The opinion
State of New York OPINION
Court of Appeals This opinion is uncorrected and subject to revision
before publication in the New York Reports.
No. 2
In the Matter of Mental Hygiene
Legal Service,
Respondent,
v.
Anita Daniels, &c.,
Appellant.
Matthew W. Grieco, for appellant.
Sadie Zea Ishee, for respondent.
DiFIORE, Chief Judge:
Petitioner Mental Hygiene Legal Service (MHLS) is a government entity charged
with providing legal services to patients of mental health facilities and hospitals “related to
the admission, retention, and care and treatment of such persons” (Mental Hygiene
Law § 47.03 [c]). The threshold determinative issue here is whether MHLS has standing
to initiate a proceeding in its own name seeking a writ of mandamus to compel a hospital
-1-
-2- No. 2
to comply with Mental Hygiene Law § 9.31 (b), which sets forth the procedure that must
be followed after a patient requests an admission or retention hearing. Because MHLS
lacks standing to bring this proceeding in its own name to vindicate its clients’ rights under
Mental Hygiene Law § 9.31 (b), we reverse the Appellate Division order, grant
respondents’ motion, and dismiss the petition and proceeding.
A mental health facility or hospital is authorized to admit a patient involuntarily if
three physicians, including a psychiatrist, certify that the patient is mentally ill and in need
of involuntary care and treatment (Mental Hygiene Law § 9.27 [a], [e]). A patient
challenging admission can request a hearing before a judge, which is to be held within five
days of notice to the court of the request (Mental Hygiene Law § 9.31 [c]).1 To this end,
Mental Hygiene Law § 9.31 provides that “[i]t shall be the duty of the [facility] upon
receiving notice of such request for hearing to forward forthwith a copy of such notice with
a record of the patient to [the court and] . . . the mental hygiene legal service” (Mental
Hygiene Law § 9.31 [b]). The underlying dispute in this case is whether the “record of the
patient” referred to in this statute includes a copy of the patient’s entire clinical chart.
Judicial hearings under section 9.31 are held at respondent Bronx Psychiatric Center
(BPC) every Wednesday. MHLS has an office at that facility and it is undisputed that it
has round-the-clock access to (and may copy) any clinical chart related to a client pursuant
to Mental Hygiene Law § 47.03 (d). Prior to this litigation, upon learning of a request for
1
The notice requirement is also triggered if the hospital files an application to retain the
patient beyond the initial admission period, and the patient requests a hearing (see Mental
Hygiene Law § 9.33 [c]).
-2-
-3- No. 2
a hearing, BPC’s practice was to send both the court and MHLS copies of the notice of
hearing, the client’s admission, transfer, or retention papers, and the physician certificates
supporting the client’s confinement (see Mental Hygiene Law § 9.27 [e]) – but it did not
supply a copy of the patient’s clinical chart. BPC did, however, bring the entire clinical
chart – which includes clinical assessments, the client’s medical history, and progress notes
– to the hearing. According to BPC, the clinical chart usually consists of one or two binders
totaling hundreds of documents and is continuously updated.
MHLS alleges that, in early 2016, it “began to notice problems with the medical
charts offered into evidence by BPC” because “documents contained in the chart had been
added or removed just prior to the hearing.” MHLS filed this CPLR article 78 petition in
the nature of mandamus, in its own name – and separate from any specific client or
proceeding – seeking an order compelling BPC to provide copies of a patient’s entire
clinical chart when it provides notice of a request for an admission or retention hearing,
arguing the clinical chart is part of the “record of the patient” under Mental Hygiene
Law § 9.31.
BPC moved to dismiss the petition on the ground that MHLS lacked standing to
bring such a claim in its own name, contending that MHLS had not shown an injury in fact.
BPC argued that MHLS – which provides legal services to patients as its clients – could
not pursue the claim because the statute at issue protects the clients’ interests, rather than
those of MHLS and, in any event, MHLS had not articulated an injury distinct from the
harm purportedly suffered by its clients. Finally, BPC argued that MHLS could not rely
on associational standing to assert a claim on behalf of its “members” because that
-3-
-4- No. 2
government agency does not have “members.” On the merits, BPC argued that Mental
Hygiene Law § 9.31 does not clearly require it to provide copies of a patient’s clinical chart
as the phrase “record of the patient” is defined in section 9.01 to encompass the application
and accompanying physician certificates relevant to initiation of the legal proceeding – not
a patient’s medical records.
In opposition to the motion, MHLS argued, among other things, that it had standing
under common law principles to assert a claim on behalf of its clients and contended that
its “injury in fact” was that its ability to represent and advocate for patients was being
frustrated by BPC’s alleged noncompliance with section 9.31. On the merits, MHLS
acknowledged that the operative phrase is defined in section 9.01 but contended that
statute’s reference to “regulations of the commissioner” required consideration of statutory
and regulatory provisions found elsewhere in the Mental Hygiene Law (see Mental
Hygiene Law § 33.16; 14 NYCRR 501.2), which indicate that a “patient record” means the
patient’s clinical record.
Supreme Court denied the hospital’s motion to dismiss and granted the petition,
determining that although MHLS does “not have individual standing to bring this action,
it nevertheless has organizational standing” to assert its client’s rights on the rationale that
“those whom the statute seeks to protect . . . will not seek judicial intervention and, thus, a
remedy.” Additionally, Supreme Court determined that MHLS had demonstrated a right
to mandamus relief. Thus, Supreme Court ordered the hospital to provide MHLS with a
“complete copy of a respective patient’s medical chart prior to a hearing.”
-4-
-5- No. 2
With two Justices dissenting, the Appellate Division affirmed (158 AD3d 82 [1st
Dept 2017]). The Court acknowledged that an organizational defendant must generally
establish injury to itself or to a member in order to have standing. But it ultimately relied
on the existence of “exceptional circumstances” in concluding that MHLS established
associational standing. Moreover, the Court opined that MHLS had “alleged a specific and
genuine burden on its resources” and its injury fell within the interests “sought to be
provided or protected by the statutory provision that it invokes” (see 158 AD3d at 89).
Finally, the Appellate Division concluded that MHLS was entitled to mandamus relief.
The dissenting Justices found it unnecessary to address the standing issue, reasoning
that because MHLS had not established a clear legal right “to be provided with complete
copies of patient charts at BPC’s expense” the claim failed on the merits (id. at 95). The
dissent emphasized that this case is not about MHLS’ access to medical charts or its ability
to make copies of patient records to fulfill its advocacy function because a separate statute
guarantees round-the-clock access. Further, the dissent disagreed that the dispute is
governed by Mental Hygiene Law article 33 and regulations promulgated thereunder,
noting that the term “record” as used in section 9.31 is defined in section 9.01 to comprise
the admission, transfer or retention papers or orders and their “accompanying data” – the
medical certificates supporting the application.
