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Parents vs Hospitals: is Forced Treatment Legal?
Let us examine a scenario; parents go to a hospital to treat their child’s cancer and after seeing the debilitating effects of chemotherapy, opt to end the treatment. The hospital, however, sees the child’s cancer as curable and uses the court system to attempt to force their patient to continue treatment. Which party has the law on their side, the parents of the child or the hospital?
This seemingly hypothetical situation has become a real debate between an Amish couple in Ohio and the Akron Children’s Hospital. Parents, Andy and Anna Hershberger, have decided to stop the chemotherapy treatments of their 10 year old daughter, Sarah, who is battling Leukemia. The couple originally consented to the chemotherapy of Sarah in May 2013 but put an end to the treatment in June 2013. The parents saw the effects of the treatment as more harmful than helpful and opted to use natural herbs and vitamins rather than radiation to rid the girl’s body of the cancer.
While it is the belief of Mr. and Mrs. Hershberger that chemotherapy was actually killing their daughter, it is the moral and legal obligation of the hospital to make sure that the young girl received proper care. As explained by Robert McGregor, Akron’s chief medical officer, the hospital believes that the girl will die without the chemotherapy treatment. “We really have to advocate for what we believe is in the best interest of the child,” explained McGregor.
This is where the law stepped in, as the hospital went to court in order to force Sarah’s continued chemotherapy treatment. Judges appointed an unaffiliated third party, or “court guardian” to the case, Maria Schimer who is an attorney as well as registered nurse. Along with guardianship came Maria’s power to make all medical decisions regarding Sarah’s continued treatment. With this decision, the Amish family went into hiding about four months ago and has refused to reappear until the guardian is removed. Maria Schimer recently requested to be dropped from this case as she can no longer reach Sarah and her family.
The Hershbergers are currently fighting to obtain the right to make health care decisions for Sarah after the legal guardian is formally removed from the case. These parents are appealing the decision that allowed Maria Schimer to step in and make medical decisions for their daughter in the first place. The couple feels that assigning this guardian has infringed upon their constitutional rights and are appealing under the Ohio Health Care Freedom Amendment, approved in 2011. This amendment prohibits laws that force Ohioans to, “participate in a health care system.” This appeal is the first time that the court has been forced to determine the scope of this amendment, which has previously been seen as a symbol against President Obama’s health care overhaul.
The representing attorney to the Hershberger’s, Maurice Thompson of the libertarian 1851 Center for Constitutional Law in Ohio also helped draft the Ohio Health Care Freedom Amendment. Thompson feels that this case is a significant issue under said amendment because the Ohio Health Care Freedom Amendment is in place to preserve the rights of parents and children to choose their health care free of compulsion and prevent forced health care. “Allowing an uninterested third-party, one that has never even met the family or the child, to assert an interest in an exceedingly important parental decision will completely undermine the parent-child relationship,” argues Thompson.
Though the case of the Hershberger family has not yet been decided, it is most likely going to face multiple challenges. This stems from the fact that though the Ohio Health Care Freedom Ammendment was approved, it did not prevent the implementation of the Obama’s new federal health care law. This is because a state amendment does not have the ability to nullify a law. This situation could harm Ohio’s ability to enforce its specific laws and amendments to a case such as this. It is also questionable as to whether this amendment can extend to the point of protecting the Hershberger family’s case, which will be up to the court system as they decide on the full scope of the amendment.
The bigger picture of this case becomes, is it the right of the parents or the right of the hospital to determine the medical future of a child? While the Akron Hospital, versus the Hershberger family case is one of the most recent, there are other similar situations in which parents have lost the custody of their ill children to decisions made by the hospitals treating them. Fifteen year old Justina Pelletier was taken from her parents and placed into the custody of Boston Children’s Hospital in February 2013. This event occurred due to a dispute between Justina’s parents and the hospital, when her diagnosis changed from a mitochondrial disorder to a mental illness. After the change in diagnosis, the Pelletier family threatened to withdraw their daughter from the hospital in order to seek a second medical opinion. Once a child is labeled with a mental disorder, it is within the hospital’s power to call child protective services. In this case DCF labeled the parents behavior as insolent and abusive. The parents were stripped of their custody and the state of Massachusetts forcibly been treating as well as detaining Justina since that time. Based on the current ruling, it looks as if Justina will not be fully released until she is 18 years old.These two extreme cases can seem terrifying in the eyes of parents, and rightfully so. It seems that the hospitals often have the final say in the treatment of child patients rather than the parents.
While both sides of this scenario, the hospitals and the parents, seem to be looking to protect the child’s best interests, it becomes hard to draw a line between who is correct in their judgements. If parents are fully informed about treatment options as well as their risks and decide that the risks do outweigh the benefits, it should be within their ability to opt out of treatment as the child’s legal guardians from birth. However, this becomes complicated with the consideration of some parental religious beliefs that could bar the child from receiving potentially life saving treatment. On one hand, due to custody under the hospital or a third party guardian, a life can be saved, but on the other religious beliefs may be compromised. This medical debate does not have an all encompassing answer.
At what point, does it become ok to take over the custody of a child without the consent of their parents, or is it ever ok? To each his own, what is your opinion?
[The News- Herald] [Fox News] [Police State USA]
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Taylor Garre (@TaylorLynn013)
Featured image courtesy of [Randall Pugh via Flickr]
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