New York legislative analysis – bills introduced by Marty Luster

While the bills introduced in New York by Marty Luster have some merit, there are some real problems as well. If you can take the time, particularly if you are a New York voter, please voice your concerns to Marty Luster’s office and let them know what you think.

Following is an analysis of the bills by Tina Minkowitz:

Hi, some of you may have seen the NYAPRS email from Harvey today urging everyone to call assembly representatives & urge passage of the electroshock bills.

I want to just sound a note of caution:

First, please familiar yourselves with the bills & decide for yourself whether or not they are worth supporting. some activists including the leader of CTIP, an organization of electroshock survivors (Linda andre) think that 9082 is overall capable of doing more harm than good, especially since the advisory council is now mandated to come up with a consent form in addition to its other tasks. if this bill passes, activists will have to work very hard – that means us – to get seats on the advisory council and to neutralize impact of shock shrinks especially those who have financial interest in the machines. we need to start working/thinking/preparing on this now. – and, if you are calling your representatives, you can tell them your opinion – if you don’t like 9082, tell them so.

9081 In my opinion is still better than nothing but nowhere near a glowing transformation. main advances are requirement of capacity determination prior to seeking informed consent (but no explicit requirement that they can’t talk to you at all about shock before doing the capacity evaluation) & that if you have a “valid advance directive” they cannot even take you to court to force shock, the advance directive controls.

Problem with definition of advance directive inserted just a couple of days ago: definition refers to article 29-c of public health law, which may mean that only the health care proxy type of advance directive will be respected here. i called mike seereiter of luster’s office yesterday & luster apparently has decided to ignore this problem if they are moving to the floor vote now. that is too bad & maybe we can have some impact afterwards, but if you have a friendly relationship with representative or senator you can bring this up as well.

Again, please make your own decision about 9081 & remember that all of what looks “good” in the part about the court determination if they want to do forced shock, is already the law under Rivers v. Katz – & that the “informed consent” provisions are weak.

9083 is potentially useful reporting, not perfect, again check it out for yourself. overall i think this is worth supporting.

9084 has weaknesses too – primarily that it’s targeted at prohibiting shock in doctors offices rather than looking at whether the state hospitals are prohibited because they don’t have emergency medical facilities on site.

So – please don’t take NYAPRS’s word for this, or Marty Luster’s. Luster is doing a worthwhile effort & there are some good things here but do your own careful evaluations & be prepared to help plan for the next phase.

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Hi all,

Not sure what has been put out on this list yet, I understand there is an email circulating that calls the bills “pro-shock” & there is also the daily request from NYAPRS to support all the bills.

Look on NY assembly website, http://www.assembly.state.ny.us – go to bill search & type in 9081, 9082, 9083 & 9084 to look at the bills – the first page that comes up for each bill will be history of actions & justification, you have to click on “see bill text” in upper left hand corner to see the actual bill.

Would like to offer my opinion on it, in case anybody is interested – which is basically that with the exception of 9082, the bills are better than what we have now & offer some minimal protections.

The NY bills do not go as far as Texas in creating meaningful protections for informed consent. in fact that is an understatement, the informed consent provisions are among the weakest components of the bills. (but, on forced shock & reporting there are a few meaningful provisions – see below.) there is nothing required by the legislation to be disclosed – unlike the Texas legislation, which spells out what has to be included in the informed consent disclosures – particularly, the possibility of irrevocable memory loss & the possibility of death. NY’s bills refer the content of this disclosure to an advisory council (disclosure of “benefits”, “adverse effects” & “less intrusive alternatives” is required in general terms by 9081, & 9082 says that the advisory council is to draft this information) – & the advisory council will be appointed & begin work within 90 days of the bill being signed into law. while people who have experienced shock are required to be represented on the council, the council has 15 people on it & there is no requirement of any proportion of shock survivors to psychiatrists, & no requirement of balance of views either in composition of the council or in what they are required to consider or produce.

The bills also require a facility to give people a list of resources, & access to those resources, to learn more information about electroshock. the content of this list is also referred to the advisory council.

(&, Texas also prohibits shock against minors – which NY’s bills do not – instead this issue too is referred to the advisory council.)

Linda Andre of Committee for Truth in Psychiatry, the organization of shock survivors that people join by endorsing a proposed consent form, opposes the advisory council bill, 9082 – because it is unlikely that advocates of “truth” in informed consent about shock will get their voices heard. some advocates i have talked to think it is possible to get something better than what the Office of Mental Health would do otherwise, from the Advisory Council. personally, i am particularly concerned that the Advisory Council will give a seal of approval to bad disclosure information – this was added to their responsibilities late in the game, and it is the single most dangerous thing they can do.