BPC appealed to this Court as of right (CPLR 5601 [a]) and we now reverse the
Appellate Division order, grant the motion to dismiss the petition for lack of standing, and
dismiss the proceeding.
-5-
-6- No. 2
“Under the common law, there is little doubt that a ‘court has no inherent power to
right a wrong unless thereby the civil, property or personal rights of the plaintiff in the
action or the petitioner in the proceeding are affected’” (Society of Plastics Indus. v County
of Suffolk, 77 NY2d 761, 772 [1991], quoting Schieffelin v Komfort, 212 NY 520, 530
[1914]). Related to this principle is “a general prohibition of one litigant raising the legal
rights of another” (Society of Plastics, 77 NY2d at 773). Thus, if the issue of standing is
raised, a party challenging governmental action must meet the threshold burden of
establishing that it has suffered an “injury in fact” and that the injury it asserts “fall[s]
within the zone of interests or concerns sought to be promoted or protected by the statutory
provision under which the [government] has acted” (New York State Assn. of Nurse
Anesthetists v Novello, 2 NY3d 207, 211 [2004]).2 The injury in fact requirement
necessitates a showing that the party has “an actual legal stake in the matter being
adjudicated” and has suffered a cognizable harm (see Society of Plastics, 77 NY2d at 772)
that is not “tenuous,” “ephemeral,” or “conjectural” but is sufficiently concrete and
particularized to warrant judicial intervention (Novello, 2 NY3d at 214; see Spokeo, Inc. v
Robins, 136 S Ct 1540, 1548 [2016]).
2
As we explained in Society of Plastics, “[t]he question of standing . . . may, of course,
be answered by the statute at issue, which may identify the class of persons entitled to
seek review (see, e.g., State Finance Law art 7-A declaring that ‘any citizen-taxpayer
should have and hereafter does have a right to seek the remedies provided for herein’
[State Finance Law § 123])” (77 NY2d at 769). But Mental Hygiene Law article 9 does
not contain a standing provision authorizing MHLS to initiate an enforcement suit in its
own name. Accordingly, our common law standards govern here.
-6-
-7- No. 2
An organization can establish standing in several ways. Under the standard
established in Society of Plastics (see 77 NY2d at 775), it may demonstrate “associational
standing” by asserting a claim on behalf of its members, provided “that at least one of its
members would have standing to sue, that it is representative of the organizational purposes
it asserts and that the case would not require the participation of individual members”
(Novello, 2 NY3d at 211). Alternatively, an organization can demonstrate “standing in its
own right to seek judicial relief from injury to itself and to vindicate whatever rights and
immunities the association itself may enjoy” (Warth v Seldin, 422 US 490, 511 [1975]; see
Society of Plastics, 77 NY2d at 772-773). Under this option, an organization – just like an
individual – must show that it has suffered an “injury in fact” and that its concerns fall
within the “zone of interests” sought to be protected by the statutory provision under which
the government agency has acted (see Society of Plastics, 77 NY2d at 774-775; Matter of
Colella v Board of Assessors of County of Nassau, 95 NY2d 401, 409-410 [2000]).
Here, MHLS asserts standing to enforce Mental Hygiene Law § 9.31, claiming that
it possesses interests derived therefrom. That statute provides:
“It shall be the duty of the director upon receiving notice of
such request for hearing to forward forthwith a copy of such
notice with a record of the patient to the supreme court or the
county court in the county designated by the applicant, if one
be designated, or if no designation be made, then to the
supreme court or the county court in the county where such
hospital is located. A copy of such notice and record shall also
be given the mental hygiene legal service” (Mental Hygiene
Law § 9.31 [b]).
Mental Hygiene Law § 9.01, a definitional provision, states that the “‘record’ of a patient
shall consist of admission, transfer or retention papers and orders, and accompanying data
-7-
-8- No. 2
required by this article and by the regulations of the commissioner” (Mental Hygiene
Law § 9.01). Beyond agreement that this definition applies, the parties dispute what
documents comprise the “record” or the “accompanying data.”3 But regardless of the
nature of the documents that must be supplied to the court (with a copy to MHLS), one
thing is clear: Mental Hygiene Law § 9.31 (b) is a notice provision aimed at alerting the
court and a patient’s counsel “forthwith” that the patient has requested a hearing to
challenge the propriety of admission or continued retention. This enables the court to
promptly schedule a hearing within five days of the patient’s request and facilitates
representation by MHLS at that hearing. The statute is comparable to other procedural
rules found elsewhere in the law intended to ensure the just and expeditious resolution of
litigants’ claims by the courts. In this instance, the rights and interests that Mental Hygiene
3
MHLS posits that the phrase “record of the patient” is synonymous with the terms
“case record, clinical record, medical record, or patient record,” which are defined in a
regulation (14 NYCRR 501.2) as the “clinical record as such term is defined in [Mental
Hygiene Law § 33.16].” Alternatively, MHLS asserts that the clinical record is
“accompanying data” within the meaning of section 9.01 and, thus, that section 9.31
functions as a discovery or evidentiary rule, requiring the hospital to provide the clinical
chart in advance of the hearing. In contrast, BPC asserts that it is unnecessary to look
beyond Mental Hygiene Law article 9 to discern the meaning of “record of the patient”
because the definition in section 9.01 governs, which references legally relevant
admission, transfer or retention papers (which function as pleadings in an admission or
retention proceeding) and their “accompanying data.” BPC maintains that phrase refers
to the physician certificates that must “accompany” any such application under sections
9.27 (a) and (e), both of which use derivations of the verb “accompany” to reference
those supporting documents. It would make no sense, argues BPC, to interpret Mental
Hygiene Law § 9.31 as requiring that the notice to the court and counsel (necessary to
schedule a prompt hearing and ensure representation by MHLS) be delayed while
hospital staff make copies of voluminous medical charts.
-8-
-9- No. 2
Law § 9.31 (b) endeavors to protect are those of the patient-litigant who has requested
judicial review.
On this record, MHLS does not have standing to bring this petition under any of the
available routes because it failed to allege – much less establish – that it has suffered an
injury in fact within the protected zone of interests as a result of the asserted violation of
Mental Hygiene Law § 9.31. First, MHLS has not shown with any particularity that it has
suffered an actual harm to its own interests as opposed to those of the patients it serves.
Rather, MHLS couches its interest in this dispute exclusively in terms of the needs and
rights of its clients, noting that a complete copy of the clinical chart must accompany the
Mental Hygiene Law § 9.31 notice because it “is necessary to protect the [client’s] due
process rights” and clients must receive adequate “notice of the evidence being used against
them.”
