A guardian in New York cannot force a person to take psychiatric medication against their will unless very strict legal processes are followed, which includes approval from a judge.

This post discusses how to legally compel a person to take psychiatric medication both inside and outside the context of guardianship so that guardians in New York are aware of the tools at their disposal. 

First, the guardian can petition the court to hold a Rivers hearing. In a Rivers hearing the judge will follow strict criteria to determine whether an incapacitated person can be required to take psychotropic medication.

Second, the guardian can consider utilizing Mental Hygiene Law (“MHL”) Article 9, but the guardian would not be petitioning in their capacity as guardian.

The Case that Set the Stage: Rivers v. Katz

In Rivers v. Katz, New York’s Court of Appeals, the state’s highest court, was faced with the issue of under what circumstances the State of New York may forcibly administer antipsychotic drugs to a mentally ill patient who had been involuntarily confined to a State facility. The Court held that there are limited circumstances where a patient in New York can be forced to take antipsychotic medications. 

First, when the patient presents a danger to themselves or other members of society, or engages in dangerous or potentially destructive conduct within an institution, the State may be warranted in the exercise of its police power in administering antipsychotic medication over the patient’s objections.

Second, in circumstances where the State’s police power is not implicated, and the patient refuses to consent to the administration of mind altering drugs, there must be a judicial determination as to whether the patient has the capacity to make a reasoned decision with respect to proposed treatment before the drugs may be administered pursuant to the State’s parens patriae power. Emphasis on the very important fact that the determination must be judicial, meaning, the judge decides.

The Court of Appeals held in the Rivers decision that such a determination must meet the following criteria:

  1. The determination must be made at a hearing following exhaustion of the administrative review procedures provided for in 14 N.Y.CRR 27.8
  2. The hearing must be de novo (latin for “from the beginning” or “anew”). 
  3. The patient must be afforded representation by counsel. 
  4. The State would bear the burden of demonstrating by clear and convincing evidence the patient’s incapacity to make a treatment decision. 

Rivers v. Katz did not directly hold that a court-appointed guardian in New York did not have the power to forcibly administer psychotropic medications without a judge’s approval. The Rivers decision was only later extended to MHL Art. 81 guardianships, as I explain below (I cannot find even a single case or commentary on whether Rivers would apply to a Surrogate’s Court Procedure Act (“SCPA”) Article 17-A guardian, but, for the reasons explained in this blog post, it almost certainly would). 

Rivers did, however, hold that there are limited circumstances and specific judicial procedures that are required to compel a patient to take mind altering drugs without the patient’s consent. The mere appointment as guardian does not meet those criteria. 

Rivers v. Katz Decision Extended Directly to Guardianship 

The holding in Rivers v. Katz was later extended directly to Mental Hygiene Law Article 81 guardianship cases. In re New York Presbyterian Hosp., the Supreme Court of Westchester County held that a Rivers hearing was required in MHL Art. 81 cases before psychiatric medications or treatment can be provided to a ward who objects.

The Court held that “the article 81 procedures … do not provide an individual with the procedural protections required under Rivers (citation omitted) in the case of a person who objects to a proposed treatment plan.” In addition, the Court wrote that “an article 81 incapacity adjudication does not authorize a guardian to waive the right to a Rivers hearing over the objection of the incapacitated person.”

In the case of In re Matter of Rhodanna C.B., the Appellate Division, Second Department, one of four intermediate appellate courts in New York State, held that the appointment of a guardian with the authority to consent without any time limit to the administration of psychotropic medication to their ward, over the ward’s objection and without any further judicial review or approval, is inconsistent with the due process requirements of Rivers v. Katz.

The Court found that the initial determination as to capacity in an MHL Art. 81 proceeding comports to the due process requirements of Rivers v. Katz. However, the Court noted that Rivers v. Katz mandates a new determination as to capacity each time a medical provider seeks to administer psychotropic medication to an incapacitated person over their objection. Moreover, as explained above, the determination must be judicial. It is the court, not the guardian, that must make that determination.

