MARCH 31, 1997 VOLUME 4, NUMBER 39
Winifred Branning lives in Sangamon County, Illinois. She has been determined to be incapacitated, and so a guardian has been appointed to make medical decisions for her.
In February of 1996, Ms. Branning’s physicians recommended that she receive electroconvulsive therapy (ECT) as treatment of her psychiatric illness. The guardian, Gwendolyn Lewis, agreed with the physicians and wanted to approve the treatment.
Illinois law provides that a competent patient may refuse consent to ECT (or to “any unusual, hazardous, or experimental services or psychosurgery”). When a guardian has been appointed, according to the same Illinois statute:
“[the] guardian is authorized, only with the approval of the court, to provide informed consent for participation of the ward in any such services which the guardian deems to be in the best interests of the ward.”
Ms. Lewis, following the statute’s dictates, petitioned the court for approval of the treatment. The court appointed an attorney to represent Ms. Branning, and conducted a hearing less than two weeks after her petition. After the hearing (at which Ms. Branning’s attorney unsuccessfully sought the appointment of an independent psychiatrist to evaluate her need for ECT), the court ordered that the guardian could consent to the treatment.
Ms. Branning’s attorney appealed, and the order authorizing ECT was temporarily canceled pending resolution of the appeal. Meanwhile, Ms. Branning was discharged from the psychiatric hospital on March 12, less than a month after the first request for ECT, and the question of whether ECT should be administered technically became moot.
Notwithstanding the fact that Ms. Branning was already released from treatment, the Illinois Court of Appeals decided that the procedure used to gain court approval of her proposed treatment was unconstitutional. Noting that patients have a right to refuse treatment even after a guardianship (unless it can be shown that they in fact lack capacity), the court said that there was insufficient evidence of her lack of understanding to permit the guardian to override her objections. Furthermore, Ms. Branning was entitled to an independent evaluation and a meaningful hearing, at which she must have the assistance of a capable advocate (though not necessarily an attorney).
The appellate court specifically rejected the notion that Ms. Branning’s guardianship hearing itself gave her an opportunity to object to possible treatment. The court noted that wards customarily do not attend hearings, and that (at least in Illinois) a guardian ad litem or lawyer is seldom appointed. Finally, the court noted with some satisfaction that Ms. Branning was in fact released from treatment without ECT, apparently without compromising her care. In re Branning, Illinois Appeals Court, Fourth District, December 18, 1996.
Arizona’s law would likely provide a vastly different result from the Branning case. Arizona has no specific statute requiring any special approval for ECT, psychosurgery or administration of psychotropic medications. In fact, the only Arizona statute dealing with ECT forbids the Division of Developmental Disabilities from administering or approving ECT as treatment for its developmentally disabled clients.
In fact, the common practice in Arizona is for guardians to consent to ECT where appropriate, without any court involvement or approval. While ECT remains a rarely used treatment, it usually does not involve any additional legal or procedural safeguards, other than informed consent from the patient or her guardian.