In re Simone D.
Ordered that the order is affirmed, without costs or disbursements.
In the instant petition, Creedmoor Psychiatric Center (hereinafter Creedmoor) seeks permission to administer electroconvulsive therapy (hereinafter ECT) to the appellant without her consent. At a hearing held on the petition, Dr. Ella Brodsky, a licensed psychiatrist and the person who administers the ECT at Creedmoor, testified that the appellant suffers from a “major depressive disorder, severe, with chronic features” and was incapable of making decisions regarding her own treatment. In fact, Dr. Brodsky asserted that during a meeting to discuss treatment, at which the appellant, her Spanish-speaking attorney, Dr. Brodsky, and the treatment team were present, the appellant refused to resрond or even make eye contact. Dr. Brodsky testified that, although the appellant had benefitted from ECT in the past, such treatments had ceased and the appellant had “decompensated,” i.e., she had become withdrawn, mute, and nоnparticipatory, and spent most of her time in a corner in a fetal position. Further, the appellant was not eating properly and had become aggressive and assaultive toward the staff and her fellow patients. Dr. Brodsky noted that on a prior occasion, the appellant needed to be fed through a tube, which was a “drastic remedy.” By contrast, Dr. Brodsky testified that after the completion of the last course of 30 ECT treatments, the appellant had gained weight, was еating, drinking, and interacting with others, and “was not aggressive or assaultive at all.” Dr. Brodsky noted that the appellant would be carefully monitored during the administration of ECT to determine her blood pressure, her EKG, her EEG, and her “mini-mental status.” Dr. Brodsky further testified that many other forms of treatment had been tried and failed, including an extensive course of drug therapy, and that ECT was the least restrictive, clinically appropriate treatment for the appellant available at this time. She added, “[w]e don‘t have аny other choices.”
On cross-examination, counsel for the appellant questioned Dr. Brodsky concerning ECT treatments administered to the appellant in 1995 and 1996 in an effort to demonstrate that the appellant had suffered possible brain damage from those treatments. Dr. Brodsky testified that she had not reviewed the appellant‘s ECT records for that time period. She stated that she did not need to review the “old records” because medical assessments were updated so that she could “find everything in
Counsel аlso questioned Dr. Brodsky concerning a variety of potential risks involved in the administration of ECT, including whether increases in blood pressure during treatment could induce hemorrhages in the brain, whether treatment could rupture the blood/brain barrier, how the amount of electric current used is determined, the risks of the anesthesia used during the treatments, and whether the patient feels pain during the treatment.
Based on this record, the petitioner established by clear and convincing evidence that the аppellant lacked the capacity to make a reasoned decision with respect to the proposed treatment and that the proposed treatment was narrowly tailored to give substantive effect to her liberty interеst (see Rivers v. Katz, 67 N.Y.2d 485, 497-498 [1986]; Matter of Adam S., 285 A.D.2d 175, 178-179 [2001]; Matter of Mausner v. William E., 264 A.D.2d 485 [1999]; Matter of Adele S. v. Kingsboro Psychiatric Ctr., 149 A.D.2d 424, 424-425 [1989]).
Contrary to our dissenting colleagues’ view, the Supreme Court did not improperly curtail the cross-examination of Dr. Brodsky. The nature and extent of cross-examination are matters within the trial court‘s sound discretion (see People v. Rodriguez, 2 A.D.3d 464 [2003]; People v. Ayala, 280 A.D.2d 552 [2001]). Respectfully, the dissent focuses only on certain selectively chosen portions of the cross-examination. When the cross-examination is viewed as a whole and properly analyzed in context, it is clear that the appellant‘s counsel was permitted extensive questioning on all relevant areas to be considered under Rivers v. Katz (supra). Indeed, while the direct examination of Dr. Brodsky encompassed only 13 pages of the hearing transcript, the cross-examination covered 44 pages.
Moreover, the Supreme Court providently exercised its discretion in denying the appellant‘s application for the appointment of an independent psychiatric expert. While a court “may” appoint an independent psychiatriс expert (
We disagree with our dissenting colleagues’ assertions that the court relied upon its own knowledge in reaching its determination. There is no indication in the record that the court based its decision on its own knowledge or became an unsworn
The dissent‘s statement that the appellant has been subjected to an “extensive cоurse” of ECT without “long-range benefit” is incorrect. The benefits to the appellant herein are crystal clear. As Dr. Brodsky recognized, although the appellant may not achieve remission, the treatment has improved her quality of life. Namely, with the treatment, she will not remain in a fetal position, she will eat, interact, and not pose a danger to herself or others. These positive responses to ECT cannot be dismissed or ignored.
