Juvenile Law Presentation

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Curing the Medication Straightjacket : 

Curing the Medication Straightjacket Constructing a Clear Standard of Informed Consent and Psychiatric Care for the Use of Psychotropic Medications on Children in Foster Care

DisclaimerI am not Saying : 

DisclaimerI am not Saying That all psychotropic medications are bad and should never be used That all state systems are ineffective That children should never be prescribed psychotropic medication That drug companies are big evil corporations seeking to make a profit at the expense of others

Gabriel Myers : 

Gabriel Myers

Gabriel is Not Alone : 

Gabriel is Not Alone A six year old in Washington failed to wake up in his Seattle foster home because a toxic level of amitriptyline (depression and hyperactivity) was found in his blood A class action lawsuit was brought against Tennessee’s Department of Children Services for the overuse of psychotropic medications as a method of discipline or control (Brian A Settlement).

What is a Psychotropic Medication? : 

What is a Psychotropic Medication? Psychotropic medications are drugs prescribed by a family doctor or psychiatrist to minimize or eliminate “abnormal” behaviors. Hyperactivity (Ritalin, Strattera, Concerta) Depression (Prozac, Abilify, Xanax, Zoloft) Disorderly conduct (violence, sexual, mood swings) (Topomax, Lamictal, Trileptal) Delusions, hallucinations (Antipsychotics: Abilify, Clozapine, Haloperidol)

How Do Psychotropic Medications Work? : 

How Do Psychotropic Medications Work? Generally, psychotropic medications mimic, enhance, or decrease the action of neurotransmitters in the brain. Neurotransmitters are substances released by neurons in the brain to communicate messages with other neurons. Psychotropic medications either boost the effect of neurons that have decreased functioning or they block the effects of functionally overactive neurotransmitters in the brain. Some psychotropic medications directly affect only one neurotransmitter (e.g., serotonin), while other medications may affect multiple neurotransmitters (e.g., serotonin, norepinephrine, dopamine, etc.). I will illustrate with a Synapses Diagram on the Board

Panacea or Epidemic? The Use of Psychotropic Medication : 

Panacea or Epidemic? The Use of Psychotropic Medication Panacea: A remedy for all ills or difficulties Epidemic: An outbreak or sudden rapid spread that affects a disproportionate amount of people

Panacea or Epidemic? : 

Panacea or Epidemic? Medication for "abnormal" behaviors has seen a dramatic increase in the past decade, primarily due to the introduction of "second generation antipsychotic" ("SGA") medication. Heralded by many as safer and more effective, clinicians and mental health professionals began to prolifically proscribe them to children. Before the introduction of SGAs, children were generally only proscribed antipsychotics

Panacea Side : 

Panacea Side Today, SGAs have become the universal cure for “problems” in children such as hyperactivity, anxiety, and depression. They are effective and with little effort or money Spending for psychotropic medications for childhood behavior problems is now higher than any other child drug category, including antibiotics Prescriptions for psychotropic medications have nearly tripled since the later 1990s

The Epidemic: Side Effects : 

The Epidemic: Side Effects Although SGAs are seen as less dangerous than their fist generation counterparts, clinicians are beginning to research and realize the side effects These side effects are exacerbated in children because SGAs interact with a developing brain and neurological system Note: Psychotropic medications are not initially tested on children but may still be proscribed to children according to the current FDA rules

Short Term Side Effects : 

Short Term Side Effects Somnolence/sedation: from sleepiness to coma Tardive dyskinesia: life altering neurological disorder that disfigures and potentially disables a person with tics, spasms, and abnormal movements Blurred vision, tinnitus, weight gain, diabetes, arrhythmia, seizures, headaches Digestive/urogenital conditions gastrointestinal disturbances Somatic, skin, musculoskeletal, and respiratory problems

Long Term Side Effects : 

Long Term Side Effects Coma Death Tardive Dyskinesia

Mental Side Effects : 

Mental Side Effects Children are subject to heightened negative psychological effects due to their developmental stage and the use of SGAs may amplify negative feelings of self worth, personal identity, and lack of "fitting in.” No extensive studies exist on this however Example: A 15 year old girl who has gained 20 pounds from taking a SGA may now be able to "concentrate" in class, but may now suffer from a lack of self-worth and image. Increase thoughts of suicide

Abilify Commercial : 

Abilify Commercial Remember - This commercial is supposed to make you want to take it!

