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The Judge Rotenberg Center on Trial, Part 5

by Shain Neumeier

The case for the defense in the trial over the (alleged mis)use of electric shock and restraint on Andre McCollins at the Judge Rotenberg Center continued on Wednesday, 18 April 2012.  After Dr. James Riley’s testimony concluded, his attorney, Edward Hinchey, called Dr. Carol Ball, a psychologist, to the stand.  In introducing herself, she stated that her specialty was in cognitive behavioral therapy, with a focus on providing treatment to people with sexual behavior issues.  She discussed her experience with using aversives, specifically in treating sex offenders by exposing them to noxious odors such as ammonia and, in some cases, using skin shock at the same time that she presented them with sexually stimulating images in order to reduce physical arousal to the images’ content.  She clarified that she did not use the skin shock device used at JRC, the Graduated Electronic Decelerator (GED), stating that the device could not be used in outpatient practice.  As for her connection with JRC itself, she testified that she had been hired as a consultant to the program in 1996.  However, she had decided not to work with it further, as it was “not a good fit” due to the differences in the populations that they worked with.

Before discussing the case itself, she provided information on the difference between psychiatrists and psychologists, stating that the former relied on a “disease model” in providing treatment while the latter focused on learned behaviors with the potential for change.  She was also asked about whether a psychotic patient could be a good candidate for the use of aversives, to which she replied “certainly,” explaining that cognitive awareness was not required for behavioral modification.  In support of this, she stated that literature exists that establishes that aversives have been effective in treating psychotic patients.

In reviewing the records, which had involved her watching all of the video footage as recently as the previous night and reviewing the various medical records and depositions used in the case, she had focused on Dr. Riley’s involvement – namely, the time frame of 10:19-10:39 A.M. on 25 October 2002.  Before asking her further questions, Mr. Hinchey asked her to assume a number of facts, which essentially laid out the defense’s, or more specifically Dr. Riley’s, version of the case.  Based on these assumed facts, she concluded that Riley “followed the rules completely, and was completely within the standard of care.”  She went on to say that his decision to put Andre on the four-point restraint board had been “the humane thing” to do, and that it showed that he had cared about Andre’s comfort.  Furthermore, she was of the opinion that Dr. Riley had made a reasonable judgment to continue the use of electric shock on Andre, in that it had “seemed appropriate,” and that stopping the shocks could have reinforced his tensing up.  Interestingly, she described full-body tense-ups as an aggressive behavior that justified the use of aversives, in contrast to how his treatment plan, allowing for the use of electric shock in response to them, classified them as “health-dangerous,” or self-injurious, behaviors.  Finally, with regards to Dr. Riley’s having left JRC early in the afternoon and not checking in on Andre over the weekend, Dr. Ball concluded that this also had been within the standard of care.

As far as the harm that Andre had suffered as a result of the incident, she testified that none of the damage had been permanent.  She referred to the hospital records from his stay at Children’s Hospital Boston, which stated that he had returned to baseline by the time he went home.  In fact, based on his records from later residential programs, she concluded that he had improved and gained skills, and noted that the program he has been attending now has been trying to get him into a more community-based, and less restrictive, setting.

The cross-examination began with Mr. Novotny calling into question Dr. Ball’s qualifications to testify in this case.  Namely, he brought out through questioning the fact that she had not had an Autistic patient in the last ten years, and had not worked in an inpatient setting for the last twenty-five.  Most of her time, in fact, was not spent treating patients, but rather in serving as an expert witness in other cases, many of which were hearings for the purpose of committing sex offenders about to be released from prison to psychiatric facilities.  He also attempted to call into question whether she could be trusted to give an unbiased opinion because of her prior consulting work at JRC.

Mr. Novotny did, however, rely on her experience with working with sex offenders to ask whether a victim of sexual abuse would be retraumatized by what Andre went through at JRC.  Dr. Ball conceded that it was possible that a four-point, prone restraint could have this effect.  However, the defendant raised an objection, which the judge sustained, putting an end to this line of questioning.

The plaintiff’s attorney also got Dr. Ball to agree that there was no “one size fits all” treatment, and that a different situation required a different approach in treatment, and possibly a change in the overall treatment plan.  She disagreed, however, with the statement that the incident was all that distinct from the other 20 times that Andre had been restrained at JRC, stating that the only difference had been the number of shocks that Andre received.  Still, Mr. Novotny pressed on, eliciting testimony that, if someone was learning from treatment, this would generally lead to a deescalation, and the situation with Andre had not in fact deescalated that day.  Specifically, at the end of the day, the “restraint had gone on long enough” and wasn’t helping, which is why it eventually stopped.  When asked, Dr. Ball stated that she did not know if Andre learned anything that day and stopped tensing up as a result of the aversives used on him, but stated that she was not in the position to make a determination about when enough had been enough.

