N.Y. Mental Hygiene Law § 31.37: Mental health incident review panels

§ 31.37 Mental health incident review panels.

(a) The commissioner shall establish no less than one mental health

incident review panel per quarter to review the circumstances and events

related to an incident involving a person with serious mental illness

occurring in the community that involved the use of deadly physical

force, as defined by subdivision eleven of section 10.00 of the penal

law, and resulted in serious physical injury, as defined by subdivision

ten of section 10.00 of the penal law, to another. In selecting an

incident to be reviewed, the commissioner shall review requests from

local governmental units, or non-governmental organizations or

not-for-profit entities involved with the provision of mental health

care or that represent the interests of people with mental illness and

shall identify an incident appropriate for an incident review panel,

consistent with the purposes of this section.

(a-1) The commissioner may establish, on their own accord, additional

mental health incident review panels for the purposes of reviewing in

conjunction with local representation, the circumstances and events

related to a serious incident involving a person with mental illness.

For purposes of this section, a "serious incident involving a person

with mental illness" means an incident occurring in the community in

which a person with a serious mental illness suffers physical injury as

defined in subdivision nine of section 10.00 of the penal law or causes

such physical injury to another person, or suffers a serious and

preventable medical complication or becomes involved in a criminal

incident involving violence.

(a-2) A panel established under this section shall conduct a review of

such incident for the purpose of identifying problems or gaps in mental

health delivery systems and to make recommendations for corrective

actions to improve the provision of mental health or related services,

to improve the coordination, integration and accountability of care in

the mental health service system, and to enhance individual and public

safety.

(b) A mental health incident review panel shall include

representatives from the office of mental health, the division of

criminal justice services, and the chief executive officer or designee

of the local governmental unit where the serious incident involving a

person with a mental illness occurred. A mental health incident review

panel may also include, if deemed appropriate by the commissioner based

on the nature of the serious incident being reviewed, one or more

representatives from mental health providers, local departments of

social services, human services programs, hospitals, local schools,

emergency medical or mental health services, the office of the county

attorney, state or local police agencies, the office of the medical

examiner or the office of the coroner, the judiciary, or other

appropriate state or local officials; provided, however, that a local

law enforcement official may not serve as a member of such a review

panel if such local law enforcement official's office or agency is

directly involved in any ongoing investigation or prosecution of a crime

under review by the panel, or any appeal of a criminal conviction for

such crime.

(c) (i) Notwithstanding any other provision of law to the contrary and

to the extent consistent with federal law, a mental health incident

review panel shall have access to those relevant client-identifiable

mental health records, as well as all records, documentation and reports

relating to the investigation of an incident by the justice center,

pursuant to article twenty of the executive law and an incident by a

facility in accordance with regulations of the commissioner, which are

necessary for the investigation of the serious incident involving a

person with mental illness and the preparation of a report of such

incident, as provided in subdivision (e) of this section. A mental

health incident review panel investigating a serious incident involving

a person with a mental illness pursuant to this section shall be

provided with access to all relevant, non-privileged records in the

possession of state or local officials or agencies, within twenty-one

days of receipt of a request, except: (A) those records protected by

section 190.25 of the criminal procedure law; (B) where providing law

enforcement records would interfere with an ongoing law enforcement

investigation or judicial proceeding, identify a confidential source or

disclose confidential information relating to an ongoing criminal

investigation, highly sensitive criminal investigative techniques or

procedures, or endanger the safety or welfare of an individual; (C) with

respect to any such record that is privileged, where the privilege is

held by the official or agency and no separate privilege held by an

individual applies, such official or agency shall be authorized to waive

such official's or agency's privilege, as applicable, and provide such

record; and (D) whenever an agency, director or unit believes pursuant

to subparagraph (B) of this paragraph that release of records would

interfere with a judicial proceeding, it shall identify that proceeding,

and the mental health incident review panel shall be authorized, upon

notice to such agency, director or unit, to request in writing to the

judge before whom such judicial proceeding is pending, that such judge

determine whether access to such records should be denied on the ground

that release of such records would interfere with the pending

proceeding. Upon receipt of such a request, the judge shall offer the

agency, director or unit and the panel a reasonable opportunity to be

heard, and may review the disputed records in camera. The judge shall

submit its determination to the agency, director or unit and the mental

health incident review panel, and the agency, director or unit shall

then proceed in accordance with the judge's determination.

(ii) In any case in which access to records is denied pursuant to this

subdivision, the appropriate agency shall inform the panel in writing of

the reasoning for such denial.

(d) Mental health incident review panels and members of the review

panels shall have immunity from civil and criminal liability for all

reasonable and good faith actions taken pursuant to this section, and

shall not be questioned in any civil or criminal proceeding regarding

any discussions, deliberations or findings relating to the official

duties of such review panel. Nothing in this section shall be construed

to prevent a person from testifying as to information obtained

independently of a mental health incident review panel, or information

which is public.

(d-1) Persons who present information to the panel shall have immunity

from civil and criminal liability for all reasonable and good faith

actions taken pursuant to this section, and shall not be questioned in

any civil or criminal proceeding regarding their authorized

participation at a meeting of the panel. Neither information nor records

relating to the performance of a review panel function, nor a person's

participation in a review panel shall be subject to disclosure pursuant

to article thirty-one of the civil practice law and rules. Nothing in

this section shall be construed to prevent the disclosure of, or

testimony regarding, information that exists or is obtained

independently of the panel or information that is public.

(e) Notwithstanding any other provision of law to the contrary, all

meetings conducted, all reports and records made and maintained and all

books and papers obtained by a mental health incident review panel shall

be confidential, and shall not be open or made available, except by

court order for good cause shown or as set forth in subdivision (g) of

this section. Each mental health incident review panel shall develop a

report of the incident investigated. Such report shall not contain any

individually identifiable information and shall be provided to the

office of mental health upon completion. Records, reports, information

regarding testimony and other information gathered by the panel shall

not be further disseminated by a panel member.

(f) If quality problems of particular mental health programs are

identified based on such reviews, the commissioner is authorized,

pursuant to the relevant provisions of this chapter, to take appropriate

actions regarding the licensure of particular providers, to refer the

issue to other responsible parties for investigation, or to take other

appropriate action within the scope of his or her authority.

(g) In accordance with section 33.13 of this title, the commissioner

shall provide the final report of a review panel or portions thereof to

any individual or entity for whom the report makes recommendations for

corrective or other appropriate actions. Any final report or portion

thereof shall be confidential. Any individual or entity receiving the

report shall be prohibited from further disseminating such report.

Further, the commissioner shall notify the temporary president of the

senate and the speaker of the assembly of the issuance of the reports.

(h) The commissioner shall, every two years, submit a cumulative

report to the governor and the legislature incorporating the data in the

mental health incident review panel reports and including a summary of

the findings and recommendations made by such review panels and, to the

extent practicable, any recommendations that have been implemented,

including recommendations from prior reports, and the impact of such

implementations. The cumulative reports shall thereafter be made

available to the public on the official agency website for the office of

mental health, consistent with federal and state confidentiality

protections.