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Citation: 15 J. Psychiatry & L. 7 1987
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The ournal of
Psychiatry Law Spring
1987
Electroconvulsive
therapy
malpractice
and informed
consent
BY
SHEILA
TAUB
J.D.
The
author
presents an overview o
the
use
o
electroconvulsive
therapy
in
treating
mental
illness, of current
researchinto
ECT s
safety
and effectiveness, and
o the legal treatment
o
ECT
in
malpractice
and patients
rights litigation.
She
concludes that
ECT
may be overregulated
because the law has
not
kept pace
with
changes
in
knowledge
and
procedures
concerning
ECT
with
the result thatsome
patients
who
might benefit
from
ECT
may
be
deprived
o
a
relatively
safe and effective
form
o
treatment.
Introduction
The movement
to
protect
mental patients
from coerced
and
abusive
treatment
has
led
courts, legislatures,
and even
the
public
to impose numerous
restrictions on
the use of electro-
convulsive
therapy
more
commonly referred
to as
electro-
shock therapy
or shock
therapy,
hereinafter
ECT). This
article
will
review
the
use
of E T in treating
mental illness,
recent scientific
data concerning its
safety and
effectiveness,
and
its legal
regulation via
civil suits
for
malpractice
and
987 by Federal
Legal Publications,
Inc.
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8
ECT
statutes
bearing
on
consent
to
treatment.
The
author
suggests
that
regulations
intended
to
protect
patients
may
be
depriv-
ing
some
of
a relatively
safe
and
highly
effective
form
of
therapy.
istory
of
T
The
idea
of using
ECT
to
treat
mental
illness
derived
from
the
observation,
in
the
early
1900s,
that
epilepsy
and
schizo-
phrenia
appeared
to
be
mutually
exclusive.'
Seizures
were
first
induced
as
an
attempt
to treat
psychiatric
disorders
during
the 1930s,
at
first
by
chemical
means,
2
and
later
by
means
of
an
electric
current.
ECT
was
used
to treat
a
wide
variety
of
mental
illnesses,
and
soon
became
the
dominant
therapy
for
schizophrenia,
for
which
no
other
treatment
was
then
available.
By
the
late
1940s,
however,
ECT
was recog-
nized
to
be
much
more
effective
in
treating
depression.
Many
patients
received
ECT
following
World
War
II, but
its
use
gradually
declined,
mainly
due
to
the
discovery
of
effective
psychotropic
drugs
in
the
1950s.
4
Increased
state
regulation
may
have
contributed
to
its
further
decline
in the
1970s
and
8 s
Today,
relatively
few
psychiatrists
use
ECT
some
only
as
a last
resort
for patients
who
fail
to
respond
to
other
forms
of
treatment.
6
Estimates
of
the
number
of patients
who
receive
ECT
annually
in
the
United
States
today
range
from
33,000
o
between
60,000
and 100,000.1
The
frequency
of
ECT
usage
in
different
institutions
varies
widely,
from
zero
in
many
institu-
tions
to as
much
as
20
of patients
in
others.
9
This
variabil-
ity
in
the use
of ECT,
and
its relatively
infrequent
use
in
general,
may
also
be due
to physicians
and
patients
negative
attitudes
toward
ECT,
the complexity
and
expense
involved
in
the
procedure,
the
lack
of
ECT
training
for
psychiatric
residents,
and
the
lack
of
appropriate
treatment
facilities.
10
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Although
some
opponents
of ECT
claim
that
it is
used
most
often
on
the most powerless
members
of
society,
such as
criminals,
women,
and
the poor,
the
facts
do
not
support
this
contention.
Mentally
ill
criminal
offenders
are rarely
given
ECT; they
are
usually
treated
with
psychotropic
drugs.
If
ECT
is
in
fact used
more
on
women,
it may
be
because
women
have
a higher
incidence
of
depression
and manic-
depressive
disorders
(the
disorders
for which
ECT
has
been
found
most effective .
2
One
can
infer
that
the poor
do
not
receive ECT
disproportionately from the
fact
that
many
more
patients
are
treated
with
ECT
in
private
hospitals
than
in
state facilities.
3
This
may
be
due
in
part
to
the
fact that
private
hospitals
have
more
patients
with
depression
and
manic-depressive
disorders,
whereas
government
hospitals
have
more
schizophrenics,
4
and
in
part
to
the more
stringent
regulations
on
the
use
of ECT
in
public
institutions
than
in
private ones,
in
some
states.
The
following
description
of
the early
method
of
giving
ECT
may
explain
why it quickly
became
controversial:
Until
the early
1950 s,
ECT
was
administered
without
premedica-
tion,
anesthesia,
or muscle
relaxation,
and
often
in
full
view
of
other patients.
The
induced
seizure
was
violent
and
disturbing
to
professional
and lay observers
alike,
and although
the
therapeutic
results
achieved
were
far
superior
to any
prior method,
the
treatment
was
often
considered
barbaric,
inhumane
and,
at least,
distasteful.
.
In
modified
ECT, which
was
introduced
in
the 1950s,
the
patient
is
given
muscle
relaxants
to
prevent violent muscular
contractions
and
oxygen
to prevent
the death
of
brain
cells
when
normal
breathing
is
interrupted.
6
The
procedure
is
carried
out
in
a hospital
on an
anesthetized
patient.
Elec-
trodes are
attached
to
the patient's
scalp
and
an
electrical
current
of between
70
and 150
volts
is
administered
for
between
0.1
and
1.0
seconds,
producing
a
seizure
which
lasts
from 30
to
40 seconds.
The
patient
regains
consciousness
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10
E T
within a
few minutes. The
usual
course
of treatment
for a
depressed
patient
consists
of
6
to
9 sessions, at the rate of
3
per
week.
7
The
modified
procedure
is
in
accord with the recommenda-
tions
of a recent American
Psychiatric Association (APA)
task force
report
on
ECT.
8
The
task force s
recommenda-
tions are
likely
to
set the standard of
care
for
administering
ECT, at
least until
superseded
by
those
of
a later
task force or
by definitive research studies.
9
Effectiveness
o E T
ECT s effectiveness in treating
certain mental illnesses, nota-
bly manic-depressive disorders
and
severe
depression,
is now
well
established.
2
0
Although many of
the
early
studies
which
showed ECT to be
superior
to
antidepressant
drugs
were
methodologically
flawed,
2
more
recent, carefully controlled
studies have
clearly
demonstrated
ECT s superiority
over
both placebo and antidepressant
drugs.2 It is not yet
possi-
ble, however,
to identify
in advance
of
treatment
those
depressed patients
who
will
respond to
ECT,
but
not
to
antidepressant
drugs.Y ECT
is not
an
appropriate treatment
for
all
depressions;
24
it
is
primarily indicated in
severe depres-
sion.Y ECT s much
greater
rapidity
of action
may
make
it
preferable
to antidepressant
drugs
for
patients who
are
suicidally depressed3
6
One
study
showed
death
from
suicide
clearly lower
in
patients treated
with
ECT,
27
and it
has been
said that without shock
therapy
many
more
depressed people
would undoubtedly commit
suicide.
ECT s superior
effectiveness has been demonstrated mainly
over
the
short
term; long-term
studies
are less
clear.
29
While
it
often provides
a
rapid
control
of psychotic
symptoms,
effective
follow-up
care
with medications and/or
psycho-
therapy
may be necessary to prevent a relapse.
0
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Some recent controlled
studies have
found
ECT to
be
effective in
certain forms
of schizophrenia.
3
The use
of ECT
plus
neuroleptic
drugs
(those
typically
used
to
treat schizo-
phrenics) has been found
more effective than the
drugs alone
in
removing psychotic
symptoms in some schizophrenic
patients.
3
Since
there
is
some
evidence that
ECT
may remove
the symptoms of
tardive
dyskinesia,
a
movement disorder
which
is a
frequent side effect of
neuroleptic
drugs,
33
ECT
may be
preferable
to neuroleptics
for
some schizophrenics.
ECT may be effective
in some cases where all other treat-
ments
have failed.
A severely retarded
25-year-old man
in
Ohio
was relieved
of his life-threatening
self-injurious
behav-
ior severe,
repeated head-banging)
only
after
ECT was
administered,
reportedly
with
no adverse
consequences
from
the ECT.
Because an Ohio
law forbade the use of ECT
without
the informed
consent of
the
patient,
even in
emer-
gencies,
he was
able to
receive treatment only
after a judge
declared
the
law
unconstitutional.1
4
Despite ECT s
proven effectiveness,
its mechanism of
action
remains unknown. Many physiological
changes occur
follow-
ing ECT,
5
and more than
one mechanism may
account for its
beneficial effects.
6
It is
generally agreed
that
those effects
are
a
result
of
the
seizure
induced
in the brain, rather than
any
stress
or
fear associated with
ECT, or the
memory distur-
bance
that
it
produces.
3
7
The risks
and
benefits
o
T
E T
as given today is
one
of
the
safest procedures
in
medicine.
It
has
an extremely small
mortality
rate,
the
few
fatalities usually resulting from anesthetic
complications.
It
has
considerably
fewer side
effects than
antidepressant
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12
ECT
drugs, and may be
safer
than
drugs for many elderly
patients.
39
There
are relatively
few
patients whose
medical
condition
would make
ECT
unacceptably
risky
0
Unmodified
ECT carried a
high risk
of
vertebral compres-
sion
fractures
and fractures
of the
long bones, but
this
risk
has been
virtually
eliminated
by
the use of muscle
relaxants.
In
a
recent
study
of 25,000
treatments,
the complications,
occurring
at
a rate of
1 per
1 300 or 1 400
treatments,
included laryngospasm, circulatory insufficiency,
tooth
dam-
age
vertebral compression
fractures,
status epilepticus,
pe-
ripheral
nerve
palsy,
skin
burns,
and
prolonged
apnea.
4
The seizures
induced by
ECT produce
both
immediate
and
long-term effects
on brain function.
Immediately
after
the
treatment, the patient
is confused
and
disoriented
for
a brief
period, ranging
from a
few minutes
to a few
hours.
There
is
a
temporary memory
impairment,
which
usually
lasts only
a
few
weeks
and is undetectable
by
clinical examination
two to
three months later, or
by sophisticated testing
by
six
months
after
treatment.
4 2
A few patients
may
experience
persistent
memory
loss
and/or
an
inability
to
learn
new
information.
43
The
severity
of the memory
deficit
appears
to
be
related to
the
number of
treatments
and
the method
of administra-
tion,
4
and,
to
a
lesser extent,
to
the
patient's
age
and clinical
diagnosis.
45
The mechanism
of
the
memory
loss
has
not
been
demonstrated.
It has been
suggested
that ECT
may
alter a
patient's
impression
of
his
memory
function rather
than
the
memory
itself,
4
but
to
the patient,
this may be
a distinction
without
a
difference.
The
fact
that
patients'
frequent subjective
complaints
of
persistent memory
loss
are not
borne out
on objective
tests
may simply
reflect
the
lack
of sophistication
of
currently
available
tests, yet
most
patients given
ECT
are able
to
resume
performing
specific
jo tasks
eventually,
according
to
a 1978
APA survey.
47
For
many
patients,
some degree
of
memory
loss
may
not
be too high
a
price
to pay
for the
relief
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of severely
disturbing psychotic symptoms.
A
large majority
(82%) of
a group
of
166
Scottish patients
who
received ECT
said
they
found
the
treatment helpful,
despite
the fact
that
64% reported some memory
impairment, and
some
may
have
suffered
significant
persistent
impairment.
4
3
E T
and
brain
damage
ECT s effects
on
memory
and other
cognitive functions have
led
many
to suspect
that it causes permanent brain damage,
but
as of now there is
no
definitive
evidence to that effect.
9
Much of the evidence
adduced by
opponents
of ECT
to
prove that
it causes brain
damage
is
either anecdotal
or
drawn from the early years of
ECT s use, when conditions of
administration were quite
different from what they
are
today.
In a
recent study
of
261
patients treated
with
ECT,
their
scores
on
the neuropsychological
test battery were
within the
brain-damaged
range, both before and after ECT,
but
their
scores
actually improved
after ECT,'
suggesting that any
apparent brain damage
may have been due to their under-
lying illness rather than to the ECT.
