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Massachusetts stumbles in opposition of shock therapy

State officials say they have a duty to stop the continued use of electric shocks on patients with developmental disabilities.

BOSTON (CN) — The only mental institution in the world that uses electric shocks to discipline developmentally disabled patients — a practice condemned by the United Nations as torture — got a surprisingly sympathetic hearing Wednesday from the Supreme Judicial Court of Massachusetts.

“A lot of these patients were on other things and they didn’t work,” Justice Scott Kafker told Assistant Attorney General Timothy Casey, summarizing the argument in defense of the practice that the state wants to shut down.

“Some of these patients testified” in favor of the shock treatment, Kafker noted. “This place is alone, you’re right, but it also has a track record … that has been successful. What do we do with that? Some of these patients came from the best places in the country” after not being able to be helped anywhere else.

Founded in 1971, the Judge Rotenberg Center in Canton, Massachusetts, has been using electroshock “aversive therapy” for decades. The shocks are intended to deter seriously destructive behavior, but the state claims they are also administered sometimes for minor infractions such as spilling drinks or incontinence.

The shock therapy was approved in a 1987 consent decree, which the state now seeks to end, arguing that the standard of care has changed and that state regulators outlawed the practice generally in 2011.

Both the center and its founder, Matthew Israel, have a checkered history. In the early 1980s, Israel was barred from the premises of one of his facilities in California after a state investigation found that residents were beaten, humiliated, and not given proper food or care. At the facility in Canton, after two residents were shocked a total of 106 times based on false reports of misconduct, Israel was indicted in 2011 for ordering videotapes of the incident destroyed. The case was resolved when Israel agreed to step down.

But the state Department of Developmental Services doesn’t have a perfect track record either. A probate judge found that the department adopted its 2011 regulation in bad faith after having doctored reports about the center and misrepresented conditions there.

Casey argued that maintaining the consent decree in the face of the 2011 regulation violated the separation-of-powers doctrine. But “that can’t be right,” Kafker flatly replied. “That regulation was based on doctored evidence. That has to be a problem for you.” Kafker twice called this argument “weak.”

Casey’s other claim was that the probate judge, Katherine Field, abused her discretion by finding that the shocks were consistent with the medical standard of care. On this issue, Kafker told Casey, “you have a very uphill battle.”

Judge Field “makes direct findings that there isn’t a scientific consensus to get rid of this,” Kafker said. “How do we find that to be an error of law? She’s relying on the testimony of three psychiatrists that, in extreme situations where nothing else works,” the shocks are appropriate.

Justice Dalila Wendlandt pressed Casey: “What is the error?”

At issue are about 53 patients who, according to the center’s brief, “exhibit severe behaviors such as gouging their eyes; repeatedly banging their heads causing brain damage; chewing off body parts; pulling out teeth; and violently punching, kicking, and biting others.”

Casey admitted that “it’s impossible to prove that we could more effectively treat these patients” with other methods. He said the court should nevertheless find that “there was a change of circumstances and apply the standard used by the average practitioner.”

“But these aren’t average patients,” Wendlandt objected.

“Every other practitioner in the world treats without electric shock,” Casey said.

“But now you’re arguing the facts,” Wendlandt replied, “and on that you lose.”

The center’s lawyer, Michael Flammia of Eckert Seamans in Boston, said “the stakes couldn’t be higher — these are clients who may try to kill themselves. We’re talking about life and death.”

Flammia said it’s not surprising that there’s only one facility that uses the electroshock technique because there are only a few dozen patients in the country for whom it’s appropriate, and they typically get sent to the center after no one else is able to handle them. He said some patients had done so well that they had been returned to the community, whereas the state’s alternative was to put them in padded windowless jail cells and pump them full of antipsychotic medications with serious side effects.

Max Stern of Todd & Weld in Boston argued on behalf of patients’ families who want the shock treatments to continue. He said drug therapies had been “a big disappointment.”

The state claims the shocks are almost unbearably painful and are otherwise prohibited as inhumane not only for humans but for research animals such as rats and mice. Its position was backed by amicus briefs from the American Academy of Pediatrics and a number of disability rights organizations.

But Stern described the shocks as “2 seconds of transient pain” with no lasting harm. He said there might have been cases where the shocks were inappropriately administered, but the state suggested this by “cherry-picking among thousands of videos” without context, and in any event a staff error didn’t prove that the technique itself lacked value.

At one point Kafker offered Casey an out, suggesting that, since the hearing in this case was held in 2015, the justices could remand the case to the probate court to see if the standard of care had changed in the intervening eight years. But Casey declined the offer, saying that the state had already made the best case it could.

Kafker described the case as “heart-wrenching.” And Justice David Lowy commented: “I feel like these families … should have whatever hope they can have if it falls within a standard of care, even if it’s not the highest standard of care.”

Categories / Appeals, Civil Rights, Health

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