FORCED MEDICATION

Currently in Massachusetts, I deal with similar issues regarding antipsychotic medications and children. 

The following cases are from NY but here the patient is not a child but an incarcerated adult. The standard is the same, basically centering around a best interest determination. The first decision from June 2023 sets forth a certain medication and the second decision from January 2024 deals with having to change the medication.

1. MATTER OF WIKTORKO, 2023 NY Slip Op 50667 - NY: Supreme Court, Washington 2023:

"Following a hearing in this treatment over objection application the Court previously ruled in favor of the Petitioner and ordered treatment. The Court now sets forth its reasoning.

Respondent — who is 50 years of age — was convicted of 4 counts of assault in the first degree in 2000 and sentenced to 96 years to life in prison. He suffers from schizoaffective disorder, bipolar type, and has an extensive history of noncompliance with his medications, resulting in psychiatric decompensation, violence, and disciplinary infractions. Two previous applications for treatment over objection have been granted, with one Order issued on July 21, 2016 and expiring July 20, 2017, and the other issued on June 20, 2021 and expiring on June 27, 2022.

Respondent is presently incarcerated at the Great Meadow Correctional Facility in Comstock, Washington County, and has refused to take his medications since approximately December 2022. On April 4, 2023, he was admitted to Great Meadow's Central New York Psychiatric Center Satellite Unit (hereinafter the Great Meadow CNYPCS) "due to an acute psychotic episode in the context of noncompliance with his psychiatric medication." Specifically, respondent has been having "hallucinations; religious, persecutory, and grandiose delusions; yelling and screaming; disorganized and tangential thought process[es]; [and] poor hygiene practices (hoarding urine, not flushing his toilet, covering cell bars in feces.)"

According to Julio Riascos, M.D. — his treating psychiatrist — respondent should be treated with Haloperidol (Haldol) Decanoate, 50 to 300 milligrams intramuscularly every four (4) weeks. Riascos attempted to discuss this recommended treatment with respondent, describing the encounter as follows:

"When undersigned tried to educate [respondent] about the therapeutic benefits and side effects of antipsychotic medications, he stated, `If you give it to me, I'll give them to somebody else. . . Trilafon. I didn't need it. It's the supernatural. It made me read my mind. . . Santeria. . . witchcraft. It's prohibited, they can spread disease like that!'

"Undersigned asked again for clarification of his specific treatment objection, and [respondent] responded, `I don't want Haldol because it disconnects me from God. The FDA, their administration is a gang. FDA is bad, period!' At this point [respondent] began to mumble to himself and could not engage in an effective manner due to distracting internal stimulations, indicating the presence of hallucinations."

Presently before the Court is the application of petitioner Dustina Wiktorko, Unit Chief of the Great Meadow CNYPCS, seeking authorization to administer the recommended treatment 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]).

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 are 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).

Here, petitioner has followed the administrative review procedure set forth in 14 NYCRR 527.8. Respondent was examined by Riascos on April 28, 2023, at which time he determined that he "lacks capacity to make reasoned decision concerning his treatment" and, further, "that it would be in the best interests of [respondent] to be treated according to the proposed treatment outlined in the [petition]." Gloria Thambirajah, M.D. — a consulting psychiatrist — thereafter reviewed respondent's medical records and examined him on May 10, 2023. Based upon her review of the records and her examination of respondent, she reached the same conclusion as Riascos. Petitioner requested that Mental Hygiene Legal Service (MHLS) be appointed to represent respondent.

With the petitioner's expert witness present the respondent also testified. His longwinded incoherent and nonsensical speech made clear to the court that he is incapable of making intelligent and reasoned decisions about his own healthcare. Dr. Riascos further testified that this testimony was consistent with his diagnosis although the respondent had gotten worse since his April 28, 2023 examination.

Petitioner 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. The application is granted (see e.g. Matter of Sawyer [R.G.], 68 AD3d 1734, 1734-1735 [2009])."

2. MATTER OF WIKTORKO, NY: Supreme Court, Washington 1/26/24, Case No.  EC2023-36002:

"Presently before the Court is the application of petitioner Dustina Wiktorko, Unit Chief of the Central New York Psychiatric Center Great Meadow Correctional Facility Satellite Unit, seeking authorization to administer a medication to respondent over his objection. Respondent — who is 43 years of age — is an inmate at the Great Meadow Correctional Facility. He was convicted of kidnapping in the second degree, criminal sexual act in the first degree, and robbery in the second degree on March 9, 2010 and is currently serving a sentence of 45 years. He has been diagnosed with schizoaffective disorder, bipolar type. There have been two previous Orders granting applications to administer antipsychotic medications to respondent over his objection, which Orders covered the following time periods: (1) March 2, 2020 to March 1, 2021; and (2) October 6, 2022 to October 5, 2023.

In his supporting affirmation, sworn to September 19, 2023, respondent’s treating psychiatrist — Manuel Montes de Oca, M.D. — indicates that once the most recent Order expires, respondent will stop taking his medication. Specifically, Dr. Montes de Oca indicates that respondent stated as follows: “I am doing OK, can I come off medications…I do not need it really. I get some stiffness and shakes during the night.” In the past, respondent has decompensated rapidly after stopping his medication, with Dr. Montes de Oca recounting an incident in August 2011 when respondent attempted suicide by “stab[bing] himself in the eye with a broken mop handle.” Dr. Montes de Oca further states as follows:

“[Respondent's] previous [Order] expired in March 2021 and soon after that [he] stopped taking medications altogether. According to records…, [respondent] was presenting so psychotic that he was not taking care of his basic needs. His food intake became so poor that ‘technically he went on a Hunger Strike.’ He was exhibiting significant paranoia and bizarre behaviors, like eating food off the floor, urinating on the floor of his room, or defecating in the side room. His odor became so bad that it was deemed ‘unsuitable for a multi-patient living environment’ and [he] was restricted from peer interaction in the dayroom.”

