Legal Decisionmaking for Children and the Mentally Retarded

1. Legal Decisionmaking for Children and the Mentally Retarded

2. Fundamentals • Background Norms: Autonomy & Consent • Understanding Incapacity & the Ability to Consent • Role of Physician: Agent or Principal? • Identifying the Proper Decisionmaker

3. AUTONOMY “Every human being of adult years and sound mind has a right to determine what shall be done with his own body...” Benjamin Cardozo Schloendorff v. N.Y. Hospital (1914)

4. Autonomy “ . . . the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual’s deeply personal decision to reject medical treatment . . .” Cruzan v. Missouri (1990)

5. Autonomy “By permitting everyone to refuse unwanted treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.” Quill v. Vacco (1997)

6. Informed Consent • An ethical precept and a legal doctrine that creates an obligation for doctors to respect the bodily integrity of the patient, as well as his/her care choices • During the past 40 years, Informed Consent has been recognized as the principal that displaced former habits of medical paternalism

7. A Patient-Centered Process • The history of informed consent in the United States has seen increased attention to patient wishes, which has required increased focus on patient understanding and capacity

8. Elements of Informed Consent • Disclosure • Comprehension • Voluntariness • Competence • Consent

9. “Incapable of making an informed decision” • Unable to understand the nature, extent and probable consequences of proposed treatment; • Unable to make a rational evaluation of risks and benefits compared to alternative decisions; or, • Unable to communicate decisions in any way.

10. A Process, not a Form • Many people mistakenly believe that getting a form signed is all that is required to obtain informed consent. In fact, I.C. is a process, and the form is merely evidence that the process has taken place.

11. The possibility of treatment refusal is a logical consequence of informed consent.

12. Consent & Refusal • The rule of consent demands that we take both refusal & acceptance of treatment seriously. • Assessment of capacity is critical.

13. Assessing Capacity • Capability to make an informed decision requires a clinical assessment and should be a consideration for any treatment that carries risk, whether the patient acquiesces or objects.

14. Who is Legally Incompetent? • Most People with Guardians • Most Children under Age 18

15. Surrogate Decisionmakers • If a patient had been found to be incompetent, the proper surrogate must be identified. • The surrogate is normally required to decide as the patient would have decided, if that is known. • The law normally provides a priority list for naming surrogates.

16. Health Care Surrogates • Person named under an Advanced Medical Directive • Guardian or committee • Spouse of the Patient • Adult child of the patient • Parent of an adult patient • Adult brother or sister of the patient • Any other blood relative

17. Surrogate Decisionmaking • Guardians • Judicial Orders for Treatment • Durable Powers of Attorney • Living Wills, Natural Death Declarations, Advance Directives • Surrogates under the Health Decisions Act

18. Common Limitations on Powers of Surrogate Deciders • Civil Commitment, Psychosurgery & ECT • Abortion, Sterilization • Research Procedures • Pregnant Patients

19. Advance Directives • Know the law in your state concerning advance directives • What limitations does it include? • Whom does it designate as default decisionmakers?

20. Summary • The focal point for consent is the patient’s wishes • When the patient is incapacitated, know who the surrogate is

21. INDIVIDUAL FAMILY HEALTH WORKERS GOVERNMENT

22. Values in Tension Liberty (political) & Autonomy (ethical) Gives rise to strategies of nonintervention and/or least restrictive alternative Public Safety—”Police Power” Public Health? Paternalism Medical Governmental “Parens Patriae”

23. Personal Interests Government Interests Liberty Autonomy Police Power (Safety) {Public Health} Parens Patriae Least Restrictive Alternative “tight fit” Constitutional Balance

24. Liberty includes Bodily integrity (freedom of movement, freedom of expression, freedom of thought; absence of physical restrictions by government)

25. Autonomy Includes Freedom from medical interventions, without consent

26. John Stewart MillOn Liberty (1859)

27. Exceptions to Mill’sLiberty Principle People who lack the necessary equipment for rational decision-making: Children? Mentally infirm?

