In the Matter of Norman Bezio,, Respondent,v.Leroy Dorsey, Appellant.

Brief

N.Y.March 19, 2013

To be argued by: Shannon Stockwell, Esq. Time Requested: 10 minutes STATE OF NEW YORK COURT OF APPEALS In the Matter of NORMAN BEZIO, as Superintendent of Great Meadow AD #511234 Correctional Facility, Respondent, Washington County v Index No.: 18061 LEROY DORSEY, Appellant. REPLY BRIEF FOR APPELLANT Mental Hygiene Legal Service Third Judicial Department Sheila E. Shea, Director Attorneys for Appellant - Leroy Dorsey 40 Steuben Street, Suite 501 Albany, New York 12207 Tel: (518) 451-8710 Fax: (518)473-5849 Date: December 21, 2012 TABLE OF CONTENTS (0 PRELIMINARY STATEMENT.1 ARGUMENT POINT ONE 1 RESPONDENT,S APPEAL IS NOT MOOT A . Respondent,s argument that the State,s force feeding petition implicated his privacy rights was preserved at trial.1 B . Respondent,s argument that Supreme Court's error in denying his request for a continuance deprived him of his due process right to a fair trial is not moot .3 POINT TWO 5 THIS COURT SHOULD REVERSE ON THE MERITS CONCLUSION 13 ADDENDUM Federal Bureau of Prisons Program Statement No. P5562.05 "Hunger Strikes" effective July 29, 2005 .Adden 01 New York State Department of Correctional Services Directive No. 4309 "Inmate Hunger Strike" effective October 19, 2007 .Adden 09 TABLE OF AUTHORITIES Federal Cases Cruzan v Director, Missouri Dept. of Health, 497 US 261 (1990) lnl Freeman v Berge, 441 F3d 543 (71h Cir 2006) 12n4 Greenholtz v Nebraska Penal Inmates, 442 US 1 (1979) 12 In re Grand Jury Subpoena John Doe v United States, 150 F3d 179 (2d Cir 1998).10 Martinez v Turner, 977 F2d 421 (8th Cir 1992) 10 Mills v Rogers, 457 US 291 (1982) 11, 12 Turner v Sajley, 482 US 78 (1987) . 6,8 Vitek v Jones, 445 US 480 (1980) 12 Walker v Horn, 385 F3d 321 (3d Cir 2004) Iln2 Washington v Harper, 494 US 210 (1990) . 6,7 State Cases Matter of Fosmire v Nicoleau, 75 NY2d 218 (1990) lnl People v Ballott, 20 NY2d 600 (1967).4 People v Matz, 23 NY2d 196(1968) 5 People v Sanders, 31 NY2d 463 (1973) 5 People v Spears, 64 NY2d 698 (1984) 4 Rivers v Katz, 67 NY2d 485 (1986).lnl, 8 (iii) TABLE OF AUTHORITIES (cont,d) United States Constitution First Amendment.1 Fourteenth Amendment 31 New York State Constitution Article VI, § 3 (a) 3 Federal Regulations 28 CFR §§ 549.60 - 549.66 10 PRELIMINARY STATEMENT This brief is submitted in reply to the November 16, 2012 responsive brief of the State of New York in the within appeal. For the reasons previously stated in respondent's main brief as well as in this reply brief, this Court should reverse the Appellate Division's Memorandum and Order of January 12, 2012 on the law and vacate Supreme Court,s force feeding Order of November 23, 2010. Respondent hereby confirms that he has not pursued on appeal the argument that his hunger strike and the legal proceedings that followed implicated respondent , s First Amendment right to free speech. ARGUMENT POINT ONE RESPONDENT,S APPEAL IS NOT MOOT A . Respondent;s argument that the State;s force feeding petition implicated his privacy rights was preserved at trial. , ' Throughout his main brief and in his briefs submitted in the Appellate Division, respondent referred to his right to make his own decisions regarding his medical care as a privacy right. However, under the common law and the due process clause of the State constitution, this right appears to be more accurately described as a liberty interest (see Fosmire v Nicoleau, 75 NY2d 218, 226 [ 1990]; quoting Rivers v Katz, 67 NY2d 485, 493 [ 1986]). Respondent agrees with the State that this liberty interest is also protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution (see State,s Br. at 23, quoting Cruzan v Director, Missouri Dept. of Health, 497 US 261, 278 [1990]; see also Cruzan, 497 US at 279 - "Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest. " 1 The State argues that the Court should dismiss respondent,s appeal as moot because respondent never asserted at trial that the State's force feeding petition implicated his right to make his own medical decisions and that Supreme Court was required to weigh respondent,s rights against the State ' s interests (State ,s Br. at 18). While respondent admittedly did not clearly articulate this legal argument at trial, the State is incorrect in asserting that respondent 's legal argument is not preserved because respondent 's mere opposition to the State 's petition preserved this issue on appeal. It was not necessary for trial counsel to have formulated a legal argument in support of respondent's opposition in order to preserve respondent ,s appellate rights because the record reflects that respondent is a competent individual who opposed the State ,s application to impose unwanted medical treatment upon him. In addition, the State claims that this Court lacks the authority to review respondent 's liberty and privacy claims because while the "Appellate Division can reach an unpreserved legal claim in the interests of justice, this Court lacks discretion to do so" (State,s Br. at 19). Assuming without conceding that the State is correct in asserting that this Court lacks discretion to review unpreserved legal claims in the interests of justice, the State,s argument is misplaced because there simply is no indication in the Appellate Division's Memorandum and Order that it 2 was reaching the issue in the interests of justice. In the absence of any clear indication otherwise, this Court should determine that the Appellate Division found that respondent,s argument was sufficiently preserved for appellate review. Accordingly, this Court should review the legal issue presented (see NY Const, art VI , § 3[a]). Finally, given the fact that Supreme Court denied respondent,s trial counsel's request for an adjournment and required trial counsel to proceed with