IN RE: BETHUNE M. (Anonymous)

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: BETHUNE M. (Anonymous), respondent; Dean R. Weinstock, etc., appellant.

Decided: November 22, 2004

DAVID S. RITTER, J.P., HOWARD MILLER, BARRY A. COZIER, and PETER B. SKELOS, JJ. Eliot Spitzer, Attorney-General, New York, N.Y. (Marion R. Buchbinder and Edward J. Curtis, Jr., of counsel), for appellant. Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Laura Rothschild, and Dennis B. Feld of counsel), for respondent.

In a proceeding pursuant to Mental Hygiene Law § 9.33 to retain a patient involuntarily admitted to a hospital, Dean R. Weinstock, Executive Director of the Kingsboro Psychiatric Center, appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 22, 2004, which denied the petition and directed the release of the patient.

ORDERED that the order is affirmed, without costs or disbursements.

 To retain a patient in a mental health care facility for involuntary psychiatric care, the facility or its director must establish by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to herself or himself or to others (see Matter of Dionne D., 5 A.D.3d 766, 767, 774 N.Y.S.2d 167;  Matter of John P., 265 A.D.2d 559, 697 N.Y.S.2d 120;  Matter of Seltzer v. Grace J., 213 A.D.2d 412, 624 N.Y.S.2d 617).

 In the case at bar, there is no question that Bethune M. (hereinafter the patient) suffers from a mental illness.   The only issue is whether such illness causes her to pose a substantial threat of physical injury to herself or others.   Such a showing was not made by clear and convincing evidence.   Dr. Vikas, the hospital's only witness, testified that she examined the patient on three occasions for only 10 to 15 minutes on each occasion.   Dr. Vikas testified that the patient has continued intense paranoid delusions directed at her mother, but was not aware of any recent threats made by her against her mother.   Dr. Vikas was not aware of any threats made by the patient, and the hospital records reflected no such threats within the last six months prior to the hearing.   Moreover, the patient lucidly testified that she is able to support herself and has no plans to hurt anyone.

The “clear and convincing evidence” standard was not met and, therefore, the patient could not be involuntarily confined (see Matter of Carl C., 126 A.D.2d 640, 511 N.Y.S.2d 144).

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