Provides legal assistance to youth ordered by the court into the custody of the office of children and family services and placed or committed to a state operated juvenile detention center.
TITLE OF BILL: An act to amend the mental hygiene law and the executive law, in relation to providing legal assistance to youth ordered by the court into the custody of the office of children and family services and placed or committed to a state operated juvenile detention center
PURPOSE: This bill expands the scope of the Mental Hygiene Legal Services (MHLS) by directing and authorizing it to provide legal services and assistance to youth ordered by the court into the custody of the Office of Children and Family Services (OCFS) and placed or committed to a state operated juvenile detention center.
SUMMARY OF PROVISIONS: Sections 1 and 2 of the bill amends subdivision (a) of section 47.01 and adds a new subdivision (d) to section 47.03 of the mental hygiene law to expand the scope of the MHLS to include the provision of legal assistance related to the retention, care and treatment to youth order by the court into the custody of OCFS and placed or committed to a state operated juvenile detention center.
Section 3 of the bill adds a new section 508-a of the executive law entitled "Legal Services and Assistance to Youth" to provide for the legal representation of youth in the custody of OCFS and placed or committed to a state operated juvenile detention center by MHLS.
Section 4 of the bill provides that the bill shall take effect on the 90th day after enactment.
EXISTING LAW: Article 47 of the Mental Hygiene Law establishes the Mental Hygiene Legal Services within the Appellate Division and directs it to provide legal services, assistance and information to patients or residents and their families related to the admission, retention and care and treatment of such persons in OMH and OMRDD licensed or operated facilities.
Article 19-G of the Executive Law includes provisions relating to the Office of Children and Family Services and the operation of juvenile detention facilities.
JUSTIFICATION: In August, 2009 the U.S. Department of Justice wrote to Governor Paterson outlining the disturbing results of an investigation it had conducted of four state operated juvenile detention centers in New York. DOJ's findings are in two main areas. First it found that the state had failed to protect youth, using excessive force and restraints. Second, it found the state failed to provide mental health care and treatment. The details of the report are very disturbing showing that restraint techniques were routinely uncontrolled, unsafe and departed from generally accepted standards and OCFS policy. These included holding or handcuffing a youths arms behind their back and then tripping them causing the youth to fall
forward on their face. The investigation detailed many serious injuries suffered by youth and the lack of adequate oversight, corrective action and/or accountability. It also found that youth with mental illness were involved in a disproportionately high percentage of restraint episodes.
NYS operates 25 juvenile justice facilities statewide with no outside oversight. While just a few years ago the system cared for approximately 2,000 youth ages 12 to 17 who had been placed in such facilities by the courts, today less than 1,000 children are placed in these facilities. The percentage of youth with mental illness diagnosis placed in juvenile detention facilities is at least 65% and some estimate the number of those suffering to be much higher. There are many other troubling statistics for this population. More than half of the children are on psychotropic medication. More than half are special education students with an IEP. A majority of the youth have also experienced some form of trauma in their life and have been known to the child welfare system prior to being placed in a juvenile detention facility.
These factors combined with the appalling findings of inadequate mental health treatment and treatment plans, insufficient substance abuse services and improper medication management coupled with evidence of brutal treatment for behavioral issues clearly demonstrate that some outside oversight is needed. Mental Hygiene Legal Services is very well suited to ensure that these children, while in the residential care of New York State, are provided appropriate treatment and care in the correct setting.
Mental Hygiene Legal Services, which is part of the Appellate Division, has a long history of providing legal representation and advocacy to individuals with mental disabilities regarding their admission, retention and care and treatment in mental hygiene facilities. Youth placed in the state's juvenile detention system, a majority of whom suffer from mental disabilities, clearly require the independent oversight and assistance of MHLS to protect their civil rights.
This bill expands MHLS's scope to provide this much needed protection for a small group of youth in our state who in their short lives have often suffer many heartbreaking difficulties. This change should help to transform our juvenile justice system from one of warehousing and punishment into one of treatment and rehabilitation.
LEGISLATIVE HISTORY: New Bill.
FISCAL IMPLICATIONS: To be determined.
EFFECTIVE DATE: 90 days after enactment, with provisions.