In Supreme Court, MHLS did not predicate its standing claim on the assertion that
BPC’s failure to provide copies of the clinical chart imposes an undue burden on MHLS
attorneys or other agency resources, nor does the record contain sworn factual allegations
describing such a burden with particularity. The premise of MHLS’ claim – which we
accept for standing purposes – is that a physical copy of a patient’s clinical chart must be
in MHLS’ possession at the time notice of the hearing is given. But notably lacking from
this record is any allegation relating to the number of hours that MHLS employees would
need to expend to copy records or the non-reimbursable expense, if any, that would be
incurred if they are not supplied by the hospital. This is significant because, prior to this
proceeding, BPC had never provided copies of a patient’s clinical file as part of the Mental
-9-
- 10 - No. 2
Hygiene Law § 9.31 (b) notice. Thus, MHLS was well-positioned to describe the burden,
if any, imposed on the agency and its attorneys as a result of BPC’s long-standing practice
– yet it did not do so. Indeed, although it claims that, prior to the hearing it must have a
copy of the clinical chart, rather than access to it, in order to effectively represent clients,
MHLS never alleged in the record that it actually copied a single patient’s clinical chart.
Thus, the legal services provider has not established an injury in fact within the zone of
interests protected by the statute.
For the same reasons, MHLS has not established associational standing, even if it is
viewed as an “organization” with “members.” Preliminarily, we reject MHLS’ invitation
to dispense with the “member” requirement as this would require us to eliminate the first
prong of the Society of Plastics standard, which requires a showing that at least one member
of the organization has standing to sue (see also Matter of Dental Socy. of State of N.Y. v
Carey, 61 NY2d 330, 333-334 [1984]).4 To the extent MHLS, a government entity that
performs legal services, could be said to have “members” they would not be its clients.
In this respect, Matter of MFY Legal Servs. v Dudley (67 NY2d 706 [1986]) is
instructive. In Dudley, a not-for-profit legal services corporation initiated a proceeding in
its own name seeking a writ of prohibition against a group of Supreme Court Justices to
prohibit them from issuing certain ex parte orders in summary proceedings involving real
4
Under the federal test for associational standing set forth in Hunt v Washington State
Apple Advertising Comm’n (432 US 333, 344 [1977]), MHLS lacks the requisite “indicia
of membership,” even viewing its clients as members, because MHLS clients “do not
‘elect’ its members, do not ‘serve’ on the association, and do not ‘finance its activities’”
(see Mental Hygiene Legal Serv. v Cuomo, 609 F Appx 693, 695 [2d Cir 2015]). We
have no occasion to reject or adopt the federal “indicia of membership” analysis.
- 10 -
- 11 - No. 2
property. This Court found that petitioner lacked standing, noting it had not adequately
alleged an injury in fact because its claimed injury – “that the entry of default judgments
without inquests results in a greater demand for its services than holding inquests” – was
too speculative (id. at 708). To the extent the organization asserted associational standing,
the Court found it did not meet the standard because “none of [its] lawyer members has
standing” and, “[u]nless its members have standing, [an organization] can claim none as
their representative” (id.). The Court rejected the notion that a lawyer has standing to
commence litigation as a representative of its clients, noting that “what petitioner is
attempting to do is to sue on its own behalf for a declaration of its potential clients’ rights”
– something it could not do (id.). The same is true here.
MHLS’ failure to adequately assert an injury in fact here is evident when this case
is compared to others in which an organization or entity has been deemed to have standing
to challenge government action in its own name. For example, in Mahoney v Pataki (98
NY2d 45, 49-50 [2002]), a group of attorneys who represented defendants in capital cases
sought a declaration that fees for legal and paralegal assistance were authorized under
Judiciary Law § 35-b, challenging the Director of the State Division of the Budget’s policy
interpreting the statute as limiting compensation to only lead and associate counsel. We
held that although the attorney-plaintiffs’ “pecuniary interests are not the primary
motivation behind Judiciary Law § 35-b, those interests nonetheless derive from a right
that is conferred by statute, i.e., the right to be adequately compensated for services as
determined in accordance with the approved fee schedule” (id. at 52). Thus, the attorney-
plaintiffs – who were seeking a separate funding stream to pay supportive employees –
- 11 -
- 12 - No. 2
asserted an injury in fact that was within the zone of interests protected by the statute (id.).
Although MHLS suggests otherwise, we did not predicate standing on the fact that assigned
counsel were specifically referenced in the statute but applied our traditional analysis,
concluding that Judiciary Law § 35-b conferred certain distinct rights on that class of legal
service providers.
Likewise, in Dental Society, the Court found that an organization representing all
licensed dentists in New York State had standing to challenge the legality of the State’s
Medicaid dental fee reimbursement schedule on the ground that it violated federal
regulations because it did not reasonably reflect the current cost of delivering dental
services (see 61 NY2d at 333-335). Although the fee schedule certainly affected the rights
of patients because only 5% of dentists statewide were willing to accept Medicaid, it
directly impacted the interests of the organization’s dentist-members by providing
allegedly inadequate compensation for services rendered.
In contrast to the scenarios in Mahoney and Carey, here MHLS has not
demonstrated that it has been harmed – not just its clients – by BPC’s alleged interference
with rights and interests protected under the statute. The statutory scheme already provides
a vehicle for adjudication of the rights of injured clients. Indeed, every patient subject to
Mental Hygiene Law § 9.31 (b) is represented by counsel – MHLS – who has ample
opportunity within an existing legal proceeding (the admission or retention proceeding) to
object on the patient’s behalf to any alleged violation of the statute (thereby making a
- 12 -
- 13 - No. 2
factual record appropriate for judicial review).5 To the extent MHLS argues that its clients
are unable to pursue their rights as a result of their illnesses, the legislature created MHLS
and made its services available to all patients in mental health facilities to ensure that the
constitutional and statutory interests of each individual would be protected. If the hospital
violates notice or disclosure obligations, the court can fashion an appropriate remedy.
MHLS need not sue in its own name to enforce its clients’ procedural rights, which can be
protected in the ordinary course by traditional legal advocacy.
Because we conclude that MHLS lacked standing to maintain this proceeding, we
do not reach the issue of whether Mental Hygiene Law § 9.31 (b) requires a psychiatric
hospital to provide a court and MHLS with a copy of a patient’s entire clinical chart when
providing notice that a patient is requesting a hearing, which remains an open question.
Accordingly, the Appellate Division order should be reversed, without costs, the
motion to dismiss the petition granted and the proceeding dismissed.
5
For this reason, we have no occasion to consider the efficacy of the “exceptional
circumstances” rationale for standing cited by the courts below.
