70 Misc. 2d 944 | N.Y. Sup. Ct. | 1972
This is an application by the New York City Health and Hospitals Corporation, and the associate director of Bellevue Hospital, for an order authorizing the psychiatric staff of Bellevue Hospital to administer electroshock therapy to a patient, Paula Stein, the respondent herein. Mrs. Stein has objected to this treatment, and refuses to give her consent to it.
This court, on July 11, 1972, after a hearing conducted at Bellevue Hospital, concluded that respondent was mentally ill; accordingly this court issued an order authorizing the retention of the patient for care and treatment (Mental Hygiene Law, § 72). Therefore, the psychiatric staff at Bellevue Hospital, and any other hospital to which the patient may be transferred, is now free to carry out whatever course of treatment they deem advisable, including electroshock therapy, regardless of the patient’s consent and without the necessity of prior judicial approval.
Petitioners are reluctant to proceed with the electroshock therapy on the consent of the mother only, and assert that consent of the patient herself should be dispensed with herein, on the ground that she is incompetent to make a reasoned decision, and that the court should authorize petitioners to administer such electroshock therapy despite the patient’s nonconsent.
Electroshock therapy is a technique by which a current of from 70 to 130 volts of electricity is permitted to flow through the patient’s brain, causing a convulsion equivalent to an epileptic seizure. This form of treatment is the subject of great controversy within the psychiatric profession, both as to its efficacy, and as to its dangers. It has been known to aid significantly in the cure of the mentally ill, as well as to cause such other ailments 'as pulmonary edema, bone fractures, and, in exceedingly rare instances, even death.
In a case such as this, where the determination may be critical to the future health and life of a patient suffering from mental disorder, a court, not blessed with omniscience, must tread cautiously. It must consider both the benefits to be derived if its decision is correct, and also the costs of error. It must make what the late Mr. Justice Hablan described as “ a very fundamenal assessment of the comparative social [and in this case personal] costs of erroneous factual determinations ” (Matter of Winship, 397 U. S. 358, 370 [1970] [concurring opn.]). On the one hand is the possibility of harm, conceivably even fatal harm, serving no useful purpose, if the court erroneously permits
The choice is hardly a simple one. But since obviously the greatest suffering from an incorrect decision will be borne by respondent herself, the court must permit her refusal to be determinative unless the evidence is sufficient to convince the court that she lacks the mental capacity to knowingly consent or withhold her consent.
The evidence adduced at the hearing on this application has left the issue far from conclusively resolved. Eminent and learned psychiatric specialists have testified before the court — both as to respondent’s capacity to know and understand the nature and extent of her illness and the consequences of her refusal to consent to electroshock treatment, as well as to the desirability of electroshock treatment in her circumstances — and have reached different conclusions. All of the witnesses are agreed that respondent suffers from schizophrenia which is chronic, probably undifferentiated, with tendencies for acute flare-ups. And almost all are agreed that she continues to require psychiatric treatment within a structured environment. But there is a sharp dispute as to what form that treatment should take.
The doctors produced by petitioner testified that, since respondent did not respond to conventional psychopharmacological treatment, and in view of her marked improvement after two electroshock treatments, electroshock treatment is the treatment of choice for her condition; and that respondent ‘ ‘ is not now nor was she during any period of her hospitalization able to make a rational judgment about any treatment she might require. ’ ’
On the other hand, the independent psychiatrists permitted by this court to examine respondent (Judiciary Law, § 35, subd. 3) have concluded that “ she has the mental competence to consent or withhold consent for her treatment and to participate with her physicians in the choice of appropriate treatment modalities. ’ ’ Moreover, they conclude, ‘ ‘ electro-convulsive therapy is not clinically indicated ” — urging instead the use of drugs such as phenothiazines.
From all of the evidence before the court, as well as from its own observations of respondent, the court has concluded that she is sufficiently mentally ill to require further retention. However, that determination does not imply that she lacks the men
The application is accordingly denied.