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AGO 1950 No. 326 - August 25, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

ADMINISTERING "SHOCK THERAPY TREATMENTS" TO INMATES OF STATE MENTAL HOSPITALS

In the administering of "shock therapy treatments" to inmates of state mental hospitals, it is unnecessary to obtain the consent of the inmate, or guardian, or relatives of the inmate, before such treatments can be administered.

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                                                                 August 25, 1950

Mr. H. D. Van Eaton
Director
Department of Public Institutions
Public Lands-Social Security Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 326

Attention:  !ttMr. Van R. Hinkle
            Supervisor

Dear Sir:

            We have your letter of July 10, 1950, in which you ask the following question:

            In the administering of "shock therapy treatments" to inmates of the State mental hospitals, is it necessary to obtain the consent of the inmate, or guardian, or relatives, etc., of the inmate, before such treatments can be administered.

            The conclusions reached may be summarized as follows:

            It is not necessary to obtain such consent, although such practice is desirable.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            We quote the following from your letter of inquiry:

            "A question has arisen in connection with the use of shock therapies at our state mental hospitals.  While such therapy has been widely recognized and accepted as proper treatment for mental disorders, occasionally situations arise where the family or patient objects to shock treatment.  Under such circumstances the mental hospital superintendents would like to be fortified with your opinion that such therapy may be used where such is indicated."

            The statutes pertaining to the state hospitals for the insane may be found at sections 6913 to 6974, Rem. Rev. Stat.; chapter 72, Laws of 1947 (6930, 6930a, 6930b, 6930c, and 6930-6, Rem. Supp. 1947); chapter 198, Laws of 1949 (6953-1 to 6953-67, Rem. Supp. 1949).

            The important section so far as this inquiry is concerned, is section 6923 Rem. Rev. Stat., reading in part:

            "The superintendent * * * shall have entire control of the medical, moral and dietetic treatment of the patients * * *."

            There would be no liability resting upon the State of Washington arising from "shock treatment" of any patient.  SeeRiddoch v. State, 68 Wash. 329, 123 Pac. 450.  The general rule is defined in 26 Am.Jur., Hospitals and Asylums, section 13, page 594 as follows:

            "The general rule, in the absence of any statutory provision to the contrary, is that strictly public institutions created, owned, and controlled by the state or its subdivisions, such as state asylums for the insane, municipal and county hospitals, reformatories, etc., are not liable for the negligence of  [[Orig. Op. Page 3]] their agents.  The doctrine of respondeat superior does not apply.  They are held to be governmental agencies brought into being to aid in the performance of the public duty of protecting society from the individual unfortunate or incompetent in mind, body, or morals, and the rules applicable to municipal corporations and public officers generally are applied.  This seems to be the rule whether the action is against the state, a county, a municipal corporation, or a hospital corporation created by the state to act as its agent in the case of those physically or mentally unwell.  There seems to be no dissent from the rule wherever applied to a case in which an injury to the person is considered, whether the injured person is a stranger, a patient, an employee or servant, or an invitee on the hospital premises.  * * *"

            The general rule as to the personal liability of officers and employees of state hospitals may be found at 26 Am.Jur., page 598, as follows:

            "As a general rule, the officers of public institutions are not civilly liable for their mistakes or neglect in the exercise of their discretionary powers, because they are acting in the interest of and for the benefit of the public, that is, they are exercising a power governmental in its nature.  It has been held, however, that the superintendent of a public hospital or sanatorium is liable for an injury to an inmate of the institution as the result of neglect or for personal misfeasance in conducting the hospital so that it becomes a nuisance, although such a superintendent is not ordinarily liable for the acts of his subordinates.  * * *"

             [[Orig. Op. Page 4]]

            InEmery v. Littlejohn, 83 Wash. 334, 145 Pac. 423, the court had for consideration an action brought by a third party against various persons including the then superintendent of Western Washington Hospital for the Insane to recover for injuries sustained by the shooting of such person by one Pence, who had been adjudged insane and committed to the Western State Hospital but had been paroled to his parents.  The court held that no recovery could be had against the superintendent.  The opinion is quite long and certain of the judges concurred in part or dissented in part.  We quote the following from the opinion:

            "We are of the opinion that the power of absolute discharge of patients from the hospital includes the power to parole or conditionally discharge patients therefrom; and that all acts of the superintendent under this power involve the exercise of discretion on his part of a quasi judicial character.

            "The acts of Dr. Calhoun here complained of being official, and calling for the exercise of his discretion, the law seems to be settled beyond controversy that he cannot be called to account for any consequences flowing therefrom, in a civil action for damages instituted by a person claiming to be injured as the result of such discretionary action, in the absence of malicious or corrupt action.  It is not claimed that Dr. Calhoun acted either maliciously or corruptly.  Indeed, it could not be with any show of reason under the evidence.  The most that can be said is that he acted mistakenly, or, for argument's sake, we may concede that he acted negligently; but, under all the authorities, such action would not render him liable in this action, since his acts were official and involved his discretion."