- 13 -
Matter of Mental Hygiene Legal Service v Daniels
No. 2
RIVERA, J. (dissenting):
The issue on this appeal is whether a state-run psychiatric facility must provide
Mental Hygiene Legal Service (MHLS) a complete copy of the patient’s medical record,
in advance of a hearing requested on behalf of a person involuntarily confined pursuant to
-1-
-2- No. 2
Article 9 of the Mental Hygiene Law. The majority holds that MHLS lacks standing to
challenge the denial of the contested documents, even though the law specifically requires
the facility provide MHLS a copy of the patient’s record. To reach this anomalous and
erroneous conclusion, the majority adopts an onerous standard unsupported by law.
Compounding its error, the majority misconstrues the jurisprudential underpinnings of our
party-standing doctrine, which are designed to ensure that the plaintiff is a proper party to
seek judicial review and that resources are conserved for those cases where the party asserts
an injury. Our standing principles seek to avoid litigation by a party with no, or attenuated
interests in the action—a party that literally cannot identify a particular stake in the
outcome (see Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 772
[1991]). Those principles were never meant to close the courthouse door on an individual
or entity, like MHLS, specifically named by the Legislature as an intended beneficiary of
the government’s statutory obligation and who claims some harm due to the government’s
noncompliance.
In addition to establishing that it has standing, MHLS is also correct on the merits
of its substantive claim. In accordance with Mental Hygiene Law §§ 9.31(b), 9.01, and
33.16, and 14 NYCRR 501.2 of the regulations of the Commissioner of the New York State
Office of Mental Health, a patient’s record includes the clinical record, which, in turn, is
defined broadly and encompasses the documents sought by MHLS. Therefore, I would
affirm the Appellate Division as I agree with its conclusion that mandamus was properly
-2-
-3- No. 2
granted here, although, unlike that court, I conclude that the standing question is addressed
by reference to the statute in the first instance.
I.
Statutory and Regulatory Framework
In furtherance of our state’s mental health policies, the Legislature created and
charged MHLS with “provid[ing] legal assistance to patients or residents of a facility [for
the mentally disabled,] to persons alleged to be in need of care and treatment in such
facilities …, and to persons entitled to such legal assistance as provided by [Mental
Hygiene Law] article ten” (Mental Hygiene Law § 47.01[a]). In other words, MHLS is
statutorily required to provide legal assistance to anyone subject to possible civil
confinement.
On this appeal, MHLS seeks compliance with the statutory and regulatory mandates
applicable to retention hearings for persons involuntarily committed under Article 9 of the
Mental Hygiene Law. As relevant here, section 9.31(a) states, in part,
“If, at any time prior to the expiration of sixty days from the
date of involuntary admission of a patient on an application
supported by medical certification, [the patient] or any relative
or friend or the mental hygiene legal service gives notice in
writing to the director [at the facility where the patient is held]
of request for hearing on the question of need for involuntary
care and treatment, a hearing shall be held as herein provided.”
Upon receiving such notice, the director shall “forward
forthwith a copy of [the] notice with a record of the patient to
the … court” and “[a] copy of such notice and record shall also
be given the mental hygiene legal service” (Mental Hygiene
Law § 9.31[b] [emphasis added]).
-3-
-4- No. 2
By its terms, the facility’s obligation to provide a copy of the patient’s record to
MHLS in advance of the retention hearing applies even in those cases where MHLS is not
the counsel of record for the patient. In other words, MHLS must receive a copy of the
patient record in every retention hearing.1 Furthermore, the record is the same record that
must be provided to the hearing court.
The definitional section of Article 9 provides that the “‘record’ of a patient shall
consist of admission, transfer or retention papers and orders, and accompanying data
required by this article and by the regulations of the commissioner” (Mental Hygiene Law
§ 9.01). The commissioner refers to the Commissioner of the New York State Office of
Mental Health (see Mental Hygiene Law § 1.03 [2]).
Pursuant to the Commissioner’s statutory authority to issue regulations that are
“necessary and proper to implement any matters under [the Commissioner’s] jurisdiction”
(Mental Hygiene Law § 7.09; see also Mental Hygiene Law § 31.04), the Department of
Mental Health has set forth definitions of general applicability. Under Part 501, titled
Mental Health Services–General Provisions, “[c]ase record, clinical record, medical
record, or patient record means clinical record as such term is defined in section 33.16 of
the Mental Hygiene Law, whether created or maintained in writing or electronically” (14
1
Since the statute specifically names MHLS and not the patient as the recipient of the
record, and Mental Hygiene Law § 91.3(b) applies even when the patient retains counsel,
the majority’s characterization of the statute as “comparable to other procedural rules found
elsewhere in the law” (majority op at 8), is incorrect. Other procedural rules recognize the
right as belonging to a litigant, not to a specifically named governmental entity.
-4-
-5- No. 2
NYCRR 501.2[a]). Mental Hygiene Law § 33.16 defines “clinical record” to include “any
information concerning or relating to the examination or treatment of an identifiable patient
or client maintained or possessed by a facility which has treated or is treating such patient
or client, except data disclosed to a practitioner in confidence by other persons on the basis
of an express condition that would never be disclosed to the patient or client or other
persons, provided that such data has never been disclosed by the practitioner or a facility
to any other person” (Mental Hygiene Law § 33.16[a][1]).
II.
Factual and Procedural History
Judicial retention hearings for patients involuntarily confined at Bronx Psychiatric
Center (BPC) pursuant to Article 9 are typically held one day a week in a courtroom at
BPC. In accordance with the Mental Hygiene Law, a patient, their relative or friend, or
MHLS may demand such hearing and upon notice to the director of BPC, the director must
provide a copy of the patient’s record to the hearing court and MHLS (Mental Hygiene
Law § 9.31[a]).
During one of those weekly hearing dates, MHLS made an oral application related
to all cases on the day’s calendar, requesting Supreme Court direct BPC to provide copies
of the complete hospital records for the patients before the hearing, records which counsel
had requested a month prior and had not yet received. BPC had provided the admission,
-5-
-6- No. 2
transfer, and retention application papers and orders, but not the patient’s complete hospital
record or “chart,” which BPC maintains only in paper form, in binders, at its facility.
The court issued an order directing BPC to turn over the patients’ complete hospital
records prior to the hearing as part of BPC’s Mental Hygiene Law § 9.31(b) document
obligations. BPC moved to vacate on procedural grounds, arguing the proper vehicle to
challenge its action was an Article 78 proceeding. Pursuant to the parties’ stipulation, the
court withdrew the order and MHLS filed the instant Article 78 proceeding in its own
name, in the nature of mandamus, asserting the same legal arguments and request for relief
as before, namely that BPC turn over a copy of each patient’s entire medical records in
advance of the hearing as mandated by the statute and applicable regulation. BPC cross-
moved to dismiss the petition for lack of standing and because its statutory obligation was
not sufficiently clear to warrant mandamus relief.
