 193}

On the day Mr. F. was brought to the hospital, May 22, 2020, a Bellevue psychiatrist, Dr. G., examined Mr. F. The psychiatrist wrote that Mr. F. had a "history of bipolar disorder, multiple hospitalizations, . . . acutely manic, violent, impulsive, [unclear if "no" or "extrm"] threatening." (Writ, exhibit A, form OMH 474.)

As noted, Mental Hygiene Law § 9.39 (a) requires a second psychiatric confirmation within 48 hours: "Such person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital."

On the first day, May 22, 2020, Dr. G. signed the form confirming that the patient met the requirements of Mental Hygiene Law § 9.39 admission, although the second page, which should have contained the confirming form from a second psychiatrist, remained blank. (June 8, 2020 further response at 2.) In its further response, Bellevue alleges that on May 23, 2020 (one day later), the patient received treatment by Dr. P.

In permitted reply in support of the writ, it is alleged that Dr. P.'s treating notes indicate "cosign needed," apparently meaning that the doctor was either a resident or a fellow, and that [*2]Dr. P.'s treating notes were supposed to have been cosigned by an attending physician. No one cosigned for Dr. P. Petitioner asserts that Dr. P.'s treating review did not cure the due process violation, both pursuant to Mental Hygiene Law § 9.39 and related regulations, since Dr. P. was a treating doctor who simply noted another doctor's 9.39 admission certification, but did not personally perform the necessary psychiatric confirming examination required by Mental Hygiene Law § 9.39 and promulgated regulations as stated on the still empty (and detailed) form OMH 474. For example, Dr. P.'s note states that the patient was already "admitted on 9.39." Dr. P. did not confirm, as form OMH 474 would state above the (blank) signature,

"Based on such examination and the case history, I hereby confirm that there is reasonable cause to believe that the patient has a mental illness for which immediate care and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or herself or others. The facts stated and information contained herein are true to the best of my knowledge and belief." (Form OMH {**69 Misc 3d at 194}474.)

In addition, as stated in the reply in support of the writ, the hospital previously conceded that although Mr. F. received "treatment" during his first four days at the hospital, he did not receive the confirming second evaluation by a staff psychiatrist until the fourth day, May 26, 2020. Further, form OMH 474, which was provided to the patient, as statutorily required, provides important substantive legal information to the involuntary patient. (Mental Hygiene Law § 29.01; 14 NYCRR 15.1.)

Respondent contends that, even if Dr. P.'s notes are not sufficient to satisfy the 48-hour period required by statute, the required confirmation did in fact occur on the fourth day, May 26, 2020, and that Mr. F.'s status was "rectified" (see June 5, 2020 response at 1).

Mental Hygiene Law § 9.39 provides the following procedures for involuntary admission:

"(a) The director of any hospital maintaining adequate staff and facilities for the observation, examination, care, and treatment of persons alleged to be mentally ill and approved by the commissioner to receive and retain patients pursuant to this section may receive and retain therein as a patient for a period of fifteen days any person alleged to have a mental illness for which immediate observation, care, and treatment in a hospital is appropriate and which is likely to result in serious harm to himself or others. 'Likelihood to result in serious harm' as used in this article shall mean:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.

"The director shall cause to be entered upon the hospital records the name of the person or persons, if any, who have brought such person to the hospital and the details of the circumstances leading to the hospitalization of such person.

"The director shall admit such person pursuant to the provisions of this section only if a staff physician of the hospital upon examination of such{**69 Misc 3d at 195} person finds that such person qualifies under the requirements of this section. Such person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital. Such person shall be served, at the time of admission, with written notice of his status and rights as a patient under this section. Such notice shall contain the patient's [*3]name. At the same time, such notice shall also be given to the mental hygiene legal service and personally or by mail to such person or persons, not to exceed three in number, as may be designated in writing to receive such notice by the person alleged to be mentally ill. . . . [Further provisions regarding court review not relevant herein.]" (Mental Hygiene Law § 9.39 [emphasis added].)

There is no meaningful argument that the hospital complied with this requirement (id. ["person shall not be retained for a period of more than forty-eight hours unless within such period such finding is confirmed after examination by another physician who shall be a member of the psychiatric staff of the hospital" (emphasis added)]). Treatment by Dr. P. clearly did not constitute a confirmatory examination, and it does not appear in any case that Dr. P. necessarily qualifies as a "member of the psychiatric staff" of the hospital, instead, requiring a co-signature on Dr. P.'s treating notes, which co-signature was not in the treatment chart. Although a confirmatory examination did take place on the fourth day, it was not within the statutory time limit.

