In re Simone D.

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 pursuant to Rivers v Katz (67 NY2d 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 depressive 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 applications 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 appoint 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.

Trying to undermine Dr. Brodsky’s opinion, Simone D.’s counsel cross-examined Dr. Brodsky extensively. Simone D. claimed that ECT inflicted pain on her. So, counsel tried to focus on the pain a patient undergoing ECT might suffer. On a prior petition that did not result in court-ordered ECT, Simone D. had been examined by an independent expert who suggested the alternative of psychotherapy with a Spanish-speaking therapist. This therapy was tried, but for only a few weeks. In an effort to show that this alternative to ECT deserved a longer testing period, Simone D.’s counsel attempted to cross-examine Dr. Brodsky on this subject. In addition, Simone D. had experienced cognitive impairment from ECT, resulting in its discontinuance in 1996. Her attorney, therefore, tried to cross-examine Dr. Brodsky on the extensive course of ECT administered to his client over the years without permanent improvement.

When Simone D.’s counsel 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 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 placed 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 application 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 treatments to which Simone D. has been subjected since 1995 without long-range benefit.

The court’s reliance on its own knowledge was error in three respects. First, it violates the rule prohibiting a judge from considering, absent the parties’ consent, facts outside the record (see Silberman v Antar, 236 AD2d 385 [1997] [“(t)he court improperly gave great weight to its own knowledge, based on personal observation of certain facts”]; People v Weiss, 19 AD2d 900 [1963]; People v Lawrence, 19 AD2d 899 [1963]; People v Dow, 3 AD2d 979 [1957]; Prince, Richardson on Evidence § 2-205 [Farrell 11th ed]).

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 AD3d 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 appellate 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 Judiciary Law § 295; People v Harrison, 85 NY2d 794, 795-796 [1995]; Rivers v Katz, supra at 498; People v Degondea, 256 AD2d 39, 41 [1998] [“defendant was effectively thwarted from creating an adequate record for appellate review”]; People v Robinson, 209 AD2d 648, 649 [1994]). Put simply, there is no way to determine whether the petitioner met its burden because much of the evidence was contained only in the court’s mind.

For these reasons, I respectfully dissent and would reverse 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.