Supreme Court, New York County, November 18, 2018

Letitia James, Attorney General, New York City, for petitioner.

Mental Hygiene Legal Service, First Judicial Department, New York City, for respondent.

Respondent Lisette N. was found unfit to stand trial under CPL article 730, on a charge of assault in the second degree, and was committed to the custody of the Office of Mental Health, for a period of one year, pursuant to a commitment order dated May 17, 2018. As a result, on May 23, 2018, respondent was admitted to and is currently a patient at Kirby Forensic Psychiatric Center.

On or about June 7, 2018, Kirby filed an order to show cause and petition to authorize Kirby physicians to medicate respondent, over her objection, in accordance with Rivers v Katz (67 NY2d 485 [1986]). A hearing was held before this court, at which it was determined that respondent lacked capacity to determine the course of her own treatment and, thus, a treatment over objection order was issued, dated June 13, 2018. A discussion ensued on the duration of such order.

Kirby argued for a nondurational treatment order to last the duration of the respondent's retention on an involuntary status, which counsel for respondent opposed. The court issued an order, with a duration of one year from the date of such order, without prejudice, to the receipt of written submissions on the issue. The parties have since supplied written submissions and petitioner Kirby's application to amend the June 13, 2018 treatment order to extend its validity for the duration of respondent's retention on an involuntary status is addressed herein.

In support of its request, Kirby argues, in its one-page submission, that "it would serve no useful purpose under New York Law" to require outer limits on treatment over objection orders. Kirby maintains that it would be harmful to patients to disrupt their continuity of care if a hospital was required to commence proceedings, at the expiration of each retention order, when treatment over objection was warranted beyond a particular period of retention. Kirby also argues that, if [*2]respondent's status is changed from involuntary to voluntary, the treatment order will expire by its own terms, as provided in 14{**63 Misc 3d at 351} NYCRR 27.8.^[FN2] Additionally, Kirby's counsel asserts that "if the patient gains insight into his or her mental illness and the need to receive psychiatric treatment, the redundant treatment order will not harm him or her" (Kirby submission). Kirby further argues, without submitting any factual support, that it would create an unreasonable burden for hospitals if a facility was required to seek a new treatment order for every retention period and for every change in involuntary status of their patients.

In opposition to Kirby's request to amend the June 13, 2018 treatment order, respondent maintains that (1) this court lacks subject matter jurisdiction to order medication beyond the length of the underlying one year commitment order that confers jurisdiction on the court; (2) the issuance of a nondurational treatment order in this matter would violate respondent's due process rights and go against Rivers v Katz (67 NY2d 485 [1986]), which requires that this court consider "the permissible duration of forced medication" and "the proper length of its use" when issuing an order for forcible treatment (id. at 498); (3) issuing a nondurational treatment order, as proposed by Kirby, would violate the justiciability doctrine on the issue of "ripeness"; and (4) a nondurational treatment order would be based upon "events that may not have occurred," thus making Kirby's request for a nondurational order tantamount to asking the court for an "advisory opinion," which would be inconsistent with the justiciability doctrine (affirmation of Diane G. Temkin, July 24, 2018, ¶¶ 4, 14).

Discussion

The Court of Appeals has stated:

"[I]t is clear that neither mental illness nor institutionalization per se can stand as a justification for overriding an individual's fundamental right to refuse antipsychotic medication on either police power or parens patriae grounds. Rather, due process requires that a court balance the individual's liberty interest against the State's asserted compelling need on the facts of each case to determine whether such medication may be forcibly administered." (Rivers v Katz at 498.)

Where, as here, a court has found incapacity sufficient to warrant involuntary treatment or medication, such{**63 Misc 3d at 352}

"court must [then] determine whether 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" (Rivers v Katz, 67 NY2d at 497-498).

As part of the constitutionally-required inquiry under Rivers, "the need is for the particular drug" and, inter alia, "the proper length of its use" is to be considered (id. at 498). It is the State that bears "the burden to establish by clear and convincing evidence that the proposed treatment meets [the Rivers] criteria" (id. at 498).

Further, with respect to the nondurational treatment order requested by Kirby herein, arguably, such an order may be appropriate "where it is established [by clear and convincing [*3]evidence] 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" (Matter of Radcliffe M., 155 AD3d 956, 958 [2d Dept 2017] [citations omitted]). Generally, however, " 'the finding that a mentally ill person is unable to make a reasoned decision as to [a] proposed treatment does not constitute a determination binding in futuro' " (Matter of Rhodanna C.B., 36 AD3d 106, 110 [2d Dept 2006] [emphasis added], citing Matter of New York Presbyt. Hosp., Westchester Div. [J.H.L.], 181 Misc 2d 142, 149 [Sup Ct, Westchester County 1999]). Notably, it is recognized by courts that there is a potential for change in the mental status of a person initially found to be incapable to make a medical treatment decision (see Rivers v Katz, 67 NY2d at 498 ["it may well be that the need (to medicate) would continue only for so long as the dangerous condition exists"]; Matter of Rhodanna C.B., 36 AD3d 106, 111 [2d Dept 2006] ["a person's mental capacity can change over the course of time, and due process requires that the question of capacity be evaluated each time the administration of psychotropic medication . . . is proposed over the (person's) objection"]; Matter of New York Presbyt. Hosp., Westchester Div. [J.H.L.], 181 Misc 2d at 149-150 ["there is . . . potential for change in the mental status of a person found to be incapable of deciding a medical treatment issue for (him or herself)"]).

Here, while respondent's incapacity was previously determined by this court, Kirby's request to extend the validity of{**63 Misc 3d at 353} the June 13, 2018 treatment over objection order, beyond the current one year retention order, for the duration of respondent's retention on an involuntary status, is denied, as Kirby failed to establish, by clear and convincing evidence, that under the within facts and circumstances a nondurational treatment order is "narrowly tailored to give substantive effect to [respondent's] liberty interest" (Rivers at 497-498; see also Matter of Radcliffe M., 155 AD3d at 959). Significantly, Kirby has supplied no medical evidence to support its application for the subject treatment order to be extended for the duration of respondent's detention on an involuntary status. Further, Kirby "failed to establish that [respondent's] ability to make reasoned decisions regarding [her] own treatment will be restored with treatment and that a nondurational order would therefore be appropriate" (Matter of Radcliffe M., 155 AD3d at 959 [citations omitted]).

Kirby's conclusory contention that it would face "enormous burdens" if required to commence Rivers hearings for the continued treatment over objection at the expiration of commitment orders is not a sufficient basis to warrant the infringement of respondent's rights, under Rivers, with the facts supplied herein. Further, Kirby's counsel's assertion that any unneeded psychiatric treatment would "not harm" respondent is also not supported by medical testimony, nor any kind of evidence. As aptly noted in Matter of Rhodanna C.B. (36 AD3d 106, 111 [2d Dept 2006]), "a person's mental capacity can change over the course of time, and due process requires that the question of capacity be evaluated each time the administration of psychotropic medication or electroconvulsive therapy is proposed over the patient's objection." Based upon the above, this court need not address respondent's other arguments proffered for the denial of Kirby's application.

Accordingly, it is ordered that petitioner Kirby's application to extend the time period of the June 13, 2018 order for the duration of respondent Lisette N.'s retention on an involuntary basis is denied.

After the expiration of the current treatment over objection order, which coincides with the duration of the current commitment order, petitioner may commence a new proceeding, if [*4]appropriate, returnable to the presiding Mental Hygiene Justice, to continue the treatment over respondent's objection, if necessary.