Mr. Novotny introduced into evidence the behavioral recording sheet used on the day of the incident, which listed the behaviors for which Andre had been shocked.  It came out that none of the first fifteen shocks used that day had been recorded, or possibly that the records of them had gone missing.  However, the purpose for which he introduced the document was to show that the rest of – in fact, the majority of – the shocks were for tensing up and screaming, which, contrary to what Dr. Ball had said on direct examination, were not classified, even by JRC, as aggressive behaviors, but instead as self-injurious ones.

The discussion turned to whether Dr. Riley specifically had been operating within the standard of care in making the decisions he had.  Mr. Novotny first asked Dr. Ball whether it was true that Dr. Riley didn’t know what JRC’s own policy provided for with regards to how often Andre should have been let out of restraints.  Mr. Hinchey objected to this, and, after a brief conversation with the judge, the objection was sustained.  Novotny then returned to the issue of psychiatric contraindication for the use of combined aversive interventions that had come up in Dr. Riley’s testimony.  When asked, Dr. Ball agreed that, if an aversive had been contraindicated, then it should not have been used.  Furthermore, she said that she would in fact be critical of Dr. Riley if he acted in a way not accordance with this principle.

When asked what exactly the good care that Dr. Riley had provided had been, Dr. Ball said that he had observed the experts in working with the patient.  In response to Mr. Novotny asking whether being present and observant was truly sufficient under the circumstances, she defended her statement by saying that talking with Andre about what happened and how he felt at the time would have gone against JRC protocol of not rewarding target behaviors with attention.

Finally, Mr. Novotny focused on Andre’s state following the incident.  He asked the witness whether she remembered from the records that Andre had not been able to walk out of the room by himself that day, or that he had been reportedly “withdrawn and catatonic,” curled up in a fetal position, in the hours and days after the incident.  He also reminded her of how Andre had been kept in waist and leg restraints, which JRC treatment staff had specified would continue “until further notice,” and that Andre had been transferred to Children’s Hospital for medical evaluation only at 7:30 the following Monday after remaining unresponsive, crying frequently, and refusing to eat or drink over the course of the weekend.  Dr. Ball agreed with Novotny’s statement that Andre had continued to be afraid during his recovery, though she qualified this, saying that it had not consistently been the case.  At the end of the cross examination, the attorney argued that the improvements Andre had made in the years since the incident at JRC had been made in spite of what had happened to him, and that only Andre’s own efforts and his mother’s advocacy had allowed this to happen.

The brief redirect examination with Mr. Hinchey sought to establish that Andre had in fact been known to be unpredictably violent without provocation, including on the morning of the incident before he was brought into the classroom.  The witness also reiterated that Dr. Riley’s decision to put Andre on the restraint board had been the “most caring and appropriate” way of handling the situation.  Finally, she defended her testimony as fair and honest, saying that having worked with JRC had not made her too biased to give a reliable opinion.

The defense’s next witness was Dr. Robert Von Heyn, who is currently the Executive Director of JRC and had been, at the time of the incident, the facility’s clinical director.  As brought out in the beginning of his testimony, he is a board-certified behavioral analyst who has worked at JRC for 22 years.  He stated that he is not, in fact, a licensed psychologist, as his degree was in experimental, rather than clinical, psychology, and in order to get a license he would have to pursue much more extensive graduate training.  When asked whether he had been legally allowed to work at JRC without a license, he replied that he had, but that the state of Massachusetts had forced JRC to no longer hold him out as a psychologist, as this was against state regulations established sometime during the nineties.  This had led to him being named the program’s Director of Clinical Services.

With regards to the events of 25 October 2002, he testified that his involvement had initially been to check briefly on Andre, who was not his own patient, when he heard screaming coming from the classroom Andre was in.  He left the room three to four minutes later, concluding that the members of staff restraining him were taking good care of Andre.  Later, he returned with Sue Parker, the Director of Programming, to give authorization for staff to shock Andre up to forty times.  However, at the time, he also temporarily removed tense-ups from the list of target behaviors for which Andre could be shocked.  Following this, he had gone to talk to Dr. Israel, the Executive Director of JRC at the time, about the situation.

In describing the situation, Von Heyn said that it had been an unusual event in terms of the length of the restraint and the number of shocks Andre had received, and that “Andre had been presenting different[ly]” that day.  When asked about Andre’s behavior at other times, he said that he had seen Andre doing well, and that he had never personally seen Andre acting aggressively.  However, he was aware that Andre exhibited problematic behaviors upon his admission to the program, and believed that he was a good candidate for aversive treatment.  Beyond that, though, he did not remember anything about Andre in particular, and had not reviewed Andre’s treatment plan before it was submitted for court approval.