Consistent with this
hypothesis is
the
observation
that
the
same
group of patients
showed a slight
rise
in
IQ scores
following
ECT,
with
those
patients
who were most improved
clinically showing the
largest rise.
Studies
of
ECT s
effect on the human
brain are difficult
to
do,
and
most of the
existing data on brain damage come
from
animal
studies, which may not be applicable
to
humans.1
2
Several
organizations opposed to
ECT
(the Na-
tional Committee
for
Preventing
Psychotherapy Abuse,
the
Committee
for Truth in Psychiatry, and
Project
Release)
have requested that
the
Food and Drug Administration
(FDA) perform animal studies to determine ECT s
effects on
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14 E T
the brain.
3
Were
the
FDA to undertake such studies, the
significance
of their
results for humans
would
be
difficult
to
ssess
A
number
of
former
mental
patients
who were given
ECT
have
petitioned
the
FDA
to
conduct
CT studies of
their
brains
to determine whether any damage has occurredm
Data
resulting from such studies would
lack scientific validity,
however,
given
the
self-selected nature of
the subjects,
the
lack
of
pretreatment
CT
scans
and the
lack
of
a control
group. Any
abnormalities
found might be
due
to the under-
lying
condition
for which
ECT
was given rather
than
to the
ECT.
The question of whether ECT causes
brain
damage
might best
be resolved
by combining rigorous prospective
studies
of EEG, memory, and other functions in
depressed
patients receiving standard ECT
with
histological studies of
animals receiving ECT under conditions similar to those in
which ECT is given to
humans.
55
Based on currently available
data,
ECT appears
to
have a
highly
favorable
risk/benefit
ratio, with many physicians
regarding it as the safest treatment approach under
certain
circumstances. The possibility, as
yet
unproven, that it
causes
permanent brain
damage
has, however
contributed to the
view
of ECT as a therapy of last resort.
The role of
the
FD
The FDA
is
in
a
position to exert some control
over
ECT by
virtue of
its
ability to regulate medical devices including
those used to administer ECT. The FDA assigns each medical
device
intended
for human use to
one
of
three
classifications,
depending on
the degree of
control
it
deems necessary to
provide reasonable assurance of
the
device s safety
and
effectiveness.
6
It
may
change
the classification of a particu-
lar device when new
information becomes
available,
57
but
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due to
the
time lag involved
in
the collection
and
evaluation
of
relevant
data, FDA device
classifications
do not
always
reflect
state-of-the-art
technology
for any given
medical
device.
8
ECT devices
are currently
classified in
Class
III, reserved
for
devices
thought to pose
the highest
risk,
but
the
FDA
is
considering
reclassifying them
into
Class
II.
9
Manufacturers
of
Class
III devices
must submit
to the FDA
a
premarket
approval application
which
includes
information
on safety
and effectiveness
tests
for
the
devices. The
APA
maintains
that sufficient
information
is
available
for ECT
devices
to
warrant
placing them
in
Class
II, which
merely requires
the
development
of a safety
and
performance
standard
satisfac-
tory
to
the
FDA s
Bureau
of Medical
Devices
0
Some fear
that
the
present
classification
may
discourage
manufacturers
from
developing
more
efficacious
treatment
devices.
6
The Committee
for Truth
in Psychiatry
has petitioned
the
FDA
to require
that manufacturers
of ECT devices
provide
information
on
ECT
to operators
of
the devices
for
distribu-
tion
to patients.
62
urrent
research
on E T
Both
the proponents
and
opponents
of
ECT agree
that more
research on
ECT
is needed.
63
The
antipsychiatry
movement
may
have actually
stimulated
ECT
research, leading
those
convinced
of ECT s
benefits
to
try to justify
its
use.6
4
Present
studies
aim
to
discover ECT s
mechanism
of action,
to
explore
ways
of
modifying
its administration
so
as
to maxi
mize
its benefits
while minimizing
its risks, and
to determine
for
which patients and
conditions ECT
may
be
most
benefi-
cial.
65
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16
E T
Researchers
are seeking
objective
evidence to support
patients
subjective
reports
of
memory
loss following ECT
and are trying
to
correlate the degree of memory
loss with
specific aspects
of
the
treatment,
such
as
the seizure thresh-
old,
seizure duration,
and
clinical response 66
Since
individ-
uals
vary considerably in their seizure thresholds,
and since
exceeding
the threshold may contribute to cognitive side
effects,
67
it may be possible to minimize
side effects by giving
the minimal effective
stimulus
necessary
for each patient.
Several
factors
shown
to be correlated with
ECT-induced
memory
loss
have
also been correlated with ECT s
beneficial
effects,
including the
generalization of the
ECT-induced
seizure throughout
the brain
and the
seizure duration,
6 9
suggesting
that
some
degree of memory loss
may be inevita-
ble if ECT
is
to
be effective
Diagnosis
alone
may not predict
who
will respond to ECT.
Certain
categories of depressed
patients are more
benefited
by ECT than
others
°
7
ECT may
also
be effective for
condi-
tions
other
than
depression. One
recent
study identified
several other
factors that were significantly
related
to
patients responses
to
ECT.
Unilateral versus bilateral E T
number of E T researchers
are
comparing
the
relative
safety
and
efficacy
of
bilateral and unilateral ECT,
with
those
terms referring to
the placement of the
electrodes
on
the
scalp,
and
not to
the location of the
resulting
seizure
in the
brain. A
bilateral
convulsion
is essential for therapeutic
efficiency,
but
unilateral electrode placement
may be
as
effective
as bilateral placement
in producing
the required
convulsion,
while reducing
the
subsequent
memory impair-
ment,
both short-
and long-term.
2
There
is
still considerable
controversy,
however, as
to
whether
unilateral
ECT is as
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effective as bilateral in relieving psychotic symptoms.
3
Some
have
explained
the
variation
in
findings
among studies
comparing
the
efficacy
of unilateral
and bilateral ECT
in
depression by the failure
of different studies to hold constant
significant
parameters
of treatment, such
as
the
interelec-
trode
distance
used and
the
time
of
assessment
of
treatment
outcome,
74
or the
duration
of
the
seizure
7
A
minimum
seizure duration seems
to
be necessary
for
clinical improve-
ment; the APA task
force on ECT recommended
5
sec-
onds.
7
With unilateral ECT, there
may be
more
seizures
which
fail to
achieve the threshold
for clinical effectiveness;
this may contribute to
the
impression
that unilateral ECT
is
less
effective
than
bilateral.
7
7
Since 75-80% of
psychiatrists
who
prescribe
ECT use bilat-
eral
ECT
exclusively
78
some
patients may be incurring
unnec-
essary side
effects
if
it is indeed true
that unilateral ECT
confers
the
same therapeutic benefits
as bilateral ECT with-
out the adverse
effects on
memory. The APA task force
favored the
use
of
unilateral ECT,
since
it produced
less
memory loss
but admitted that a consensus
had not yet been
reached concerning the
comparative efficacy of bilateral and
unilateral
treatments
7
9
Unilateral
and bilateral
ECT
may not
be equally
effective
for
all conditions, however. There is
some evidence that bilateral
ECT
may be superior
for
patients with
certain mental
disorders, as some who failed to
respond
to
unilateral
treatment
later responded
to bilateral
treatment.
Attitudes toward
T
Attitudes of
physicians, patients, and
others
toward ECT
range
from
enthusiastic
endorsement
to violent
opposition.
Why does ECT
continue
to
arouse such
strong opposition
despite the mounting evidence
of its effectiveness
and
relative
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18 ECT
safety? E T
may
appear punitive
because
of its
superficial
resemblance
to
electrocution.
Dramatic
portrayals
of
ECT
administered
without
anesthesia
and for
punitive
purposes,
as in Ken
Kesey s
novel
One
Flew
Over
the
Cuckbo s
Nest,
and
in
the popular
film
that
was
based
upon
that
novel,
may
have
left an indelible
impression
of
ECT
as
a
form
of sadistic
abuse.
This
impression
may be
sustained
by firsthand
reports
from
patients
who
received
unmodified
ECT,
or observed
others
receiving
it,
years
ago. Some
former
patients who
testified
at
a
recent
international
conference concerning
adverse
effects
from
ECT
referred
to
experiences
that
dated
back 15-20
years.
3
Among
a
group
of
patients
who
received
ECT
more
recently,
most
(82 )
rated
it about
as
upsetting
as
going
to
the
dentist,
or less.8
Among
professionals
as well,
negative
attitudes
toward
ECT
are
highly
correlated
with
ignorance
of
the
procedure
as
currently
practiced.
Psychiatrists,
nurses,
psychologists,
and
social
workers
with
more clinical
experience
and
knowledge
of ECT
were found
to
have
more
positive
attitudes
toward
it 85
Negative
attitudes
toward
ECT
on
the part
of
some
lawyers
and
legal
scholars
may stem,
in part,
from
reliance
on
outdated
or
misleading
medical
information.
86
Examples
of
the
failure
to
research
relevant
medical
information
are
not
difficult
to find:
a 1985
casebook
on
mental
health
law
quoted
from
a 1976
law
review
article
on ECT
which
contained
several
statements
about ECT
known
to
be
false
in
1985.87
In
a
1985
treatise
on
medical
malpractice,
the
two
indexed
sections
on ECT
both
contained
outdated
medical
information
and referred
to old
cases
and articles.
88
A
1986
treatise
on psychiatric
malpractice
was
more
comprehensive
and
accurate than
the previous
two
works,
but
failed
to stress
the
effectiveness
of
ECT
as
a
treatment
for
severe
depression,
and
repeatedly
referred
to
ECT
as
experimental
because
its
precise
mode
of
action
is
unknown.
It
also
stated that
bone
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fractures
may still
occur with ECT, citing
a 1942
source
and
failing to
note that
they
are
exceedingly rare with
modified
ECT
9
In
contrast
to the above,
another
1985
treatise
on mental
health law was found to be quite
accurate
in
its discussion
of
ECT.
°
Unfortunately,
this
book appears
to be in the minority.
As
others
have
noted,
the reliance on
outdated
medical
information
and the confusion
of opinion with scientific
fact
have
contributed to a
legal
view
of
ECT
which
is
often quite
unrealistic.
9
This in turn has led to legal
constraints on the
use
of ECT which are
more
severe
than
those
imposed
on
many other
more
dangerous
and
less effective
forms
of
treatment.
he
NIMH
consensus
panel on
E T
In June
1985
the National Institute
of
Health and
the
National Institute
of
Mental
Health
NIMH) convened
a
Consensus
Development Conference
on
ECT.
Experts testi-
fied
for one and
one-half days before
a
panel
consisting of
nine
physicians,
three
psychologists,
one
lawyer,
and one
public representative about
the indications for
ECT,
the
best
way to administer it,
its
effectiveness,
its
risks and
side
effects,
and directions
for future
research.
The panel
con-
cluded that ECT can be
an effective short-term treatment
for
a narrow
range of severe psychiatric disorders,
including
severe
depressions, acute
mania, and
acute schizophrenia
with affective
symptoms,
but
that
it has significant side
effects,
has been underinvestigated,
and is
still
controver-
sial.
92
The
panel
found that proper administration
of ECT can
reduce
potential
side effects
while still providing for adequate
therapeutic effects. It
found no evidence that ECT causes
brain damage,
but
found that
it
does produce
short-term
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20
T
neurological deficits. The panel
nevertheless concluded that
for certain patients ECT may be the only effective treatment
available. Opposing
any absolute ban on ECT the panel said
the
decision to
offer
ECT
to an
individual patient should be
based on a consideration of the advantages and disadvan-
tages of ECT and of available treatment alternatives.
It
recommended that psychiatric residency
programs
include
complete
ECT training and
that more
research
be
devoted
to
ECT.
The chair of the panel recommended a national survey
on ECT use
in
the
United
States noting that
ECT may have
been overutilized
with some patients
and
underutilized with
others
since it is largely unavailable
in
V.A. hospitals or
state
institutions.
9
Several psychiatrists criticized the conference for having
non-
experts on
the panel giving
a
disproportionate
amount
of
time
to
disgruntled patients
being too
cautious in
its
en
dorsement of ECT and
not
imparting a sense of the actual
risk/benefit ratio
of
the procedure.
