Special Considerations Regarding Children

The state’s interest as parens patriae, i.e. protector of its citizens, in the welfare and protection of children may justify compulsory medical care and supersede the rights of parents if the parents refuse life-saving treatment for their children.  Parens patriae is the ability and protective duty of the state and the courts to enforce restrictions on the rights of the children.  The equitable jurisdiction to deprive a parent of custody of a child in need is codified in statutes dealing with protection of neglected and dependent children.

However, in re L.H.R., 253 Ga. 439 (Ga. 1984), the court stated that once a diagnosis is made that an infant is terminally ill with no hope of recovery and in a chronic vegetative state without any reasonable possibility of attaining cognitive function, the state has no compelling interest in maintaining life.

Pursuant to child neglect statutes, upon certification from one or more reputable practicing physicians, the court shall summarily provide for emergency medical treatment if it feels that it is necessary for any child concerning whom a complaint for care has been filed.  Apart from child neglect statutes, statutes empowering a court to order appropriate physical care, where such an order appears to be in the best interest of a child adjudged to be in need of care and protection, have served as jurisdictional bases for court intervention in cases where parent refused to consent to lifesaving treatment.

While considering the right to refuse lifesaving treatment to children, courts should place adequate weight on and should be well aware of the interests of the minor, the parents, and the state.  However, the best interest of the child should always be at the forefront.

Where the welfare of the child is in issue, courts after balancing the interests of the child, state and parent, have held that state intervention is appropriate to save the child’s life through medical treatment.  The state can intervene by ordering treatment to save the child’s life despite objections or refusal from his/her parents.

If a child’s life is threatened by parents’ refusal and if the child is neglected or dependent, a state can take custody of the child to ensure him/her medical treatment in order to save the life of the child.  It may be the duty of the court to assume the responsibility of guardianship for a child or a patient who is mentally incompetent to the extent of authorizing treatment necessary to save their life even though the medical treatment authorized may be contrary to their religious beliefs.

The child becomes a ward of the court for purposes of ordering necessary lifesaving treatment where a lifesaving treatment has been refused by his/her parents and in this respect the court becomes the child’s guardian.  Furthermore, a court may appoint a third party to be the guardian of the child and may award legal custody to that third person for the purpose of consenting to the necessary lifesaving treatment.

In case of emergency situations, the court will act first before notifying the parents or before a hearing.  The courts can also step in where the parent’s refusal is based on unreasonable grounds.  A minor who is deemed able to understand short and long-term consequences is considered to be mature and thus able to provide informed consent/refusal for medical treatment. This maturity authorizes the minor to make decisions regarding his or her medical treatment. It does not, however, provide carte blanche permission for minors to make decisions regarding medical treatment without parental consent.

In the following circumstances, a mature minor doctrine permits the minors to consent to treatment:

  • Where the minor is an older adolescent (14 years or older).
  • Where the minor is capable of giving informed consent.
  • Where the treatment will benefit the minor.
  • Where the treatment does not present a great risk to the minor.
  • Where the treatment is within the established medical protocols.

Although the mature minor doctrine is not recognized by the US Supreme Court, some states such as Illinois, Pennsylvania, and Massachusetts have recognized this doctrine and use it in determining the maturity of a minor in medical decision making.

The likelihood of a cure, recovery, and the chance of a child to live a useful fulfilling life as a result of treatment shall be considered in a court’s determination regarding whether or not to interfere with parental refusal of lifesaving treatment.

A minor who is deemed able to understand short and long-term consequences is considered to be “mature” and thus able to provide informed consent/refusal for medical treatment.  Nevertheless, courts shall not interfere where the parents have sought another conventional mode of treatment which is not completely rejected by all responsible medical authority.


Inside Special Considerations Regarding Children