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Court Bars Electroshock Therapy for Incompetent California Prisoner Without Considering Whether He Would Consent If Competent

by Jacob Barrett

On January 11, 2022, the Court of Appeal for the State of California, Fourth District, vacated a lower court’s authorization of electroconvulsive therapy (ECT) for a state prisoner, saying it must first consider whether, when competent, he had expressed any preferences, views, or beliefs that would operate to preclude consent to the procedure.

Underlying the decision is California Penal Code § 2670, which establishes that “all persons, including all persons involuntarily confined, have a fundamental right against enforced interference with their thought processes, states of mind, and patterns of mentation, through the use of organic therapies.” Such treatments may not be performed on involuntarily confined persons who lack “the capacity for informed consent,” unless the State establishes it “would be beneficial to the person, that there is a compelling interest in administering such therapy, and that there are no less onerous alternatives.”

Some psychiatrists recommend ECT for patients with severe major depression or bipolar disorder—specifically those not responding to other forms of treatments. ECT involves a brief electrical stimulation of the brain, usually while the patient is under anesthesia. This treatment, more common in Europe than the U.S., uses electric currents to stimulate a person’s brain to induce a controlled seizure. According to Medical News Today, “Researchers do not exactly know how ECT works, but one theory is that it could regulate neurotransmitter activity.”

The prisoner in this case, Rudy Paul Terrazas, was being held at the California Institute for Men on April 13, 2021, when the acting warden petitioned a state Superior Court for authorization to perform ECT on him. Terrazas, who was convicted of first-degree murder at age 17, was by then a 44-year-old suffering “schizoaffective disorder, bipolar type,” according to a prison psychiatrist. That had left Terrazas in a state of mental psychosis for the previous 18 months in a single-occupancy room at a state mental hospital, unable to function in general prison housing.

Following the warden’s petition, the trial court held a hearing, where Terrazas was represented by San Bernardino County Public Defender Thomas W. Sone and Deputy Public Defender Edward J. O’Brien. Testifying for the State, the psychiatrist promised that ECT would benefit Terrazas, a point that the prisoner’s counsel disputed, arguing that Terrazas was not capable of providing informed consent.

The trial court agreed that the State could not show that Terrazas had the capacity to provide informed consent. But it found that the State “had proven by clear and convincing evidence” that (a) there was “a compelling interest justifying the use of ECT” on Terrazas; (b) there were “no less-onerous alternatives for him”; and (c) that ECT is “a sound medical and psychiatric practice.”

Terrazas’ counsel then filed for a writ of habeas corpus, and the Court of Appeal agreed to stay his ECT while it reviewed the petition. In that appeal, Terrazas didn’t challenge the trial court’s findings. Rather, he brought a claim under the right-to-privacy guarantee found in article I, § 1 of the state Constitution, arguing for “appointment of a surrogate decision maker to determine if [ECT] is medically necessary and consistent with [Terrazas’] expressed wishes or best interest.”

The Court, however, held that the “constitutional right does not require the appointment of a surrogate decision maker for an incompetent prison inmate.” But it also said the “privacy protection certainly protects against unwanted ECT.” That means that the state is required “to consider any wishes relating to medical treatment expressed by the inmate when previously competent.”

“[I]f a competent inmate refuses a medical procedure and then becomes incapacitated,” the Court continued, “the refusal may still preclude the state from the unrestrained imposition of the procedure that otherwise might occur under the parens patriae power.”

The Court noted that for “almost all medical treatments involving prison inmates in California, it is already the case that the inmate’s wishes while competent are considered.” So it said that “if the inmate later lacks capacity,” the State is required to consider “the inmate’s personal values and wishes, if known … before the state imposes invasive medical treatment on an inmate who lacks the capacity to give informed consent.”

That is because the right to privacy guaranteed by the state constitution includes “a fundamental interest in personal autonomy,” the Court explained, citing Conservatorship of Wendland, 26 Cal. 4th 519 (2001).

Since the record was “silent on whether Terrazas expressed any wishes while competent or … any view relevant to whether he would refuse ECT,” the Court granted the writ and vacated the order that imposed the therapy, ordering the trial court to hold a hearing to determine whether Terrazas, when competent, may have expressed any views that indicated a lack of consent to the imposition of ECT on him. See: In re Terrazas, 73 Cal. App. 5th 960 (2022). 

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