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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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