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IN RE: the Application of Adam KARPATI, M.D., in His Capacity of Director of Community Services of the Department of Health and Mental Hygiene, Petitioner, v. For an Order Authorizing Assisted Outpatient Treatment for Raphael N., Respondent.
The Decision/Order on this application is as follows:
The captioned matter was brought by Petitioner, Adam Karpati, M.D. in his capacity as Director of Community Services of the Department of Health and Mental Hygiene (hereinafter “Petitioner” or “Department of Health”) for an order requiring Assisted Outpatient Treatment (“AOT”) for the Respondent, Raphael N. The Assisted Outpatient Treatment legislation is contained in section 9.60 of the Mental Hygiene Law and was adopted by New York State in 1999. The Legislation is commonly known as “Kendra's Law”.
Respondent, Mr. N., is represented by Mental Hygiene Legal Services (“MHLS”) by Sara Rotkin, Esq. A motion in limine has been brought by MHLS, on behalf of the Respondent, seeking to preclude “any representative of the Petitioner from using collateral estoppel, or introducing into evidence any prior order subjecting Raphael N. to assisted outpatient treatment either directly, as documentary evidence, or indirectly, through the testimony of any witness, to establish proof of any criteria under MHL 9.60 (c)”. (See Respondent's Notice of Motion in Limine).
Petitioner Department of Health opposes the motion and responds that the Court may and should consider prior orders issued by the Court which made certain findings pertaining to the criteria necessary for issuance of an AOT order and, inter alia, deem those requirements fulfilled by utilizing collateral estoppel principles.
For the reasons set forth below, the Court finds that certain elements of Section 9.60 of the Mental Hygiene Law (“MHL”) that require proof by clear and convincing evidence, may be proven by introduction of prior orders issued by the Court in earlier AOT proceedings.
There is very little factual dispute concerning the AOT history of Mr. N., the Respondent herein. An AOT order was issued by Kings County Supreme Court on two separate occasions for Mr. N.. On January 2, 2013, the first AOT petition was brought by Department of Health and a six (6) month AOT order was granted by Justice Richard Velasquez.
A second AOT order was signed (prior to the expiration of the 1st order) by Hon. Carl J. Landecino on June 19, 2013, which ordered continued AOT treatment for an additional six (6) months to January 2, 2014.
Both sides have a somewhat different interpretation of the facts at the point that the second AOT order was set to expire. Department of Health claims that it had notified Mr. N. for a medical evaluation on October 29, 2013 for a December 10, 2013 exam. The evaluation was adjourned at the behest of the Department of Health and a second notice, dated December 9, 2013 was sent to Mr. N. for an examination on December 17, 2013. Mr. N. failed to appear on the adjourned date on December 17, 2013. The Department of Health attributes the failure to renew the AOT order in a timely manner to the missed appointment by Mr. N. (see Aff. of Jacqueline Orcutt in Opposition to the Motion, par. 4).
In the MHLS recitation, MHLS simply states that Petitioner Department of Health “chose to allow” the AOT order to expire.
Regardless of the reason for the missed appointments, the inability to renew the AOT order in a timely manner has no bearing on the instant motion. The respective counsel both acknowledge that the order to show cause filed by Department of Health is deemed to be an initial order and not a renewal order.1
Having filed an initial order for AOT treatment, the petitioner must prove each of the seven elements set forth in the statute (see sec. 9.60 below). The order to show cause filed by the Petitioner was filed on February 5, 2014, after an examination of Mr. N. took place on January 30, 2014. Argument was heard before the undersigned on April 23, 2014.
The primary focus of this motion is whether collateral estoppel may be used to establish the existence of certain facts which are necessary to obtain an AOT order pursuant to Sec. 9.60 of the Mental Hygiene Law. By the application of collateral estoppel in this instance, the Petitioner would be able to offer the findings made in the first AOT order which was granted by Justice Richard Velasquez and avoid the burden of proving the elements in the current proceeding.
