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Citation: 15 J. Psychiatry & L. 7 1987

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The Journal of Psychiatry & Law/Spring 1987

Electroconvulsive therapy,
malpractice, and informed
consent

BY SHEILA TAUB, J.D.

The authorpresents an overview of the use of electroconvulsive

therapy in treating mental illness, of current researchinto ECT's
safety and effectiveness, and of the legal treatment of ECT in
malpracticeand patients' rights litigation. She concludes that
ECT may be overregulated because the law has not kept pace
with changes in knowledge and procedures concerningECT, with
the result that some patients who might benefit from ECT may
be deprived of a relatively safe and effective form of 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 electroconvulsive therapy (more commonly referred to as electroshock therapy or shock therapy, hereinafter ECT). This
article will review the use of ECT in treating mental illness,
recent scientific data concerning its safety and effectiveness,
and its legal regulation via civil suits for malpractice and
1987 by Federal Legal Publications,Inc.

ECT

statutes bearing on consent to treatment. The author suggests

that regulations intended to protect patients may be depriving some of a relatively safe and highly effective form of
therapy.

History of ECT
The idea of using ECT to treat mental illness derived from
the observation, in the early 1900s, that epilepsy and schizophrenia 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 recognized 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 80s. 5 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+ "to
between 60,000 and 100,000.1 The frequency of ECT usage in
different institutions varies widely, from zero in many institutions to as much as 20% of patients in others. 9 This variability 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

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 manicdepressive 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 premedication, 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. Electrodes 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

10

ECT

within a few minutes. The usual course of treatment for a

depressed 7patient consists of 6 to 9 sessions, at the rate of 3
per week.
The modified procedure is in accord with the recommendations of a recent American Psychiatric Association (APA)
task force report on ECT.'8 The task force's recommendations 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 of ECT
ECT's effectiveness in treating certain mental illnesses, notably manic-depressive disorders and severe depression, is now
well established. 20 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 possible, 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 depression.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 psychotherapy may be necessary to prevent a relapse. 0

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 schizophrenics) has been found more effective than the drugs alone
in removing psychotic symptoms in some schizophrenic
patients.3 2 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 treatments have failed. A severely retarded 25-year-old man in
Ohio was relieved of his life-threatening self-injurious behavior (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 emergencies, he was able to receive treatment only after a judge
4
declared the law unconstitutional.1
Despite ECT's proven effectiveness, its mechanism of action
remains unknown. Many physiological changes occur following 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 distur37
bance that it produces.

The risks and benefits of ECT

ECT 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

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 compression 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 damage, vertebral compression fractures, status epilepticus, pe4
ripheral nerve palsy, skin burns, and prolonged apnea. '
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
43
memory loss and/or an inability to learn new information.
The severity of the memory deficit appears to be related to
the number of treatments and the method of administration, 4 and, to a lesser extent, to the patient's age and clinical
diagnosis.4 5 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 job 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

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
43
have suffered significant persistent impairment.

ECT 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. 0
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 underlying 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.12 Several organizations opposed to ECT (the National 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

14

ECT

the brain. 3 Were the FDA to undertake such studies, the

significance of their results for humans would be difficult to
assess.
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 underlying 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 FDA

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 particular device when new information becomes available,57 but

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 satisfactory 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 distribution to patients. 62

Current research on ECT

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.64 Present
studies aim to discover ECT's mechanism of action, to
explore ways of modifying its administration so as to maximize its benefits while minimizing its risks, and to determine
for which patients and conditions ECT may be most beneficial.65

16

ECT

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 threshold, seizure duration, and clinical response.66 Since individuals 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 inevitable 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 conditions other than depression. One recent study identified
several other factors that were significantly related to
patients' responses to ECT.'

Unilateral versus bilateral ECT

A number of ECT 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 impairment, both short- and long-term. 2 There is still considerable
controversy, however, as to whether unilateral ECT is as

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 interelectrode 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 improvement; the APA task force on ECT recommended 25 seconds. 71 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
77
less effective than bilateral.
Since 75-80% of psychiatrists who prescribe ECT use bilateral ECT exclusively,78 some patients may be incurring unnecessary side effects if it is indeed true that unilateral ECT
confers the same therapeutic benefits as bilateral ECT without 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
79
unilateral treatments .