Supreme Court denied BPC’s cross-motion and granted the petition. The court
concluded that MHLS had standing and that BPC was legally obligated to provide the
entire chart to MHLS, in accordance with Mental Hygiene Law § 9.31(b) when read
together with Mental Hygiene Law § 9.01, § 33.16(a), and 14 NYCRR 501.2(a). The
Appellate Division affirmed in a split decision (Matter of Mental Hygiene Legal Service v
Daniels, 158 AD3d 82, 84-94 [1st Dept 2017] [holding that MHLS had standing as an
organization and that MHLS was entitled to mandamus relief since BPC violated its
statutory obligation]).
-6-
-7- No. 2
III.
MHLS Standing for Purposes of Mental Hygiene Law § 9.31
A. New York’s Standing Doctrine
“Standing is, of course, a threshold requirement for a plaintiff seeking to challenge
governmental action” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d
207, 211 [2004]). “Whether a person seeking relief is a proper party to request an
adjudication is an aspect of justiciability which, when challenged, must be considered at
the outset of any litigation. Standing . . . rest[s] in part on policy considerations, that a
person should be allowed access to the courts to adjudicate the merits of a particular dispute
that satisfies other justiciability criteria” (Society of Plastics Indus., 77 NY2d at 769
[internal citation omitted]).
Under our general rule of standing, “a plaintiff must show ‘injury in fact,’ meaning
that plaintiff will actually be harmed by the challenged administrative action . . . [and] the
injury a plaintiff asserts must fall within the zone of interests or concerns sought to be
promoted or protected by the statutory provision under which the agency has acted” (Nurse
Anesthetists, 2 NY3d at 211). “The existence of an injury in fact—an actual legal stake in
the matter being adjudicated—ensures that the party seeking review has some concrete
interest in prosecuting the action which casts the dispute ‘in a form traditionally capable of
judicial resolution. The requirement of injury in fact for standing purposes is closely
aligned with our policy not to render advisory opinions” (Society of Plastics Indus., 77
-7-
-8- No. 2
NY2d at 773 [internal citations omitted]). The “zone of interests” requirement is an
“essential principle of standing” and represents a judicial “prudential limitation” (id.). It is
“the crucial test for standing in the administrative context” (id. at 773), and “assures that
groups whose interests are only marginally related to, or even inconsistent with, the
purposes of the statute cannot use the courts to further their own purposes at the expense
of the statutory purpose” (id. at 774). In cases against the government, “while the universe
of potential plaintiffs must be circumscribed in order to avoid misuse of legal challenges
to administrative actions, we must preserve access to the courts for those who have been
wrongly injured by administrative action (or inaction) directly flowing from statutory
authority” (Mahoney v Pataki, 98 NY2d 45, 52 [2002]).
The Court has developed a flexible party-standing jurisprudence which recognizes
the different concerns implicated by the type of plaintiff and the nature of the claim
asserted. For example, we have imposed different requirements on membership
organizations than on individuals. Unlike an individual who can point to a personal harm,
an associational organization must establish “that at least one of its members would have
standing to sue, that it is representative of the organizational purposes it asserts and that
the case would not require the participation of individual members” (Nurse Anesthetists, 2
NY3d at 211). We also have recognized that the standards apply differently where the
government action may aggrieve the larger community. Thus, because land use and
environmental cases involve issues affecting the general population, we have required that
the plaintiff “suffer a direct harm, injury that is in some way different from that of the
-8-
-9- No. 2
public at large” (Society of Plastics Indus., 77 NY2d at 777-775). This explains why, “in
cases involving environmental harm, the standing of an organization could ‘be established
by proof that agency action will directly harm association members in their use and
enjoyment of the affected natural resources’” (Matter of Save the Pine Bush, Inc. v
Common Counsel of City of Albany, 13 NY3d 297, 304 [2009] [internal citation omitted]).
In each of these iterations of our standing rule, the core requirements remain
unchanged: the plaintiff must allege an injury in fact that falls within the zone of interests
sought to be promoted or protected by the statute. However, plaintiff’s standing is always
judged in light of the prudential concern that animates the rule: plaintiff should be the
proper party to assert the challenge (Society of Plastics Indus., 77 NY2d at 769). This
jurisprudential flexibility has not translated into an onerous burden on the plaintiff (see
e.g. Save the Pine Bush, 13 NY3d 297 [“a person who … uses and enjoys a natural resource
more than most other members of the public” had standing to challenge governmental
actions threatening that resource]; Matter of Sierra Club v Village of Painted Post, 26 NY3d
301 [2015] [landowner alleging increased train noise from trains moving water had
standing to challenge village’s surplus water agreement]; Matter of Village of Woodbury
v Seggos, 154 AD3d 1256 [3d Dept 2017] [neighboring landowners and municipalities had
standing to seek annulment of village’s water withdrawal permit]; Mixon v Grinker, 157
AD2d 423 [1st Dept 1990] [Coalition for the Homeless had standing to sue to compel city
to provide HIV-infected persons with medically appropriate housing]).
-9-
- 10 - No. 2
Most relevant here, “[t]he question of standing to challenge particular governmental
action may, of course, be answered by the statute at issue, which may identify the class of
persons entitled to seek review” (Society of Plastics Indus., 77 NY2d at 769).2 In practice,
this means a plaintiff’s burden to establish standing is substantially diminished where a
statute identifies them as a beneficiary of the government’s duty or obligation giving rise
to the plaintiff’s claim. Specifically, the plaintiff is relieved of the burden to establish
compliance with the zone of interests prong because by directly naming an individual or
entity, the Legislature has made express its determination that the interests and concerns of
its designee align with the statutory purpose. Unlike our prior cases, where the beneficiary
was uncertain, we need not fathom whether the plaintiff’s interests are of the type that the
Legislature sought to protect because the Legislature has provided the answer in the statute
itself. Put another way, we no longer worry “that it cannot reasonably be assumed that [the
2
I reject the interpretation suggested by the majority that Society of Plastics creates a two-
track approach to standing – one based on reference to the statute and one based in common
law (majority op at 6, n 2). Our common law jurisprudence on standing always governs
our analysis but the statute itself informs that analysis. As Society of Plastics recognized,
standing may be established by reference to a statute. By way of example, the Court cited
a law which created a cause of action for certain individuals to sue (State Finance Law sect
123). This illustrated that by creating a cause of action for those individuals, the Legislature
explicitly and simultaneously expressed that they are within the statutory zone of interests.
