DECISION AND ORDER On June 11, 2020 the Court orally granted petitioner’s application for an order authorizing the Office of Mental Health and Department of Corrections and Community Supervision to proceed with the involuntary treatment of respondent, a patient at the Central New York Psychiatric Center Great Meadow Satellite Unit. The Court is now issuing a written decision memorializing the basis for that ruling which was previously set forth on the record. Respondent — who is 31 years of age — is an inmate at the Great Meadow Correctional Facility. He is serving a sentence of 3 ½ years for, inter alia, first degree rape. He is presently a patient in Great Meadow’s Central New York Psychiatric Center (hereinafter CNYPC) Satellite Unit. Respondent’s current psychiatric diagnoses include personality disorder with psychopathic features, narcissistic personality disorder and posttraumatic stress disorder. His past diagnoses include major depressive disorder, bipolar disorder, schizoaffective disorder and exhibitionistic disorder. According to his treating psychiatrist, respondent “has an extensive history of violence, suicidal gestures, self-injurious behaviors, assaultive behaviors toward other inmates and staff, sexual predatory behaviors and unhygienic acts. Since this most recent incarceration, respondent has “engaged in fights with peers that necessitate unit transfer, assault[ed] an inmate worker for no apparent reason, attempt[ed] to set fire to his room, ma[de] a weapon, throw[n] chairs and ultimately repeatedly bit and punch[ed] a hospital employee at CNYPC in 2018, and set fire to his cell during a Residential Crises Treatment Program…admission.” In August 2019, respondent “was admitted to CNYPC for 3 months [following] a hanging attempt…that resulted in a…ligature mark [after] he had to be lifted to release tension on the [garrote].” Then on April 15, 2020, respondent “was remitted to the Mental Health Unit at Great Meadow…after violating his probation due to new offenses at the Sexual Offender Treatment Program…at CNYPC where he was attending an intensive sex offender treatment program.” Upon his return to Great Meadow, he “was informed that he was assigned to go to the Behavioral Health Unit…to attend programs tailored to reduce his behavioral disruptions” and upon learning of this transfer “he engaged in self-harm by cutting his right wrist with a broken piece of food tray.” As a result, he was transferred to the Residential Crises Treatment Program at Great Meadow. He currently remains in an observation cell there, complaining of “suicidal ideas…triggered by not having access to amenities that help him cope,” such as electronic tablets, use of the recreation yard and telephone calls to his family. He is also “reportedly displaying exhibitionistic behaviors…, often exposing his penis nonchalantly to Mental Health Unit female staff.” An Order for Treatment over Objection was previously issued on May 7, 2019 and expired on May 6, 2020, which Order required respondent to take Abilify and Cymbalta by mouth once daily. Respondent advised his psychiatrist that he would refuse to take Abilify once the Order expired, as he apparently does not believe it is effective in alleviating his symptoms. Specifically, respondent believes that Abilify is an antipsychotic and he is not psychotic. According to this psychiatrist, respondent fails to appreciate that Abilify is used to stabilize mood and decrease impulsivity and, as a result, will assist respondent in achieving his stated goal of returning to the general prison population. The psychiatrist opines that respondent’s “factual understanding of the proposed treatment [is] limited by impaired insight into his mental illness and the utility of medication management” and was recommending that the Abilify be continued notwithstanding respondent’s objection, and further recommended that respondent be prescribed benadryl to alleviate the potential side effects. Presently before the Court is the application of petitioner Christopher Boydston, Unit Chief of Great Meadows’ Central New York Psychiatric Center Satellite Unit, seeking authorization to administer these medications to respondent over his objection. The relief requested is based upon the seminal case of Rivers v. Katz (67 NY2d 485 [1986]) (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]).1 At the outset, petitioner fails — as it has in other similar proceedings before this Court — to allege that all administrative review procedures have been exhausted. 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 were 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 [2001]), 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). The respondent was examined by the treating psychiatrist who determined that he “lacks capacity to make reasoned decisions concerning his treatment” and, further, “that it would be in [his] best interests…to be treated according to the proposed treatment outlined in [his Evaluation].” A consulting psychiatrist then reviewed respondent’s medical records and examined him on May 5, 2020 in the presence of counsel provided by Mental Hygiene Legal Service. This consulting psychiatrist reached the same conclusion as the treating psychiatrist. With that said, to the extent that the application failed to include any allegations with respect to petitioner’s compliance with 14 NYCRR 527.8, this issue was addressed and compliance established on the record before this Court proceeded to consider the merits.1 As set forth above, respondent was examined by the treating psychiatrist and he was determined to “lack[] capacity to make reasoned decisions concerning his treatment” and, further, “that it would be in [his] best interests…to be treated according to the proposed treatment outlined in [his Evaluation].” A consulting psychiatrist — then reviewed respondent’s medical records and examined him on May 5, 2020 with his attorney present. Her affidavit in support of the application reached the same conclusion as the treating psychiatrist. Having thus established full compliance with 14 NYCRR 527.8, petitioner, by medical records and testimony, 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. Demonstration of these two factors warrants that the application be granted (see e.g. Matter of Sawyer [R.G.], 68 AD3d 1734, 1734-1735 [2009]). At the hearing — and without objection — but not contained in any of the prior submissions, the course of treatment now recommended by the treating psychiatrist’s testimony is a regimen that consists of the following: a) Depakote ER (Valproic Acid) 750 mg by mouth in the evening, up to a maximum dose of 60 mg/kg/day, and b) Vistaril 50 mg by mouth in the evening, up to a maximum dose of 200 mg a day. Therefore, upon consideration of the Petition of Christopher Boydston, Unit Chief of Central New York Psychiatric Center Great Meadow Satellite Unit, sworn to May 14, 2020, together with the Affidavit of Julio A. Riascos M.D. sworn to May 14, 2020 including his proposed “Evaluation for Treatment Over Objection” dated April 23, 2020, the Affirmation of Nicole Charder, M.D., dated May 13, 2020 including her proposed “Evaluation for Treatment Over Objection” dated May 13, 2020, the testimony of Julio A. Riascos M.D. and the respondent and oral argument held on June 11, 2020 and having heard the arguments of Ryan L. Abel, AAG appearing on behalf of the petitioner and Brent Stack, Esq., Mental Hygiene Legal Services appearing with and on behalf of the respondent, the Court does find 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 Court therefore ORDERS a specific course of treatment and reasonable alternatives, if necessary, as set forth in the evaluation for treatment over objection, as amplified by the June 11, 2020 testimony of Dr. Riascos and as amended by his recommendations signed and dated June 11, 2020 as appended to this Court’s prior order signed June 11, 2020 and entered on June 19, 2020 and it is further ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied. The original of this Decision and Order has been filed by the Court. Counsel for petitioner is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: June 29, 2020