4
Carol
C.
Nadelson
then
President of
the
APA said that
the
report
exaggerated
the
degree of controversy about
ECT and
that its
recommenda-
tions
for
use were too general
in
some instances and
too
specific
in
others. She feared
the
report
might impair
efforts
to get
the FDA to change its classification of ECT devices
to
a
less
restrictive
one
95
itigation
based on
E T
Formerly a frequent
source
of
malpractice
claims
against
psychiatrists 9 ECT has given rise to relatively few lawsuits in
recent years. This may be due both to its declining use and
to
the use of modified ECT
which
results in fewer physical
injuries especially
bone fractures. The APA-sponsored liabil-
ity
insurance program which insures a majority
of
the
psychiatrists carrying liability insurance in the
United
States
today
no
longer imposes a surcharge on
psychiatrists who
prescribe ECT.
97
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Whereas the
early
cases usually alleged a
physical
injury or
death resulting either
directly
or indirectly from
ECT,
98
recent
cases are more
likely to
involve lack
of consent
or of
informed consent to
the
procedure,
and/or a
violation
of
the
patient s
constitutional rights. Relatively few cases
allege
memory
loss
or other neurological deficits
as
the
major
injury,
considering
the number of subjective
complaints
in
this
regard.
99
One
such
case, 00
involving
a
former California
attorney
who
claimed he
was no longer
able to practice
his
profession
because
of
the
memory
loss
engendered by
ECT,
may have
been instrumental in getting
the
city
of
Berkeley
to
ban ECT
within its
borders.
10
A recent (1980)
review of
34
malpractice
cases based on ECT
found
relatively few in
which
the
plaintiffs
were successful.
02
The legal issues raised, in decreasing
order
of frequency,
included
negligent
follow-up and
care
of patients
(19 cases),
lack
of consent
or inadequate
consent 10 cases),
negligent
administration of
ECT
(6 cases),
and
breach of
warranty
(3 cases).
Many
cases
involved
multiple allegations.
The
author
advised
physicians administering
ECT to
do
the
following to
minimize their potential liability: obtain the
patient s
informed
consent,
obtain
legal
authority to treat
the patient who is
not
competent
to consent, use
accepted
procedures,
avoid outpatient
ECT whenever
possible,
pay
close attention
to patient complaints, keep
good
records, and
refrain
from
promising
a
perfect
result.
0
1
3
As
in
all
negligence cases,
the
plaintiff
claiming an
injury
from ECT must
establish
a
deviation
from the
appropriate
standard
of care
and a
causal
relationship between the
deviation
and
his
injury.
Despite the high risk of bone
fractures
with early,
unmodified
ECT, courts
consistently
refused to apply the
doctrine of
res
ipsa loquitur.
°
That
doctrine
enables a plaintiff
to get his case
before a jury
without
testimony on
the standard of
care
where the treat-
ment results in an injury to a
previously healthy organ not
directly
involved in the treatment.
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22
ECT
A
psychiatrist
may
be
liable
for
breach
of
warranty,
if
he
promises
the
patient
there
will
be
no
adverse
effects
from
the
treatmentyos
or
for
failure
to
obtain
informed
consent,
if
he
fails
to
mention
a material
risk
that
later
occurs.
Failure
to
advise
the
patient
of
a
material
risk
of
ECT,
or
falsely
advising
the
patient
that
the
treatment
poses
no
risks,
has
been
held
to
be
a
form
of
malpractice.'
The plaintiff
may establish
a prima
facie
case
of
negligence,
sufficient
to
avoid
a
judgment
of
nonsuit,
by
showing
that
the
defendant-physician
has
violated
the
APAs
standards
for
administering
ECT
0 7
The
plaintiff
still
risks
dismissal,
how-
ever,
if
he
fails
to
establish
a
causal
connection
between
the
violation
of
the
standard
of
care
and
the
alleged
injury.
0
8
Expert
testimony
is
generally
required
on
the
issue
of
causa-
tion
in
cases
alleging
physical
injury
caused
by
ECT. '
9
Where
there
is
conflicting
expert
testimony
on
the
issue
of
causa-
tion,
a
court
will
usually
allow
a
case
to
go
to
a
jury.
t
1
0
Should
a
bone
fracture
occur
during
ECT,
failure
to
adminis-
ter
a
muscle
relaxant
may
provide
a basis
for
liability. '
In
one
case
stemming
from
ECT
treatments
administered
in
1971,
the
physicians
were
not
held
negligent
in
failing
to
administer
a
muscle
relaxant,
where
experts
had
testified
that
either
procedure
i.e.,
with
or
without
muscle
relaxants)
was
acceptable,
although
the
chance
of
fracture
was
2-30%
when
no
paralyzing
drug
was
used.1
2
The
issue
is
unlikely
to
be
decided
the
same
way
today,
however,
in
view
of
the
stan-
dards announced
by
the
APA
task
force on
ECT in
978 Y
A
physician
may
be
held
liable
for
giving
ECT
treatments
that
are
unnecessary,
or
excessive
in
number,
or
based
on
a
mistaken
diagnosis.
If
ECT
has
been
properly
ordered,
but
negligently
administered,
the
physician
who
ordered
the
treatment(s)
will
not
be
held
vicariously
liable
for
the
acts
of
the
shock
team
where
he
was
not
present,
did
not
direct
the
treatments,
and
had
no
control
over
the
terms
of
the
team's
employment.Is
A
psychiatrist
may
be
found
liable
for
dis
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charging
a
patient
prematurely
after ECT treatments, if the
patient's ECT-induced confusion contributes
to
a subsequent
physical injury.
6
laims
based
on
l ck of
consent
or lack of
informed
ons nt
A patient
who claims
he
gave
no consent
to ECT, or
that
he
gave a
consent which was invalid because of
incompetence,
may
bring a suit
for
battery or for a violation of
his
constitutional rights
without having to prove any physical
injury resulting from
the ECT.
A patient who claims a lack of
informed consent
to ECT, however, must prove that he
suffered a
physical
injury
7
attributable to ECT, that
he
was
not
warned in advance
of
the
specific risk of that
injury
occurring, and
that had he
been
warned
of
the
risk,
he would
have refused the treatment. '
In an early case
based
on
lack of consent to ECT,
119
the court
implied that
the patient's husband could consent
to ECT
on
her behalf,
provided he acted in good faith, but in another
case decided
at
about
the
same
time,'
2
the fact that the
patient's
wife had
signed
a
consent form was held
not
to
deprive the patient
of
his claim, where
he did
not
authorize
her
to sign
it. The psychiatrist
who proceeds
with
ECT on the
basis of
a family member's consent
thus risks an adverse
judgment in
the
event that he is
sued.
Statutory provisions
as
to
who, if
anyone,
may consent
to ECT on
behalf
of an
incompetent patient, and under what conditions, vary widely
from
state
to state.'
2
' Many of the statutes
are highly
restrictive, forbidding implied consent to ECT even in
emer-
gency
situations.
The
therapeutic
privilege
provides
an
exception
to
the
physician's duty
to
obtain informed consent
when
the
proc-
ess
of
giving
the
patient
the
necessary information
may
itself
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24
T
prove harmful.'
A
1957
case applied the
therapeutic
privi-
lege to
relieve
the
physician of
his
duty to warn the patient of
the
hazards
of ECT.
3
This
case,
which
another
court called
rather
bizarre,
1
24
is
one
of
a very
small
number
of
cases
that
have actually
applied
the
therapeutic
privilege,
and
n y
not
be followed today.2
Expert
testimony
may
or
may
not
be required concerning
which
specific
risks
of ECT
the defendant
should have
disclosed,
depending on the particular disclosure
rule
in force
in the jurisdiction,121 and on
the
magnitude
of the
risk that
materialized. One
case
27
held that
expert testimony
was not
required on the issue
of the physician's
duty
to
disclose the
risk
of fractures, where the high incidence
of
fractures (from
18 to 2570, in studies cited
in the
opinion) was
a
well-known
fact,
but a
different case n
held that expert
testimony
was
required with respect to the
duty to disclose the
risk of
prolonged coma with
brain
damage after insulin
shock
therapy.
In
Mitchell
v
Robinson,
2
9
one of the defendant-physicians
testified
that in
the mental and emotional
state that
[the
patient]
was in at
the time of
the
[informed consent]
confer-
ences,
he could
not
possibly
have an accurate memory
of the
conferences
after the
passage of a
number of
years.
Since
this is likely to
be true
of
most patients
undergoing ECT,
it
raises
an
interesting
question as to how
physicians may
protect themselves
from
false allegations
that they
failed to
warn the patient
of
inherent
risks
of
the procedure.
The fact
that the
major
risk
today is
not
that of fractures, but
of
memory impairment, makes
the question
all
the
more acute.
Wyatt
v
Stickney
I declared that
the mentally
ill must give
their informed
consent before being
subjected to
unusual
or
hazardous
treatments,
placing ECT in that category,
along
with
lobotomy,
and
adversive
(sic)
reinforcement condi-
tioning. Wyatt
v
Hardin
3
adopted
more
extensive proce-
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dural
precautions with
respect to ECT,
including
the consent
of an Extraordinary
Treatment
Committee.
Other
courts have since
concurred
that
mental illness per
se
should not
deprive
patients
of their
right to give
informed
consent
to
medical
treatment,
including
ECT, but have
differed
in
the
means
by which
they
chose
to protect
patients'
rights.
Patients
who
are
legally competent
generally have a
right
to refuse
ECT,
as well
as
a
right to give
informed
consent
to
the procedure.
Even
involuntarily committed
patients
are
presumed
competent,
unless
their incompetence
has been
judicially
determined.
Where
the
patient
is
legally
incompetent
to
give consent,
the
required consent
may be
given
by
a
court,
by
a court-appointed
guardian,
or
by some
other party
designated
by
a
court
or
statute,
applying
the
doctrine of substituted
judgment.'
3
In
a number of jurisdic-
tions,
the gaps in
statutes and regulations
pertaining
to ECT
have been
filled
in
by
subsequent
case law
In
Price
v
Sheppard,
the
Minnesota Supreme
Court
held
that
ECT
was
not
cruel
and
unusual punishment,
and
that
the
director
of
the
state
mental
hospital, who
had
acted in
good
faith
and
without knowledge
that he
was
possibly
violating
a constitutional
right in giving
ECT
to an
involun-
tarily
committed
minor,
was
immune
from
liability both
in
tort
and
under
the Civil
Rights Act.
The
court
held
that
in the
future,
however,
a
legal
guardian
would
have
to be
appointed
to consent
to
ECT on
behalf
of
an
incompetent,
and
an
adversary
hearing
would
have
to
be held
before E T
could
be
ordered.
A
Minnesota
appellate
court
placed additional
restrictions
on
the
authorization
of ECT for an
incompetent patient
in In re
Alleged
Mental Illness
o
Kinzer.
4
It reversed
the
trial
court's
order, which
authorized future
treatment
should the
patient's
symptoms recur,
despite
the
fact
that
ECT had been
effective
in curing
the
patient's
symptoms
in
the past. Ruling
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6
ECT
that
a
hearing must be held before each series of ECT
treatments,
and that authorization orders
must contain rea-
sonable time
limits,
the court held the trial
court's
order
invalid
because
it
authorized ECT
for an unlimited duration
and
was
not
based on a
finding of
present
medical
iecessity
made after
an adversarial
hearing.
A patient
may
be
sufficiently mentally ill to require further
hospitalization, yet
may
be legally competent
to
consent
to
or
to
refuse
ECT,
according
to
a
New
York
court
which
denied
a
hospital's
request for authorization
to administer
ECT
to a
refusing patient, stating:
It
does not matter whether this
Court would
agree with her
judgment; it
is enough that she
is
capable of
making a
decision, however unfortunate that
decision
may
prove to be.'
35
A Kentucky appellate court has
held
that,
absent a
judicial
declaration of incompetence or an emergency posing an
immediate danger
of
harm to
the patient or
others,
an
involuntary patient may
not be
compelled
to
undergo ECT
against
his will simply because it is in his best interests.
