Kathleen Garrett forced shock hearing transcript

These transcripts are online with the full permission of Kathleen Garrett and her son, Steve Vance. They provided these documents to me with the expectation that I would make them public. There are numerous typos (including getting Mrs. Garrett’s name wrong) – I have left them as is.

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IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
STATE OF MISSOURI

IN THE INTEREST OF
KATHERINE GARRETT,
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Cause No.300536-P-CC
Hon. Dennis Schaumann

MAY 16, 2000

MR. TIMOTHY FINNEGAN
Assistant Circuit Attorney
1320 Market Street
St. Louis, MO 63103 on behalf of the State of Missouri;

MR. BLAIR K. DRAZIK
Attorney at Law on behalf of the Respondent.

LYNN M. HOOD, CCR#194
OFFICIAL COURT REPORTER
CITY OF ST. LOUIS CIRCUIT COURT
TWENTY-SECOND JUDICIAL CIRCUIT

THE COURT: This is cause number 300536-P-CC, a matter in the interest of Katherine Garrett. Before the Court is a petition for a twenty-one day involuntary detention and treatment, and further a petition for court ordered electroconvulsive therapy.

The Petitioner is South Pointe Hospital here represented by Mr. Timothy Finnegan, Assistant Circuit Attorney. Let the record reflect that the respondent, Ms. Katherine Garrett, is present in person and at this point is represented by Mr. Blair K. Drazik, Attorney at Law. Previously she was — Ms. Garrett was represented by Ms. Pricilla Price by court appointed attorney by this Court, who has since the entry of Mr. Drazik, she will withdraw as attorney for Ms. Garrett.

Is the Petitioner ready to proceed on these petitions?

MR. FINNEGAN: Petitioner is ready to proceed, Your Honor.

THE COURT: Mr. Drazik, are you ready to proceed on behalf of Ms. Garrett?

MR. DRAZIK: Yes, Your Honor, but previous to the hearing of the evidence, we would like to move to dismiss the petition on the grounds that if the facts therein are proven to be true, it would constitute a violation of the due process clause of the 14th Amendment
of the United States Constitution in that it would allow the State to determine the best medical treatment for this lady, thereby depriving her of the right to bodily self determination. And so for that reason, we believe even if the ground as proven in the petition are proved to be true, that even in that event, it would be an unconstitutional deprivation of her right to liberty and unconstitutional intrusion of the due process clause to do the electroconvulsive therapy.

THE COURT: Your motion goes to the petition for a court ordered electroconvulsive therapy?

MR. DRAZIK: Correct. We — our constitutional argument does not go to the commitment portion of the petition. Only to the electroshock therapy, in that deprives her of her right to bodily self determination as secured by the 14th Amendment of the United States Constitution, since it’s the State who is attempting to take that from her.

THE COURT: Okay. Thank you, Mr. Drazik. Before we begin with the hearing – -

MR. DRAZIK: Your Honor, for the record further, even if the petition does state a claim, we would ask that the Court construe the language of the statute and the law if it could be done so that’s consistent with the due process as possible by making the least intrusion as possible into the right to – -

THE COURT- Your motion to dismiss is overruled. Your second request or motion will be considered by the Court. Anything further before we begin?

MR. DRAZIK: No, Your Honor.

THE COURT: Mr. Finnegan, you may call your first witness.

MR. FINNEGAN: Thank you, Your Honor. Petitioner would call Dr. Mofsen.

DOCTOR RICK MOFSEN
being duly sworn, testified as follows:

DIRECT EXAMINATION BY MR. FINNEGAN:

THE COURT: You may inquire, Mr. Finnegan.

MR. FINNEGAN: Thank you, Your Honor.

Q Doctor, tell the Court your name.

A Doctor Rick Mofsen.

Q What’s your occupation?

A Physician.

Q Do you have a specialty?

A Yes.

Q What is that?

A Psychiatry.

Q Are you licensed to practice medicine in the State of Missouri?

A Yes, I am.

Q How long have you been practicing in the field of psychiatry?

A Over eleven years.

Q Have you previously appeared in this Court as an expert witness?

A Yes, I have.

Q Can you estimate for the Court on how many occasions?

A Twenty-five or thirty.

Q And when you say in court, in the Probate Division of this St. Louis City Court?

A Yes.

Q Where are you employed?

A I’m self-employed.

Q Do you have admitting privileges at South Pointe Hospital?

A Yes.

Q And this case arises out of an admission at South Pointe Hospital?

A Yes.

MR. FINNEGAN: Your Honor, I’d like to offer the Doctor as an expert witness in the field of psychiatry.

