In re Simone D.

In a proceeding for permission to administer electroconvulsive therapy to a patient without her consent, the patient appeals [932] from an order of the Supreme Court, Queens County (Rosengarten, J.), dated November 29, 2005, which, after a hearing, granted the petition. 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 respond 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benefitted from ECT in the past, such treatments had ceased and the appellant had “decompensated,” i.e., she had become withdrawn, mute, and nonparticipatory, and spent most of her time in a corner in a fetal position.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 eating, 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 any 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 [933] the current record, whatever is important for an ECT.” Dr. Brodsky added that the appellant was “regularly” receiving ECT since 1996. Thus, she opined that what occurred in 1996 was not relevant in assessing the appellant’s current condition. Counsel also 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 appellant 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 (see Rivers v Katz, 67 NY2d 485, 497-498 [1986]; Matter of Adam S., 285 AD2d 175, 178-179 [2001]; Matter of Mausner v William E., 264 AD2d 485 [1999]; Matter of Adele S. v Kingsboro Psychiatric Ctr., 149 AD2d 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 AD3d 464 [2003]; People v Ayala, 280 AD2d 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 psychiatric expert (Judiciary Law § 35 [4]), here, an independent expert had already examined the appellant. Thus, the court’s determination that “another [expert] opinion would not be necessary” was entirely proper. 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 wit [934] ness. To the contrary, the court’s determination is amply supported by the medical evidence presented, including the evidence elicited by the appellant’s counsel during cross-examination. The dissent’s statement that the appellant has been subjected to an “extensive course” 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 Supreme Court properly authorized the administration of ECT. Ritter, Rivera and Dillon, JJ., concur.