Respondent is currently taking Haldol, but is experiencing some tardive dyskinesia — or involuntary movements — of his mouth and tongue according to Dr. Montes de Oca, who recommends that the medication be changed to Invega Sustenna in an attempt to decrease these side effects.

A hearing was held relative to this application on October 23, 2023, at which time the parties stipulated to Dr. Montes de Oca’s expertise in psychiatry and he testified as follows:

“A. The evidence seems to indicate that he has a schizoaffective disorder bipolar type. That is the diagnosis basically that is in the record.

“Q. And Doctor, with respect to that mental illness that you’ve just mentioned, what are Mr. F’s current symptoms?

“A. He, based on my last assessment, is stable psychiatrically.

“Q. And what does that mean?

“A. That he is not showing significant acute mental illness” [Hearing Transcript, at p 8].

******

“Q. Doctor, do you have an opinion, based on your care and treatment, your own evaluation and care and treatment of the patient, and your review of his progress notes and conversations that you have had with the patient, as to whether, without the medication, he would engage in conduct that is imminently likely to pose a risk of physical harm to himself or others?

“A. He could be…” [Hearing Transcript, at p 21].

******

“Q. But Mr. F is not currently showing any acute symptoms of mental illness; correct?

“A. He is not showing symptoms that prompt the need to isolate, lock him or give emergency medication to him, yes” [Hearing Transcript, at p 23]. The Court found this testimony ambiguous, at times less clear and less convincing, and unusually punctuated with an injection of hearsay from others somehow involved in respondent’s care. The following is instructive:

“Q. And Doctor, do you have an opinion to a reasonable degree of medical certainly, as to whether [respondent], without medication, would engage in conduct or is imminently likely to engage in conduct that poses a risk of physical harm to either himself or others?

“A. Well that’s precisely the letter that I got from my supervisors on top of the Office of Mental Health. Basically they telling me, when I told them, actually I told them that I don’t think it’s going to fail, COPM scrutiny in the way he is. And they send me a letter, because basically the rule is, he is doing fine, let’s leave it alone, and when he starts showing symptoms, then we say okay, now we have to do it. But they clearly shut me up by saying, and I have it here, because his previous history of dangerous behavior…” [Transcript, at pp 19-20].

The Court ordered the parties to submit the full transcript together with proposed findings of fact and conclusions of law because the treating psychiatrist described the respondent as not currently showing any acute symptoms of mental illness, that there was no prompt need “to isolate, lock him or give emergency medication to him” [Transcript, at p 23], that he is “stable psychiatrically[, and] not showing significant acute mental illness” [Transcript, at p 8].

Petitioner’s requested relief 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” (id. at 497 [citation omitted]).

Despite Dr. Montes de Oca’s failure to clearly and convincingly express any substantive medical opinions, the record fortuitously manages to present reliable evidence that respondent suffers with schizoaffective disorder, bipolar type and, more to the Court’s task at hand, that he lacks the capacity to make his own treatment decisions.

This Court’s conclusion that the respondent lacks the capacity to determine the course of his own treatment answers only half the equation. Rivers also instructs that 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).

The Court finds petitioner has established that the proposed treatment set forth in the petition is narrowly tailored to the needs of the respondent and gives substantive effect to respondent’s liberty interests.

Dr. Montes de Oca also testified that the medication he was seeking to give respondent as set forth in the petition would be in respondent’s best interest because it would cause respondent to experience far fewer symptoms/side-effects than his current psychiatric medication. According to Dr. Montes de Oca, by switching respondent’s medication from Haldol to either Invega Sustenna or Abilify Maintena, respondent would experience less tardive dyskinesia and would also be at less risk of developing additional symptoms such as difficulty talking and swallowing. In fact, Dr. Montes de Oca testified that by taking respondent off the Haldol and switching him to either Invega Sustenna or Abilify, he would be less likely to have any side effects in general and would likely have a better quality of life overall. No evidence contradicts this evidence. The Court thus finds that the proposed treatment is in the respondent’s best interest.

Based on the evidence before the Court, I find petitioner in her capacity as Unit Chief of Central New York Psychiatric Center’s Great Meadow Satellite Unit, has met the burden of proving by clear and convincing evidence that respondent lacks the capacity to make a reasoned decision with respect to the administration of the psychotropic medications described in the petition.

I further find petitioner has demonstrated by clear and convincing evidence that the proposed treatment plan is narrowly tailored to give substantive effect to respondent’s liberty interest, considering respondent’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternatives.

Therefore, having considered NYSCEF document Nos. 1, 12, 18 through 20, and a hearing having been held on October 25, 2023 with Amanda Kuryluk, Esq. appearing on behalf of petitioner and Vinson Bovier Stevens appearing on behalf of respondent, it is hereby

ORDERED AND ADJUDGED that the medication proposed by Manuel Montes de Oca, M.D., and recited on pages 4 and 5 of his Evaluation, may be administered to respondent by the Office of Mental Health (OMH), or any medical practitioner authorized by OMH over his objections and in a manner determined by petitioner to be in his best interest, with assistance from the Department of Corrections and Community Supervision (DOCCS), if necessary, including DOCCS using only that degree of physical force that is lawful and reasonably necessary under the circumstances, during the care and treatment of respondent at any psychiatric satellite unit operated by OMH for the duration of one (1) year, unless respondent’s capacity is restored; and it is further;

ORDERED that the file in this proceeding shall be sealed by the Washington County Clerk and shall be exhibited only to the parties to this proceeding, or to other interested parties upon further Order of the Court."