THE COURT: Any objection, Mr. Drazik?

MR. DRAZIK: No, Your Honor. I think he qualifies. I’m not admitting any weight of his testimony, but I think his qualifications that the Court can weigh as it sees fit.

THE COURT: Thank you. You may proceed, Mr. Finnegan.

Q (by Mr. Finnegan) Do you know the respondent, Kathleen Garrett?

A Yes, I do.

Q How do you know her?

A I’ve treated her for several years now.

Q As part of her treatment, do you have a diagnosis of any condition she might have?

A Yes.

Q Specifically does she suffer from any psychiatric illness?

A Yes.

Q What is that?

A Major depressive episodes with psychotic features.

Q What about her history and her presentation on this admission is consistent, in your judgment, with the disease you just mentioned?

A Well, she presented in a very depressed state, very psycho-motor retarded, speaking very slowly. She had suicidal ideation and also she was very delusional.

Q Talking about a couple of aspects of that, you said she had suicidal ideation. What specifically about her, what she said to you or what you observed, brings you to that conclusion?

A Well, she said many times to me that she wanted to end her life.

Q Okay. You also talked about some delusional aspects of the illness. What led you to that conclusion?

A The delusions that she has are primarily of a symptomatic nature. She’s very focused on bodily problems, issues with her mouth. If there’s a little problem, for example, she ruminates about that excessively. Constipation for many, many days. She would continue to ask the same questions over and over again, ten, twenty, thirty times an hour, concerning specific treatments concerning that. And concerns that she had very classic symptomatic types of delusions.

Q Now, in terms of her general health other than or in addition to the psychiatric illness you’ve diagnosed, what is her health like otherwise?

A Well, she is basically in fairly good health right now. However, she does have some significant medical problems. She does have hypertension. She also has mild chronic obstructive pulmonary disease. She had breast cancer and has had surgery for that. And I think that’s the major issues.

Q Is she recently currently being treated or recently treated for the breast cancer?

A Yes.

Q And if you know, how recently?

A I think she had chemotherapy treatment within the past month. I’m not exactly sure when the last time was.

Q Do you know either from discussions with her or information from other doctors that the nature and seriousness of the cancer is currently?

A Well, she has breast cancer so it’s serious and she’s undergoing treatment. So it’s always an issue.

Q Has medicine been prescribed for her psychiatric condition?

A Yes.

Q What medication?

A Well, she’s currently on several different medications. She’s on an anti-depressant called Paxil, anti-anxiety medication Adavan. She’s on Remaran (sic), another anti-depressent. And she’s on Respidal, an anti-psychotic.

Q Okay. Addressing first, just to keep things from becoming too complex, the issues on the twenty-one day detention, do you believe to a reasonable degree of medical certainty that in-patient hospitalization, and specifically at your facility, is the appropriate, least restrictive environment for the care of Ms.-Garrett at the present time?

A Yes.

Q Why is that? Why wouldn’t she be appropriate as an out- patient?

A She’s still, even this morning, she expressed concern about her ability to live at home alone. She told me she was still quite nervous about going home. And she was not quite sure whether she would be able to do well there.

Q What specific concerns do those statements raise in your mind?

A Well, I still believe that she was a suicidal risk. And even though over the past few days she has in fact had fewer suicidal thoughts, I still judge her as a significant risk.

Q So is some part of your concern related to your interpretation of the concerns she has related to this possibility of suicide?

A Yes.

Q Do you believe that her condition and these thoughts outside of your facility, as her condition is now, would represent a likelihood of serious harm to her?

A Yes.

Q If she were to be retained by the Court, would your facility accept responsibility for caring for her during the twenty-one days?

A Yes.

Q And moving into the second aspect, what would your treatment plan be in her case?

A The treatment plan would be electroconvulsive therapy.

Q Let’s talk about that. Do you believe that the medication that she’s currently taking have significantly improved her condition?

A No.

Q Why? What do you think they need to do that they haven’t done?

A Well, number one, she’s still quite depressed and anxious. And secondly, she still does have the delusional component of the illness.

Q Do you believe that there is a strong likelihood that electroconvulsive therapy would significantly improve her condition for a substantial period of time?

A Yes.
Q Why is that?

A Well, with her particular diagnosis of delusional depression, the literature over the years has been quite clear. This is not only the most effective treatment for her particular diagnosis, but also is considered in the field of psychiatry as the treatment of first use for this particular diagnosis.

As you know, ECT in some quarters does not have the best representation. But despite that, psychiatrists in general agree that for depression with psychotic features this is the treatment, the first line treatment of choice.

