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Many questions arise on the efficacy and implementation of the Mayor’s new directive.


Understanding NYC’s Directive on Involuntary Treatment for Individuals with Mental Illness

Published December 6, 2022

By Nicholas N. Khayumov, Esq.

On Tuesday, November 29, 2022, Mayor Eric Adams issued a directive to give the police increased authority to assist the rising homeless population in New York City who have apparent mental health issues and are not receiving adequate treatment. According to news reports, the city has seen an increase in more than 10,000 calls to police officers to assist individuals who appear to be in emotional crisis, and there has been an increase in random subway and street crime. While some of these crimes may very well have an underlying mental health component, some research shows that most individuals with mental illness are not violent, and most crimes overall are not committed by people who are unhoused or mentally ill.

Many questions arise on the efficacy and implementation of the Mayor’s new directive. Psychiatric hospitals and outpatient treatment can certainly provide potential solutions and treatment in helping those with mental illness, but many individuals are not open to entering a hospital or receiving said services voluntarily.

Article 9 of Mental Hygiene Law Provides the Basis of Authority for Involuntary Treatment

Mayor Adam’s new directive involves an expanded interpretation of current New York State law. Current law does give police officers, peace officers, mobile crisis outreach teams, medical professionals and hospitals the authority to have an individual involuntarily removed to a hospital setting and involuntarily treated for psychiatric conditions. This authority stems from Article 9 of New York Mental Hygiene Law. Sections 9.41, 9.43, 9.45, and 9.58 allow peace officers, police officers, courts, directors of community services and designated clinicians in mobile crisis outreach teams to remove or direct the removal “to a hospital with a psychiatric department, of any person who appears mentally ill and is conducting themselves in a manner which is likely to result in serious harm to themselves or others…”

The Mayor’s directive interprets this authority broadly–to include the authority for removal of persons who appear to be mentally ill and display an inability to meet basic living needs, even when no recent dangerous act has been observed. Behind this rationale lies the analysis that if a person cannot meet their basic living needs, the person would likely suffer serious harm to themselves.

Mayor’s Adam’s directive does not change the law. Under Article 9, presuming that the removal is authorized, the next hurdle will be whether the individual can be kept in a hospital involuntarily or treated involuntarily. For example, if an individual is brought to a hospital for psychiatric treatment, the examining physician of the hospital needs to agree that the individual is suffering from a mental illness and conducting themselves in a manner which is likely to result in serious harm to themselves or others. Without personally observing any such behavior, this can be particularly difficult – and the hospital’s interpretation of the law may not align with the interpretation of the law as in the Mayor’s directive. Further, the hospital may only keep the individual for forty-eight hours unless the first physician’s finding is confirmed by a second physician. Separately, the hospital is required to provide the individual with a notice detailing their rights to request a court hearing within five days on the question of the need for immediate observation, care and treatment. If a determination is made within 15 days of arrival to the hospital that the person is not in need of involuntary care and treatment, the person shall be discharged, unless they voluntarily choose to stay.

Further, under Article 9, if further involuntary care and treatment is necessary, a separate process must be initiated whereby two physicians certify that the person must be admitted and involve further provisions for notice, hearing, review and judicial approval of retention of the individual. The duration of the retention cannot exceed 60 days without further judicial approvals.

This process can produce a revolving door in hospitals for individuals who are mentally ill, display an inability to meet basic living needs and refuse to voluntarily receive treatment. Hospitals may not agree with the interpretation of the law in the Mayor’s directive and discharge the patient. The process can also overcrowd the courts with hearings that have to be scheduled in a very timely manner. To compound the problem, hospitals are filled to capacity with patients in crisis. Keep in mind that, in certain circumstances, if the individual does not need to remain in a hospital setting, a court can mandate a treatment plan, called “Assisted Out-Patient Treatment” or “AOT” under what is also known as “Kendra’s Law.”

Help with Navigating the Process

Article 9 does help ensure that those with mental illness have access to hospitals and out-patient services that would help them and others survive safely in our communities. However, the process can be daunting and confusing.

If you need help navigating this process to assist a loved who may have mental illness, it is a good idea to call an experienced attorney. If you believe a loved one is experiencing suicidal thoughts or may be a danger to themselves or others, or if you are experiencing these thoughts, please call 911 or 988 for assistance.

Further Reading:

Office of Mental Health: Mental Hygiene Law Admissions Process

The New York Times – New York’s Plan to Address Crisis of Mentally Ill Faces High Hurdles

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