28. Parham v. JR • Role of Parents in civil commitment • Role of Government Doctors in detaining and treating and children • Role of Government as custodian of children

29. Ages for Legally valid Consent • Vol. MH Tx 12 • Tried for Crime 13 (murder, etc) • Have Sex 16 • Vote 18 • Have Abortion 18 • Get Married 18(unless pregnant) • Drink Alcohol 21

30. Legal Competency to ConsentNo age limits • Medical Treatment or Surgery in connection with pregnancy, or childbirth (females only) • Tx for STD/HIV • Treatment for Substance Abuse • Right to refuse abortion • Civil commitment

31. Kiddie Commitment GA

32. ADMISSION OF VOLUNTARY PATIENTS • The chief medical officer of any facility may receive for observation and diagnosis any patient who is:  • 12 years of age or oldermaking application for admission, or • under 18 years of age and for whom an application for admission is being made by his parent or guardian, or • any patient who has been declared legallyincompetent and for whom an application for admission is being made by a guardian • 37-3-20

33. Treatment If found to show evidence of mental illness and to be suitable for treatment, a voluntary patient may be given care and treatment at the receiving facility.  The parents or guardian of a minor child must give written consent to such treatment 37-3-20

34. §      (a) The chief medical officer of the facilityshall discharge any voluntary patient who has recovered from his mental illness or who has sufficiently improved that the chief medical officer determines, after consideration of the recommendations of the treatment team, that hospitalization of the patient is no longer necessary,provided that in no event shall any such patient be so discharged if, in the judgment of the chief medical officer of such facility, such discharge would be unsafe for the patient or others.37-3-21

35. Etheridge v. Charter Peachford Hospital, 1993 FACTS: • School officials believed fifth grade child was mentally disturbed and was a danger to herself and others. • Child's teacher found a diary in which the child suggested she would kill herself and her teachers. • She was also accused of bringing a knife to school.

36. Etheridge • Voluntary admission by parents for psych evaluation • Parent demands release after 3 days • Two doctors initiate “Form 1021”, authorizing continued retention for treatment. • Doctor initiates involuntary commitment procedure • Parent gets order of release from juvenile court and sheriff effects release

37. Etheridge • Mom sues for false imprisonment • Doctors testified that child suffered from major depression, dissociative and possible multiple personality disorders with a history of homicidal and suicidal ideation, and that she constituted a substantial risk of harm to herself and others

38. Mental Retardation

39. Different Developmental Characteristics are Related to Differing Level of Mental Retardation (DSM-IV Criteria) Mild Moderate Severe Profound

40. Mild Mental Retardation • 75% to 90% of all cases of retardation • Function at ½ to 2/3 of norm (IQ: 50 to 70) • Slow in all areas • May have no unusual physical signs • Can acquire practical skills • Useful reading and math skills up to grades 3 to 6 level • Can conform socially • Can acquire vocational skills for self-maintenance • Integrated into general society

41. Moderate MR • 10% to 25% of all cases of retardation • Function at one third to one half of norm (IQ: 35 to 49) • Noticeable delays, especially in speech • May have some unusual physical signs • Can learn simple communication • Can learn elementary health and safety habits • Can participate in simple activities and self-care • Can perform tasks in sheltered conditions • Can travel alone to familiar places

42. Severe MR • 10% to 25% of all cases of retardation • Function at one fifth to one third of norm (IQ: 20 to 34) • Marked and obviousdelays; may walk late • Little or no communication skills but may have some understanding of speech and show some response • May be taught daily routines and repetitive activities • May be trained in simple self-care • Need direction and supervision

43. Profound MR • 10% to 25% of all cases of retardation • Function at < one fifth of norm (IQ: < 20) • Marked delays in all areas • Congenital abnormalities often present • Need close supervision • Often need attendant care • May respond to regular physical activity and social stimulation • Not capable of self-care

44. Prenatal causes of mental retardation • Congenital infections such as cytomegalovirus, toxoplasmosis, herpes, syphilis, rubella and HIV; • Prolonged maternal fever in the first trimester; • exposure to anticonvulsants or alcohol; • Untreated maternal phenylketonuria (PKU).

45. Postnatal Causes of MR • Complications of prematurity, especially in extremely low-birth-weight infants, • postnatal exposure to lead • Acquired causes of retardation : • near-drowning, • traumatic brain injury • central nervous system malignancy.

46. Causes of MR • Cause is unknown in approximately one half of all cases of mental retardation; • a chromosomal abnormality can be detected in as many as one quarter of affected persons

47. Prevalence of MR in the Population 1.25 to 2.5 %

48. Cleburne v Cleburne Living Ctr. • Does the Equal Protection Clause Protect the Mentally Retarded from discriminatory treatment?

49. Heller v. Doe Do the Mentally Ill have different due process rights than the Mentally Retarded?

50. MR in Georgia Law