Is An Attorney A Significant Individual?

The New York Court of Appeals has held that counsel for a committed offender may be barred from an interview and opportunity to participate in the treatment regime

On this appeal, we are asked to determine whether Mental Hygiene Law articles 10, 29, and 47 mandate, upon a respondent’s request, the presence of assigned Mental Hygiene Legal Service (MHLS) counsel at treatment planning meetings for article 10 respondents placed in a Sex Offender Treatment Program at a secure treatment facility. We hold that MHLS counsel is not entitled to be given an interview and an opportunity to participate in treatment planning simply by virtue of an attorney-client relationship with an article 10 respondent…

Petitioners argue, and the dissent agrees, that MHLS counsel comes within the meaning of the statutory phrase “significant individual to the patient, including any . ..individual otherwise concerned with the welfare of the patient” (Mental Hygiene Law § 29.13 [b]), because the purpose of the 1993 amendment was to “allow a patient in a facility to have a friend or advocate of his or her choice to be present at the meeting when facility staff develop the treatment or discharge plan” (Sponsor’s Mem, Bill Jacket, L 1993, ch 135, at 6 [emphasis added]), and MHLS provides “advocacy” services. However, the language on which petitioners rely is cherry-picked from the Sponsor’s Memorandum in support of the bill, which also states that the amendment arose out of a study “suggest[ing] that there is a need for facility staff to be attentive in nurturing and developing informal supports for individuals while they are hospitalized in order to promote the delay or avoidance of the need for rehospitalization” (id.). The Sponsor’s Memorandum explains that, “[o]ften, individuals receiving services do not have an available family member who can participate,” and that “[t]his bill will promote the inclusion of significant others in the planning process” (id. [emphasis added]). The legislative history makes clear that the term “significant individual” refers to family, friends, significant others and similar individuals who have a personal relationship with a patient that would enable such individuals to act as a patient advocate during the clinical activity of treatment planning, rather than counsel providing legal advocacy as part of a traditional attorney-client relationship.

Justice Wilson dissented

The majority’s decision deprives individuals in secure treatment facilities of one of the few, and perhaps only, external sources of support in the treatment planning process.
D.J. has cognitive disabilities and is on a specialized treatment track. D.J. requested his MHLS attorney be involved in treatment planning to accompany him and advocate for him. D.J.’s request is both reasonable and understandable given what we know of life for those committed to secure treatment facilities. It is also completely in line with the vision the Legislature had for “significant individuals” who could participate and “advocate” for patients in treatment planning. The Court’s decision ignores the Legislature’s clear command and further isolates D.J. One can only hope OMH appreciates the Legislature’s decision and exercises its new Court-created discretion liberally to allow MHLS attorney participation when requested by a patient.

For the reasons above, I dissent.

He also has a pointed response to the “cherry picking” remark. (Mike Frisch)