lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Cross-Posting: Should We Recognize a Child’s Right To Refuse Vital Medical Care?

The post below is cross-posted from my original post Should We Recognize a Child’s Right To Refuse Vital Medical Care? on the Children and the Law Blog.

CBS News: Girl Wins Right To Refuse Vital Transplant

Hannah Jones, 13, is not afraid of dying – she is afraid of spending her remaining days in a hospital bed. In a case that raises a host of medical and ethical issues, the British teenager from a small town northwest of London has won a battle to refuse a heart transplant operation. That decision by British medical authorities has ignited a debate over whether children should have the right to refuse potentially lifesaving medical treatments or if health authorities have an obligation to intervene.

That heartbreaking story illustrates the difficult issues that surround the law’s treatment of children as individuals with a right to determine their future. When Hannah and her parents decided against the procedure the medical authorities threatened to take them to court to force her to have it.

Doctors are required to obtain informed consent before treating a patient because individuals are thought to have the right to control what is done to their bodies. This includes the right to control the course of medical treatment and even to refuse it altogether. As long as a person is competent, they have a constitutionally-protected liberty interest in refusing unwanted medical treatment, balanced against the state’s interests in protecting and preserving human life. Cruzan by Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). A competent person has a right to refuse treatment even if the refusal ends in the individual’s death.

In general children are thought to lack the capacity to make life-altering decisions on their own. They may not fully understand the consequences or risks of their decision or the nature of their circumstances. The law defers to the judgment of parents or guardians in such situations.

While the Court has found that just like adults, a child also has a substantial liberty interest in not being confined unnecessarily for medical treatment, Parham v. J.R., 442 U.S. 584 (1979), the Court later noted that “In Parham… we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment.” See Cruzan.

So where does that leave us?

In Hannah Jones’ case a social worker was sent to interview her about her refusal to have a heart transplant. After discussing it the social worker then backed Hannah’s decision, which was supported by her parents as well.

According to the Department of Health, when a child is considered competent and refuses treatment, their decision will be respected. When a consensus can’t be reached, the patient can be overruled by either parents or guardians, or in more unusual circumstances, by the courts.

The harder questions are of course when the child and the parents disagree, or the state finds circumstances that they feel justifies overruling both parent and child, such as what effect to give religious views regarding surgery or blood transfusions. The rate at which this issue comes before the courts is only likely to increase given that advances in medical technology may often prolong painful treatment periods that a child or parents may instead choose to avoid to improve the quality rather than the longevity of life.

Further Reading:

  • Susan D. Hawkins, Protecting the rights and interests of competent minors in litigated medical treatment disputes. 64 Fordham L.R. 2075 (1996).
  • Hillary Rodham, “Children Under the Law”, 43 Harv. Edu. Rev. 487 (1973).

Cross-posting thoughts on Kennedy v. Louisiana from the Children and the Law Blog

What follows is a post I put up earlier today on Children and the Law Blog: Further Thoughts on Kennedy v. Louisiana

Following colleagues’ posts, Why Death Penalty Won’t End Sexual Assault: A Social Work Perspective on Kennedy v Louisiana and Supreme Court Rejects Death Penalty for Child Rape, I’ll hazard a slightly different perspective.

As is too often the case, the analysis of the opinion in the media distorts what was actually decided or even what was at stake. Supreme Court opinions are often treated as being about (1) what the policy should be, rather than (2) who should set that policy. We shouldn’t come down on commentators too hard for conflating these issues, however, as even the Justices tend to get this confused from time to time. The fundamental disagreement in this 5-4 decision is that five Justices thought the case primarily about number (1) – categorically prohibiting death penalty in child rape cases – and the other four thought it primarily about number (2) – allowing state legislatures to set punishments within constitutional bounds.

Ever Evolving Standards of Decency

Much of the majority’s opinion is spent justifying its determination of the ‘evolving standards of decency’ by reference to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” We don’t have to look very far into our history books to know that our sense of decency has indeed evolved -

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Two Centuries’ Growth of American Law, 1701-1901 By Yale Law School

The logic, however, of a court striking down a law passed by a democratically elected legislature based on a perceived consensus of democratically elected legislatures, seems bafflingly circular. What more appropriate measure of society’s standards than the collective statements of its duly elected representatives? That the majority finds it necessary to usurp that position for the sake of uniformity displays a preference for setting rules rather than setting boundaries. But here I’m just poorly paraphrasing Justice Alito’s dissent, who is left surmising, as am I, at the true policy behind the court’s ruling (see II B for his best guess).

Whose best interests?

It is, of course, entirely possible for statutes to be both Constitutional and terrible laws that hurt the people it’s designed to protect and there is good reason to believe that imposing the death penalty in cases of child rape imposes costs as well as confers benefits on child victims. In no other area of the law are unintended consequences so prevalent or so devastating and in its affect on children. Here are a few unintended consequences that imposing the death penalty in child rape cases might have created -

  1. Incentive to kill ones victims – the death penalty’s power of deterrence, though hotly debated, is the most obvious benefit to the victim. The specter of death, we believe, if proportional, encourages criminals to limit the damage they cause. If a child rapist is subject to death for the rape, there is no further incentive not to kill his young victim in order to cover up evidence of the crime.
  2. Discouraging Reporting of Child Rape – children are most frequently abused sexually by family members. Child victims may choose not to report rape because they fear that the rapist will be put to death. The tremendous guilt felt by victims remains for me the most stunning and tragic aspect of childhood sexual assault and may be magnified when the death penalty is imposed.
  3. Discouraging Cooperation in Prosecution by Child Victim – the Sixth Amendment’s confrontation clause requires the defendant have the right to confront and cross-examine witnesses. This can exacerbate an already bad situation for child victims who must often relive the trauma of the event in full court and in front of their attacker. The delicate balance walked by courts in protecting constitutional rights of defendants and avoiding any further harm to the victim/witness is further stressed in capital trials.
  4. Denying Opportunity for Closure or Explanation – an unexpected argument, raised in my colleague’s post here is the common desire among victims for explanation, apology, or other mechanisms of closure that is potentially lost if the assailant is put to death.