Legal Recognition of Side Effects : 

Legal Recognition of Side Effects FDA now requires a Black Box warning on antidepressants that increased thoughts of suicide in people under 25 may occur The Supreme Court in Washington v. Harper held that the potentially fatal and dangerous side affects of psychotropic medications heightened the states violation of an inmate's due process right when he was involuntarily injected with a psychotropic medication.

Application to Foster Children : 

Application to Foster Children A Perceived Panacea that is an Epidemic: Use of Psychotropics on Foster Children

A Perceived Panacea that is an Epidemic : 

A Perceived Panacea that is an Epidemic There has been a more astounding increase of use in foster children. Children in foster care are 16 times more likely to receive a prescription than their non-foster care counterparts. One study in Texas found that nearly 35% of the state's foster children were taking at least one psychotropic medication and that out of the 35%, 12% were children under five years old. Another Study found that nearly half of the foster children in Florida were taking at least one

A Panacea that is an Epidemic : 

A Panacea that is an Epidemic Problem: In addition to the increase use, the use of psychotropic medications in foster-children seems to be more heavy-handed Concomitant Use: One study found that 73% of the children received "concomitant medications." The average number of medications per child was 2.55 (Texas study) Increased Doses Less Collaborative: most states default to a symptom based approach of treatment

Issue: What is the State to Do? : 

Issue: What is the State to Do? Youth in state care often do not have a consistent interested party to coordinate clinical care, provide informed consent, or to provide longitudinal oversight of their treatment. Who should determine whether a foster child needs psychotropic medication? Who should provide informed consent? How does the state maintain longitudinal oversight over psychotropic medication?

What do You Think? : 

What do You Think? Look at two ways Legal Reformation can assist foster children in this area (1) Who should provide Informed Consent Doctor, Judge, Foster Parents, Social Worker, Nurses, DCFS Official,Child? (2) What Type of Psychiatric Guidelines Should be Implemented (standard of care)? Why and on What Basis?

Parens Patriae Paternalism Based Upon Best Interest of the Child : 

Parens Patriae Paternalism Based Upon Best Interest of the Child 2 Step Analysis

(1) Parens Patriae Power to Act : 

(1) Parens Patriae Power to Act Parens Patriae: Authority of the state to step in as a guardian and protect children within its borders Courts have held that “States have a parens patriae duty to children within their borderss Broad Power: Custody, education, care, supervision, disposition of delinquent, neglected, and dependent children, as well as substitutions of others in the place of the natural parents Application: Because foster children have been neglected, abused, or have had other circumstances occur to warrant non-parental custody, the State has the authority and duty under parens patriae to ensure that the children within its boarders are properly cared after Paternalism theory as basis

(2) State Acting Under Parens Patriae Power must act in BIC : 

(2) State Acting Under Parens Patriae Power must act in BIC The state, acting under its parens patriae power, is responsible for the health of the child as the child’s guardian The prescription of psychotropic medication to children falls under its duty of care to the child Therefore, the prescription of psychotropic medications should conform to the best interest of the child standard and specifically the least detrimental available alternative factor

BIC Standard : 

BIC Standard Every state has codified the BIC standard by enumerating factors and/or principles to guide the determination of child protective issues Some of the overarching policies enumerated in these statutes include: (1) the health, safety, and/or protection of the child; (2) the assurance that a child removed from his/her home will be given care, treatment, and guidance that will assist the child in developing into a self-sufficient adult, and (3) the importance of timely decisions

BIC Standard : 

BIC Standard Common factors States apply in the BIC analysis: (1) the age of the child and his or her own wishes, (2) the present mental and physical health needs of the child as well as his or her future needs, (3) the stability of the child, and (4) the potential harm, safety, and whole development of the child. Least Detrimental Alternative: what decision safeguards the child’s growth and development

Benefits of BIC : 

Benefits of BIC Efficiency: BIC standard has existed for many years, allowing judges and legal professionals to understand its proper application and parameters Flexibility: Examination of the factors and goals makes the standard flexible, which is necessary because of the various side effects, transitions, and evolving development of the child that creates new circumstances to be analyzed. Focus on Child: The primary focus of the BIC standard is the child and not the subsidiary interests of the parents, state, or others involved Group homes often want higher prescription because easier to manage unruly kids

Application of the BIC Standard to the Use of Psychotropic Medication on Children in Foster Care : 

Application of the BIC Standard to the Use of Psychotropic Medication on Children in Foster Care Informed Consent & Psychiatric Care Guidelines

Informed Consent : 

Informed Consent Informed consent is central to an individual's dignity because it allows an individual to decide what will and will not be done to their body as well as who will be administering medical treatment. The Supreme Court has found that "[t]he forcible injection of medication into a nonconsenting person's body . . . represents a substantial interference with that person's liberty . . . [and] in the case of antipsychotics drugs . . . that interference is particularly severe." Issue: how does this apply to foster children who are not adults, do not have parents, and are suffering from emotional and mental issues?

