In patients with diminished capacity to make medical decisions, for most medical or surgical procedures, once the diminished capacity is documented, a surrogate decision make can provide consent for the treatment. But, for ECT, this is not the case.
For ECT to be given to a patient who cannot give valid consent to it, a court must appoint a medical guardian for the patient AND specifically authorize that guardian to be able to decide with regard to ECT.
Please note two things in this regard:
1. The court typically does not order or authorize the ECT; it appoints a medical guardian and authorizes that person to decide about ECT on behalf of the patient.
2. When medical guardianship is granted by a court for a patient who has diminished capacity to make medical decisions, this typically does not include authorization for the guardian to be able to consent for ECT (Zisselman and Jaffe, 2010). So, authorization to consent for ECT must be specifically petitioned for. The hospital has to guide the patient’s family in this matter.
Unfortunately, it usually takes a long time to get the court order. A typical sequence of events is as follows: The treatment team contacts the hospital’s legal department, a petition is prepared, the psychiatrist’s sworn statement is notarized, the hospital’s lawyer presents the petition to the appropriate court, and a date is assigned for the court to hear the case (typically a week later), and the Attending Psychiatrist attends the court hearing to testify about the need for ECT (Shenai et al., 2016).
A case report from a leading medical center noted that getting a court order for ECT at that center typically takes two to three weeks (Shenai et al., 2016).
Another case was published of a patient who required emergency ECT due to persistent catatonia despite treatment with 24 mg/day of lorazepam (Thakrar et al., 2018). This patient had developed multiple complications from the catatonia. The patient’s next-of-kin obtained emergency guardianship and a court order for ECT. But, it took 21 days after emergency ECT was recommended before hearings were held and the court order was obtained. Given that the patient had a quick and excellent response to ECT, it is frustrating that there was so much delay.
Clinical tip: Given that it can take time before a patient with catatonia is able to receive ECT, if the patient does not respond to the lorazepam challenge test, preparation for possible ECT should be done simultaneously while a trial of higher doses of lorazepam is being done (Zisselman and Jaffe, 2010).
States with particularly rigorous requirements
Laws related to ECT in patients who cannot give valid consent can be very different in different states in the USA and some states don’t have any explicit regulations about his (Shenai et al., 2106).
California, Texas, and New York have particularly rigorous legal requirements that must be met before ECT can be given to a patient who cannot give valid consent (Harris, 2006). Clinicians practicing in these states should contact their hospital’s legal department and their medical malpractice carrier for help if they have a patient who urgently needs ECT but cannot give valid consent.
Harris V. Electroconvulsive therapy: administrative codes, legislation, and professional recommendations. J Am Acad Psychiatry Law. 2006;34(3):406-11. PMID: 17032966.
Shenai N, White CD, Azzam PN, Gopalan P, Solai LK. Practical and Legal Challenges to Electroconvulsive Therapy in Malignant Catatonia. Harv Rev Psychiatry. 2016 May-Jun;24(3):238-41. doi: 10.1097/HRP.0000000000000089. PMID: 27148914.
Thakrar A, Bauza P, Maaz Y, Akinyemi E. The Shocking Time It Takes to Initiate ECT: A Clinically and Legally Complicated Case of Catatonia. Prim Care Companion CNS Disord. 2018 Dec 13;20(6):18l02321. doi: 10.4088/PCC.18l02321. PMID: 30550645.
Zisselman MH, Jaffe RL. ECT in the treatment of a patient with catatonia: consent and complications. Am J Psychiatry. 2010 Feb;167(2):127-32. doi: 10.1176/appi.ajp.2009.09050703. PMID: 20123920.
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