On Parental Rights

 

On the website Neurologica — branded as “Your daily fix of neuroscience, skepticism, and critical thinking” — talk has turned to parental rights. Steven Novella, MD asks:

[Should] desperate parents, regardless of their educational or cultural background… have absolute authority over the treatment of their very sick children, or does the state have some authority and responsibility to defend the welfare of every sick child?

He continues:

You can probably guess my position. Children deserve basic medical care and an opportunity to grow up to be adults who can then make their own decisions about their beliefs and the healthcare they choose. Parents should not have the right to condemn their own children to an early and unnecessary death simply because it suits their worldview.

To me these cases are crystal clear. Adults can treat themselves anyway they wish. However, parents do not have the right to harm or neglect their children for any reason. One of the primary duties of the state is to protect the vulnerable, those who cannot protect themselves. There is a broad consensus that children are a vulnerable population and need at least a basic level of protection.

This can be done while remaining sensitive to parental feelings and rights. I don’t think draconian measures should be imposed on a hair trigger. But there is a certain threshold that should not be violated. Parents, in my opinion, should not be allowed to refuse life-saving medical treatment for their terminally-ill children.

I can’t say I share Novella’s certainty.

On the one hand, it’s difficult to imagine a circumstance more appropriate for state action than protecting a child from abusive parents; no other kind of citizen is so vulnerable or so poorly qualified to defend their rights against malefactors or the negligent. On the other, it’s equally difficult to imagine a circumstance more susceptible to abuse by overzealous authorities; family life is famously difficult for outsiders to evaluate and children are often unreliable witnesses for the same reasons that make them vulnerable.

Conservatives and libertarians alike tend to be hawkish on the subject of parental rights: some of it is old-fashioned American populism — “I don’t want some stuck-up fella from Warshington tellin’ me how to raise my kids” — but everyone I know who has dealt with child protective services or the foster care system knows Kafkaesque horror stories of bureaucrats or do-gooders who’ve destroyed families for spurious reasons. The Justina Peltier case here in Massachusetts was a prime example of what can happen when you combine the worst aspects of power with ambiguous facts.

My tentative judgment is that the bar for usurping parental rights should be set exceedingly high; a government big enough to save a lunatics’ child is likely big enough to grab yours unjustly. In the short-run that likely means more children dead who might well be saved, which is an unbelievable tragedy.

In the long-run, however, it may be for the best. The damage done to the medical profession by cases like the Peltier’s is extraordinary: I’ll certainly be wary of taking my kids to Boston Children’s Hospital when we have them, and I know others who think the same. Moreover, even the best, most medically-sound treatments fail sometimes. Imagine the paranoia that spreads when a child is seized by the state against his parents’ wishes, only to die under its custody by sheer bad luck (a treatment with a 90% success rate still fails 10% of time).

I do wholly agree with Novella that the state should come down like a ton of bricks on those who knowingly peddle psuedo-scientific nonsense to the desperate, giving them false hope and endangering their children’s lives.

They have contributed to a culture in which science and doctors are not trusted, and where everyone feels empowered to be their own expert and do whatever feels right. They have promoted “health care freedom” and “right to try” laws that sacrifice standards of care and ethical practice so that the gurus can make any claims they wish and practice any nonsense that suits them.

If there are any true villains in these cases, it’s the charlatans who are laughing all the way to the bank on others’ desperation.

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  1. user_331141 Inactive
    user_331141
    @JamieLockett

    Tom Meyer, Ed.:

    Misthiocracy: The question is, what should be the state’s default position on the question when the facts are ambiguous? Should the state side with the parent, knowing that parents make mistakes, or should the state side with doctors, knowing that doctors make mistakes? One argument for defaulting on the side of the parent is that regardless of which side makes the mistake, it’s the parent that has to deal with the consequences.

    That’s a really good way of putting it.

    Agreed, however the parents aren’t the only people that have to bear the consequences. The child does too.

