Intervention Minors, or Children Under

¶ … Intervention

Minors, or children under 18, are generally presumed to be incompetent in making decisions about their own health care. Those decisions are traditionally awarded to parents who are also generally presumed to have their children's best interests at heart. However, there have been disputes over the extent of parental authority. The most heated debate has been over the societal and legal limits to parents' right to make medical decisions on religious grounds.

Kopelman, Loreta M. Using the Best Interest Standard to Make Decisions for Children. The Bioethics Center Newsletter: University Health Systems of Eastern Canada, 2008

Kopelman describes the best interest standard as a guide to reaching moral, social and legal decisions for children. The standard aims at maximizing benefits and minimizing harm to children. Confusion has, however, developed out of the different meanings and implications of the standard understood in different contexts. The best interest standard is used when parents make or share the decision on their children's treatment. They balance the risks and the advantages in determining the most suitable or appropriate. The standard is also used in settling custody disputes in divorce, in evaluating priorities in health care system, and in determining research policies for children.

Kopelman recognizes the differences in the use of the said standard and how the "best interest of the child test are used in law. The best-interest-of-the-child rule is objective. The decisions are made for the child by the court. The court focuses on the various factors of the individual for whom it must decide. It is a standard of "reasonableness" because it rests on the needs and interests of a particular child or children but not excluding or ignoring the rights or interests of others. The court weighs and selects the best available option

Bender, Denise G. Do Fourteenth Amendment Considerations Outweigh a Potential State Interest in Mandating Cochlear Implantation for Deaf Children. Journal of Deaf

Studies and Deaf Education: University of Oklahoma Health Sciences Center, 2004

Parental rights are neither explicitly included within the text of the Constitution nor formally defined by the Supreme Court. Nonetheless, time-honored tradition recognizes and supports the parents' right to exercise their children's rights in their behalf upon the assumption that parents have their children's best interest at heart. Courts and families in the U.S. traditionally perceived the child as belonging more to parents than to the State. But with the increase in cases of child abuse and neglect, responsibility for a child ceased to automatically attribute wisdom, kindness or even common sense to parents. Trends and fashions appear to affect parental choices. Some of these choices favor the child, but some create permanent and irreversible harm, which "limits the child's right to an open future."

The author notes that some medical decisions are life-and-death choices. The State finds cause to intervene in emergency situations, such as when religious reasons prohibit or forego a particular and necessary treatment. The State interferes in the best interest of the child in order to protect him or her as a "future productive citizen." It assumes the traditional role of parents in deciding the appropriate course of action in the child's best chances of survival into adulthood.

Salmon, Daniel a. Mandatory Immunization Laws and the Role of Medical Religions and Exemptions. Institute of Vaccine Safety: Johns Hopkins Bloomberg School of Public Health, 2002

Immunizations are among the most successful public health initiatives in curbing disease, death and health care expense. All laws requiring vaccination are State or local laws. Exemptions have been due to religious or philosophical reasons. A recent study, conducted by Rota et al. showed that 34 States allow religious or philosophical exemptions to immunization. The purpose has been to accommodate the wishes of the few parents who did not believe in immunization. At present, they represent less than 1% of the U.S. population.

The study also found that States, which easily allowed the exemptions, had them more than States, which made exemptions more difficult. The study suggested that those States permitting the exemptions should carefully monitor and evaluation the process more than the grounds for the exemptions. This would balance the rights of individuals with the protection of the community from disease. The study also found that only 9 States observed a written policy of informing parents who sought exemptions of the risks of avoiding vaccines. It likewise suggested additional research on the reasons for exemptions. Results of this additional research would improve vaccine risk communication, increased demand for vaccination, and reduced need for immunization laws.

