Justice Hall Reserves Judgement in Forced Shock Case

by Anne Krauss

After listening to closing oral arguments yesterday, Justice Hall announced that he is reserving judgment. It is not known when his decision will be announced. Yesterday's entire proceeding took about an hour.

Mr. Thomas' attorney, Mr. Kim Darrow, was the first to speak. He noted that for the shock treatment to be authorized over Mr. Thomas' objection, there must be clear and convincing evidence both that Mr. Thomas lacks the capacity to make his own treatment decision, and that the proposed treatment is narrowly tailored to preserve his liberty interest and that there is no less intrusive treatment available. He asserted that the burden of clear and convincing evidence had not been met for either the capacity or the treatment portion of the hearing. Regarding capacity, he said that the question is whether or not Mr. Thomas is able to understand the risks and benefits, and make an informed decision. He said that none of the expert witnesses argued that Mr. Thomas is intellectually incapable. Rather, they disagreed on whether Mr. Thomas should get shock treatment and whether he is mentally ill.

He recalled the testimony of the court appointed expert psychiatrist, Dr. Lynch, who, when asked whether, to a reasonable degree of psychiatric certainty, a patient's choice of one expert opinion over the other is incompetent, responded "no". Mr. Darrow argued that if a physician is duly licensed by the State, even if his opinions are not widely embraced by the medical community, his clinical judgment sill must be recognized, and Mr. Thomas is entitled to choose this expert. He backed this argument with a previous legal decision, in which parents chose to follow the advice of an expert whose opinion was not widely embraced in choosing treatment for their child. Mr. Darrow recalled that Dr. Lynch had noted that Mr. Thomas was not acutely manic when he examined him, and that Mr. Thomas had correctly identified conditions which electroshock is used to treat as well as side effects.

Mr. Darrow also recalled testimony that Mr. Thomas' own experience with shock was that he finds it to be torture and traumatization, and that he does not want it any longer. Mr. Darrow referred to the Rivers decision, which found that just because a patient disagrees with a proposed treatment does not make that decision incompetent.

Mr. Darrow pointed out that even the testimony of the hospital's own psychiatrists was equivocal on the issue of capacity. Only after Mr. Thomas withdrew his consent was a court order sought. Testimony was given that after the court authorized a series of shocks in October, Mr. Thomas continued to improve through January. On October 19, the psychiatrist assigned by Pilgrim to treat Mr. Thomas together with the treatment team leader and a psychologist asked Mr. Thomas to sign a health care proxy, a document that should be executed when a person is competent to give directions regarding treatment in the event the person becomes incapable of making treatment decisions. Even the request submitted to the court for the electroshock over objection described the treatment requested as for maintaining remission recovery, indicating a lack of symptoms at the time. In summary regarding the capacity issue, Mr. Darrow said that at most there is a question of capacity, not clear and convincing evidence.

Regarding whether the proposed shock treatment is in Mr. Thomas' best interest, Mr. Darrow characterized the evidence as very confusing. Any alleged recurrence of manic symptoms could be attributed to either cessation of medication or to no shock. He pointed out that Dr. Lynch had testified that electroshock can cause hallucinations. Mr. Darrow reiterated that Dr. Lynch had testified that Mr. Thomas was not acutely manic when he examined him, and that Dr. McDonagh, the expert psychologist who examined Mr. Thomas even more recently, had also not found any bizarre thought processes. Regarding Mr. Thomas' different behavior last week, Mr. Darrow noted that after hearing a question about why he was taking medication if he is not mentally ill, at some point subsequent to March 2, he gradually stopped taking medication, and that recent blood tests show extremely low lithium levels and that depakote levels can not be detected in his blood. Thus, to whatever extent behavioral symptoms may have emerged, we don't know what caused them. Furthermore, for over 3 weeks after receiving the last electroshock treatment, Mr. Thomas was not acutely manic. A less intrusive alternative treatment to the proposed shock treatment would be psychotherapy with medication. If Mr. Thomas stops taking medication when he stops getting shock treatment, a less intrusive remedy would be to take him to court to get an order for medication, not for shock. The most that testimony has shown is that maybe Mr. Thomas needs medication, not that electroshock is needed for Mr. Thomas' well being. Mr. Darrow asked the court to deny the application.