    • #31
  2. das_motorhead Inactive
    das_motorhead
    @dasmotorhead

    What if we get rid of state oversight, do a massive overhaul of med-mal, get back to the resident-as-apprentice style training model, and thus give physicians time to actually develop relationships with their patients? I know, it’s a pipe dream.

    The overarching issue here is that physicians have become so removed from their patients due to bureaucracy that there’s no real chance for communication and (mutual) education. So, you end up with angry parents who are yelling at the MDs because “I know my kid better than you do,” and MDs yelling at parents because, “I went do med school and evidence-based practice!” Not conducive to quality care…

    • #32
  3. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    George Rapp: I’ll answer your reductio ad absurdum with one of my own.

    Well, that’s not really answering it and it’s not really very absurd. It happens; desperate parents often make very foolish decisions about their childrens’ welfare and are easily seduced by pseudo-science. Both of Novella’s cases are pretty close to the hypothetical I described.

    To answer your question, no I don’t think that’s necessary at all. As I said, I put the bar at superseding parental rights very, very high. Sadly, that leads to some kids dying who might otherwise be saved but — on balance — I think that’s for the best. It’s just very sad.

    • #33
  4. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett:A related point:

    I’m surprised we don’t have more of a call from Pro-Life Activists for state intervention in these cases.

    People who are Pro-Life think government should intervene to protect the unborn from their parents decisions and yet they are curiously silent when it comes to parental decisions on those children once they are outside the womb. (Or in the case of WC – advocating an entirely contrary position)

    You think very little of pro-lifer’s ability to reason, don’t you? Abortion is the very opposite of “parental” rights. It’s the negation of parenthood by killing the child. There’s literally no overlap.

    • #34
  5. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett: Where do parental rights over ones children give way to the right to life. That seems to be what is at stake here.

    Not quite.

    The right to life means that no person can extinguish another person’s life.  The right to life does not mean that no disease can extinguish another person’s life.

    Regardless of which side one falls on, the child’s “right to life” is not really the question, because the outcome of the decision cannot be known with 100% certainty.

    Since neither side can guarantee the child’s life, one cannot say that either side is guaranteeing that the child’s rights are being protected.

    Instead, the question is about which side is best equipped to calculate the odds and to weigh the consequences of the decision.

    It’s a question about a “good”, not a “right”.

    • #35
  6. das_motorhead Inactive
    das_motorhead
    @dasmotorhead

    Tuck:

    You’ve heard the expression: “If there’s smoke, there’s fire”? Malpractice lawsuits are so high because malpractice is so high.

    The fix isn’t to lessen the legal burdens, but to improve the practice of medicine.

    You’re not entirely wrong, but you’re not entirely right, either. I’m not denying that legit malpractice isn’t an issue, but there is also the pervasive idea that medical treatment should be risk free. When things do go wrong, as they inevitably will even when everything was done right, the assumption is malpractice.

    Hospital risk-management departments are constantly dealing with threats of lawsuits for this kind of thing, and it muddies the waters for cases of real malpractice. It’s too easy to sue.

    • #36
  7. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Just to get this out of the realm of the hypothetical, here’s one of the cases Novella discussed:

    [One resident] stands firmly behind the Six Nations neighbours who took their 11-year-old daughter with leukemia out of chemotherapy, and are treating her with traditional, but unproven, native methods and other alternative health-care instead.

    “There’s a fear of [aboriginal remedies] or denial of it. If things can’t be quantified or qualified, to them it’s irrelevant,” said Ms. Hill, as she shopped at Ancestral Voices Healing Centre Thursday. “Who are they [doctors] to say she will make it with their treatments. Just because they have a degree, that makes them more knowledgeable?”

    But Justice Gethin Edward of the Ontario Court of Justice suggested physicians essentially want to “impose our world view on First Nation culture.” The idea of a cancer treatment being judged on the basis of statistics that quantify patients’ five-year survival rate is “completely foreign” to aboriginal ways, he said.