mere hours , at most, to prepare for this highly unusual proceeding (see Respondent,s Main Br. at 27-28), a determination by this Court that respondent , s legal arguments are not preserved for review would only serve to exacerbate the prejudice to respondent caused by Supreme Court ,s error in denying respondent ' s request for a continuance at trial. B . Respondent;s argument that Supreme Court,s error in denying his request for a continuance deprived him of his due process right to a fair trial is not moot. The State further argues that respondent,s argument that Supreme Court,s error in denying respondent 's request for a continuance deprived him of a fair trial is also moot (see State,s Br. at 21). It asserts that the Appellate Division properly determined that respondent's claim of trial error was not appropriate for review under the mootness exception because, it was "specific to this particular 3 proceeding" (State's Br. at 21, quoting Memorandum and Order at R 5). However, respondent does not argue to this Court that Supreme Court's error in denying him a continuance requires a new trial because the force feeding order has long since expired. Respondent,s argument to this Court is that Supreme Court,s error in denying him a continuance deprived respondent of his fundamental right to adequately prepared counsel and his due process right to a fair trial and that accordingly, the Court should vacate Supreme Court 's force feeding Order of November 23, 2010. "The decision whether to grant an adjournment is ordinarily committed to the sound discretion of the trial court. But in particular situations, when the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed " (People v Spears, 64 NY2d 698, 699-700 [1984] - citations omitted). This Court has also held that a court abused its discretion in denying a defendant ,s request for an adjournment when the defendant needed to obtain a transcript of pretrial testimony of prosecution witnesses because a criminal defendant has a fundamental right to the testimony of the witnesses who would testify against him (see People v Ballott, 20 NY2d 600, 604-605 [1967]). Similarly, the Court has also found that there was reversible abuse of discretion when a court denied a defendant,s request for an 4 adjournment in order to obtain a transcript of a preliminary hearing (see People v Matz , 23 NY2d 196 [1968]). Again, the Court has found reversible abuse of discretion when a court denied a defendant's request for an adjournment in order to obtain the transcript of a pretrial suppression hearing (see People v Sanders, 31 NY2d 463 [1973]). Thus, it follows that a trial court,s error in denying a party's request for a continuance may amount to a reversible abuse of discretion, as a matter of law. Although those errors may seem case specific, when a party's fundamental rights are implicated, appellate courts should not readily invoke the mootness doctrine in declining review. POINT TWO THIS COURT SHOULD REVERSE ON THE MERITS The State asserts that the Court should affirm the findings of Supreme Court and the Appellate Division "that either an inmate retains no right to engage in such a hunger strike or any rights retained in this regard were outweighed by the State , s interests here" (State,s Br. at 22). To the contrary, the decisions of the lower courts should be reversed on the merits on the grounds that there was insufficient evidence at trial that the State's purported interests outweighed respondent 's right 5 to make his own decisions regarding his medical care. The State recognizes that competent free citizens have a common law and statutory right as well as a co-extensive liberty interested protected by the due process clause of the State Constitution, to determine the course of their own medical treatment (State's Br. at 22-23). However, the State posits that those rights are severely curtailed in the prison setting, and that the deferential "reasonably related to legitimate penological interests " standard articulated by the United States Supreme Court in Turner v Safley, 482 US 78, 89 (1987) should be applied in determining what rights, if any, respondent retains with respect to his health care decision-making. The State is incorrect in advocating for this standard of review because courts are to apply this deferential analysis only when a prisoner affirmatively challenges the constitutionality of a prison regulation, not when, as in the case of a hunger striking inmate, a court is tasked with determining whether the State's purported interests outweigh the rights of the prisoner. In Washington v Harper, 494 US 210 (1990), the Supreme Court made clear the purposes of the deferential standard it announced in Turner v Safley. Specifically, the Court indicated: "In Turner v Safley, we held that the proper standard for determining the validity of a prison regulation claimed to infringe on an inmate,s constitutional rights is to ask whether the regulation is 'reasonably 6 related to legitimate penological interests' " (494 US at 223 - citations omitted). The Court later continued: "Our earlier determination to adopt this standard of review was based upon the need to reconcile our longstanding adherence to the principle that inmates retain at least some constitutional rights despite incarceration with the recognition that prison authorities are best equipped to make difficult decisions regarding prison administration. These two principles apply in all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those in which the prisoner invokes the First Amendment" (id. at 223-224 - citations omitted). In bringing its force feeding petition, it was the State, not respondent who invoked the jurisdiction of the courts and at no time did respondent challenge the constitutionality of DOCCS Directive 4309. Through its Directive, DOCCS