Pasquerella, Lynn. Protecting Faith vs. Protecting Futures. The PRC Report Online:

University of Rhode Island, 2000. Retrieved on March 15, 2008 at http://www.uri.edu/artsci/psc/pscreport/spring00/paski.html

Religiously motivated parents, who were charged with child abuse and neglect, sought protection from the Free Exercise clause of the First Amendment and the liberty interests under the Fourteenth Amendment. The liberty interest portion provides that parents are to raise their children as they saw fit "and to engage in religious indoctrination and the respect for tolerance and pluralism."

The 1944 landmark case of Prince v Massachusetts recognized parental exercise to train and indoctrinate their children on religious matters. This free exercise, however, did not include conduct, which would endanger the health and life of their children. The ruling limited the parents' right to refuse medical treatment on behalf of their children. It clarified and stressed the State's interest in protecting children's welfare. It balanced social values against parents' free exercise of their rights or even override them. More importantly, it declared that parents did not have the right to "make martyrs out of their children" who have yet to attain the age of full legal discretion. She offers four arguments for this position.

Committee on Bioethics. Religious Objections to Medical Care. Volume 9 number 2

281 Pediatrics: the American Academy of Pediatrics, 1997

Some religiously-motivated parents deny proper medical care for their children because of religious beliefs. Exemptions or justifications for child abuse or neglect are at times committed because of these beliefs. The American Academy of Pediatrics believes that all children should receive effective and prompt medical treatment when needing it in order to prevent more serious harm, disease or death. It believes that all legal interventions should apply to all children who would be harmed or endangered by parents' religious beliefs. In effect, the Academy opposed all religious exemption laws. At the same time, the Academy called for greater efforts to educate the public on the medical needs of children.

Findings

Traditional belief holds that since minors, or children under 18, are not competent to make serious decisions about their health care, parents are generally trusted to perform the function on their behalf (Pasquerella 2000). The assumption has been that parents would naturally have their children's best interests at heart. But this assumption has been disputed in a number of legal battles, many of them highly publicized, especially in the limits set by the State on parental authority on children's medical care for religious reasons or grounds. In adhering to religious beliefs, parents either fail to provide the necessary medical care, apply medically improper treatment or expose their children's health, well-being and life to greater harm or death (Pasquerella)..

Religiously-motivated parents and their supporters justify their claim to exemptions to child abuse and neglect prosecution from two Constitutional provisions (Pasquerella 2000). These are the First Amendment and the liberty interests of the 14th Amendment. They insure and protect parents' right to raise their children as they see fit as well as to engage in religious indoctrination. They also guarantee respect for religious tolerance and pluralism. In the Prince v Massachusetts case, the Supreme Court once more recognizes and upheld parents' free exercise rights, which included training and indoctrination of children on religious matters. But it clarified that these rights excluded conduct and practices, which would seriously endanger a child's physical health or safety. This Court ruling limited parents' rights as regards religious beliefs. If the Court found that these religious beliefs or practices exposed children's health and lives, it could override parents' rights (Pasquerella).

The author adds four support arguments to limiting parental authority in medical decisions for religious reasons. These are the State's political and moral role in insuring children's "open futures" for children; children's rights to equal protection from the State; equal protection for laws, which affect children, as a result of parental conduct; and that exemptions violate the Establishment clause of the First Amendment (Pasquerella 2000).

Some religiously-motivated parents refuse medical treatment for their children on grounds of religious beliefs (Committee on Bioethics 1997). Some States allow exemptions to these parents from prosecution for child abuse and neglect in recognition of parental rights to the exercise of religious beliefs over their children. These exemptions thus restrict government protection to children who may otherwise be victims of abuse and neglect. The American Academy of Pediatrics or AAP contends that all children deserve to receive effective treatment in preventing injury, suffering and death. It also maintains that all legal interventions should be accorded to all children who confront danger or suffer harm without exemptions, including grounds of religious beliefs. On the whole, the Academy calls for the abolition of exemption laws and endorses initiatives to educate the public about the medical needs of children (Committee on Bioethics)..

