[*1]
Matter of McCue (A.M.)
2010 NY Slip Op 51798(U) [29 Misc 3d 1211(A)]
Decided on September 28, 2010
Supreme Court, Kings County
Schack, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 19, 2010
Supreme Court, Kings County


In the Matter of the Application of Dr. Robert McCue, Director, Inpatient Psychiatry, Woodhull Hospital and Mental Health Center, Petitioner, for an order authorizing the performance of electroconvulsive therapy under general anesthesia upon the person of A.M., a patient at said hospital




xx2010

Arthur M. Schack, J.



Petitioner Dr. Robert McCue moves for an order authorizing electroconvulsive therapy under general anesthesia upon the person of A.M., a patient at said hospital. It is undisputed that Ms. M. suffers from mental illness and that from January 2010 to July 2010 she received 29 sessions of electroconvulsive therapy (ECT).

Yesterday and today, the Court conducted a hearing whether to issue an order authorizing ECT to treat Ms. M. Testimony was heard from Dr. Rubina Waheed, a treating psychiatrist of Ms. M., at Woodhull Medical Center, and from Dr. Daniel Friedman, a psychiatrist and internist, retained on Ms. M.'s behalf by her counsel, Mental Hygiene Legal Services.

Dr. Waheed testified that Ms. M. suffers from chronic schizophrenia with catatonia. After describing her history, Dr. Waheed recommended ECT to treat her mental condition. Dr. Waheed conceded that ECT can cause memory loss.

Dr. Friedman testified that he evaluated Ms. M. on August 17, 2010 and found no signs of catatonia. He testified that he spoke to her for about 45 minutes on that day and for about ten minutes yesterday. He also stated that Ms. M. told him on August 17, 2010 that she would rather die than have more ECT. Further, he testified that this was not an indication of suicidal tendencies but a figure of speech. Dr. Friedman outlined several therapeutic treatment plans that could be implemented to help Ms. M. with the use of medication and not ECT. He also stated that while ECT could have been appropriate in the past for Ms. M., it might be appropriate sometime in the future if less intrusive medication options failed to improve Ms. M.'s mental condition.

In determining whether to order ECT for Ms., M., the Court is mindful of the holding of Justice William O. Douglas that "specific guarantees in the Bill of Rights have penumbras, [*2]formed by emanations from those guarantees that held give them life and substance. Various guarantees create zones of privacy . . . The Fourth Amendment explicitly affirms the right of the people to be secure in their persons.'" (Griswold v Connecticut, 381 US 479, 484 (1965). The New York State Court of Appeals, in analyzing whether a person suffering from a mental illness has a liberty interest in deciding upon a course of treatment that can affect their privacy, held in the leading case of Rivers v Katz (67 NY2d 485), at 493-494, that:

We conclude however, that neither the fact that appellants are mentally ill nor that they have been involuntarily committed, without more, constitutes a sufficient basis to conclude that they lack the mental capacity to comprehend the consequences of their decision to refuse medication that poses a significant risk to their physical well-being. Indeed, it is well accepted that mental illness often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently, that many mentally ill persons retain the capacity to function in a competent manner . . . Nor does the fact of mental illness result in the forfeiture of a person's civil rights . . . including the fundamental right to make decisions concerning one's own body.


Further, the burden is upon the State to demonstrate by clear and convincing evidence that Ms. M. lacks the capacity to make a treatment decision. (Rivers v Katz, at 497). "If, after duly considering the State's proof, the evidence offered by the patient, and any independent psychiatric, psychological or medical evidence that the court may choose to procure (see, Judiciary Law § 35 [4]). the court determines that the patient has the capability to make his own treatment decisions, the State shall be precluded from administering antipsychotic drugs." (Rivers v Katz, at 497)

The Court finds that the State has demonstrated by clear and convincing evidence that Ms. M. lacks capacity to make a treatment decision. Thus, the Court must follow the next directive of Rivers v Katz, at 497-498:

If, however, the court concludes that the patient lacks the capacity to determine the course of his own treatment, the court must determine whether the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest, taking into consideration all relevant circumstances, including the patient's best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. The State would bear the burden to establish by clear and convincing evidence that the proposed treatment meets these criteria.


The Court, in making its determination is also mindful that "due process requires that acourt balance the individual's liberty interest against the State's asserted compelling need on the facts of each case to determine whether such medication may be forcibly administered."

The Court, in performing this balancing, finds that in the instant action, there are less intrusive alternative treatments to ECT for Ms. M. Moreover, in her evaluation with Dr. Friedman, Ms. M. stated that she did not want ECT. Further, it appears that the risk of jaw injury, memory loss and possible death from ECT must be weighed against the various "less intrusive alternative treatments" articulated by Dr. Friedman. Petitioner has not born the burden of establishing by clear and convincing evidence that there is a compelling need for ECT treatment at this time for [*3]Ms. M. that overcomes her liberty interest. Despite the testimony of Dr. Waheed, Ms. M. was not catatonic in the Court. She was able to walk and sit down under her own power, expressed emotion while in the Courtroom and responded to my instructions to sit.

Conclusion

Accordingly, it is

ORDERED, that the order to show cause by petitioner for an order authorizing electroconvulsive therapy under general anesthesia upon the person of A.M., a patient at Woodhull Hospital and Mental Health Center is denied.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

Hon. Arthur M. Schack

J.S.C.