It’s Legal to Shock Disabled Students – Court; FDA Unlawfully Tried to Interfere With Practice of Medicine
It's Legal For A School To Shock Disabled Students
ASHINGTON, D.C. (July 16, 2021) - A federal court says that, despite the FDA's attempt to prohibit the practice, it's legal for a school to shock students with intellectual disabilities - even though the United Nations labeled it as "torture," and critics said it's "dehumanizing" and like "training a dog."
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But, noted Banzhaf, who both teaches disability law and has created many legal precedents in the area, aversion therapy using electric shocks is widely used in many situations, including to help people quit smoking or reduce drinking problems.
Although the FDA concluded that it can cause long-lasting problems - including depression, anxiety, post-traumatic stress disorder, pain, burns, and tissue damage - and that evidence of the device's effectiveness was “weak,” there are also many examples when it was effective in treating people with serious behavioral problems.
Those include people who are prone to engage in extremely dangerous behaviors, including banging their heads to the point of retinal detachment and blindness, self-biting, breaking their own bones, and violently attacking others.
But in the end the court's decision did not rely upon the alleged risks and benefits of using electrical shocks. Rather it was based upon the simple principle that, although the powers of the FDA are vast, Congress has not authorized it to interfere with the practice of medicine.
FDA Interferes The Practice Of Medicine
As the court explained, "In this case, the statute says that the FDA is not to construe its statute so as to interfere with the practice of medicine. That means that the FDA may not enact the regulation at issue before us. Because we conclude that the FDA lacks the statutory authority to ban a medical device for a particular use, we do not address petitioners’ other arguments, including whether the ban was arbitrary and capricious or whether substantial evidence supported the FDA’s factual determinations."
As a result, the court "vacate[d] the FDA’s rule banning electrical stimulation devices for self-injurious and aggressive behavior"- a decision which applies nationally.
This determination - that Congress did not grant the FDA power to ban a medical device for a particular use - may also have ramifications in other areas, and embolden practitioners to similarly attack other FDA rulings, says Banzhaf, whose legal action opened the door to the FDA's determination that was an addictive drug, and to its assertion of jurisdiction over e-cigarettes.
This is especially true because the U.S. Court of Appeals for the District of Columbia, which made the determination, is the court which handles most cases involving the FDA and other federal agencies.