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In re W.S.

May 16, 1977

IN THE MATTER OF W.S., JR., A PATIENT IN THE UNITED STATES VETERANS ADMINISTRATION HOSPITAL, LYONS, NEW JERSEY


Cass, J.J.D.R.C.

Cass

This matter was brought before the court on a notice of motion for an order authorizing the utilization of shock therapy in the treatment of W.S., Jr., an involuntarily committed patient at the Veterans Administration Hospital, Lyons, New Jersey (hospital). The hospital filed the motion with the court on May 12, 1977. Notice was given to W.S., his attorney, Essex County Counsel, the Essex County Adjuster, and the parents of W.S.

Because of the alleged emergent and critical condition of this patient and his immediate need for extraordinary treatment, the matter was specially heard on Monday, May 16, at the hospital. Present were the patient, his counsel, his mother and father, counsel for the hospital, an Assistant County Counsel, a representative of the office of the Essex County Adjuster and staff personnel of the hospital.

The patient, a veteran now 34 and single, was admitted to the hospital on April 9, 1965. A final order of commitment was entered by the Somerset County Court judge on August 6, 1965, adjudging W.S. insane and ordering his involuntary commitment to and confinement in a United States Veterans Administration Hospital "permanently or

until restored to his right mind or until further order of competent jurisdiction." A review hearing was held by the judge at the hospital on August 4, 1976, continuing his commitment. Thereafter his legal settlement was determined to be in Essex County. An order was entered on January 7, 1977 transferring the matter to the Essex County Court for all further proceedings thereon. On April 27, 1977 this matter came on for periodic review before the Essex County Juvenile and Domestic Relations Court, Domestic Relations Division, which hears all such reviews in this county. The judge found W.S. to be dangerous to himself and others as a result of a mental illness and ordered the commitment continued. Mention was made of the possible future need for shock treatments, but these were not requested because other modes of treatment were to be utilized, thereby hopefully obviating the need for same.

Mentally ill patients have the right to be informed of and participate in the decision-making aspects of their treatment. The Veterans Omnibus Health Care Act of 1976, enacted by Congress on October 1, 1976, incorporates provisions for the protection of veteran patients' rights, including the requirement that to the maximum extent practicable all patient care shall be carried out only with the full and informed consent of the patient or, in appropriate cases, a representative of the patient. 90 Stat. 2849, 38 U.S.C.A. ยง 4131.

The purpose of informed consent as set forth in the act's legislative history is to insure the development of regulations by the Veterans Administration to protect "the patient's right to decide, voluntarily, what is in his or her best 'health' interest, weighing the risks involved against the potential gains." 1976 U.S. Code Congressional and Administrative News , at p. 6407. No such regulations appear to have been promulgated.

The care of mentally ill persons is, however, essentially a state function. Wells, by Gillig v. Attorney General of the United States , 201 F.2d 556 (10 Cir. 1953). Provisions for

the protection of patient's rights are contained in N.J.S.A. 30:4-23 et seq. , which title governs the admission and commitment of the mentally ill in New Jersey. Included in the general principles declarative of the public policy of this State is that found in N.J.S.A. 30:4-24:

(5) inasmuch as such mental disorders may in some cases substantially impair the individual's ability to guide his actions in his own best interests or with due regard for the rights of others, provision be made for the due process of law by which such an individual may be placed under protection, treatment or restraint in his own or the public interest; * * *.

N.J.S.A. 30:4-24.1 guarantees fundamental civil rights for every mentally ill patient, including medical care in accordance with accepted standards and the right of the patient to participate in the planning of his own treatment to the extent his condition permits. N.J.S.A. 30:4-24.2 details the rights of mentally ill patients in treatment, among which is the provision that "no patient may be presumed to be incompetent because he has been examined or treated for mental ...


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