While AAP recognizes the importance of religion to people's lives, it also warns physicians and other health care professionals should put the health and welfare of children over religious considerations (Committee on Bioethics 1997). It encourages pediatricians to respect parents' decision but not when their religious convictions interfere with medical care necessary to prevent harm, suffering or death. When this happens, pediatricians should seek the authorization of the court to override parental authority. If the threat to a child's life is imminent, the health care practitioner should intervene over parental objections. Securing court authorization should, however, be the last course of action. The health care practitioner should cooperate with the family in applying appropriate palliative care. Even when the securing of court authorization is the last option, physicians should continue to respect the parents' religious beliefs as well as their role in rearing their children (Committee on Bioethics)..

In essence, the AAP rejects and opposes religious doctrines that refuse health care for sick children (Committee on Bioethics 1997). The Academy believes the laws should not encourage or tolerate parents who deny their sick children appropriate medical care. It also believes that laws should not exempt parents from criminal or civil liability and prosecution for religious reasons (Committee on Bioethics).

The Constitution accords parents the right and privilege of raising their children in the assumption that they naturally possess their children's best interests. This right extends to the training and indoctrination of children but not to medical choices, which involve life or death consequences (Bender 2004). The State may intervene and override parental authority in emergency situations, even it must infringe upon parents' religious convictions to refuse treatment. For example, Jehovah's Witness beliefs prohibit blood transfusions and the use of blood products, even at the risk of death. On the other hand, Christians rely almost entirely on prayers to heal people and, as a result, do not seek proper medical intervention or treatment. The Courts authorize blood transfusions, appendectomies and other medical interventions to save the health or lives of children, whatever the convictions or wishes of their parents. The State thus acts in the best interest of the affected children, whom it protects as future "productive citizens." Its exercise of parental authority allows these children the best chances of surviving into adulthood. In the 1944 ruling of Prince v Massachusetts, the Court said that parents could opt to become martyrs but not free to "make martyrs of their children (Bender)."

Some urgent medical interventions have been deferred by the Courts back to parents, however (Bender 2004). In the Newmark v Williams of 1991 case, the doctor of a cancer-stricken three-year-old offered a 40% success by chemotherapy. The parents rejected and preferred healing by a Christian practitioner. The Court ruled in favor of the parents, reasoning that they knew and loved the child more. While there was doubt as to the effectiveness of the preferred course of action, the Court's interest was in protecting the future of the child. It did not think that forced intervention would guarantee to promote or preserve the future of the child-citizen (Bender).

Many elective surgical and medical procedures not related to the improvement of a child's physical health are in contention (Bender 2004).. These procedures include infant circumcision and human growth hormone treatments. They put children in vulnerable conditions. Circumcision can cause pain, infection, constriction due to scar tissue and interference with bonding with one's mother. Human growth hormone treatments, on the other hand, may reduce self-esteem, affect parent-child-relationship and create dependency on the hormone on account of an imaginary "handicap (Bender)."

The best interests standards are meant to maximize benefits and minimize harm for minors who are unable to make appropriate medical decisions (Kopelman 2008). It is first used in determining the best treatment option for a sick child. Parents and clinicians weigh all the sides and balance harm with benefit. Then they decide on the most suitable treatment plan, based on these considerations (Kopelman).

This standard is also used in divorce proceedings in court when settling custody disputes (Kopelman 2008). When the parents cannot agree, the judge balances the complexities of both sides and then rules according to the child's best interests. Policy-makers also apply this standard in evaluating health systems priorities. The U.S. already spends approximately 14% of its gross national product on health care. Despite this, the death rate for children in the U.S. continues to be the highest among the rich countries in the world. New laws intended to improve the health of children have not dented U.S. infant mortality rates, which rank the U.S. As the 18th highest in the industrialized world. Furthermore, health problems among children in the U.S. emanate from the failure to provide appropriate health care for them. Health care provisions are most needed for allergies, asthma, dental conditions, hearing loss, vision defects and chronic disorders. and, lastly, the best interests standard applies in determining research policies for children. Some parents allow minor children to participate in studies, which could benefit them, directly or indirectly (Kopelman).