Child Health Law

Children and Psychotropic Drugs: What's An Attorney To Do? ¹

by Kathi Grasso

[W]e're prescribing for patients when we don't know the person. There are too many kids on too many drugs, and many of the kids have been given medication as a substitute for engagement and exploration of personal issues.

Glen Pearson, M.D., Psychiatrist and President of the American Society for Adolescent Psychiatry (ASAP)²

An Advocate's Dilemma

I once represented an eight-year-old girl who was placed in a residential treatment facility and prescribed multiple medications in varied combinations. Over her short lifetime, the laundry list of drugs she was prescribed included: Lithium, Prozac, Ritalin, Haldol, Mellaril and several others. She was ultimately diagnosed with bipolar disorder with a history of post traumatic stress disorder and sexual abuse. Her parents had little contact with her, the caseworker, or staff at the treatment facility.

As her attorney, I questioned the effectiveness and safety of the numerous drugs she was prescribed. I voiced concern about who was consenting to and monitoring their prescription. I sought a court order for a second medical opinion. I argued for alternative interventions, such as placement in a therapeutic foster home, so that she might come to know the nurturance of her parents. Upon my request, a Court Appointed Special Advocate (CASA) was assigned to monitor her medical care and special education services.

During the year I represented this child, I struggled with her case. A second independent, expert opinion supported continued use of medication to control her behavior. I was unable to get her placement changed to a less restrictive alternative as her behavior continued to deteriorate. I recently learned that she is still institutionalized and exhibits self-injurious behavior. Could I have done anything differently?

As many of you are aware, accessing appropriate health, mental health, and educational services can make a real difference in the successful implementation of permanency plans. The right services can prepare children for adoptive placements or family reunification. They can also help prevent institutional placements and placement disruptions.

No Magic Bullet

Drugs prescribed to children in the foster care and juvenile justice systems are not always harmless. The UCLA Center for Mental Health in Schools reports most psychotropic drugs prescribed to children have not been well documented. In fact, the FDA has not approved the use of many psychotropic medications to treat children. Also lacking is information on the severity of the drugs' side effects and their long-term effects on children's development. According to the UCLA Center for Mental Health in Schools:

Medical researchers warn that it is a mistake to think about medication as if it worked as a magic bullet. They say many people tend to think that, once administered, a drug speeds directly to its target and cures the problem. Medication is imagined to disappear upon entering the body and to reappear magically at its goal where is performs its work and again disappears. This belief fosters a tendency to ignore such facts as (1) drugs can cause damage as they go through the body, and (2) drugs don't necessarily stop having effects as soon they have done the work they are intended to do. ³

Because there are many unknowns and potential risks surrounding children's use of psychotropic medications, individuals prescribing psychotropic drugs should fully explain the need for the medication, the benefits and risks, and treatment alternatives.

Know Your Client's Health History

As an attorney representing a child, you should know if your client is taking any medications. All medications, including over-the-counter medications, can alter behavior and have adverse side effects.⁴ You should not only ask the assigned caseworker about the child's general health and medication use, but also anyone who might be involved with the child, including: relatives, teachers and school counselors, pediatricians and other medical personnel, and mental health practitioners.

It might appear unnecessary to have information on medication when the child does not seem to have any health problems; however medical records are essential to help explain any future disruptive behaviors of the child that could detrimentally impact on school and foster care placements. These behaviors could potentially be traced to medication use.

If your client is prescribed medication, ask the child's pediatrician or other medical professional the reasons for the prescription. Be sure to ask the following questions:

• What is the child's diagnosis?
• Are there alternatives to medication?
• What is the expertise of the medical professional prescribing the medication and monitoring its administration?

The American Academy of Child and Adolescent Psychiatry recommends families ask the following questions about psychotropic drugs for children and adolescents. These questions are useful for attorneys and individuals responsible for consenting to the prescription of drugs. They include:

• What is the name of the medication? Is it known by other names?
• What is known about its helpfulness with other children who have a similar condition to [the] child?
• How will the medication help [the] child? How long before [we] see improvement?
• What are the side effects which commonly occur with this medication?
• What are the rare or serious side effects which commonly occur with this medication?
• Is this medication addictive? Can it be abused?
• What is the recommended dosage? How often will the medication be taken?
• Are there any laboratory tests (e.g., heart tests, blood tests, etc.) which need to be done before [the]child begins taking the medication? Will any tests need to be done while [the] child is taking the medication?
• Will a child and adolescent psychiatrist be monitoring [the] child's response to medication and make dosage changes if necessary? How often will progress be checked and by whom?
• Are there any other medications or foods which [the] child should avoid while taking the medication?
• Are there any activities that [the] child should avoid while taking the medication? Are any precautions recommended for other activities?
• How long will [the] child need to take this medication? How will the decision be made to stop this medication?
• What should [be done] if a problem develops (e.g., if [the] child becomes ill, doses are missed, or side effects develop)?
• What is the cost of the medication (generic vs. brand name)?
• Does [the] child's school nurse need to be informed about [the] medication?⁵

These questions emphasize how seriously prescribing psychotropic medicine to a child should be taken. As advocates, we should not just accept on face value that our clients need to be on medications. There may be circumstances when medication is warranted, but in some cases it is not.

