In re Axelrod

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Upon our review of the record, we conclude that the determination of the Commissioner that petitioner had been guilty of patient abuse was supported by substantial evidence. The record supports respondent’s findings that petitioner forcibly administered medication to the patient; that there was no order directing petitioner to administer the medication forcibly; and that there was no convincing evidence that the patient’s refusal to take the medication constituted a medical emergency justifying the forcible administration of medication.

The evidence shows that after the patient refused to take her medication, petitioner held the patient’s chin and poured the medication down her throat. The Commissioner properly held that the notation in the record that "staff are asked to, please, make every effort to make sure that she [the patient] takes them [her medication]” does not authorize the forcible administration of medication. This is particularly so when the notation was not made by a medical doctor authorized to prescribe medication and when the written policy of the facility was that the head nurse was to be notified if a patient refused medication.

The Commissioner properly found that there was no convincing evidence of a medical emergency. Although the patient had refused medication many times before, no prior action had been taken to force it upon her. Instead, the *914refusals were noted in the patient’s record. Further, petitioner’s medical expert testified that the patient could miss one dose without adverse consequences and the record shows that the patient had not missed her medication for a substantial period of time before this incident. (Article 78 proceeding transferred by order of Supreme Court, Monroe County, Boehm, J.) Present—Boomer, J. P., Green, Pine, Balio and Davis, JJ.