The attorney for Pilgrim Psychiatric Center, Laurie Gatto, claimed that the State had met its burden of clear and convincing evidence. She claimed that Mr. Thomas not only denied that he is mentally ill at this time, but that he has denied that he ever experienced symptoms, and that he denied that there was an impact of mental illness on his life, despite his current hospitalization which has lasted approximately 2 years. She doubted whether Dr. Leifer, the expert psychiatrist called by Mr. Darrow as a witness, could perform an objective evaluation when the hearing involves treatment over objection, which he opposes. She made reference to an affidavit which Dr. Leifer signed in conjunction with a request for a temporary restraining order (TRO) which Mr. Darrow sought, preventing Pilgrim from administering electroshock to Mr. Thomas during the period of time his case was being prepared and heard. Ms. Gatto said that Dr. Leifer signed this affidavit before he ever saw the patient, and that Mr. Darrow drafted the letter. She made reference to the report on the trial which Dr. Leifer sent to David Oaks, and which is now posted at the Support Coalition International website, www.mindfreedom.org. She also claimed that Dr. Leifer had been fired when he was not granted tenure, and that he had been only in private practice since then. She said that we still don't know who paid five thousand dollars to this man, and that he is on a mission to stop forced ECT, regardless. She suggested that his entire testimony should be redacted.

She then focused on the testimony of Dr. Lynch, whom she stated was brought in at the request of Mr. Thomas' attorney. She did not mention that Mr. Darrow was not the attorney who made this request. She said that Dr. Lynch found that Mr. Thomas lacked capacity, because he never accepted responsibility for anything including prior hospitalization or other events, that he blamed other people and that he had no insight.

She criticized the testimony of Dr. McDonagh, saying that he was not a medical doctor and that he never discussed ECT or mental illness with Mr. Thomas. She said that Dr. McDonagh was "not forthcoming" with how he had become interested in Mr. Thomas' hearing, since he had invoked patient confidentiality when asked how he had learned of the hearing. She said that his evaluation had been based on an IQ test that Mr. Thomas "didn't do so well on." She then said that intelligence has nothing to do with capacity, that "zero plus zero equals zero" and that Dr. McDonagh's testimony had added nothing.

She talked about the testimony of Dr. Azemar, the psychiatrist assigned by Pilgrim Psychiatric Center to Mr. Thomas. She noted that Dr. Azemar is on Mr. Thomas' ward five days a week, and that Mr. Thomas attends a group which Mr. Azemar holds every week. She said that Dr. Azemar's opinion is that Mr. Thomas lacks capacity and denies his mental illness, in part because of illness induced thought disorder, in part because of how mental illness is viewed in Haitian culture, and in part because of the type of treatment which is being recommended. Dr. Azemar also found that Mr. Thomas couldn't understand the consequences of his behavior, and doesn't understand the risks and benefits of treatment.

Ms. Gatto made reference to Mr. Thomas' decision to stop taking psychiatric medication in the middle of the hearing, giving this as further reason to question his competence. She submitted that the evidence was overwhelming that he lacks capacity.

Ms. Gatto argued that ECT is the most narrowly tailored treatment available. She said that Dr. Kalani and Dr. Azemar, both staff psychiatrists at Pilgrim, had testified that every time treatment was stopped or spaced out to greater than 10 days, this was followed by a decompensation. She said that there is ample evidence suggesting that when Mr. Thomas is not given ECT, he stops taking medication. She claimed that he needs both treatments. She said that he has stopped taking medication at two crucial points in his life, first when he was about to be discharged, and second in the middle of this hearing. She asserted that there is no way to treat psychotic features other than with neuroleptic medication or with ECT, and that with Mr. Thomas' sensitivity to tardive diskenesia and liver damage, neuroleptics can not be used. She said that Dr. Lynch not only recommended ECT, but that he said that 40 treatments may not be enough. She asked, is there an end in sight? She said that we don't know, but that every time treatment is interrupted, his condition becomes acute and then he needs two to three ECT treatments per week. She said that everyone agrees that Mr. Thomas hates ECT, and that no one likes ECT or chemotherapy. She said that Dr. Azemar sympathizes, but that at this time no other way to treat Mr. Thomas is available. Without treatment, he looses insight, wears three to four layers of pants and a hooded jacket, walks around with rotten sandwiches in his pocket and a newspaper rolled up in his mouth, yells, screams, and eventually is playing with his feces. She claimed that this was not a choice or about a messy room. She drew attention to the fact that Mr. Darrow had earlier said that he might be calling Mr. Thomas to testify at the end of the hearing, and questioned why Mr. Thomas had not been called. She then said that he may be back to delusional thoughts, and that last week he had been sitting on the floor saying don't worry about me, this is treatment for me. She said that ECT may not be what Mr. Thomas wants, but that it is what he needs.