appears to give appropriate recognition to a hunger striking inmate ,s liberty and privacy interests by requiring DOCCS to seek a court order in order to permit the agency to force feed a hunger striking inmate (see State ,s Br. at 4). As such, respondent has no issue with the Directive. Respondent ,s argument is simply that there was not sufficient evidence at trial showing that the State's interests outweighed respondent's liberty and privacy interests and accordingly, the decisions below should be reversed. Since respondent neither challenged the constitutionality of the State's inmate hunger strike policy at trial, nor on appeal, 7 the Appellate Division committed reversible error in applying the deferential Turner v Safley standard of review in respondent,s appeal (see Memorandum and Order at R7). The fact that respondent is a prisoner in DOCCS custody does not strip respondent of his right to a fact-finding hearing on the issue of whether the State , s interests in force feeding him are superior to respondent,s liberty and privacy rights. This Court,s decision in Rivers v Katz, 67 NY2d 485 (1986), is instructive because in that case the Court dealt with the issue of the rights of involuntarily committed psychiatric patients to refuse unwanted medical treatment despite the loss of civil liberty associated with involuntary civil commitment in psychiatric hospitals under the Mental Hygiene Law. With respect to the State,s ability to administer psychotropic medications to patients over their objection pursuant to the State,s police power, this Court found: "Under these circumstances, the State,s police power would justify forced medication, albeit temporarily- continuing only as long as the emergency persists. In all cases, however, in order to override the patient ' s right to control his care and treatment, the State 's interest must be compelling" (Rivers v Katz, 67 NY2d 485,496 - emphasis added). When an inmate engages in a hunger strike, one or more of the State,s interests may well be implicated. However, which interests are implicated and the 8 extent to which they are implicated are issues of fact to be fleshed out at trial. Otherwise, courts cannot engage in an intelligent balancing of the parties, respective interests. In arguing that "it is self evident" that permitting inmates to maintain hunger strikes beyond the point at which they pose an imminent risk of serious harm would undermine DOCCS, ability to administer its prisons (State's Br. at 27), as well as indicating that respondent,s hunger strike "threatened to cause disruption among the prison population more generally " (State,s Br. at 28), the State essentially argues that this Court can or should take judicial notice of the fact that the State,s interests outweighed respondent,s liberty and privacy rights. To the contrary, respondent submits that while inmate hunger strikes may well implicate similar interests in each case, the extent to which they are implicated is case specific. Accordingly, respondent submits that in cases such as this the State should not be relieved of its duty to prove, through evidence at trial, that its interests actually outweigh the rights of the inmate. The State indicates that respondent has argued that the Court should not consider the impact of respondent 's hunger strike on safety and security within the correctional facility (State ,s Br. at 28, n6). Respondent concedes that Supreme Court erred when it sustained respondent's objection to this line of questioning at trial (R 72). Nonetheless, because there was insufficient proof regarding the effect 9 of respondent's hunger strike on institutional order, safety and security within the facility, Supreme Court erred in granting the State,s petition and the Appellate Division erred in affirming without support in the record of the proceedings below. Respondent also takes issue with the State,s argument that respondent,s manipulative motivation in undertaking his hunger strike somehow equates to a waiver of his right to direct the course of his own medical care (State ,s Br. at 28, n6). Counsel is unaware of any authority for this argument. Accordingly, the State should not be relieved of its duty to provide evidence regarding its competing interests by mere fact that the respondent had a manipulative intent in engaging in his hunger strike. Respondent submits that the State,s reliance on certain federal authorities (see State's Br. at 29, citing Martinez v Turner, 977 F2d 421 [8 *h Cir 1992] and In re Grand Jury Subpoena of John Doe v United States, 150 F3d 170 [2d Cir 1998]) in support of its argument is misplaced because federal regulations and policy regarding the force feeding of inmates in federal custody do not require a court hearing. Rather, federal regulations and policy permit force feeding merely upon the written order of the facility physician (see 28 CFR §§ 549.60 - 549.66; see also Federal Bureau of Prisons Program Statement No. P5562.05 "Hunger Strikes" 10 effective July 29, 2005 - attached in the addendum to this brief at Adden 01-08).2 New York State's policy with respect to force feeding inmates stands in stark contrast to federal regulations and policy in that the State requires that DOCCS obtain a court order prior to force feeding an inmate (see New York State Department of Correctional Services Directive No. 4309 "Inmate Hunger Strike" effective October 19 , 2007 - attached in the addendum to this brief at Adden 09- 12).3 In Mills v Rogers, the United States Supreme Court held: "Where a State creates liberty interests broader than those protected directly by the Federal Constitution, the procedures mandated to protect the federal substantive interests also might fail to determine the actual procedural rights and duties of persons within the State. Because state-created liberty interests