Opinion
Index No. EFCA2020-002760
10-06-2021
In the MATTER OF the Retention of M.H., a Person Admitted to St. Elizabeth Medical Center. In the Matter of the Application of St. Elizabeth Medical Center, Petitioner, Pursuant to Article 81 of the Mental Hygiene Law for Appointment of a Guardian of the Person of M.H., an Alleged Incapacitated Person.
For Petitioner: Getnick Livingston Atkinson & Priore, LLP, Janet M. Richmond, Esq. For M.H.: Mental Hygiene Legal Service, Appellate Division, Fourth Department, Elizabeth S. Fortino, Esq., Director, By: Caroline L. Levitt, Esq.
For Petitioner: Getnick Livingston Atkinson & Priore, LLP, Janet M. Richmond, Esq.
For M.H.: Mental Hygiene Legal Service, Appellate Division, Fourth Department, Elizabeth S. Fortino, Esq., Director, By: Caroline L. Levitt, Esq.
Louis P. Gigliotti, J. Pending before the Court are two petitions brought on behalf of St. Elizabeth Medical Center ("Hospital"), where Respondent M.H. ("Patient") is involuntarily hospitalized in the inpatient psychiatric ward. The first petition seeks to retain Patient for up to one year from May 5, 2021, which is the date his current commitment order is due to expire. The second petition requests appointment of a guardian for Patient, as the Hospital does not recognize him as competent to sign his discharge paperwork. Separate hearings were held, and witness testimony was received. These matters were considered fully submitted as of August 20, 2021, when written closing statements were received in connection with the guardianship petition. The Court's decision regarding each petition is set forth below.
Retention Petition
Patient was admitted to the Hospital on November 5, 2020, pursuant to Mental Hygiene Law ("MHL") § 9.39, after decompensating in the community and physically attacking his mother. His status was subsequently changed to involuntary admission on the medical certification of two physicians, pursuant to MHL § 9.27. The Hospital then brought a petition pursuant to MHL § 9.33 to retain him as an inpatient for a period up to six months. This Court granted that application by Order dated January 14, 2021. As previously noted, the Hospital now seeks to retain Patient for up to a year beyond the expiration of the existing Order.
At the outset of the hearing, counsel for the Patient moved for judgment as a matter of law, pursuant to CPLR 4401, on the basis of admissions made within the Hospital's guardianship petition verified by the President/CEO of the Hospital's parent company Mohawk Valley Health System. In particular, counsel pointed to paragraph 13 of the petition, which reads that "[a]t this time, [Patient] does not require hospitalization." The Court reserved decision. Counsel renewed the motion at the close of the Hospital's proof, on the basis that insufficient evidence was presented to show treatment in a hospital was necessary for Patient with respect to his mental illness. The Court reserved decision on that motion as well. Based on the Court's ultimate finding that the Hospital has not satisfied its burden of proof relative to the pending retention petition, these motions made by counsel are now rendered moot.
The applicable definitions for this proceeding are found in unnumbered paragraphs contained within MHL § 9.01. To be "in need of retention," a person involuntarily hospitalized must be "in need of involuntary care and treatment in a hospital for a further period." For a person to be "in need of involuntary care and treatment," he must have "a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment." Constitutional due process imposes a further requirement that a patient pose a substantial threat of harm to himself or others to justify hospitalization. (See , e.g. , Matter of Thomas G. , 50 A.D.3d 1139, 1140, 857 N.Y.S.2d 631 [2d Dept. 2008] ).
Nalin Sinha, M.D. testified for the Hospital. He is Patient's treating psychiatrist and diagnosed Patient with Impulse Control Disorder and Intellectual Disability. Although Patient was previously diagnosed with Acute Psychosis, Dr. Sinha testified that intramuscular injections of antipsychotic medication, which are voluntarily received by Patient, have brought his psychosis under control. At the time of the retention hearing, Dr. Sinha confirmed that Patient presented no behavioral concerns, was mostly cooperative with his treatment plan, and responded well to prompting in connection with his activities of daily living. That being said, Patient was also still talking to imaginary persons and engaging in minimal social interaction. But for the encouragement of hospital staff to eat and tend to his personal hygiene, Dr. Sinha did not believe Patient has the skill sets to live independently. According to the doctor, the primary impediment to discharge was Patient's inability to participate in planning in any meaningful way, as well as his lack of community supports.