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 ECT

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

18

ECT

safety? ECT may appear punitive because of its superficial

resemblance to electrocution." Dramatic portrayals of ECT
administered without anesthesia and for punitive purposes,
82
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.8 6 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

fractures may still occur with ECT, citing a 1942 source and
failing to note that they are exceedingly rare with modified
ECT.8 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.

The NIMH consensus panel on ECT

In June 1985, the National Institute of Health and the
National Institute of Mental Health (NIMH) convened a
Consensus Development Conference on ECT. Experts testified 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 concluded 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 controversial. 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

20

ECT

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 disadvantages 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 nonexperts on the panel, giving a disproportionate amount of
time to disgruntled patients, being too cautious in its endorsement 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 recommendations 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
95
a less restrictive one.
Litigation based on ECT
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 liability 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

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, keep3 good records, and
0
refrain from promising a perfect result. 1
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.'4 That
doctrine enables a plaintiff to get his case before a jury
without testimony on the standard of care where the treatment results in an injury to a previously healthy organ not
directly involved in the treatment.

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, however, if he fails to establish a causal connection between the
08
violation of the standard of care and the alleged injury.
Expert testimony is generally required on the issue of causa9
tion in cases alleging physical injury caused by ECT."' Where
there is conflicting expert testimony on the issue oft 0causation, a court will usually allow a case to go to a jury. 1
Should a bone fracture occur during ECT, failure to administer 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
2
no paralyzing drug was used.1 The issue is unlikely to be
decided the same way today, however, in view of the standards announced by the APA task force on ECT in 1978.Y1
A physician may be held liable for giving ECT treatments
that are unnecessary, or excessive in number, or based on a
mistaken diagnosis. 1 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-

charging a patient prematurely after ECT treatments, if the

patient's ECT-induced confusion contributes to a subsequent
physical injury." 6

Claims based on lack of consent or lack of informed

consent
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,11 9 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 emergency situations.
The "therapeutic privilege" provides an exception to the
physician's duty to obtain informed consent when the process of giving the patient the necessary information may itself

24

ECT

prove harmful.' " A 1957 case applied the therapeutic privilege 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,"124 is one of a very small number of cases that
have actually applied the therapeutic privilege, and nay 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] conferences, 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"3 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 conditioning. Wyatt v. Hardin3 ' adopted more extensive proce-

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.'32 In a number of jurisdictions, the gaps in statutes and regulations pertaining to ECT
have been filled in by subsequent case law.
33 the Minnesota
In Price v. Sheppard,'
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 involuntarily 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 ECT 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 of Kinzer.3 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

26

ECT

that a hearing must be held before each series of ECT

treatments, and that authorization orders must contain reasonable 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 competent, and that a person who is legally competent may refuse
3
treatment that others deem to be in his best interests. 1
Where ECT is administered in a hospital, the duty to obtain
the patient's informed consent belongs to the physician, not
39
the hospital.

Immunity for ordering or administering ECT

Where the defendant is a state or V.A. hospital, or an
employee of either, governmental immunity will often be an

issue in the case. In Lojuk v. Quandt40a 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.
In Lojuk v. Johnson41 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 psychiatrist 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.

28

ECT

Consent to ECT in California

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 competent 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 establishment 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 treatment voluntarily is more questionable than that of other
patients. 141
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 conservatorship 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

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 treatment and intruding on the prerogatives of the medical
49
profession.

30

ECT

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,
1 In February 1986, the California Court of
pending a trial. 50
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 preempted 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,' 52 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 ECT

A bill to ban ECT 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 unsuccessful 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

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 of Loretta
Schuoler.157 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 authorization 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 committed 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 represented 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 treatment for the patient at the discretion of her treating psychiatrist 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-

32

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 considered 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 electroconvulsive 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 furthering 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," "competence," and "emergency," without defining them for the

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

Competency is a poorly defined concept that has different

meanings for different purposes) 66 The standard for competency 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 committability and competency to refuse treatment,'" but recently
there have been signs of a possible reversal of that trend.'6 9

Emergency

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.17 ' This is evident in the tendency to limit treatment authorization orders, noted above.