36
While the
court's
decision may have been compelled
by a
Kentucky
statute
37
which gave patients
the right
to refuse
intrusive
treatments, such as ECT,
it is
consistent with the
law in most states that the mentally
ill are presumed compe-
tent,
and that
a person who
is
legally
competent
may
refuse
treatment
that
others
deem
to be
in
his
best
interests.
3
Where ECT is administered
in a hospital,
the
duty
to
obtain
the
patient's
informed consent belongs
to
the physician, not
the
hospital.
3
9
Immunity
or
ordering or
administering
E T
Where the defendant
is
a state or
V A
hospital, or an
employee of
either,
governmental immunity will often
be an
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issue
in
the
case.
In Lojuk
v
Quandt
4
a patient
sued
a
V.A.
hospital
and the physicians
who
treated him
there with ECT,
claiming
that his
signature
on
a
consent
form
was either
forged
or obtained without
his comprehension.
The
Court of
Appeals
for
the
Seventh
Circuit held
that although
the
United
States
was
immune
from liability
for
battery
under
the
Federal
Tort Claims
Act (a
total lack
of
consent
being
defined
as a battery under
the
relevant
state
law), the
psychiatrist
was
entitled
to a
qualified
immunity
at most.
The
medical center
directer
could
not be held
liable either
on the
theory that she
issued
an
unconstitutional
policy
(as she
lacked
notice that patients
were
being
deprived
of
their
rights)
or
on the
theory of
inadequate
supervision.
nLojuk
v
Johnson
41
the
Court
of Appeals
for the Seventh
Circuit
held that
the psychiatrist
in the
above
case
was not
entitled
to absolute
immunity
in light
of the
statutory
indemnification,
but that he
was
entitled
to
a
qualified
immunity
because
the
patient s
right
to
refuse
treatment
was
not clearly
established
at the time of
the
event
(March
1979).
Can a psychi trist
be sued
for not ordering
ECT
In
Gowan
v
United
States
42
the guardian
of
a patient
who
attempted
suicide five
days
after being
discharged
from
a
V.A.
hospital
sued,
alleging
various
acts of
malpractice
including
the
discontinuation
of the
patient s
medication, the
failure
to
require
ECT,
the
form of psychotherapy
given,
and
an
inadequate discharge
plan.
The
court
found
for the
defendants,
holding
that
expert testimony
supported
all of
the actions
taken,
and
that
it was
not
malpractice
not to give
ECT
where
it
was not
available
at the facility,
and it is
not
used
to
the
extent
that it
was previously.
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28
T
onsent
to
E T in
liforni
In
1974
California
enacted
the
strictest statute
to
date with
respect to
consent
to
ECT.
4
1 In Aden
v Younger, '
three
of
its provisions
were
struck down
as unconstitutional:
the
requirements
that
treatment
must be critically
needed
for
the welfare
of the
patient, that
a
responsible
relative
be
informed
of
the treatment,
and
that
the
decisions
of compe-
tent
and voluntary
patients to
undergo
ECT
be
subjected
to
substantive
review.
The
court found
a
First
Amendment
issue
to
be
involved
because
the
state was
attempting
to regulate
the
use
of
procedures
which
touch upon
thought processes
in
significant
ways. It upheld
provisions
requiring
the establish-
ment
of
a
reporting
system
and the
disclosure
of
all possible
risks
and
side
effects
of ECT, saying
the
equal
protection
clause was
not
violated
by special
consent
requirements
for
mental
patients because
their
competence to
accede
to
treat-
ment
voluntarily is
more questionable
than
that
of
other
patients.
4
In
In re
Fadley,
46
a
California
appellate
court
ruled
that
the
trial court's
review of
a
physician's decision
that
ECT was
warranted for
an
87 year old
woman
under
a conservator-
ship
was inappropriate
where
legislation
provided
that
whether
treatment
was
indicated
and
was
the
least
drastic
alternative
available
was a
medical
decision.
The only
issue
properly
before
the trial court
was the patient's
competence
to
give written
consent
to
the
proposed therapy.
The statute
did
not
specify
the
standard
of proof
to
be applied
in finding
a
lack
of capacity
to
consent
to
ECT,
but
another
case'
47
held
the
finding
must
be supported by
clear
and convincing
evidence,
the preponderance
of
the
evidence
standard
being
insufficient
because
the basic
right of privacy
is
involved.
A
California
appellate
court interpreted
the clear
and
convincing
evidence
standard
for finding
inability to
give
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consent
as
so
clear
as
to leave
no substantial
doubt.
148
Applying
the
California
statute s definition
of incapacity
to
give
consent
(that
the patient
be unable
to understand,
or
intelligently
act
upon,
information
required by
statute to be
given
him), the
court
found no substantial
evidence
that the
patient was
incapable
of
giving
consent,
and
reversed
the
Superior
Court s
finding
that the
patient s conservator
could
give the
necessary
consent.
The
statute
provides
that
a
finding
of
incompetence
may
not
be
based
solely on
a
diagnosis
of
mental
illness.
Although
severely
psychotic,
the
patient had
lucid periods
in
which
he
appeared
to understand
the risks
of ECT,
and his objections
to it were
based
on his
previous
experience
with it
and on
the
possible
side
effects,
including
permanent
memory
loss
The
court said
the
fact
that
his
fear
of
ECT was
at
times irrational
would
not negate
his ability
to consent
if
he also had a rationally
based
fear,
but it implied
that
its
decision
might
have
been different
if
ECT
treatments
had
been shown
to
be
a
life-or-death
matter.
The
Berkeley ban
on
ECT
In
1982, the
Coalition
to
Stop
Electroshock,
a patients
rights
group,
gathered
1,400 signatures
from
Berkeley
voters
to
put
the
issue of enacting
a
city ordinance
to
ban
ECT on
the
ballot. In
November,
62% of the
voters approved
the
ban.
Henceforth,
physicians
who
administered
ECT
in
Berkeley
could
be fined
500 and
imprisoned
for
six
months;
yet
they
could
still
administer
ECT
legally
in Oakland,
only
15
minutes
away
Since
only 48 patients
were
given ECT
in
Berkeley
during
all of
1981,
the referendum
was
not
a
response
to a massive
abuse
of ECT,
although
some
reported
instances
of abuse may
have inspired
the
referendum.
Despite
the ban s
limited impact,
some
psychiatrists
criticized
it
for depriving
patients
of their
right
to appropriate
treat-
ment
and
intruding
on the
prerogatives
of the
medical
profession.
4
9
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30
T
Several
psychiatric associations
immediately
brought
suit to
enjoin
enforcement of the
ordinance.
The Superior Court of
Alameda County declared the
ban unconstitutional and
issued a
preliminary
injunction
against its enforcement,
pending
a
trial.
10
In February
1986,
the California
Court
of
Appeal
affirmed this decision, holding that
the
regulation of
ECT is
a
matter of
statewide,
not local, concern,
and that the
ordinance directly conflicted with state law
and was pre-
empted by
state
law.
5
The court
noted
that
the state
legislative scheme evinced
a
desire
to
preserve
the
availability
of ECT while
enacting stringent safeguards on its use,
such as
the requirement of voluntary, written, informed consent of
the
patient
or
his legal
guardian. In
view of its decision
on
these issues, the court found
it unnecessary
to address the
right of privacy issue raised by
plaintiffs.
The Berkeley City Council
voted to appeal
the
decision
of the
California Court of Appeal,
5
but
when the California
Supreme Court refused to hear
the
appeal,
3
the City Council
voted to cease
its
attempts
to
ban ECT.
4
Other attempts to
ban or
restrict the
use
of T
bill to ban E T in Vermont died in the state senate, but its
proponents promised to
introduce a
modified
version which
would
require
the
patient s
informed consent to ECT. As in
the Berkeley
case,
there
was
no
pressing
need for the
legislation, with
only two
hospitals in
Vermont
performing
ECT and
both
of those
following
stringent informed consent
guidelines.
55
While attempts
to ban
ECT
entirely have proven
unsuccess-
ful to
date,
its use is subject
to
heavy restrictions in many
jurisdictions, comparable
to
those
for
psychosurgery, and
more
severe than
those applicable
to medication.
6
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The Supreme
Court
of Washington recently set forth detailed
requirements
to be
followed before a
court may
order
ECT
for
a
nonconsenting patient, in In
re Detention
o Loretta
Schuoler.1
7
The
court rested
its decision
on
the constitutional
right of privacy, which it said
is
retained by the involuntarily
committed mental
patient
and
includes the
right
to be
free
from
unwanted
ECT.
Before ECT
can be administered
to a
nonconsenting patient, it held, a judicial hearing must be
held, at which the patient
must
be present
and
represented by
counsel.
The court must make
findings concerning
the
patient s wishes any significant interest the state may have in
whether the
patient
receives
treatment, and whether ECT is
both necessary and effective
in satisfying
the state s interest.
The state must prove
each
element justifying the authoriza-
tion
of ECT with clear, cogent, and
convincing
evidence. The
patient s wishes with
respect
to
ECT may
be determined by
applying
the substituted judgment test.
The Washington
statute
5
' provided
that
involuntarily com-
mitted patients should
have
the right not to
consent
to
shock
treatment
or surgery, unless
ordered
by a
court pursuant
to a
judicial
hearing
in which the person
is
present and
repre-
sented by
counsel, with
a
court-appointed expert designated
by
the patient or his counsel to testify
on
his behalf. In
Schuoler the
patient s
attorney claimed that the
statutory
procedures were constitutionally inadequate, and
that the
trial court abused its discretion
by
denying her
a
continuance
to prepare for the ECT hearing,
and a
stay of
the order
pending appeal. The trial court
had authorized
ECT treat-
ment
for
the patient at the discretion of her treating
psychia-
trist
after hearing two psychiatrists
testify
that
the patient
had shown
no improvement
while
on
drug therapy, but had
in the past been
able to
function
outside
of a mental
institution
as the result of ECT.
5
'
Although
the Washington Supreme
Court recognized that
a
major
goal
of
the
involuntary
commitment
and treatment
scheme [of
the
Washington statute] is to replace inappro-
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3
ECT
priate,
indefinite
commitment with
prompt evaluation and
short term treatment, '
6
it
found that
the trial court should
have acceded
to
plaintiff's
request
for
a
continuance
(of
an
unstated
amount
of
time).
The supreme
court
apparently
assumed that
the
patient
was incompetent,
as the
experts
had
testified,
but
found
the
trial
court
had erred
in failing to
conduct
the investigation necessary
to
make
a
substituted
judgment for
the patient.
6
Among
the factors
to be
consid-
ered
in
arriving at
such
a
judgment
the
court included:
the
patient's
previous
and current
statements and religious and
moral
values
regarding medical
treatment
and electroconvul-
sive
therapy, as
well as views
of individuals that might
influence the patient's
decision.
Absent from the list were
the
patient's
interest
in getting prompt
relief from
her psychotic
symptoms
and
avoiding
long-term
hospitalization.
The
court found
that
the tremendous
financial
burden
imposed upon
the
state
by
the
patient's
repeated hospital
admissions
satisfied
the
compelling
state interest
necessary
to
override the
patient's
fundamental
liberty
interest in
refusing
ECT.
It
found
ECT both necessary
and effective for
further-
ing that
interest
based
on the physicians'
testimony that
drug
therapy did not help
the
patient,
but that with
ECT
she
had
an 80
chance of
recovery.
62
Yet,
in upholding
plaintiff's
claim
that the trial
court erred
in
not
granting
a continuance,
the court said
that no
emergency
was present (without
defining
emergency),
and
that drug
therapy was available.
63
This
case
has
been discussed
at
length because
it
is
(at
the
time of this
writing) the most
recent case dealing with
the
patient's
right to
refuse ECT, yet it
embodies many
of
the objectionable features
found
in
prior
cases involving
the
rights
of mental patients to
refuse
treatment. The
court
repeats
familiar
legal
formulas without
attending to
the real
patient
and
societal
interests at stake. Like
other
courts and
legislatures
which
previously dealt with similar
issues, the
court
employs terms
such as intrusive
treatment,
compe-
tence,
and
emergency,
without
defining
them for the
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ompetency
mergency
Intrusiveness
future
guidance
of physicians who will be
subject
to
its
mandate.'
4
The lack
of meaningful
standards
creates
the
danger that regulations
intended to
protect
patients may
instead
deprive them
of
needed
medical
treatment.'