Q If, hypothetically, we weren’t in the State of Missouri, for example, somewhere else, is it your medical opinion that ECT would have been the first thing you would have tried rather than the last?

A Correct.

Q Since we are here in Missouri though, you’re basing it on the idea that these other medical treatments are not likely to significantly improve her condition?

A I think they’re likely to improve her condition. I think that the medications have improved her condition to a certain extent. I do not believe that her medications will in fact put her in remission, which I think is necessary before she would be safe to go home.
Q And specifically, is it the aspect of suicidality that concerns you?

A Well, certainly that’s a concern as far as the safety issue. But the quality of life issue of course is of great concern too. I think she continues to be very, very anxious and nervous, very depressed and not functioning well. And I have had the opportunity to treat her over the years and I have seen her in much better condition. And I think she should be able to obtain previous levels of efficacy.

Q And in your medical opinion, is there a substantial strong likelihood that the medications would achieve this, even if given a much longer course?

A I don’t believe they would.

Q Okay. What course of ECT are you asking the Court for, over what period of time?

A I’m asking for a maximum of twelve treatments over a four week period.

Q Okay. Do you believe that the respondent will suffer any serious loss of function as a result of these treatments?

A No, I don’t. In fact, I think compared to how she is right now, I would expect improvement in function.

Q Do you know whether she has received ECT in the past?
A Yes, she has.

Q And do you know when the most recent course of treatment was?

A I’m not certain how long ago the last treatment was.

Q She has not received ECT while under your care?

A I treated her at another hospital in the past on several occasions and I don’t recall whether we gave her ECT. I don’t have those medical records available.

Q Would it be accurate if you did, it was voluntary as opposed to having to go through a hearing of this type?

A I don’t recall coming to court before.

Q And just a phrase in the language of the statute, is there any less drastic form of therapy in your medical opinion as likely to result in significant improvement in her condition, assuming ECT is -

A I have to first comment I don’t think it’s drastic, and next, in many ways, it may be safer than the medication she’s taking. But I do not believe there’s anything less drastic.

Q Specifically is there any pharmacological therapy likely to produce a significant improvement in her condition?

A I don’t believe so.
MR. FINNEGAN: That’s all I have, Your Honor.

THE COURT: Mr. Drazik?

MR. DRAZIK: Thank you, Your Honor.

CROSS-EXAMINATION BY MR. DRAZIK:

Q Is you were to release Kathleen Garrett today, what are the probabilities that she would commit suicide?

A I think they’re substantial.

Q Would you give me a number?

A No, I cannot.

Q Can you give me a range of numbers?

A Greater than fifty percent, over a period of time.

Q Over what period of time?

A Over a month.

Q And if she remains on the medication, would that probability decrease?

A It’s very difficult to say. I would say that it’s possible over the next several weeks that there may be some slight additional improvement with the medication. But I would have to say slight.

Q What is the probability that electro — if you gave her electroshock therapy, would you describe specifically what you would expect to happen?

A I would expect — are you talking about results or -

Q Results?

A With the results I would expect a drastic reduction in the depressive features, a drastic reduction in the anxiety, and elimination of this symptomatic delusions.

Q What are the side affects of ECT?

A Side affects of ECT are dependent upon how the treatment is administered. But in general, short term memory loss. That’s not uncommon. That probably other than some mild headache on the day of treatment are the two most commonly experienced side affects.

Q Have you had people lose memory as a long standing event?

A Long standing?

Q In other words, loss of memory of their childhood or loss of memory of young adulthood?

A No, I never had that happen.

Q Have you known of anyone else that’s had that happen?

A I’ve heard anecdotal stories, but have not spoken to anyone directly who has experienced that.

Q If you were treating a patient who had electroconvulsive therapy in the past and had thereafter experienced memory loss of distant events, would that effect your treatment of her?

A Well, if someone has had substantial memory problems with ECT in the past, especially if it was the distant past, I would do several things. Number one, I would start the treatments off in the unilateral fashion. There’s two ways to administer ECT. One bilateral and one unilateral. And over the past few years it’s been well demonstrated that unilateral treatment substantially reduces the probability of any type of memory problem from the treatment.

Also I would make sure that the perimeters for administering the treatment were at the lowest possible in order to produce an effective treatment, but at the same time not to over treat where again you might have problems with memory.

Q Do you know whether or not Kathleen has had that experience in the past where she’s lost memory?

A I believe her son mentioned that has been the case.

Q When you mention unilateral, what do you mean by that?

A Well, with the way that ECT has been done in the past, there was typically an electrode placed on each temple, right and left. And unilateral is an electrode placed on the nondominent hemisphere, typically the right side, and then on the more of the crown of the head. And when that occurs, the evidence is quite remarkable on the decreased problems with memory loss.