Petitioner argues that collateral estoppel is directly on point in this situation as it involves a determination of an issue of fact or law which was reached in a prior proceeding and applying the determination to a different cause of action (the instant proceeding) as the same issue was necessarily raised and decided previously.
The motion in limine brought by Respondent MHLS advocates that due process protection of the Respondent requires a de novo hearing to establish the existence of the elements of the statute. Furthermore, MHLS argues that a “look-back” is required by the examining psychiatrist to establish each element and consider whether the patient still requires the AOT treatment. Allowing for a current exam by a psychiatrist without establishing the criteria in the new proceeding would amount to “circumventing the statute's testimonial requirements” and, in the opinion of MHLS, collateral estoppel was never intended by the Legislature to satisfy the elements of Kendra's Law. (See Sara Rotkin Aff. in Support of Motion in Limine, par. 35).
Kendra's Law contains seven criteria which must be met for obtaining an AOT order in Section 9.60 (c) of the MHL. The applicable section reads as follows:
(C) Criteria. A person may be ordered to receive assisted outpatient treatment if the court finds that such person:
(1) is eighteen years of age or older; and
(2) is suffering from a mental illness; and
(3) is unlikely to survive safely in the community without supervision, based on a clinical determination; and
(4) has a history of lack of compliance with treatment for mental illness that has:
(i) prior to the filing of the petition, at least twice within the last thirty-six months been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any current period, or period ending within the last six months, during which the person was or is hospitalized or incarcerated; or
(ii) prior to the filing of the petition, resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any current period, or period ending within the last six months, in which the person was or is hospitalized or incarcerated; and
(5) is, as a result of his or her mental illness, unlikely to voluntarily participate in outpatient treatment that would enable him or her to live safely in the community; and
(6) in view of his or her treatment history and current behavior, is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others as defined in section 9.01 of this article; and
(7) is likely to benefit from assisted outpatient treatment.
It is now well settled that a petitioner must “prove at a court hearing, by clear and convincing evidence, that the patient meets each of the criteria in MHL 9.60 (c)”. Matter of James D., 185 Misc 2d 836, 839, 714 N.Y.S.2d 862 (Supreme Ct., Kings Co. 2000). There is no dispute on the part of the Petitioner that it has the burden of proving the elements listed in the statute. Towards this end the Department of Health has arranged for a psychiatric observation of Mr. N. and will arrange for the testimony of the appropriate doctor at the AOT hearing. Of the above listed criteria, the requirements of section 9.60 (c) (2), (3), (5), (6) and (7) pertain to issues that could only be resolved by the testimony of the examining psychiatrist based on a recent exam. Whether a person is suffering from a mental illness (element 2) or is unlikely to survive safely in the community (element 3) may only be proved with evidence from testimony of a witness based upon recent observation. Similarly the elements (5, 6 and 7) which require the Petitioner to prove whether the person will voluntarily comply with medication; and whether AOT is need to prevent a relapse or deterioration of the person; and whether the person is likely to benefit from AOT must be proven at the hearing in which the Court will consider the opinion of the examining psychiatrist.2
As pointed out in the Petitioner's opposition to the motion in limine, the current examination of the Respondent must occur no more than 10 days prior to the filing of the AOT petition. It is this examination which functions as a safeguard to ensure that Respondent's current condition is taken into consideration by the psychiatrist in forming their opinion. Based upon the requirement of a recent psychiatric examination, it is not realistic that the AOT petition would be granted based upon the past history of the Respondent alone. Instead the past history will be weighed together with the observations of the recent exam. It is therefore difficult for the Court to envision a denial of Mr. N.'s due process rights as the Court will preside over the hearing and the respective counsel will have a full opportunity to advocate for their clients.
Applicability of Collateral Estoppel
The Court notes that an AOT order was granted for Mr. N. after a hearing before the Hon. Richard Velasquez on January 2, 2013. Justice Velasquez rendered a determination that Mr. N. was hospitalized on two occasions as a result of non-compliance with mental health treatment. The order of Justice Velasquez was not appealed and neither was the AOT renewal order which was granted by Justice Landecino on June 19, 2013.