65
Competency
is a
poorly
defined
concept
that has
different
meanings for
different purposes)
66
The
standard
for compe-
tency to make
treatment decisions
may vary,
depending on
the
risk/benefit ratio
of the proposed treatment.
67
The
last
few
decades
have
seen
a separation,
in
law,
between
commit-
tability
and competency
to refuse treatment,' but
recently
there
have been
signs
of
a
possible
reversal of that trend.'
69
Many statutes
and cases contain
exceptions to
the
right to
refuse
treatment
in
emergency
situations, but
the
definition
of emergency
varies from
place to place
and
is
often unclear.
What judges
consider
to be
an emergency
often differs from
a psychiatrist's
concept of
an
emergency.
70
In
some
states,
exacerbation of
a
mental
illness
is considered an emergency,
while
in
others it
is
not.
Many judges
will
authorize treatment
only for the duration
of
the
perceived
emergency,
targeting
for
treatment
the immediate threat
of violence, rather than
the patient.1
7
This
is evident
in the tendency to
limit
treat-
ment authorization
orders, noted
above.
Many of the statutes
and decisions
involving
ECT describe
it
as an intrusive
treatment,
without defining that term
or
comparing
the relative intrusiveness
of ECT with
other
treatments, with
confinement, or
indeed, with continued
mental
illness.
72
The
claimed
intrusiveness
of
ECT
is
then
used to justify
the imposition of
strict procedural require-
ments
before
it
can
be
authorized for an
incompetent
patient.
Shapiro
has made
one of the
few
attempts
to
define the
intrusiveness of
a
psychiatric treatment,
listing
the following
six criteria:
(1) the extent
to
which
the effects of
the
therapy
upon
mentation
are reversible;
2) the extent
to
which the
resulting
psychic state
is foreign, abnormal,
or unnatural
for
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34
T
the person
in question, rather
than simply
a
restoration of his
prior psychic state; (3) the
rapidity with which the
effect
occurs;
4)
the scope of the change in the total
ecology of the
mind's functions;
5)the extent to which one can resist acting
in ways impelled
by
the
psychic effects of the therapy;
and 6)
the
duration of the
change.
173
Reisner asks,
appropriately,
whether these
criteria
are satis-
factory and whether
they would
put
therapists
on notice as to
which
treatments
would
be
regarded
as
intrusive.
74
Since,
as
Shapiro
admits,
175
his
definition of
intrusiveness
overlaps
with that of effectiveness, the
most effective psychiatric
treatments
would be
considered
the most
intrusive
and
hence,
paradoxically, the most difficult
to
obtain
for those patients
most
in
need of
treatment
(the
ones whose illness
has
rendered them incompetent to
make treatment
decisions). An
additional problem
with
Shapiro's
definition is
that the
existence of Criteria 2,
4, and 5 would be difficult, if
not
impossible, to determine.
Simon
has
pointed
out that for certain patients, ECT may
be
less
intrusive than
drugs,
by producing more
rapid remission
of
symptoms
with
fewer side effects.
76
He
notes
that
psycho-
logical
therapies, typically rated lowest
in intrusiveness by
courts and
legal commentators, may in
fact
be
highly
intru-
sive, as
for example when
patients
make incriminating state-
ments in
forensic interviews.
77
Legal
formulations
such
as
the
least intrusive alternative or the least
restrictive
alternative
are
not readily
applicable to the clinical situa-
tion, he says, and
not always consistent with
good
medical
practice,
because of the diversity
of
patients
and their
treatment needs.
egal
and medical viewpoints
contrasted
While
a number
of psychiatrists
have criticized the legal
framework
used by the
courts
for
decision
making
with
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respect
to ECT and
other
treatments-
for
the mentally
ill,
some
lawyers
have
defended
it
as appropriate
to
a
democratic
society.'
79
Framing
the
issues in
terms of
legal rights
and
the
exercise
of autonomy
almost
forces one
to conclude
that
judges
are
the only
appropriate
decision makers,
and
that
any problems
in
the execution
of the law
can be alleviated
by
refining the
legal concepts
involved.
In medicine,
the
term iatrogenic
is used
to
describe
illnesses
or
problems caused
by
medical
interventions.
Analo-
gous terms
have been
suggested for
the
problems created
by
judicial
decisions in
the right-to-refuse-treatment
cases:
juridicogenic
0
nd
critogenic.
j
l Examples
of
juridico-
genic
or critogenic
conditions
include
the adversarialization
of the
doctor-patient
relationship,'
8 2
and
the tremendous
costs
imposed
on
the judicial
system, the
professionals
involved,
and the
patient
by requiring lengthy
judicial
hear-
ings before a
nonconsenting
patient may
be treated.
3
roblems wit
the su stituted
judgment
approach
Much of
the
criticism of
the right-to-refuse-treatment
deci-
sions
is leveled
at
the application
of the
substituted
judgment
doctrine.
Stone
wonders
how a
judge
with
no
psychiatric
training
and a
single exposure
to
the patient can
possibly
arrive
at a
valid substituted
judgment, or
indeed, if
that
phrase
has
any meaning
in the
context
of
a
mentally
ill
patient. He
says
that
in practice, judges
execute
their
substi-
tuted
judgment mandate
by
either
routinely
ordering
treat-
ment,
after lengthy
hearings,
or by
deferring
to
the
judgment
of psychiatrists.114
Gutheil
notes a
paradox inherent
in the doctrine
of
substi-
tuted judgment:
the
decision maker
is
asked
to decide
whether
a
sick patient
would
decide
to take
drugs if
he
were
healthy, in
which case
he
would
not need the drugs,
and
says
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6
ECT
that
in
most
cases this
information
is
unavailable
because
people
don't
usually
consider
this
issue
before
becoming
mentally
ill 185
Gutheil
and
Appelbaum
believe
that
the
substitute
decision
maker
who
lacks
the
requisite
knowledge
of
the
patient's
prior
decision
making
and
his
present
wishes
with
respect
to
the
proposed
therapy
is likely
to apply
the
equivalent
of
a
best
interests
approach.'
86
They
therefore
suggest
that
the law
sanction
that
approach
in
the
absence
of
an
unambiguous
indication
of
the
incompetent's
desires
and
recommend
the application
of
a presumption
that
treatment
is
in the
patient's
best
interests
when
it has
a
good
probability
of
restoring
competency.
7
This
seems
a reasonable
approach
when
the
patient
is
suffering
from
a
serious
condition
for
which
no
alternative
treatments
seem
effective,
and
when
the
proposed
treatment
has
a
favorable
risk/benefit
ratio.
E T
and
informed
consent
The
three
essential
elements
of
informed
consent
are
a
competent
patient,
the
communication
of
adequate
informa-
tion
to
form
the
basis
of a
decision,
and
the
absence
of
coercion.
In
the
typical
candidate
for
ECT,
the
presence
of
all
three
may
be
questioned.
ompetence
of
the
candidate
for
T
ECT
is
most
likely
to be
considered
for
patients
who
are
severely
depressed,
often
to
the point
of
being
suicidal.
The
patient's
emotional
state
may
cloud
his
judgment
and
render
him incapable
of
absorbing the information
given.
1
8
Once
a
course
of ECT
treatment
has
begun,
the
memory
deficit
induced
by
the
treatment
itself
may
make
it
difficult
for
the
patient
to
retain
the
relevant
information
necessary
to a
rational
treatment
decision.
8 9
Some
have
advocated
a
contin-
uous
consent
process
during
a
course
of
ECT
treatments, ,
but
the
feasibility
of
this
approach
has
been
questioned
because
of
the
temporary
effects
of
ECT
on
the
patient's
competence.
91
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What
information
should
communicated
to the
patient
Physicians
differ
among
themselves as
well as
with the
legal
profession,
regarding
the
competence
of
patients
to
decide
for or against
ECT and
whether
treatment
should
be
given
against
the
patient s wishes.
Merskey
believes
that ECT
should
be given
to nonconsenting
patients
under
certain
circumstances,
because
of
the
physician s
ethical
commit-
ment
to
attempt
to
relieve
suffering
and prevent
suicide and
states
that the
patients
are
usually
grateful
afterward.
92
Culver
et al. think
that physicians
should respect
patients
informed
decisions
to
reject
ECT
except
in
cases where
they
might
die
without
treatment.
93
Most depressed
patients
ap-
pear
to
be
capable
of making
an
informed
decision,
they
say,
and
few refuse
ECT,
possibly
because ECT
is usually
only
suggested after
other
treatments
have
failed and the
patient is
eager to
have his suffering
relieved. '
Some
opponents
of
ECT
believe it
to
be so harmful
that
one
could
not rationally
consent
to it.
9
Breggin,
a
vocal oppo-
nent
of
ECT who would
like to see
it abolished
completely,
would
not prohibit it for voluntary patients
in
the private
sector,
as
he believes
that
would
be an
abridgement
of their
and
their physicians
constitutional
liberty
interests.
9
Others
have
argued
that involuntary
patients
should
also
be able
to
receive
ECT,
as
they
have as
much right
to the
appropriate
treatment
as
voluntary
patients.
Since much
is
still
unknown
about
ECT s mechanism
of
action and
long-range
effects, even
the
best-intentioned
physician
will
be
unable
to
communicate
all
the
information
the
patient
might want
to
have
before making
a decision.
Standard
informed consent
doctrine requires
that
patients
offered
E T
be informed
of the
possible
risks and
benefits of
ECT, the
risks and
benefits
of
any alternative
treatments
available,
and the
risks and benefits
of undergoing
no
treatment.
98
Is there
sufficient
evidence
of the
risk of
perma-
nent memory
loss
to require
that
physicians
disclose it?
9
Should
the patient
be informed
that
a
possible
risk of
not
accepting
ECT
is that
he will
commit
suicide or would
that
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38
ECT
entail
the danger
of
a self-fulfilling
prophecy?
One author
suggests
that
patients
be
told
that
ECT
has
an
excellent
chance
of alleviating
depression,
a
small
chance
(perhaps
10-
50 ,
but
not
known
exactly)
of causing
minor
memory
problems
that
may
persist
for
6-12
months,
and
a rare
chance
(possibly
1 ,
but also
not
known)
of moderate
to
marked
memory
problems
that
may persist
for longer
than
a
year,
and,
in extremely
rare cases
be
chronic
and
disabling.M
Since
the
ability
of non-mentally
ill
persons
to
evaluate
statistical
risks
has
been
shown
to
be
questionable,2
°
'
how
much
more
so
is that
likely
to be
true
of
a candidate
for
ECT?
Most
of
the empirical
studies
of
mental
patients'
ability
to comprehend
information
regarding
proposed
ther-
apy
have
shown
it to
be
poor,
but
the studies,
which
usually
deal with
antipsychotic
drugs,
have
been heavily
criticized
on
methodological
grounds,
and
some
have
argued
that
the
mentally
ill
are
no
less able
to
comprehend
such information
than the
non-mentally
ill
patient.m
Statutes
in some states
mandate
specific
information
to
be
given
to
patients
advised
to undergo
ECT1
3
California
requires
that
patients
be
given
some
information
about
the
risks
of
ECT which
a
number
of
physicians
regard
as
erroneous,
2°
4
illustrating
the danger
of
specifying
in
a
statute,
on the basis
of
incomplete
medical
data,
the
information
to
be
disclosed
during
the
informed
consent
process.
oercion
Some
might
argue
that
the
situation
of
the
typical
ECT
candidate
is inherently
coercive
in
that
the consequences
of
refusal may
be
a continuation
of intolerable
symptoms,
a
lengthy
period
of
institutionalization,
or
both.
Repeated
conversations
with an
institutionalized
patient,
urging him
to
undergo
the
proposed
therapy,
may
appear coercive
to the
patient.
Empirical
studies
of
drug refusal
have
shown
that
in
most
cases patients
eventually
were
talked
into
accepting
the
drugs
or were
treated
over
their
objections.
2
5
One study
of
treatment
decisions
by
the
mentally
ill
revealed
that
most
of
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the patients
advised
to undergo ECT eventually
agreed
to do
so despite
initial objections.
utonomy o
the
mentally ill
The doctrine of
substituted
judgment
was created
to allow
the incompetent individual to exercise vicariously his right of
autonomous decision
making,
but
some
have questioned the
appropriateness of applying the concept of autonomy
to
the
mentally
ill.
