Electroconvulsive therapy is the treatment people are most afraid of being given against their will, and it is the treatment California has fenced most carefully. The statute is older than most of the people reading it and it has one plain rule at its centre.

The short answer: not if you can consent and say no. "No convulsive treatment shall be performed if the patient, whether admitted to the facility as a voluntary or involuntary patient, is deemed to be able to give informed consent and refuses to do so."¹ Every patient in a psychiatric facility, voluntary or held, has the right "to refuse convulsive treatment including, but not limited to, any electroconvulsive treatment," and that right "may not be waived by the person's parent, guardian, or conservator."² Consent has to be written, on a standard form, "knowingly and intelligently, without duress or coercion," given "only after 24 hours have elapsed" from a full explanation that must cover, among other things, "the degree and duration of memory loss (including its irreversibility)."³ ⁴ It covers a stated number of treatments over "a specified maximum period of time not to exceed 30 days," and "shall be revocable at any time before or between treatments."⁵ If the attending physician or your attorney believes you lack the capacity to consent, a petition goes to the superior court, with a hearing "within three judicial days" at which you are present and represented.⁵ The one route to treatment over your objection runs through that court finding and then the consent of a relative, guardian or conservator — never through a doctor's decision alone.⁵

Two rules, and the order they come in

The first rule is the right to refuse. It sits in the list of rights posted on the wall of every psychiatric unit: "To refuse convulsive treatment including, but not limited to, any electroconvulsive treatment, any treatment of the mental condition which depends on the induction of a convulsion by any means, and insulin coma treatment."² The Legislature added that a parent, guardian or conservator cannot waive it for you.²

The second rule is the direct prohibition: no convulsive treatment for a patient who is deemed able to give informed consent and refuses. The physician must then write in your record that the treatment was refused despite the physician's advice, and that they explained to you "the patient's responsibility for any untoward consequences" of the refusal.¹ That sentence is the whole of what the law lets a doctor do with a competent refusal — document it.

What "informed consent" has to contain

Consent to ECT is not a signature at the bottom of an admission packet. The statute lists what you must be told, "in a clear and explicit manner," before consent counts:⁴

  • the reason for treatment — "the nature and seriousness of the patient's illness, disorder, or condition";
  • the nature of the procedure, "including its probable frequency and duration";
  • "the probable degree and duration (temporary or permanent) of improvement or remission, expected with or without such treatment";
  • the side effects and significant risks, "especially noting the degree and duration of memory loss (including its irreversibility) and how and to what extent they may be controlled, if at all";
  • "that there exists a division of opinion as to the efficacy of the proposed treatment, why and how it works and its commonly known risks and side effects";
  • "the reasonable alternative treatments, and why the physician is recommending this particular treatment"; and
  • that you have the right to accept or refuse, and, if you consent, "the right to revoke their consent for any reason, at any time prior to or between treatments."

Then the clock: written consent "shall be given only after 24 hours have elapsed from the time the information in Section 5326.2 has been given."³ A consent form signed in the same conversation as the explanation is not valid consent.

What the doctor may not do to get a yes

"The physician may urge the proposed treatment as the best one, but may not use, in an effort to gain consent, any reward or threat, express or implied, nor any other form of inducement or coercion, including, but not limited to, placing the patient in a more restricted setting, transfer of the patient to another facility, or loss of the patient's hospital privileges."³ And: "No one shall be denied any benefits for refusing treatment."³ A ward that offers off-unit privileges for agreeing, or hints at a longer stay for refusing, is doing what the statute names.

The statute also answers the argument that a psychiatric patient cannot really refuse: "A person confined shall not be deemed incapable of refusal solely by virtue of being diagnosed as having a mental health disorder."³

The extra steps for a patient on a hold

For an involuntary patient — anyone held under the Lanterman-Petris-Short Act, "including anyone under guardianship or conservatorship" — consent is necessary but not sufficient. Convulsive treatment may be given only if all of the following are met:⁵

  1. Documentation. The treating physician records "the reasons for the procedure, that all reasonable treatment modalities have been carefully considered, and that the treatment is definitely indicated and is the least drastic alternative available for this patient at this time."
  2. A two-physician review. A committee of two — one appointed by the facility, one by the local mental health director, both board-certified or board-eligible psychiatrists or neurologists, at least one of whom "shall have personally examined the patient" — must "unanimously agree" with those determinations and sign the record.
  3. A relative is told. A responsible relative of your choosing, and any guardian or conservator, gets an oral explanation from the attending physician — unless you decline to have a relative informed, or none is available.
  4. Your written consent, as above, for a stated number of treatments within 30 days, revocable at any time.
  5. Your lawyer agrees — your attorney, or a public defender appointed by the court if you have none — "as to the patient's capacity or incapacity to give written informed consent and that the patient who has capacity has given written informed consent."
  6. If capacity is disputed, the court decides. "If either the attending physician or the attorney believes that the patient does not have the capacity to give a written informed consent, then a petition shall be filed in superior court." The hearing is "within three judicial days after the petition is filed," and "the patient shall be present and represented by legal counsel."
  7. Only after a court finding of incapacity may treatment proceed on the written informed consent of "the responsible relative or the guardian or the conservator of the patient."

