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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.
Published in General
Agreed, however the parents aren’t the only people that have to bear the consequences. The child does too.
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…
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.
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.
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”.
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.
Just to get this out of the realm of the hypothetical, here’s one of the cases Novella discussed:
Novella writes (correctly, I think):
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.
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.
This is equally true of abortion. Abortion’s are not always 100% successful and childbirth is not always 100% problem free.
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.
How is that also not true of a parent who willfully forgoes medical treatment for a treatable disease?
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.
You do, but Child Protective Services does not. And it’s their opinion that matters, right?
In the case of treatable diseases how is the choice of the parent not the proximate cause of the child’s death?
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.
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.
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?
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.
No. They aren’t. Clearly the child has the highest stakes.
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.
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.
Once again, that’s speaks to the very crux of the debate. How should the law define “clear and overwhelming” evidence of negligence?
So let them make the decision.
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.
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.
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?
It is defined as an act that is:
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.
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.
Take it up with the legal tradition.