Gutheil asks
the
following questions with regard
to autonomy:
Is
the ideal of autonomy fully realized
by the
use of informed
consent?
Are
there times
when
it
should
be
sacrificed for
some
higher good,
such
as safety or rapid
release from confinement? Is
the
mentally ill patient who
refuses
treatment expressing
his autonomy, or is it
rather
his
illness
that
is speaking?
2°
0 Chodoff
believes that a strict
application of informed consent may be
detrimental
to
patient
care, and
that
some degree
of
responsible
paternal-
ism may be desirable.
2°8
The NIMH consensus panel
on
ECT
concluded,
however, that
informed consent
is required
by law and ethics and
that patients'
treatment
decisions
should
be
respected even
though
they might
be
suffering
from a
severe psychiatric
illness that
distorts their
judgment,
so
long as
it
does not
render them legally incompetent.
2
7
9
Effect
o
legal regulation
of E T
Legislative
and judicial regulation
of ECT may be doing
more
harm
than good, according to some observers.
Winslade
et al
21
studied the
legal
regulation
of ECT in
15 of
the most populous states from
1981 to 1983
and concluded
that
statutes and case law especially
Wyatt
v Hardin
have
impeded
physician
decision making.
Comparing
the
stan-
dards
for ECT recommended by
the
APA
task
force
report
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40
T
on ECT with
those
in federal court orders
and
state
statutes
and regulations,
the
authors
discovered
a
serious boundary
and role confusion due to the
intrusion of state authority into
areas traditionally
reserved
to medical
judgment.1
21
Overreg-
ulation was common,
often
resulting in
the
delay or denial
of
treatment, and
cumbersome legal procedures caused
some
physicians to
abandon attempts
to
use ECT.
A
number
of deaths
have
reportedly
resulted
from delays
in
providing ECT.
212
Simon presented a hypothetical case
of a
patient in danger of dying before permission to administer
ECT could be obtained from
a judge, forcing the psychiatrist
to
choose
between obedience
to the
law and doing
what he
considered
to
be in his
patient's best
interests,
thereby
incurring
the
risk
of
a
lawsuit.
2
13
California had some of the most restrictive
regulations
with
respect
to
ECT even before passage of
the
Berkeley
ordi-
nance,
2
4
but
new
regulations
passed in
1985
are
even
more
stringent,
limiting
the
total
number of treatments
that pa-
tients
may
receive defining
any seizure as a treatment
(thereby discouraging the use
of low-level
ECT,
since
shorter
seizures are known to be ineffective), classifying
ECT with
psychosurgery, and
providing that unless two physicians
agree
that
a patient
has
the capacity
to
give
informed consent
to ECT,
a court hearing is required. The statute and
regula-
tions
have
contributed
to the steady decline of ECT in
California, with many hospitals no
longer
offering ECT
because
of
the
red
tape
involved.
215
The need for such
extensive
regulation is called into question
by the results of a survey of the use of ECT
in California
from
1977 to
1983.
About 1.12
persons per 10 000
popula-
tion
received
ECT
each
year, for
a total of 18 627
patients.
Only 3
were
deemed unable
to
consent
and had
court
hearings. The procedure
was quite safe,
with
no fractures
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being
reported, and
a mortality rate
of
0.2
deaths per
10,000
treatments.
Most
E T was paid for
with nonpublic
funds
by
white
patients
in
nongovernmental
facilities.
21
6
A
similar
discrepancy
between the
use of ECT
in public
versus private
patients
has been
observed in Alabama,
where
Wyatt
v ardin
established
stringent
requirements
for the
administration
of
ECT which
are,
however,
not
applied
to
voluntary patients
in
private or
general
hospitals.
7
The
overregulation of
ECT
(and possibly
of
other forms
of
treatment
for
the
mentally
ill, as well
may, it
has been
suggested,
contribute
to
a
two-tiered
system of care
in
which
the
poor, who must
use
public
facilities,
do not have
access
to
all
effective
forms
of
treatment.)
21
8
While
anti-ECT
regulation may
lead
to its
underutilization
in
some
patients,
ECT may
also be
overutilized
in
being used
for
some
disorders
for
which it has not
been proven
effec-
tive.
219
Simon predicts
that
ECT
may
come
to
be
more
widely
used, perhaps
even
for conditions
for
which
it
is not clearly
indicated,
as
diagnosis-related
groups
and prepaid
health
plans
become more
common
to psychiatric
practice, exerting
pressure
to
treat
patients
with
the
most effective
treatments
that produce
the
shortest
hospital
stays.2
°
The right-to-refuse-treatment
cases
were
originally
brought
as
a
means
of
upgrading
care
in
mental institutions,
where
drugs and other
forms
of
therapy
with potentially dangerous
side effects were often
overused
due
to
shortages
of staff and
facilities
for
treatment. 2
It
would
indeed
be
ironic
if
the legal
standards
and
procedures
that
were developed to
raise
the
level
of
care
of the mentally
ill might
now
be used to deprive
some of them
of necessary
care.2
One
author has
written
that ECT
can
be a lifesaving
intervention,
and
its outright
denial
is potentially
more harmful
than its use. -
3
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42
ECT
It
is time to consider whether the
pendulum has
swung too
far
toward excessive emphasis on the
negative aspects
of
organic therapies for the mentally ill. Statutes
and
regula-
tions may not be
flexible
enough to
incorporate new
infor-
mation and provide
for
individualized treatment.
[B]y
their
appearance
of addressing a
problem, such
regulatory ap-
proaches
can divert energy
and resources
from
other
efforts
that might be helpful. 2 The overregulation of
ECT
is
but
one example
of good intentions that may
have been
carried
too far.
Notes
1
American Psychiatric Association
Commission
on
Psychiatric
Therapies,
The PsychiatricTherapies
214 (1984)
[hereinafter
cited
as
APA
Commission].
2. J
Ottosson,
Use and Misuse
of
Electroconvulsive
Treatment, 20
Biological
Psychiatry
933
1985).
3.
H.
Sackeim, Electrode Placement,
Dosing Strategies,
and Out-
come, in Syllabus o
139th
Annual
Meeting 69
APA
1986) [here-
inafter cited as
986 APA Meeting Syllabus].
4.
APA Commission, supranote 1, at 215.
5.
M.
J.
Mills,
D.
T. Pearsall,
J. A. Yesavage
C. Salzman,
Elec-
troconvulsive Therapy
in
Massachusetts, 141
Am. J
Psychiatry
534 (1984).
6.
Several Well-Studied Options Now Available for
Resistant
Depression,
14
ClinicalPsychiatryNews No.
9,
at
6
(1986).
7.
Consensus Conference: Electroconvulsive
Therapy,
254
A.M.A.
2103
(1985) [hereinafter cited as Consensus Confer-
ence ].
8.
Verdict
on
ECT
Mixed
in
NIH
Consensus
Statement,
20
Psychi
atricNews No. 14, at 1 (1985).
9. M. Fink, ECT:
For Whom Is Its
Use
Justified? ,
4
J Clinical
Psychopharmacology303 (1984).
10. Id
11. ECT
Rarely Used in Treating Mentally
Ill
Offenders, 19 Psychi
atricNews No. 3, at
6
(1984).
12. Mills et al., supranote 5.
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13.
S. Levy
E
Albrecht,
"Electroconvulsive
Therapy:
A Survey
of
Use
in
the Private Psychiatric
Hospital," 46
J Clinical
Psychiatry
125
(1985).
See also Mills et
al.,
supra
note
5.
14. Mills
et al. supra note
5.
15.
R. Abrams, "The
ECT Controversy:
Some Observations
and a
Suggestion," Psychiatric
Opinion March 1979, at
16
C.
Holden, "A
Guarded
Endorsement
for
Shock Therapy,"
228
Science
151 (1985).
17.
S
Brakel,
J.
Parry B. Weiner,
The
Mentally
Disabled
and the
Law 330 (3d
ed. 1985).
18.
American
Psychiatric
Association
Task
Force
Report 14: Electro-
convulsive
Therapy (1978)
[hereinafter
cited
as Task Force
Re-
port].
19. J. Smith,
Medical
Malpractice:
Psychiatric
Care
112 (1986).
20.
F.
Varghese
B. Singh,
"Electroconvulsive
Therapy
in 1985-A
Review,
143
Med. J Australia
192 (1985).
21.
R. Abrams
W.
Essman,
Electroconvulsive
Therapy: Biological
Foundations
and Clinical
Applications
8-9 (1982).
22.
R. Crowe, "Electroconvulsive
Therapy-A
Current Perspective,"
311
New Eng.
J
Med. 163
(1984);
P.
G.
Janicak,
J.
M.
Davis,
R.
D.
Gibbons,
S.
Ericksen,
S. Chang P.
Gallagher,
"Efficacy
of
ECT: A
Meta-Analysis," 142
Am. J
Psychiatry
297 (1985).
23.
APA Commission,
supra note
1, at
234.
24. "ECT
Is Primarily
Indicated
for
Endogenous
Depression; Contra-
indications
Are
Unusual,"
13
ClinicalPsychiatry
News
No. 3,
at
3
(1985) [hereinafter
cited
as "ECT Primarily
Indicated"].
25. Crowe,
supra note
22 .
26.
"ECT
Said
to Be Effective
and
Rapidly Active,"
12
Clinical
Psy-
chiatryNews No. 5, at 24 (1984).
27.
APA Commission,
supra
note
1,
at
233.
28.
J. Langone,
"A
New Assault
on
Shock Therapy," Discover
Janu-
ary
1983,
at
54 .
29. "Consensus
Conference,"
supranote 7.
30. I. F.
Small,
V.
Milstein,
M. J. Miller,
F.
NV
Malloy
J.
G. Smal ,
"Electroconvulsive
Treatment-Indications,
Benefits,
and
Limita-
tions,"
40 Am. J
Psychotherapy
343,
354 (1986).
31. C. Von
Valkenburg
P. Clayton,
"Electroconvulsive
Therapy
and
Schizophrenia,"
20
BiologicalPsychiatry
699 (1985).
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ECT
32.
Varghese
. Singh,
supra
note
20 .
33.
Von
Valkenburg
Clayton,
supra
note
31. The
legal
issues with
respect
to tardive dyskinesia
are discussed
in S. Taub,
Tardive
Dyskinesia:
Medical
Facts and
Legal
Fictions,
30 St.
Louis
U.L.J.
833
(1986).
34. W.
Bates
D.
Smeltzer,
Electroconvulsive
Treatment of
Psy-
chotic Self-Injurious
Behavior
in a Patient
With Severe
Mental
Retardation,
139 Am.
J Psychiatry
1355
(1982).
35.
Holden,
supra
note 16.
36.
Ottosson,
supranote
2,
at
942-43.
37. Crowe,
supra note
22;
APA
Commission,
supranote
1 at
217.
38.
Varghese
Singh,
supra note
20 .
39.
Sobel,
Electroshock
Treatment:
Safer
and Quicker
Than
Drugs? ,
New York
Times
December
21,
1979,
at A-16.
40. Crowe,
supra
note
22 .
41.
Consensus
Conference,
supra
note 7.
42.
Loss
of
Memory
After
Electroconvulsive
Therapy, 13
Clinical
Psychiatry
News
No.
4, at
3
(1985);
Varghese
Singh,
supra
note
20; APA
Commission,
supra
note 1,
at
230;
Abrams,
supra
note
15;
R.
Abrams W. Essman,
supra
note
21,
at
180.
43.
Crowe, supra
note
22 .
44. H.
Merskey,
Ethical
Aspects
of the Physical
Manipulation
of
the
Brain,
in Psychiatric
Ethics
135
S. Bloch
P Chodoff
eds.
1981).
45 APA
Commission,
supra
note 1,
at
231.
46.
R. Abrams
W. Essman,
supra note
21, at 181.
47.
Langone,
supra
note
28, at 54 .
48.
Disturbing
Questions
Surrounding
the Use
of
ECT,
13 Clinical
PsychiatricNews
No. 4,
at
37 (1985).
49. Consensus
Conference,
supranote
7.
50
P.
R. Breggin, Electroshock:
Its
Brain-Disabling
Effects
(1979).