While a court must still assure itself that plaintiff satisfies the zone of interests requirement,
it is a far simpler question when the statute names a group or entity – as the statute does
here. Contrary to the majority’s view, the statute need not also provide a cause of action to
the named party; that right may be found elsewhere. Such is the case with Mental Hygiene
§ 9.31, which need not create a general cause of action for MHLS to sue because MHLS
appropriately brought this action pursuant to Article 78 (see CPLR 7801). The majority’s
approach defies common sense and turns the zone of interests analysis on its head by
ignoring that MHLS is named in the Mental Hygiene Law – which is the clearest indicator
of the Legislature’s intent.
- 10 -
- 11 - No. 2
drafters] intended to permit the suit” (Society of Plastics Indus., 77 NY2d at 774 [internal
quotation omitted]), because that is the conclusion compelled by the statutory language.
Obviously, the jurisprudential concerns fundamental to our prior decisions are not
implicated when the plaintiff is the beneficiary of the government’s statutory obligation.
Although a named beneficiary’s interests may align with the purpose of the statute,
the beneficiary must still allege an injury in fact. Otherwise, the court’s consideration of
the claim would be a thought exercise, leading to an advisory opinion, and the exact type
of judicial action that the standing rule seeks to avoid (Community Bd. 7 of Borough of
Manhattan v Schaffer, 84 NY2d 148, 155 [1994]; see generally Cuomo v Long Island
Lighting Co., 71 NY2d 349 [1988]). More to the point, “[i]njury in fact thus serves to
define the proper role of the judiciary, and is based on ‘sound reasons, grounded not only
in theory but in the judicial experience of centuries, here and elsewhere, for believing that
the hard, confining, and yet enlarging context of a real controversy leads to sounder and
more enduring judgments” (Society of Plastics Indus., 77 NY2d at 773 [quoting Bickel,
The Least Dangerous Branch, at 115 [1962]).
Of course, it will be the rare case where the plaintiff, as the object of a statute that
requires government to provide it with some service or benefit, cannot establish injury in
fact. The reason being that the loss of the government benefit is the harm. In other words,
when government fails to provide what the Legislature has mandated, the beneficiary, by
definition, suffers harm. Thus, a plaintiff’s allegations of an alleged failure to comply with
- 11 -
- 12 - No. 2
the statutory mandate to provide something constitutes an injury in fact for standing
purposes.
B. MHLS Standing to Challenge BPC’s Practice
Applying these principles here, MHLS easily establishes its standing to demand
BPC’s compliance with Mental Hygiene Law 9.31(b). According to MHLS, BPC’s
practice of not providing a copy of the complete record before the hearing violates BPC’s
statutory obligation and places MHLS in the position of representing a patient without
benefit of an advance copy of the patient’s full medical records, even though BPC regularly
seeks to admit these records as evidence at the hearing.
As Mental Hygiene Law § 9.31(b) specifically requires that the facility director
provide a copy of the patient’s record to MHLS – not the patient – MHLS is the named
beneficiary of this legal obligation. It is “directly affected” by BPC’s actions and MHLS is
an entity “whose interests may be said to be placed in jeopardy under the statutory
provisions” (Matter of Legal Aid Society of Sullivan County, Inc. v Scheinman, 53 NY2d
12, 15 [1981]). It has suffered the harm of not receiving the patient’s record from BPC.3
3
To be clear, MHLS has individual standing as the entity named in the statute. This is not
a case of a plaintiff asserting associational rights of a membership organization, or an
organizational plaintiff asserting solely the beneficial rights of others. Thus, we need not
consider, as the majority does, whether MHLS satisfies the requirements for associational
or organizational standing (majority op at 10-11). That standard simply has no application
to MHLS for the claims asserted.
- 12 -
- 13 - No. 2
The majority departs from the fundamental precepts of our standing doctrine, and
mechanically adopts a threshold that is ill-conceived and dismissive of the prudential
concerns that have informed our jurisprudence to conclude that MHLS has no standing in
this case. The conclusion that MHLS cannot meet the injury in fact requirement is in part
based on the erroneous premise that MHLS must establish economic harm. Our cases do
not require a plaintiff suffer a pecuniary loss, only that the injury be actual and not
hypothetical or abstract (Matter of Dental Soc. of State v Carey, 61 NY2d 330, 334 [1984]
[“(I)njury in fact need not be demonstrated by out-of-pocket loss”]). Even if economic
harm were a necessary prerequisite to standing, MHLS would meet that test. It cannot be
rationally disputed that when BPC fails to provide the copy as required under Mental
Hygiene Law 9.31(b), MHLS must expend financial and personnel resources to make its
own copy —indeed the entire reasoning of the dissent below was that the financial burden
of making copies should fall on MHLS, not BPC (Daniels, 158 AD3d at 101-12 [Friedman,
J.P., dissenting]). This is a cost MHLS would not have to incur but for BPC’s alleged
noncompliance with its statutory obligation. It is no response that MHLS has access to the
record onsite at BPC, and thus could continuously monitor the records for changes, because
that would be an additional burden imposed because of BPC’s refusal to provide what the
statute requires. After all, the Legislature has seen fit to provide MHLS with both access
to the record and a copy of the patient’s record in order to fulfill its mandated obligations.
Moreover, regardless of whether MHLS could seek costs—and there is no certainty that it
would be reimbursed or fully made whole through a fee award process—we have never
- 13 -
- 14 - No. 2
held that a party is not injured simply because the injury may be mitigated after the fact.
To so hold would call into question the standing of parties alleging financial injury who
are insured or capable of seeking indemnification. Simply stated, whether a party chooses
to mitigate the harm is irrelevant because the very act of trying to make do without the
government benefit to which the party is statutorily entitled is an injury in fact.
Since the statute refers to MHLS specifically as the recipient of the copy of the
patient’s record, it is irrelevant that the patient is an implicit beneficiary of the statutory
provision. Contrary to the majority’s suggestion, we have never supplanted an implicit
beneficiary for an expressly named beneficiary. In any case, the majority fails to address
this Court’s prior recognition that there may be several beneficiaries that fall within the
zone of interests created by the statute (Mahoney, 98 NY2d at 52).
This case is not like Matter of Legal Aid Society v Scheinman (53 NY2d 12), where
Legal Aid sued in its own name in an Article 78 for a writ in the nature of mandamus to
compel the lower court judge to have charges against a defendant prosecuted by indictment
and the matter presented to a grand jury pursuant to CPL 170.25, as had been requested by
the defendant in the underlying criminal matter.4 In dicta, this Court noted what it termed
“the questionable standing of the Legal Aid Society” because “the only party directly
affected is the client whose interests may be said to be placed in jeopardy under the
statutory provisions” and Legal Aid was seeking “an advisory declaratory opinion on the
4
Scheinman is a perfect illustration of the majority’s “procedural rule” that is not present
here. Only the defendant is named in CPL 170.25, not the Legal Aid Society.