            See alsoSherbourne v. Yuba County, 21 Cal. 113; Tollefson v. Ottawa, 228 Ill. 134, 81 N.E. 823;Williams v. Indianapolis, 26 Ind. App. 628, 60 N.E. 367;City of Lexington v. Batson's Admr., 118 Ky. 489, 81 S.W. 264;Twyman's Admr.  [[Orig. Op. Page 5]] v. Board of Council of Frankfort, 117 Ky. 518, 78 S.W. 446;Ketterer's Admr. v. State Board of Control, & c, 131 Ky. 287, 115 S.W. 200; Browder et al. v. City of Henderson, 182 Ky. 771, 207 S.W. 479; University of Louisville et al. v. Metcalfe, 216 Ky. 339, 287 S.W. 945;McDonald v. Massachusetts General Hospital, 120 Mass. 432;Murtaugh v. City of St. Louis, 44 Mo. 479.

            It would seem that since the superintendent of a Washington state hospital for the insane is given by section 6923, supra, "entire control of the medical * * * treatment of the patients * * *", that no liability would rest upon such superintendent for such treatment so long as the superintendent followed practices and methods of treatment generally accepted in the medical world.

            This brings us to the question of whether the so-called "shock treatments" are of such nature as are generally accepted by physicians generally as being the proper treatment for the particular patient or inmate at the particular time.  We can find no adjudicated case on the subject of "shock treatments" as applied to publicly operated hospitals generally.  In your letter you refer to a possible Pennsylvania decision.  We communicated with the Attorney General of Pennsylvania, and he has sent us a formal opinion, # 582, dated May 18, 1948, addressed to the Secretary of Welfare of that state.  Such opinion may be found at 1947-1948 Ops. Atty. Gen. of Pennsylvania 120, 64 D. & C. 14.  The opinion is much too long and exhaustive to incorporate herein.  It calls attention to the fact that artificially induced convulsions by electricity began in Italy in 1938.  It cites several authorities, among them Pennsylvania Medical Journal, January 1948, Volume 51, Number 4, page 405, to the effect that electric shock treatments are considered standard medical practice.  It calls attention to the fact that there is nothing in the form of commitments used in Pennsylvania which gives the mental patient or any of his friends, relatives, guardians, or other person the right to determine what methods of treatment such mental patient should receive.  It citesChester Co. etc., et al. v. Commonwealth, 341 Pa. 49, 17 Atl. 212, to the effect that the care, treatment, and maintenance of mental patients in a state hospital is a governmental function.  It refers to and agrees with the opinion of the Attorney General of the State of Vermont to the Vermont State Hospital at Waterbury, dated March 29, 1945, to the effect that such hospital may administer in its sound discretion such treatment to an  [[Orig. Op. Page 6]] inmate as is indicated after diagnosis as being necessary or proper for his welfare and that there is no necessity for securing the consent of the inmate's relatives, although in such opinion they commend the hospital for having adopted a policy of obtaining such consent.  The opinion concludes:

            "We are of the opinion, therefore, and you are accordingly advised that the superintendents of State mental hospitals, in their sound discretion, may administer to patients of State mental hospitals, electric shock and such other treatments, which in the exercise of reasonable skill and judgment, are indicated, after observation and diagnosis, as being necessary and proper for the patients' best welfare, without first obtaining written permission for such treatments from such patients, their friends, relatives, guardians or other persons who may be legally entitled to give such consent on behalf of such patients; while such consent may be desirable in some cases, it is not essential under the laws of this Commonwealth."

            As above stated, section 6923, supra, would appear to be a direct grant to the superintendent of any state hospital for the insane of the entire control of the medical, moral and dietetic treatment of the patients.  We know of no state statute which gives to the patient or any of his relatives or friends any rights whatever as to the nature of such treatment.  Apparently, "shock treatments" are an accepted method of treatment.  We believe that it is entirely within the discretion of such superintendent to prescribe such "shock treatments" as he in his discretion may believe to be necessary for the welfare of such patient.  We agree with the above opinions of the Attorneys General of Vermont and Pennsylvania that the obtaining of such consent is to be commended, but do not hold that such consent is necessary.

             [[Orig. Op. Page 7]]

            Lest we be misunderstood, we are not holding that such superintendent would be entirely immune from any action which might be brought by an inmate where the superintendent was guilty of negligence in the administration of such "shock treatment."  There are many cases wherein practicing physicians have been held liable for negligent treatment of patients.  We are not attempting to define or prescribe the rules which might govern a particular case as to whether negligence was or was not present.  All we are holding herein is that so long as the superintendent makes a full, fair and complete diagnosis of the inmate's condition and believes within his sound discretion that "shock treatment" would be beneficial, that he has the right to administer such treatment according to the accepted rules of medical practice without being under any obligation to secure the consent of the inmate or of any other person whatsoever.  While we have spoken of the superintendent, what we have said would apply to the various members of the superintendent's staff, who derive their authority from him and are responsible to him.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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