THE BLOG
03/18/2010 05:12 am ET Updated Nov 17, 2011

Whose Decision Is It, Anyway?

There has been much discussion about using schools for an "all out" vaccination campaign this fall, for both the regular flu shot and the new H1N1 vaccine.1 According to authorities, students would ideally be vaccinated before school starts, but the swine flu vaccine won't be available until mid-October, making schools a logical place to begin mass vaccination.

According to permission slips issued in some school districts in Maine, parents must be present when their child is vaccinated if the child is in grade K through 2. For older students, parents are not required to attend, but they may do so if they wish. In the fine print of the permission slips, parents are notified of the date that a second, seasonal influenza vaccine will be administered to children who have never received a regular seasonal flu shot before.2 While the Maine Department of Education is quick to point that this is not a mandatory program, if the government declares an Influenza Pandemic Emergency, will those who question the safety and efficacy of both the season flu shot and the new swine flu shot retain their right to refuse for their kids?

Parental Consent vs. Physicians and the State

Parents have fewer rights over the health and welfare of their children that they may recognize. This concept reaches back into antiquity when the rulers in Sparta forcibly removed children from families so they could be indoctrinated with the willingness and importance of dying for the State in war. 3 This was also the model for Plato's idealized Republic. Interestingly, in 1918, the congress of the Communist Party's education workers in Russia asserted, "We must remove the children from the crude influence of their families." 4

When it comes to medical decisions, physicians are charged with ensuring the medical standard of care, defined as a treatment process that a clinician should follow for a given circumstance, is carried out on children, even over the objections of their parents. Doctors not only have the right to step in. All states have laws making it mandatory to report perceived medical abuse and neglect to Children's Protective Services (CPS). Physicians usually make the call when s/he feels the action--or inaction--of a parent places the child in danger of death or disability. A common example is a forced transfusion of blood to save the life of a child whose parents are Jehovah's Witnesses. However, not vaccinating has come under scrutiny and in some circles is starting to be viewed as medical neglect. The American Academy of Pediatrics recently concluded that, "Continued (vaccine) refusal after adequate discussion should be respected unless the child is put at significant risk of serious harm (as, for example, might be the case during an epidemic). Only then should state agencies be involved to override parental discretion on the basis of medical neglect".5

Wide support and extensive court precedence exists to back a doctor's discretion to call in CPS. The rationale for this authority was clearly written in a 1996 paper that states, "Whether (the guardians) are sincere, sane, and in every other capacity model parents, their insistence upon treatment that is scientifically inferior to conventionally accepted treatment is abusive, even if their intent is not."6 The current system, in its original intent, was set up to protect obviously abused and neglected children. The system would be a good one if medical professionals were amenable to common sense.

Unfortunately, common sense isn't very common these days and disagreeing with your doctor can lead to serious consequences. Because the government agrees with the premise, "Doctor Knows Best," parents can be deemed unfit when they refuse a medical treatment. Children can be removed from the home by CPS until proof of parental fitness is determined by a judge. The judge can also be the doctor himself: Physicians have the right to eject entire families from their practice when an obstreperous patient refuses - or even questions - routine vaccinations.

There have been several high-profile standoffs in the last several years where judges, medical doctors and the State have forced medical treatments on children against the objections of their parents.

In January, 2005, 13-year-old Katie Wernecke was diagnosed with Hodgkin's disease. When Katie's parents, Michele and Edward Wernecke, refused radiation treatments for their daughter, Texas CPS intervened. Katie was placed in foster care for four months and her mother was arrested on charges of interfering with child custody.

In July, 2006, the story of 9-month-old Riley Rogers made the news when he was diagnosed with a kidney problem that required emergency surgery. His mother disagreed and smuggled her son out of the hospital. Several days later, he was found and sent back to the hospital; the mother was charged with second-degree kidnapping and sent to jail. As it turned out, the surgery was not emergently needed after all.