- 14 -
- 15 - No. 2
basis of which it may formulate the advice to be given to its client” (id. at 15). In contrast,
MHLS is directly affected by BPC’s refusal to provide a copy of the documents which
MHLS argues are part of the patient’s record: MHLS must either incur actual costs or risk
the denial of the record adversely impacting its ability to satisfy its professional obligations
to the patient as client and to the court when the patient has private counsel. Moreover, a
ruling on this issue is not solely a declaration of the patient’s rights, but also clarifies the
rights of MHLS based on BPC’s statutory obligation to provide it with the patient’s record
in preparation for the hearing.
The instant appeal is more akin to Mahoney v Pataki, which involved claims by
attorneys, and Dental Society of State of New York v Carey, which involved claims by
dentists, where this Court held they had standing to challenge the lack of sufficient
reimbursement for their services because they fell within the zone of interest created by the
statutes that provided for their payment, even though the clients and Medicaid recipients,
respectively, were the “primary beneficiaries” of those laws.
It is wholly anomalous for the majority to conclude that an unnamed party (an
Article 9 patient) has standing to sue, but the party chosen by Legislature for special
treatment under the statute (MHLS) cannot pursue a claim for alleged violation of the
government’s duties and obligations to that named party. If an organization dedicated to
protection of the endangered butterfly (Save the Pine Bush, 13 NY3d 297), and an
individual resident living near a train station (Sierra Club, 26 NY3d 301) had standing
without being named in the relevant law, there is no logical basis to conclude that MHLS
- 15 -
- 16 - No. 2
lacks standing to demand the documents at issue here when the Legislature has named
MHLS as the recipient of the government obligation imposed by the statute. Certainly, the
statutory command that MHLS provide legal assistance to Article 9 patients – facilitated
by BPC’s provision of a copy of the patient’s clinical chart – is no less consequential than
an individual’s desire to enjoy one of nature’s wonders or to live free from the increased
noise of passing railroad cars at night.
The majority’s erroneous decision also leads to unnecessary expenditure of judicial
resources and additional burdens on an already overtaxed MHLS, in direct contravention
of the goals of our standing doctrine. As the majority acknowledges, MHLS may start an
action in the name of one of its BPC patient clients. In other words, MHLS will litigate,
and BPC will have to defend against, the same challenge for a third time. This is a
particularly absurd outcome because MHLS is challenging a policy that applies in every
case heard at BPC, so that a determination on the merits here would save administrative
and judicial resources. Moreover, under the majority’s standing rule, MHLS is in the
untenable position of choosing to challenge the introduction of the record without an
advance copy, possibly delaying the retention hearing and extending an unjustified
confinement, and prejudicing its position in case of an appeal. This serves no identifiable
prudential interests and undermines the legislative intent of Mental Hygiene Law § 9.31(b).
- 16 -
- 17 - No. 2
IV.
Mandamus Relief Was Properly Granted
A. Standard for Article 78 Mandamus Relief
“[A]rticle 78 relief in the form of mandamus to compel may be granted only where
a petitioner establishes a ‘clear legal right’ to the relief requested” (Matter of Council of
the City of New York v Bloomberg, 6 NY3d 380, 388 [2006], quoting Matter of Brusco v
Braun, 84 NY2d 674, 679 [1994]). “Mandamus is an extraordinary remedy” (Brusco, 84
NY2d at 679 [internal citations omitted]), which “lies to compel the performance of a
purely ministerial act” (Legal Aid, 53 NY2d at 16 [footnote omitted]; see New York Civil
Liberties Union v State, 4 NY3d 175, 184 [2005]; CPLR 7803[1]). In other words,
“[m]andamus is used to enforce an administrative act positively required to be done by a
provision of law” (Matter of County of Chemung v Shah, 28 NY3d 244, 266 [2016], citing
Matter of Walsh v LaGuardia, 269 NY 437, 441 [1936]). Here, the Mental Hygiene Law
and Commissioner’s regulation leave no room for dispute that BPC must turn over a copy
of a patient’s medical record to MHLS and the court prior to the Article 9 hearing.
B. MHLS’s Clear Legal Right to the Disputed Records
Whether MHLS has a clear legal right to a copy of the disputed records depends on
the scope of BPC’s legal duty to provide MHLS with a copy of the patient’s record in
advance of the retention hearing and what constitutes “the record of the patient.” That duty
is defined by the applicable sections of Article 9 and the Commissioner’s regulations,
- 17 -
- 18 - No. 2
which we interpret in accordance with our well-established rules of statutory and regulatory
construction.
“It is fundamental that a court, in interpreting a statute, should attempt to effectuate
the intent of the Legislature” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d
205, 208 [1976]; McKinney’s Statutes § 92[a]). The statutory text is the clearest indicator
of legislative intent and the words should be given their natural and obvious meaning (see
Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 582 [1998]; McKinney’s
Statutes § 94). “Interpretation of a statute by the agency charged with its enforcement is,
as a general matter, given great weight and judicial deference so long as the interpretation
is neither irrational, unreasonable nor inconsistent with the governing statute” (Matter of
Moran Towing and Transp. Co., Inc. v New York State Tax Commission, 72 NY2d 166,
173 [1988] [citation omitted]; see also Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451,
459 [1980]). However, “[w]here the question is one of pure legal interpretation of statutory
terms, deference to the [agency] is not required” (Matter of Raritan Development Corp. v
Silva, 91 NY 2d 98, 102 [1997] [internal quotation marks and citation omitted]). Similarly,
where an agency interprets its own regulation, deference should be given if the
interpretation is ‘not irrational or unreasonable’” (Samiento v World Yacht Inc., 10 NY3d
70, 78 [2008], quoting Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4
NY3d 597, 604 [2005]).
Contrary to BPC’s argument, we are presented with a straightforward statutory
interpretation question about the meaning of these provisions and no deference is due the
- 18 -
- 19 - No. 2
Commissioner. Regardless, the record does not establish the Commissioner’s interpretation
of the statute and her regulations. She is not a party or intervenor in this action, and BPC
did not submit evidence constituting an official interpretive guidance from OMH. Even
assuming, for the limited purposes of this appeal, that we were inclined to ignore
foundational precepts of administrative law and accept BPC’s representations as to what it
claims is the Commissioner’s interpretation of the statute and regulations, it would not
change the analysis. As I discuss, because BPC’s proposed construction is at odds with the
plain language of the statute and regulation and contrary to the intent of the Mental Hygiene
Law, it is not a rational or reasonable interpretation entitled to judicial deference.