Patient's counsel called as witnesses Paula Millard, Administrator of Residential and Crisis Services for Regional Office 2 of the New York State Office for People with Developmental Disabilities ("OPWDD"), and Melanie Auge, a psychologist with CNY Crisis Lead for OPWDD. These witnesses testified about Patient's eligibility for services through their agency, as well as what particular services would be made available to Patient upon his return to the community. Those services include housing placement, community habilitation services and medication management. The witnesses explained however, that receipt of such services is completely voluntary on Patient's part.
When the Court granted the Hospital's retention petition in January 2021, it noted that Patient's uncontested diagnoses, his persistent symptoms and his need for almost constant intervention from hospital staff supported a finding that he suffered from a mental illness. Although the term "mental illness" is not defined in MHL § 9.01, the Court looked to the New York Pattern Jury Instructions for guidance. (See PJI 8:7 ["A person is mentally ill when (he, she) is afflicted with a mental disease or mental condition which shows its presence by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that (he, she) requires care, treatment and rehabilitation."]). The proof presented at this most recent hearing leads the Court to the same conclusion that Patient presently suffers from a mental illness.
The Court's January 2021 Order was also predicated upon Patient's lack of understanding about and participation in his discharge planning. The Court relied upon Matter of Consilvio v. Diana W. , 269 A.D.2d 310, 703 N.Y.S.2d 144 [1st Dept. 2000], and New York City Health & Hosp. Corp. v. Brian H. , 51 A.D.3d 412, 857 N.Y.S.2d 530 [1st Dept. 2008], as authority for the premise that when psychiatric stabilization in a hospital setting does not necessarily translate to stabilization in a community setting, retention may be authorized. The Court reasoned that Patient's inability to manage his medications or manage his person posed a risk of serious harm to himself, and any attendant decompensation posed a risk of serious harm to others based on his aggressive behavior toward his mother immediately preceding his hospitalization.
What complicates this case presently is the Hospital's position that Patient is otherwise ready for discharge, but lacks both a safe discharge plan and the capacity to sign discharge paperwork. While the Court may empathize with the desire to protect Patient from himself, this reason does not appear sufficient to justify continued hospitalization. MHL § 9.01 clearly provides that care and treatment "in a hospital" is essential to the person's welfare, not just a need for care and treatment. Indeed, "inherent in the very nature of civil commitment is that a statute which authorizes such a drastic curtailment of freedom be narrowly construed. Total confinement may not be justified where there are less restrictive alternatives which may achieve the legitimate purposes for which commitment was sought." ( NY PJI 8:7, Comment [Note: online treatise]).
Patient presented evidence outlining less restrictive alternatives available to him. While Patient was approved to receive some of these same services prior to this hospitalization, the evidence does not suggest that he has had such a "revolving door" of inpatient admissions as to suggest that past decompensation is reliable proof of future decompensation. Ms. Millard testified that OPWDD staff has been involved with Patient's case since his admission to the Hospital in November 2020 and is aware of Patient's current needs. She explained that when exploring housing options for Patient, she accounted for his medication needs and his aggressive behaviors. She said Patient is eligible to receive additional weekly hours of community habilitation services, as well as community nursing supports through Medicaid to assist with administering medications. Ms. Auge explained that if Patient were to refuse services in the community, his care coordinator would continue to offer options to Patient instead of abandoning him.
The totality of the evidence does not clearly establish Patient's need to remain in a hospital setting. Unlike at the hearing held in January, the Court now has specific evidence before it that portrays in greater detail the nature of the support network available to Patient through OPWDD upon discharge. The evidence also establishes that Patient is medication compliant and with appropriate prompting, can exist without presenting a danger of harm to himself or others. The Hospital does not have any further treatment goals for him to meet as an inpatient. The Court agrees with Patient that the only discernable purpose behind the Hospital's petition is to ensure Patient's discharge to a facility that it deems best suitable for Patient. While the Court understands the concerns of Hospital staff relative to Patient's future care, a retention petition pursuant to MHL § 9.33 does not appear to afford the Hospital discretion over what type of care and treatment Patient can receive once discharged from the inpatient setting. Moreover, Dr. Sinha told the Court that any discharge plan for Patient would necessarily involve OPWDD. Based on the testimony of Ms. Millard and Ms. Auge as employees of OPWDD, Patient has access to appropriate care and treatment in the community. Accordingly, the Hospital's retention petition will be DENIED.
