September 13, 2010
IN THE MATTER OF THE COMMITMENT OF D.P.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. CASC 1594-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 31, 2010
Before Judges Grall and Alvarez.
D.P. is an adult who was involuntarily committed. On December 22, 2009, a judge conditionally extended his hospitalization "pending placement" with direction that D.P. "attend follow[-]up medication monitoring appointments [and] cooperate with clinical case management service as recommended [with] appropriate placement." See N.J.S.A. 30:4-27.15c (authorizing release on conditions); R. 4:74-7(h)(1)-(2) (authorizing release on conditions and conditional extension pending appropriate placement). The judge scheduled a review hearing for January 26, 2010.
Prior to the review hearing, D.P.'s treatment team refused to release him on the ground that the members did not "feel" his proposal to live in a hotel or motel was "appropriate." D.P. sought relief from the judge, requesting either immediate release or clarification of the December 22, 2009 order. On January 12, 2010, the judge denied his requests and continued the prior order.
Although D.P.'s treatment team released him to live with his parents on January 20, 2010, he appeals from the January 12, 2010 order. Despite D.P.'s release, the County acknowledges that D.P. is responsible for the cost of his care between January 12 and 20, 2010, and concedes that his appeal is not moot. We agree. See In re Commitment of B.L., 346 N.J. Super. 285, 292 (App. Div. 2002) (concluding that the case was not moot despite the patient's release because they "remain liable for the cost of their confinement"); cf. In re Commitment of P.D., 381 N.J. Super. 389, 393 (App. Div. 2005) (concluding that case was moot because the County had determined not to charge the patients), certif. granted and remanded to consider the merits, 186 N.J. 251 (2006).
Our recitation of the facts and review of the January 12, 2010 order is limited by D.P.'s prosecution of this appeal. He does not challenge the December 22, 2009 order and has not provided us with the record of the proceeding that led to entry of that order. Thus, the only question for this court is whether the evidence provided to the judge during the informal hearing conducted on January 12, 2010, required the judge to modify or clarify the order of December 22, 2009.
The following facts were disclosed at the hearing. Prior to D.P.'s involuntary commitment, he was living in a condominium owned by his parents. At the time of the hearing, that condominium was being renovated and was not available to D.P. Although D.P.'s father was willing to have D.P. live in the family home, his mother was not.
D.P. asked his treatment team to approve his release to a motel, hotel or rooming house. His treatment team did "not feel that [his plan was] appropriate."
The members of D.P.'s treatment team disagreed, however, about the type of "placement" that was "appropriate" for D.P. D.P.'s social worker informed the judge that the treatment team was not requiring D.P. to reside with family or friends. She opposed D.P.'s release out of concern that he had no way to pay for shelter and would lose the financial support formerly provided by his parents if he left the facility without further treatment. Unlike the social worker, Dr. Wayslow believed that D.P. should not be permitted to live independently. Because D.P. had been resistant to necessary changes in his prescribed medication and wanted the dosage reduced, Dr. Wayslow thought that D.P. would "stop his medication when he le[ft]" the facility.
D.P. was the only witness who was placed under oath on January 12. According to D.P., he had sufficient funds to "tide [him] over" until he obtained employment. He had not applied for social security disability benefits, but he had "significant" retirement funds and about "$8,000 liquid in a business checking account." He had earned the money in that account while working with his father and produced a checkbook register showing a deposit of $20,000 made in November 2009. When asked to confirm the present balance in his account, D.P. offered to go to an automated teller machine to obtain proof. In addition to his work experience, he had advanced degrees, a J.D. and an M.B.A. His plan was to find employment, study for the bar examination and rent an apartment for about $600 per month. When asked why he had not signed a lease, D.P. explained that he could not look for and rent an apartment while confined in a psychiatric facility.
The judge noted that D.P. was not receiving public assistance and had not produced evidence confirming his ability to pay for shelter. The judge further found:
I'll tell you what. I'm not - I have an extreme bias against hotel[s] and motels, because I don't think a person is capable of surviving unless it's a very short term, moving into a more permanent situation.
For [D.P.] - [D.P.] does have a college degree, graduate degree, has worked in the past. I'm not sure what the issues are with his parents. They clearly hold some purse strings here.
I am going to continue CEPP status for [D.P.] at this time. Same conditions, which is appropriate housing, which is anticipated is independent.
And I'm going to review the matter in two weeks, January 26th. Can we please have some information?
D.P.'s attorney asked the judge to amend the December 22 order to specify that an "appropriate housing" includes "independent living" and to require the treatment team to give D.P. an opportunity to find housing. Apparently overlooking the opinion voiced by Dr. Wayslow, the judge denied those requests. The judge simply advised the parties that he needed more information from D.P.'s family and Dr. Wayslow to warrant modification of the order. Although the County's attorney offered to have Dr. Wayslow testify about his opinion on D.P.'s ability to live independently, the judge determined that the testimony was not needed.