The limited purpose of introducing the prior order of Justice Velasquez to establish the Respondent's previous non-compliance with mental health treatment is, in this Court's opinion, a text book application of the principle of collateral estoppel.
There is an obvious identity of issue between the earlier hearing and the upcoming hearing as to whether Mr. N. failed to comply with his treatment and was hospitalized. It is also apparent that the issue was decided in the prior action and is decisive of the present action. Furthermore, as required by case law, “there has been a full and fair opportunity to contest the decision now said to be controlling”. Schwartz v. Public Adm'r of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); see also Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 414 N.Y.S.2d 308, 386 N.E.2d 1328 (1979).
It can not be said that Mr. N. did not have an opportunity to litigate this issue when it first was presented to Justice Velasquez nor can it be said that the issue (presently before the court) is not identical to the issue resolved in the prior hearing.
The Court has considered the argument raised by MHLS on behalf of Respondent, that the Court is required to assess historical evidence of change in a person's psychiatric condition over time (Rotkin Aff. par. 42). To properly accomplish this review, MHLS argues that collateral estoppel should not be available and that the trial court must review the entire history and establish the prior hospitalizations. In support of this position MHLS cites People ex re. Leonard H.H. v. Nixon, 148 A.D.2d 75, 543 N.Y.S.2d 998 (3d Dept. 1989). A review of the Nixon case offers no guidance in the current matter. Nixon involved a much different application of collateral estoppel (or the collorary res judicata). The petitioner in Nixon was released from a psychiatric facility pursuant to the order of the trial court and within 24 hours the petitioner was picked up and retained as an involuntary admittee. Petitioner's counsel argued that res judicata could be applied in the habeas corpus proceeding to compel the petitioner's release. The Court in Nixon rejected the application of res judicata as it would be inappropriate to apply the principal in a habeas corpus matter. The Nixon Court correctly surmised that changes in circumstances may result or new evidence may be available which precludes reliance on the earlier determination. The standard for a habeas corpus proceeding is fundamentally different as it involves inpatient retention and the Court must concern itself with the person's current psychiatric condition. In the present case, the issue involves assisted outpatient treatment and the application of collateral estoppel to establish only a portion of the elements necessary for an AOT order and the collateral estoppel evidence will not, of itself, be the sole criteria in rendering an AOT order.
Neither is the case of Forcino v. Miele, cited by Respondent's counsel, a decision which guides this Court in the present matter. The Appellate Division rejected collateral estoppel in a situation in which the aggrieved party did not have an opportunity to litigate the issue and the prior determination was not decisive of the later action (the application of collateral estoppel was rejected due to the fact that the prior determination granted a conservatorship but did not address the issue of competence [of the person subject to the conservatorship] to execute a power of attorney in the later proceeding) (see Forcino v. Miele, 122 A.D.2d 191, 504 N.Y.S.2d 729 [2d Dept. 1986] ).
