No. 97 Matter of Simone D. (papers sealed)

The acting director of the Creedmoor Psychiatric Center commenced this proceeding in 2005, seeking permission to administer electroconvulsive therapy (ECT) to Simone D. without her consent. The patient is a 57- year-old immigrant from the Dominican Republic who has a history of psychiatric illness, including severe depression, beginning in 1984. Simone has been an involuntary patient at Creedmoor since 1994 and has undergone, over her objection, at least 148 court-authorized ECTs, or shock treatments, since 1995. In its current petition, Creedmoor asserts that when ECT is discontinued, Simone "becomes severely depressed and regressed. She stops eating, drinking and becomes dehydrated and requires nasogastric tube feeding. She can also become
agitated, aggressive ... assaultive and delusional." It also asserts that she is not competent to make an informed, reasoned decision about her treatment.

After a hearing, Supreme Court granted the petition to authorize a series of up to 30 ECTs over a period of six months. Simone appealed, contending the court improperly relied on its own knowledge about ECT and unfairly curtailed cross-examination of Dr. Ella Brodsky, a Creedmoor psychiatrist who was the facility's only witness, about the potential risks and benefits of ECT and alternative treatments.

The Appellate Division, Second Department affirmed in a 3-2 decision, saying Creedmoor "established by clear and convincing evidence that [Simone] 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 interest" under Rivers v Katz (67 NY2d 485 [1986]). Rejecting claims that cross-examination was improperly curtailed, the majority said, "The nature and extent of cross-examination are matters within the trial court's sound discretion.... When the cross-examination is viewed as a whole and properly analyzed in context, it is clear that
[Simone's] counsel was permitted extensive questioning on all relevant areas to be considered under Rivers v Katz (supra)." It also said, "There is no indication in the record that the court based its decision on its own knowledge or became an unsworn witness. To the contrary, the court's determination is amply supported by the medical evidence presented, including the evidence elicited by [Simone's] counsel during cross-examination." It concluded that the benefits of ECT "are crystal clear. As Dr. Brodsky recognized, although [Simone] 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."

The dissenters said Simone's attorney "tried to cross-examine Dr. Brodsky on the extensive course of ECT administered to his client over the years without permanent improvement," but when he "tried to ask questions about the physical pain ECT causes, and also about grand mal seizure, the court interceded and proclaimed that it was familiar with the workings of ETC. When counsel sought to elicit information about hemorrhages and the rupture of the blood/brain barrier caused by ECT, the court sustained [Creedmoor'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 placed on counsel as he attempted to show that Simone D. should not be forced yet again to undergo ETC." They said, "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 ETC. [Simone], 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.... Put simply, there is no way to determine whether [Creedmoor] met its burden because much of the evidence was contained only in the court's mind."