NYSBA Health Law Section Annual Meeting. January 27, Developments in Behavioral Health Law

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1 1111 Marcus Avenue - Suite 107 Lake Success, New York Telephone: (516) Fax: (516) NYSBA Health Law Section Annual Meeting January 27, 2016 Developments in Behavioral Health Law Carolyn Reinach Wolf, Esq. cwolf@abramslaw.com Jamie A. Rosen, Esq. jrosen@abramslaw.com

2 Developments in Behavioral Health Law Carolyn Reinach Wolf, Esq. and Jamie A. Rosen, Esq. I. RECENT NEW YORK COURT OF APPEALS CASE People ex rel. DeLia v. Munsey, 2015 NY Slip Op 07697; Decided on October 22, State Law Prior to Munsey: o If a hospital filed for continued retention outside of the limitations in NY Mental Hygiene Law (MHL) Article 9, the patient s remedy was an immediate hearing on the issue of mental illness and danger. o Likewise, if there were procedural errors in the legal status of the patient, (e.g. untimely conversion to involuntarily status pursuant to MHL 9.27; untimely psychiatrist confirmation; forms not filled out correctly, etc.), the remedy was an immediate hearing on the merits to determine if the patient met the criteria for involuntary commitment. Facts of Munsey o Hospital properly committed the patient. o Hospital sought the continued retention of the patient pursuant to MHL o Patient agreed to a 3-month retention. o During hospitalization, the patient was extremely violent, hitting patients, threatening to kill staff and patients, stabbing a staff member in the neck with a pen, and climbing on top of his treating psychiatrist and beating him. o At the expiration of the 3-month retention, the hospital failed to timely file for the continued retention of the patient pursuant to MHL o Six weeks after the agreed 3-month retention order expired, Mental Hygiene Legal Service (MHLS) filed a Writ of Habeas Corpus pursuant to CPLR Article 70, seeking the immediate release of the patient. o The hospital filed a belated 9.33 application to retain the patient after receiving the Writ. Procedural Background: o Supreme Court Queens County granted MHLS Writ of Habeas Corpus and ordered the release of the patient, but stayed the release for five days. o The Hospital obtained an emergency stay from the Appellate Division 2 nd Department staying the Court s release order until the appeal could be heard. o The Appellate Division unanimously overturned the Supreme Court s decision. o The Court relied upon prior precedent indicating that the proper remedy was an immediate hearing on the merits and not the patient s release. o MHLS appealed to the Court of Appeals, based upon constitutional grounds. 2

3 Issues at play in the Court of Appeals Decision: o MHL Writ (which calls for a hearing on the merits) versus a CPLR Writ. o Whether or not the continued retention of a patient beyond the time limitations of Article 9 results in a per se procedural and/or substantive due process violation. Court of Appeals Decision o The Court overturned years of Appellate Division case law requiring a hearing on the merits where there is a violation of Article 9. o The Court concluded that patients must have access to the CPLR Writ of Habeas Corpus and that MHL only applies in situations where the patient affirmatively seeks his release arguing that he is no longer mentally ill or dangerous with a valid court order retaining the patient. o The court states 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. (emphasis in original). o This would lead one to believe that any violations of the Mental Hygiene Law in the commitment process, whether it be an untimely filing or a failure to complete commitment forms correctly, will result in the release of the patient. o Precisely what violations will result in a Writ and what violations will not is uncertain and will be fodder for future appellate litigation. Risk Management Practices o Clinical and administrative activities to identify, evaluate, prevent, and control the risk of injury to patients, staff, visitors, volunteers, and others and to reduce the risk of loss to the Hospital itself. Record keeping. Monitor deadlines. Admission dates, status changes, court appearances, etc. Training/education. Supervision. II. DUTY TO WARN Overview o Most states have laws that either require or permit mental health professionals to disclose information about patients who may become violent o California 1976 Tarasoff v. The Regents of the University of California The Court held, [w]hen a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. o This case triggered passage of duty to warn or duty to protect laws in almost every state. 3

