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January 6, 2023

New York City Sparks Debate by Using New York's Mental Hygiene Law to Engage the Homeless Population

On November 29, New York City Mayor Eric Adams held a press conference where he shared his administration’s new policy initiative to engage with the city’s homeless population. The mayor’s announcement coincided with the issuance of a directive to the FDNY, NYPD, mobile crisis programs, and the NYC Department of Health and Mental Hygiene setting forth a four-part strategy for the deployment of considerable clinical resources in the outreach effort and targeted training regarding New York State Mental Hygiene Law (MHL) standards for involuntary removal and hospitalization. The components of the strategy are:

  1. The directive identifies the legal standard for involuntary removal from the community pursuant to the MHL—the dangerousness, or danger to self or others standard—and further that the standard includes as “dangerous” individuals who, as a result of their illness, are unable to meet their basic needs for living safely in the community. (The “basic needs” element of the dangerousness standard.)
  2. Enhanced training for police and fire departments, as well as clinicians, to ensure an appropriate understanding of the basic needs component of the dangerousness standard and an understanding of appropriate de-escalation strategies, and linkage pathways to engage individuals without removal and hospitalizations when possible.
  3. Establish specialized engagement teams, on which police will be paired with clinicians and work together to engage homeless persons and evaluate their behavioral health needs.
  4. Create remote resources to support police and the engagement teams in real time. Specifically there will be a hotline staffed by experienced clinicians from NYC-operated hospitals who will be available for consultation. 

The Involuntary Removal and Retention Standard

There has been considerable public dialogue following the mayor’s address, and much of it is based on the premise that the new policies would alter the dangerousness standard found in the involuntary removal and retention provisions of MHL Article Nine. Some of the debate involves criticism that the mayor’s basic needs initiative is designed to eliminate the requirement that an individual present an imminent, manifest threat of harm to self or others to justify involuntary removal or retention. Further, some critics assert that the failure to establish imminent threat of harm results in an inappropriate expansion of the statutory authority, which has a correlative adverse impact on an individual’s constitutional liberty interest.

These arguments tend to misapprehend the current state of the law on the issue and consequently rely upon the false premise of a need to prove imminent, physically manifest dangerousness. The premise is false because the law already allows a statutory evaluator (usually a physician or psychiatrist) to consider whether an individual is, as a result of mental illness, unable to meet their basic needs in order to live safely in the community. This has been arguably the case since the 1987 Billie Boggs case. Boggs was homeless, living on a sidewalk during the winter, threatening passersby, and covering herself in her own excrement, etc. A state supreme court ordered Boggs be released from the hospital because she did not present an imminent threat of physical harm to other people. The First Department reversed the order, holding that because she was unable to meet her basic needs to live safely in the community—food, clothing, shelter, etc.—that she was a danger to herself, and therefore met the dangerousness standard.

To the extent that doubt remained with respect to the need for current, manifest dangerousness, it was resolved by the Second Department in 1993 in Matter of Hogue v. Seltzer.ii  The state supreme court had ordered that Hogue be released from the hospital where he was being involuntarily retained because he was not currently, manifestly dangerous. The appellate court, citing Boggs, among others, reversed the trial court’s decision and held that, although currently stable, Hogue’s clinical history and prior behavior—including a pattern of decompensation, hospitalization, treatment noncompliance, decompensation, etc.—met the dangerousness standard.

In addition to Boggs, Hogue, and their progeny, the New York State Office of Mental Health (OMH) has promulgated guidance on the issue. In a memorandum sent to all public mental health providers on February 18, 2022, OMH Commissioner Ann Sullivan wrote the following:

. . . There is often a misconception amongst both police as well as front-line mental health crisis intervention workers that a person with mental illness must present as “imminently dangerous” in order to be removed from the community to a hospital or CPEP setting for evaluation, admission and treatment, meaning that they need to present an immediate overt risk of violence to others or an immediate overt risk of physical harm to themselves in order for removal to be implemented. This is not the case.

The Mental Hygiene Law provides authority for peace officers and law enforcement officers to take into custody for the purpose of a psychiatric evaluation those individuals who appear to be mentally ill and are conducting themselves in a manner which is likely to result in serious harm to self or others, which includes persons who appear to be mentally ill and who display an inability to meet basic living needs, even when there is no recent dangerous act.

Likewise, Directors of Community Services, as well as physicians or qualified mental health professional who are members of an approved mobile crisis outreach team, have the power to remove or to direct the removal of any person to a hospital for the purpose of evaluation for admission if such person appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others, which includes persons with a mental illness who displays an inability to meet basic living needs, even when there is no recent dangerous act.

Limiting the application of the Mental Hygiene Law’s (MHL) removal and admission provisions to only those who present as “imminently dangerous” leaves vulnerable persons at risk in the community without an opportunity for assessment, care and treatment, and can also impact the public safety. . . .
 

(Emphasis in the original.) 

To summarize, the current legal standard allows evaluating clinicians to consider an individual’s clinical history and circumstances, including the person’s ability to meet basic needs in the community, when determining dangerousness.

The evidentiary standard remains the same; the evaluating clinician must offer credible testimony that the individual meets the standard. In addition, procedural safeguards protecting an individual’s liberty interest remain intact, including a right to appeal, the right to have the Mental Hygiene Legal Service notified of the retention, and provide legal representation.

The mayor’s plan at its broadest offers an opportunity for system innovation. There have been other “meet patients where they are” type programs and services; while many are very successful, this program is different in terms of scale and potential impact. It changes the nature of the initial engagement in the community from a law enforcement intervention by including clinical and therapeutic intervention. It is a redeployment of critical clinical resources with the dual goal of evaluating individuals in the community who may be in need of care in a hospital or an acute-care setting and creating the opportunity at the initial engagement to identify and encourage linkages to appropriate outpatient care and other social support resources, make referrals, etc.—interventions that often will not require involuntary removal. 

What has yet to emerge is a clearer picture of how this will actually work. There are many operational challenges, such as where the clinicians will come from in a healthcare environment already experiencing critical staffing shortages. The plan will certainly impact providers and provider networks. Hospital emergency departments, CPEPs, crisis intervention centers, homeless shelters, and crisis residences will be faced with patient flow challenges. Outpatient providers, such as clinics and residential programs, will likely see a spike in admissions as a result of these engagement strategies.

The mayor’s plan also includes a legislative agenda. When the elements of that plan become more concrete and there are actual bill drafts to review, Barclay Damon will share an update.

If you have any questions regarding the content of this alert, please contact Keith Brennan, of counsel, at kbrennan@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.

                                                        

iBoggs v. Health Hosps. Corp., 132 A.D.2d 340, 523 N.Y.S.2d 71 (N.Y. App. Div. 1987).
iiMatter of Seltzer v. Hogue, 191 A.D.2d 446, 594 N.Y.S.2d 786 (N.Y. App. Div. 1993).
 

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