are entitled to the protection of the federal Due Process Clause, the full scope of a patient,s due process rights may depend in part on the substantive liberty interests created by state as well as federal law. Moreover, a State may confer procedural protections of liberty interests that extend beyond those 2 The State,s reliance on Walker v Horn, 385 F3d 321 (3d Cir 2004) is also misplaced because at issue in that case was a Pennsylvania state court,s issuance of a preliminary injunction permitting state corrections officials the ability to force feed a hunger striking inmate. This grant of injunctive relief was one of the inmate's bases for a 42 USC § 1983 damages action against the State of Pennsylvania. At the District Court level, the inmate's due process claim relative to the force feeding order did not survive a summary judgment motion by the defendants (id. at 328) and the Circuit Court declined review under the Rooker-Feldman doctrine (id. at 332). 3 It is counsel,s understanding that DOCCS Directive 4309 was amended on or about November 7, 2012. However, it does not appear that DOCCS has changed its policy of requiring a court order in order to force feed a hunger striking inmate (see State,s Br. at 4). It is counsel ' s belief that the version of Directive 4309 that is attached in the addendum to this brief was in effect at the time of the proceedings below. 11 minimally required by the Constitution of the United States. If a State does so, the minimal requirements of the Federal Constitution would not be controlling, and would not need to be identified in order to determine the legal rights and duties of persons within that State" (Mills v Rogers, 457 US 291, 300 [ 1982], citing Vitek v Jones, 445 US 480, 488 [1980] and Greenholtz v Nebraska Penal Inmates, 442 US 1,7 [1979]).Thus, since New York appears to have granted its hunger striking inmates greaterdue process rights than the federal government has granted its inmates, respondentsubmits that the State has misplaced its reliance on federal authorities for theproposition that Supreme Court properly granted the State's force feedingpetition.4 4 Respondent submits that the State ,s reliance on Freeman v Berge, 441 F3d 543 (7 'h Cir 2006), is also misplaced because Freeman is not a force feeding case. To the extent that the Seventh Circuit discussed the government's ability to force feed inmates in Freeman, that discussion should be viewed as dicta. Respondent directs the Court to pages 22-25 of his main brief for an analysis of the inmate force feeding cases cited in Freeman, at 441 F3d at 546. 12 CONCLUSION For the reasons previously stated in respondent,s main brief as well as in this reply brief, this Court should reverse the Appellate Division,s Memorandum and Order of January 12, 2012 on the law and vacate Supreme Court 's force feeding Order of November 23, 2010. Dated: Albany, New York December 21, 2012 Respectfully submitted, Mental Hygiene Legal Service Third Judicial Department Sheila E. Shea, Director 40 Steuben Street, Suite 501 Albany, New York 12207 (518)451-8710 Shannon Stockwell, of Counsel By: 13 Addendum U . S . Department of Justice Federal Bureau of Prisons Program OPI: HSD/H5S NUMBER: P5562.05 DATE: 7/29/2005 SUBJECT: Hunger Strikes Statement 1. [PURPOSE AND SCOPE §549.60. The Bureau of Prisons provides guidelines for the medical and administrative management of inmates who engage in hunger strikes. It is the responsibility of the Bureau of Prisons to monitor the health and welfare of individual inmates, and to ensure that procedures are pursued to preserve life.] 2 . SUMMARY OF CHANGES. Section 6 has been expanded to include pretrial and holdover inmates and ICE detainees. Section 9 identifies Health Services staff and Food Service staff as those who may offer alternative beverages and nutritional supplements, if authorized by the physician. This section also indicates food and toothpaste may be left in the inmate's cell. Section 10 describes procedures for notifying the Regional Counsel when an inmate refuses treatment and the initiation of involuntary treatment. 3 . PROGRAM OBJECTIVES. The expected results of this program are: a. The health and welfare of any inmate on a hunger strike will be monitored. b. Food and beverages will be offered to inmates regularly. c. When an inmate's life or health is threatened, involuntary medical treatment will be administered. [Bracketed Bold - Rules] Regular Type - Implementing Information ADDEN-01 P5562.05 7/29/2005 Page 2 d. Every incident of an inmate on a hunger strike will be properly reviewed, documented, and reported. 4. DIRECTIVES AFFECTED a. Directive Rescinded P5562.04 Hunger Strikes, Inmate (6/20/94) b . Directives Referenced P5566.05 Use of Force and Application of Restraints on Inmates (7/25/96) P6031.01 Patient Care (1/15/05) P6090.01 Health Information Management (1/15/05) c. Rules cited in this Program Statement are contained in 28 CFR § 549.60-66. 5 . STANDARDS REFERENCED a. American Correctional Association 41f Edition Standards for Adult Correctional Institutions: 4-4257 and 4-4397 (M) b. American Correctional Association 4tf Edition Standards for Adult Local Detention Facilities: 4-ALDF-4D-15(M) and 4-ALDF-2A-52 6 . [DEFINITION §549.61. As defined in this rule, an inmate is on a hunger strike: a. When he or she communicates that fact to staff and is observed by staff to be refraining from eating for a period of time, ordinarily in excess of 72 hours; or b. When staff observe the inmate to be refraining from eating for a period in excess of 72 hours. When staff consider it prudent to do so, a referral for medical evaluation may be made without waiting 72 hours.] A hunger strike may be announced by the inmate, or observed by- staff, even though the inmate may be taking liquids. At times, an inmate may not actually