4 1984 New York passed a Tarasoff exception to its patient-therapist confidentiality laws. 1 o MHL remains in effect and covers a Duty to Warn. o MHL protects the confidentiality of clinical records that are maintained at facilities licensed or operated by New York s OMH or OPWDD o Several provisions of MHL give practitioners the authority to warn NEW YORK IS A MAY WARN STATE (versus a must warn state) NY SAFE Act (Secure Ammunition and Firearms Enforcement Act) of 2013 o The SAFE Act is a gun control statue that substantially strengthens rules governing access to firearms and ammunition. o The SAFE Act also imposes a mandatory duty for mental health professionals to report when they believe patients may pose a danger to themselves or others. o The SAFE Act created a new subdivision of the Mental Hygiene Law Under the legislation, certain mental health professionals are required to report to their local Director if Community Services (DCS) or his/her designees when, in their reasonable professional judgment, an individual that are treating is likely to engage in conduct that will cause serious harm to him or herself or others. Mental health professionals includes psychiatrists, psychologists, licensed clinical social workers and registered nurses. The SAFE Act protects therapists from both civil and criminal liability for failure to report if that act in good faith. o Disclosure under SAFE Act is NOT a HIPAA violation since it is required by law. III. MENTAL HYGIENE WARRANTS A Mental Hygiene Warrant is intended for individuals who are at risk to themselves or others and are non-compliant with attempts by family, friends, etc. to obtain proper treatment. The court procedure involves petitioning the court to issue a civil warrant to bring the Allegedly Mentally Ill Person to Court for a hearing. At the hearing the Court determines if he/she currently poses a danger to self or others and should be remanded by Court Order to a psychiatric emergency room for immediate evaluation not to exceed 72 hours. 3 1 N.Y. MENT. HYG. L (c)(6). 2 N.Y. MENT. HYG. L N.Y. Mental Hyg. Law At any time during the 72-hour period, the patient may, if appropriate, be admitted as a voluntary or involuntary patient. 4

5 IV. ASSISTED OUTPATIENT TREATMENT (AOT) LAW ( KENDRA S LAW ) What is AOT? o Court-ordered outpatient treatment plan for certain people with mental illness who, in view of their treatment history and present circumstances, are unlikely to survive safely in the community without supervision. 4 o AOT is intended to assist mentally ill individuals live and function in the community and to attempt to prevent a relapse or deterioration that may be reasonably predicted to result in suicide or the need for hospitalization. 5 o Outpatient services include, but are not limited to: case management services or assertive community treatment team services to provide care coordination; medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; education and vocational training or activities; alcohol or substance abuse treatment and counseling; periodic tests for the presence of alcohol or illegal drugs; and supervision of living arrangements. 6 What are the criteria for a person to be eligible for AOT? 7 o 18 years of age or older; and o Suffering from a mental illness; and o Unlikely to survive safely in the community without supervision; and o History of lack of compliance with treatment, that has in the past (within the time periods specified in the statute) necessitated hospitalization or resulted in violent behavior or threats of serious physical harm; and o Would unlikely voluntarily participate in outpatient treatment; and o In light his/her treatment history and current behavior, is in need of AOT in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others. o Is likely to benefit from AOT. The NY SAFE Act significantly modified Kendra s Law o Extends the expiration of Kendra's Law through 2017 o Amends the law by: Extends the duration of the initial AOT order from 6 months to one year; Requires an AOT order to follow a person from one county to another if he or she changes residence; Requires a review before the AOT order for a mentally ill inmate is terminated; and Requires the Office of Mental Health to conduct an AOT assessment when a state prisoner is being discharged to the community from an OMH hospital. 4 N.Y. MENT. HYG. L (1999). 5 N.Y. MENT. HYG. L. 9.60(a)(1). 6 Id. 7 N.Y. MENT. HYG. L. 9.60(c). 5

6 V. MENTAL ILLNESS, GUN VIOLENCE, AND STIGMA The number of people with mental illness who may pose a danger to themselves or others constitute and exceedingly small percentage of the overall population. Statistics o 95% of violence with guns is committed by people who do not have a mental health issue. 8 o People with mental illnesses are responsible for no more than 5% of all violent acts in the US. 9 o The vast majority of crime is not committed by people with any mental illness. The media s portrayal of people with mental illness solidifies the perception they should be avoided or feared due to their propensity for violence. (i.e., James Holmes photos in the news after the Aurora, Colorado shootings; a news reporter describing an armed suspect as being mentally ill ; images of Seung-Hui Cho holding a gun to his head or posing with his arms extended holding pistols). o Seeks to incite fear, rather than understanding. It is undeniable that persons who have shown violent tendencies should not have access to weapons that could be used to harm themselves or others. However, notions that mental illness caused any particular shooting, or that advance psychiatric attention might prevent these crimes, are more complicated than they often seem. 10 If it turns out that mental illness was in fact the cause of violence, reporting the root cause of the event is necessary. That means uncovering why a person with serious mental illness may have fallen through the healthcare safety net. Were they identified as mentally ill? Did they seek treatment? Was treatment available to them? Would they have benefitted from assisted outpatient treatment? Did the stigma of mental illness prevent this person from seeking treatment? These are the real questions that need to be asked and answered. 8 Mary Winter, Massacres Revive Debate on Involuntary Commitment, Better Treatment, Solutions (Feb. 27, 2013) available at 9 Jeffrey Young, Mental Health Solutions Alone Can t Thwart Gun Violence, Experts Say, Huffington Post (Jan. 31, 2013, 8:11 AM), available at 10 Jonathan M. Metzl and Kenneth T. MacLeish, Mental Illness, Mass Shootings, and the Politics of American Firearms, 105(2) AM. J. PUB. HEALTH 240 (2015), available at 6