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.