Who is consenting to the prescription of medication?

The person responsible for consenting to a child's receipt of medication should be a responsible, caring, and knowledgeable adult. This does not always include parents who may not be actively involved with their children, or the assigned agency caseworker who may not have the time to fully explore whether a child needs to be on medication. When deciding who should have authority to consent to medical care, the advocate should ask the following questions:

• Are either of the child's parents interested in making medical decisions affecting their child? Are they interested in learning about the drugs that will be or are being prescribed to their children? Parents are the preferred decision-maker if the permanency plan is reunification and if they are genuinely interested in their child's well-being.
• Does the assigned caseworker have the time, knowledge, and commitment to make or recommend medical decisions to authorized agency personnel responsible for making medical decisions for children in state care? If the worker does not have all three, the agency is not the appropriate "medical guardian."
• If parents and governmental agencies are inappropriate medical decision-makers, who should make health care decisions for the child? The child's lawyers should ask the court to appoint a guardian authorized to consent to the prescription of medication. Candidates include the child's foster parent, godparent, relatives, CASA or other individual who would have the knowledge to make thoughtful decisions on the child's behalf.

A court order granting an individual or agency limited guardianship to consent to the child receiving medical care (usually defined as "ordinary and necessary") is insufficient. If psychotropic medications are to be prescribed, the court should specify that a person or agency has authority to consent to the prescription of psychotropic drugs.

The Child's Voice in Medical Decision-Making

Older clients should be asked if they wish to be on medication. Older clients should be included in discussions and informed about the drugs they are prescribed. Including them in decision-making will help ensure that drugs, if appropriate, are taken as directed, and that reports of adverse effects are documented immediately and accurately.

Advocates should consult their state laws on the issue of minors' authority to consent to medical care. Your client may have the legal authority to consent to his or her medical treatment. In most cases, a parent or guardian consents to a child's medical care. However, depending on state statute and case law, minors over a certain age or legal status may have the authority to consent to certain medical care (e.g., reproductive health services; care for pregnancy; drug and alcohol abuse counseling; and some mental health treatment).⁶ Note that in some states, such as California, a minor is not authorized to consent to psychotropic drugs without a parent or guardian's consent.⁷

Preparing the Case

What if your "gut" sense is telling you your client's behavior may be the result of prescription medicines? What if your client is experiencing negative side effects? What can you do for your client?

Know your client's medical history. You need to know what your client was like before being medicated. In the cases of older children, you need to find out how your client feels about taking medication. Always review records held by hospitals, child protective service agencies, and other groups that contain infomration about the child's drug history. Dr. Diana Calvert, a pharmacologist in Oklahoma recommends taking the following steps when reviewing these records:

1. Review the child's admission history.
2. Review the medical section and write down how many times the child was given a medication.
3. Review the nurse's notes. Usually the nurse is the one who has been involved with the child and is more likely to note any behavioral characteristics that led to adminstration of the drug.
4. Look for how many times the child was started on a new drug and check the dates against the nurse's notes. Usually a behavioral incident can be matched to administration of a new drug.⁸

Find out as much about the prescribed drugs as you can, including their side effects and whether they have been clinically tested on children. You need to be able to question the experts, both off and on the witness stand.

You can find information about drugs in the most recent version of the Physician's Desk Reference(PDR) ⁹ and the Essential Guide to Prescription Drugs.¹⁰ These resources offer some surprising information about commonly-prescribed drugs for children and youth.¹¹ For example, the 1996 PDR Supplement A has information on Ritalin, including:

Ritalin should not be used in children under six years, since safety and efficacy in this age group have not been established. Sufficient data on safety and efficacy of long-term use of Ritalin in children are not yet available. Although a causal link relationship has not been established, suppression of growth (i.e., weight gain, and/or height) has been reported with the long-term use of stimulants in children. Therefore, patients requiring long-term therapy should be carefully monitored. Clinical experience suggests that in phychotic (sic) children, administration of Ritalin may exacerbate symptoms of behavior disturbance and thought disorder.¹²

Bring the PDR to court with you for cross-examination purposes.

You can also call the pharmaceutical company that produces the drug and ask for the package insert. This insert details information about the drug (e.g., recommended dosage, side effects).

Review copies of all records relevant to your client. The records to review include: foster care, medical (plus nursing notes), mental health, educational, group homes, and residential treatment records. Look for information on whether and what medication is prescribed, the client's behavior before and after receiving medication, any evidence of adverse side effects, consent forms, and evidence of drug monitoring (e.g., blood tests).

Speak with the medical, mental health, and other professionals involved in your client's medical care. Find out about the qualifications of the psychiatrist who is prescribing your client's medication. Ask this individual if and how often the child is being monitored for a drug's adverse side effects.

Get a second and third expert opinion on medical or mental health diagnosis and the prescription of drugs. If necessary, get a court order for a second opinion outside the institution where the child lives, and outside the court system. Advocate for the state to pay the costs for the additional opinion. A second and third opinion are in the child's best interest.