In 2015, the Court of Appeals in People ex rel. DeLia v Munsey held that certain due process violations of Mental Hygiene Law article 9 require granting a writ of habeas corpus, regardless of whether there is a later "cure" or whether the patient otherwise qualifies to be held involuntarily under the article. (26 NY3d 124 [2015].) In Munsey, the writ was granted due to the hospital's failure timely to apply to the court for continuation of involuntary retention of the patient, with the Court declining to assess the patient's eligibility under Mental Hygiene Law article 9: "[The Mental Hygiene Law provision] does not govern habeas proceedings where the right to release is premised upon unlawful process." (People ex rel. DeLia v Munsey, 26 NY3d 124, 132 [2015].) Where the patient's detention{**69 Misc 3d at 196} is "unauthorized" because the hospital has failed to comply with "statutory procedural requirements," the patient "may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state." (Id. at 130-131, 133.) A "patient may be involuntarily committed only where the standards for commitment and the procedures set forth in the Mental Hygiene Law—which satisfy the demands of due process—are met." (Id. at 132-133.) The Court in Munsey held that without the grant of the writ in that case, "the procedural due process protections guaranteed by [other] provisions of the Mental Hygiene Law" would be "null[ified]." (Id.)

The Court in Munsey also stated that its holding need not apply to every violation of the Mental Hygiene Law, and wrote of "significant" protections of the law:

"This is not to say that every violation of the Mental Hygiene Law amounts to a due process violation or will entitle a patient to a writ of habeas corpus but, '[w]ithout a court order of continued retention [in accordance with the Mental Hygiene Law], or the consent of the patient, the hospital must release the patient.' " (People ex rel. DeLia v Munsey, 26 NY3d at 133.)

"We cannot countenance, and the legislature surely did not intend, an interpretation of section 33.15 that would render meaningless such significant protections as are provided in Mental Hygiene Law article 9." (Id. at 134.)

The question in the instant case is whether a two-day gap in conducting the second examination, during which time Mr. F. continued to be involuntarily held in the hospital, is a "significant protection" provided in the Mental Hygiene Law, the violation of which would mandate an involuntary patient's release. There are several cases after Munsey, where the writ (as in Munsey) [*4]was based on failures to timely commence court proceedings, which were found to be due process violations entitling the patient to a writ of habeas corpus (e.g. Matter of State of N.Y. ex rel. Giffen v Hoffman, 161 AD3d 512, 513 [1st Dept 2018]; Matter of Krisleidy C., 60 Misc 3d 850, 851-853 [Sup Ct, Kings County 2018]). There is no allegation here of delay in bringing the case to court. The allegation is that only one, not two, psychiatrists conducted the official 9.39 examination{**69 Misc 3d at 197} of the patient within the first 48 hours, per Mental Hygiene Law § 9.39, and that instead, the second psychiatrist examined the patient on the fourth day of admission.

There does not appear to be any case after Munsey addressing whether the examination by a second psychiatrist on the fourth day, rather than on the second day, is a "significant" protection under Mental Hygiene Law article 9, or is instead the not "every violation of the Mental Hygiene Law" sufficient to "amount[ ] to a due process violation or . . . entitle a patient to a writ of habeas corpus" (Munsey, 26 NY3d at 133, 134). The court notes that at least one case even pre-Munsey found that where the second examination within 48 hours was conducted by a physician's assistant (and therefore was not sufficient under the statute to qualify as a second examination), it rendered the patient's initial retention in violation of the statute, and granted that patient's writ for release. (Matter of Mary Jane P., 9 Misc 3d 1054, 1058 [Sup Ct, Broome County 2005].)

