Supreme Court, New York County, January 9, 2024

Marvin Bernstein, Mental Hygiene Legal Service (Jessica Heymach of counsel), for petitioner.

Garfunkel Wild, P.C. (Madelin Zwerling of counsel) for Gracie Square Hospital, respondent.

On December 4, 2023, the petitioner, B.L., brought a writ pursuant to article 70 of the Civil Practice Law and Rules.^[FN1] This writ was argued before this court on December 6, 2023.

On November 7, 2023, the petitioner was arrested and brought by the New York Police Department (NYPD) to New York Presbyterian Columbia's Comprehensive Psychiatric Emergency Program (CPEP) for a psychiatric evaluation pursuant to the Mental Hygiene Law.^[FN2] At the CPEP, two psychiatrists evaluated the petitioner and completed an admission [*2]form generated by the N.Y. Office of Mental Health (OMH).^[FN3] The first psychiatrist examined the petitioner within six hours of arrival to the CPEP, as statutorily required, and found that the petitioner "may have a mental illness for which immediate observation, care and treatment is appropriate, and which is likely to result in serious harm to the person or others." (See Mental Hygiene Law § 9.40.) The CPEP timely extended Mr. B.L.'s observation period for up to 72 hours when a second psychiatrist confirmed the need for his ongoing observation, finding that he continued to meet the statutory criteria for such. (Id.)

The 72-hour observation period of Mr. B.L. expired on November 10, 2023. Prior to the expiration of the 72-hour observation period, two psychiatrists evaluated the petitioner pursuant to Mental Hygiene Law § 9.27 to determine whether {**82 Misc 3d at 848}inpatient care was essential to the petitioner's welfare.^[FN4] (See Mental Hygiene Law § 9.27.) The two examining psychiatrists opined that the petitioner met the statutory criteria for admission for up to 60 days and completed the psychiatric certificates that are contained within a Mental Hygiene Law § 9.27 application for psychiatric admission. After the completion of the two physician certificates, an admitting facility is required to ensure that a patient is evaluated forthwith by a third physician whose role is to confirm whether, or not, the patient meets the admission criteria of Mental Hygiene Law § 9.27 and is in need of involuntary psychiatric admission as opined by the prior two examining physicians. (See Mental Hygiene Law § 9.27 [e] [requiring that "(t)he director of the hospital where such person is brought shall cause such person to be examined forthwith by a physician who shall be a member of the psychiatric staff of such hospital other than the original examining physicians whose certificate or certificates accompanied the application and, if such person is found to be in need of involuntary care and treatment, he may be admitted thereto as a patient as herein provided"].)

The petitioner received a confirmation examination on November 16, 2023, six days after the conclusion of his prior Mental Hygiene Law retention^[FN5] status, when he was transferred to Gracie Square Hospital which is where he was hospitalized at the time this writ was filed.

The petitioner alleged that his handcuffing from November 7, 2023, until he was released at his arraignment on November 16, 2023, was in violation of the Mental Hygiene Law and the New York Codes, Rules and Regulations that govern physical restraints of psychiatrically hospitalized patients. Petitioner{**82 Misc 3d at 849} also asserted that his due process rights were violated when he was held without a fully completed Mental Hygiene Law retention status from November 10, 2023, until [*3]November 16, 2023.^[FN6] Respondent cited the requirement that the application for admission pursuant to Mental Hygiene Law § 9.27 be completed within 10 days prior to such admission to assert that the statutorily required confirmation examination was timely performed or should be considered as having been performed forthwith. (See Mental Hygiene Law § 9.27 [b].) The respondent also argued that Gracie Square was the admitting facility and not New York Presbyterian Columbia's CPEP and that Gracie Square Hospital performed the confirmation examination forthwith as it was performed on the day the petitioner arrived at Gracie Square Hospital.

In People ex rel. DeLia v Munsey (26 NY3d 124 [2015]), the Court of Appeals established that, in addition to proceeding under the writ provision contained in the Mental Hygiene Law, a patient admitted under the Mental Hygiene Law has the right to bring a CPLR writ when the person is alleging illegal detainment based on a violation of their due process rights. (Munsey at 130-134.) The Court opined that the right to bring a CPLR writ was necessary to ensure patients receive the procedural due process provisions contained in the Mental Hygiene Law. (Id. at 132-133 [stating that "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"].) The Court found that not "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.' " (Id. at 133, quoting Project Release v Prevost, 722 F2d 960, 967 [2d Cir 1983].) It is important to note that the very constitutionality of the Mental Hygiene Law is based on the due process protections it contains, specifically the various{**82 Misc 3d at 850} levels of professional and judicial review and its notice provisions, just to name a few. (See Project Release at 974-975.)

A. Physical Restraint

The petitioner alleged he was unlawfully physically restrained between November 7, 2023, and November 16, 2023. Mental Hygiene Law § 33.04 and NY Codes, Rules and Regulations at 14 NYCRR 526.4 govern when a patient is permitted to be physically restrained at certain facilities.^[FN7] These provisions mandate that such bodily restraint shall be authorized by a physician's written order and is a last resort when such intervention is necessary to prevent an "imminent, serious injury to the patient or others" and shall be discontinued when no longer necessary to prevent the emergency. (See 14 NYCRR 526.4 [b] [1] [i].) The regulations further provide that "[r]estraint or seclusion for any purpose shall never be utilized as punishment, for the convenience of staff, to substitute for inadequate staffing, or as a substitute for treatment programs." (See id. § 526.4 [b] [2].)