Justice Hall announced that he reserved decision, which means that his decision will be announced at a later time.

Now that the hearing has concluded, and I have resigned from my position as Long Island Recipient Affairs Specialist for the New York State Office of Mental Health, I feel freer to be candid in my own comments. I hope to comment more fully at a later date, but would like to take this opportunity to make a few observations.

First, although there were several outbursts on the part of other people present at the hearing and emotions were running high, Mr. Thomas conducted himself throughout like a perfect gentleman, even shaking Laurie Gatto's hand on more than one occasion. All of us who have faithfully attended the hearings have had the opportunity to observe Mr. Thomas' behavior for many stressful hours. I find that it stretches credibility to describe his behavior as hypomanic, and stretches credibility even further to describe his behavior as acutely manic, at any point during the proceedings.

Second, if a restatement of the clinical judgment of an institution's staff members is taken as being adequate to demonstrate "clear and convincing" evidence, the court process is doomed never to be anything more than a rubber stamp for the decision of that institution. If it is sufficient to demonstrate that a person "lacks insight" (in other words, to demonstrate that a person disagrees with the institution's treating professionals over diagnosis and treatment) in order to declare that person incapable of making treatment decisions, disagreement becomes equivalent to incompetence, and the Rivers decision has lost all meaning. I submit that the State failed to show any clear or convincing evidence that Mr. Thomas' judgment was, at any time during this proceeding, clouded by psychotic thought process, impaired by manic symptoms, or that he was otherwise impaired by psychiatric symptoms in a way that rendered him incompetent to make his own treatment decisions. Third, even Dr. Lynch was willing to admit that for Mr. Thomas, certain hospitals would believe in psychotherapy alone, without ECT. Dr. Lynch discounted such treatment as impractical, however, due to the fact that Mr. Thomas is receiving treatment in the public mental health system, but said that if he had the freedom to do that (i.e., be treated privately), such treatment may be appropriate. I would comment, though, that the monthly cost of psychotherapy as practiced by a psychotherapist experienced in using psychotherapy to treat psychotic disorders is roughly equivalent to the monthly cost of atypical neuroleptics. These expensive medications are routinely covered by the public system. The contrasting lack of coverage for psychotherapy designed specifically to treat psychotic disorders is evidence of a bias in the public mental health system against this form of treatment. The denial of this option to people is not based exclusively on cost factors.

Fourth, I considered that Laurie Gatto's remark predicting that, if not given electroshock, Mr. Thomas would deteriorate to the point that he would be playing with his feces was particularly offensive. Mr. Thomas has himself testified that he has no memory of this particular behavior. If this behavior occurred at all, it occurred on one occasion under extraordinary circumstances, and certainly could not be considered typical of his "untreated" behavior. Considering that Mr. Thomas has been given approximately 60 electroshock treatments since it allegedly took place, I believe his testimony that he has no memory of this behavior. Although Ms. Gatto seemed to disparage Mr. Thomas' ability to take responsibility for his behavior and the consequences of that behavior, she neatly sidestepped the question of how being given a memory-disrupting treatment such as electroshock might impact on his ability to improve in this area. My memory of the testimony early in the trial is that this particularly bizarre behavior allegedly occurred roughly two years ago at South Nassau Communities Hospital, where Mr. Thomas was abruptly withdrawn from both Clozaril and Zyprexa. There was evidence that these drugs were damaging his liver. Discontinuation psychosis is a phenomena well documented in the mainstream psychiatric literature. It can be particularly severe when a patient is withdrawn abruptly from an atypical neuroleptic, such as Clozaril or Zyprexa. It was not Mr. Thomas' decision at this time to stop these medications, but rather it was his doctor's decision. This behavior may very well have been evidence of a severe withdrawal reaction rather than a sign of underlying mental illness. To use this behavior as an example of what Mr. Thomas is like when he is "untreated" seems to me to be gratuitously cruel.

Note: Anne Krauss recently resigned from the New York Office of Mental Health, saying "Given the choice between continuing to work for an agency which so discounts recipients' voices that it will repeatedly force electroshock on someone who has clearly said that he experiences it as torture or advocating for this person's right to make his own decision about whether electricity should be run through his brain, I am choosing to advocate. For this reason, I am resigning from my position as Recipient Affairs Specialist for Long Island effective immediately."

Anne held the position since 1995. There is no question that she will be missed by those she helped over the years, but her determination, spirit and willingness to stand up against the tyranny of the New York OMH should inspire us all.