The Respondent's motion recites the need to protect the person in need of mental health treatment with as few restrictions as possible and the Court readily agrees. However, the MHLS insinuation that the Court would effectively deny a person the right to hear testimonial evidence leading to “precipitous decisions that unwarrantedly curtail the liberty of those who are subject to AOT petitions” (Rotkin Aff. in Support of Motion, par. 32) is misplaced at best. The reference to cases requiring testimonial evidence at a hearing (see Matter of Gail R., 67 A.D.3d 808, 891 N.Y.S.2d 411 [2d Dept. 2009] ) are not relevant to the instant matter. It is undisputed that a hearing will occur before any AOT order is contemplated for Mr. N.. It is also disingenuous to allege that a respondent would be deprived of a “hearing” when the Petitioner seeks to employ collateral estoppel for a limited narrow purpose - to prove whether a person was hospitalized on two or more prior occasions due to non-compliance with mental health treatment. MHLS is fully aware that a hearing will be conducted in this matter and Mr. N. will be afforded due process protection by the Court. Further, as stated above, an AOT order will not be granted unless the Petitioner produces a psychiatrist to testify and has met the Petitioner's burden to prove each of the elements by clear and convincing evidence
Respondent's claim that the use of collateral estoppel (to establish the prior non-compliance) violates the statutory requirements set forth in Kendra's Law is not supported by the evidence. The applicable statute at sec. 9.60(h) provides for a hearing to be conducted as previously mentioned. Subsection (2) states that “The court shall not order assisted outpatient treatment unless an examining physician, who recommends assisted outpatient treatment and has personally examined the subject of the petition no more than ten days before the filing of the petition, testifies in person at the hearing. Such physician shall state the facts and clinical determinations which support the allegation that the subject of the petition meets each of the criteria for assisted outpatient treatment.” (MHL 9.60(h)(2) ).
The physician is required to meet certain statutory requirements in giving his or her testimony as set forth in subsection (4) of sec. 9.60 (h). The subsection requires as follows: “a physician who testifies pursuant to paragraph two of this subdivision shall state: (i) the facts which support the allegation that the subject meets each of the criteria for assisted outpatient treatment, (ii) that the treatment is the least restrictive alternative, (iii) the recommended assisted outpatient treatment, and (iv) the rationale for the recommended assisted outpatient treatment.” (MHL 9.60(h)(4) ).
The statute requires the physician to testify as to the elements stated above, yet, and as pointed out by Petitioner's counsel, there is no requirement included by the Legislature as to the type of evidence needed to prove the statutory requirement. It is this Court's opinion that a prior finding by the court which determined one of the statutory elements needed for the AOT order is sufficient and reliable proof and is compliant with the Statute's protections.
Mental Hygiene Legal Services is a zealous advocate for their clients. While the Court understands that MHLS seeks to advocate for the rights of persons who may be subject to an AOT order, the tenor of this motion is that the Court would be unable to render a fair decision by allowing for the fact that the Respondent was previously hospitalized on two occasions. The Court believes that the due process rights of Mr. N. can be safeguarded by the Court and the spirit of Kendra's Law be complied with by allowing the Petitioner to introduce a prior finding by the Court that establishes that Mr. N. was hospitalized previously.
The goal of Kendra's Law as stated by the New York State Legislature is to create effective mechanisms for helping mentally ill persons take responsibility for their own care by the establishment of assisted outpatient treatment and improved coordination of care for mentally ill persons living in the community (see legislative comments contained at L.1999, ch 408 sec 2, McKinney's Con. Laws of NY, Book 34A following Mental Hygiene Law sec. 9.60). It is not apparent to this Court that an additional hurdle of again proving that a person was hospitalized for non-compliance with treatment serves the interest of the Respondent or the efficacy of the legal process.
For the aforesaid reasons, the motion in limine to preclude the prior findings of the Court related to establishing elements of sec. 9.60 (c) of the MHL, is denied.
The parties are directed to appear for an AOT hearing in Part 77 of this Court on June 4, 2014.
This shall constitute the decision and order of this Court.
1. Had the petition been filed as a renewal order for AOT treatment, the Department of Health would not be required to meet the requirements of sec. 9.60 (c) 4 (i) & (ii) which necessitate a finding of lack of compliance with mental health treatment resulting in either (i) at least 2 hospitalizations within a thirty-six (36) month period; or (ii) one or more acts of serious violent behavior towards self or to others within the prior forty-eight (48) months.
2. The Court has not considered the quantum of proof needed to establish whether Mr. N. is eighteen years of age or older (element 1 above), as it is not likely to be a contested issue.
Bernard J. Graham, J.
Response sent, thank you
Docket No: 300178/2014
Decided: May 19, 2014
Court: Supreme Court, Kings County, New York.
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