Guardianship Petition
The Court received evidence relative to the guardianship petition over the course of three days. The Hospital's first witness was B.R., who is Patient's mother. She testified about the degree to which she offered Patient assistance while he lived in the community. She told the Court, by way of background, that Patient lived in a group home operated by United Cerebral Palsy ("UCP") between the ages of 9-18. After Patient reached age 18, he lived with her for approximately six months, after which he moved into an apartment. B.R. said that she visited Patient at his apartment on a daily basis and provided an array of help, to include administering medications, prompting Patient to shower and wash his hair, picking out clothes appropriate for the weather, going grocery shopping and bringing takeout food, cleaning his apartment, taking out the garbage and managing his finances. B.R. testified that she also helped Patient make and keep appointments, to include medical appointments and appointments for services provided through OPWDD, but that Patient often resisted going.
B.R. described Patient's behavior while he lived on his own. She said he would sleep most of the day. His ability to prepare meals extended no further than heating up food in a microwave. Patient had no friends and limited social interactions with people besides his mother. At times, B.R. would arrive at his apartment to find him talking or yelling to unseen figures. At other times, she would arrive and find he had wandered outside aimlessly. One day she could not find him. She said he was prone to wandering in the street in front of cars, and she claimed the police have brought Patient to hospital facilities prior to this current inpatient stay. According to B.R., although Patient has a driver's license, he has not driven much after age 18 and would have difficulty reading and comprehending directions and road signs. She described the events that led to Patient's current hospitalization, to include attacking her with a knife. Her preferred choice of residence for Patient would be a secure facility operated by the Developmental Disabilities Service Organization ("DDSO").
The Hospital also called Sara Fisk, Nurse Manager. She testified that she interacts with Patient multiple times weekly, and that her office is adjacent to his room at the Hospital. Like B.R., she described Patient as requiring prompts for bathing and grooming. Ms. Fisk said she can hear Patient talking to himself in a loud, animated manner, with different tones of voice and at times yelling obscenities. Consistent with his habits in the community, Ms. Fisk said Patient has little interaction with others and prefers to stay in his room. Ms. Fisk indicated that Patient has no concept of mealtime, but that when he does eat, he does so uncontrollably. She gave as an example Patient putting 10 packets of sugar into his glass of orange juice. Ms. Fisk said Patient had gained 37 pounds in the eight months since his admission. She felt Patient could not adequately administer his own medications because he has no concept of time.
Patient's counsel called Ms. Auge from OPWDD to testify at the guardianship hearing. She explained the OPWDD Crisis Team was involved in Patient's case at the Hospital shortly after his admission in November 2020, following contact made by the Oneida County Department of Social Services ("DSS"). As at the retention hearing, Ms. Auge identified Patient's needs in the community to include psychological/counseling services, housing, and community habilitation skills training. She noted that when Patient previously resided in the community, he had an independent apartment unsupported by OPWDD services. This time however, Ms. Auge confirmed Patient had selected the LINK apartments housing option with The Kelberman Center, a 501(c)(3) corporation providing "autism services for children, adults and families in the Mohawk Valley and Central New York." (www.kelbermancenter.org). Ms. Auge further indicated the Crisis Team would remain involved with Patient post-discharge until his community services were stabilized.
Patient's counsel also called Emily Neville, Director of Care Coordination with Prime Care Coordination ("Prime Care"). Ms. Neville explained that Prime Care is one of seven consolidated agencies in New York state to coordinate OPWDD services for eligible individuals. She generally described the work of Prime Care to include developing a "Life Plan" for individuals and matching available services to help attain identified goals. Prime Care also tries to detect recurring issues. Ms. Neville indicated that staff conducts a monthly virtual "check-in" with clients, as well as an in-person visit at least quarterly. She stated that while Prime Care seeks to avert a crisis situation, her agency will contact the OPWDD Crisis Team if such a crisis were to arise. In these instances, she said Prime Care would reassess the situation to see if additional supports are needed.
