Barbara C., Matter of

• Decision Date: 23 April 1984
• Parties: In the Matter of BARBARA C. (Anonymous). John J. Sabatos, Director, Brooklyn Developmental Center, Respondent; Francis M. Savastano, Director, Mental Health Information Service, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 799

474 N.Y.S.2d 799

101 A.D.2d 137

In the Matter of BARBARA C. (Anonymous).

John J. Sabatos, Director, Brooklyn Developmental Center,

Respondent; Francis M. Savastano, Director,

Mental Health Information Service, Appellant.

Supreme Court, Appellate Division,

Second Department.

April 23, 1984.

Dennis B. Feld, Brooklyn, for appellant.

Robert Abrams, Atty. Gen., New York City (Richard Rifkin, George D. Zuckerman, Thomas P. Dorsey and Robert L. Schonfeld, Asst. Attys. Gen., New York City, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, THOMPSON and BOYERS, JJ.

PER CURIAM.

The director of the Brooklyn Developmental Center, a mental health facility, commenced this proceeding for an order granting permission to perform an abortion upon Barbara C., a center patient who was 25 years old and so retarded that her mental age was equivalent to that of a child less than two years of age. After a hearing, Special Term concluded that the patient was incapable of consenting to the abortion and that the center could perform the abortion in reliance upon the consent of the patient's father (Matter of Barbara C., 116 Misc.2d 31, 455 N.Y.S.2d 182). In the appeal filed on behalf of the patient by her guardian ad litem--Mental Health Information Service--it is argued that Special Term erred in granting permission for the abortion solely on the basis of parental consent and that the court should itself have determined whether an abortion was in the best interests of the patient. The center argues that the appeal should be dismissed as moot because the abortion has been performed. Since the controversy is likely to recur and it may in the future evade review again, we will decide the legal issues raised (see Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876; Matter of Harry M., 96 A.D.2d 201, 468 N.Y.S.2d 359).

Each patient in a facility operated by the Department of Mental Hygiene has the "same right to an abortion as any other citizen" (14 NYCRR 27.6[c] ), but before surgery or major medical treatment may be administered to any patient the director of the facility must obtain the consent of the patient (Mental Hygiene Law, § 33.03, subd. [b], par. 4) or a person authorized to act on the patient's behalf (14 NYCRR 27.9). When a patient 18 years of age or older lacks sufficient mental capacity to consent to a contemplated medical procedure, authorization may be obtained from the patient's spouse, parent, adult child or a court of competent jurisdiction (14 NYCRR 27.9[b] ). Since an abortion obviously is "surgery" within the meaning of the statute (see Mental Hygiene Law, § 33.03, subd. [b], par. 4), it would appear that the operation could be performed with the consent of Barbara's father because she herself was clearly incapable of giving such consent (see Matter of Hanes v. Ambrose, 80 A.D.2d 963, 437 N.Y.S.2d 784; Anonymous v. State of New York, 17 A.D.2d 495, 236 N.Y.S.2d 88; New York City Health & Hosps. Corp. v. Stein, 70 Misc.2d 944, 335 N.Y.S.2d 461).

Mental Health Information Service contends, nevertheless, that regardless of parental consent every abortion performed upon an incompetent patient should be the subject of judicial review to determine whether the procedure is in the patient's best...