For a counter-anecdote,
see the
report
of an 89-year-old
woman,
the
recipient
of
1,250 ECT
treatments
for bipolar
disorder,
whose
brain
showed
no
gross signs
of
damage at
postmortem.
Brain
In-
jury Is Not
Evident
After
1,250
ECT Sessions,
14 Clinical
Psy-
chiatry
News No. 4,
at 31 (1986).
51
Small
et al.,
supranote 30,
at
354.
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52 H.
A Sackeim,
The Case for
ECT,
Psychology
Today
June
1985, at 36;
Consensus Conference,
supra
note
7.
53.
Study
of Electroconvulsive Therapy
on Animals Requested,
131
Med. Devices Reports (CCH)
5
(April 14,
1986).
The
latter
com-
mittee
placed an advertisement
in
The New York
Times
asking
readers
to
write to the
FDA
for
an
investigation of whether
shock
treatment
causes
brain damage.
New York
Times January 9,
1986,
at 50 .
54.
CT
Scan
Study
on
Electroconvulsive
Therapy
Effects Re-
quested,
135
Medical
Devices Rep.
(CCH) 3 (September
24 ,
1986)
[hereinafter cited
as CT Scan Study ].
55
Abrams,
supranote 15.
56 21
U.S.C.
360 (1976).
57
Id
360(e).
58.
M. Boguslaski,
Classification
and Performance
Standards Under
the 1976
Medical Device
Amendments,
40 Food Drug Cosmetic
L J 421, 437
(1985).
59. CT
Scan
Study,
supra note 54 .
60. M. McDonald,
FDA
Orders Tougher
ECT Devices Standards,
14 Psychiatric
News
No.
23, at
1
(1979).
61. C. Nadelson,
Letter,
Consensus
on Electroconvulsive
Therapy,
255
J A.M.A.
2023 (1986).
62.
Statement
on
Electroconvulsive Therapy
Requested
for
Patients,
119
Med. Devices
Rep.
(CCH) 1
(February
18,
1985).
63. APA Commission, supra
note
1,
at
241.
64. For
a
sample
of current research
in
ECT,
see papers
abstracted
in
the 1984
Yearbook of
Psychiatry
and Applied Mental Health
278-
83 (D.
X. Freedman,
J. A. Talbott,
R. S. Lourie, H.
Y. Meltzer,
J. C. Nemiah H.
Weiner
eds.
1984).
65. The
flurry
of
research on
ECT is
reflected
in
a
journal,
Convul-
sive Therapy solely devoted to
that subject.
66.
See, e.g. Sackeim, supra
note 3.
67.
ECT
Dosage
Factors
Critical to
Response, 13
ClinicalPsychia-
try News No.
3, at 1
(1985).
68.
EEG
Suppression
Linked
to
Electroshock Memory
Loss,
14
ClinicalPsychiatry
News
No.
2
at
35 (1986);
C. Welch, Factors
Affecting Generalized
Seizure Activity,
in 1986 P
Meeting
Syllabus
supra
note 3,
at 69.
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6
T
69
A Miller, R. Faber, J Hatch & H. Alexander,
Factors Affecting
Amnesia,
Seizure Duration,
and
Efficacy
in ECT,
142 Am. J
Psychiatry 692 (1985); S Chang, K. Lebeis,
J.
M.
Silberberg
&
R.
A.
deVito, EEG Seizure
Time and Treatment Response
to
ECT,
in
1986APA
Meeting
Syllabus,
supra note 3, at
259.
70. ECT Primarily
Indicated, supra note
24.
71. Small et
al., supra note 30. The factors found
to
be
related to the
patient's ECT
response were
DSM-III
Axis IV and V, history
of
substance abuse,
and
the
BPRS
withdrawal-retardation
factor.
72.
R.
L.
Horne, H. M. Pettinati,
A.
Sugarman
& E.
Varga, Com-
paring
Bilateral
to
Unilateral Electroconvulsive Therapy in a Ran-
domized Study With
EEG Monitoring, 42
Arch.
Gen. Psychiatry
1087
(1985); R. Weiner, Unilateral Versus
Bilateral ECT: Mini-
mizing
Therapeutic
Differences, in 1986
APA Meeting Syllabus,
supra
note 3,
at 69;
L. Squire, ECT and
Memory Loss, 134
Am.
J Psychiatry 997
(1977);
L. Squire
&
J. Zouzounis,
ECT
and
Memory:
Brief Pulse Versus Sine Wave, 143
Am.
J
Psychia-
try 596
(1986),
Low Sequelae
Risk With Unilateral ECT to Right
Hemisphere, 11
Clinical Psychiatry
News
No.
1,
at
28 (1983);
Varghese
& Singh, supra
note 20;
Janicak et al., supranote 22 .
73.
Ottosson, supra
note 2; R. Abrams
& W.
Essman, supra note
21,
at
50; Crowe, supra note 22;
Janicak et al., supra note 22;
APA
Commission,
supra
note
I,
at
213-42;
R.
Abrams,
Biological
Effects
of
Unilateral and Bilateral ECT,
in
1986
APA Meeting
Syllabus,
supra
note 3, at
68.
74.
H.
Pettinati, K. S. Mathisen,
J.
Rosenbert
& J.
Lynch,
Unilat-
eral
ECT: When
Doesn't It
Work? , in 1986 APA
Meeting
Sylla-
bus, supranote 3, at 68.
75. Horne et
al., supra
note
72;
H.
Pettinati
&
S. Nilsen,
Missed
and Brief Seizures
During ECT: Differential
Response Between
Unilateral
and Bilateral Electrode Placement,
20 Biological
Psychiatry506
(1985).
76.
Task Force Report, supra
note 18.
77. Horne et al., supra
note 72 .
78
Id
79. Task
Force
Report, supra note
18.
80. V. Milstein,
J. G. Small & I. F. Small, Diagnostic
Indications for
Bilateral
ECT, in
1986
APA
Meeting Syllabus, supra
note
at 68.
81.
Sackeim,
supra
note
52 .
82. K. Kesey, One
Flew Over the
Cuckoo sNest
(1964).
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83. C.
Sherman, Former ECT Patients
Urge
That
Procedure
Be
Abandoned,
13
Clinical
Psychiatry
News
No. 3, at 7 (1985).
84.
Sackeim,
supra
note
52, at
36.
85.
P. Janicak, J. Mask,
K. A. Trimakas
& R. Gibbons,
ECT:
An
Assessment
of Mental
Health Professionals'
Knowledge and
Atti-
tudes,
46 J
Clinical
Psychiatry
262
(1985).
86.
See J. Tenenbaum,
ECT
Regulation Reconsidered,
7
Mental
Disability
L.
Rep. 148 (1983).
87.
R. Reisner,
Law and
the
Mental
Health
System 456
(1985).
88.
M.
McCafferty
&
S.
Meyer,
Medical Malpractice:
Bases
o
Liabil-
ity 10.06, 10.22
(1985).
89.
See J. Smith,
supra
note
19,
at
108-22.
90. S.
Brakel et
al., supra
note 17, at 330-31,
349,
458 & 580.
91. R.
Abrams
&
W.
Essman,
supranote
21, at
256.
92. Consensus
Conference,
supra note 7.
93.
NIH Panel Recommends
Restraint
in Use
of ECT, Am. Med.
News
June 28/July 5, 1985,
at 2.
94.
G. Peterson & C. C.
Nadelson,
Letters,
Consensus
on Electro-
convulsive Therapy,
255
J
A.M.A.
2023
(1986);
G.
Peterson,
Letters,
MD
Comments on
ECT
Panel, Am. Med.
News No-
vember
15, 1985,
at
6,
Evaluates
ECT Conference,
13 Clinical
Psychiatry
News
No. 10 at
5
(1985).
95. Nadelson,
supra
note
94.
96.
S.
Brakel
et
al.,
supranote
17, at
580.
97. L.
Lovares,
Claims Manager
for
American
Psychiatric Associa-
tion's
insurance
program, personal
communication.
98.
Annot., 94
A.L.R.3d 317
(1979).
99.
A few cases
alleging
memory
loss are currently
in
litigation.
L.
Lovares,
Claims Manager
for American
Psychiatric
Association's
insurance
program,
personal
communication.
100.
Rice
v.
Nardini,
Docket
No. 78N-1103 (D.C.
1976),
cited in
R.
I.
Simon,
ClinicalPsychiatry
and the
Law
226
(1987).
101. H. W.
Freishtat, Electroconvulsive
Therapy: No
Ban
in
Berke-
ley, 5
J Clinical
Psychopharmacology
52
(1985).
102. I.
N. Perr,
Liability and
Electroshock
Therapy,
25 J Forensic
Sciences 508
(1980).
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8 ECT
103. d
104.
Farber
v.
Olkon,
254
P2d
520
(Cal.
1953);
Mitchell
v.
Robinson,
334
S.W.2d
(Mo.
1960);
Collins
v.
Hand,
246
A.2d
398
(Pa.
1968).
Farber
reasoned
that
res
ipsa
loquitur
was
inapplicable
be -
cause
ECT
is designed
to
produce
convulsions,
and
fractures
are a
common
hazard
which
occur
even
if
all
due
care
is
used.
105.
Johnston
v.
Rodis,
251
F 2d
917
(D.C.
Cir.
1958).
106.
Woods
v.
Brumlop,
377
P d
520
(N.M.
1962).
107.
Stone
v.
Proctor,
131
S.E.2d
297
(N.C.
1963).
108.
Evans
v.
State
of
New
York,
183
N.Y.S.2d
196
(N.Y.
Ct.
CI.
1958).
109.
Woods
v.
Brumlop,
supra
note
106;
Collins
v.
Hand,
supra
note
104.
110.
Kosberg
v.
Washington
Hospital
Center,
Inc.,
394
F.2d 947
(D.C.
Cir. 1968).
111.
McDonald
v.
Moore,
323
So.
2d
635
(Fla.
Dist.
Ct.
App.
1975).
The
physician
also
allegedly
failed
to
warn
the
patient
of the
risk
of
fractures.
112.
Pettis
v.
State
Department
of Hospitals,
336
So.
2d 521,
526
(La.
Ct. App.
1976).
The
court
said the physician could be
held
negligent,
however,
in
failing
to
determine
whether
the
patient
ex-
perienced
pain
as a
result
of prior
ECT
treatments
before
adminis-
tering
subsequent
treatments,
even
though
he
had
relied
on
nurses
reports
which
failed
to
mention
the
patient s
complaints
of pain.
The
court
also
found
the
nurses
negligent
in
failing
to
inform
the
physicians
of the
patient s
complaints.
113.
R.
Reisner,
supra
note 87,
at
73.
114.
Kapp
v. Ballantine,
402 N.E.2d
463
Mass.
1980).
The
case
against
the
hospital
and
one
physician
was
dismissed,
but evidence
against
the
remaining
physicians
was
held
sufficient
to
raise
a
question
of
liability.
115.
Collins
v.
Hand,
supra
note
104,
at
405-06.
116.
Christy
v. Saliterman,
179
N.W2d
288
(Minn.
1970).
117.
Memory
loss
would
probably
satisfy
the requirement
of
a
physical
injury
if,
as
seems
likely,
it is
caused
by
the physical
effects
of
ECT
on
the
brain.
118.
See
F. A.
Rozovsky,
Consent
to Treatment
A
Practical
Guide
58-
65
1984).
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119. Maben
v.
Rankin, 55
Cal. 2d 139,
10 Cal.
Rptr.
353,
58 P 2d 681
(Cal. 1961).
120. Mitchell
v.
Robinson, supra
note
104.
In both
Mitchell
and
Maben
supranote
119),
the verdict
obtained
by the plaintiff
was
reversed because
of error
in the
jury
instructions.
121. S. Brakel
et al.,
supra note
17, at
458, 357-65.
122.
See
F.
A.
Rozovsky,
supranote 118,
at
70 .
123. Lester
v. Aetna
Casualty
Surety Co.,
240
F 2d
676
(5th
Cir.
1957).
124.
Mitchell
v.
Robinson,
supra
note
104,
at 17.
125.
R.
I.
Simon,
supra note 100,
at
226.
126.
See F. A. Rozovsky,
supra
note 118,
at
61.