Intrusiveness

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 requirements 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

34

ECT

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 satisfactory 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 psychological therapies, typically rated lowest in intrusiveness by
courts and legal commentators, may in fact be highly intrusive, as for example when patients make incriminating statements in forensic interviews. 77 Legal formulations such as
the "least intrusive alternative" or the "least restrictive
alternative" are not readily applicable to the clinical situation, he says, and not always consistent with good medical
practice, because of the diversity of patients and their
treatment needs.

Legal and medical viewpoints contrasted

While a number of psychiatrists have criticized the legal
framework used by the courts for decision making with

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. Analogous terms have been suggested for the problems created by
judicial decisions in the right-to-refuse-treatment cases:
"juridicogenic '' 0 and "critogenic. '' j l Examples of juridicogenic 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 hearings before a nonconsenting patient may be treated. 3

Problems with the substituted judgment approach

Much of the criticism of the right-to-refuse-treatment decisions 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 substituted judgment mandate by either routinely ordering treatment, after lengthy hearings, or by deferring to the judgment
of psychiatrists.114
Gutheil notes a paradox inherent in the doctrine of substituted 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

36

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.

ECT and informed consent

The three essential elements of informed consent are a
competent patient, the communication of adequate information 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.
Competence
of the
candidate
for ECT

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.18 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 continuous 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

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 commitment 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 appear 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 opponent 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.'
What
information
should be
communicated
to the
patient?

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 ECT 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 permanent 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

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 1050%, 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 therapy 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.m2
Statutes in some states mandate specific information to be
given to patients advised to undergo ECT103 California
requires that patients be given some "information" about the
risks of ECT which a number of physicians regard as
erroneous, 24 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.

Coercion

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. 25 One study of
treatment decisions by the mentally ill revealed that most of

the patients advised to undergo ECT eventually agreed to do

so, despite initial objections."

Autonomy of 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 paternalism" may be desirable. 28 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.27 9

Effect of legal regulation of ECT

Legislative and judicial regulation of ECT may be doing
more harm than good, according to some observers.
Winslade et al.210 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 standards for ECT recommended by the APA task force report

40

ECT

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
2
Overregareas traditionally reserved to medical judgment.111
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
213
incurring the risk of a lawsuit.
California had some of the most restrictive regulations with
respect to ECT even before passage of the Berkeley ordinance,2"4 but new regulations passed in 1985 are even more
stringent, limiting the total number of treatments that patients 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 regulations 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 population 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

being reported, and a mortality rate of 0.2 deaths per 10,000

funds by
treatments. Most ECT was paid for with nonpublic
216
facilities.
white patients in nongovernmental
A similar discrepancy between the use of ECT in public
versus private patients has been observed in Alabama, where
Wyatt v. Hardin 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
218
access to all effective forms of treatment.)
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 effective. 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. 21 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

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 regulations may not be flexible enough to incorporate new information and provide for individualized treatment. "[B]y their
appearance of addressing a problem, such regulatory approaches 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 Psychiatric Therapies 214 (1984) [hereinafter cited
as APA Commission].

2.

J. Ottosson, "Use and Misuse of Electroconvulsive Treatment," 20

BiologicalPsychiatry 933 (1985).

3.

H. Sackeim, "Electrode Placement, Dosing Strategies, and Outcome," in Syllabus of 139th Annual Meeting 69 (APA 1986) [hereinafter cited as 1986 APA Meeting Syllabus].

4.

APA Commission, supra note 1, at 215.

5.

M. J. Mills, D. T. Pearsall, J. A. Yesavage & C. Salzman, "Electroconvulsive Therapy in Massachusetts," 141 Am. J. Psychiatry
534 (1984).

6.

"Several Well-Studied Options Now Available for Resistant

Depression," 14 Clinical Psychiatry News No. 9, at 6 (1986).

7.

"Consensus Conference: Electroconvulsive Therapy," 254 J.

