LA guidelines stress parents’ rights
The Los Angeles guidelines on the withdrawal of life support for minors may surprise some health care providers who believe parents have little authority in making crucial decisions about their child’s treatment, says Robyn Meinhardt, RN, JD, the lawyer who co-chairs the Joint Commission on Biomedical Ethics of the Los Angeles County Bar and Medical Association. Meinhardt is a partner in Foley, Lardner, Weissburg & Aronson.
"These guidelines give a preference to parental authority, and that is based on constitutional law," she says. "Providers often lose sight of that. Sometimes they get a God complex and believe only they know what is best for the children. It’s important to remember that our country has a legal system, and parents have rights."
Assume the best
The guidelines encourage providers to start out with the assumption that parents are acting in the best interest of the child, and then work down a decision tree from there.
"You go through a communications process set up in the guidelines and you keep talking," Meinhardt explains. "You go to the bioethics committee if you have to, and you don’t end up opposing the parents’ decision until you’ve gone through all of that process."
The process will provide a foundation and a paper trail for defending the hospital later on, she says. No matter what your ultimate decision is in a particular case, and no matter which party ends up suing you for it, you will be on firm legal footing if you can show that you followed an established, logical process rather than just declaring that your decision was correct, she says.
The Los Angeles guidelines may be particularly helpful for risk managers trying to sort out the implications of the "Baby Doe" regulations, special definitions of child abuse created by federal statute and regulations (42 United States Code 5106a-5106g and 45 CFR Part 1340). The Baby Doe regulations can affect treatment decisions because they prohibit the withholding of "medically indicated treatment" for minors.
"The Baby Doe regs have been the boogeyman of people considering forgoing life- sustaining treatment for children," Meinhardt says. "No one seems to know what the impact of these regulations is. The regs themselves are ambiguous, and we were confused about when they apply."
Baby Doe linked to federal funds
The Los Angeles committee determined that the Baby Doe regulations only apply in some situations. Most importantly, you have to know whether your state accepts federal funds for child abuse programs. If your state accepts those federal funds, the Baby Doe regulations apply. If your state does not accept the federal funds, the Baby Doe regulations have no bearing on your decisions to withdraw life support for minors.
But even if the Baby Doe regulations do apply to your facility, you still need to know how your state attorney general is interpreting the regulations. Some attorneys general interpret the regulations strictly, meaning they will see little leeway for withdrawing life support from minors, especially if the parents disagree with the health providers.
They’re looking for agreement’
Other attorneys general will take a more lenient approach. You have to know which is the case for your own attorney general because that can greatly affect the liability your health care facility faces in making treatment decisions.
"The risk under Baby Doe is whether your attorney general will haul a provider into court for withholding treatment from a minor," she explains. "The regulations say you have to give appropriate nutrition, hydration, medication.’ In California, we’ve been told that if physicians and parents determine together that it’s not appropriate for any reason, the state attorney general won’t challenge it.
"They’re looking for agreement between providers and parents. We hope that’s what you can achieve with the guidelines."
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