In November, a U.S. Court of Appeals rejected the Food and Drug Administration’s (FDA’s) request to reconsider FDA rules that ban the use of electric shock.
In 2020, the FDA finalized regulations prohibiting the use of ‘electrical stimulation devices’ on people with disabilities who have self-injurious or aggressive behaviors. The regulations were challenged by parents affiliated with the Judge Rothenberg Educational Center in Massachusetts, the nation’s only treatment center using electric shock for the treatment of challenging behavior in people with disabilities. In July 2021, the Washington, D.C. Circuit Court of Appeals overturned the FDA rules after three of the panel’s judges heard the case. The FDA appealed the decision, asking the case to be considered by all eleven of the court’s judges. That effort was denied in late November.
The Court of Appeals found that the FDA has the authority to ban a device but acted inappropriately because the regulation only sought to disallow electrical stimulation devices for the purpose of treating aggressive or self-injurious behavior while allowing the devices for other uses. The court found that such a limited ban amounted to regulating the practice of medicine, which is outside the purview of the FDA.
In the court opinion, justices wrote: “The FDA has no authority to choose what medical devices a practitioner should prescribe or administer or for which conditions.”
Advocates have long argued that the use of electric shock amounts to torture, not treatment. Supporters of the electrical shock devices claim it is a last resort for individuals with severe and life threatening behaviors who have not responded to other treatments. Advocates have called on the FDA to ban the use of shock devices for any and all purposes.
