NYSBA Health Law Section Annual Meeting January 27, 2016 - PDF document

1111 Marcus Avenue - Suite 107 Lake Success, New York 11042 Telephone: (516) 328-2300 Fax: (516) 328-6638 www.abramslaw.com NYSBA Health Law Section Annual Meeting January 27, 2016 Developments in Behavioral Health Law Carolyn Reinach Wolf, Esq. cwolf@abramslaw.com 516-592-5857 Jamie A. Rosen, Esq. jrosen@abramslaw.com 516-592-5857

Wolf/Rosen - Developments in Behavioral Health Law 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, 2015. • 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 §9.33. 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 §9.33. 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

Wolf/Rosen - Developments in Behavioral Health Law • Issues at play in the Court of Appeals Decision: o MHL §33.15 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 §33.15 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

Wolf/Rosen - Developments in Behavioral Health Law • 1984 – New York passed a Tarasoff exception to its patient-therapist confidentiality laws. 1 o MHL § 33.13 remains in effect and covers a “Duty to Warn”. o MHL § 33.13 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 § 33.13 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 - §9.46 2  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. M ENT . H YG . L. § 33.13(c)(6). 2 N.Y. M ENT . H YG . L. § 9.46. 3 N.Y. Mental Hyg. Law § 9.43. At any time during the 72-hour period, the patient may, if appropriate, be admitted as a voluntary or involuntary patient. 4