Q In other words, you would see the memory loss if it were going to occur?

A Well, if the memory loss were to occur there it would be substantially less than compared to doing it the other way.

Q Would you test the person after the initial unilateral treatment to see if she was experiencing memory loss?

A Well, we always evaluate the patient on the day of and then throughout really the course of the treatment. That’s one of the things that the nursing staff from the hospital does, as well as the treating physician.

Q Have you known any other side affects of electroconvulsive therapy?

A I mentioned headache, which is fairly common. Usually that’s treated well with just Tylenol. Other than that, I have not had any other serious types of side affects noted.

Q Are there other — is there any current literature critical on electroshock therapy?

A From what source?

Q From either the medical or psychological field?

A Well, from the medical source, medical journals, I have not seen anything critical of ECT. As a matter of fact, there’s actually a resurgence over the past few years and it’s being used much more readily throughout the country. And the popular literature there are groups that are anti-psychiatry in general that have mounted campaigns against ECT as well as psychiatric medication in general.

Q What about from the therapy communities, are there any discussions on that, psychologists?

A Psychologists? It depends on the psychologist you talk to. Psychologists familiar with treating seriously mentally ill patients and familiar with the technique, they see the benefits. If somebody is not, then of course they only know what was in movies and popular literature.

Q Are there some medical treatments that are universally accepted one time in history and later not universally accepted?

A Absolutely.

Q Because medicine isn’t an exact science?

A That’s correct.

MR. DRAZIK: I have nothing else.

THE COURT: Redirect?

MR. FINNEGAN: No, Your Honor.

THE COURT: Thank you, Doctor. You may step down. Anything further on behalf of the Petitioner?

MR. FINNEGAN: No, Your Honor. That’s the Petitioner’s evidence.

THE COURT: Mr. Drazik, you wish to present evidence on behalf of your client?

MR. DRAZIK: Yes. Mrs. Garrett and Steven Vance, Your Honor.

THE COURT: Who do you wish to call first?

MR. DRAZIK: Mrs. Garrett.

KATHLEEN GARRETT being duly sworn, testified as follows:

DIRECT EXAMINATION BY MR. DRAZIK:

THE COURT: Mr. Drazik, you may inquire of your client.

MR. DRAZIK: Thank you, Your Honor.

Q Would you state your name, please?

A Kathleen Garrett.

Q And Ms. Garrett, where do you live?

A 4483 Lindell Boulevard, St. Louis.

Q Are you in the hospital right now?

A Yes, I am.

Q What are you in the hospital for?

A Depression.

Q How long have you had depression?

A For many years.

Q Could you tell the Court how many years?

A I couldn’t exactly tell you. Possibly about forty years.

Q Forty?

A Yeah.

Q You had depression when Steve was a little boy?

A Well, sort of an illness, yeah.

Q Okay. Now, do you want to be given electroshock therapy?

A No.

Q Could you tell the Court why you don’t want to receive it?

A Because I’m afraid I might become senile.

Q And what leads you to believe that?

A Well, my son has read all about it and — but he’s read about it and talked to various people who seem to know.

Q Do you trust your son to help you make a lot of your decisions?

A Yes.

Q But is he making this decision or are you making his decision?

A I’m making the decision.

Q What information has he given you to help you make that decision?

A Well, it kills brain cells. He’s afraid I’ll become senile and need extreme care.

Q Okay. So are you asking the Court to deny the hospital the right to give you electroshock therapy?

A Right.

Q Kathleen, do you have any problem understanding what’s going on today?

A No.

Q You understand that this is a court proceeding and that -

A Right.

Q Okay. And you thought this decision over?

A Yes.

Q And you’ve made your decision?

A Yes.

MR. DRAZIK: I have nothing else.

THE COURT: Mr. Finnegan, questions for Mrs. Garrett?

MR. FINNEGAN: Just a few.

CROSS-EXAMINATION BY MR. FINNEGAN:

Q Ma’am, when you came into the hospital, did you tell the doctor that you had thought about hurting yourself?

A Yes.

Q Have you had some recently?

A Not recently.

Q When was the last time that you remember talking to the doctor about having those thoughts?

A I guess it was last week I guess.

Q Have you had electroconvulsive therapy in the past?

A Yes.

Q Do you remember when the last time you had them was?

A Many years ago. I don’t remember exactly.

Q More than ten years ago you think?

A More than ten.

Q Could it have been as many as twenty?

A Could have been, but I’m not sure.

MR. FINNEGAN: That’s all I have, Your Honor.