    “Even if we say there is not one child who has been cured of acute lymphoblastic leukemia by traditional methods, is that a reason to invoke child protection?” asked Justice Edward, noting that the girl’s mother believes she is doing what is best for her daughter.

    “Are we to second guess her and say ‘You know what, we don’t care?’ … Maybe First Nations culture doesn’t require every child to be treated with chemotherapy and to survive for that culture to have value.”

    Novella writes (correctly, I think):

    In essence, the 11-year-old girl with leukemia is going to be sacrificed at the altar of Six Nations culture. I don’t think it will matter much to her if her throat is slit or if she is allowed to die from a curable cancer, she will still be deprived of reaching adulthood.

    I can’t disagree with that, though I do disagree with his conclusion that therefore, the bar should be set pretty low in these things.

    • #37
  8. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    Jamie Lockett:

    Tom Meyer, Ed.:

    Misthiocracy: The question is, what should be the state’s default position on the question when the facts are ambiguous? Should the state side with the parent, knowing that parents make mistakes, or should the state side with doctors, knowing that doctors make mistakes? One argument for defaulting on the side of the parent is that regardless of which side makes the mistake, it’s the parent that has to deal with the consequences.

    That’s a really good way of putting it.

    Agreed, however the parents aren’t the only people that have to bear the consequences. The child does too.

    Yeah, but that’s the risk kids bear by having parents.

    It’s not a risk the kid gets to choose, but then, many of the risks we face in life are ones we didn’t choose. And I think the risk kids bear by not having parents – or by having parents whose parental rights are attenuated – is worse.

    • #38
  9. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: Regardless of which side one falls on, the child’s “right to life” is not really the question, because the outcome of the decision cannot be known with 100% certainty.

    This is equally true of abortion. Abortion’s are not always 100% successful and childbirth is not always 100% problem free.

    • #39
  10. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett: People who are Pro-Life think government should intervene to protect the unborn from their parents decisions and yet they are curiously silent when it comes to parental decisions on those children once they are outside the womb. (Or in the case of WC – advocating an entirely contrary position)

    The difference is that the decision to abort is about intentionally extinguishing a life, while deciding whether or not to pursue a particular course of medical treatment is about calculating the odds of saving a live.

    In short, since both sides believe they are protecting the child’s “right to life”, any argument that depends on the child’s “rights” becomes somewhat moot.

    • #40
  11. user_331141 Inactive
    user_331141
    @JamieLockett

    Western Chauvinist: You think very little of pro-lifer’s ability to reason, don’t you? Abortion is the very opposite of “parental” rights. It’s the negation of parenthood by killing the child. There’s literally no overlap.

    How is that also not true of a parent who willfully forgoes medical treatment for a treatable disease?

    • #41
  12. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett:

    Misthiocracy: Regardless of which side one falls on, the child’s “right to life” is not really the question, because the outcome of the decision cannot be known with 100% certainty.

    This is equally true of abortion. Abortion’s are not always 100% successful and childbirth is not always 100% problem free.

    However, Western legal tradition depends on mens reas.  Intentions matter.

    A person intentionally extinguishing a life is rather different that a disagreement between two parties about how best to save a life.

    • #42
  13. Tuck Inactive
    Tuck
    @Tuck

    Tom Meyer, Ed.: As I said, I put the bar at superseding parental rights very, very high.

    You do, but Child Protective Services does not.  And it’s their opinion that matters, right?

    • #43
  14. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: The right to life means that no person can extinguish another person’s life.  The right to life does not mean that no disease can extinguish another person’s life.

    In the case of treatable diseases  how is the choice of the parent not the proximate cause of the child’s death?

    • #44
  15. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett:

    Western Chauvinist: You think very little of pro-lifer’s ability to reason, don’t you? Abortion is the very opposite of “parental” rights. It’s the negation of parenthood by killing the child. There’s literally no overlap.

    How is that also not true of a parent who willfully forgoes medical treatment for a treatable disease?

