GPSOLO April/May 2008
The Rights of Children Regarding Medical Treatment
On February 2, 2007, Governor Rick Perry of Texas issued an executive order requiring that all middle school girls be vaccinated against certain strains of human papilloma virus (HPV), a sexually transmitted disease that is known to increase the risk of cervical cancer in women. The only vaccine for this purpose was Gardasil, a recently approved vaccine created by the pharmaceutical company Merck. The HPV vaccination order touched off a firestorm of controversy, with one representative accusing the governor of attempting to expand his powers in a manner “unprecedented in Texas history.” Ultimately, veto–proof majorities of both houses of the Texas legislature passed a bill rescinding the executive order. Governor Perry allowed the bill to become law without his signature, but not before calling a press conference, complete with cervical cancer survivors, to lambaste his opponents. Fallout from the Texas fight spread across the country. By late July 2007, the United States House of Representatives had passed a Georgia Republican’s bill prohibiting the use of federal funds by states to pay for mandatory HPV vaccination as a prerequisite to school admission.
Largely missing from the debate was the simple observation that it is the child’s body receiving the drug and it is the child enduring the consequences of decisions being made by the parents or the state. Two examples highlight the issues involved. A young lady interviewed for a report broadcast March 29, 2007, on the National Public Radio program Day to Day stated that the Gardasil vaccine was “unlike any other shot I’ve ever received” in its burning sensation. More tragically, and involving different drugs, a story broadcast September 30, 2007, on the CBS News program 60 Minutes, entitled “What Killed Rebecca Riley?” reported the death of a four–year–old child from a toxic mix of psychotropic drugs prescribed by a doctor and administered by her parents.
What rights do children have with regard to receiving or refusing medical or psychiatric treatment in general? The short answer is “none,” at least if we look at the child’s rights when in opposition to the decision of a parent, another designated caretaker, or the state that treatment would be in the child’s “best interest.” The courts have long approved mandatory vaccination as a public health issue. Statutory exceptions to the rule that parents decide on medical treatment have historically been enacted with an eye to protecting the persons providing the treatment rather than empowering the child.
In the 1967 case of In re Gault, 387 U.S. 1, the Supreme Court expanded the rights of juveniles in criminal cases and rejected the state’s claim that it was entitled to deny the child certain rights in order to impose appropriate discipline. However, when a suit filed by children being involuntarily treated in Georgia mental health facilities came before the Court in 1979, in a case styled Parham v. JR, 442 U.S. 584, the Court refused to expand children’s rights to direct psychiatric care that was approved by their parents or guardians. The “child’s interest in not being committed” was deemed by the court to be “inextricably linked with the parents’ interest in and obligation for the welfare and health of the child,” so “the private interest at stake is a combination of the child’s and parents’ concerns.” The Parham court relied on the independent medical judgment of a “neutral” physician to protect the child’s rights. The Court further stated that children are not entitled to make treatment decisions because most children, including adolescents, “simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment.”
Because the Parham court found, with respect to children “voluntarily” committed by the state’s child protective services system, no evidence that the state “attempted to admit any child for reasons unrelated to the child’s need for treatment,” no different admitting process was required for a child ward of the state than for a child voluntarily committed by his or her parent.
State Legislative Initiatives
Legislatures have not been so sure of the foster care system’s focus on the “child’s need for treatment,” especially as allegations have emerged across the country that state–sponsored foster care facilities may have made excessive use of psychotropic drugs to minimize disruptive behavior by children in care. Reflecting a trend toward more oversight on treatment decisions for children in foster care are statutes passed in 2005 by the legislatures in Florida and Texas.
Florida.The Florida statute allows an agency with custody of the child to consent to most medical treatment, including immunization, without court intervention or oversight, unless the parent or legal custodian opposes the proposed treatment. The department, however, cannot consent to the administration of psychotropic drugs without first obtaining court authorization unless a parent “provides express and informed consent” to the medication. Thus, a parent or custodian may veto the administration of psychotropic drugs, subject to court review, but the child has no independent right to reject treatment, including psychotropic medication.
Texas. The Texas legislature took a substantially different approach to the issue of medical treatment of children in the custody of the department. Medical care may not be provided to a child in foster care unless the person authorized by court order consents to the medical care. The individual designated by name in the court order as the “medical consenter” for a particular child is the only person, absent an emergency, who may consent to any medical treatment, including immunization and psychotropic medication on behalf of the child. A parent whose rights have not been terminated may be “the person authorized” to consent to medical care for his or her child, but only if the court also finds that it is in the best interest of the foster child to leave that parental right intact. A foster parent who is willing to assume, and is deemed by the court to be appropriate to assume, the role may be the authorized medical consenter. The court may also designate the department as the medical consenter, but the department must, within five business days, file with the court and each party the name of an individual who will exercise the duty and responsibility of providing informed consent for treatment of the child. In 2007 the Texas legislature made clear that the department’s named individual could also be the parent or foster parent.
