The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
Almost every week, a newspaper in some part of this country tells us about the upsurge in the number of children and youth who are prescribed psychotropic medications—those substances that act upon the brain to chemically alter mood, cognition and behavior.1 This increase is reported in the general population and in greater numbers among children and youth who are poor. The highest percentage of use is in children and youth who are in foster care, in residential group homes and treatment centers, and in juvenile detention facilities.
Psychotropic medications are overprescribed for court-involved children.
Lawyers who represent children in the child welfare and/or juvenile justice systems should know that large numbers of children, often in the 30 percent range, are prescribed one or more of these medications without any of the procedures parents would insist upon for their children, and with minimal oversight by those charged with the duty to act in the best interest of the child.
Overuse of psychotropic medications in children creates health risks.
The psychotropic medications that are prescribed have not been tested in children and youth and so are often administered for “off-label” use, in amounts that exceed recommended dosages, and often in combination with other psychotropic medications, as a first resort instead of a last resort. Short-term side effects of these medications are many: increased heart rate and blood pressure, weight gain, sleepiness, sedation, tremor, anxiety, dizziness, confusion and changes in behavior, and seizures are just a few of the reported adverse effects. Long-term effects from these medications are completely unknown.
Children and youth repeatedly complain that psychotropic medications make them “feel like zombies,” unable to function in school and uninterested in outside activities. For example:
- Eleven-year-old Ke’onte from Texas indicated that he was on at least 12 different psychotropic medications while in foster care, up to four of them at the same time. The medications made him irritable and exhausted, caused a loss of appetite, and put him “in a lights-out mode fifteen minutes” after he had taken them.
- Fourteen-year-old Westley stated that he was prescribed five psychotropic medications. He would resist the pills because he did not like the way they made him feel.
- Mark, a former foster child from California, was also prescribed multiple psychotropic medications. He stated that he felt too “zoned out” to focus on high school and was so groggy that he was cut from his varsity basketball team.
- Yolanda, a former foster child who was also involved in the California juvenile justice system, indicated that doctors prescribed her a series of powerful psychotropic medications to numb her pain from being physically and sexually abused and control her outbursts. She was “so medicated with psychotropic medications that she literally lost her ability to speak.”
Psychotropic medications mask children’s symptoms and offer a quick fix.
The reasons for the high level of psychotropic medication use among children in foster care or juvenile justice facilities lie in the trauma, neglect and abuse that they have suffered. State agencies and court systems avoid investing psychosocial treatments and therapies to treat children and youth. Instead they look to psychotropic medication as a quick solution to the emotional and behavioral disorders these children have and that make them difficult to place in foster care, residential group homes, or juvenile facilities. In many cases, these drugs are prescribed without a full medical history, a full evaluation and diagnosis, informed consent, monitoring and periodic reviews, and or treatment alternatives before or during the use of these meds. In other words, medical protocols and procedures that protect the rights of patients are absent.
Attorneys and judges working with children and youth in the child welfare and juvenile justice systems can take the following steps to address the issues relating to psychotropic medication use among the children they serve.
Leverage national practice guidelines and policy resolutions.
Several national organizations, including most recently the American Bar Association, have issued practice guidelines or policy resolutions to improve oversight and procedures in cases where children are prescribed psychotropic medication. These are useful resources for child advocates and can add weight to arguments raising concerns about psychotropic medication use in children.
The American Academy of Child and Adolescent Psychiatrists has issued best practice guidelines to improve the administration and oversight of psychotropic medication.2 Those guidelines include these recommendations:
- No psychotropic medication should be prescribed without informed consent by the child, his/her parent, guardian and/or licensed caretaker. States should identify the parties in each case that are empowered to consent for treatment for youth who are under 14 years of age, and youth 14 years and older should provide informed consent on behalf of themselves.
- No psychotropic medication should be prescribed without appropriate administration, oversight and regulation. Short and long term monitoring plans are essential to assess developments or increases in suicidal ideation, initial side effect and potential changes over time.
- No psychotropic medication should be prescribed to a child in dosages that exceed recommended use, for off-label use or concomitant use, without secondary review.
Use of alternative therapies must precede or accompany use of psychotropic medications in children and youth in custody.