The Court called its own witness, Court Evaluator David Stang, Psy.D., and received into evidence his curriculum vitae as Court Exhibit 1 and his undated report, following his review of Patient's records and his in-person interview with Patient, as Court Exhibit 2. In the Order to Show Cause appointing him as Court Evaluator, Dr. Stang was asked these referral questions:
Is [Patient] unable to provide for his personal needs and if so, can he adequately understand and appreciate the nature
and consequences of such inability? How is [Patient] functioning with respect to the activities of daily living, and what is the prognosis and reversibility of any mental disabilities ?
Dr. Stang concluded that Patient was not able to provide for his personal needs by himself. As support for this conclusion, Dr. Stang pointed to Patient's lack of insight regarding his mental illness and his need for treatment. He noted Patient's behavior in the community to include medication non-compliance and agitation. Dr. Stang further concluded that Patient does not adequately understand and appreciate the nature and consequences of his inability to provide for his personal needs. Dr. Stang testified that during his interview, Patient denied having a mental illness and denied that he was unable to care for himself. At the same time, Patient told Dr. Stang that he would need tissues more than he would need his antipsychotic medication. Dr. Stang noted that even with antipsychotic medication, Patient experienced psychotic symptoms in the Hospital.
At the request of Patient's counsel, Dr. Stang spoke with Ms. Neville from Prime Care. After learning what services would be made available to Patient, Dr. Stang's greatest concern focused on the voluntary nature of such services. Dr. Stang testified that his review of adaptive behavior test scores in Patient's file suggests Patient is experiencing a decline in his intellectual abilities. This decline led Dr. Stang to think Patient would have continued difficulty completing his activities of daily living without assistance. On cross-examination, Dr. Stang noted a disconnect between Patient's perception and the reality of his abilities, i.e. , Patient believes his abilities to manage on his own are greater than they actually are. Dr. Stang ultimately recommended a guardian because he is worried that without supportive decision making, Patient's ability to override the choices of others could ultimately negate the good effects of the assistance being offered to him through OPWDD and Prime Care.
B.R. echoed these same concerns when she was called by the Hospital to testify as a rebuttal witness. She described Patient, while living on his own, as often refusing to answer the phone when called to make appointments to compose his Life Plan. B.R. said she took responsibility for bringing him to these appointments or else the services would be canceled. For the multitude of reasons set forth in the preceding paragraphs, B.R. worries about Patient living by himself. While Patient did not and was not required to testify on his own behalf, the Court did have an opportunity to observe him throughout the guardianship proceedings. MHL § 81.11(c) expressly "permit[s] the court to obtain its own impression of the person's capacity." What the Court noticed about Patient is that he appeared detached from the hearing and the witnesses who were testifying. He was more interested in seeing his own presence on camera, at times making funny faces to amuse himself. The Court could see Patient laughing at inappropriate times. He otherwise lacked any emotional response to the testimony as it was received.
Incapacity
The Court finds the evidence clearly and convincingly establishes that Patient is incapacitated, as that term is used in MHL article 81. The uncontroverted testimony is that Patient cannot provide for his personal needs in any meaningful way. But for the involvement of his mother when he lived in his prior apartment, his nutrition, hygiene, medical needs and personal safety all would have suffered worse than they did leading up to his decompensation and current hospitalization. B.R.’s intervention and prompting is now provided by Hospital staff. As is implied through the testimony of Ms. Auge and Ms. Millard, Patient could not on his own identify, apply for or afford housing opportunities. The LINK apartments offered by The Kelberman Center are designed to help facilitate Patient's receipt of services and highlight Patient's need for assistance. Lacking basic self-help skills, he is approved for habilitation services to learn how to care for himself in the community. Lacking an awareness of medication management, he is approved for nursing services offered through Medicaid.
