No Physician-Testimony Requirement at Psychiatric Retention Hearings: Nurse Practitioners Deemed Competent Experts under New York MHL §§ 9.31 and 9.33

Introduction

In Matter of Raymond E. (2025 NY Slip Op 04006), the Appellate Division, Second Department (Love, J., writing; Miller, J.P., Ford and Golia, JJ., concurring) addressed a question of first impression within that Court: whether the petitioner at a judicial retention hearing under the Mental Hygiene Law must present testimony from a licensed physician, or whether a nurse practitioner (NP) may serve as the expert witness. The respondent hospital, South Beach Psychiatric Center, sought to retain the appellant patient for involuntary psychiatric care under Mental Hygiene Law (MHL) § 9.33, and proposed the patient’s treating nurse practitioner as its expert witness. The patient objected, asserting that only physicians may provide the expert testimony necessary at such hearings.

Beyond the competency of an NP to testify, the case also raised a threshold question of mootness: while the appeal was pending, the patient had been discharged under an Assisted Outpatient Treatment (AOT) order, potentially rendering the appeal academic. The Court nevertheless reached the merits under the exception to the mootness doctrine due to the recurring and evanescent nature of the issue and its substantial public importance.

This decision clarifies, for the Second Department, that the Mental Hygiene Law does not require physician testimony at retention hearings under §§ 9.31 and 9.33; nurse practitioners, consistent with their statutory scope of practice, are competent to testify as expert witnesses on the requisite elements for involuntary retention.

Summary of the Judgment

The Court held that the Mental Hygiene Law does not require that expert testimony at a judicial retention hearing be provided by a licensed physician. A nurse practitioner may testify and, where otherwise qualified, establish the petitioner’s prima facie case for retention.
Relying on Education Law § 6902(3)(a), the Court recognized that NPs may diagnose illness, provide treatment, and prescribe medications, and are thus competent to testify on whether a patient is mentally ill, needs further inpatient care and treatment, and poses a substantial threat of physical harm to self or others.
Although the specific retention order became academic due to the patient’s discharge under an AOT order, the Court reached the merits under the exception to mootness for issues that are substantial, likely to recur, and typically evade review.
The appeal was dismissed as academic insofar as it challenged the (expired) two-year retention directive, but the order was affirmed insofar as reviewed, with the Court’s precedential holding on the competency of NPs to testify at retention hearings.

Detailed Analysis

Statutory Framework

The Mental Hygiene Law sets out a two-stage framework that differentiates between initial admission and subsequent judicial retention:

Initial involuntary admission (MHL § 9.27): Requires certificates by two examining physicians, followed by confirmation by a third physician on the hospital’s psychiatric staff. This authorizes confinement for up to 60 days without initial judicial involvement.
Notice of admission (MHL § 9.29): The director must promptly notify the Mental Hygiene Legal Service (MHLS) of the admission.
Release hearing (MHL § 9.31): Within 60 days of admission, the patient (or others) may request a hearing; the court then hears testimony and examines the patient if advisable.
Continued retention (MHL § 9.33): To retain a patient beyond the initial period, the hospital must apply for a judicial order. Upon demand, the court holds a hearing “in like manner” to § 9.31. The hospital must prove by clear and convincing evidence that the patient is mentally ill, needs further care and treatment, and poses a substantial threat of physical harm to self or others.

Crucially, while § 9.27 expressly requires physician certifications for admission, §§ 9.31 and 9.33 contain no express requirement that only physicians may testify as experts at hearings. The Second Department treats these domains as functionally distinct—one administrative (admission) and the other judicial (retention).

Mootness and the Exception Applied

The Court first addressed mootness. Because the patient was discharged under an AOT order dated October 30, 2023, any challenge to the June 27, 2022 retention order was technically academic. Ordinarily, courts refrain from deciding moot issues. However, the Court invoked the exception to the mootness doctrine to reach the statutory question:

Matter of Hearst Corp. v Clyne (50 NY2d 707) states the general mootness rule: appeals are dismissed unless rights are directly affected and the interest is immediate.
Matter of Talbot V. [Kingsboro Psychiatric Ctr.] (192 AD3d 1123, affd 38 NY3d 1128) and Matter of G., Cynthia [Kings County Hosp.] (188 AD3d 881) support entertaining issues that are important, likely to recur, and apt to evade review due to the relatively brief duration of orders in mental health proceedings.

