A decision to give a child powerful psychotropic medication is a difficult one, fraught with uncertainty and is often viewed as the lesser of two evils. While the administration of medication to a child is itself a complicated decision the stakes are raised if either the child or the parents do not agree with the psychiatrist’s treatment recommendation that medication is the most appropriate treatment path.
This article will discuss the legal landscape that treatment providers and lawyers must navigate when seeking to obtain judicial authorization to medicate a minor either over the minor’s objection, or the parent’s or guardian’s objection. Where the parents object to medication and the child is less than 16 years of age, the legal picture of what process should be employed is fuzzy at best. Courts have alluded to recommendations on the best way to proceed, but the picture is still uncertain. This article will attempt to shed some light on the matter.
Minors, like adults, have the right to object to the administration of any medication they do not wish to take. The Supreme Court of the United States has routinely acknowledged an individual’s right to bodily integrity as one of the most sacred guarantees implicitly recognized within the Due Process clause of the Constitution. In line with this right, even if parents want their child to take psychiatric medication, if the child objects, a hospital must seek Court authorization before administering medication.
In New York, this Constitutional right was recognized in the landmark case of Rivers v. Katz. In Rivers, the Court reasoned that if a hospital wished to provide medication to a patient over the patient’s objection the hospital had to bring a proceeding in which it proved, by clear and convincing evidence, which is the highest burden in a civil proceeding, that the patient lacks the capacity to make a reasoned decision regarding medication, that the benefits of the medication outweigh the potential risks, and that there is no less restrictive way to administer treatment to the patient.
Where the parents consent to medicating their child, but the child objects, from a legal perspective, it is a rather straightforward process. The hospital seeks authorization to medicate the child and a hearing is held much like a hearing where the patient is an adult. The only difference being, it is presumed that the minor lacks the capacity to make a reasoned decision and so that specific criteria is dispensed with. The hospital need only prove that the benefits of medication outweigh any potential risks and that there is no less restrictive alternative.
The much more difficult situation is where the parents object to treatment. New York’s Mental Hygiene Law has created a distinction between patients who are over 16 years of age and those who are under 16 years of age. If the patient is over 16, and wishes to take medication, but the parents disagree the hospital may be able to treat the minor even without Court authorization.
If the patient’s treating psychiatrist, as well as a second psychiatrist who is not an employee of the hospital, determines that (1) the patient has the capacity to make a reasoned decision to take medication; and (2) it is in the patient’s best interest to take medication, the medication can be administered to the patient even though the parents object. In the event that the hospital decides to provide medication to a minor child under this circumstance the hospital must provide notice of the decision to the parents.
In instances where the treating psychiatrist believes that it would be detrimental to the patient to seek consent from the parents to treat the patient with medication the hospital does not have to inform the parents that the patient will receive medication. This is true so long as a second psychiatrist who is not an employee of the hospital agrees that (1) it would be detrimental to seek consent from the parents; (2) the patient has the capacity to accept medication; and (3) it is in the patient’s best interest to receive medication. It should be noted that where the patient objects to taking medication regardless of how old the patient is the hospital must seek Court authorization to provide medication.
A whole new set of issues are raised where the patient is under the age of 16 and the parents object to medication. In such an instance the hospital must obtain a Court Order to treat the patient with medication, even if the patient consents to medication. The law, however, is not very well established in this circumstance. What exactly the hospital must prove in order to obtain a Court Order, what is the role the parents play in these proceedings, in what Court should the matter be raised? These are all unanswered questions under the current state of the law in New York.
There are very few cases that have dealt with this situation. In one of the few that has, an Appellate Court admonished a lower Court for authorizing a hospital to treat a minor patient without demanding that the parents be made parties to the case. In other words, in the lower Court proceeding the parents were not formally involved in the case and therefore had no legal right to have their voices heard before the Court rendered a decision. The Appellate Court alluded to the fact that a neglect proceeding, like the kind seen in Family Court where a parent is not appropriately caring for a child, might be most appropriate in instances where parents object to the administration of needed medication. Under this theory, the argument would follow that because the parents are the guardian and decision maker for the child it was incumbent upon the hospital to show that the parents were endangering their child by refusing medication. Although the Appellate Court opined that this would be a potential resolution, it did not conclude it was a necessary action. Hence, it is still unclear if a hospital must bring a neglect proceeding in this type of situation or merely that it is one possible route a hospital could follow.
One thing is clear though, if a hospital wishes to provide treatment to a patient under the age of 16 where the parents object to giving their child medication, the hospital must make the parents parties to any action seeking Court authorization for treatment. The parents would then have the right to hire counsel to have their interests represented and to have their voices heard in order for the Court to render a fully informed decision.
Where parents consent to medication or where the child is over the age of 16 the law is fully developed with regard to the appropriate procedure to follow to obtain legal authorization to treat the patient. For children under the age of 16 the law has still not fully developed in the realm of seeking Court authorization for treatment over the patient’s objection. Whether a neglect proceeding is necessary or simply a Rivers type hearing where the parents are parties to the action, it would behoove the Courts to add clarity to the situation. In its current state, the law is uncertain, which could easily lead to delays in treatment for those who need it, as well as the infringement of a minor child’s right to bodily integrity and the right of parents to decide what is in the best interest of their child.