Shock Therapy Called Cruel; Kin DisagreeBy: Michael Higgins
Source: Tribune staff reporter
March 8, 2007
In a one-of-a-kind case in Illinois, a Cook County circuit judge has ruled that it is illegal to use electric shocks from a cattle prod to control the violent outbursts of a severely autistic man.
Bradley Bernstein, 48, who can speak only about 12 words, had received the shocks for two decades under a court-approved settlement reached in 1987.
But this fall, officials at his Chicago group home halted the practice, saying that it is inhumane and that a new state law forbids it.
The judge's ruling on Friday was a victory for Trinity Services Inc., which runs the group home, and a defeat for Bradley's parents, Fran and Robert Bernstein of Lincolnshire. The Bernsteins said Wednesday they may appeal the ruling.
The Bernsteins have argued successfully for years that the threat of the electric prod, which delivers a jolt like a bee sting, is the only way to stop their son from banging his head against hard objects or punching himself in the face until he's bruised and bloody.
"This is a terrible situation for Bradley," Fran Bernstein, 75, said Wednesday. "I am so afraid for him. ... How can they make us stop something that's allowing him to live a fairly normal life?"
The Bernsteins say their son has hit himself far more often since group home officials discarded the Hot-Shot Power-Mite, a small livestock prod about the size of two cigarette packs. But Trinity officials say only one incident, which required Bradley Bernstein to be hospitalized in October, has been serious.
The case casts a spotlight on one of the most controversial issues in the field of autism and mental retardation: whether it's ever ethical to use pain to control self-destructive behavior.
People with severe self-destructive behavior--as many as 25,000 nationwide, a federal panel has estimated--may punch or bite themselves or bang their heads violently. They may do so to gain attention, express frustration or for reasons experts don't fully understand.
For the past two decades, there has been a strong trend away from the use of punishments, known as "aversives," to curb that behavior. Some states have banned the practice. But when it comes to certain extraordinarily difficult cases, the issue is not yet settled.
Last month, a federal judge in New York issued a temporary order that preserves the use of electric shock on New York residents who attend a special school for people with autism in Canton, Mass.
The Bernsteins' latest legal battle centered on a conflict between past rulings that favored the couple and a new law passed in May that says that treatment plans for people with developmental disabilities must not include electric shock or other aversive punishments, such as withholding essential food and drink or causing pain or humiliation.
At an oral argument last month, Trinity Services' attorney, Matthew Henderson of Chicago, said that although "no one doubts the sincerity of Mrs. Bernstein," the use of electric shocks on people with disabilities is outdated and morally wrong.
"Things that were done previously--five, 10, 20 years ago--are simply not acceptable anymore," Henderson said. "There were several staff members who just flat out refused to do it."
The Bernsteins' attorney, Robert O'Donnell of Vernon Hills, argued that the law didn't apply in Bradley's case.
But Cook County Circuit Judge Kathleen Pantle disagreed.
Bradley has a right to "adequate, safe and humane treatment," but the legislature decides what methods qualify, Pantle wrote in a 10-page opinion. Pantle said the law passed in May categorized electric shock and the other methods as "beyond the pale in all cases."
Shocks approved in 1986
The Bernsteins had hoped Pantle would follow the lead of an earlier Cook County judge, who said in 1986 that shock was the only method that worked for Bradley, in part because he is allergic to some psychiatric medications. That ruling led to a settlement with the state Department of Human Services in 1987, which permitted the shocks.
A new settlement reached in April allowed Trinity Services to try to gradually wean Bradley off the shocker, the Bernsteins said. But they say the new law was passed in May without their knowledge--"all under the table," Robert Bernstein said--and the shocker was removed abruptly.
Disability-rights advocates began pushing for the new law about two years ago, said Tony Paulauski, executive director of the Arc of Illinois, which represents people with developmental disabilities.
He said the impetus for the effort came from Trinity Services' executive director, Art Dykstra, who told them about Bradley's situation.
"Art Dykstra came to us and laid the scenario out," Paulauski said. "We were surprised at the time that the use of electric shock... was legal in Illinois. The Arc itself has a longstanding position that there is no use for any aversives."
The Arc, Coalition of Citizens with Disabilities in Illinois and other groups attended hearings on the bill. But Paulauski said he did not contact the Bernsteins.
"I didn't feel that obligation," Paulauski said. "We were concerned about the individual" who received the shocks.
Dykstra could not be reached Wednesday for comment. Henderson could say only that, as far as he knew, it was disability-rights groups--rather than Trinity Services or Dykstra--that had gotten the law passed.
Illinois officials have said that except for Bradley, none of the more than 16,000 developmentally disabled people who live in state-funded homes and other facilities gets shocks.
How well Bradley is doing is in dispute.
The Bernsteins, who founded one of the state's first schools for autistic children in 1971, say they get almost daily reports from staff members who say that Bradley has tried to hit himself.
A couple of days ago, a staff member ended up wrestling on the floor with Bradley, Fran Bernstein said.
The staff member "took [Bradley's] hand and tried to stop him," Fran Bernstein said. But "Bradley is a big, strong man."
But Trinity officials say Bradley is easier to manage now than in the past.
Henderson, Trinity's attorney, said that he knew of only one serious incident since the shocker was removed: the episode in October in which Bradley began hitting himself while in the group-home's van.
"He's older now, and he's calmed down," Henderson said. "Generally speaking, he's doing better."
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