Also in 2006, the story of Abraham Cherrix resulted in a change in the law in Virginia. After enduring three months of ineffective treatments for Hodgkin's lymphoma, Abraham rejected his doctor's recommendation for a second round of chemotherapy. He chose to use more natural, nontoxic methods that included alternative medicine. A judge ordered him back to chemotherapy, starting a debate on whether the government should get involved in family medical decisions. A compromise was reached in Accomack County Circuit Court: Abraham was not required to have chemotherapy if his family consented to treatment with a radiation oncologist who used both conventional and alternative methods. As a result of this high-profile case, Gov. Timothy M. Kaine signed a bill dubbed "Abraham's Law," giving parents and children more leeway in refusing medical treatment. 9

These stories should raise the eyebrows of every parent, leading them to ask the question, "Who really owns your child?" and more to the point, "Who owns your child's body?" At what age a child "officially" become the age of majority in the U.S and have the right to decide what goes in his body?

Children Making Adult Decisions

The answer varies widely among the states and in some locales, the very young have the right to make very big decisions. For example, a youth can legally get married with parental consent in Georgia, Mississippi, Michigan, and North Carolina when 15 years of age. In Texas, 14-year-olds can wed with judicial consent, and amazingly, New Hampshire and Pennsylvania will even allow 13-year-old girls to marry with parental consent and court permission.

However, most states seem to delineate 16 years of age as the transition to adulthood. Nearly every state will allow 16 year old to marry with parental consent. At 16, a teen can hold a full-time job, travel alone outside the country, hold a driver's permit, and have full responsibility for someone's children as a baby sitter. In many states, a 16-year-old can even be tried as an adult for murder.

When it comes to consent to medical care, the focal point of the debate over a minors' access to confidential services and the right to determine his or her own care originated in 1970 with the passage of the Title X family planning program. Since its inception, services supported by Title X have been available to anyone who needs them without regard to age.

With the passage of time, the ability for minors to legally and fully consent to a range of sensitive health care services--including sexual and reproductive health care, mental health services and alcohol and drug abuse treatment--has expanded dramatically. The trend was based on the presumption that while parental involvement in minors' health care decisions is desirable, many minors will not participate in medical services if forced to involve their parents. In most cases, state consent laws apply to all minors age 12 and older. These examples are eye-popping:

In 25 states and the District of Columbia, all minors (12 and older) can receive contraceptive services without parental participation.

In 28 states and the District of Columbia, all minor parents have the right to place their child for adoption. Of these, only 4 states (LA, MI, MN, RI) require parental consent.
In three states (CT, ME, MD) and the District of Columbia explicitly allow minors, 12 years of age and older, to consent to an abortion without involvement or notification of a parent. Only 22 states require parental consent and only 11 require a parent to be notified prior to an abortion.12

Of the 35 states with specific statutes, 30 states allow a minor to obtain authorization for an abortion from a judge without informing her parents. This option, given to protect a minor's constitutional right to privacy, has been upheld by the U.S. Supreme Court.13

All this latitude has been given to minors to ensure they have rights for consenting to treatment. But- and this is key - they have little or no rights when it comes to refusing medical treatment forced upon them by doctors and the government, even when their parents support their right to refuse.
So, where is the line between the right to refuse a medication or a vaccine and the right of the state to forcibly intervene, even in the event of a declared national emergency? Who gets to make the decision? Will it be parents and smart teens, or persons in white lab coats and black robes? For me, I will fight to maintain the line between me and "them" at the level of my skin.

Notes:

1 "Vaccination Program That Targets Children First May Lessen Spread of Swine Flu This Fall," WebMD News. September 10, 2009

2 "Schools in Maine Participating With Flu Vaccinations."

3 "The Free Market and Education: A Review," by Ken Schoolland. 1996.

4 Ibid. Ken Schoolland. www.fff.org/aboutus/press/schooland.asp

5 Salmon DA, Omer SB. "Individual freedoms versus collective responsibility: immunization decision-making in the face of occasionally competing values."

6 Rosen, J Emergency Med. 1996;14:241-243.

7 "State-sponsored medical terrorism: Texas authorities arrest parents, kidnap their teenage daughter, and force her through chemotherapy against her will"

8 "Baby undergoes surgery despite mom's worries." by M. Alexander Otto. The News Tribune. July 2nd, 2006.

9 "Assembly Gives 14-Year-Olds A Say on Key Medical Care," Washington Post. February 24, 2007.

10 Wikipedia: Marriageable age

11 Minors and the Right to Consent to Health Care The Guttmacher Report on Public Policy. August, 2009.

12 An Overview of Minors' Consent Laws

13 Ibid. Minors' Consent Laws.