STATE OF NEW YORK ________________________________________________________________________ 3074 2011-2012 Regular Sessions IN SENATE February 8, 2011 ___________Introduced by Sens. HUNTLEY, DIAZ, MONTGOMERY, STEWART-COUSINS -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Developmental Disabilities AN ACT to amend the mental hygiene law and the executive law, in relation to providing legal assistance to youth ordered by the court into the custody of the office of children and family services and placed or committed to a state operated juvenile detention center THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) of section 47.01 of the mental hygiene law, as amended by chapter 7 of the laws of 2007, is amended to read as follows: (a) There shall be a mental hygiene legal service of the state in each judicial department. The service shall provide legal assistance to patients or residents of a facility as defined in section 1.03 of this chapter, or any other place or facility which is required to have an operating certificate pursuant to article sixteen or thirty-one of this chapter, and to persons alleged to be in need of care and treatment in such facilities or places, and to persons entitled to such legal assist- ance as provided by article ten of this chapter. THE SERVICES SHALL ALSO PROVIDE LEGAL ASSISTANCE TO YOUTH ORDERED BY THE COURT INTO THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY SERVICES AND PLACED OR COMMITTED TO A STATE OPERATED JUVENILE DETENTION CENTER. The head of such service in each judicial department and such assistants and such staff as may be necessary shall be appointed and may be removed by the presiding justice of the appellate division of the judicial department. Appointments and transfers to the service shall comply with the provisions of the civil service law. Standards for qualifications of the personnel in the service shall be established by the presiding justice of the appellate division of the judicial department. The presiding justice of the appellate division of the judicial department shallEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03965-02-1 S. 3074 2
promulgate such rules or regulations as may be necessary to effectuate the purposes of this article. S 2. Section 47.03 of the mental hygiene law, as added by chapter 789 of the laws of 1985, subdivision (c) as amended by chapter 408 of the laws of 1999, subdivisions (d) and (e) as amended and subdivision (f) as added by chapter 7 of the laws of 2007, is amended to read as follows: S 47.03 Functions, powers and duties of the service. The mental hygiene legal service in each judicial department of the state shall perform the following duties: (a) To study and review the admission and retention of all patients or residents which shall include a review of the willingness of the patient or resident to remain in his or her status and the determination of the facility director as to suitability of such status, as provided for by this chapter; (b) To inform patients or residents and, in proper cases, others interested in such persons' welfare of procedures for admission and retention and of the patients' or residents' right to have judicial hearing and review, to be represented by legal counsel, and to seek independent medical opinion; (c) To provide legal services and assistance to patients or residents and their families related to the admission, retention, and care and treatment of such persons, to provide legal services and assistance to subjects of a petition or patients subject to section 9.60 of this chap- ter, and to inform patients or residents, their families and, in proper cases, others interested in the patients' or residents' welfare of the availability of other legal resources which may be of assistance in matters not directly related to the admission, retention, and care and treatment of such patients or residents; (d) TO PROVIDE LEGAL SERVICES AND ASSISTANCE TO YOUTH RESIDING IN JUVENILE DETENTION CENTERS AND THEIR FAMILIES RELATED TO THE RETENTION, CARE AND TREATMENT OF SUCH PERSONS, AND TO INFORM YOUTH AND THEIR FAMI- LIES AND IN PROPER CASES, OTHERS INTERESTED IN THE YOUTHS' WELFARE, OF THE AVAILABILITY OF OTHER LEGAL RESOURCES WHICH MAY BE OF ASSISTANCE IN MATTERS NOT DIRECTLY RELATED TO THE RETENTION, CARE AND TREATMENT OF SUCH YOUTH; (E) To be granted access at any and all times to any facility or place or part thereof described in subdivision (a) of section 47.01 of this article, and to all books, records and data pertaining to any such facility or place deemed necessary for carrying out its functions, powers and duties. The mental hygiene legal service may require from the officers or employees of such facility or place any information deemed necessary for the purpose of carrying out the service's functions, powers and duties. Information, books, records or data which are confi- dential and any limitations on the release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the service. Provided, however, whenever federal regulations restrict, or as a condition of federal aid require that a facility restrict the release of information contained in the clinical record of a patient or client, or restrict disclosure of the identity of a patient or access to that patient, to a greater extent than is allowed under this section, the provisions of such federal law or federal regulation shall be controlling;
[(e)](F) To initiate and take any legal action deemed necessary to safeguard the right of any patient [or], resident OR YOUTH to protection from abuse or mistreatment, which may include investigation into anyS. 3074 3
such allegations of abuse or mistreatment of any such patient or resi- dent; and
[(f)](G) To provide legal services and assistance in accordance with article ten of this chapter. S 3. The executive law is amended by adding a new section 508-a to read as follows: S 508-A. LEGAL SERVICES AND ASSISTANCE TO YOUTH. IN ADDITION TO ANY LAW GUARDIAN, COURT APPOINTED COUNSEL OR PRIVATE COUNSEL A YOUTH MAY HAVE, THE MENTAL HYGIENE LEGAL SERVICE IN EACH JUDICIAL DEPARTMENT OF THE STATE, ESTABLISHED PURSUANT TO ARTICLE FORTY-SEVEN OF THE MENTAL HYGIENE LAW, SHALL PROVIDE LEGAL SERVICES AND ASSISTANCE TO YOUTH AND THEIR FAMILY RELATING TO THE RETENTION, CARE AND TREATMENT OF SUCH YOUTH WHEN SUCH YOUTH IS ORDERED BY THE COURT INTO THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY SERVICES AND PLACED OR COMMITTED TO A STATE OPER- ATED JUVENILE DETENTION CENTER. S 4. This act shall take effect on the ninetieth day after it shall have become a law; provided, however, that the amendments to subdivision (c) of section 47.03 of the mental hygiene law made by section two of this act shall not affect the expiration and reversion of such subdivi- sion and shall be deemed to expire therewith. Further provided, effec- tive immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized and directed to be made and completed on or before such effective date.