Gundy v. Pauley

619 S.W.2d 730, 1981 Ky. App. LEXIS 276

• Court: Court of Appeals of Kentucky
• Decided: August 21, 1981
• Status: Published

Opinions

VANCE, Judge.

The question is whether a person involuntarily admitted to a state mental hospital for treatment, but who has not been adjudicated to be an incompetent person, may be required to submit, against his will, to electroshock therapy?

The trial court ordered appellant to submit to electroshock therapy upon testimony that such therapy provided the patient with the optimal opportunity to benefit from treatment at the hospital and would be in the best interest of the patient. The patient had refused to submit voluntarily to the therapy.

The issue presented here has been considerably narrowed by appellant’s concession at oral argument that the opinion be limited to the question of the right to administer involuntarily electroshock treatment to patients who refuse to submit to it voluntarily and who have not been declared incompetent.

KRS 202A.180 provides that the Secretary of the Department for Human Resources shall adopt rules and regulations for the enforcement of the chapter, such rules and regulations to include, but not be limited to:

(7) rights of patients to refuse intrusive treatments, including electroshock therapy or psychosurgery; . ..

Pursuant to the statute the following regulation was adopted:

Section 8. Right to refuse intrusive treatment. All patients shall have the right to refuse intrusive treatments including electroshock therapy or psycho-surgery, subject to the following limitations:

(1) Any patients committed on an involuntary basis or who are minors may be provided electroshock therapy or psycho-surgery pursuant to a court order with a determination that such treatment is in the best interest of the patient as providing him the optimal opportunity to reasonably benefit from care and treatment in the hospital or residential treatment center_ 902 KAR 12:020 § 8.

The appellant contends that the administrative regulation, insofar as it places limitations upon the right of a patient to refuse electroshock therapy, exceeds the authority granted by the statute because the statute confers an absolute right to a patient to refuse such treatment. It is also contended that required submission to such treatment is unconstitutional.

This is a matter of first impression in Kentucky, but it has received attention in a number of other states. Generally, it has been held that a person has a constitutionally protected right to decide for himself whether to submit to serious and potentially harmful medical treatment. Rennie v. Klein, 462 F.Supp. 1131 (D.C.N.J.1978); Rogers v. Okin, 634 F.2d 650 (1st Cir., 1980); In re K.K.B., 609 P.2d 747 (Okl., 1980).

The right to refuse such treatment is not absolute, however, but is subject to the police power of a state to control persons who are an immediate danger to others and to the interest of the state under the parens patriae doctrine in caring for persons who are incompetent or unable to care for themselves.

It is conceded here that appellant does not constitute an immediate threat to others or to herself and that she has not been declared incompetent.

We hold that in the absence of a judicial declaration of incompetence, or an emergency which poses an immediate danger of harm to others or to the patient, a patient who has been involuntarily committed to a mental hospital for treatment cannot be compelled to undergo electroshock therapy against his will simply because it is considered to be in the best interest of the patient.

Electroshock therapy has been shown to be effective in approximately 80% of the cases in which it was used. It induces an epileptic seizure which affects the electrical pattern of the brain cells, but medical science has no definitive explanation of how or why it works in 80% of the cases or fails in the other 20%. It has potentially harmful side effects.

Under these circumstances the constitution protects the right of a person, who is not otherwise incompetent to do so, to decide for himself whether to submit to electroshock therapy.

The judgment is reversed.

WILHOIT, J., concurs.

McDONALD, J., concurs by Separate Opinion.