Involuntary civil commitment relies on and defers to examining doctors, and therefore, it is at least as important if not more so that the doctors adhere to the Mental Hygiene Law § 9.39 protections than the court-access provisions in Munsey and its progeny. Indeed, the Second Circuit, in upholding Mental Hygiene Law § 9.39 (and related provisions) as facially constitutional, stated that although the wait until the 15th or 60th day before a court hearing (unless earlier requested by the patient or others) may have been unconstitutional otherwise, the presence of the statutes' professional checks was a meaningful protection that allowed the court to find Mental Hygiene Law § 9.39 constitutional:

"[Group of patient appellants] next argue that M.H.L. §§ 9.31 (right to a hearing for involuntary commitment pursuant to section 9.27) and 9.39 (emergency) violate due process by failing to require automatic preliminary probable cause hearings within forty-eight hours of admission, and full commitment hearings within five days of admission. Under the present scheme, persons admitted pursuant to section 9.27 may be hospitalized for up to sixty days without a judicial hearing, unless they request one; persons admitted pursuant to section 9.39 may be retained for up to fifteen days without a judicial hearing, unless requested. Were this the totality of the procedural scheme, we would indeed be inclined to question the statute's constitutional{**69 Misc 3d at 198} validity. However, there are numerous provisions in the statute for notice and hearing and reassessment of a patient's status by MHIS, medical personnel and judicial officers, and by a jury if so desired. On its face, this scheme reflects a careful balance between the rights of the individual and the interests of society. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 2461 & n. 28, 73 L.Ed.2d 28 (1982) . . .

"In this regard, as with our consideration of the overt act requirement, discussed supra, we find guidance in Addington v. Texas, where the Supreme Court recognized a distinction between civil commitment of the mentally ill and incarceration of convicted criminals. The Addington Court noted:

" 'It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction. . . . However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient's condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected.'

"441 U.S. at 428-29, 99 S.Ct. at 1810-11. In rejecting the reasonable doubt standard in the context of civil commitments, the Court continued, '[T]he reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment.' Id. at 432, 99 S.Ct. at 1812. The Court observed that '[a]s the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum.' Id. at 431, 99 S.Ct. at 1812. That some states have chosen to limit pre-hearing confinement to a shorter period does not mean that such a model 'is needed or is even adaptable to the needs of all states.' Id.

"In our view, given 'the layers of professional [and judicial] review' contained in the New York State Mental Hygiene Law's elaborate notice and hearing provisions, including notice to relatives and others{**69 Misc 3d at 199} designated by the patient, and the availability of a judicial hearing within five days of demand by the patient, relative or friend, as well as habeas corpus relief, we find that the statute meets procedural due process minima." (Project Release v Prevost, 722 F2d 960, 974-975 [2d Cir 1983] [emphasis added].)

New York's statutory scheme for involuntary commitment may have been declared unconstitutional in Project Release v Prevost without the very "layers of professional review and observation" that the hospital did not conduct in the instant case. (Id. at 975.) This court cannot state that it is not a "significant" due process violation to fail to provide the very protections that were cited in the finding that the law was constitutional.

Similarly, in a case where admitting doctors were alleged to have followed the objective criteria of Mental Hygiene Law § 9.39 (correct number of doctors consulting at the correct times), nevertheless, the admitted patient later sued, alleging that the doctors failed to apply the correct medical standard to the examination itself, which the Second Circuit held was required under "due process." The federal appellate court stated that the trial court "correctly" interpreted section 9.39 as

"implicitly defer[ring] to medical judgment, and it correctly construed that section as requir[ing] a physician to make a medical decision, guided by standards that are generally accepted within the medical community. Implicit in § 9.39's requirement that the decision be made by a physician is the premise that the decision will be made in accordance with the standards of the medical profession. Though committing physicians are not expected to be omniscient, the statute implicitly requires that their judgment—affecting whether an individual is to be summarily deprived of her liberty—be exercised on the basis of substantive and procedural criteria that are not substantially below the standards generally accepted in the medical community. Due process requires no less." (Rodriguez v City of New York, 72 F3d 1051, 1062-1063 [2d Cir 1995] [internal quotation marks and citations omitted].)

Here, therefore, the court cannot find that noncompliance with the statutory requirements of timely evaluation by two independent hospital staff psychiatrists satisfies due process.{**69 Misc 3d at 200}

Although the hospital in the instant case attempted belatedly to rectify the missing staff psychiatrist confirmation, this failure deprived Mr. F. of his liberty by admitting him outside of the statute. This due process violation cannot be "rectified" days later, and as in Munsey, requires the granting of the writ. Because this appears to be an issue of first impression, with significant consequences for both this patient and other individuals, the court stays its order for 24 hours (through June 10, 2020, 4:00 p.m.) for the hospital to seek appellate relief if so advised.