How do psychiatrists decide to use forced electroshock?
by Linda Andre
Director of CTIP
Have you ever wondered how psychiatrists make a decision to shock a person against his or her will? Who's a candidate for forced shock, and why?
These questions were publicly answered by the two psychiatrists who signed the papers seeking a court order for involuntary shock of Paul Henri Thomas.
In some but not all states---New York is one of them---a person must be found to be legally incompetent before he or she can be shocked against her will.
The general public, upon hearing this, sighs in relief: of course; that's as it should be; that could never happen to me; of course there must be safeguards in place, and standards as to what constitutes competence; a person must have to be really bad off, really crazy like catatonic, to be ruled incompetent.
Treating psychiatrist Andre Azemar and supervising psychiatrist Bob Kalani of Pilgrim State Psychiatrist Hospital both testified against their patient Paul Henri Thomas in hearings held in March and April 2001.
They were asked how they decided that Paul lacked the capacity to make this own treatment decisions.
They made it clear.
Having a diagnosis of mental illness helps you get ruled incompetent, but it's not enough by itself. And you sure don't need to be catatonic or psychotic. Here are the rules:
Rule # 1: You're incompetent if you think you're not crazy.
"Lack of insight" was cited an overwhelming number of times by witnesses against Paul as justification for forced treatment. Both doctors said, in essence, that any person who says that he is not mentally ill when a doctor says he is lacks "insight into his illness", and that this means he lacks the capacity to make his own treatment decisions.
Paul's lawyer Kim Darrow was thorough in his questioning, trying to elicit from the doctors any other factors they might have weighed in making their decision that Paul lacked capacity and therefore qualified for forced shock.
There were none. On further questioning, Dr. Azemar was asked why Paul doesn't think he is mentally ill. His answer: "Because mental illness clouds his judgment." It was clear to everyone who watched this trial (except the judge) that this was a Catch-22, no-win situation. As long as you say you're not crazy, you're considered crazy.
The audience waited in vain for further justification of the claim that Paul was mentally ill. He was said to have various diagnoses, including schizoaffective disorder (also the diagnosis of this reporter), bipolar disorder, and mania. Neither doctor had enough evidence against Paul to justify these diagnoses by DSM criteria. Paul was said to be "loud", "noncompliant", "threatening", to have worn inappropriate clothing on the ward and to have hoarded food (which would have been entirely appropriate for someone looking to escape from the hospital, former patients concurred later). His hygiene was said to be poor; he was accused of cluttering his hospital room with books and dirty clothes---"dirty clothes on top of clean clothes!" in the words of Azemar.
The other shrink, Kalani, conceded that on the day he testified---as well as on the day he signed the petition for forced shock---his patient had no symptoms of mental illness other than denying he had a mental illness.
An independent, unpaid psychologist who examined Paul in the hospital at the end of March, interviewing him as well as performing some psychological testing, testified that he found no evidence of psychosis, mania, or mental illness. He testified that Paul is competent to make his own decision regarding ECT.
Rule #2: When you say yes, you're competent; when you say no, you're incompetent. Either way you get shocked.
"The staff would ask him, are you going to consent or are we going to have to go back to court?" ---Bob Kalani
If Paul was really incompetent, he was incompetent not only to reject treatment, but to accept it. His yes would not have been legal. Yet both shrinks testified about attempts to talk the legally incompetent Paul into saying yes to shock.
"Did you try to get Mr. Thomas to consent to ECT in January? If he had consented, would you have sought a court order?" asked Darrow of the treating psychiatrist.
The judge objected.
"If Paul had said yes, would you have tested his competency?" Azemar looked baffled and answered, "If they say no, we have to do it."
At this point the judge interrupted, saying, "I don't understand the question". No one else in the courtroom seemed to have any difficulty understanding the question or the point that had been made.
"If he accepts the illness then he can make his own decisions and we don't have to force him," Dr. Kalani had testified. Sure Paul can make his own decisions----as long as he consents.
Rule #3: If you disagree with what your doctors say about treatment in general or your treatment in particular, you're incompetent.
When asked: What constitutes capacity? Azemar replied as follows:
---Capacity depends on the person understanding what the treatment is about.
---Capacity means he understands the consequences of the treatment, and has the ability to assess benefits and risks.
Paul has had over 60 ECTs, but no one thinks this makes him qualified to understand what the treatment is about, or to understand its consequences. Only a psychiatrist can know these things.
Both doctors said Paul was incompetent because he refused to acknowledge that previous ECT had been beneficial for him. Azemar said, "Even when we tell him he is improved, he never accepted the fact that he had any benefit from it."
Both doctors said that Paul was incompetent because he "is unable to assess the risks and benefits of ECT."
Further questioning from Darrow clarified the situation. Did Paul have the mental capacity to understand that his doctors thought he had improved with ECT? Yes. He understood this. "Did he understand what you thought were the benefits and risks?" Yes, the doctors said. Paul was perfectly capable of hearing and understanding what his doctors were telling him.
He just didn't agree with them.
As long as patients and doctors disagree about the nature, risks and benefits of ECT, and as long as doctors get to define the "right" answers to these questions, everyone is at risk of forced ECT. Persons who have previously had ECT, know about it from personal experience, and will not deny what they know to be true, are most at risk.