The law governing continued confinement of a person who is no longer in need of involuntary commitment is based on a well-settled principle: the State may not confine a person who is mentally ill unless the mental illness causes the patient to pose a danger to person or property and the person is unwilling to accept treatment. In re Commitment of S.L., 94 N.J. 128, 137-38 (1983). Consistent with that principle, a patient who no longer needs involuntary commitment generally must be released within forty-eight hours in accordance with a plan developed by the patient's treatment team. N.J.S.A. 30:4-27.15b; see N.J.S.A. 30:4-27.18 (stating the treatment team's obligations with respect to preparation of the plan); N.J.S.A. 30:4-27.19 (authorizing the chief executive officer of a psychiatric facility to provide interim financial assistance to discharged patients); In re Commitment of M.C., 385 N.J. Super. 151, 160 (App. Div. 2006) (discussing N.J.S.A. 30:4-27.15b).
Conditional extension pending placement (CEPP) is a narrow exception to the general rule requiring prompt release. Rule 4:74-7(h)(2) authorizes CEPP, and it applies only when a patient lacks the capacity to survive independently. S.L., supra, 94 N.J. at 132, 137-41; M.C., supra, 385 N.J. Super. at 161-62; In re Commitment of G.G., 272 N.J. Super. 597, 604-05 (App. Div. 1994). An order conditionally extending confinement pending appropriate placement is proper only when the patient "is not able to survive in the community independently or with the help of family or friends." S.L., supra, 94 N.J. at 140. A judge must make that finding, and the evidence must be adequate to satisfy the judge that the conclusion is supported. Id. at 140-41, 141 n.10.
An order authorizing CEPP may not be used to prolong the confinement of a patient who is no longer in need of involuntary commitment and is capable of survival. Thus, a patient cannot be held pending placement for the purpose of giving a treatment team additional time to prepare a discharge plan. G.G., supra, 272 N.J. Super. at 605. Moreover, treatment teams and judges must recognize that an order conditioning release on appropriate placement requires the facility to arrange for the least restrictive placement that is appropriate in light of the patient's needs. S.L., supra, 94 N.J. at 140-41. Entry of such an order does not shift the psychiatric facility's obligations to prepare a plan for release to the patient. N.J.S.A. 30:4-27.18; N.J.S.A. 30:4-27.19.
As noted above, D.P. does not challenge the initial order conditioning his release on an "appropriate placement," and he has not provided this court with a record that permits us to review the underlying factual findings and legal conclusions. Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004); Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Accordingly, in reviewing the judge's refusal to clarify the December 22 order, we presume that the evidence presented at the December hearing demonstrated D.P.'s incapacity to survive independently at that time.
Accepting that D.P. was incapable of surviving without appropriate placement on December 22, we conclude that the information presented at the January 12 hearing warranted clarification of the December 22 order. The members of D.P.'s treatment team misunderstood the extent of their authority to detain him and their responsibility to prepare for his discharge to the least restrictive appropriate placement.
Dr. Wayslow expressed his opinion that D.P. could be held against his wishes based on concern about D.P. taking his prescribed medication. But even when a patient has a history indicative of a "high risk of rehospitalization because of the patient's failure to comply with discharge plans" or when "there is substantial likelihood that by reason of mental illness the patient will be dangerous to himself, others or property if the patient does not receive other appropriate and available services that render involuntary commitment unnecessary," release subject to conditions is the permissible means of addressing that problem. N.J.S.A. 30:4-27.15c(1)-(2). CEPP is not permissible in that circumstance. G.G., supra, 272 N.J. Super. at 604-05.
There was additional evidence of confusion about the scope of the treatment team's authority to hold D.P. The social worker indicated that she and other members of the treatment team believed that D.P. could live independently. If that was the case, then D.P. should have been released because he was capable of surviving independently; contrary to the social worker's belief, the treatment team did not have authority to confine him until he proved that he could pay for shelter.
S.L., supra, 94 N.J. at 140-41.
On the basis of these opinions, which were volunteered by the social worker and Dr. Wayslow, it should have been apparent to the judge that they misunderstood the limits on their authority to deprive D.P. of his liberty. The judge erred by continuing the order without clarifying the scope of their authority and responsibility. D.P. was confined for eight days after the hearing. But for his parents' intervention, he could have been confined for an additional fourteen days on the basis of the treatment team's erroneous view that they could hold him because they believed he was poor or because they had failed to devise a plan for monitoring his medication.
While not essential to our decision, it is worth noting that the judge also erred to the extent that he denied immediate release based on his personal opinion about difficulties encountered by those who live in hotels, motels or rooming houses. As discussed above, S.L. requires evidential support for determinations about the placement that is appropriate for each patient, and the focus must be on the "least restrictive" placement that is essential to survival given the needs of the patient at issue. 94 N.J. at 140-41.
The order of January 12, 2010 is reversed. As D.P. has been released, there is no need to remand for further proceedings.
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