    Because the parent does not intend to kill the child in that case. It’s a debate over which side is better equipped to calculate the odds of any particular course of treatment saving the child.

    • #45
  16. Tuck Inactive
    Tuck
    @Tuck

    Jamie Lockett: How is that also not true of a parent who willfully forgoes medical treatment for a treatable disease?

    There are many reasons to forgo medical treatment.  It’s not a guarantee of recovery, and if it’s going to bankrupt the family and put other children into penury, someone needs to make a decision.

    The parents are the ones with the highest stakes, as Mithiocracy noted.

    • #46
  17. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett:

    Misthiocracy: The right to life means that no person can extinguish another person’s life. The right to life does not mean that no disease can extinguish another person’s life.

    In the case of treatable diseases how is the choice of the parent not the proximate cause of the child’s death?

    That’s precisely the crux of the debate.  It’s all about the probability of treatment being successful, and which side is best equipped to calculate that probability.

    Are we so confident in the ability of doctors to make that decision, and so confident in the inability of parents to make that decision, that we are willing to allow the state to grant doctors the authority to impose their decisions by force?

    • #47
  18. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: However, Western legal tradition depends on mens reas.  Intentions matter. A person intentionally extinguishing a life is rather different that a disagreement between two parties about how best to save a life.

    Agreed, yet we also have a legal tradition that contains criminal negligence through which mens rea could be established in these cases. I’m not a lawyer – but from my law classes in business school mens rea in this instance could be established using the reasonable man standard manifesting a willful blindness or lack of foresight as to the consequences of the parents actions.

    • #48
  19. user_331141 Inactive
    user_331141
    @JamieLockett

    Tuck: The parents are the ones with the highest stakes, as Mithiocracy noted.

    No. They aren’t. Clearly the child has the highest stakes.

    • #49
  20. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: Are we so confident in the ability of doctors to make that decision, and so confident in the inability of parents to make that decision, that we are willing to allow the state to grant doctors the authority to impose their decisions by force?

    While no doctor is infalliable I would say that when it came to making estimates on the effectiveness of medical decisions doctors would be better equipped to make those estimates. Not only do they posses more knowledge of the treatments and consequences of those treatments, but they lack the emotional involvement that can cloud proper decision making.

    That said – I’m still not in favor of State intervention here unless the evidence of negligence on the parents behalf is clear and overwhelming.

    • #50
  21. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Tuck: You’ve heard the expression: “If there’s smoke, there’s fire”? Malpractice lawsuits are so high because malpractice is so high.

    Not necessarily.

    It’s possible that malpractice lawsuits are so high because the cost of fighting a lawsuit is sufficiently higher than the cost of settling a lawsuit that there is a sufficient incentive for lawyers to gamble on lawsuits even when there is no malpractice.

    • #51
  22. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett: That said – I’m still not in favor of State intervention here unless the evidence of negligence on the parents behalf is clear and overwhelming.

    Once again, that’s speaks to the very crux of the debate.  How should the law define “clear and overwhelming” evidence of negligence?

    • #52
  23. Tuck Inactive
    Tuck
    @Tuck

    Jamie Lockett: No. They aren’t. Clearly the child has the highest stakes.

    So let them make the decision.

    • #53
  24. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett:

    Tuck: The parents are the ones with the highest stakes, as Mithiocracy noted.

    No. They aren’t. Clearly the child has the highest stakes.

    That would seem to imply that it should be the child’s decision.

    If the state decides that a doctor’s opinion trumps a parent’s opinion, it’s almost certainly going to also decide that a doctor’s opinion trumps a child’s opinion.

    • #54
  25. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett: Agreed, yet we also have a legal tradition that contains criminal negligence through which mens rea could be established in these cases. I’m not a lawyer – but from my law classes in business school mens rea in this instance could be established using the reasonable man standard manifesting a willful blindness or lack of foresight as to the consequences of the parents actions.

    Not necessarily.