engage in a hunger strike, but merely make a bid to gain attention. ADDEN-02 P5562.05 7/29/2005 Page 3 Other types of inmates (net on inpatient status in a Bureau of Prisons Medical Referral Center or hospitalized in the community) who should be monitored according to this policy include: Inmates who are observed to be unable to eat or drink by virtue of mental illness or acute medical conditions. Although not intentionally on a hunger strike, these inmates are either unwilling or unable to eat or drink sufficiently to prevent complications. Inmates with metabolic disorders or certain other illnesses, who deviate from normal eating habits or intake of fluid, could experience an immediate, significant hazard to their health and well-being. In any case, it is also recognized that after long-term deprivation of food and shorter term deprivation of fluid, serious irreversible changes can occur, and sudden death can occur. Procedures required in this Program Statement apply to pretrial and holdover inmates and ICE detainees. 7 . rINITIAL REFERRAL §549.62 a . Staff shall refer an inmate who is observed to be on a hunger strike to medical or mental health staff for evaluation and, when appropriate, for treatment.] Each Warden shall establish referral arrangements for the institution. In addition, staff may consult Health Services anytime they observe an inmate refraining from consuming food and/or liquids prior to 72 hours. [b. Medical staff ordinarily shall place the inmate in a medically appropriate locked room for close monitoring.] Ordinarily, placement in the medically appropriate room is a determination the institution physician makes. This room will be a single cell observation room (i.e., dry cell or cell with water shut-off capabilities), where no other inmate contact is possible (i.e., other inmates can't pass food or liquid items to the inmate on hunger strike status). Inmates in Administrative Detention or Disciplinary Segregation may be retained in this status and remain in the SHU unless the physician determines movement to other quarters is medically necessary. ADDEN-03 P5562.05 7/29/2005 Page 4 The Warden is to determine the type of observation for hunger strike inmates (e.g. continuous, 15 minute checks, routine). Under no circumstances will inmate companions be used to monitor hunger strike inmates. 8 * rINITIAL MEDICAL EVALUATION AND MANAGEMENT §549.63 a. Medical staff shall ordinarily perform the following procedures upon initial referral of an inmate on a hunger strike: (1) Measure and record height and weight; (2) Take and record vital signs; (3) Urinalysis; (4) Psychological and/or psychiatric evaluation; (5) General medical evaluation; (6) Radiographs as clinically indicated; (7) Laboratory studies as clinically indicated.] If an inmate refuses the initial medical evaluation, a signed Refusal of Treatment form (BP-A358) must be obtained and also documented in the Progress Notes (SF-600) of the Inmate;s Health Record. (Refer to the Program Statement on Patient Care) [b. Medical staff shall take and record weight and vital signs at least once every 24 hours while the inmate is on a hunger strike. Other procedures identified in paragraph (a) of this section shall be repeated as medically indicated. c. When valid medical reasons exist, the physician may modify, discontinue, or expand any of the medical procedures described in paragraphs (a) and (b) of this section. d. When medical staff consider it medically mandatory, an inmate on a hunger strike will be transferred to a Medical Referral Center or to another Bureau institution considered medically appropriate, or to a community hospital.] The decision to transfer an inmate on a hunger strike for medical reasons should only be made after consultation with a physician. ADDEN-04 P5562.05 7/29/2005 Page 5 The inmate should be admitted to a community hospital if his medical condition warrants continuous enteral (oral) or intravenous support. Local institutions need not transfer an inmate on a hunger strike to a Medical Referral Center (MRC) unless an MRC's specific services are required. Mentally ill inmates who do not eat or drink for more than 30 days, regardless of the apparent reason, should be referred to an MRC for evaluation and treatment of the underlying mental illness. e. Medical staff shall record in the appropriate section of the inmate's Health Record, entries for all the medical procedures described in this section. (Refer to the Program Statement on Health Information Management.) 9 . [FOOD/LIQUID INTAKE/OUTPUT §549.64 a. Staff shall prepare and deliver to the inmate's room three meals per day or as otherwise authorized by the physician.] A verbal offer of a meal will not suffice. Food from the food tray may be left in the inmate's cell. Ordinarily, when the food tray is left in the inmate's cell, perishable food items will not be left for more than two hours. [b. Staff shall provide the inmate an adequate supply of drinking water. Other beverages shall also be offered. c . Staff shall remove any commissary food items and private food supplies of the inmate while the inmate is on a hunger strike. An inmate may not make commissary food purchases while under hunger strike management.] An inmate under hunger strike management may still purchase non-food items, such as stamps, from the commissary. The inmate is allowed to have toothpaste in the dry cell. d. All food and water intake and output will be monitored and recorded as needed or to the extent possible. The Warden shall make this determination after consultation with the physician. This procedure is to continue until ended by a physician. This means a dry cell must be available for housing hunger strike inmates. ADDEN-05 P5562.05 7/29/2005 Page 6 Health Services and Food . Service staff may offer alternative beverages, including liquid