Given the recurring, time-sensitive nature of retention hearings, and the substantial liberty interests at stake, the Court properly reached the merits.

The Central Holding: NPs Are Competent Expert Witnesses at Retention Hearings

Rejecting the patient’s argument that the physician-certification regime for initial admission should carry over to the judicial retention context, the Court held that nothing in §§ 9.31 or 9.33 requires expert testimony from a physician. Instead, the controlling inquiry at the hearing stage is whether the witness has “material and relevant evidence” to offer and whether the hospital can meet its clear-and-convincing burden.

The Court reasoned that:

Statutory text: §§ 9.31 and 9.33 do not prescribe a physician-only rule; courts cannot “amend a statute by inserting words that are not there.”
Scope of NP practice: Under Education Law § 6902(3)(a)(i)-(ii), NPs may diagnose, treat, and prescribe, and thus are professionally competent to opine on mental illness, need for continued inpatient care, and dangerousness.
Evidentiary competence: The threshold is whether the witness possesses material and relevant evidence; the weight and credibility of the testimony are for the court to determine based on the full record.
Practical realities: Treating NPs may have deeper, longitudinal knowledge of a patient’s presentation than physicians who interact less frequently, making NP testimony both useful and reliable.

Precedents and Authorities Cited

Matter of Daniel C. [South Beach Psychiatric Ctr.] (207 AD3d 539): Restates the governing standard under MHL § 9.33—clear and convincing evidence of mental illness, need for care and treatment, and substantial threat of physical harm.
Matter of Marie H. (25 AD3d 704): Supports the clear-and-convincing evidentiary standard in retention matters.
Addington v Texas (441 US 418): The United States Supreme Court’s foundational requirement that civil commitments satisfy a clear-and-convincing proof standard to comport with due process.
Matter of State of New York v Enrique D. (22 NY3d 941): Endorses the principle that witness competency hinges on whether the witness can offer material and relevant evidence on the issues to be decided.
Matter of Charles S. (60 AD3d 954): Courts cannot rewrite statutes by adding requirements the Legislature did not include.
Matter of Talbot V. [Kingsboro Psychiatric Ctr.] (192 AD3d 1123, affd 38 NY3d 1128) and Moran Towing & Transp. Co. v New York State Tax Commn. (72 NY2d 166): Articulate deference to agency interpretations when not irrational or inconsistent with the statute; the Court references the Office of Mental Health’s (OMH) construction as entitled to weight.
Matter of William G. (196 Misc 2d 51, Sup Ct, Oneida County) and Matter of Carol A. (6 Misc 3d 497, Sup Ct, Oneida County): Trial-level precedents allowing NP testimony in mental hygiene proceedings; the Second Department’s decision aligns appellate-level authority with these holdings.
Matter of Hearst Corp. v Clyne (50 NY2d 707) and Matter of G., Cynthia (188 AD3d 881): Frame the mootness inquiry and exception applied here.

Legal Reasoning

The Court’s reasoning proceeds in three principal steps:

Textual separation of admission and retention regimes: MHL § 9.27’s physician-certification rule is expressly limited to initial admissions without judicial oversight. Once judicial process is invoked under §§ 9.31 and 9.33, the Legislature did not specify a physician-only expert requirement. Applying standard canons of construction, the Court refused to “read in” words the Legislature chose to omit.
Professional competence of NPs: Education Law § 6902 provides that NPs may diagnose illnesses, perform therapeutic measures, and prescribe medications within their specialty. That scope logically extends to the psychiatric domain when the NP practices in that specialty and collaborates as the statute contemplates. Therefore, NPs are professionally and legally competent to render the opinions necessary at retention hearings.
Evidentiary sufficiency and judicial safeguards: The clear-and-convincing standard, adversarial presentation, cross-examination, and judicial fact-finding collectively ensure due process. The identity of the expert as a physician or NP goes to weight rather than categorical admissibility; a treating NP may, in some circumstances, offer more probative testimony than a physician with less direct exposure to the patient.