Mental Hygiene Law § 9.01 defines record as including “accompanying data
required by this article and by the regulations of the Commissioner” (emphasis added). The
regulation (14 NYCRR 501.2[a]) specifies that “patient record means clinical record as
such term is defined in section 33.16 of the mental hygiene law,” and Mental Hygiene Law
§ 33.16(a)(1) defines a “clinical record” broadly as encompassing the patient’s entire
medical record. Thus, the “record” that must be provided pursuant to Mental Hygiene Law
§ 9.01 is the same “clinical record” as defined in Mental Hygiene Law § 33.16(a)(1).
BPC argues that Article 9 defines record solely as “admission, transfer or retention
papers and orders, and accompanying data required by this article and by the regulations
of the Commissioner” (Mental Hygiene Law § 9.01). BPC asserts that the Commissioner’s
definition of “record” does not apply to Article 9 (despite being in a section providing
definitions for the entire title on mental hygiene law) and, therefore, the regulation does
- 19 -
- 20 - No. 2
not “supplant” the definition of record set forth in Mental Hygiene Law § 9.01. What
Mental Hygiene Law § 9.01 permits, according to BPC, is for the Commissioner to define
by regulation the statute’s reference to “accompanying data,” which BPC maintains the
Commissioner has not done.
BPC is correct that Mental Hygiene Law § 9.01 sets forth a definition for the
patient’s record, but BPC misinterprets the implications of this statutory language. Section
9.01 quite plainly states that the record consists of “accompanying data” as required by
article nine and the commissioner’s regulations. Thus, it is the Legislature that has
incorporated into the statutory definition data identified by the commissioner through her
regulation. The relevant regulation here, (14 NYCRR 501.2[a]), refers back to Mental
Hygiene Law § 33.16, and by incorporation and cross reference, includes the patient’s
clinical records held by the facility, which are the binders BPC presents at the patient’s
retention hearing. The fact that this regulation is definitional and applies generally to
matters described in the regulations and the Mental Hygiene Law means that it applies to
sections 9.01 and 9.31. A broad classification applies absent limiting language (cf.
McKinney’s Statutes § 114). Here there is none, and if the Commissioner intended that a
patient’s records would not include the medical charts it would have limited the regulation
accordingly.
To the extent BPC represents before this Court that the Commissioner has a practice
of interpreting the accompanying data narrowly, that assertion is contradicted by the fact
that other facilities provide MHLS with a copy of the patient’s medical record in advance
- 20 -
- 21 - No. 2
of the hearing. Indeed, the Appellate Division majority recognized as much (Daniels, 158
AD3d at 91-92).
If this were not enough to establish the flaw of BPC’s proposed interpretation,
BPC’s construction of Mental Hygiene Law § 9.31 also violates the intent of that section
and places in jeopardy the patient’s liberty interests. It is undisputed that BPC’s practice at
each retention hearing is for counsel to bring the original and only copy of the patient’s
medical chart in paper format housed in multiple binders. Counsel then offers the binders
into evidence. The court does not retain the binders because counsel returns them to the
hospital ward after the hearing, as required by Mental Hygiene Law § 33.13. The contents
of these binders are neither copied nor provided in advance to MHLS or the hearing court,
notwithstanding the mandates of Mental Hygiene Law § 9.31(b). As MHLS argues, under
this practice there is no complete record of the retention hearing preserved for appeal.
Nevertheless, under BPC’s reading of the statute, counsel for BPC may rely upon these
documents in support of the patient’s continued involuntary confinement. That result
contravenes the intent of Mental Hygiene Law § 9.31(b) to provide a set of documents in
advance of the hearing that may assist the court in reaching its determination.5
5
As is clear from all of the writings in the courts below, no judge who has considered this
case has interpreted Mental Hygiene Law § 9.31, as the majority does here, as a statutory
mandate that the director provide an advance copy of the patient’s record as a notice
requirement intended for the patient (majority op at 8-9). With good reason, since that
interpretation is belied by the plain language and legislative purpose of Mental Hygiene
Law § 9.31. Specifically, subsection (a) identifies the only notice to be given as the request
for a hearing to be provided to the facility director (Mental Hygiene Law § 9.31[a]);
subsection (b) mandates that upon receipt of that notice, the facility director provide it
- 21 -
- 22 - No. 2
BPC’s interpretation is also nonsensical. BPC concedes that Mental Hygiene Law §
33.16 provides a patient and the patient’s statutorily listed representative with the right to
inspect and photocopy these medical records. Similarly, there is no dispute that MHLS has
access to these records at all times, but in the case of BPC, that access means going in
person to where each patient’s chart is located on the ward, because BPC’s records are
maintained in paper form. Of course, this is all the more reason for BPC to provide a copy
of the medical records to MHLS so that there is no disparity in what constitutes the patient’s
medical record for MHLS and the hearing court.6
V.
Mental Health Law §§ 9.31, 9.01, 33.16 and the Commissioner’s regulation, 14
NYCRR 501.2(a), clearly set forth that BPC must provide an advance hard copy to MHLS
of the medical chart upon which BPC will rely at the hearing. The court below properly
granted mandamus “to enforce an administrative act positively required to be done by a
along with the patient’s record to the court and MHLS. Read in context these subsections
establish that the notice and the record serve different purposes. That conclusion is
supported by Mental Hygiene Law § 9.01, which defines the “record of a patient” as
including various named documents that on their face are relevant to the underlying
decision on the continued retention of the patient and are not intended as “notice” of an
action (Mental Hygiene Law § 9.01 [record of patient includes “admission, transfer or
retention papers and orders” as well as accompanying data]). Hence, the intended purpose
of Mental Hygiene Law §§ 9.31(a) and (b) is to provide the court and MHLS with a copy
of what will constitute documentation of the patient’s mental health status, necessary for
the court’s ultimate decision on whether to continue a patient’s involuntary commitment,
and not merely “notice” to the patient of that action.
6
Any additions made between when the record is provided to MHLS and when the hearing
is held can be dealt with on a rolling basis or at the hearing, but the majority of the patient’s
record must be provided and established before then.
- 22 -
- 23 - No. 2
provision of law” (Chemung, 28 NY3d at 266). Therefore, I dissent as I would affirm the
Appellate Division.7
* * * * * * * * * * * * * * * * *
Order reversed, without costs, motion to dismiss the petition granted and the proceeding
dismissed. Opinion by Chief Judge DiFiore. Judges Stein, Garcia and Feinman concur.
Judge Rivera dissents in an opinion in which Judges Fahey and Wilson concur.
Decided February 14, 2019
7
I have no occasion to opine on the Appellate Division’s conclusion that MHLS has
organizational standing under its departmental precedent based on “exceptional
circumstances involving organizations that were dedicated to protecting a class of
individuals” (Daniels, 158 AD3d at 88). I reach my conclusion that MHLS has standing in
accordance with our well-established standing doctrine.
- 23 -