Massachusetts faces criticism for its stance against sh0ck therapy. According to state officials, it is their responsibility to end the ongoing practice of administering electric sh0cks to individuals with developmental disabilities.
In a surprising turn of events, the Supreme Judicial Court of Massachusetts provided a sympathetic hearing on Wednesday to the sole mental institution in the world that employs electric sh0cks to discipline developmentally disabled patients. The United Nations has denounced this practice, as t0rture Courthouse News Service reported.
According to Justice Scott Kafker, many patients who received treatment from the practice the state is seeking to close were previously treated with other ineffective methods. Kafker made this statement while summarizing the defense’s argument to Assistant Attorney General Timothy Casey.
“Some of these patients testified” in favor of the sh0ck treatment, Kafker noted. “This place is alone, you’re right, but it also has a track record … that has been successful. What do we do with that? Some of these patients came from the best places in the country” after not being able to be helped anywhere else.
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The Judge Rotenberg Center in Canton, Massachusetts, which was established in 1971, has utilized electrosh0ck “aversive therapy” for decades. The sh0cks are intended to deter severely destructive behavior, but the state claims that they are sometimes administered for minor offenses such as spilling drinks or incontinence.
The sh0ck therapy was authorized by a 1987 consent decree, which the state now seeks to overturn on the grounds that the standard of care has changed and that state regulators banned the practice in 2011 on a statewide basis.
The institute and its founder, Matthew Israel, have a tumultuous past. In the early 1980s, Israel was barred from entering one of his California facilities after a state investigation revealed that residents were beat*n, humili@ted, and not provided with adequate sustenance or care.
Israel was indicted in 2011 for ordering the destruction of videotapes of the Canton facility incident in which two residents were stunned a total of 106 times based on false reports of misconduct. Israel’s decision to step down resolves the matter.
However, the State Department of Developmental Services does not have a flawless record. A judge of probate concluded that the department enacted its 2011 regulation in bad faith after altering reports about the facility and misrepresenting its conditions.
Casey argued that maintaining the consent decree in light of the 2011 regulation violated the doctrine of separation of powers. But, “that can’t be right,” Kafker replied categorically. This rule was predicated on falsified evidence. That must be an issue for you.” Kafker described this argument twice as “weak.”
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Casey also asserted that the probate judge, Katherine Field, violated her discretion by determining that the sh0cks met the medical standard of care. Regarding this matter, Kafker told Casey, “You have a very steep uphill battle.”
Kafker stated that Judge Field makes direct findings that there is no scientific consensus to eliminate this. How do we determine that to be a legal error? She relies on the testimony of three psychiatrists that sh0cks are appropriate in extreme situations where nothing else works.
Casey was questioned by Justice Dalila Wendland: “What is the error?”
Approximately 53 patients are at issue, according to the center’s brief:
“Exhibit severe behaviors such as gouging their eyes; repeatedly banging their heads causing brain damage; chewing off body parts; pulling out teeth; and violently punching, kicking, and biting others.”
Casey admitted that “it’s impossible to prove that we could more effectively treat these patients” with other methods. He said the court should nevertheless find that “there was a change of circumstances and apply the standard used by the average practitioner.”
Wendlandt objected: “But these aren’t average patients.”
“Every other practitioner in the world treats without electric sh0ck,” Casey said.
“But now you’re arguing the facts,” Wendlandt replied, “and on that, you lose.”
The center’s lawyer, Michael Flammia of Eckert Seamans in Boston, said:
“The stakes couldn’t be higher — these are clients who may try to kill themselves. We’re talking about life and death.”
Flammia stated that it is not surprising that there is only one facility that employs the electrosh0ck technique, as there are only a few dozen patients in the country for whom it is appropriate, and these patients are typically sent to the facility when no other facility is able to treat them.
Some patients had performed so well that they were returned to the community, whereas the state’s alternative was to place them in windowless, padded jail cells and force-feed them antipsychotic drugs with severe adverse effects.
Max Stern of Todd & Weld in Boston argued on behalf of the families of patients who wish to continue receiving sh0ck treatments. He said drug therapies had been “a big disappointment.”
The state asserts that the sh0cks are nearly unbearably agonizing and are therefore prohibited as inhumane not only for humans but also for laboratory animals such as rats and mice. Several disability rights organizations and the American Academy of Pediatrics filed amicus briefs in support of its position.
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Stern, however, characterized the sh0cks as “2 seconds of transient pain” with no lasting effects. There may have been instances in which the sh0cks were administered improperly, he said, but the state suggested this by “cherry-picking among thousands of videos” without context, and a staff error did not demonstrate that the technique lacked value.
At one point, Kafker offered Casey an out, suggesting that the justices could remand the case to the probate court to determine whether the standard of care had changed in the intervening eight years, given that the hearing, in this case, was held in 2015. However, Casey declined the offer, stating that the state had already presented its strongest case.
Kafker described the case as “heart-wrenching.” And Justice David Lowy commented:
“I feel like these families … should have whatever hope they can have if it falls within a standard of care, even if it’s not the highest standard of care.”
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