What the bills do that is potentially protective is the following:

9081:
1) Establish a new protocol whereby the psychiatric facility does a capacity evaluation before they seek informed consent for shock. this fits neatly within NY’s existing law, which emphasizes the issue of “capacity” to refuse forced “treatment”. (in fact, don’t be deceived by the appearance of lots of legal language about burden of proof in the part of 9081 that talks about the court hearing on forced electroshock, this is already NY law – why they put it in is anybody’s guess, but my suspicion is to make it look like they are doing more than they really are.)

What this will accomplish seems to me like an extension of what it accomplishes to have the psychiatrists seek a court order for forced shock (or drugs) instead of just going ahead & doing it – it puts up obstacles & makes them think twice about it. if this is used honestly (a big if) the psychiatrists will have to take the gamble that someone will refuse shock if they are found competent, or else have to go to court on everybody if they find them incompetent.

2) The protocol has some nice features in that an independent psychologist (not an employee of the facility) has to evaluate capacity as well as the treating psychiatrist. MHLS & the person involved have to be notified of a proposed determination of lack of capacity & have the opportunity for input before the clinical director of the institution makes the final determination of lack of capacity. how the independent psychologists will be chosen in every case is not addressed by the law, which is a weakness in terms of assuring actual independence.

3) If a person has a “valid advance directive” then even if they are incompetent, the facility cannot take them to court to force shock. this is a big thing & will be the best way to refuse shock in NY if the bill passes. the most recent addition to the bill, however, is a provision defining “valid advance directive” with reference to the law governing health care proxies. so, to be safest, people who want to refuse shock should execute a health care proxy in accordance with all the requirements of that law – Public Health law Article 29-c. (a health care proxy names an agent to make “health care” decisions on your behalf if you are deemed incompetent & can also give specific instructions that the agent has to follow – e.g., no consent to electroshock; the other kind of advance directive only gives instructions.)

4) Some informed consent protections contained in 9081:

If a person who has been determined competent refuses, the facility cannot further attempt to administer shock. Seems to mean, leave the person alone if they say no.

Having access to resources for information will be good only if the information includes people who will tell you the truth about the dangers of shock.

There is also a five-day period to consider whether to give consent. It’s not clear to me what is supposed to happen when the five days are up, since shock cannot be done to a person who is competent without consent. But it does seem to take pressure off to give an immediate response.

9083:
Requires reporting of demographic information such as age, sex, race, diagnosis; source of payment, type of electroshock device used; and certain injuries or damage to health associated with electroshock, including autopsy findings if death occurs within 14 days after electroshock, or if death occurs as a result of certain health problems occurring within 14 days after electroshock.

There are problems with this; no reporting of long-term memory loss, only memory loss immediately after electroshock; and the reporting of deaths will likely be underestimated in the case of outpatient shock if no follow-up is required to ascertain condition.

Also, the senate bill just introduced as counterpart legislation (s-7371) leaves out requirement to report demographic information of age, sex & race. on this, i think it’s important to support assembly version to know how shock is being used (on whom) & especially whether it’s being used disproportionately. would have been better to have a breakdown for demographic categories for forced shock also & information to indicate whether non-court coercion was used such as threat of transfer.

9084:
Requires that facilities that do shock should be “readily accessible” to emergency medical resources – problem is that readily accessible is not defined. How far away? Is a state hospital which doesn’t have on-site emergency medical resources in compliance? I have heard this is supposed to be addressing shock in doctor’s offices – not sure how they will delineate.

I want to say something about the process of working on this too. It has been hard to say the least for advocates to get a fair hearing with the decision-makers. Linda Andre particularly has been disrespected and perhaps deliberately misunderstood as to her actual positions. she, and CTIP in general, have been careful to not take the position that shock should be entirely banned – they say it is a procedure that is inherently dangerous & people who are considering it have the right to know the extent of the danger. when several of us went to a meeting with Marty Luster and legislative staff, it was uncomfortably like pulling teeth; Luster was courteous and gave us some of what we wanted – but one of the legislative staff continually tried to filibuster and derail us by lecturing us on the political process. and one single, one-hour meeting was not by far enough to get at all the issues. yet, as far as i know, we were the only independent, grass roots activists who met with Luster on this issue (at this stage of the process at least). his staff is in daily contact with NYAPRS, an organization which primarily represents providers but is wrongly accepted in Albany as speaking for people subjected to psychiatry as well. they have also been somewhat respectful and receptive to lawyers who did not present themselves as grass roots activists. the lawyers made some very important contributions, but this does not substitute for fully hearing out the people whose interests you say you are protecting.

Finally, you will probably be interested to know that there is grass roots mobilization to tell people not to support 9082 but to support the other bills (conceivably also to raise questions & concerns about things you don’t like or would wish made stronger – but be aware that sometimes this can backfire, since they are at the point of wanting to get something passed & might make things worse if pushed to change anything.)

Hope this is interesting &/or informative to you, just occurred to me that while we are in the midst of it here it would be worthwhile to get the word out & hope that it will help other people or just get support & understanding for what is really going on.

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