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Monday, July 03, 2006

Medical Decisions, Parental Autonomy & the Criminal Law

The Seattle Times has run a very interesting series of articles about a Seattle area woman, Tina Marie Carlsen, who has been charged with kidnapping for taking her nine-month-old son from a hospital because she disagreed with a surgical plan that doctors recommended and a judge ultimately ordered. Several of the articles can be read here, here, here, here and here.

Carlsen’s son has a serious kidney ailment, and after weeks of evaluation and diagnosis, doctors recommended that he have a surgical procedure to prepare him for dialysis. Carlsen, who apparently is committed to a natural lifestyle, disagreed with the surgery recommendation, and after she held firm on this position, the hospital got a judge to strip Carlsen of custody and order the surgery. The articles do not indicate that Carlsen refused any medical treatment for her son, just that she refused to consent to this procedure because she wanted to explore “alternative treatments” to surgery.

During a visit shortly before the scheduled surgery, Carlsen allegedly hid her son in a diaper bag and snuck him out of the hospital. The authorities issued an Amber Alert, and after Carlsen and her son were found, Carlsen was charged with second-degree kidnapping, a felony in Washington punishable by up to ten years in prison. Carlsen’s son since has undergone the surgery over Carlsen's continued objections, and Carlsen recently was released without bail under a variety of conditions.

Was the State too heavy-handed here, especially in using the criminal justice system against a parent disputing medical treatment?

The articles do not indicate that Carlsen has any record for child abuse, child neglect or mental illness, and she reportedly did agree to medical treatment for her son, just not the surgery that doctors recommended. A web site promoting Carlsen’s interests details her supposed views on nutrition and medicine. When the Amber Alert was issued, the authorities broadcast that Carlsen’s son was in imminent danger of dying without surgery, but after he was returned to State custody, the hospital acknowledged that he more accurately was in a “vulnerable” condition that could become dire with a change in circumstances. This less-than-accurate Amber Alert may reveal the degree of discretion the medical profession currently holds to define and assert medical "necessity" against legitimate parental autonomy. The child’s father asserted that to gain Carlsen's trust, the doctors simply needed to be more open to alternatives and second opinions. As a parent myself, I get frustrated if a doctor resists giving me a full description of even a common medication and its potential side-effects before I will agree to a prescription for my daughters. I only can imagine the distress of a parent who disagrees with doctors over a dramatically more serious—and from the parent’s perspective debatable—medical decision where the State then imposes the doctors' choice against the parent's will.

And yet, also as a parent, I am distressed by the irrational and sometimes obscene decision-making that I see some parents force upon their children who, without the State, have no alternative to protect their interests. And, perhaps no interest could be more important than a child’s medical well-being. More than once I’ve thought to myself when I see a parent smoking in a car with children inside that the police should stop the car and arrest the parent for child endangerment, so I am by no means a parental autonomy absolutist. When parental autonomy and claimed medical necessity conflict, the judiciary seems the proper authority to exercise the discretion and judgment to resolve these tough cases—tough cases like here, where we surely do not know the full story. And, once a judge has made this call, parents can claim no immunity from the criminal law for their obstructionist behavior—especially since prosecutors, as appears to have happened here, will exercise their own discretion when evaluating the tough cases with mitigating facts.

Where precisely should the law draw the line in these cases where parents assert a good faith objection to medical treatment that doctors consider necessary? How far outside of mainstream medical judgment should parental decision-making fall, and how imminent and serious should the harm be, before the State may override parental autonomy in medical choice? And, how should a prosecutor handle a case like Carlsen’s?

Posted by Brooks Holland on July 3, 2006 at 01:55 PM in Criminal Law, Culture, Legal Theory | Permalink


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I find this information very interesting and very helpful. I am in a law and ethics class and we chose this story to debate, so I am interested to find out how it ends. I am playing the mothers attorney. I hope that this information helps me be a good attorney, as well as ask good questions that are relevant.

Posted by: Adrean E Carlson | Apr 29, 2008 8:49:11 PM

In Prince v. Massachusetts, 321 U.S. 158 (1944), the Supreme Court stated, "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." This statement became a springboard for state intervention and is often quoted in decisions overriding parental objections.

Notably, the Carlsen case does not appear to involve religious objections by the parent which would add another element to the analysis. Compare, Power Of Court Or Other Public Agency To Order Medical Treatment For Child Over Parental Objections Not Based On Religious Grounds, 97 A.L.R.3d 421, with Power Of Court Or Other Public Agency To Order Medical Treatment Over Parental Religious Objections For Child Whose Life Is Not Immediately Endangered, 52 A.L.R.3d 1118.