Accordingly, under the circumstances of this case, the Suрreme Court properly authorized the administration of ECT.
Ritter, Rivera and Dillon, JJ., concur.
Crane, J.P. (dissenting and voting to reverse the order and remit the matter to the Supreme Court, Queens County, for a hearing before a different Justice to consider the issues anew upon taking testimony and, if it deemed it appropriate, after assigning an independent expert to conduct a psychiatric examination and report relevant recommendations, with the following memorandum, in which Goldstein, J., concurs). This is a proceeding pursuаnt to Rivers v. Katz (67 N.Y.2d 485 [1986]) to determine whether the respondent, Simone D., has the mental capacity to withhold her consent to electroconvulsive therapy (hereinafter ECT).
Simone D. was first admitted to Creedmoor Psychiatric Center in 1994 and suffers from a severe dеpressive disorder. Since 1995, she has undergone, over her objection but pursuant to previous court orders, at least 148 ECT treatments. Prior efforts to help her with medication failed to improve her condition. After two unsuccessful applicatiоns in July and September 2005 for permission to administer ECT to Simone D., the petitioner applied again in November 2005. The petition and supporting papers showed that without ECT Simone D. becomes depressed, stops eating and drinking, and requires nasogastric tube feeding. Allegedly, the ECT will diminish her assaultive behavior, enable her to eat, enhance self-care, and promote her ability to socialize.
At a hearing on the petition, the court rejected the request of Simone D.‘s counsel that it aрpoint an independent psychiatrist. The petitioner called one of its psychiatrists, Dr. Ella Brodsky, who opined that Simone D. lacked the capacity to make a reasoned treatment decision and that ECT is the least restrictive alternative because there is no other choice.
When Simone D.‘s counsel tried to ask questions about the physical pain ECT causes, and also about grаnd mal seizure, the court interceded and proclaimed that it was familiar with the workings of ECT. When counsel sought to elicit information about hemorrhages and the rupture of the blood/brain barrier caused by ECT, the court sustained the petitioner‘s objections. Likewise, the court thwarted counsel when he inquired about the dosage and duration of ECT, the Food and Drug Administration risk classification of ECT machines, and the identification of succinylcholine. These were but a few of the limitations the court plaсed on counsel as he attempted to show that Simone D. should not be forced yet again to undergo ECT.
At the conclusion of Dr. Brodsky‘s testimony, Simone D. renewed her application for an independent examination. The court denied the aрplication as unnecessary. After closing arguments, the court found that it was in Simone D.‘s best interest to administer ECT even though it acknowledged that she would probably never “get better“: “she perhaps could die. Perhaps she wants to die. But that‘s not for us to determine. We must prevent her from dying.”
The court prevented Simone D. from making a record that could be reviewed on appeal and instead became a silent witness relying on its own knowledge of ECT. The appellant, therefore, was unable to demonstrate the side effects of ECT, the risks of this course of treatment, and the potential alternatives that may be available. This was error in the circumstances of this case, particularly because of the extensive course of ECT trеatments to which Simone D. has been subjected since 1995 without long-range benefit.
Second, the court became an unsworn witness whose “knowledge” of the “facts” and the basis those “facts” form for his conclusion was never scrutinized or tested by cross-examination (see e.g. People v. Jie Mei Chen, 26 A.D.3d 344, 345 [2006]; People v. Dow, supra at 980).
Third, the details of the knowledge possessed by the court are not memorialized in the transcript, thus depriving all аppellate courts of the ability to review the entire record and evaluate whether the petitioner has sustained its burden, in this case, by clear and convincing evidence (see
For these reasons, I respectfully dissent and would rеverse the order and remit the matter to the Supreme Court, Queens County, for a hearing before a different Justice (see People v. Jie Mei Chen, supra; People v. Dow, supra) to consider the issues anew upon taking testimony and, if it deemed it appropriate, after assigning an independent expert to conduct a psychiatric examination and report relevant recommendations.