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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 and/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.
next: Testimony to New York Assembly Hearing on Electroshock
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