nutritional supplements, if authorized by the physicians. Any beverages other than drinking water must be documented (e.g. BP-S292) and that information relayed to Health Services staff. Acceptance of liquids alone should not be documented as accepting a meal. 10. [REFUSAL TO ACCEPT TREATMENT §549.65 a. When, as a result of inadequate intake or abnormal output, a physician determines that the inmate's life or health will be threatened if treatment is not initiated immediately, the physician shall give consideration to involuntary medical treatment of the inmate.] The decision to force treatment upon the inmate is a medical decision, preferably by a written physician's order, withpotential legal implications.When it appears to medical staff that the inmate's condition isdeteriorating to the extent that intervention may soon berequired, the Regional Counsel must be notified so any legalissues may be addressed. Although legal counsel has beennotified, medical staff should not suspend or delay involuntarytreatment if the physician is convinced to a reasonable medicalcertainty that there is an immediate threat to the inmate's life,or permanent damage to the inmate's health.R gional Counsel w ll determine whether it is appropriate to contact the local U.S. Attorney's Office. In the case of potential involuntary treatment of a pretrial inmate, institution legal staff or rhe Regional Counsel must be notified that intervention may be required, in order to determine whether the court should be notified. In all such situations, the Regional Counsel will inform the Regional Director. [b. Prior to medical treatment being administered against the inmate's will, staff shall make reasonable efforts to convince the inmate to voluntarily accept treatment. Medical risks faced by the inmate if treatment is not accepted shall also be explained to the inmate. Staff shall document their treatment efforts in the medical record of the inmate. ADDEN-06 P5562.Ob 7/29/2005 Page 7 c. When, after reasonable efforts, or in an emergency preventing such efforts, a medical necessity for immediate treatment of a life or health threatening situation exists, the physician may order that treatment be administered without the consent of the inmate. Staff shall document their treatment efforts in the medical record of the inmates.] Written reports of such treatment shall be submitted to the Medical Director and Regional Director. The Warden shall provide prompt notification and any involuntary treatment under this Program Statement to the sentencing judge, with an explanation of the background of ana the reasons for the treatment. The outcome of the hunger strike and the treatment administered shall also be reported. When a physician orders involuntary medical treatment, to include placing a nasogastric tube for feeding, and the inmate refuses to comply, as with any other use-of-force, these events should be videotaped. All staff involved in the use of force shall wear appropriate protective clothing as outlined in the Use of Force Program Statement. Only the physician may order involuntary medical treatment. Normally, this is to consist of a nasogastric tube for feeding. If unsuccessful or medically inappropriate, then intravenous fluids and hyperalimentations intravenously may be necessary. As a last report, gastrostomy and tube feeding through the stomach may be required, however, review by the appropriate court should first be sought before attempting this treatment. Simple IVs may be performed in the institution, however, hyperalimentations or gastrostomy tube feeding must be performed in a hospital or an MRC (see Clinical Treatment Guidelines or Medical Management of Inmates). [d. Staff shall continue clinical and laboratory monitoring as necessary until the inmate's life or permanent health is no longer threatened.] ADDEN-07 P5562.05 7/29/2005 Page 8 Normally, treatment must continue until adequate oral intake of food and liquid is achieved. Medical monitoring for severe or life-threatening complications of malnutrition may continue, at the physician's discretion, beyond the point at which the inmate resumes adequate oral intake. [e. Staff shall continue medical, psychiatric and/or psychological follow-up as long as necessary.] 11. fRELEASE FROM TREATMENT §549.66. Only the physician may order that an inmate be released from hunger strike evaluation and treatment. This order shall be documented in the medical record of the inmate.] Documentation is to be made in the Progress Notes section of the Inmate's Health Record. 12. MEDICAL JUDGMENT. None of the procedures or guidelines in this Program Statement are meant to limit or override the exercise of sound medical judgment by the physician responsible for medical care. Each case must be evaluated on its own merits ana individual circumstances. Treatment is to be given and documented in accordance with accepted medical practice. /s/ Harley G. Lappin Director ADDEN-08 STATE OF NEW YORK . DEPARTMENT OF CORRECTIONAL SERVICES BSB' DIRECTIVE TITLE Inmate Hunger Strike NO. 4309 DATE 10/19/2007 SUPERSEDES DIR# 4309 Dtd. 05/22/2006 DISTRIBUTION PAGES A B pagp 1 OF 4 DATE LAST REVISED REFERENCES (irxitxle Qui are not brJled so) APPROVING AUTHORITY I. POLICY. The State has a legitimate interest in preventing self harm. Inmates have no constitutional right to starve themselves to death. Therefore , the State is authorized to force feed an inmate on a hunger strike in order to protect the health and welfare of the inmate and to maintain rational and orderly procedures in our facilities. These needs outweigh an inmate's right of privacy and free expression. The Department will seek a Court Order requesting the ability to force feed any inmate on a hunger strike by whatever means necessary, including tube feeding, for as long as necessary. II. APPLICABILITY. This policy is applicable to all employees. III. DEFINITIONS. Hunger Striker: is defined as any inmate who has refused to eat for three consecutive days. It is not necessary for the inmate to declare that he/she is on a hunger strike; the very refusal to eat is sufficient to begin the hunger strike response procedures set forth in this Directive. Base Weight: is defined as the inmate's weight, either documented on the first day a hunger strike becomes known to departmental staf or during any period of reasonable health within the past five years, whichever is lower. IV. PROCEDURE: A - Identification and assessment. 