To get the names of health professionals sensitive to your client's needs, you might want to contact your state's local protection and advocacy (P&A) organization. These organizations work to protect the rights of individuals with mental, physical and developmental disabilities. Their staffs are usually familiar with mental health professionals in the community. Contact The National Association of Protection and Advocacy Systems (NAPAS) (Phone: 202-408-9514) for information on local programs in your jurisdiction.

Research the law in your jurisdiction. Find out if state statutes and agency regulations govern the administration of psychotropic or other medication. Examine their legislative history. Not many states have laws specifically addressing the issue, but some do. For instance, a Massachusetts regulation requires that a child welfare agency seek judicial approval before the agency consents to the administration of psychotropic medications to a child in their custody, even if the child's biological parents consent.¹³

Similarly, in Oregon, a relatively comprehensive statute requires the Children's Services Division to develop rules governing the use of psychotropic drugs by children in its foster care system. The statute mandates that the rules allow for detailed notice to parents, their legal representatives, and the child's legal representative or CASA of the administration of psychotropic medications to children. If any of these individuals object "to the use of or the prescribed dosage of the psychotropic medication," they may petition the court for a hearing. The court has the authority to order "an independent evaluation of the need for or the prescribed dosage of the medication." It can order that "the administration of the medication be discontinued or the prescribed dosage be modified upon a showing that either the prescribed medication or the dosage, are inappropriate."¹⁴

Remember to look outside the code governing juvenile or family court proceedings. Examine state statutes governing mental health services, including involuntary commitment to mental health facilities. Review "right to refuse" drug statutes and case law as they relate to adults.

Be creative. You may be able to make legal arguments on behalf of children and youth that have been made on behalf of adults. The United States Supreme Court has asserted that "the forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty" as protected by the Due Process Clause of the Fourteenth Amendment. Washington v. Harper, 494 U.S. 221-222, 229, 110 S. Ct. 1028, 108 L.Ed.2d 178, 198, 203; (1990); Riggins v. Nevada, 504 U.S. 127, 134, 112 S. Ct. 1810, 118 L.Ed.2d 479, 488 (1992).

File the necessary pleadings to get the issue before the court. An advocate in Massachusetts was successful in getting a temporary guardian appointed to consent independent of the Department of Social Services (DSS) after filing a petition with an attached memorandum of law. At the time of the petition's filing, her client 's medication (Mellaril) had caused A significant side effects, including . . . uncontrollable tremors, nausea, and tics." And, the DSS had not obtained the court's approval to consent to the continued administration of the drug.¹⁵

Prepare for trial just like you would any other case. Thoroughly interview your expert witnesses. Prepare to cross examine the opposing side's experts. Organize pertinent records for submission to the court. Consider having the court hear from your client. Develop your legal arguments.

In addition to addressing consent issues in its written order, ask the court to direct the agency to submit regular progress reports on the prescription of psychotropic drugs to the child. If necessary, request that the case be scheduled for periodic court reviews. The child's receipt of medication cannot be forgotten at the end of a hearing. Progress reports and court reviews can help ensure that it is not.

Conclusion

Those of us who represent children committed to state care must be vigilant about our clients' health care needs and treatment. We must educate ourselves on relevant law and health care options so that we are better able to challenge potentially harmful treatment. For many children, accessing appropriate health care, including mental health services, is crucial to achieving permanency in their lives.

This article is not intended to provide an in depth legal analysis of all relevant issues. I would like to learn how you have addressed children's psychotropic medication use, and other issues relevant to health care decision making for children in state care. The author can be reached at the ABA Center on Children and the Law at kgrasso@staff.abanet.org or (202) 663-1730.

Notes

1.  Points of view or opinions in this document are those of the author and do not represent the official position or policies of the United States Department of Health and Human Services and its subsidiary divisions.
2.  Glen Pearson, Revisiting Medication for Kids, Students and Psychotropic Medications: The School's Role (UCLA, Department of Psychology, School Mental Health Project 1997), 38.
3.  Id. at 6.
4.  Telephone Interview with Dr. Dianna Calvert, Pharmocologist, Wagoner, OK (April 4, 1997).
5.  Id. at 14.
6.  For a discussion and comprehensive overview of consent statutes, refer to Abigail English et al., State Minor Consent Statutes: A Summary (Center for Continuing Education in Adolescent Health/National Center For Youth Law 1995).
7.  See Cal. Fam. Code ' 6924.
8.  Dr. Diana Calvert, supra note 4.
9.  Supplements to the PDR are published two times per year. The PDR itself is published once a year by Medical   Economics Company of Montvale, NJ.
10.  James J. Rybacki & James W. Long, The Essential Guide to Prescription Drugs (Harper Perennial 1997).
11.  UCLA Center for Mental Health in Schools, Students and Psychotropic Medication: The School's Role (1997) (lists references and internet resources relating to psychotropic medication and its use by children and youth).
12.  Physicians' Desk Reference: Supplement A, A95.
13.  110 C.M.R. 11.14(4)(a).
14.  34 Ore. Rev. Stat. 418.517.
15.  Pleading of E. Alexandra Golden, Attorney at Law, West Newton, Massachusetts.

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