The defense attorney briefly questioned Von Heyn about a part of the video footage in which JRC staff could be heard laughing.  Von Heyn, however, said that he could hear the conversation preceding the laughter only “to a certain extent,” and was not able to testify as to what was actually said.  During this part of the testimony, Von Heyn pointed out one of the people in the courtroom, Karl Weiskler, who had been a technician assisting with the GEDs in the classroom with Andre on the day of the incident, and who, according to the defense attorney, had made a joke that had prompted the laughter.

The discussion then turned to a more general discussion about the GED shock device, and how Von Heyn had (“in a sense,” as he said) been involved in its development.  The device used before it, the Self-Injurious Behavior Inhibition System (SIBIS) had provided a shock that had been too weak and too short to have any real effect, according to him.  He had assisted on the clinical end of things in the development of the JRC’s own device.  The result was the GED, which delivered a stronger shock not just by virtue the amount of electricity it used, but also because of how it came in waves, or vibrations, which made it more painful.  He compared the shock to a hard pinch with one’s fingernails – an analogy used often by JRC staff and supporters.  The defense attempted to have Von Heyn demonstrate the GED on himself in court, but Mr. Novotny objected, and the judge agreed with him, keeping this evidence out.

As used at JRC, according to Dr. Von Heyn, individual GEDs are tested every day for performance, and are calibrated when found to be malfunctioning.  The devices are carried by students in backpacks or fanny packs, attached to students’ bodies by electrodes.  They are remotely activated by individual remotes, upon which are the names and pictures of students with the corresponding devices to prevent shocking the wrong person.  In deciding to shock a student, two JRC staff members must check the student’s daily recording sheet to confirm that the behavior merits use of the GED.  After the shock, staff will verbally pinpoint the behavior that led to the shock – e.g., “Andre, no full-body tense-ups.”  Von Heyn testified that this process must be used every single time a student receives a shock.  Furthermore, he stated that everything in the facility is recorded by and looked at by JRC’s monitoring department, which consists of senior members of staff.

The examination then returned to the events at issue in the case, using the video footage for reference.  In many parts of the video, Andre is repeatedly saying “no,” “ow” or similar phrases without being manually restrained or shocked, which Von Heyn characterized as Andre “exhibiting verbal behaviors” and being “less than fully calm,” while claiming that he could not understand what Andre was saying.  At one point, however, after screaming in pain at one particular shock, Andre went silent.  Von Heyn interpreted this as him calming down as a result of the GED being used.  The defense showed a number of clips in which Andre was offered water and was checked on by nurses for his comfort and safety while in restraints.  There were three instances shown in which Andre was offered water, and in two of these he answered yes.  As the defense attorney pointed out, it was impossible to tell from the camera angle whether Andre actually succeeded in drinking the water.  Over the course of the day, nurses checked on his blood pressure, his eyes (which prompted Andre to ask for his glasses – “I see better with those”), adjusted the restraints on his arm when he complained that they hurt, and inquired as to whether he was okay (to which he at one point replied no).

The walkthrough included watching points of the video having to do with times that staff offered to take Andre to the bathroom.  At 1:09 in the afternoon, he was offered a trip to the bathroom, and told staff that he did, in fact, need to go.  Shortly after, the staff attempted to put a backpack carrying the GED on Andre, in response to which he started to struggle.  He became still more agitated as staff removed him from the restraint board and started to place his arms and legs in other types of restraints in order to move him. During this process, he was shocked three times in response to full-body tense-ups, which only caused him to scream more.  Because of his struggling, he was returned to the restraint board and not, in fact, allowed to use the bathroom.  In the courtroom, Mrs. McCollins was so upset by watching this that she had to leave the room, and did not return while the video was still playing.

The video footage shows that staff offered Andre an opportunity to use the bathroom again at approximately 3 P.M. that day, almost immediately after which Andre received another GED application.  At 3:15, a bunch of JRC staff entered the room, and Andre’s case manager asked him again about using the bathroom. In response to this, Andre started to struggle and say “no” again.  This only escalated once four staff members began the process of placing a diaper on Andre, taking his pants off and putting it on over his underwear, as well as physically restraining him while he was still on the four-point restraint board.  Andre started to scream “ow” and “help me” as well as “no,” which staff responded to by shocking him four times.  Von Heyn testified that, had this not been the thirtieth shock, forcing the staff to wait for further authorization, they would have shocked him more during this process, as he continued to engage in target behaviors.

Von Heyn, and Sue Parker with him, only entered the room after the staff had succeeded in putting the diaper on Andre, but while Andre was still being both physically and mechanically restrained.  He testified again to having given staff authorization to shock Andre up to forty times.  However, he stated that Andre received no further shocks that day, leaving the thirty-first shock unaccounted for.

The testimony of Dr. Von Heyn concluded the following day, which I was unfortunately unable to attend.  The next blog post will cover almost all of Dr. Israel’s testimony (as a very small amount was presented on Thursday afternoon), as well as that of the other expert witness for the defense and a direct care worker who shocked and restrained Andre on the day of the incident.

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