A.M.A. 2103 (1985) [hereinafter cited as "Consensus Conference"].

8.

"Verdict on ECT Mixed in NIH Consensus Statement," 20 Psychiatric News No. 14, at 1 (1985).

9.

M. Fink, "ECT: For Whom Is Its Use Justified?", 4 J. Clinical

Psychopharmacology 303 (1984).

10.

Id.

11.

"ECT Rarely Used in Treating Mentally Ill Offenders," 19 Psychiatric News No. 3, at 6 (1984).

12.

Mills et al., supra note 5.

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 11.

16.

C. Holden, "A Guarded Endorsement for Shock Therapy," 228

Science 1510 (1985).

17.

S.Brakel, J. Parry & B. Weiner, The Mentally Disabled and the

Law 330 (3d ed. 1985).

18.

American PsychiatricAssociation Task Force Report 14: Electroconvulsive Therapy (1978) [hereinafter cited as Task Force Report].

19.

J. Smith, MedicalMalpractice: PsychiatricCare 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

Foundationsand ClinicalApplications 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; Contraindications Are Unusual," 13 Clinical Psychiatry 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 Psychiatry News No. 5, at 24 (1984).

27.

APA Commission, supra note 1, at 233.

28.

J. Langone, "A New Assault on Shock Therapy," Discover, January 1983, at 54.

29.

"Consensus Conference," supra note 7.

30.

I. F. Small, V. Milstein, M. J. Miller, F. NV. Malloy & J. G. Smal!,

"Electroconvulsive Treatment-Indications, Benefits, and Limitations," 40 Am. J. Psychotherapy 343, 354 (1986).

31.

C. Von Valkenburg & P. Clayton, "Electroconvulsive Therapy and

Schizophrenia," 20 Biological Psychiatry 699 (1985).

44

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 Psychotic Self-Injurious Behavior in a Patient With Severe Mental
Retardation," 139 Am. J. Psychiatry 1355 (1982).

35.

Holden, supra note 16.

36.

Ottosson, supra note 2, at 942-43.

37.

Crowe, supra note 22; APA Commission, supra note 1, at 217.

38.

Varghese & Singh, supra note 20.

39.

Sobel, "Electroshock Treatment: Safer and Quicker

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," supra note 7.

50.

P. R. Breggin, Electroshock: Its Brain-DisablingEffects (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 Injury Is Not Evident After 1,250 ECT Sessions," 14 Clinical Psychiatry News No. 4, at 31 (1986).

51.

Small et al., supra note 30, at 354.

Than

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 committee 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 Requested," 135 Medical Devices Rep. (CCH) 3 (September 24,
1986) [hereinafter cited as "CT Scan Study"].

55.

Abrams, supra note 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 PsychiatricNews No. 23, at 1 (1979).

61.

C. Nadelson, Letter, "Consensus on Electroconvulsive Therapy,"

255 J. A.M.A. 2023 (1986).
"Statement on Electroconvulsive Therapy Requested for Patients,"
119 Med. Devices Rep. (CCH) 1 (February 18, 1985).

62.
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 27883 (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, Convulsive Therapy, solely devoted to that subject.

66.

See, e.g., Sackeim, supra note 3.

67.

"ECT Dosage Factors Critical to Response," 13 Clinical Psychiatry 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 APA Meeting
Syllabus, supra note 3, at 69.

46

ECT

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, "Comparing Bilateral to Unilateral Electroconvulsive Therapy in a Randomized Study With EEG Monitoring," 42 Arch. Gen. Psychiatry
1087 (1985); R. Weiner, "Unilateral Versus Bilateral ECT: Minimizing 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. Psychiatry 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., supra note 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, "Unilateral ECT: When Doesn't It Work?", in 1986 APA Meeting Syllabus, supra note 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
Psychiatry 506 (1985).

76.

Task Force Report, supra note 18.

77.

Horne et al., supra note 72.

78.

Id.

79.

Task ForceReport, supra note 18.

80.

V. Milstein, J. G. Small & I. F. Small, "Diagnostic Indications for

Bilateral ECT," in 1986 APA Meeting Syllabus, supra note 3,
at 68.

