Memorandum re: NY Supreme Court forced shock ruling

M E M O R A N D U M

September 21, 2006

A New York State intermediate appellate court, the Appellate Division,
Second Judicial Department, has rejected a challenge by MHLS to a lower
court order authorizing involuntary electro-shock treatment of Simone D.,
a patient at Creedmoor Psychiatric Center, a state hospital in
Queens, New York. The Appellate Division, in its 3-to-2 September 19,
2006 decision, Matter of Simone D. (Anonymous), affirmed the lower
court, with a strong dissent by two justices.

The trial court’s order had authorized the administration of up to 30
shock treatments over a period of six months, with the frequency to be
determined by the hospital’s “ECT team.” Simone D. previously had been
given at least 148 shock treatments over her objection by Creedmoor
under previous court orders.

The testimony of the hospital psychiatrist before the hearing court had
established that previous shock treatment had neither brought about a
remission of Simone D.’s depression nor restored her capacity to make
her own treatment decisions, that the claimed benefits always
dissipated upon the discontinuation of shock, and that the treatment had
never brought Simone D. to a condition where Creedmoor was willing to
discharge her to the community. At the conclusion of that doctor’s
testimony she was asked:

Do you have any hope to offer Simone [D.] . . . other than a lifetime of
court ordered electroshock treatment and depression at . . .
Creedmoor Psychiatric Center?

The doctor answered:

I don‚t have, at this particular time, I don‚t have anything else to
offer her.

Cross examination of the doctor also revealed that shock treatment was
discontinued in 1996, due to a frontal organic brain syndrome secondary
to ECT.

The court severely limited the cross examination of the Creedmoor
psychiatrist by Simone D.’s MHLS attorney, disallowing many questions
about the nature of shock treatment and its effect. For example, when
the doctor was questioned about the nature of grand mal seizures and
epilepsy, objections from the hospital’s attorney were sustained and the
court stated that it was “familiar with that”. At another point, in
precluding questioning about shock treatment, the judge declared, “The
court is familiar with how it is done”.

The court also denied MHLS’s repeated requests that an independent
psychiatrist be appointed to assess the desirability of giving Simone D.
further shock treatment.

The Appellate Division’s majority decision ruled that the trial court
“did not improperly curtail the cross-examination” of the hospital
psychiatrist, noting that the cross-examination covered 44 pages of the
hearing transcript while the direct examination took only 13 pages. The
three appellate justices also rejected MHLS’s argument that the hearing
judge improperly relied upon his own presumed knowledge of shock
treatment. Finally, the panel found the denial of the application for
the appointment of an independent psychiatrist to be a proper exercise
of the court’s discretion.

The two dissenting justices argued that the trial judge “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 dissent found that to be reversible error, “particularly because of
the extensive course of ECT treatments to which Simone D. has been
subjected since 1995 without long-range benefit.”

Since the Appellate Division decision was 3 to 2, and the ruling was on
points of law and not just on the facts, Simone D. may appeal to the
state’s highest court, the Court of Appeals, as a matter of right. The
Appellate Division had earlier stayed enforcement of the forced shock
order pending appeal, and that stay will remain in effect while the
decision is appealed to the high court.

While we are disappointed with the outcome of our first level appeal, we
believe that Simone D. has a very strong case, and we are encouraged by
the forceful dissent. We hope that, with the support of one or more
briefs from friends of the court, we will ultimately prevail.

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