Contention most frequently arises over issues such as immunization, medication, blood transfusion, faith healing, breast feeding, psychological treatment, experimental treatment, fluoridation of culinary water, quarantines, and vegetarian or vegan dieting. Litigation tends to implicate such constitutional issues as parental liberty, religious liberty, spatial liberty, privacy, due process, search and seizure, interstate travel, equal protection, and/or bodily integrity.
The United States Supreme Court has addressed medical care for minors on a number of occasions. Most directly on point are Jehovah's Witnesses, State of Washington v. King City Hospital (1968), Zucht v. King (1922), and Jacobsen v. Commonwealth of Massachusetts (1905). Also informing the issue are cases such as Vernonia School Dist. 47J v. Action (1995), Hodgson v. Minnesota (1990), Akron v. Akron Center for Reproductive Health (1983), H.L. v. Matheson (1981), Bellotti v. Baird (1979), Parham v. J.R. (1979), and Addington v. Texas (1979).
Other cases from the Supreme Court do not implicate parental authority or minor care directly, but do discuss governmental intervention into medical decisions, the right to preserve bodily integrity, rules of evidence, and other related topics. These cases include Washington v. Glucksberg (1997), Daubert v. Merrill Dow Pharmaceuticals, Inc. (1993), Riggins v. Nevada (1992), Foucha v. Louisiana (1992), Cruzan v. Director, MDH (1990), Washington v. Harper (1990), and Buck v. Bell (1927).
Preservation of life is an important consideration in disputes over the care of children. In far too many cases, however, courts reflexively conclude that 1) parental prerogatives are adverse to the interests of the child in question, and to the interests of society as a whole, and 2) prevailing contemporary medical knowledge and practice are conclusively consistent with the interests of all children and all of society.
Reality is much more complex. In some cases, a medical professional is clearly correct in his or her assessment that a particular set of parents has created a clear, irrational, imminent, serious, and unacceptable danger to the basic physiological functions of a child. But in many other situations, Systemic Civic Dysfunctions are playing a role, introducing distortions which must be carefully identified and resolved on the record in order to conduct a credible legal analysis.
Any system involving human beings will, unfortunately, always be susceptible to ethical distortion. It is known, for example, that the families of Native Americans and poor populations were often liquidated by social workers who were seeking personal fiscal rewards, rather than the “best interest” of each removed child. The Tuskegee Syphilis Experiment and many similar historical incidents verify that thousands of misguided medical caregivers have inflicted unethical experiments and treatments upon patients. Even more commonly, some professionals make mistakes because of haste, laziness, or unchecked ambition, and then conceal the results to avoid incurring liability. Ridiculed victims of Agent Orange in Vietnam, indifference towards American cancer victims living downwind from early nuclear bomb experiments, misconduct perpetrated at fertility-clinics, and harmful psychological experiments are but a few of the many potential available examples. Indeed, to this very day, many women undergo unnecessary cesearean sections so that their doctors can return home for a timely dinner.
Nor is there any indication that these problems have significantly abated in recent times. For example, an article in a leading medical journal reported a study demonstrating that 62% of randomly-sampled published medical studies "had at least 1 primary outcome that was changed, introduced, or omitted." See An-Wen Chan et al, Empirical Evidence for Selective Reporting of Outcomes in Randomized Trials: Comparison of Protocols to Published Articles, 291 Journal of the American Medical Association 2457 (May 26, 2004); see also Worrisome ailment in medicine: Misleading journal articles, http://www.post-gazette.com/pg/05130/501996.stm (May 10, 2005)(Pittsburgh Post Gazette reprint of Anna Wilde Mathews article in the Wall Street Journal). In other words, studies primarily intended to demonstrate some particular outcome, such as the efficacy of a particular drug or treatment, were retroactively altered and/or selectively reported to conceal results deemed undesirable by the researchers or their (often commercially-motivated or commercially-sympethetic) sponsors. To use a hypothetical example, a study primarily designed to show the effectiveness of a new heart drug but that suggests danger instead can, through use of an innocuous "secondary" study goal, be selectively reported as a study about the effect of exercise in lengthening the life of heart patients.