Applying these principles, the Court concluded there is “no support in the statute or any related regulations” for a physician-only expert rule at retention hearings, and explicitly held that a nurse practitioner is competent to testify under MHL §§ 9.31(c) and 9.33(c).

Impact and Implications

Binding effect in the Second Department: As an Appellate Division ruling, the decision governs trial courts within the Second Department. Until the Court of Appeals rules otherwise or another Department issues a conflicting holding, this decision will likely be persuasive statewide and may promote uniformity.
Operational flexibility for hospitals: Psychiatric facilities may call treating NPs as expert witnesses, improving scheduling, reducing delays, and enabling courts to hear from the clinicians with the most direct patient contact.
Patient rights and due process: The decision does not dilute substantive protections. The burden remains clear and convincing evidence; patients retain full hearing rights, including cross-examination and presentation of contrary medical evidence. Defense counsel should evaluate whether to retain an independent expert or elicit concessions on less restrictive alternatives and risk assessments when the hospital proceeds with NP testimony.
Agency deference and administrative consistency: The Court’s deference to OMH’s interpretation supports administrative consistency and signals that health-licensing statutes (Education Law § 6902) and mental hygiene procedures are to be read harmoniously.
Practical evidentiary guidance: The focus shifts from credential-based categorical exclusions to the substance and credibility of the testimony. Courts will assess whether the NP addresses each statutory element with a reliable diagnostic foundation, documented observations, risk assessments, medication management, and responsiveness to treatment.

Complex Concepts Simplified

Involuntary admission vs. judicial retention: Admission under § 9.27 is an administrative process requiring physician certifications for short-term confinement without initial judicial review. Retention under §§ 9.31 and 9.33 is judicial: the court decides after a hearing whether continued confinement is warranted.
Clear and convincing evidence: A high civil standard of proof. It requires the hospital’s evidence to be highly persuasive, though not as stringent as “beyond a reasonable doubt.” Confirmed by the U.S. Supreme Court in Addington v Texas for civil commitments.
Substantial threat of physical harm: The hospital must show that, without continued inpatient treatment, the patient poses a significant risk of physical harm to self or others. This may be established through recent behavior, clinical presentation, or inability to meet basic needs combined with risk factors.
Competency vs. weight of testimony: Competency addresses whether a witness is legally permitted to testify on the subject. Weight concerns how convincing the testimony is. NPs are competent; the trial court decides how much weight to give their opinions.
Mootness and its exception: Courts ordinarily avoid deciding issues that no longer affect the parties. An exception exists for issues that are important, likely to recur, and evade review because they typically expire before appellate determination—common in short-duration mental health orders.
Deference to agency interpretation: Courts often defer to an agency’s reasonable interpretation of statutes it administers. Here, the Office of Mental Health’s reading that NPs may testify is entitled to weight if not inconsistent with the statute.

Practice Pointers

For petitioners (hospitals):
- Select the clinician with the richest longitudinal knowledge (often the treating NP) and ensure testimony addresses all statutory elements: diagnosis, need for inpatient care, and risk of harm.
- Corroborate testimony with contemporaneous medical records, risk assessments, medication history, and observed behavior.
For respondents (patients) and MHLS:
- Challenge the foundation, methodology, and risk analysis—regardless of whether the witness is a physician or NP.
- Consider presenting countervailing expert testimony, especially on less restrictive alternatives, medication adherence, and community supports.
For courts:
- Focus on the substance and reliability of the testimony, the clinical basis for opinions, and whether the clear-and-convincing standard is satisfied.
- Articulate findings on each element to facilitate review and ensure robust due process.

Conclusion

Matter of Raymond E. establishes a clear and pragmatic rule in the Second Department: the Mental Hygiene Law does not require physician testimony at judicial retention hearings; nurse practitioners, by virtue of their statutory scope of practice, are competent to serve as expert witnesses to establish the elements necessary for involuntary retention. The Court’s decision respects legislative lines between administrative admission and judicial retention, aligns with professional licensure statutes, and leverages the practical expertise of treating clinicians, all while preserving the rigorous clear-and-convincing standard and adversarial safeguards that protect patient liberty. This precedent will streamline retention proceedings, promote evidentiary clarity, and likely influence practice across New York’s courts.