    From my (non-expert) understanding, a party which makes a decision in good faith with the intent of achieving a desired outcome is not guilty of negligence simply because the decision does not achieve the desired outcome.

    In order to show negligence on the part of the parents, you need to show that they are not acting in good faith with the best intentions of the child in mind.  The fact that they disagree with the doctors, and even that their disagreement is unreasonable, should not be sufficient to prove negligence.

    Negligence is about not caring about the outcome of a decision, not about making the wrong decision.

    • #55
  26. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: That would seem to imply that it should be the child’s decision. If the state decides that a doctor’s opinion trumps a parent’s opinion, it’s almost certainly going to also decide that a doctor’s opinion trumps a child’s opinion.

    All I’m trying to imply is that claiming the parents have the highest stakes in this decision is an untrue statement. Higher sure. Not highest. That matters.

    At the end of the day the worst consequence of this decision is a dead child. Morally I am more comfortable with the decision to do everything possible to save that child’s life regardless of eventual outcome. No choice in life is 100% guaranteed, but weighing treatments and their odds for success is why we have doctors in the first place. Otherwise why not just have parents interface directly with medical supply companies?

    • #56
  27. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: Not necessarily. From my (non-expert) understanding, a party which makes a decision in good faith with the intent of achieving a desired outcome is not guilty of negligence simply because the decision does not achieve the desired outcome. In order to show negligence on the part of the parents, you need to show that they are not acting in good faith with the best intentions of the child in mind.  The fact that they disagree with the doctors, and even that their disagreement is unreasonable, should not be sufficient to prove negligence. Negligence is about not caring about the outcome of a decision, not about making the wrong decision.

    It is defined as an act that is:

    careless, inattentive, neglectful, willfully blind, or in the case of gross negligence what would have been reckless in any other defendant.

    • #57
  28. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Jamie Lockett: It is defined as an act that is: careless, inattentive, neglectful, willfully blind, or in the case of gross negligence what would have been reckless in any other defendant.

    That “definition” seems inherently tautological.

    Listing a series of synonyms for “negligence” does not qualify, IMHO, as a definition of “negligence”.

    The only word in the definition that seems useful to me is the word “willful”.

    In order to prove negligence, you need to show that the parents “willfully” do not care about the outcome of the decision.

    • #58
  29. Sabrdance Member
    Sabrdance
    @Sabrdance

    There’s a great line in the movie The Mask of Zorro towards the beginning.  The villain has invaded Diego Vega’s home, kidnapped his daughter, and -inadvertently -killed his wife.  Vega, cradling his dead wife, looks up at the villain.  The villain says “I would have always protected her.”

    Vega responds, “She was never yours to protect.”

    That is the underlying issue here.  Children are not the state’s to protect.  Outside clearly demarcated abuse, abandonment, or assault, the state has no right to intercede.  If the Sioux want to treat their children’s cancers with traditional remedies -unwise though it may be -it is their prerogative.  If they would rather their children die young, but in the Sioux way, so be it.

    We can cajole, convince, persuade, induce, and argue the point -they may even come around.  We can offer assistance, support, and so forth -they may even accept.  But we cannot tell them how to protect their families.  It is not out place.

    If we cannot live this way, then we must ruthlessly imperialize the family.  Once we break that prerogative of families beyond the traditional bounds then there will be one, and only one, acceptable way to raise children.  Every interest group will want to push their particular method into the state’s enforcement -and any interest group that doesn’t will soon be forced to start purely in self defense.

    In this way, it is rather like marriage -which the state’s meddling in since the 1950s has done so much for.

    • #59
  30. user_331141 Inactive
    user_331141
    @JamieLockett

    Misthiocracy: That “definition” seems inherently tautological. Listing a series of synonyms for “negligence” does not qualify, IMHO, as a definition of “negligence”. The only word in the definition that seems useful to me is the word “willful”. In order to prove negligence, you need to show that the parents “willfully” do not care about the outcome of the decision.

    Take it up with the legal tradition.

    • #60
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