April 28, 2000

Subject: A.4697/Brennan et al. S.2091/Libous et al.

AN ACT to amend the mental hygiene law, in relation to disqualification of an examining physician, and to repeal paragraph 3 of subdivision (a) of section 9.05 of such law relating thereto.

Position: Opposed

Under current New York law, a proprietary mental health facility may not involuntarily commit a person based on the certification of “examining physicians” on that facility’s own staff. This bill, which has passed the Senate, would eliminate that protection and permit an individual to be committed against his or her will based solely on the certification of staff members of an institution that may gain a financial benefit from the commitment. Involuntary hospitalization is a serious deprivation of liberty that can be justified only in the narrow circumstance where there is mental illness and an imminent physical danger to the person to be committed or to others, evidenced by observed behavior, and where there is no less restrictive alternative. In such cases, strong procedural safeguards must be in place throughout to insure that the due process rights of the individual are protected. In every such case, we must be assured of the impartiality of the physicians certifying the need for involuntary commitment. Where the physicians serve on the staff of a proprietary facility that may stand to gain financially from the admission of a new patient, there is an inherent potential for a conflict of interest in making that determination. In a circumstance where an individual’s liberty is at stake, even the possibility of such a conflict of interest is unacceptable. It is certainly for this reason that the New York State Legislature put this protection in place. We urge you not to repeal it.

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