THE COURT: Mr. Drazik?

REDIRECT EXAMINATION BY MR. DRAZIK:

Q Did the electroshock therapy help you?

A I don’t remember.

Q Did you lose –

A My son says I walked around like a zombie after I had it.

Q Okay.

MR. DRAZIK: I have nothing else.

MR. FINNEGAN: No further questions, Your Honor.

THE COURT: So Mrs. Garrett, you’ve had ECT between ten and twenty years ago, is that correct, ma’am, as best you can recall.

THE WITNESS: I would say probably around that. I’m not sure.

THE COURT: Thank you, ma’am. You may step down. Have a seat with Mr. Drazik. Watch your step, please. Mr. Drazik, you indicated you wish to call Mr. Vance, is that correct?

MR. DRAZIK: Correct, Your Honor.

STEVEN VANCE being duly sworn, testified as follows:

DIRECT EXAMINATION BY MR. DRAZIK:

THE COURT: You may inquire, Mr. Drazik.

MR. DRAZIK: Thank you, Your Honor.

Q Would you state your name, please?

A Steven Vance.

Q And where do you live?

A I live at 20 Grandview Drive in Belleville.

Q Are you Kathleen Garrett’s son?

A Yes, I am.

Q How old are you?

A I’m forty-three years old.

Q Are you engaged in a business or occupation?

A In a business.

Q Are you in an occupation?

A I am, yes.

Q What do you do?

A I am a licensed clinical social worker. I work for the City of St. Louis in the Health Department.

Q Could you tell us what your educational background is?

A My educational background is in service, social work, and also business management.

Q You hold any degrees?

A Yes. I have two bachelors and an associate of arts.

Q Have you taken — in your social work background, do you take psychology courses?

A Oh yes.

Q Could you tell the Court how much psychology you’ve taken?

A It’s been quite a few years. I graduated in 181. And so it was just a mixture of social work and psychology. I couldn’t tell you exactly. I know there’s a basic core class, but there’s additional ones. Quite a few classes.

Q Could you tell the Court what you do currently?

A I work — I do pre-imposed test counseling for people. Testing for HIV and I give their test results.

Q So are you in that position because that can be a difficult experience for these people?

A Yes.

Q And are you used to dealing with these perhaps volatile situations in your work?

A Daily.

Q Do you talk with your mother about these things?

A I don’t talk to her about my job. We don’t ever really talk about the job situation.

Q Mr. Vance, I’m handing you what has been marked for identification purposes as Respondent’s Exhibit A. And I’ll ask you if you can tell us what that is?

MR. FINNEGAN: Your Honor, if I may, we will stipulate that there is a durable power of attorney and that the witness is the individual under this power of attorney for the health care of the Respondent should she be incapacitated.

MR. DRAZIK: That’s fine.

THE COURT: Fine. Stipulation is agreeable, gentlemen? So stipulated. Proceed.

Q (by Mr. Drazik) Do you handle things for your mother’s estate?

A I handle everything for my mother.

Q Could you tell the Court some of the things you handle for her?

A I pay her bills for her. I take her grocery shopping. I take her clothes shopping. I handle dealing with the people at the social workers from hospitals who are at the place where she lives, at Cardinal Ritter. I answer her twenty plus phone calls a day. Whenever she calls me I get on the phone and answer phone calls. Whatever problems come up I handle them, including legal problems. I’ve handled everything for her for the last about three years.

Q Does she trust your decision making in her daily life?

A As far as I know she does, yes.

Q Have you had conversations with her about whether she should have electroshock therapy?

A Yes.

Q And what have the conversations been?

A Well, the conversations have not jut been recently. It’s been over the last few years. Because she had always told me she never wanted those again because they made her feel so awful. So she made me promise never to force her to have those. And recently this has come up again and it has come up in other hospitals before, but when I said no, they always said okay. And then this situation that they decided to go against our decision on this.

Q, Have you investigated electroshock therapy?

A I’ve talked about it with various health professionals over the years because she had shock back in the ’70′s and possibly even the early ’80′s And I have talked to people because it has bothered me over the years that she has not been the same since she had the shock treatments years ago. I used to visit her after she had them and back in the ’70′s and early ’80′s And she did not — I was uncomfortable with the way that she lost memory that she’s never been able to regain again. Over the years I’ve talked to people about that and most recently I talked to a nurse at Meramec College whose mother also went through the same situation and I was informed that, there’s a name for which I don’t remember what the name is, but it brings on early dementia or senility to the person who has shock treatments in the past. And when we compared notes, we realized we had the same situation going on and that my mother had the same situation as her mother, that sort of early confusion.