The Court further finds that Patient has a lack of understanding and appreciation of the nature and consequences of his functional limitations. The Court credits the conclusions of Dr. Stang that Patient's decline in intellectual functioning impairs his self-assessment. According to Dr. Stang's testimony and report, Patient told Dr. Stang that he could take care of himself "just fine," without acknowledging any of the issues that led to his decompensation and current hospitalization. Patient could not articulate how he would prepare his own meals. He could not articulate a safe plan for smoking his cigarettes in his residence. His concept of dates and his comprehension of money were deficient. Patient's functional limitations and inability to appreciate the same combine to create a likelihood that he will suffer harm. The two years he spent in the community after leaving UCP housing are filled with examples of Patient putting himself and others in harm's way. Even though he is psychiatrically stabilized at the Hospital, he continues to exhibit symptoms of psychosis and displays no concrete or realistic understanding of his circumstances. The evidence fails to show that Patient — on his own upon discharge — has any viable chance of taking care of himself or seeking appropriate assistance.
Patient's counsel argues that when considering incapacity, the availability of OPWDD resources mitigates against a finding of incapacity. (See Matter of Fritz G. , 164 A.D.3d 503, 77 N.Y.S.3d 872 [2d Dept. 2018] ). The Court would agree, except in this case, Patient has a poor history of utilizing such resources. B.R. testified that but for her involvement, Patient would not have participated in his Life Plan meetings. Although previously approved for habilitation services, the Court heard no testimony about his participation in such services. The Court did hear how little Patient knows to care for himself, but that Ms. Millard could not seek approval for an increase in available community habilitation programming because Patient has not been involved in conversations to request same. OPWDD learned about Patient's hospitalization not through any outreach on the part of Patient, but rather because of a call from DSS. In short, the Court has no confidence that if left to his own devices, Patient would utilize the community resources available to him to provide for his personal needs.
Patient's counsel also asks the Court to apply to this case the reasoning set forth in Matter of United Health Servs. Hosps. Inc. (Elias B.) , 72 Misc. 3d 1204[A], 2021 N.Y. Slip Op. 50612[U], 2021 WL 2697167 [Sup. Ct., Broome County 2021]. In Elias B. , the Court dismissed a guardianship petition brought by a hospital seeking to effectuate a discharge plan that included placing Respondent in an out-of-state skilled nursing facility over his objection. Testimony at the hearing established that Elias B. previously received OPWDD services, knew how to reach his care coordinator in the event of an emergency, and knew how to get himself to a hospital if help were needed. Elias B. had also executed a health care proxy naming his sister as his agent, who was willing to continue to serve in this capacity. In deciding against the appointment of a guardian, the Court explained:
The presumptive alternative [to a guardianship] is Elias B. being discharged from the Hospital into the Binghamton area, under the same circumstances as existed prior to his hospital admission, with OPWDD continuing to coordinate his housing locally, either in a group home or independent living. Elopement and instability of housing remain a risk ..., but here Elias B. is familiar with his services coordinator, the Hospital, and other community resources and has historically managed his existence. The Court finds that the discharge plan currently put forth by the Hospital poses a greater risk of harm to Elias B. than the alternative.
The fact remains that Elias B. has successfully navigated the community and has had his needs met, with varying levels of acceptance of services, for years.
( Id. at *5 [emphasis added]). As the italicized wording suggests, the evidence from the hearing does not suggest Patient enjoys these same advantages as Elias B. Given that his mother no longer wishes to be his primary source of support in the community, and that Patient both decompensated and acted violently toward her despite the help she provided, this Court does not have the same confidence as the Elias B. Court that Patient currently possesses the skill sets to manage safely — with or without assistance — in the community.
Instead, Patient's fact pattern is more closely aligned with Matter of Jillian B. (Benny D.) , 68 Misc. 3d 1219[A], 2020 N.Y. Slip Op. 51026[U], 2020 WL 5362291 [Sup. Ct., Chemung County 2020]. Benny D. , which is authored by the same jurist as Elias B. , found the need to appoint a guardian where an individual was "expressing choices that the Court finds would place him unduly at risk of harm and establish his lack of appreciation of those risks." ( Id. at *8 ). The Benny D. Court made this decision even knowing that a guardian would have no authority to restrain the individual in a particular residential setting. Of greater concern was the individual's failure to acknowledge he needed help with his activities of daily living and his inability to articulate a reasonable plan for living in the community with another resident from his assisted living facility. Here, the Court knows Patient wishes to live in his own apartment, but that his plan to care for himself lacks many details. The totality of the evidence leaves the Court with many doubts about Patient's abilities both to perform his activities of daily living or to have the awareness to seek help if his own abilities fall short.