Selective reporting of the kind reported by An-Wen Chan introduces a systemic bias in the collection of medical literature in favor of commercially-lucrative drugs and treatments. A skew in the medical literature, in turn, produces a commensurate skew in the evidence and expert testimony available for use as admissible evidence in court hears involving parents who are objecting to involuntary medical treatments for their children. Regardless of whether a parent's position is valid, defense of parents is typically not a lucrative course of action for attorneys seeking high retainer fees, medical professionals who make money from selling products and services, or politicians who need campaign contributions.
Government institutions are also influenced by the same bias. For example, the House Energy and Commerce Committee, chaired by Rep. Joe Barton R-Texas, asked for a review when it compared National Institute of Health records to consulting agreements maintained by 20 pharmaceutical companies. The review uncovered 81 cases between 1999 and 2004 where NIH scientists had performed their governmental duties without disclosing personal private work and/or private financial interests constituting material conflicts-of-interest. At least 44 scientists were involved, and 9 of the scientists had to be referred to law enforcement for investigation of possible criminal violation. Barton admitted surprise at the findings and described the conflicts-of-interest at NIH as "systemic and severe." See, e.g., NIH finds ethics violations in 44 cases: Government scientists also worked as consultants for drug companies, http://www.msnbc.msn.com/id/8571458/ (July 14, 2005).
Of course, the House Committee review did not even include the problem of disclosed conflicts or the potential bias that results from the many scientists who regularly circulate between the revolving door between private medical employment and work as government regulators. Yet many this well-funded community is the source of new regulations, for testimony for legislators considering new legislation, for expert treatises used by child-welfare agencies, for training of medical providers, and for expert testimony. There is great risk in permitting professionals to give orders to their clients rather than requiring them ot comply with the wishes of their clients. There is great risk in allowing government regulators to regulate consumers instead of only regulating the medical professionals. There is great risk to abandoning the free-market model of parents as empowered, voluntary consumers of professional services.
Forcible medication is one of the most common manifestations of ethical distortion. Thousands of children are unnecessarily drugged while under government supervision in order to make the children more manageable. Many senior citizens and other government wards experience similar treatment. Staffing costs create an incentive for this type of abuse, because drugs are less expensive than the kind of labor-intensive active care that family relatives typically render. Vendors are eager to supply the medication to government agencies. See e.g. Mandi Bishop, Foster Kids on Mind-Altering Drugs?, http://www.woai.com/troubleshooters/story.aspx?content_id=168321B6-DF50-4A2F-83D1-1789D8F2A18A (Nov. 11, 2004)(WOIA television discovers 2 out of every 3 Texas foster children on psychotropic medication, including three-year-old children, with at least one on seventeen different medications simultaneously).
Managed health care has further complicated the situation. The policies of health insurance companies and health maintenance organizations can sometimes have the effect of economically encouraging doctors to cut costs, eliminate treatments, or choose approaches which are not optimal from a medical point of view. Parents sometimes must challenge managed-health policies and incentives in order to secure the best treatments for their children.
But systemic civic dysfunctions often pose the most obvious kinds of ethical dilemmas. An entire litany of additional possible considerations applies even when more innocent circumstances prevail. Medicine is necessarily both an art and a science, which rests upon a body of tentative assumptions which are subject to perpetual reversal or refinement. Many doctors and scientists have endured ridicule for years before obtaining peer acceptance for newer, more effective medical innovations. This phenomenon will not abate in the foreseeable future.