81.

Sackeim, supra note 52.

82.

K. Kesey, One Flew Over the Cuckoo's Nest (1964).

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 Attitudes," 46 J. Clinical Psychiatry 262 (1985).
See J. Tenenbaum, "ECT Regulation Reconsidered," 7 Mental
Disability L. Rep. 148 (1983).

86.
87.

R. Reisner, Law and the Mental Health System 456 (1985).

88.

M. McCafferty & S. Meyer, Medical Malpractice: Bases of Liability 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, supra note 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 Electroconvulsive Therapy," 255 J. A.M.A. 2023 (1986); G. Peterson,
Letters, "MD Comments on ECT Panel," Am. Med. News, November 15, 1985, at 6, "Evaluates ECT Conference," 13 Clinical
PsychiatryNews No. 10, at 5 (1985).

95.

Nadelson, supra note 94.

96.

S. Brakel et al., supra note 17, at 580.

97.

L. Lovares, Claims Manager for American Psychiatric Association'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, Clinical Psychiatry and the Law 226 (1987).

101.

H. W. Freishtat, "Electroconvulsive Therapy: No Ban in Berkeley," 5 J. Clinical Psychopharmacology52 (1985).

102.

I. N. Perr, "Liability and Electroshock Therapy," 25 J. Forensic

Sciences 508 (1980).

48

ECT

103.

Id.

104.

Farber v. Olkon, 254 P2d 520 (Cal. 1953); Mitchell v. Robinson,

334 S.W.2d 11 (Mo. 1960); Collins v. Hand, 246 A.2d 398 (Pa.
1968). Farber reasoned that res ipsa loquitur was inapplicable because 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 P2d 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 experienced pain as a result of prior ECT treatments before administering 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).

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.

117.

118.

See F. A. Rozovsky, Consent to Treatment: A Practical Guide 5865 (1984).

119.

Maben v. Rankin, 55 Cal. 2d 139, 10 Cal. Rptr. 353, 358 P.2d 681
(Cal. 1961).

120.

Mitchell v. Robinson, supra note 104. In both Mitchell and

Maben (supra note 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, supra note 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 I Mental & Physical Disability L. Rep., July!
August 1976, at 55.

132.

J. Parry, "Summary, Analysis, and Commentary: Legal Parameters of Informed Consent Applied to Electroconvulsive Therapy,"
9 Mental & PhysicalDisability 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.

50

ECT

140.

706 E2d 1456 (7th Cir. 1983), cert. denied, 106 S. Ct. 822 (1986).
The Court declined to rule on what procedures are constitutionally required before ECT can be given to a nonconsenting patient,
saying only that at a minimum the "professional judgment" standard 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

Science News 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 Clinical 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.

160.

Id. at 1107.

161.

Id. at 1108.

162.

Id. at 1109.

163.

Id. at 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 Electroconvulsive 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, supra note 100, at 227.

168.

See T. Gutheil, "The Right to Refuse Treatment: Paradox, Pendulum and the Quality of Care," 4 Behavioral Sciences & L. 265,
268 (1986). Stone has called "Kafkaesque" the notion that a person 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 (198485).

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).
"State Laws Cloud Definition of Psychiatric Emergency," 21 PsychiatricNews No. 21, at 1 (1986).

170.
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,
supra note 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 S.
Cal. L. Rev. 237, 256 n.51 (1974).

174.

R. Reisner, supra note 87, at 461.

52

ECT

175.

M. H. Shapiro & R. G. Spece, Bioethics and Law 154 (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
(1986).

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. GeriatricPsychiatry 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 Approach: 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 Medicine 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.

198.

F. A. Rozovsky, supra note 118, at 43-49.

199.

See C. Salzman, "ECT and Ethical Psychiatry," 134 Am. J. Psychiatry 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 BehavioralSciences & 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, supra note 188.

209.

"Consensus Conference," supra note 7.

210.

Winslade et al., supra note 164.

211.

Id.at 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. Psychiatry 661 (1985).

218.

Id.

219.

Mills et al., supra note 5.

54

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).