These findings made pursuant to Mental Hygiene Law § 81.15(b) support the appointment of a guardian of the person of Patient. The decision about whom to appoint however, is complicated by the fact that neither B.R. nor any of Patient's family members wish to serve in this capacity. Nor does the Oneida County Commissioner of Social Services, who reasons that the level of care needed for Patient is beyond the degree of expertise currently possessed by the Commissioner or her department. The Commissioner also anticipates the potential for a conflict of interest to arise with Patient if he were to develop an acrimonious relationship with Social Services staff. As a final matter, the Commissioner raises a question, which Patient's counsel joins in asking, whether appointment of a guardian is the least restrictive form of intervention since Patient will always have the option to terminate housing and other OPWDD services. (See Elias B. , 72 Misc. 3d 1204[A], 2021 N.Y. Slip Op. 50612[U], at *5 ["Authority to place is not authority to restrain a person against his will."]).
This Court acknowledges these positions taken by the Commissioner and Patient's counsel, but nevertheless finds that Patient's case does not present the same concerns as in Elias B ., where the petitioning hospital sought to relocate the respondent patient out of state while also having the local social services commissioner in New York serve as guardian. Moreover, while the Commissioner asserts her staff lacks the knowledge and expertise to be helpful to Patient, one of her own employees had the wherewithal to call the OPWDD Crisis Team and involve the agency in Patient's discharge planning. As for a potential conflict of interest, such a conclusion is speculative at this point. The Court has no evidence before it to suggest that Patient would be any less accepting of help from DSS than he has been accepting of Prime Care's help while in the Hospital.
The Court however, is aware of the importance of respecting decisions that Patient is able to make. One such decision is housing and Patient's apparent preference to live in the LINK apartments made available by The Kelberman Center. In Matter of Fratarcangelo , 69 Misc. 3d 1219[A], 2020 Slip Op. 51444[U], 2020 WL 7051364 [Sup. Ct., Schuyler County 2020], another decision authored by the same jurist in Elias B. and Benny D. , the Court made a finding of incapacity. After making such a finding, the Court then granted the individual's request for an opportunity to "prove" herself capable of managing her needs going forward, both on her own and with the assistance of others, as "the least restrictive alternative standard justifies an attempt at an alternative disposition." (See id. at *15 ). This Court is persuaded by that logic here, as it appears Patient will have access to more OPWDD services through Prime Care than was afforded in the past. Consequently, this Court will follow the course of the Fratarcangelo Court and provide a framework by which Patient's success can be reasonably measured and a subsequent determination made as to whether appointment of a permanent guardian is warranted.
