The following papers were read in connection with the petition of Mid-Hudson Forensic Psychiatric Center for authorization to administer medication over objection:

PAPERS NUMBERED

Notice of Petition/Petition/Affidavits/Evaluation for Treatment1-5

Upon the foregoing papers, the decision and order of the court is as follows:

This is a proceeding brought on by Mid-Hudson Forensic Psychiatric Center ("MHFPC") for permission to administer a psycho tropic drug to patient K. R. without his consent. The court conducted a hearing on August 31, 2011. Phone M. Win, M.D. testified in support of the petition. K. R. testified on his own behalf.

The 54 year old respondent has a 30 plus year history of psychiatric and penal confinement. He was admitted on June 22, 2011 to MHFPC following a civil commitment to Bronx State Psychiatric Hospital due to his allegedly violent behavior and for stabilization and treatment. The instant petition requests permission to administer the antipsychotic medication, Clozapine, to which K. R. objects. He has been compliant in taking nearly all medications requested of him, but objects to taking Clozapine because of the side effects of drooling and possible blood dyscrasias, such as low white blood cell count.

The Court of Appeals, in analyzing whether a person suffering from a mental illness has a liberty interest in deciding upon a course of treatment that can affect his privacy, held in the leading case of Rivers v. Katz, 67 NY2d 485 (1986) that:

We conclude, however, that neither the fact that appellants

are mentally ill nor that they have been involuntarily committed,

without more, constitutes a sufficient basis to conclude that

they lack the mental capacity to comprehend the consequences

of their decision to refuse medication that poses a significant

risk to their physical well-being. Indeed, it is well accepted that

mental illness often strikes only limited areas of functioning,

leaving other areas unimpaired, and consequently, that many

mentally ill persons retain the capacity to function in a competent

manner (citations omitted). Nor does the fact of mental illness

result in the forfeiture of a person's civil rights, including the

fundamental right to make decisions concerning one's own body

(citations omitted).

67 NY2d at 493-494Further, the burden is upon the State to demonstrate by clear and convincing evidence that K. R. lacks the capacity to make a treatment decision. "If, after duly considering the State's proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure (see, Judiciary Law §35[4]), the court determines that the patient has the capability to make his own treatment decisions, the State shall be [*2]precluded from administering

antipsychotic drugs. Id. at 497.

The court finds that the State has not demonstrated by clear and convincing evidence that K. R. lacks capacity to make a treatment decision. The conclusion reached herein does, in effect, also take into consideration the additional directive in Rivers v. Katz, to make a determination whether the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest protected by the due process clause of the New York State Constitution (art. I, §6 ), 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. Rivers v. Katz, supra at 496-497. The court is not convinced that the administration of Clozapine at this time is narrowly tailored to respondent's treatment, and to his present needs and best interests, or is essential to the protection of respondent or others with whom he is in contact.

Accordingly, the petition to administer the antipsychotropic medication, Clozapine, over objection is denied, provided respondent remains compliant with taking the other prescribed medications concurrently a part of his regimen. This order is without prejudice to renew upon a showing of a change of circumstances, including, but not limited to, new and additional allegations that respondent is a danger to himself or others such that the circumstances warrant further review by the court.

The foregoing constitutes the decision and order of the court.

Dated: Goshen, New York

September 15, 2011

LAWRENCE H. ECKER, J.S.C.