Q So back when she had the shock treatment before, did you take her to the hospital on those occasions?

A No, I was a teenager at the time when she had those the first time and so I would go visit her. A friend or — I wasn’t even driving in those days. I wasn’t old enough to drive. People would take me to see her.

Q You were able to observe her before, immediately before the treatments?

A Oh yes. I visited her regularly. And afterwards. And she didn’t even — I had the impression she didn’t even know who I was.

Q This was after the treatments?

A After the treatments.

Q How about before the treatments?

A She knew. She knew who I was and she seemed fine to me.

Q So is this one visit to the next?

A Right.

Q So the visit before the electroshock therapy she was fine and afterwards describe the difference.

A She would just stare into space and I had the impression she wasn’t able to talk. And she seemed to not know who — really know who I was.

Q Has your mother threatened suicide in the past?

A She’s threatened suicide since I was a small child.

Q Can you tell the Court how many times she’s threatened suicide since you’ve been alive?

A Several hundred.

Q Has she ever attempted suicide?

A Back in the ’70′s she attempted it once I think.

Q How did she attempt it?

A As far as I remember, she drank some car wax.

Q Have there been any attempts since that time?

A I’m not aware of any. As far as I know.

Q Has she ever told you how she was going to commit suicide?

A No.

Q So it was a declaration that she would commit suicide without telling you how she would do it?

A Well, she never really said, “I’m going to kill myself.” She never really said that to me. It was something that she said. She just — something that was more internal. She said she — I would find out afterwards, after she went to the hospital, that she had those feelings, but she never came out to me and said, “I’m going to kill myself.”

Q How did she get to the hospital this time?

A She called an ambulance on herself. I didn’t know about it. And the ambulance came and picked her up. or she may have told somebody. This is the story I got from Cardinal Ritter was that the ambulance carried her out. I don’t know if she called them or they called them. But before the time before, she had called in herself too.

Q In making her decision to refuse electroshock therapy, did you and her fully discuss the things that you’ve testified to the Court today?

A We discussed them not just recently before she was in the hospital, we discussed them in the past.

Q Anything else you discussed other than what we’ve talked about?

A About the shock treatments?

Q With her?

A I’ve just discussed what I’ve heard through different medical people over the years.

Q Is it your judgment that she should not have treatment?

A Right. She’s already lost a lot of memory that she hasn’t regained from previous shock treatments. Back in those years they zapped her good. I can brink up instances in the past that she can’t remember. And they’re important situations. And I feel that if they zapped her one more time, her age and her physical condition, I don’t know what would happen to her.

Back when she had them in the ’70′s and the ’80′s they were saying the same stuff as now. Beneficial, wonderful, help people. We are here today because they didn’t help.

MR. DRAZIK: Okay. I have nothing else.

THE COURT: Mr. Finnegan, questions for Mr. Vance?

MR. FINNEGAN: Just a few, Your Honor.

CROSS-EXAMINATION BY MR. FINNEGAN:

Q Sir, how long has your mother had cancer?

A At least within the last year she was diagnosed with cancer. I don’t remember what month it was.

Q In your experience of working with people with serious illnesses, have you experienced someone who might have had a depression or none at all to have fairly serious depression after they learned they had a major illness?

A I really have not encountered anybody in my work life dealing with cancer.

Q Well, HIV or whatever, after they learned they had HIV developed depression?

A I haven’t heard that because I don’t usually keep in touch with the clients beyond I transfer them on to case management. The majority of the people that I serve when I’ve seen them afterwards they seem to be doing fine. In fact, quite surprisingly, a lot of people seem to be quite strong in nature that they’re able to deal with it pretty well. I’ve rarely had situations happen where somebody was going to kill themselves. In fact, I’ve never had a situation happen where somebody was going to kill themselves or talk about being depressed. I’m sure it’s not what they wanted. When I saw them afterwards they seemed appreciative of my efforts.

Q You said your mother had threatened over the past years a number of times to hurt herself?

A Not to me personally. I need to specify, she has not said, “I’m going to hurt myself.” From her hospital admissions, which have been quite a few, this is what has come out. But not to me personally. She has not said these things to me.

Q You indicated that other doctors have wanted to do ECT in the past but that hasn’t happened?

A Right. After her initial ones in the ’70′s and the early ’80′s, in the recent years they have -previous doctors have wanted to do those and I said no and they said okay and I gave my reasons why. The reasons why I felt that way. She had already had a lot of memory loss and I don’t want to take the risk with what was left.

Q How long ago was it that one doctor wanted to do it?

A Her last doctor, Doctor Cuellacon (sic), what was about maybe two years ago or something.