This is not the first time this court has been presented with an arrested psychiatric patient who was admitted to a hospital pursuant to the Mental Hygiene Law being handcuffed to a bed [*4]for days while awaiting arraignment. (See J.W. v Anthony, 79 Misc 3d 1201[A], 2023 NY Slip Op 50508[U] [Sup Ct, NY County 2023] [finding that J.W. was handcuffed for 11 days while awaiting arraignment].) In both the instant matter and J.W. v Anthony, the arrestee is hospitalized in a facility where there are statutory and regulatory provisions governing under what emergency situations a patient may be physically restrained while in these facilities. These provisions limit the use of restraints to when "less restrictive interventions have been utilized and determined to be ineffective, or in rare instances where the patient's dangerousness is of such immediacy that less restrictive interventions cannot be safely employed." (See 14 NYCRR 526.4 [b] [1] [i]; Mental Hygiene Law § 33.04.)

At the time the allegation of illegal restraint was brought before this court such physical bodily restraint had ceased{**82 Misc 3d at 851} weeks prior. Thus, this is not an issue that is currently before this court for its determination.

B. Application for Admission

The court will now examine whether the statutorily required confirmation examination by a third physician pursuant to Mental Hygiene Law § 9.27 was completed forthwith. (See Mental Hygiene Law § 9.27.) There are Mental Hygiene Law provisions that delineate a specific number of hours in which admission evaluations must occur. (See Mental Hygiene Law §§ 9.37, 9.39, 9.40.) However, Mental Hygiene Law § 9.27 does not provide any guidance on what time period constitutes forthwith. While there are numerous judicial opinions determining what does or does not constitute a due process violation that may warrant outright release pursuant to the Court of Appeals' decision in Munsey, this court is not aware of any written decision that addresses what time period does or does not constitute forthwith pursuant to Mental Hygiene Law § 9.27.

When a statutory term is undefined, courts look to "construe words of ordinary import with their usual and commonly understood meaning" and regard "dictionary definitions as useful guideposts in determining the meaning of a word or phrase." (Matter of Walsh v New York State Comptroller, 34 NY3d 520, 524 [2019] [internal quotation marks omitted], quoting Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 [2019].) The word forthwith is typically defined as "1. Immediately; without delay. 2. Directly; promptly; within a reasonable time under the circumstances; with all convenient dispatch." (Black's Law Dictionary 796 [11th ed 2019].) While forthwith is not defined under Mental Hygiene Law § 9.27, the statute's other strict time periods pertaining to admission evaluations can also be instructive. A statute also "must be construed as a whole and . . . its various sections must be considered together and with reference to each other." (Matter of Walsh, 34 NY3d at 524, quoting Matter of New York County Lawyers' Assn. v Bloomberg, 19 NY3d 712 [2012].)

Respondent argued that the application for admission on medical certification must be completed within 10 days of admission. (See Mental Hygiene Law § 9.27 [b].) However, this provision clearly applies to the recency requirement of the certificates attached to the application and not the statutory requirement for a third physician to conduct a confirmation examination{**82 Misc 3d at 852} forthwith. (See Mental Hygiene Law § 9.27 [b], [e].)^[FN8] Petitioner, on the other hand, asserted that Mental Hygiene Law § 9.27 admission including the forthwith confirmation examination had to be finalized before Mr. B.L.'s prior retention status under Mental Hygiene Law § 9.40 concluded or else the petitioner would not be legally retained [*5]under Mental Hygiene Law § 9.27 and would thus be held outside the Mental Hygiene Law. However, the statute explicitly provides that a person may be retained based upon the admission application until the confirmation examination is completed forthwith. (See Mental Hygiene Law § 9.27 [a], [e]; Matter of Rueda v Charmaine D., 17 NY3d 522, 527 [2011] [discussing the relationship between Mental Hygiene Law § 9.39 and Mental Hygiene Law § 9.27, finding that a person can be initially admitted under either section and ruling that an emergency room physician can be an applicant despite not being listed as one of the categories of potential applicants under Mental Hygiene Law § 9.27 stating that "(t)he list of proposed applicants in section 9.27 (b) seems to us a legislative attempt to describe categories of people likely to have a sincere and legitimate interest in the well-being of the person they are seeking to have committed"].)

The respondent contended that the Mental Hygiene Law § 9.27 confirmation examination applies to Gracie Square Hospital where the petitioner is currently hospitalized and not the CPEP where the petitioner was retained for six days on a pending application for admission pursuant to Mental Hygiene Law § 9.27.

Conclusion

Mr. B.L. asserted that he was held without legal authority and in violation of his due process rights. Thus, pursuant to the Munsey decision, this matter was appropriately brought before this court pursuant to article 70 of the CPLR. (Munsey at 130-131.)

The court finds in this case that six days before the completion of the statutorily required confirmation psychiatric examination to determine whether, or not, the petitioner required involuntary admission does not meet the statute's requirement that such examination occur forthwith pursuant to Mental Hygiene Law § 9.27. The court further finds that being retained{**82 Misc 3d at 853} for those six days without the statutorily required forthwith psychiatric confirmation examination to determine whether the petitioner met the criteria for such admission^[FN9] constituted a due process violation. In light of the finding that a due process protection of the Mental Hygiene Law was violated^[FN10] in this matter and pursuant to People ex rel. DeLia v Munsey, this court granted this writ on December 6, 2023, and ordered Mr. B.L.'s release.^[FN11]