On October 25, 2022, a representative of the State of New York filed the instant petition against John A., a patient at Clinton Correctional Facility, seeking an order authorizing the involuntary treatment of John A. in accordance with the holding of Rivers v. Katz, 67 NY2d 485 [1986]. On November 2, 2022, the Court held an evidentiary hearing on the petition. On behalf of the State, Dr. Annette Liem, M.D., a licensed psychologist, an employee at the Clinton Correctional Facility and an expert in the field of psychology, credibly testified. Based upon her testimony, the Court found that the State established by clear and convincing evidence that: Respondent is suffering from a mental illness; lacks the capacity to make a reasoned decision with respect to the State’s proposed course of treatment with psychotropic medication; and the State’s proposed course of treatment for Respondent with psychotropic medication is currently narrowly tailored to give substantive effect to Respondent’s liberty interest taking into consideration all relevant circumstances, including Respondent’s best interests, the benefits to be gained from the proposed treatment, the adverse side effects associated with the proposed treatment and any less intrusive alternative treatments. See id. at 497. The evidence is also clear that Respondent does not object to continuing to receive psychotropic medications as currently prescribed (300 mg of Haldol Decanoate by injection every four weeks). Although Respondent is not objecting to the treatment, Respondent’s reasons for consenting to the ongoing treatment are not reality based. Respondent denies that he has a mental illness, but is agreeable to take the Haldol because Respondent believes that it helps his bronchitis. There is no medical evidence to support the conclusion that he actually suffers from bronchitis or that Haldol would in any way benefit an individual suffering from bronchitis. Thus, although Respondent is accepting the treatment, Respondent’s consent to the treatment could not be classified as informed. The State argues that Respondent’s lack of informed consent is the equivalent to an objection. The Mental Hygiene Legal Services for the Third Judicial Department, on behalf Respondent, disputes that conclusion. Thus, the question before the Court is whether the lack of informed consent is equivalent to an objection in the context of this application. The Court answers this question in the negative. Neither the State, Respondent nor the Court was able to locate any authority directly on point. The Court finds that the language contained in Rivers fails to support the State’s position. In Rivers, the Court of Appeals held: [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. Id. at 497 [emphasis added]. Thus, under Rivers, the need for a judicial determination of any kind is not required until the patient refuses to consent to the administration of treatment. The regulatory language in this area is also informative. 14 NYCRR 527.8 titled “Care and treatment; right to object”, in part, states: (c) Patients who object to any proposed medical treatment or procedure as defined above [see 14 NYCRR 527.8(a)(7)] may not be treated over their objection except as follows: …. (5) Inmate Patients. (i) Except in emergency circumstances as provided in paragraph (1) of this subdivision, an inmate patient may not be given a psychotropic medication over his or her objection without court authorization. (ii) Prior to requesting court authorization to administer psychotropic medication to an objecting inmate patient, the clinical director, or his or her designee, of Central New York Psychiatric Center, must determine that the administration of psychotropic medication is in the inmate patient’s best interests and that the inmate patient lacks capacity to make a reasoned decision concerning administration of such medication…. (a) Evaluation by treating physician. Upon an inmate patient’s objection to the proposed administration of psychotropic medication, the treating physician shall formally evaluate whether the administration of psychotropic medication is in the inmate patient’s best interests, in light of all relevant circumstances including the risks, benefits and alternatives to the inmate patient of the administration of psychotropic medication, and the nature of the inmate patient’s objection thereto, and whether the inmate patient has the capacity to make a reasoned decision concerning the administration of such medication. [emphasis added]. This regulation does not speak in terms of patients who fail to provide informed consent, but rather patients who object to the proposed treatment. If treatment providers are concerned over the lack of informed consent, there are legal options available to address that issue, but a petition seeking an order authorizing treatment over objection is not one of them. ACCORDINGLY, IT IS HEREBY ORDERED, that the petition is DISMISSED. Signed and Dated: November 22, 2022