1 . Any inmate who is refusing to eat or declares that he/she is on a hunger strike, or who has been identified by DOCS or OMH staf as on a hunger strike, will be referred to Health Services and the Office of Mental Health staf for counseling and an initial clinical assessment to determine the cause of the inmate's refusal to eat. At this time , baseline medical data (weight, blood pressure, etc.) will be obtained , with the inmate's cooperation. 2 . If Health Services determines that the inmate's refusal to cat is a result of a medical condition, the inmate shall be referred for appropriate follow-up care with Health Services and the hunger strike procedure set forth below shall stop.- - 3 . If OMH or Health Services determines that the inmate's refusal to eat is a result of a psychiatric condition, the inmate shall be referred for appropriate follow-up care with OMH staff, and the hunger strike procedure set forth below shall be continued unless otherwise directed in writing by OMH. B . Reporting. Health services staff shall promptly report to the Facility Health Services Director who will, in turn , notify the facility superintendent of the name and condition of any inmate in the facility who has been identified as being on a hunger strike. In addition, the Superintendent or designee will notify via E- mail, the Regional Medical Director, Regional Health Services Administrator, Supervisor of Utilization Management and the Assistant Commissioner of Mental Health. The E-mail shall at a minimum contain the following information: inmate,s name and DIN , the hunger strike start date, the inmate,s base weight, the inmate,s purported rationale for the hunger strike, if the inmate is a chronic medical patient and/or mental health patient, the status of any current court orders and any other pertinent comments. C . Phase 1 Response. 1 , To resolve a hunger strike, the Superintendent shall activate a Hunger Strike Team consisting of: a. The Deputy Superintendent for Administration (DSA), First Deputy Superintendent or Deputy Superintendent of Health (DSH) who will act as the Hunger Strike Team Leader, ADDEN-09 DATE NO 4309, Inmato Hunger Strike 10/19/2007 PAGE 2 of 4 b . The Facility Health Services Director (FHSD) or designated facility physician, and c . The Office of Menial Health Unit Chief or designee. 2 . The Superintendent may also include, on a case by case basis, any staff person the Superintendent feels is appropriate, e.g. the inmate's Correction Counselor, the Chaplain or a C1U person. 3 . Facility health care staff will monitor the hunger striker per Health Services Policy Manual Item 1 .30, "Inmate Hunger Strike Policy." 4 . The Office of Mental Health staff will continue to evaluate the hunger striker per the Central New York Psychiatric Center Outpatient Operations Policy and Procedure Manual , Services to Department of Correctional Services , Section 6, subsection E "Inmate Hunger Strike." (If necessary, a hunger striker should be transferred to a facility with OMH staff). 5. The Hunger Strike Team Leader will meet with the inmate and inform the inmate of department policy on hunger strikes. The inmate wili also be counseled by a physician regarding the physical consequences of a continued fast. The leader will attempt to verify the inmate's purported rationale for the hunger strike. A statement will be prepared for the inmate to sign which shall include the inmate?s purported rationale for the hunger strike and the inmate,s intentions. This will be placed in the hunger strike file which will be maintained by the hunger strike team leader. If the inmate refuses to sign, it will be documented on the statement and placed in the hunger strike file. 6 . The inmate will be admitted to a DOCS facility infirmary by the Facility Health Services Director based on physical indications or a determination by the Superintendent that it is detrimental for the order of the facility for him/her to remain in general population. D . Phase II Response. In the event that the involved inmate does not begin to eat and his/her weight loss reaches 15 percent of his/her body weight from the base weight, or the physical stress of the lack of nutrition adversely impacts his/her medical condition as determined by the FHSD or designated physician, the following measures will be instituted: 1 . The Hunger Strike Team Leader will immediately notify the Watch Commander who in turn will notify the Communications Control Center in accordance with Directive #4004 , "Unusual Incident Report." 2 . The Hunger Strike Team Leader will notify, via e-mail, the Facility Health Services Director (FHSD) or designated physician. Regional Medical Director (RMD), Regional Health Services Administrator (RHSA), Counsel's Office and the Deputy Commissioner for Correctional Facilities. 3 . Psychiatric evaluations will take place per CNYPC Outpatient Operations Policy and Procedure Section E6 , "Inmate Hunger Strike." 