The National Council of Juvenile and Family Court Judges passed a resolution in July, 2013, urging courts to improve supervision and oversight of medical and mental health issues, including the use of psychotropic medication, of children and youth under their jurisdiction.3
The American Bar Association, in February, 2016, approved a lengthy resolution4 on the overuse of psychotropic medication among children in state custody. The resolution was sponsored by the ABA Commission on Youth at Risk and five other ABA entities,5 and calls for these actions:
- That all child welfare and juvenile justice agencies provide adequate resources to assess and treat emotional and behavioral disorders of children in their custody that include psychosocial and clinical interventions, recreational opportunities and supportive serves that can reduce the need to prescribe psychotropic drugs;
- That every child welfare and juvenile justice agency develop a comprehensive policy, in accordance with best practice guidelines from medical, mental health and disability experts and professional organizations to allow only medically appropriate use of psychotropic medications, and to ensure that these medications are not used solely to control behavior;
- That every court in these systems develop oversight protocols administered by medical personnel to ensure that all policies are successfully implemented and continue, if needed, when a children transitions to another placement or out of the foster care or juvenile justice system;
- That all lawyers and judges working in these systems become fully educated about the rights of children who are in state custody, including legal issues related to the use of psychotropic medication; and
- That states report de-identified data to appropriate federal agencies on the ongoing use of psychotropic medication for children in foster care and in the juvenile justice system so that progress on this issue can be demonstrated.
Advocate for alternative treatments and supports.
Improved mental health for children and youth who are in foster care or in juvenile justice facilities, including residential care, group homes, residential treatment or secure detention, relies upon much more than decreased use of psychotropic medications.
States must provide adequate resources so that care is trauma-informed. Also key are timely assessments and treatments for emotional and behavioral disorders of children and youth in custody, including psychosocial and clinical interventions, recreational opportunities and supportive services that can reduce the need for prescribing psychotropic drugs.
Advocate for strengthened administration and oversight protocols.
In addition, states and administrative agencies that oversee child welfare cases and juvenile justice systems, must develop comprehensive policies to protect children in state custody from over-medication. Juvenile and dependency courts should implement administration and oversight protocols to manage and regulate psychotropic medication use among children in foster care and youth involved in the juvenile justice system.
Seek training and education.
Attorneys and judges need to be better educated and assist in providing training to each other and to other stakeholders about the use of psychotropic medication in children.6
Attorneys and judges in the child welfare and juvenile justice systems have long accepted medications and the amount of medication for children and youth in their cases as normal, expected, and medically necessary. However, overuse of psychotropic medication among children and youth in state custody demands that lawyers for children and the courts ask questions—about the child’s diagnosis, recommended treatment and alternatives, and the qualifications of the medical professionals prescribing and administering psychotropic medication.
Lawyers for children and youth, as well as the courts that have jurisdiction over the cases, should ask, at a minimum:
- Why is this prescribed?
- Why is this amount necessary?
- Where can I learn more about this medication and its side effects?
- What are the possible long term consequences of use of this medication?
- Who has informed consent on this decision and has he/she given consent?
- What other treatments and therapies exist for this diagnosis?
- How will this medication be monitored?
State agencies can work to improve mental health resources for children in foster care and in juvenile justice facilities and agencies. Court professionals and attorneys can follow the recommendations in the AACAP, NCJFCJ and ABA resolutions and take other proactive steps. When the systems and advocates serving children and youth work to improve oversight of psychotropic medication, foster children and youth in the juvenile justice system will have the best opportunity for appropriate and comprehensive mental health treatment.
Linda Britton, JD, directs the ABA Commission on Youth at Risk, which focuses on how the law and legal system can support America’s at-risk youth.
1 This article summarizes the report written to support the ABA resolution on the overuse of psychotropic medication among children in state custody.
The AACAP guidelines can be found at https://www.aacap.org/App_Themes/AACAP/docs/clinical_practice_center/systems_of_care/FosterCare_BestPrinciples_FINAL.pdf
3 The NCJFCJ resolution is athttp://www.ncjfcj.org/sites/default/files/Fnl_PsychMedsResolution_071313.pdf
5 The Commission on Youth at Risk served as the lead entity for the resolution. The co-sponsoring entities were the Commission on Homelessness and Poverty, the Health Law Section and the Section on Science and Technology, and the supporting entities were the Commission on Disability Rights and the Criminal Justice Section.