Honorable Charlie R. Barber
AGO 582
Opinion No. 582
Pennsylvania Attorney General Opinions
Opinions Of The Attorney General
May 18, 1948
Incompetents—Patients in State hospitals—Application of shock therapy—Necessity for consent.
Superintendents of State mental hospitals, in their sound discretion, may administer to patients of State mental hospitals, electric shock and such other treatments, which in the exercise of reasonable skill and judgment, are indicated, after observation and diagnosis, as being necessary and proper for the patients' best welfare, without first obtaining written permission for such treatments from such patients, their friends, relatives, guardians or other persons who may be legally entitled to give such consent on behalf of such patients; while such consent may be desirable in some cases, it is not essential under the laws of this Commonwealth.
Honorable Charlie R. Barber, Secretary of Welfare, Harrisburg, Pennsylvania.
Sir: The Department of Justice is in receipt of your request for an opinion regarding the legality of State mental hospital superintendents proceeding with certain specific psychiatric therapies on patients committed to their custody, without first obtaining properly witnessed written permissions from the patients' nearest responsible relatives. In support of your request, you furnish the following information, stated substantially in the language of your request.
The specific therapies referred to are the so-called "shock" treatments of various types and the use of malaria fever. In the interests of prompt treatment of mental patients, some of said superintendents feel that the prerogative of using reasonable skill and judgment may permit them to proceed, when written consent is not immediately available, with specialized therapies which have become recognized as standard procedure in medical practice, and which have long since been proven clinically as effective and necessary for certain mental disorders.
Malaria fever therapy is one of the most effective treatments for certain types of mental illness caused by syphilitic infection of the brain and central nervous system. This specific treatment has been recognized since 1918, and especially indicated in cases of general paresis. Complications in selected cases are of less than one per cent incidence. Fatalities are practically negligible. The treatment by malaria fever does not cause loss of consciousness.
The "shock" therapies came into prominence more than fifteen years ago, when the use of insulin was introduced to produce coma in certain mental diseases. Other types of shock treatments were rapidly developed, but are becoming obsolete, except for the extensive more practical use of electroshock therapy, which has been widely recognized in the past ten years. These so-called shock treatments produce unconsciousness, and are frequently associated with convulsions. The electroshock is now accepted as specific for mental illnesses showing extreme agitation and mental depression. The insulin coma treatment has a place in certain types of dementia praecox or schizophrenia. Fatalities in shock therapies are practically unknown, and complications, such as fractures, have been reduced to less than one-half of one per cent incidence.
Although relatives are routinely advised regarding the nature and implications of the treatment, difficulties sometimes ensue, in that there may be a delay of weeks or months required for relatives to investigate to their own satisfaction before signing such a permit. Furthermore, uninformed lay advice, ignorance, and general prejudice, especially from uncooperative families may deprive a patient of a definite chance for improvement or recovery.
Consequently, months and even years of additional care, at the expense of the Commonwealth, have resulted for large groups of patients to whom specific treatments were denied. Depression cases have committed suicide, disturbed cases have continued with unnecessary violence, and among such untreated patients, there has been a definite contribution toward the secondary problems of overcrowding and difficult management.
From one of the best State mental hospitals, which routinely required written permission before instituting such special therapies, but which now no longer exacts formal permission, because of confidence in their technique and results, the following comparative statistics are submitted:
Discharged from hospital in less than 1 year's treatment
| (Malaria fever)
| 1930-1932
| 1940-1942
|
| Syphilis of central nervous system (Electroshock)
| 12.9%
| 26.7%
|
| Manic Depressive (Insulin and/or Electroshock)
| 59.2%
| 68.7%
|
| Dementia Praecox (Electroshock)
| 35.6%
| 46.1%
|
| Involutional
| 39.3%
| 52. % (75. % in 1944-5)
|
The foregoing statement of facts, which you furnished, raises the question whether, in cases where patients are committed for care and treatment, to State mental hospitals, the power and duty to give such patients the necessary, proper and indicated standard treatment should be prevented or impeded by the unavailability, or the occasional lack of cooperation, of some relatives who might later retaliate by law suits, on the basis that explicit permission to administer such treatments was never given.
The original request for an opinion relates particularly to shock treatments and malaria fever treatments. We are informed that the closest approach in importance to shock treatments is the use of malaria fever for syphilis of the brain; and that in the latter cases, it is not customary to request permissions to use the treatments, because they have become part of the general standard procedure.
The request deals principally with electric shock treatments, and we have since been informed that no special consideration need be given to malaria fever treatments. Therefore, what is hereinafter discussed principally concerns only electroshock therapy. Furthermore, the subject of general surgical operations upon mental patients of State hospitals of this Commonwealth is not within the scope, of the purposes of this opinion.
The electric shock treatment herein referred to consists of weak electric currents (115 volts, 1 ampere), applied to the temples; due to the sudden convulsion which usually occurs at the beginning of the treatment, sometimes there is a fracture of the arm or shoulder, but rarely have there been any such incidents in State mental hospitals.
We understand that shock treatments have been used by the State mental hospitals of this Commonwealth since 1939, and that during this time, there have been no deaths from the use of these treatments. There is at present, a patient population in State mental hospitals of about 35,000; depression cases in which shock treatment is indicated amount to about one-third of the above total.
Mental patients are generally legally, mentally and medically incapable of giving consents to methods of treatment or other matters relating to their care and maintenance; therefore, it may be necessary to attempt resort to friends or relatives, who may prove unavailable, or unwilling to cooperate.
There is an indeterminate minimum of about five per cent of patients with whom difficulty is experienced in obtaining consents. Obviously, it is desirable to avoid the necessity of obtaining such consents, if possible, especially since such consents are generally considered unnecessary, because the treatments now constitute a recognized established procedure.
There are many other forms of treatments in use in the State mental hospitals in which consents are not considered necessary as follows: infra red rays, ultra violet rays, insulin, drugs—orally and by needles, and hydrotherapy—wet packs, tubs, etc.
If written consent is necessary in any form of treatment, where is the line to be drawn?
Since superintendents of State mental hospitals throughout the Commonwealth differ in their views and practices concerning the question whether consents in such cases are necessary, it is advisable to establish a uniform practice. In order to do so, careful consideration must be given to the necessity, nature and beneficial results of such treatments.
Treatment of mental diseases by artificially inducing convulsions with electricity began in Italy in 1938; since then it has accomplished remarkable results, and has proved to be so satisfactory that it is now generally used. This treatment is discussed in an article entitled, "Shock...