For policy makers the balancing of consequences and benefits is an uneasy and inexact science, but a task more appropriately performs by state legislatures. Most, I suspect, would find the cost of imposing the death penalty outweighs its benefits or that it would be imposed in a manner that, like Texas’ Penal Code § 12.42(c)(3) was reserved for repeat or habitual offenders.

In my opinion, this will never, fortunately or unfortunately, be the biggest problem facing children in our nation. Far more children will lose their lives to disease, inadequate nutrition and health care and outright neglect. Others will soon be caught in the very same legal system that here debates the best method of their protection. However, we should use the Kennedy case as a reminder that legal issues involving children are seldom as clear-cut as they seem and only a diligent and holistic approach to children’s rights can truly reflect their best interests.


Landmark Cases in the Supreme Court’s Death Penalty Jurisprudence

  • Kennedy v. Louisiana, 554 U. S. ____ (2008) (holding that the Eighth Amendment bars states from imposing the death penalty for the rape of a child not resulting in death)
  • Roper v. Simmons, 543 U. S. 551 (2005) (execution of juveniles violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime)
  • Atkins v. Virginia, 536 U. S. 304 (2002) (the execution of mentally retarded persons “cruel and unusual punishment” prohibited by the Eighth Amendment)
  • Enmund v. Florida, 458 U. S. 782 (1982) (capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place violates Eighth Amendment)
  • Furman v. Georgia, 408 U. S. 238, 382 (1972) (held that the death penalty could not be administered in a capricious or discriminatory manner)
  • Coker v. Georgia, 433 U.S.584 (1977) (held death penalty disproportionate to the rape of an adult woman and did not result, or was not intended to result, in the victim’s death)
  • Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), (noting that the Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”)
  • Weems v. United States, 217 U. S. 349, 367 (1910) (the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.”)

Considering Harris County’s Public Defender System and Youth

Rather than re-post this in full, I’ll just point out my recent post Anticipating Effect of Public Defender System on Representation of Indigent Youth in Harris County on the Children and the Law Blog, part of my work for the Center for Children, Law & Policy. This follows up on my previous post Call for Harris County Public Defender’s Office.

Harris County currently uses a system of appointments by juvenile judges, a system called into question by another Houston Chronicle article – A select few get the cases, and the cash. The article reveals a system, which combined with the fact that judges in Texas are elected, requiring them to campaign and thus to raise campaign funds through donations, that can hardly hope to avoid the appearance of impropriety. The article claims that two of the county’s three juvenile judges “received more than 90 percent of their campaign contributions from the attorneys they appoint.”

The judges, for their part, seem open to a public defender system themselves -

For his part, [Judge] Shelton says he gets no joy from his appointment powers and plans to study public defender offices in other cities. All three judges deny any correlation between contributions and appointments.

“I would be happier if there was a public defender system,” Shelton said.

Children and the Law, the Blog

Just a shameless plug and an apology for the light blogging – as part of my work with the Center for Children, Law and Policy at the University of Houston Law Center, we’ve launched a new Children and the Law Blog as part of the center’s mission in promoting interdisciplinary scholarship, advocacy and teaching to advance the interests of children through public policy. Visit often.

Gault @ 40 Symposium at the University of Houston Law Center

We’re hosting an upcoming symposium at the Center for Children, Law & Policy on In re Gault a landmark 1967 Supreme Court Case finding a right to counsel for juveniles accused of crimes.

The case involved a 15-year-old boy, Gerald Francis Gault. After a trial in juvenile court, Gerald was placed in a “training school” for juvenile delinquents because of his alleged involvement with a prank call. As a juvenile Gault was denied many rights guaranteed to adults who are on trial for committing a crime – the right to notice of the charges, the right to confront witnesses, the privilege against self incrimination and the right to counsel. It was in this case that the United States Supreme Court recognized the similarities between juvenile trials and criminal proceedings and afforded children due process protections in juvenile court. 2007 is the 40th anniversary of this landmark decision and in honor of Gault, the Center for Children, Law & Policy (CCLP) of the University of Houston Law Center is hosting a special event.

There will be a free round-table discussion on Nov. 2nd at the University of Houston Law Center from 9am to noon. There will be 3.0 hours of CLE credit (including 1.0 hour of ethics) Click here for more information and to register.

The event will feature talks by Michael Lindsay, J.D., Ph.D., Fellow, Center for Children, Law & Policy at the University of Houston Law Center and founder of Nestor Consultants, Ellen Marrus, J.D., George Butler Research Professor of Law at University of Houston Law Center and co-director of the Center for Children, Law & Policy at the University of Houston Law Center, Steven Mintz, Ph.D., John and Rebecca Moores Professor of History at the University of Houston, Wallace Mlyniec, J.D., Lupo-Ricci Professor of Clinical Legal Studies at Georgetown University Law Center and Irene Merker Rosenberg, L.L.B., Royce R. Till Professor of Law at University of Houston Law Center.

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