Given these decisions reached by the Court, it is hereby
ORDERED that M.H. is immediately authorized to execute any paperwork necessary to confirm his intent to move to the LINK Apartments offered through The Kelberman Center; and it is further
ORDERED that M.H. will make best efforts to implement his Life Plan, as developed periodically with Prime Care, and to participate in all check-in meetings; and it is further
ORDERED that, in accordance with the considerations set forth in Mental Hygiene Law § 81.23, the Commissioner of the Oneida County Department of Family and Community Services, 800 Park Avenue, Utica, New York 13501, telephone 315-798-5700, and her successors in interest ("Commissioner"), is appointed Special Guardian of the Person for M.H., with the following listed powers, which are necessary to manage the personal needs of M.H., in a manner appropriate to him and which powers constitute the least restrictive form of intervention:
1. Execute discharge paperwork with St. Elizabeth Medical Center as soon as practicable;
2. Execute any additional paperwork beyond that provided to M.H., necessary to confirm M.H.’s intent to move to The Link Apartments at The Kelberman Center;
3. Participate, or designate a representative to participate, in Life Plan and "check-in" meetings with representatives from OPWDD and/or Prime Care;
4. Advise the OPWDD Crisis Team in the event the Commissioner or her designee is made aware of a situation involving
M.H. that would suggest the intervention of the Crisis Team is appropriate;
5. Execute other paperwork as requested by OPWDD and/or Prime Care on behalf of M.H.;
6. Authorize access to or release of confidential and medical records, with any consent to disclose medical records to be the consent of M.H., for the purposes of the federal Health Insurance Portability and Accountability Act, and to speak with the medical professionals or other medical or social work staff caring for M.H.;
7. (a) For decisions in hospitals as defined Public Health Law § 294-a(18), act as M.H.’s surrogate pursuant and subject to article 29-CC of the Public Health Law, and (b) in all other circumstances, to consent to or refuse generally accepted routine or major medical or
dental treatment, subject to the decision-making standard in Public Health Law § 2994-d(4) ; and
and it is further
ORDERED that the duration of the special guardianship shall be until further order of the Court; and it is further
ORDERED that the Commissioner shall have full and unfettered access to M.H.’s files maintained by the Hospital, health care provider, OPWDD, Prime Care and/or any service agency providing services with the assistance of OPWDD and/or Prime Care; and it is further
ORDERED that the Commissioner shall not have the authority to restrict M.H. from leaving his residency at the LINK Apartments offered by The Kelberman Center, but shall advise the Court, Mental Hygiene Legal Service, OPWDD and Prime Care in the event M.H. does vacate his apartment; and it is further
ORDERED that the Commissioner shall not have the authority to force M.H.’s participation in services arranged through OPWDD and/or Prime Care, but shall advise the Court, Mental Hygiene Legal Service, OPWDD and Prime Care in the event the Commissioner learns M.H. fails to receive such services; and it is further
ORDERED that in the event the Commissioner requires expanded powers as Special Guardian, she may submit a written request for same to the Court with an explanation as to why, on notice to Mental Hygiene Legal Service; and it is further
ORDERED that Mental Hygiene Legal Service is required to provide a copy of this Decision and Order to M.H. and explain its contents to him personally in a manner that M.H. can reasonably be expected to understand; and it is further
ORDERED that M.H. shall retain discretion to decide which, if any, of his family members may visit with him; and it is further
ORDERED that in the event B.R. has information to impart to the Commissioner about M.H. following his discharge from the Hospital, she shall do so in writing ; and it is further
ORDERED that the Commissioner shall execute and acknowledge an instrument designating the Oneida County Clerk and the Clerk's successor in office as a person on whom service of any process may be made in like manner and with like effect as if it were served personally upon the Special Guardian whenever the Special Guardian cannot, with due diligence, be served within New York state, said instrument to be e-filed with the Oneida County Clerk's Office as soon as is practicable ; and it is further
ORDERED that a conference in this case will take place on December 6, 2021 at 1:30 p.m. for the purpose of receiving a report as to M.H.’s ability to care for himself in the community and determining whether M.H. desires to petition for termination or modification of the special guardianship; and it is further
ORDERED that at said conference, counsel for the Commissioner, M.H., Mental Hygiene Legal Service, and a representative from each of OPWDD and Prime Care shall be present and should be prepared to discuss M.H.’s behavior and participation in OPWDD services following discharge from the Hospital; and it is further
ORDERED that the Commissioner is excused from filing any written reports at the current time; and it is further
ORDERED that counsel for the Hospital is to effect personal service of a Notice of Entry of this Decision and Order upon the office of the Commissioner on or before October 7, 2021; and it is further ORDERED that pursuant to Mental Hygiene Law § 81.23, as soon as is practicable but no later than five business days after the date of this Order , counsel for the Hospital shall arrange for service by regular U.S. Mail of a Notice of Entry of this Order upon the following individuals, unless an individual can confirm service via NYSCEF:
1. Caroline L. Levitt, Esq.;
2. B.R.;
and it is further
ORDERED that this file shall be sealed by the Oneida County Clerk's Office and shall be exhibited only to the parties to this proceeding, or to other interested parties upon order of the Court.
This constitutes the Decision and Order of the Court.