4 . The Hunger Strike Team Leader will meet with the inmate to discuss possible solutions to the problems which have contributed to the hunger strike. At this time, the Hunger Strike Team Leader will inform the inmate that court decisions such as Van Holden vs . Chapman, 87 AD2d66 (4 Dept. 1982), have held that the state has an obligation to protect the health and welfare of the inmate. Further in the case of Martinez vs. Turner , 977F2d42l (8th Cir 1998), force feeding is not a constitutional violation when necessary to maintain an inmate's health. The Hunger Strike Team Leader will inform the inmate that if he/she refuses to eat the department will pursue appropriate legal action to institute force feeding. The script developed by Counsel,s Office, Attachment A, should be used for this purpose and its use in a hunger strike documented. L- Phase 111 Response. In the event that a satisfactory resolution cannot be obtained as outlined in Phase II, the following steps will be instituted: 1 . I he FHSD or physician designee will complete an Evaluation for Treatment over Objection for the inmate including current vital signs, weight loss, and other relevant medical data. Daily monitoring of the inmate"s physical condition as required by HSP 1.30 will determine the medical need for forced feeding. An updated mental health status evaluation will be provided by OMH. ADDEN-10 NO. 4309, inmate Hunger Strike _ _ _ DATE _ 10/19/2007 _ PAGE 3 of 4 The Evaluation for Treatment over Objection and the current mental health evaluation will then be reviewed by the RMD and subsequent to that review will be forwarded by the Superintendent or his/her designee to the Central Of ice Counsel's Office and the Attorney General's Office serving the county in which the facility is located for assistance with the required court order. The superintendent or designee will stay in regular contact with the Attorney General's Office until the required court order is obtained. 2 . The Superintendent or designee will submit a weekly report of the inmate's status to the Deputy Commissioner and Chief Medical Officer using the auto-routed "Weekly Hunger Strike Report" (WKLYHNGRRPT) SYSM E-Form. 3. Subsequent to any decision to force feed, the FHSD or physician designee will advise the inmate of the process required and the potential consequences of the continued hunger strike. An attempt will be made to secure the inmate's consent to the process of forced feeding. 4 . Refusal of such consent will be documented in the inmate's medical record and the hunger strike file. The inmate will be informed that forced feeding will be initiated regardless of the lack of his/her consent if, in the opinion of the responsible physician, it is deemed medically necessary to sustain life and to prevent irreversible damage to life support systems. 5 . Should force feeding or other medical treatment become necessary the Hunger Strike Team Leader shall notify the facility Watch Commander, who will notify the Communications Control Center (CCC) and prepare the final Supplemental Unusual Incident Report in accordance with Directive #4004. 6 . At this time , consideration may be given to the temporary admission of the inmate to another facility infirmary or an RMU if such an admission is deemed by the Chief Medical Officer to be necessary to maintain the inmate,s health during the forced feeding process. Admission to another facility infirmary or an RMU will not impact the court order as any order to force feed issued by a justice of the State Supreme Court has jurisdiction statewide and would remain in effect regardless of an inmate>s current facility location. 7 . Forced feeding will be terminated if/when the inmate ends his/her declared hunger strike and/or voluntarily consumes sufficient nutrition to sustain life and to prevent irreversible damage to life support systems, as determined by the responsible physician. If the inmate has been admitted to the RMU, he/she will be discharged and returned to the owning facility. 8 . When it has been determined that an inmate's hunger strike has ended, the Hunger Strike Team Leader shall notify the Facility Watch Commander, who will notify the CCC and the Deputy Commissioner and Chief Medical Officer, as we)! as prepare the Final Supplemental Unusual Incident Report in accordance with Directive #4004. F . 1. The Deputy Commissioner and Chief Medical Officer upon receiving notification of the end of the hunger strike shall prepare a final report for the Commissioner regarding the inmate,s status as well as any recommended treatment options. 2 . Inmates entering and receiving treatment related to Phase III Hunger Strikes will be evaluated at least monthly by Facility Health Services staff who will make appropriate entries within the inmate>s Ambulatory Health Record, for a period of twelve months. The FHSD or designee shall forward a brief report to the Deputy Commissioner and Chief Medical Officer regarding each monthly evaluation. G . Any questions or issues related to the implementation of this process should be referred to Central Office Health Services, Facility Operations or Counsel's Office. ADDEN-11 NO. 4309, Inmate Hunger Strike __ _ __ DATE 10/19/2007 _ PAGE 4 of4 Attachment A Inmate Hunger Strike Script The Law in New York is well settled that inmates have no constitutional right to starve themselves to death. Therefore , the State is authorized to force feed an inmate on a hunger strike in order to protect the health and welfare of the inmate by providing "sufficient nutrition to sustain life and to prevent irreversible damage to life support systems" and to maintain rational and orderly procedures in our facilities. These needs outweigh an inmate's right of privacy and free expression. Furthermore, the State has a legitimate interest in preventing suicide. Since you have chosen to refuse to eat, the Department will be seeking a Court Order requesting the ability to force feed you for as long as necessary. Once issued, the Order will permit the Department to feed you by whatever means medically necessary, including tube feeding. ADDEN-12