The Court in re Matter of Rhodanna C.B wrote that Rivers v. Katz “requires that before an incapacitated patient can be compelled to undergo psychotropic drug treatment against her expressed wishes, the court must ascertain whether the proposed treatment is narrowly tailored to recognize the liberty interest of the patient, taking into account the patient’s best interests, the potential benefits and adverse side effects associated with it, and any less intrusive alternative treatment regimens”. The Court found that this inquiry was absent from MHL Art. 81 and emphasized that the inquiry was judicial in nature. 

The Court held that article 81 includes a Rivers v. Katz hearing requirement “in those limited circumstances where a ward objects to the proposed administration of psychotropic drugs”.

One source of confusion is the fact that, article 81, on its face, appears to permit treatment over objection.

Per MHL § 81.22(a)(8):

Those powers which may be granted [to the guardian of the personal needs] include, but are not limited to, the power to: … (i) for decisions in hospitals as defined by subdivision eighteen of section twenty-nine hundred ninety-four-a of the public health law, act as the patient’s surrogate pursuant to and subject to article twenty-nine-CC of the public health law, and (ii) in all other circumstances, to consent to or refuse generally accepted routine or major medical or dental treatment, subject to the decision-making standard in subdivision four of section twenty-nine hundred ninety-four-d of the public health law; (emphasis mine)

 The Court in re Matter of Rhodanna C.B. spoke to this issue:

To be sure, as our dissenting colleague notes, the statute empowers the court to authorize a guardian to “consent to or refuse generally accepted routine or major medical . . . treatment” (Mental Hygiene Law § 81.22 [a] [8]), which by definition includes “the administration of psychotropic medication or electroconvulsive therapy” (Mental Hygiene Law § 81.03 [i]). Moreover, as evidenced by its acknowledgment of the Rivers v Katz (supra) decision in enacting Mental Hygiene Law § 81.22, the Legislature was aware of, and presumably was convinced that the statute comported with, its holding (see Law Rev Commn Comments, reprinted in McKinney’s Cons Laws of NY, Book 34A, following Mental Hygiene Law § 81.22, at 274). However, since such an approach does not provide for an automatic judicial reassessment of the mental capacity of an incapacitated person who objects to treatment at the time the treatment is proposed, and does not require that any judicial assessment of the necessity and propriety of the proposed treatment ever be conducted, the grant of this authority fails to comport with the multiple-step inquiry designed to safeguard the rights of the incapacitated person as set forth in Rivers v Katz (supra).

Per the Law Revision Commission Commentary: 

Consistent with the court of appeals decision in Rivers v Katz , 67 NY2d 485, 497 (1986) regarding the standard for making a treatment decision for an incapacitated person, the guardian should be guided by considerations of the dignity and uniqueness of every person, the possibility and extent of preserving the person’s life, the preservation, improvement or restoration of the person’s health or functioning, the relief of the person’s suffering, the adverse side effects associated with the treatment, any less intrusive alternative treatments, and such other concerns and values as a reasonable person in the incapacitated person’s circumstances would wish to consider.

Mental Hygiene Law Article 9

In addition to a Rivers hearing in the guardianship context, there are other ways to legally require a person to take medication in New York.

Mental Hygiene Law Article 9 provides numerous avenues for a non-guardian to compel a person to take psychiatric medication (and receive other treatment without consent).

Of particular import, pursuant to MHL § 9.60, known as Kendra’s Law, certain persons can petition the Supreme Court or County Court where the person needing medication is present, requesting an order from a Judge authorizing assisted outpatient treatment. 

Assisted outpatient treatment, or AOT, is court-ordered treatment outside of a hospital setting for people with mental illness. AOT often includes a requirement that the person take medication, along with many other treatment services.

It is important to note, under MHL § 9.60, that the guardian may be authorized to petition, but they won’t be petitioning in their capacity as guardian. MHL § 9.60 allows a parent, spouse, adult sibling, or adult child, among other persons, to petition for assisted outpatient treatment. For example, a parent who serves as guardian may petition, but they won’t be petitioning as guardian, but rather, as a parent.

In New York State, compelling a ward, or any other person for that matter, to take psychiatric medication requires strict adherence to the procedures set forth by law. There are a number of tools available at the guardians disposal when the need arises for a ward to take psychiatric drugs against their will.