Re the standards for determining which circumstances justify overruling parental decisions, a California appellate court articulated one set of criteria:

"The state should examine the seriousness of the harm the child is suffering or the substantial likelihood that he will suffer serious harm; the evaluation for the treatment by the medical profession; the risks involved in medically treating the child; and the expressed preferences of the child. Of course, the underlying consideration is the child's welfare and whether his best interests will be served by the medical treatment." In re Phillip B., 156 Cal. Rptr. 48, 51 (Cal. Ct. App. 1979).

In cases such as this one, however, under Washington law the "best interests" factor should not be an overriding factor or given undue weight. In In re Marriage of Allen, 626 P.2d 16 (Wash App. 1981) it was undisputed that the father was a fit parent. Nevertheless, the court explained that:

"In extraordinary circumstances, where placing the child with an otherwise fit parent would be detrimental to the child, the parent's right to custody is outweighed by the State's interest in the child's welfare. There must be a showing of actual detriment to the child, something greater than the comparative and balancing analyses of the "best interests of the child" test. Precisely what might outweigh parental rights must be determined on a case-by-case basis. But unfitness of the parent need not be shown."

While detriment is paramount, courts should also consider the high cost of medical care and the lack of a universal access health care program for children.

The age and maturity of the child is also becoming increasingly significant. In Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. 4th DCA 2001) the court held that minors have rights which they can assert themselves in their own best interest, particularly against a parent’s decision to waive them.

In 1989, the Illinois Supreme Court held in In re E.G., 133 Ill. 2d 98, 549 N.E.2d 322, 139 Ill. Dec. 810 (1989) that a seventeen-year-old with leukemia who needed blood transfusions was a "mature minor" who could refuse that procedure based on her right to freely exercise her religion.

She had not been formally emancipated, but the court noted that Illinois's Consent by Minors to Medical Operations Act allows persons over age twelve to seek medical attention for venereal disease or substance addiction, while another Illinois statute permits persons under eighteen who are pregnant or married to consent to treatment.

The court also noted the "mature minor doctrine" adopted by the U.S. Supreme Court in cases of abortion decision making, although it recognized that choosing an abortion involved the exercise of a constitutional right. The E.G. court also mentioned numerous other cases extending protection of constitutional rights ranging from privacy in the use of contraceptives, freedom of expression in schools, and procedural due process in juvenile courts. The court also pointed to the judicial development of the "mature minor" doctrine in tort actions.

Relying on this mass of precedent, the court concluded that the common-law right to control one's health care should extend to mature minors and explained that "the State's parens patriae power pertaining to minors is strongest when the minor is immature to make these decisions on her own. The parens patriae authority fades, however, as the minor gets older and disappears upon her reaching adulthood."

Accordingly, age becomes increasingly important the older the child gets.

As for the kidnapping charge in this case, because the state had a custody order in place at the time she removed him from the hospital she could be convicted of the crime. State v. LaCaze, 630 P.2d 436 (Wash. 1981). However, this is where prosecutorial discretion must be exercised carefully.

Parents (or anyone else) should not be allowed to openly violate court orders they disagree with. Instead, they should seek legal recourse through the appellate process. Nonetheless, this can be expensive and many people simply don’t have the money to pursue a "Terry Schiavo" type of litigation strategy.

That’s where prosecutorial discretion comes into play. She should receive some penalty for her unlawful conduct or the laws mean nothing. But a conviction for a second-degree felony is too harsh under these circumstances.

Washington’s constitution was developed with a strong endorsement of the natural law doctrines. Appropriate punishment was understood to mean a proportional sentence as measured by factors relevant to the specific crime committed as well as the individual who committed it. This understanding permeated the legal culture of the time and was often expressed in natural law rhetoric. Washington’s constitutional framers cautioned against excessive punishment which, by its nature, was unnecessary to achieve the purpose. For a thorough discussion of this topic see State v. Rivers, 921 P.2d 495, at 508-13 (Wash. 1996).

Possible alternatives might be RCWA 9A.42.037 (criminal mistreatment in the fourth degree), a criminal negligence statute which makes it a simple misdemeanor for a parent to create an imminent and substantial risk of bodily injury to a child by withholding any of the basic necessities of life. Also, RCWA 9A.42.035 (criminal mistreatment in the third degree), with similar behavior by a parent penalized as a gross misdemeanor. The next higher alternative in this line is RCWA 9A.42.030 which makes it a third-degree felony for a parent to recklessly withhold any of the basic necessities of life.

There’s room for negotiations.

Posted by: David Warren | Jul 4, 2006 3:40:17 AM

An interesting post. You might also, if you follow up on this thread, write about the woman profiled a while back in the LA Times, a skeptic on standard medical views about HIV, AIDS, and HIV/AIDS therapy, whose two children also had the virus and one of whom died; as I recall, she refused either to take anti-retrovirals or to give them to her kids. My memory may be faulty. But obviously the case raises many of the same questions.

Posted by: Paul Horwitz | Jul 3, 2006 3:36:18 PM

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