Dr. Kalani testified that he "knew" about ECT from reading a book. All books about ECT for professionals are written by financially compromised ECT proponents like Richard Abrams, shock machine company owner. Kalani couldn't remember which book he had read...Fink's, Kellner's, Coffey's? He went on to make further blatantly false statements about what he "knew". He knew the FDA had approved shock machines. (Never happened.) He knew the FDA had conducted animal trials of shock. (Not only has it never conducted animal trials, neither the FDA nor anyone else has ever conducted human trials.) Kalani's source was revealed when he claimed that the FDA had studied baboons. The baboon line comesfrom HaroldSackeim, prolific ECT advocate and shock machine company consultant. Even Sackeim, famous for his lies, did not say that FDA studied baboons; his claim was that epilepsy researchers had studied baboons and concluded that seizures didn't damage their brains. Kalani got his misinformation garbled. The Pilgrim shock doctor went on to testify that there have been "lots of" before-and-after MRI studies showing that ECT doesn't cause brain damage. Wrong again. There have been less than a handful, and they don't show that.
Dr. Azemar wasn't any more knowledgeable. He claimed that his own facility did not do "bipolar" ECT (the correct term is bilateral), that this was the "old fashioned way" of doing ECT that's still done in Haiti but not here. In fact, Paul has been getting bilateral ECT at Pilgrim.
If capacity is determined by what you know about ECT's risks and benefits, then both Kalani and Azemar flunked the test, and can now be legally forcibly shocked.
Unfortunately Darrow did not challenge Dr. Kalani's false statements. The judge was left with the impression that ECT has been proven safe because no one contradicted it.
If Darrow had been able to raise doubt about ECT's efficacy and safety---by invoking the FDA classification of ECT devices, for instance---a logical further question would have been: "If it were true that Paul did not benefit from ECT, would he be incompetent? What if Paul is right that the risks of ECT outweigh its benefits? Is he still incompetent?"
The judge got very upset once Darrow made the point that Paul understood but did not agree with his doctors, yelling at him to move on. This was one of three outbursts on the part of the judge that day, each one louder than the last. The judge was very, very loud.
Forced treatment and biological psychiatry go hand in glove.
If biological psychiatry is a kind of law---if we as a society have decided it is the only acceptable or permissible way to think about and treat problems---then it must have its police force for those who don't find it helpful or agree to abide by it. It must have the doctors and judges who force treatment on these people.
Both shrinks testified that drugs and ECT were the only treatments available for Paul. When challenged, however, they claimed to be doing psychotherapy. They were questioned further about what that meant. It turns out that psychotherapy doesn't mean what it used to mean.
"Psychotherapy consists of making him understand his mental illness and accept therapy and understand the impact of medication and ECT. Noncompliance is the issue," said Bob Kalani. He also explained that there had been family psychotherapy, consisting of trying to talk Paul into consenting to ECT.
Dr. Azemar called his brand of psychotherapy "insight psychotherapy". "Insight psychotherapy" consisted of trying to get Paul to accept that "It's all chemicals. There are all these chemicals in the brain---for anxiety, for appetite, for sleep. It's getting him to understand what these chemicals do and what drugs he needs to take."
The drugs he has been taking have caused liver damage and tardive dyskinesia. Dr. Azemar testified that Paul wanted to take a computer class, but his hands now shake so badly that he is unable to type. He characterized TD as a "disorder of the fingers"---it's actually permanent brain damage.
It was nearing the end of the last day of the trial when the topic of drug-induced brain damage came up. Darrow began a dramatic summing-up type question. "They've damaged his liver, they've damaged---" he might have been beginning to say "His brain".
He didn't get to say it because he could not longer be heard over the judge. Judge Hall pounded on his desk, stood up, and yelled at the top of his lungs: "You should be ashamed at yourself!" He said it twice. It was far from clear to anyone in the courtroom what, exactly, he was referring to. Should Darrow be ashamed because he was bringing up tardive dyskinesia in a case that was just supposed to be about ECT? Was Darrow being reprimanded because he was only allowed to talk about ECT brain damage, not drug brain damage? Was the judge himself, who is known for signing forced drugging orders, actually ashamed of himself and simply projecting those unmanageable feelings onto Darrow? Why the emotional outburst?
It was a better ending to the case than the State's lawyer, Laurie Gatto, could have hoped for. She's clearly clueless on shock, and her idiotic questions had her much more educated audience laughing----like when she claimed that the MiniMental Status Exam (which you can hardly do poorly on unless you're in a coma) could measure memory loss from ECT, or when she tried to disparage Paul's good performance on an IQ test by saying that math doesn't involve problem solving. But even she could sense that she didn't need to add a single word.
Had anyone wandered into the courtroom at 4:20 p.m. on April 2nd, observed the behavior and demeanor of both Paul Henri Thomas and Judge Hall, and been asked to pick out which man was suffering from mania, there would not have been any doubt that it was the one in the black robe.
If you think you can protect yourself against forced ECT with an advance directive, think again.
Paul had an advance directive. He had signed it on October 19th, the day before his doctor signed the petition for forced shock. Paul couldn't have executed a legal document like an advance directive if he were considered incompetent. Dr. Azemar clearly found him competent on the 19th; in fact, he even signed the advance directive as a witness. Azemar's position at trial was that Paul became incompetent the very next day.
But wait---even if that were the case, wouldn't the advance directive have been valid? After all, this is exactly the situation an advance directive anticipates. It specifies what should be done should a person become incompetent. Paul's directive said that his brother would act as his proxy to make his health care decisions. He should have been consulted, and his yes or no would have been the final decision on shock for Paul. But the hospital disregarded the advance directive and went ahead with its forced shock petition.
In the words of Judge Hall: "What that document said at that time, it doesn't say now."
More information about Paul Henri Thomas
An entire outline of the case, including news reports
Currently awaiting the judge's decision, but he reserves judgement, by Anne Kraus. This includes more information on the hearings!
Thomas' attorneys file complaint alleging violation of his civil rights