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Due Process

N.Y. Court Categorically Authorizes Video Proceedings in Mandatory Mental Treatment Cases


From Judge Gerard Neri (N.Y. Onondaga County trial court), decided July 26, in In the Matter of St. Joseph's Hospital Health Center v. B****** V*******:

On June 16, 2023, Petitioner St. Joseph's Hospital Health Center … filed an emergency application to retain Respondent B****** V******* … as a patient and provide treatment pursuant to Mental Hygiene Law ("MHL") § 9.33….

MHLS [Mental Hygiene Legal Service] on behalf of Respondent moves for an order mandating an in-person hearing on the Petition for treatment over objection pursuant to MHL § 9.27. The argument proffered by MHLS is that with the recission of COVID-19-era administrative orders mandating virtual appearances in MHL Article 9 proceedings, the Court must hear such matters in-person….

Since the onset of COVID-19, this Court has conducted many motion arguments, hearings, and non-jury trials via Microsoft Teams without significant issue. Those issues that have arisen mostly involve matters which would occur with in-person appearances, namely timeliness and outside noises. As Counsel for St. Joseph's pointed out, it is not an uncommon occurrence for an emergency siren or exterior shouts or air conditioning turning on to be so loud as to interrupt a witness testifying or attorney arguing. In both cases, virtually or in-person, the Court or Court Reporter have simply asked the individual to repeat themselves and the proceedings moved on.

Due Process does not command that the hearing be conducted in-person either.

"More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail" (Mathews v. Eldridge [1976]).

It is unquestionable that the private interests of the Respondents are significant, namely the treatment over objection sought by Petitioners. But the second and third factors weigh in favor of permitting a virtual hearing. It has not, nor can it be argued that a virtual hearing would lead to an erroneous determination. As stated within this decision, the fiscal and administrative burdens, as exemplified in transportation and security, weigh in favor of a virtual proceedings and have the added benefit of safety to the Respondents and those around them. A further example of the administrative burdens is the time it takes for an in-person proceeding versus virtual. Attorney Connolly noted that an in-person proceeding could take as much as four hours for a doctor to leave the facility, appear in court, testify, and return to work with patients. Conversely, a virtual appearance would only take about twenty minutes. The additional three-plus hours robs other patients of meaningful treatment. The scale becomes even greater when one considers that potentially each patient has a different doctor testifying about their needs. Respondents' due process rights are not infringed by a virtual proceeding….

Turning to the best interests of the Respondent and similarly situated individuals, the Court finds that the benefits of virtual appearances outweigh the unspoken benefits of an in-person hearing. MHLS has focused on Robert F. (N.Y. 2015) and its decree that Courts may utilize "live, two-way video testimony pursuant to its inherent power, but only where exceptional circumstances so require, or when all parties consent." By the very nature of MHL § 9.27 proceedings, these Respondents are in a delicate mental state and thus present an "exceptional circumstance." As argued by Counsel for Petitioner St. Joseph's, exceptional does not mean rare.

As was discussed at oral argument, Respondents have grown accustomed to their present surroundings. An in-person appearance would require them to be transported, along with others, from the treatment facility to the courthouse and many times in restraints. This transportation would require additional hospital staff and security to ensure the safety of Respondent and others. In fact, oral argument revealed that prior to COVID-19, a patient at a private hospital, either St. Joseph's or Community General, now operated by Petitioner Upstate, would be placed in a taxi with a nurse, sent to the courthouse, and if the patient wandered off, staff were instructed not to intervene or take other steps to forcibly bring the patient back. As MHLS requests and has routinely been granted requests to close the court room, a respondent would be left outside the court room in a hallway while other matters proceed.

When the attorneys were questioned by the Court, the attorneys recounted instances where a respondent became disruptive, while another matter was pending, and without authorization left the courthouse. Transportation of Respondents and those similarly situated often involves placing the individual in restraints, although MHLS has attempted to downplay this fact and claim it is not a common practice but nonetheless concede that it does occur. All this results in additional stresses placed upon an individual who can ill-afford further pressure. The Court does not see the benefits of requiring an individual who has failed to make a request for in-person attendance to go through the arduous trip in a fragile mental condition.

MHLS raised the issue of being present with their clients during hearing. Conducting video hearings also allows MHLS to be in person with their clients at facilities during a hearing. In an attempt to counter this point, MHLS said that due to the various facilities involved, it would be impossible to be at multiple locations in back-to-back hearings. This could easily be remedied by having temporally separate hearings for each facility, spaced out sufficiently to account for travel times or even on different days, or assignment of specific MHLS attorneys to each facility. This Court wonders how many patients would then attend a video conference in the environment they are accustomed to with their attorney.

The caselaw does not support the demand by MHLS for in-person hearings. As noted in the Report issued by the Pandemic Practices Working Group of the Commission to Reimagine the Future of New York's Courts, much has changed with the world pre- and post-COVID-19. Virtual appearances have become commonplace as technology has evolved. NYSCEF recognizes this with the addition of the Virtual Evidence Courtroom ("VEC"). The positive changes of COVID-19 is the ability to handle non-jury trials, motions, and hearings via video. In fact, it is this Court's observation that having a witness which the camera is focused upon give the Court a greater ability to determine credibility during testimony.

The Court finds that Mental Hygiene Law Article 9 proceedings are inherently "exceptional circumstances" and qualify for virtual proceedings. In the future, should a particular respondent personally desire to appear at the courthouse for an in-person appearance, then that application should be supported by an affidavit of the party-patient making the request.