When complex human systems are involved, causation is often open to question. Diagnosis is frequently inconclusive. Individual patient responses can vary substantially. Treatment can require educated guesses, or even a painful balancing of ethical priorities. Often the known collateral harms of a proposed intervention arguably outweigh the consequences of the original malady. The longstanding controversy over the proper use of female growth hormone is but one example of the intractable uncertainty that will probably always be an unavoidable part of medicine.
Forcible imposition of norms tends to suppress beneficial activity by segments of the population which are more intelligent than the population mean, thereby curtailing the long-term rate of innovation for the population as a whole. In many cases, the hidden costs and opportunity costs from the deaths that could have been prevented through medical innovation that never happened will outweigh the cost of the obvious deaths that resulted from unsuccessful attempts to invoke innovative treatments. It is a human psychological tendency to avoid an obvious short-term cost at the expense of incurring far more profound hidden costs, opportunity costs, and long-term costs.
Even ostensibly eccentric medical preferences can bestow substantial selective advantages upon certain populations. Vegans in England did not suffer personal angst because of the unforeseen outbreak of Bovine Spongiform Encephalopathy (Creutzfeldt-Jakob or “Mad Cow” disease). Practicing Jehovah’s Witnesses are much less likely to contract AIDS than most other populations, since Jehovah’s Witnesses shun blood transfusions, drug use, and casual sex, and this was especially true during the era before documentation of the various transmission vectors. When Chinese medical personnel re-used immunization needles, thereby spreading AIDS and other blood-borne diseases to numerous villagers in rural China, it was the ostensibly "backward" unimmunized children who avoided the iatrogenic consequences. Many children have extended their lives (and general medical knowledge) by engaging high-risk experimental treatments, preventing grave harm when the conventional approach(es) would have failed.
In short, biodiversity in medical and dietary behaviors, which is facilitated by protection of parental liberty, ultimately furthers the best long-term interests of society in most situations. Often the benefits are bestowed in unpredictable ways. Homogenization, in contrast, curtails innovation, eliminates valuable statistical control groups, engenders susceptibility to pandemic dysfunctions, and increases the probability of system-wide iatrogenesis. The long-term biological health of a population is maximized when its constituent organic components are at liberty to pursue a range of different survival strategies.
Parental liberty also coincides with consumer-protection principles. Physicians, like attorneys, should not have the ability to coerce use of their own professional services. If parents are denied the ability to reject physician advice, consumers lose the ability to solicit second opinions and utilize alternative treatments. Parents will also avoid seeking necessary care if they believe engaging medical assistance will subject them to unjustified medical, cultural, financial, or legal risk. Parental liberty is essential for the maintenance of a free-market system, in medicine just as much as in education or other economic sectors.
Properly understood, none of these observations denigrate the medical profession. Many medical practitioners, and probably the overwhelming majority of them, render honest, hard-working, concerned, well-intentioned, insightful, competent professional service. The same can be said of judges, attorneys, and government officials. But professional conduct must respect the principle of consumer empowerment and family self-determination, or else ultimately supplant an economically-optimal free society with a Platonic dictatorship.
As a final observation, parental liberty is a fundamental constitutional right (as are many of the other constitutional rights implicated in the “medical care” legal arena). The state, not the parents, must bear the burden of proof as to all aspects of the controversy, substantiating the state's position by (at minimum) clear and convincing evidence. Any intervention deemed by thorough analysis to be necessary for accomplishment of a “compelling” state interest must also be “narrowly tailored” to avoid excessive harshness, intrusiveness, or overbreadth. Abrogation of custody is not usually an appropriately-tailored intervention for a disagreement involving one critical incident of medical care for a child.
Courts are slowly beginning to develop appropriate risk-based analysis for determining when forcible government medical intervention has been narrowly tailored. E.g. P.J. v. State of Utah, 2006 WL 1702585 (D. Ut., Jun. 16, 2006); Mueller v. Auker, 2007 U.S. Dist. LEXIS 13172, Case No. 1:04-cv-00399-BLW-HHW (D. Id., Feb. 26, 2007.)
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