Hanes v. Ambrose

Decision Date12 March 1981
Citation80 A.D.2d 963,437 N.Y.S.2d 784
PartiesIn the Matter of Lee D. HANES as Director of St. Lawrence Psychiatric Center, Respondent, v. Lucille AMBROSE, Appellant.
CourtNew York Supreme Court — Appellate Division

James T. Donnelly, Ogdensburg (Peter R. Terriah, Madrid, of counsel), for appellant.

Robert Abrams, Atty. Gen. (Joseph J. Micare, Asst. Atty. Gen., of counsel), for respondent.

Before MAIN, J. P., and YESAWICH, WEISS, CASEY and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from so much of an order of the County Court of St. Lawrence County, entered May 29, 1980, which granted petitioner's application, pursuant to section 33.03 of the Mental Hygiene Law and regulations promulgated thereunder, for an order authorizing certain surgery to be performed on respondent.

Respondent, who is 76 years of age, had been a patient at the St. Lawrence Psychiatric Center, on a voluntary basis, since 1966. Four years ago she sustained a fractured hip requiring the implantation of a metal pin. An abscess, which is constantly draining, developed at the implant site and respondent was asked in 1978 to consent to surgical removal of the pin. She refused and was treated instead with antibiotics. Apart from a recent need for more frequent cleaning and attention, her condition has remained static. Because of her continued refusal to consent and petitioner's conviction that the surgical procedure was necessary, an order was applied for, and obtained, altering respondent's status to that of an involuntary patient and, following a hearing, authorizing the operation to be performed without her consent.

Regulations of the Department of Mental Hygiene contained in 14 NYCRR Part 27, promulgated pursuant to section 33.03 of the Mental Hygiene Law, provide that a patient's informed consent (or the consent of someone authorized to act on behalf of the patient) must be obtained before the patient may be subjected to surgery. The fact that the patient is involuntarily retained is not presumptive of incompetence or a lack of mental capacity to knowingly consent or withhold consent (Mental Hygiene Law, § 29.03). The statutory framework makes the patient's lack of consent determinative unless the State convincingly demonstrates that the patient does not have sufficient mental capacity to impart consent (New York City Health & Hosp. Corp. v. Stein, 70 Misc.2d 944, 335 N.Y.S.2d 461).

At the hearing, the various experts unanimously agreed that respondent knew her...

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4 cases
  • Rivers v. Katz
    • United States
    • New York Court of Appeals Court of Appeals
    • 10 Junio 1986
    ... ... Eulo, 63 N.Y.2d 341, 357, 482 N.Y.S.2d 436, 472 N.E.2d 286; Hanes v. Ambrose, 80 A.D.2d 963, 437 N.Y.S.2d 784; Matter of Saunders v. State of New York, 129 Misc.2d 45, 50, 492 N.Y.S.2d 510; Matter of Winthrop ... ...
  • Harvey U, Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • 28 Abril 1986
    ... ... 560, 34 L.Ed.2d 518) and comprehending the seriousness of his condition and the consequences of not having the procedure performed (Matter of Hanes v. Ambrose, 80 A.D.2d 963, 437 N.Y.S.2d 784; New York City Health & Hosps. Corp. v. Stein, 70 Misc.2d 944, 946, 335 N.Y.S.2d 461). The testimony ... ...
  • Barbara C., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Abril 1984
    ... ... 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 ... ...
  • Barbara C., Matter of
    • United States
    • New York Supreme Court
    • 23 Septiembre 1982
    ... ... Health & Hosp. v. Stein, 70 Misc.2d 944, 945, 335 N.Y.S.2d 461; Anonymous v. State of New York, 17 A.D.2d 495, 497, 236 N.Y.S.2d 88; Hanes v. Ambrose, 80 A.D.2d 963, 437 N.Y.S.2d 784) ...         It appears from the evidence presented that the pregnancy of Barbara C. is within ... ...

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