A patient found to lack capacity who believes they have regained it can say so and be re-evaluated.⁵

Voluntary patients, and treatment outside a hospital

The same core rules follow the treatment wherever it happens. For "all other patients including but not limited to those voluntarily admitted to a facility, or receiving the treatment in a physician's office, clinic or private home," the documentation, relative-notice and written-consent requirements apply, and a second board-certified or board-eligible psychiatrist or neurologist — not your treating physician — must examine you and verify "that the patient has the capacity to give and has given written informed consent."⁶ If that verification is missing, or you lack capacity, the full involuntary-patient procedure, including the court, applies.⁶

Minors

"Under no circumstances shall convulsive treatment be performed on a minor under 12 years of age."⁷ At 16 and 17, the rights above are yours to exercise personally.⁷ Between 12 and 15, treatment is allowed only as an emergency, life-saving intervention, with a review board of three board-eligible or board-certified child psychiatrists, appointed by the local mental health director, unanimously certifying the need, under state regulations, with the procedure reported to the state.⁷

Worked example

A woman on a 14-day hold is told on Monday that ECT is recommended and asked to sign. She asks for the explanation in writing; the 24-hour wait before any consent counts is mandatory whether she asks for it or not.³ On Tuesday she declines. The physician writes the refusal in the record.¹ The unit cannot use a more restricted setting, a transfer, or loss of privileges as a threat or inducement, and she cannot be denied any benefit for refusing.³ If the physician believes she cannot understand the decision, the route is a petition to the superior court and a hearing within three judicial days with her lawyer present — not a second signature from a relative.⁵ If the court finds she has capacity, her refusal stands.

Q&A

Q: I signed a general consent to treatment on admission. Does that cover ECT? A: No. Consent to convulsive treatment must be on the standard form, after the specific explanation, after 24 hours, for a stated number of treatments within 30 days.³ ⁴ ⁵

Q: I consented, had two treatments, and want to stop. A: Consent "shall be revocable at any time before or between treatments," orally or in writing, "and shall be given effect immediately."⁵

Q: My conservator wants to consent for me. A: Only after a superior court has found that you lack capacity to consent, at a hearing where you were present and represented.⁵ The right to refuse "may not be waived by the person's parent, guardian, or conservator."² A Probate Code guardian or conservator cannot authorise convulsive treatment under their Probate Code powers; it may be performed only under the Welfare and Institutions Code procedure above, including the court finding.⁸

Q: Who do I call if the unit is pressuring me? A: The county patients' rights advocate — every unit must post the list of patients' rights, which includes the right to see an advocate; ask staff for the number.² Who the patients' rights advocate is, and what they can do →

Our therapist directory: See its current status →

Related: Can they medicate me against my will? → · What happens after the 72 hours? → · A psychiatric advance directive in California →

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Sources

  1. Cal. Welfare & Institutions Code §5326.85 — "No convulsive treatment shall be performed if the patient, whether admitted to the facility as a voluntary or involuntary patient, is deemed to be able to give informed consent and refuses to do so"; the physician's record entry — california.public.law.
  2. Cal. Welfare & Institutions Code §5325 — subdivision (f), the right "To refuse convulsive treatment including, but not limited to, any electroconvulsive treatment, any treatment of the mental condition which depends on the induction of a convulsion by any means, and insulin coma treatment"; subdivision (h), the right "To see and receive the services of a patient advocate"; the posting requirement; and "The rights specified in this section may not be waived by the person's parent, guardian, or conservator" — california.public.law.
  3. Cal. Welfare & Institutions Code §5326.5 — (a) written informed consent given "knowingly and intelligently, without duress or coercion" on the standard form; (b) the bar on "any reward or threat, express or implied, nor any other form of inducement or coercion, including, but not limited to, placing the patient in a more restricted setting, transfer of the patient to another facility, or loss of the patient's hospital privileges," and "No one shall be denied any benefits for refusing treatment"; (d) "A person confined shall not be deemed incapable of refusal solely by virtue of being diagnosed as having a mental health disorder"; (e) "Written informed consent shall be given only after 24 hours have elapsed from the time the information in Section 5326.2 has been given" — california.public.law.
  4. Cal. Welfare & Institutions Code §5326.2 — the information that "shall be given to the patient in a clear and explicit manner," subdivisions (a)–(g) as quoted — california.public.law.
  5. Cal. Welfare & Institutions Code §5326.7 — convulsive treatment for "an involuntary patient, including anyone under guardianship or conservatorship," only if subdivisions (a)–(h) are met: (a) the physician's documentation; (b) the two-physician review committee; (c) the relative's oral explanation; (d) written consent "for a specified maximum number of treatments over a specified maximum period of time not to exceed 30 days," revocable "at any time before or between treatments," with withdrawal "given effect immediately"; (e) the attorney's agreement; (f) the superior court petition and hearing "within three judicial days after the petition is filed" with the patient "present and represented by legal counsel"; (g) consent of the responsible relative, guardian or conservator after a court finding of incapacity; (h) re-evaluation on a claim of regained capacity — california.public.law.
  6. Cal. Welfare & Institutions Code §5326.75 — "all other patients including but not limited to those voluntarily admitted to a facility, or receiving the treatment in a physician's office, clinic or private home": subdivisions (a), (c) and (d) of §5326.7 apply, plus verification by a board-certified or board-eligible psychiatrist or neurologist "other than the patient's attending or treating physician" that "the patient has the capacity to give and has given written informed consent"; otherwise the remaining §5326.7 steps apply — california.public.law.
  7. Cal. Welfare & Institutions Code §5326.8 — "Under no circumstances shall convulsive treatment be performed on a minor under 12 years of age"; "Persons 16 and 17 years of age shall personally have and exercise the rights under this article"; the emergency-only conditions for ages 12 to 15, including certification "by a review board of three board-eligible or board-certified child psychiatrists appointed by the local mental health director" — california.public.law.
  8. Cal. Probate Code §2356(c) — "Convulsive treatment as defined in Section 5325 of the Welfare and Institutions Code shall not be performed on a ward or conservatee under this division. Convulsive treatment may be performed on a ward or conservatee only as provided in Article 7 (commencing with Section 5325) of Chapter 2 of Part 1 of Division 5 of the Welfare and Institutions Code" — california.public.law.

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