127. Mitchell
v. Robinson,
supra
note 104.
128.
Aiken v. Clary,
396
S.W.2d
668,
674-75
(Mo.
1965).
129.
Mitchell v.
Robinson,
supra
note 104.
130.
Wyatt v.
Stickney,
344 F.
Supp.
373
1972).
131.
Wyatt v. Hardin,
Civ. Action
No.
3195-N
(M.D.
Ala.
February
28,
1975), cited
in Mental
Physical
Disability
L.
Rep., July
August
1976, at 55.
132.
J. Parry, "Summary, Analysis,
and
Commentary:
Legal
Parame-
ters
of Informed
Consent Applied
to
Electroconvulsive
Therapy,"
Mental
Physical
Disability
L. Rep. 162
1985).
133.
239 N.W.2d
905 (Minn.
1976).
134. 375
N.W.2d
526 (Minn. Ct.
App. 1985).
135. New
York
City Health Hospitals
Corp. v.
Stein,
335 N.Y.S.2d
461,
465
1972).
136.
Gundy v. Pauley,
619
S.W.2d
730
Ky.
Ct.
App. 1981).
137.
Ky
Rev.
Stat. 202A.180.
138.
Parry, supra
note 132.
139. Pickle
v.
Curns,
435
N.E.2d
877
Ili. Ct.
App. 1982). Although
the physician allegedly
violated
hospital policy
by administering
ECT without a
muscle relaxant
and
without
first
examining
the
patient, the court
said the hospital
could
not be
held liable unless
the physician were
a hospital employee,
or
the hospital
knew or
should have
known that
the physician
would
violate
its policy.
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5 ECT
140.
706
E d 1456 (7th Cir. 1983), cert. denied 1 6 S. Ct. 822
1986).
The
Court declined
to
rule
on what procedures are
constitution-
ally required before
ECT
can
be
given
to
a
nonconsenting
patient,
saying
only that at
a
minimum
the professional
judgment
stan-
dard announced
by
the
Supreme
Court
of the
United
States in
Romeo
v. Youngberg,
102
S.
Ct.
2452 (1982),
should apply. 106
S.
Ct.
at 1467.
141.
770
F.2d
619 (7th Cir.
1985), cert.
denied
106 S.
Ct.
822 (1986).
142.
601 F Supp.
1297 (D. Ore.
1985).
143. West's
Ann.
Welfare
Inst. Code
5000 5404 1
144.
129 Cal.
Rptr. 535,
57 Cal. App.
3d 662 (Cal. Ct.
App.
1976).
145 129 Cal. Rptr.
at 542.
146.
205 Cal. Rptr.
572 (Cal. Ct.
App.
1984).
147.
Lillian
F. v.
Superior Court,
206 Cal. Rptr. 603,
607
(Cal.
Ct.
App. 1984).
148.
Conservatorship
of
John
Waltz,
San
Diego
Department
of
Social
Services v.
Waltz,
227
Cal.
Rptr. 436, 180 Cal.
App.
3d
722,
181
Cal.
App.
3d
4621
(1986).
149.
Berkeley
Voters
Ban
ECT, Shock
Psychiatric
Profession, 122
ScienceNews
309 (1982);
Freishtat,
supra
note
101.
150. Northern
California
Psychiatric
Society
v. City
of
Berkeley,
223
Cal.
Rptr.
609,
610, 178
Cal.
App.
3d 90 (Cal.
App. Ct. 1986).
151. 223
Cal. Rptr.
at 609, 178 Cal.
App. 3d
at
90. The
other plaintiffs
included
the American
Psychiatric
Association
and the
National
Association
of
Private Psychiatric
Hospitals.
152.
Activists
to
Go
to Calif. High
Court
for
Ban on Use
of ECT,
14
ClinicalPsychiatry
News
No.
6,
at 34
(1986).
153.
Rehearing/review
were
denied May
22, 1986.
154.
Berkeley,
Calif. to Abandon
Efforts
for Ban
on
Use
of
ECT,
14
ClinicalPsychiatry
News No.
10,
at
9 (1986).
155 Vermont
Anti-ECT
Bill Fails, Proponents Vow
Fight,
13 Clini-
cal
Psychiatry
News
No.
5,
at
8 (1985).
156.
See S.
Brakel
et al.,
supra note 17,
at
357-65,
458.
157.
723 P.2d 1103, 106
Wash. 2d
500
(1986).
158.
Wash.
Rev.
Code
71.05.370.
159.
In re
Schuoler,
supra
note 157,
at 1106.
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160. Id
at 1107.
161.
Id
at 1108.
162. Id at 1109.
163. Id t 1111.
164. See
W. J. Winslade, E. H. Liston, J.
W.
Ross
&
K.
D. Weber,
Medical,
Judicial, and
Statutory
Regulation of
ECT
in
the
United States,
141 Am.
J. Psychiatry 1349 (1984).
165.
See
B.
Hoffman,
The Impact of
New
Ethics
and
Laws
on
Elec-
troconvulsive Therapy, 132 Can. Med.
Assoc.
J 1366
(1985);
Mills
et
al.,
supra
note
5.
166.
See
L. H. Roth, A. Meisel
&
C.
W. Lidz, Tests
of
Competency
to Consent to Treatment,
134 Am.
J Psychiatry 279
(1977);
B. Stanley &
M.
Stanley,
Testing
Competency
in
Psychiatric
Patients,
4 IRB
No.
8,
at
1
(1982).
167. P.
Brown, Psychiatric
Treatment
Refusal,
Patient
Competence,
and Informed Consent,
8
Int l J L. Psychiatry
83
90 (1986);
R.
I. Simon, supranote 100,
at 227.
168.
See
T. Gutheil, The Right to Refuse
Treatment: Paradox, Pendu-
lum and the
Quality
of Care,
4 Behavioral Sciences L.
265,
268 (1986). Stone has called
Kafkaesque the notion that a per-
son may be sufficiently
crazy
to
be
involuntarily committed,
yet
have the right to
refuse the only effective
treatment
available.
A. A.
Stone, Judges
as
Medical
Decision Makers: Is the Cure
Worse
Than the
Disease? ,
33
Cleve. St. L. Rev. 579,
588 (1984-
85).
169. See Stensvad v. Reivitz,
601
F.
Supp. 128
(W.D.
Wis.
1985);
R.A.J. v.
Miller, 590 F.
Supp. 1319 (N.D.
Tex. 1984).
170.
State Laws
Cloud
Definition
of
Psychiatric
Emergency,
21 Psy
chiatricNews No.
21,
at 1
(1986).
171.
See
Gutheil, supra
note
168.
172.
See
Price
v.
Sheppard,
supra
note
133,
at
910-12;
In
re
Alleged
Mental Illness of
Kinzer,
supra
note
134,
at
532;
Lojuk v. Quandt,
supranote 140,
at 1465; In re Schuoler, supra note 157, at 1107.
Intrusiveness has
also been
used
to
characterize other forms of
psychiatric
treatment,
such
as
antipsychotic drugs.
See
Taub,
supra note 33, at 858.
173.
M. H.
Shapiro,
Legislating the Control of
Behavior
Control:
Autonomy and the Coercive
Use
of
Organic
Therapies,
47
Cal. L. Rev. 237,
256
n.51 (1974).
174.
R. Reisner, supra
note 87, at 461.
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5
ECT
175.
M. H.
Shapiro
&
R.
G
Spece,
Bioethics
andLaw 54
1981).
176.
R.
I. Simon,
supra
note 100,
at
230.
177.
Id.
at
232.
He
might
also
have
cited
the high
frequency
of
sexual
exploitation
of
patients
engaged
in
purely
psychological
forms
of
therapy.
See N.
Gartrell,
J. Herman,
S.
Olarte,
M.
Feldstein
&
R.
Localio,
Psychiatrist-Patient
Sexual
Contact:
Results
of
a
National
Survey,
I:
Prevalence,
143 Am.
J Psychiatry
1126
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178.
See
Stone,
supra
note
168;
and
Gutheil,
supra
note 168.,
179.
See
Parry,
supra
note
132.
180.
See
Stone,
supra
note 168.
181.
See
H.
Bursztajn,
More
Law and
Less
Protection:
'Critogenesis,'
'Legal
Iatrogenesis,'
and
Medical
Decision-Making,
18
J. Geriatric
Psychiatry
143
1986).
182.
Gutheil,
supra
note 168.
183. Stone,
supra
note 168.
184.
Id. at
591.
185.
Gutheil,
supra
note 168,
at
270-71.
186.
T. Gutheil
&
P.
Appelbaum, The Substituted Judgment Ap-
proach:
Its
Difficulties
and
Paradoxes
in
Mental
Health
Settings,
13
L. Med.
Health
Care
61
1985).
187.
Id.
at
64 .
188.
P.
Chodoff,
Informed
Consent
and
Treatment
Decisions
in
Medi-
cine and
Psychiatry,
in
1986
APA
Meeting
Syllabus
supra
note
3, at
87.
189.
P.R.
Breggin,
supra
note
50,
at
191-92.
190.
Task
Force
Report
supra
note
18.
191.
R.
I. Simon,
supra
note
100, at
222.
192.
Merskey,
supra
note
44.
193.
C.
Culver,
R. Ferrell
&
R.
Green,
ECT
and
Special
Problems
of
Informed
Consent,
137
Am.
J.
Psychiatry
586,
590 1980).
194.
Id.
at 587.
195.
Id
196.
P.
R. Breggin,
supra
note
50,
at
211.
197.
R. Abrams
&
W.
Essman,
supra
note
21, at
254.
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198.
F. A. Rozovsky,
supra
note
118, at
43-49.
199.
See C. Salzman,
ECT and
Ethical
Psychiatry,
134
Am.
J. Psy
chiatry
1006
(1977).
200.
Culver
et al., supra
note 193.
201.
G.
Robinson,
Rethinking
the
Allocation of
Medical
Malpractice
Risks Between
Patients
and Providers,
49 L.
Contemporary
Problems
173, 188
(1979).
202. See
Stanley
&
Stanley, supra
note
166.
203.
See S. Brakel et
al., supra note
17,
at
357-65.
204. See
Merskey, supra
note 44, at 137; Winslade
et al.,
supra note
164.
205. P
Appelbaum & S. Hoge,
The Right to
Refuse Treatment: What
the
Research
Reveals,
4 Behavioral
Sciences L.
279
(1986).
206. C. W. Lidz, A.
Meisel, E. Zerubavel,
M.
Carter,
R. M. Sestak
&
L.
H. Roth,
Informed
Consent
233-34 (1984).
Of the
various
treatments
offered,
the decision
to undergo ECT
involved the
most
participation by
the patient. The
authors suggest
that this
may have been due
to the highly
visible nature
of the treatment,
the fact that patients
were required to sign a consent
form, and
the
physicians'
desire to persuade
other patients
to accept
ECT.
207.
Gutheil, supra
note 168.
208.
Chodoff,
supranote 188.
209. Consensus
Conference,
supra note 7.
210.
Winslade
et al.,
supra
note 164.
211.
Id
t 1349.
212. See B. Kramer, Use
of ECT in California, 1977-1983,
142 Am.
J.
Psychiatry
1190
(1985).
213.
R. I. Simon, supra note 100,
at
216.
214.
A. Scheck,
'Administering ECT
in
California
Won't
Get
Easier,' 13
ClinicalPsychiatry
News
No.
11
at 7
(1985).
215.
Kramer,
supra note 212;
Winslade et al., supra
note
164.
216.
Kramer, supra
note 212.
217.
W. Walter-Ryan,
Letter,
ECT Regulation
and the
Two-Tiered
Care
System, 142 Am. J. Psychiatry661 (1985).
218. Id
219.
Mills et al., supra note 5.
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5
ECT
220.
R.
I. Simon,
supra
note
100
at
220.
221.
A.
Brooks,
Law
and
Antipsychotic
Medications,
4
Behavioral
Sciences
L 247,
253 1986).
222.
Gutheil,
supra
note
168.
223.
S. Brakel
et al.,
supra note
17, at 458.
224.
R.
Baldessarini
B.
Cohen,
Editorial,
Regulation
of
Psychiatric
Practice,
143 Am
J.
Psychiatry
750
1986).