IS TODAY THE DAY WE FREE ELECTROCONVULSIVE THERAPY?

Mike Jorgensen, Florida Coastal School of Law

Abstract

ABSTRACT

IS TODAY THE DAY WE FREE ELECTROCONVULSIVE THERAPY?

By Mike E Jorgensen

Electroconvulsive Therapy, or “ECT,” has become increasingly more popular to treat certain mental illnesses, especially severe depression and pseudo dementia. The stigma it suffered due to prior barbaric type applications in the past are largely historic, and most medical professionals will agree that ECT is safe today, has very minimal side effects, not inherently abusive, and no long- term detriments. Yet, with the increase in popularity and the safe applications, ECT is still treated archaically under the law and the legislative restraints are causing an indigent, elderly population to be deprived of this useful, and sometimes solely effective treatment.

Depression unfortunately affects the elderly, especially elderly women, in the greatest percentages. Proportionably, elderly women tend to suffer more poverty too. In many, if not all of the states, an elderly person who is incapacitated may not be allowed to have ECT treatments unless her proxy decision maker obtains a prior court order allowing said treatments. The practical problems with requiring a judicial order is that it is an unreasonable restraint that makes ECT unavailable to the indigent and to those that need timely treatment. The elderly, especially elderly women, will be a significantly impacted group due to the legislative restriction.

As a practical matter, ECT is not inherently harmful or subject to be abused. After sixty years of use, ECT should not be singled out as an "experimental" or an "unorthodox" treatment, but should be treated as other medical procedures. Most medical procedures are allowed without judicial intervention, and may be applied if the competent adult provides informed consent. Additionally, most medial procedures are administered without prior judicial approval if the incapacitated adult is represented by a proxy or surrogate decision maker.

As a legal matter, the prior judicial authorization requirement is arguably an unconstitutional restraint on ECT availability. If it is not unconstitutional, the legislative restraints are certainly unwise and outdated. The prior consent requirement violates a person's autonomy and as implied under the Constitution, expressed in many state constitutions, provided for my statutes and as found in the common law, as it unreasonably restricts a fundamental right of privacy and self-determination. As individuals have the right to refuse treatment, they also have the right to seek orthodox treatments, and if they suffer incapacity, the person's rights are protected by using proxies and substitute judgment, not necessarily pre-treatment hearings.

The States’ restraints that require prior approval are not compelling and do not serve the State's interests, but contrarily, frustrate the State's policies and purposes. Even if the legislative requirement was found to be compelling, the legislation as adopted by many states is not the least drastic method to protect the government's interests under either the state's parens patriae or police powers. The legislation is not narrowly drawn and it is either overbroad or underinclusive, as applied.

Whether the legislative restraint is deemed constitutionally compliant or not, the law should be conformed to acknowledge modern medical technology improvement in the administration of ETC. If the law is updated, the individual or vulnerable group's safety is still guarded and protected. The courts are still available for contested matters, or matters where abuse may be alleged. Courts have always functioned as arbitrators of contests to make decisions for those who can not agree among themselves. Hence, due process is still applied as needed, and the incapacitated protected, even without the prior judicial consent safeguard.

Due process does not require a judicial hearing to safeguard the vulnerable person's rights. Many health care providers that administer ECT will do so in institutions that already have in place reviewers or bio-ethic committees that could serve in an administrative capacity to protect a patient's due process. Additionally, ECT is not administered in a vacuum, but there are already established several layers of protection for the patient. The patient's first layer of protection is her loved ones and family members. Not everyone enjoys the companionship of loving family members and friends however, but the individual is still protected by the fact that it will require more than a unilateral decision on behalf of a professional to administer the ECT. Second, and at the very least, there will be the medical doctor or psychiatrist to administer the ECT, the anesthesiologist, the other staff members and nurses, all of which have other commitments to professionalism, regulatory boards and judicial oversight. The third level of protection is in the administrative arena where many institutions already have boards and committees in place to address the ethics of treatment or palliative care in the event there is a question of administration of the treatment. Finally, if the previous safeguards are not available or effective in resolving the concerns, the courts are open to render judicial guidance and decisions.

Proxies make irreversible life decisions for principals without prior judicial oversight. The administration of ECT does not cause an irreversible detriment, and should not require prior judicial authorization to protect this vulnerable group. Under Equal Protection, the group that suffers from incapacity has the right to refuse medical treatment through proxies. The decisions will result in irreversible consequences, but said decisions are without prior judicial consent. Equal Protection is violated when the rules require the same group to have judicial consent before applying non-irreversible ECT, and said rules are not rationally related to a legitimate state purpose.

The recommended solution proposed in this article would be for the legislature and courts to adopt a procedure similar to the procedures established by the Florida Supreme Court in the case of In re Guardianship of Browning, where the court provided constitutional safeguards with administrative privacy procedures for the decision-maker. The principal would first be protected by the administrative process and loved ones, and the courts would be accessible and available on an “as-needed” basis, but not as the first line of concern.

To require prior approval is practically, and perhaps constitutionally, incorrect and the laws should be updated to be in conformity with the advances in technology and the growing need in the community among the indigent elderly and groups suffering from severe depression and like illnesses readily and effectively treated by ETC.