22 NORWEGIAN PARLIAMENTARY OMBUDSMAN National Preventive Mechanism ANNUAL REPORT 2017 ECT administered on grounds of necessity entails a high risk of inhuman or degrading treatment Findings made during the NPM’s visits in 2017 have shown that ECT administered on grounds of necessity is a very invasive form of treatment. The Ombudsman has identified cases where mental health professionals have found that patients have suffered serious cognitive side effects following ECT, and where the patients cannot remember having had the treatment. One clear finding was that patients who had undergone ECT on grounds of necessity are also subject to other invasive coercive measures during their treatment, such as the use of a restraint bed for the administration of ECT. The NPM also found cases where the use of force had escalated following a course of ECT on grounds of necessity. The overall scope of the use of force in connection with the administration of ECT on grounds of necessity leads to a high risk of patients being subject to inhuman and degrading treatment. administration had not been considered sufficient to avert the risk to the patient’s life and health. In one case, an ECT treatment based on grounds of necessity was postponed because the patient had eaten and ECT must be administered on an empty stomach. In another case, the documentation stated that there was a high risk of the patient developing pneumonia, without any explanation of why ECT was considered a suitable measure for averting this risk. Problematic aspects of necessity assessments Problematic findings were made at several of the hospitals visited by the NPM, in relation to the documented assessments of whether grounds of necessity applied. In several cases, ECT had been administered on grounds of necessity although it was unclear whether and why the strict conditions that apply were met. The cases concerned patients with serious conditions, e.g. described as suffering from severe catatonia12 or experiencing serious side effects of neuroleptics. However, in a number of cases it was not made clear that there was an acute risk to the patient’s health that could not be averted by other means. In several cases, it was not documented whether lawful treatment measures had been attempted or considered first. Where ECT had been administered on grounds of necessity because of e.g. the serious side effects of medication or low nutritional intake, there was no explanation of why intravenous fluid and nutrition The principle of necessity does not confer legal authority for a course of compulsory treatment In most cases, ECT administered on grounds of necessity was repeated over several days or weeks. One patient underwent 12 ECT treatments over a period of a month. The apparent grounds for this was that there an ongoing acute risk throughout the period the treatment was administered. The information in the patient record indicated, however, that the patient’s condition was not acute during the whole period. In another case, a decision was made to administer a course of ECT therapy on grounds of necessity because the patient had recently interrupted ECT on grounds of necessity after four treatments, which resulted in a deterioration in the patient’s health. The current practice of administering ECT on grounds of necessity without clear regulation in law also creates a risk of misunderstandings arising with respect to the legislation. The NPM found examples of health professionals who had initiated a course of ECT on the grounds of necessity asking the patient’s next of kin for consent to the treatment. Next of kin cannot consent to health care on behalf of a patient, including on grounds of necessity. 12 Catatonia is a state of motor immobility, in which people maintain rigid and unnatural poses, often for hours at a time. Some of them can seem completely withdrawn and communicate very little or not at all. This condition can lead to insufficient fluid and nutrition intake (Malt, Andreassen, Melle and Årsland, Lærebok i psykiatri 2012, Gyldendal Norsk Forlag AS).