MR. FINNEGAN: That’s all I have, Your Honor.

MR. DRAZIK: Nothing else, Your Honor.

THE COURT: Mr. Vance, talking about the ECT and the numerous medications your mother takes now, how do you find her when she’s taking all the medication?

THE WITNESS: Well, my — to be honest with you

THE COURT: That’s what I want.

THE WITNESS: I find that she’s overmedicated. I feel that she becomes immune to medications. I feel that they’ve made quite a problem in that they’re not treating the core problem. It’s just masking it with tape, Bandaids, and I don’t feel medications are benefiting her because it just made her unable to function in society. And I feel like somewhere out there there must be some sort of therapy that would benefit her. I don’t know what it is. I’m not an expert. But I feel that there has to be something out there, whether regression therapy or whatever, has to be something out there to find out the core.

Mom grew up in somewhat of a difficult childhood herself and there has to be something that stems from her past. And if you ask her why she feels the way she does about certain things, it’s because she’s not really able to answer you. I think there’s something hidden deep inside her that has to get to come out.

The medications really, they work for a little while and then they don’t work and they change them and get more and more expensive and change them. It’s kind of a never ending situation. It never ends.

And the situation with this whole — what’s going on now is this is not a new situation. This is something from forty something years and not different than it was when I was a child.

THE COURT: You think that someone makes — your mother makes a suicide threat, you think I should disregard that?

THE WITNESS: No, I’m not saying disregard that. But I think that in the context of what it is, she didn’t harm herself. She knew she — she was told, I don’t know which doctor told her this, when she has those feelings to get herself into the hospital. And when she’s had those feelings, she did do that and she’s done that the last few times when she had the feelings. She checked herself into the hospital. I didn’t check her in. She checked herself in. I think she’s being responsible if she does have the feelings, that’s her way of handling them.

I’m not saying — I think part of it too, my personal opinion is part of it is, there is there is mental illness there, but also I feel part of it is some attention seeking stuff going on there too.

THE COURT: Okay. Mr. Drazik, anything further?

MR. DRAZIK: Nothing further.

THE COURT: Mr. Finnegan?

MR. FINNEGAN: No, Your Honor.

THE COURT: Thank you, Mr. Vance. You may step down. Anything further on behalf of the Respondent?

MR. DRAZIK: No, Your Honor. We would renew our objections on due process grounds that we raised at the beginning. Can they be preserved to the extent of the order and to the, whether it’s issued.

THE COURT: They are preserved. Gentlemen, any comments on the evidence before I rule on this matter?

MR. FINNEGAN: We would respond if there were comments, but otherwise we will submit it on the evidence.

THE COURT: Anything further, Mr. Drazik?

MR. DRAZIK: I think the Court has fully comprehended the evidence. I would state if this woman had cancer and refused the treatment, she would have the absolute right to do so. The mere fact this is a mental disorder that could possibly result in a suicide is no different from any other type of threat for her own life. And it’s our belief she has the right to proceed as she wishes.

Medicine isn’t an exact science. We don’t know exactly what’s going to happen. And somebody has to make that decision. Mrs. Garrett and her son Steven are probably the most qualified considering all the facts. I’m sure Doctor Mofsen is very sincere and does a good job. He’s not the best suited to determine what’s best for Mrs. Garrett. She is.

THE COURT: Any response to that? Let me ask you a question, Mr. Drazik, and I respect your opinion as a respected member of the Bar. So is Mr. Finnegan. I take an oath as a Judge to uphold the laws of the State of Missouri and the laws of the State of Missouri say that if the Petitioner in this type of petition proves certain things, I, as the one who must follow that law, must render a decision based upon that law. How do you respond to that?

MR. DRAZIK: Your Honor, your oath further includes the Constitution of the United States.

THE COURT: That’s true.

MR. DRAZIK: Unfortunately you’re placed in a difficult situation of deciding whether one overrides the other. I would ask you to exercise your legal authority.

THE COURT: Mr. Finnegan, any comment?

MR. FINNEGAN: Brief one, Your Honor. While I don’t disagree with the general comments regarding the ability of a person to determine their own life, to make decisions when they are able to do so about issues involving their health, the analogy to cancer treatment is not well taken because the nature of mental illness often interferes with a person’s ability to recognize significant data and to make appropriate judgment because of the mental illness. And particularly major depression makes a person more disposed to put themselves at risk for various types of things that are at issue here today.

And when a person expresses suicidal thoughts, especially in the context of a recent and incredibly significant medical condition, it would be inadvisable of the Court to take the risk that this is like the previous history of the illness, because there’s a recent intervening event that might make it much more serious that might make these threats more concrete and might make them totally different, even if we were to accept the fact that we were not as serious earlier.

