Bezio v. New York State Office of Mental Retardation & Developmental Disabilities

Kane, J.

(dissenting). We recognize the validity of the principle of judicial restraint which insulates the court from involvement with the management, operation or administration of an executive enterprise (Jones v Beame, 45 NY2d 402, 408). However, in our view, the issue presented in this case transcends that broad policy concept with a much narrower question; the interpretation of particular laws and regulations designated to protect the individual rights of a mentally disabled patient.

We start with an analysis of the statutory provisions establishing the Mental Health Information Service (MHIS) and defining its powers and duties (Mental Hygiene Law, § 29.09). Since its inception, these powers and duties have been expanded with legislative consistency (L 1972, ch 251; L 1976, ch 334; L 1977, ohs 980, 981) and administrative regulation (14 NYCRR 22.2, 24.2, 27.8; 22 NYCRR 823.2), all in furtherance of its primary purpose to “study and review the admission and retention of all patients” (Mental Hygiene Law, § 29.09, subd [b], par 1). These powers include the right, when necessary, to institute legal action to accomplish its purpose (see Besunder v Coughlin, 102 Misc 2d 41). Its right to apply to the court on behalf of a patient, for review of the “suitability” of that patient to remain in a facility or willingness to so remain, is expressly granted to MHIS by statute (Mental Hygiene Law, § 15.23).

Certainly an inquiry into the “suitability” of a patient to remain in an institution should include an examination of the appropriateness of the care and treatment provided one who cannot care for himself or herself. Such an inquiry would not involve the court in the exercise of a professional judgment, but, significantly, a pursuit for the answer to the ultimate question raised in the proceeding; namely, was professional expertise available and was it exercised. This is the duty imposed upon the State (Youngberg v Romeo, 457 US 307, 321-323) and MHIS is the vehicle established to monitor the performance of that duty. Parenthetically, it should be noted that a careful examination of this record and the history of the patients contained therein renders any attempt to classify these patients “voluntary”, rather than “involuntary”, incredulous. Finally, and as we conclude is demonstrated by this record, there is a need for overview of the operation of this vast enterprise that directly affects the health, safety and welfare of unfortunate members of society, lest they become lost in the vast confines of a particular facility. MHIS and the procedure sought to be employed herein provide a quick, certain and economical way to fulfill an obligation that the courts owe to every citizen.

We would modify the order appealed from by deleting that provision which denied respondent’s motion “without prejudice to renew” and otherwise affirm.

Weiss and Levine, JJ., concur with Mahoney, P. J.; Sweeney and Kane, JJ., dissent and vote to modify in an opinion by Kane, J.

Order reversed, on the law, motion granted, and petition dismissed, without costs.