After initially designating the person authorized to consent, a Texas court is required to review the medical care being provided to a child in foster care at each subsequent hearing on the case, including hearings after termination of parental rights, until the child is adopted. At each hearing, the department must provide, and the court must review, a summary of the medical and mental health care being provided to the child. Each foster child, regardless of age, must be given an opportunity to express to the court the child’s views on the medical care being provided to the child.
Another Texas statute requires the appointment of an attorney ad litem for the child immediately upon the filing of a petition in which the department seeks custody of the child. These attorneys remain on the case from filing through entry of a final order, so the child should have an advocate to help present his or her views to the court at each temporary hearing on the case.
Special consent rules apply to a foster child who is at least 16 years of age. A child of 16 or older may be designated as the person authorized to consent to his or her own medical treatment. When a child of 16 enters care, or before the 16th birthday of a child already in care, the department is required to notify the child of his or her right to ask the court for authorization to consent to his or her own medical care. Training for the child on informed consent must be provided as part of the department’s Preparation for Adult Living program. If the trial court at any hearing relating to a child 16 or older “determines that the child has the capacity to consent to medical care,” then the child should be authorized to be his or her own medical consenter. If the court decides the child lacks capacity, that decision may be considered de novo at each subsequent review hearing and must be reconsidered on request by the child.
The order authorizing the child to consent may be limited to certain treatments or procedures or may apply to all medical care. If the court determines the child lacks capacity to consent with respect to some types of medical care, the individual appointed to provide informed consent on behalf of the child continues to have authority to consent to those treatments or procedures. A separate section governs emergency medical care, regardless of the child’s age. A separate statute also governs administration of medication to a child 16 or older who is an inpatient at a mental health facility where medication is part of the involuntary treatment being provided.
Once the decision has been made to allow an older child to consent or refuse to consent to treatment, the statute creates substantial barriers to removing that right. If a child who has been given the authority to consent refuses to consent to medical care, the department may file a motion requesting specific authorization for proposed medical care. The motion for court–ordered medical care must include: (1) the child’s stated reasons for refusing the recommended care and (2) a statement prepared and signed by the treating physician that the medical care is the proper course of treatment for the foster child. A motion filed without a description of the child’s objections or without the treating physician’s statement is defective.
The child is entitled to representation by an attorney ad litem at any consent–to–
treatment hearing, and if the child’s former attorney ad litem has been discharged, a new attorney must be appointed for the medical care hearing. The foster child’s attorney ad litem shall: (1) discuss the situation with the child; (2) discuss the suitability of the medical care with the treating physician; (3) review the child’s medical and mental health records; and (4) advocate to the court on behalf of the child’s expressed preferences regarding the medical care.
The party requesting an order overruling the child’s refusal of treatment must show by clear and convincing evidence that the medical care is in the best interest of the foster child and: (1) the foster child lacks the capacity to make a decision regarding the medical care; (2) the failure to provide the medical care will result in an observable and material impairment to the growth, development, or functioning of the foster child; or (3) the foster child is at risk of suffering substantial bodily harm or of inflicting substantial bodily harm to others unless the proposed medical care is provided.
In deciding whether the medical care is in the child’s best interest, the court must consider: (1) the foster child’s expressed preference regarding the medical care, including perceived risks and benefits of the medical care; (2) likely consequences to the foster child if the child does not receive the medical care; (3) the foster child’s prognosis if the child does receive the medical care; and (4) whether there are alternative, less intrusive treatments that are likely to reach the same result as the medical care being proposed.
When deciding whether the child has the “capacity to consent” to medical care, the court must consider: (1) the maturity of the child; (2) whether the child is sufficiently well informed to make a decision regarding the medical care; and (3) the child’s intellectual functioning.
The Texas statute constitutes an interesting departure from the stance reflected in Parham that the courts have no role to play in assessing or enforcing a child’s decision with respect to medical treatment. By recognizing that children have a critical interest in their own care, and that the courts have a role in assessing the child’s wishes, it opens the door for change in the way we look at not only psychotropic drugs but all medical decisions involving children. It is an interesting experiment, and the final results are not yet in, but it may offer a new way of thinking about the issues involved.
Charles G. Childress is an attorney at law and a clinical professor at the Children’s Rights Clinic of the University of Texas School of Law. He may be reached at firstname.lastname@example.org; a version of this article with statutory citations will be posted on his website, www.utexas.edu/law/faculty/cchildress.