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IN RE: the Application of Dustina Wiktorko, Unit Chief, of Central New York Psychiatric Center, Great Meadow Correctional Facility Satellite Unit, Petitioner, For an Order Authorizing the Involuntary Treatment of "AT" A Patient at Great Meadow Correctional Facility, Respondent.
Following a hearing in this treatment over objection application the Court previously ruled in favor of the Petitioner and ordered treatment. The Court now sets forth its reasoning.
Respondent — who is 50 years of age — was convicted of 4 counts of assault in the first degree in 2000 and sentenced to 96 years to life in prison. He suffers from schizoaffective disorder, bipolar type, and has an extensive history of noncompliance with his medications, resulting in psychiatric decompensation, violence, and disciplinary infractions. Two previous applications for treatment over objection have been granted, with one Order issued on July 21, 2016 and expiring July 20, 2017, and the other issued on June 20, 2021 and expiring on June 27, 2022.
Respondent is presently incarcerated at the Great Meadow Correctional Facility in Comstock, Washington County, and has refused to take his medications since approximately December 2022. On April 4, 2023, he was admitted to Great Meadow's Central New York Psychiatric Center Satellite Unit (hereinafter the Great Meadow CNYPCS) "due to an acute psychotic episode in the context of noncompliance with his psychiatric medication." Specifically, respondent has been having "hallucinations; religious, persecutory, and grandiose delusions; yelling and screaming; disorganized and tangential thought process[es]; [and] poor hygiene practices (hoarding urine, not flushing his toilet, covering cell bars in feces.)"
According to Julio Riascos, M.D. — his treating psychiatrist — respondent should be treated with Haloperidol (Haldol) Decanoate, 50 to 300 milligrams intramuscularly every four (4) weeks. Riascos attempted to discuss this recommended treatment with respondent, describing the encounter as follows:
"When undersigned tried to educate [respondent] about the therapeutic benefits and side effects of antipsychotic medications, he stated, 'If you give it to me, I'll give them to somebody else . . . Trilafon. I didn't need it. It's the supernatural. It made me read my mind . . . Santeria . . . witchcraft. It's prohibited, they can spread disease like that!'
"Undersigned asked again for clarification of his specific treatment objection, and [respondent] responded, 'I don't want Haldol because it disconnects me from God. The FDA, their administration is a gang. FDA is bad, period!' At this point [respondent] began to mumble to himself and could not engage in an effective manner due to distracting internal stimulations, indicating the presence of hallucinations."
Presently before the Court is the application of petitioner Dustina Wiktorko, Unit Chief of the Great Meadow CNYPCS, seeking authorization to administer the recommended treatment to respondent over his objection. The relief requested is based upon the seminal case of Rivers v Katz (67 NY2d 485 ) (hereinafter Rivers), wherein the Court of Appeals held as follows:
"[I]n situations where the State's police power is not implicated, and the patient refuses to consent to the administration of antipsychotic drugs, there must be a judicial determination of whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State's parens patriae power. The determination should be made at a hearing following exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8. The hearing should be de novo, and the patient should be afforded representation by counsel. The State would bear the burden of demonstrating by clear and convincing evidence the patient's incapacity 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, the court determines that the patient has the capability to make his own treatment decisions, the State shall be precluded from administering antipsychotic drugs. If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, the court must 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. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria" (id. at 497-498 [citations omitted]).
While Rivers held that a determination should be made at a hearing following the exhaustion of the administrative review procedures provided for in 14 NYCRR 27.8, it further held that the review procedures set forth in the regulation are inadequate (see id. at 498). With that said, 14 NYCRR 527.8 was promulgated in response to Rivers and sets forth the procedures to be followed prior to seeking Court authorization for treatment over objection. As summarized in Matter of Bronx Psychiatric Ctr. (283 AD2d 73 ), 14 NYCRR 527.8 requires as follows:
"First, the patient's treating physician must make a determination that the proposed treatment is in the patient's best interests and that the patient lacks the capacity to make a reasoned decision concerning the treatment. Once this evaluation is made, he or she informs the Clinical Director of his [or her] determination and requests further review. He or she is also required to notify [Mental Hygiene Legal Service] and any other representative of the patient of his [or her] request and determination. The clinical director then conducts the review or . . . may appoint a designee to be a reviewing physician. The reviewing physician personally examines the patient and reviews his or her records. Finally, the clinical director conducts a final review and determines whether to seek a court order" (id. at 75).
Here, petitioner has followed the administrative review procedure set forth in 14 NYCRR 527.8. Respondent was examined by Riascos on April 28, 2023, at which time he determined that he "lacks capacity to make reasoned decision concerning his treatment" and, further, "that it would be in the best interests of [respondent] to be treated according to the proposed treatment outlined in the [petition]." Gloria Thambirajah, M.D. — a consulting psychiatrist — thereafter reviewed respondent's medical records and examined him on May 10, 2023. Based upon her review of the records and her examination of respondent, she reached the same conclusion as Riascos. Petitioner requested that Mental Hygiene Legal Service (MHLS) be appointed to represent respondent.
With the petitioner's expert witness present the respondent also testified. His longwinded incoherent and nonsensical speech made clear to the court that he is incapable of making intelligent and reasoned decisions about his own healthcare. Dr. Riascos further testified that this testimony was consistent with his diagnosis although the respondent had gotten worse since his April 28, 2023 examination.
Petitioner has demonstrated by clear and convincing evidence that (1) respondent is without capacity to make a treatment decision; and (2) that the proposed treatment is narrowly tailored to protect his liberty interest. The application is granted (see e.g. Matter of Sawyer [R.G.], 68 AD3d 1734, 1734-1735 ).
Therefore, having considered NYSCEF document No. 8, the testimony of the treating psychiatrist, and the respondent, it is hereby
ORDERED, that the petition is granted.
The original of this Decision and Order has been e-filed by the Court. Counsel for Petitioner is hereby directed to serve an e-filed Decision and Order with Notice of Entry upon Respondent in accordance with CPLR 5513
Signed and Dated: June 30, 2023
Lake George, New York
E N T E R
Hon. Robert J. Muller
Supreme Court Justice
Robert J. Muller, J.
Response sent, thank you
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Docket No: Index No. EC2023-35357
Decided: June 30, 2023
Court: Supreme Court, New York,
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