February 20, 2009
Racism in Child Welfare -- National Public Radio
NPR's Michel Martin aired a segment this week about racial disproportionality and disparity in the child welfare system, a topic addressed previously on this Blog (including in an entry dated January 27, 2009). Guests included Kristen Weber of the Center for the Study of Social Policy, Bernadette Blount, a parent advocate with New York's Child Welfare Organizing Project, and Toni Heineman, Director of A Home Within. Click on this link and then click again on "listen here" to hear the program (17 mins 26 secs.)
(last visited MIF -2-20-2009)
February 16, 2009
Case Law Development: Limits of Right of Parent/Guarians to Refuse Medical Treatment for Adult Incompetent Child/Ward
The Pennsylvania Superior Court, in a case of first impression, explored the limits of a parent/guardian's right to refuse medical treatment for their adult incompetent child. The case involved a 50-year-old man with profound mental retardation. After a court had found that his disability was so severe that he is "unable to make, communicate or even participate in any decision relating to his estate or person", his parents had been named his plenary guardians.
The man developed aspiration pneumonia after he swallowed a hairpin and vomited. Doctors concluded that he needed to be placed on a mechanical ventilator to assist him in breathing. His parents tried to decline this treatment, but over their objection, the hospital placed him on a ventilator for about three weeks, after which he had recovered sufficiently to have the respirator removed.
The parents filed an action to declare that they had the authority to decline medical treatment. Finding that the matter, though moot in this case given the son's recovery, was capable of repetition and evading review, the trial court held a hearing on the matter and declined to grant the requested relief.
The Superior Court affirmed. The court reasoned that the parent's status as plenary guardians was different from that of a health care agent. A health care agent, created by an advanced directive in accordance with the state's Health Care Agents and Representatives Act, acts to carry out the principal's wishes. A guardian acts under the direction of the court to protect the best interests of the ward. This distinction, the court held that a plenary guardian's powers do not include the power to reject medical treatment on behalf of a ward who is neither permanently unconscious nor in end-stage terminal condition.
The court went on to address the parent's argument that the trial court infringed the incompetent’s common law right to refuse medical treatment, as vicariously asserted by the guardians. The court did held that the parents in this case had not met the extemely high burden of proof necessary to secure the authority to exercise this right. The court concluded that "Where a life-long incompetent adult has neither an end-stage medical illness nor is in a permanent vegetative state, and a plenary guardian seeks to decline life preserving medical treatment on behalf of the incompetent, if the plenary guardian fails to establish that death is in the incompetent's best interests, by clear and convincing proof, then the guardian does not have the legal authority to decline life preserving medical treatment on behalf of the incompetent."
In re D.L.H., 2009 Pa Super 25 (Superior Court of Pennsylvania, February 10, 2009)
Opinion online (last visited February 15, 2009 bgf)