But I will return to what the Court said, which is that this is a constitutional statute, unless the respondent points to case law saying otherwise, and he can’t. The statute — the Court of Appeals on a number of occasions has never said this is to be held unconstitutional.

The Court was correct in saying that if the State proves certain things, that the Court is bound to grant the petition. And I would have to prove those things by far more than convincing evidence.

THE COURT: Mr. Drazik?

MR. DRAZIK: With respect to whether the statute on its face is constitutional, that could possible be. However, it would have to be construed in such a fashion to be constitutional and we don’t believe that the evidence in this case illustrates a situation and the Court should override the right to bodily self determination, the specific facts of this case.

THE COURT: Thank you, gentlemen. I appreciate your comments and your arguments in this matter. And I assume the matter is submitted to me for determination at this point?

MR. FINNEGAN: It is by the Petitioner, Your Honor.

MR. DRAZIK: Yes, Your Honor.

THE COURT: First of all, as to the petition for twenty- one day involuntary detention and treatment, the Court finds the evidence to be clear and convincing that the Respondent does suffer from a mental illness and as a result of that mental illness, Respondent presents a likelihood of serious harm to herself. Therefore, the Court feels that the petition for twenty- one day involuntary detention and treatment should be granted. That the South Pointe Hospital is the appropriate facility to handle her care, will accept her, and is the least restrictive environment. Therefore, the stated petition for twenty-one day involuntary detention and treatment is granted.

As to the petition for the involuntary electroconvulsive therapy, the Court does find as follows: By clear and convincing evidence, that the therapy is necessary, that there is a strong likelihood that the therapy will significantly improve or cure the Respondent’s mental disorder for a substantial period of time without causing her any serious functional harm.

Further the Court finds there’s no less drastic alternative form of therapy which could lead to substantial improvement in the Respondent’s condition. Therefore, the Court authorizes the treating physician to administer the Respondent a series of electroconvulsive treatments not to exceed twelve treatments over a period of four weeks, and to be completed on or before — I will fill in a date in this order. It will be a four week date, assuming additional hospitalization beyond that initial period of involuntary detention is either voluntary or court ordered.

That will be the order of the Court. Therefore, as stated, both petitions for involuntary detention and treatment and involuntary electroconvulsive therapy are granted.

Mr. Drazik, I don’t know what your intentions are, but just a word of procedure. If you wish to appeal this decision, do not go through the normal appeal procedure. Go by way of writ.

MR. DRAZIK: I would ask that the Court — I don’t know. There’s no evidence on it that the Court could delay the treatments for some period of time, so I would consulting with my clients and see if they wish to take extraordinary remedy.

MR. FINNEGAN: Mr. Finnegan, would you do the Court a favor and confer with the doctor and see how long we can delay this course of treatment within reason to give the respondent an opportunity –

MR. FINNEGAN: We’ve already discussed that subject somewhat. Just in the sense of less drastic alternative, I think the only concern the doctor would have, I will ask him, is that the detention is only twenty-one days and if we delay starting treatment beyond three or four days, we’re going to be in a situation where after five or six treatments, the detention is going to expire.

THE COURT: Mr. Drazik, how about three days?

MR. DRAZIK: I think I’m in a position where I may not have a choice, Your Honor.

THE COURT: I don’t think I have one either.

MR. DRAZIK: I understand.

THE COURT: You know, the writ department of the Court of Appeals is always open.

MR. DRAZIK: I know.

THE COURT: Not making light of it, but you know, that’s the appropriate way to handle this on an expedited basis.

MR. DRAZIK: We’ve discussed it a little bit and we’ll discuss it further.

THE COURT: Okay.

THE COURT: Then the treatment will be delayed from today, is that meeting the doctor’s concerns?

MR. FINNEGAN: We would assume that unless we receive notification prior to Friday, that they won’t be filing.

THE COURT: Would that be acceptable?

MR. DRAZIK: Friday by five p.m.

THE COURT: Today is over. Wednesday, Thursday, Friday would be thirty days.

MR. FINNEGAN: Your Honor, if we were able to begin Monday morning?

THE COURT: If we have not received notice by five p.m. Friday, would that be acceptable?

MR. FINNEGAN: That’s what I’m saying. We would say we won’t do anything on Friday, but if we have not received it by Friday afternoon, the Court has not received notice by Friday afternoon, we would proceed on Monday.

WHEREUPON discussions were held off the record after which the following was held:

THE COURT: This matter is concluded.

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