Using electric skin shocks to modify the behavior of people with developmental and intellectual disabilities is not a first- or even a second-choice treatment. But for a small number of severely ill people, it is the only treatment that works. And in Massachusetts, where the Judge Rotenberg Educational Center in Canton is the only facility in the country currently using electric skin shocks, the treatment remains legal, according to a Thursday decision by the Supreme Judicial Court.
The state Department of Developmental Services has been trying to ban the practice for years. Given the SJC ruling, the department now has a responsibility to shift gears and focus instead on good-faith oversight to ensure that electric shocks are used only under appropriate circumstances. Every patient receiving electric shocks has an annual Probate Court hearing at which a judge must reapprove their treatment plan. State officials should use these hearings to examine the use of electric shock for each individual. If it is not the least intrusive and most appropriate treatment, the department can and should make that case before a judge.
There are approximately 50 patients at the center currently approved for the treatment, so having experts examine each patient and their medical history would be a time-consuming endeavor, as would be holding a full-fledged hearing for every patient with a treatment plan the department disagrees with. Until now, state officials have treated the hearings largely as a formality rather than a meaningful review of treatment options.
The Department of Developmental Services, represented in court briefs by the attorney general’s office, has argued that this is not a viable option. A 2014 hearing where DDS contested the treatment’s use on a patient involved a 21-day trial over 11 months with seven expert witnesses, two lay witnesses, and 639 exhibits, according to the agency’s court brief. The agency has said it lacks resources to appear at every proceeding.
Turning these hearings into substantive reviews will almost certainly require additional investments in state agency staff and Probate Court resources. The state should choose wisely which hearings it participates in, based on who it thinks could benefit from an alternative treatment. But given the controversy around the practice, it would be worth additional review of each case — and potentially in some cases an in-depth review — to ensure each patient is getting the treatment that works best for them.
If, as the department and disability rights organizations contend, there are more effective treatments available today, the annual hearings can provide a chance to explore those treatments and have a judge decide based on expert testimony whether to continue to allow electric skin shock for each individual.
These hearings, over time, would also create a body of evidence that future courts or the Legislature could use if they reconsider the practice in the future.
The fact that these hearings exist was central to the SJC’s decision to keep in place a 1987 consent decree that let the Judge Rotenberg Center continue administering electric shock treatment with state and judicial oversight.
“Nothing in our decision or the consent decree prevents the Department of Developmental Services from exercising its existing authority to contest the use of electric skin shock on individual JRC patients at their yearly substituted judgment hearings in the Probate Court. Nor is the department precluded from enforcing the consent decree’s requirement that electric skin shock be used only where it is the least intrusive, most appropriate treatment,” Justice Scott Kafker wrote on behalf of the court in a unanimous decision. Kafker acknowledged that the department “has largely chosen not to do so” but noted that in the one recent case in which the department intervened, the department prevailed.
“The wisdom of the department’s decision not to avail itself of this option for any other patient is not before us,” Kafker wrote.
Attorneys for a group of medical and disability rights organizations have long argued that aversive therapy is wrong because it inflicts pain and because other safer, more effective treatments are available. The Department of Development Services and its precursor agency have tried to ban the practice for decades. But the agency has been stymied by lawsuits from the center and parents of patients who were successfully treated there. These parents have said electric shock therapy is the only thing that gets their children to refrain from severe, self-injurious behavior.
The Legislature could ban electric shock therapy, but lawmakers have repeatedly chosen not to. The Food and Drug Administration tried to ban the practice, but the ban was overturned in court. Congress then explicitly gave the FDA the authority to ban it, but the FDA has not acted a second time.
The SJC did not rule on whether the treatment is medically sound today, since the evidence its decision is based on is from testimony given before a court in 2015 and 2016.
Attorney General Andrea Campbell said she is “profoundly disappointed” with the ruling and pledged to work with the Legislature and governor and advocate to the FDA to have the practice banned.
The problem is that opponents of the practice have not stated clearly how they will help the few patients for whom medication and positive behavioral therapy have not worked. Focusing on the annual reviews of individual patients will give the center, parents, state officials, and medical experts the chance to apply scientific knowledge to real-world cases and answer the question that truly matters to these patients and their families: Are electric skin shocks appropriate in each case, and if not, what treatment option is better?
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