A third rarely mentioned point stems from the fact that the legal obligation under informed consent is to provide the patient with all the information relevant to their decision-making--not just about the treatment in question, but also about their condition. Psychiatric patients are never told that their alleged disease is theoretical or metaphorical. To say or even imply that what the patient has is biologic and a disease when there is no such proof (as in all psychiatric "diseases" for which electroshock is administered) is an egregious deception that makes a mockery of informed consent. That this has become the "standard of practice" in psychiatry does not excuse it.

Fourth, and pragmatically crucial, is that many people become victims of this so-called "treatment" at a time in life when they are extremely vulnerable. At vulnerable times, people desperately need to trust and rely on others for help. Reaching out, they need complete safety and support. Often their only hope in such times is to trust the wisdom and guidance of the professionals to whom they turn for help. Informed consent is a fine principle, but in practice it is not a protection.

Despite my conviction that true informed consent is not tenable given the underpinnings of coercion and misinformation in psychiatry, I have attached to my testimony a model of authentic informed consent. This form is excerpted from my previously mentioned article on the subject, and clearly states the information necessary for legitimate consent. It also, by the way, describes minimum standards for determining mental competence, as prerequisites for informed consent.

Competency/Capacity

Psychiatry argues that labels of "mental illness" or "emotional disability" make legitimate the designation of people as incompetent to exercise their right to informed consent. Psychiatry says this justifies the use of force. In fact, it does not! I urge each of you assembly members to seriously consider this flawed and dangerous assumption. Your own state supreme court, in Rivers v Katz regarding forced drugging, makes it clear that the presence of mental illness or emotional disability does not necessarily mean the patient is lacking the capacity to choose treatment. I quote: "It is clear that neither mental illness nor institutionalization per se can stand as a justification for overriding an individual's fundamental right to refuse anti-psychotic medication on either police power or parens patriae [incapacity] grounds." The state--according to Rivers v Katz-- bears the burden of demonstrating by "clear and convincing evidence the patient's incapacity to make a treatment decision." This fundamental right is based on the "liberty interest" protected by the New York State Constitution.

In Rivers v Katz, the Court also carefully observed that lack of capacity may not be inferred even if the patient disagrees with the psychiatrist's clinical judgment. This is very important because a current review of 28 articles comparing patients' and staff members' attitudes towards treatment (Roe et al, 2001) shows clearly that there is a consistent disagreement over time and across studies between staff and patients on treatment issues. The authors of this review concluded that "the disagreement might have more to do with the fundamental difference between being a patient and a staff member rather than a patient's cognitive deficits or psychopathology." Any legislation regarding capacity must honor Rivers v Katz and preclude the use of a psychiatric diagnosis as justification of force. The judges in Rivers v Katz wrote, "It is well accepted that mental illness often strikes only limited areas of functioning leaving other areas unimpaired, and consequently, many mentally ill persons retain the capacity to function in a competent manner."

Society generally respects the right of citizens to refuse treatment of physical illness, however life-threatening. This, as you all know, is not the case for "mental illness." The cases of Paul Henry Thomas, Adam Szysko, Pam S. and others here in New York have made this fact abundantly clear. As I did in May, I continue to urge you to put a moratorium on forced electroshock.

With all this in mind, I respectfully suggest that the following clauses be added to your Bill number A09081 on electroshock and informed consent:

a) Informed consent must be given for each individual treatment;

b) Consent may be given for no more than one treatment at a time;

c) Patient may refuse treatment at any time;

d) Patient may withdraw from treatment at any time, including between the time he or she gave consent and administration of the procedure previously consented to;

e) Competency must be assessed every single time consent is requested; (suggest standard from proposed model)

f) Every patient has the absolute right to refuse electroshock. If patient refuses to give consent (for whatever reason or for no reason at all), there can be no administration of electroshock;

g) If patient is judged to lack capacity, there can be no administration of electroshock; (The reason for this is the well-documented fact that electroshock impairs cognitive capacity. If someone lacks capacity, all emphasis should be on returning him or her to capacity by helpful restorative means; therefore, no forced electroshock.)

Re Bill A09083 of temporary advisory council

Consistent with my opinion that without capacity there can be no legally administered electroshock, I recommend striking section 3f of Bill number 9083, on the procedure for surrogate consent. This should be illegal. My one other recommendation for this committee is that it should be more weighted to electroshock survivors, and should include professionals who are critics of electroshock.