California Legal Brief

The Rule of The People v. T.B. is that "no less onerous alternatives" in Penal Code section 2679(b) refers to medical alternatives to the proposed organic therapy, not to alternative procedural methods of obtaining consent, under circumstances where an inmate patient lacks capacity to consent to electroconvulsive therapy and the court must authorize nonconsensual ECT.

Appeal from order granting petition to authorize electroconvulsive therapy in Superior Court, San Bernardino County.

Defendant Appellant was T.B. — an inmate serving a life sentence for murder with severe treatment-resistant schizoaffective disorder.

Plaintiff Respondent was The People — representing the prison warden who petitioned for court authorization of ECT.

The suit sounded in authorization of nonconsensual medical treatment for an incarcerated person lacking capacity to consent.

The key substantive facts leading to the suit were defendant's severe mental illness resistant to all other treatments, her incapacity to give informed consent, and the medical necessity of ECT as demonstrated at trial.

The procedural result leading to the Appeal: The trial court granted the warden's petition to authorize ECT for six months, ruling that all statutory requirements under Penal Code sections 2670-2680 were satisfied, including that there were no less onerous alternatives.

The key question(s) on Appeal: Whether "no less onerous alternatives" in Penal Code section 2679(b) encompasses procedural alternatives to nonconsensual treatment, specifically whether the possibility of obtaining surrogate consent under Welfare and Institutions Code section 5326.7 must be explored before authorizing nonconsensual ECT.

The Appellate Court held that "no less onerous alternatives to such organic therapy" refers to medical alternatives (such as other treatments) rather than alternative procedural methods of approving the therapy, where the Legislature deliberately excluded ECT from the general surrogate decisionmaking process for inmates in Penal Code section 2604.

The case is inapplicable when the inmate patient has capacity to give informed consent, when dealing with medical procedures other than ECT that fall under the general surrogate provisions of Penal Code section 2604, or when the patient is civilly confined under the LPS Act rather than incarcerated.

The case leaves open whether equal protection challenges to the ECT authorization scheme might have merit (court declined to consider undeveloped argument), and the application of this holding to emergency ECT situations under Penal Code section 2671.