Slide 29: 


Two Part Informed Consent Model : 

Two Part Informed Consent Model (1) 15 and Younger: Illinois Model Department of Guardian and Advocacy (DGA) Most common Consent Model = legal guardian (foster parents) Problem: guardians focus on “management” of child rather than BIC Illinois Model: DGA provides consent through appointment of guardian, Consultation with psychiatrist DCFS contracts with the University of Illinois to provide an independent review of all psychotropic medication requests by a board certified child and adolescent psychiatrist Case Managers then review the child’s diagnosis as well

BIC Standard & IL Model : 

BIC Standard & IL Model Health, safety, and protection of the child Guardian and independent review ensure health and safety instead of foster parent seeking management Age of the child: under 16 children not able to fully understand the extent and effects of medication The present mental and physical health needs of the child as well as his or her future needs and safety are taken into account through the guardian and consultations

Part Two: Mature Minor Exception at 16 : 

Part Two: Mature Minor Exception at 16 A mature minor exception should be instituted at 16 with an exception for those children who are truly incompetent Abortion context allowed at younger age, but 16 sets a clear standard to be applied Rebutable Presumption: A guardian must overcome a rebuttable presumption against the child’s wishes under the BIC standard Not a shift from paternalism to personhood theory per se because state is still determining whether psychotropic medication necessary and can overcome child’s wishes upon proving medication is in child’s best interest

BIC Standard & Mature Minor Exception : 

BIC Standard & Mature Minor Exception Health safety and protection: Still provided for by state and presumption ensures that children are protected against their own limited knowledge Decision making will assist the child in becoming self-sufficient Looking at Child’s own wishes Least Detrimental Alternative: Because respecting dignity of the child, making the child aware of all the facts and information, but still reserving for the state the ability to protect the child against their poor decisions

Clinical Care Guidelines : 

Clinical Care Guidelines

Overview : 

Overview Very few states have any form of psychiatric care guidelines for treating mental issues in foster children Arizona and Texas have adopted “best practice protocols” that serve as a minimal standard and Illinois and Tennessee are currently reforming their procedures Because of the changing circumstances, underlying psychological issues, and lack of a central home or interested party, quality and effective psychological treatment of foster children is no easy endeavor

Minimal Absolute Requirements Based on BIC Standard : 

Minimal Absolute Requirements Based on BIC Standard Goal = provide minimal requirements that must be followed by all states to ensure that the best interest of the child is met Benefits = Maintain flexibility, clear standard that must be applied, and universal application to all states

DSM Diagnosis Before Proscribing Psychotropic Medication : 

DSM Diagnosis Before Proscribing Psychotropic Medication Diagnostic and Statistical Manual is the book psychiatrists use to diagnosis mental illnesses Standardizes prescription and ensures that children have a mental illness before proscribing Clear guideline as to when medication is necessary to focus on the child’s health needs Shifts away from “managing” behavior to “treating” and actual mental illness Decreases risk of concomitant medications

Explain to Child What He or She is Taking and Why : 

Explain to Child What He or She is Taking and Why Seems obvious, but several studies show that foster children are never told what they are taking and why Increases child’s self-sufficiency Provides child with knowledge of his or her condition so she can monitor her feelings and behavior Focuses on the dignity of the child rather than the needs of the physician or social worker (time/money)

Collaborative Approach Rather than Symptom Based : 

Collaborative Approach Rather than Symptom Based Symptom Based: Child comes into doctor’s office with guardian stating symptoms and doctor provides medication as sole treatment Problems: High use of concomitant medications, Does not treat underlying psychological issues, and Child is only “managed” rather than treated Ex: Broken Leg and only give a person pain killers to treat the pain. There is still a broken leg

Collaborative Approach Rather than Symptom Based : 

Collaborative Approach Rather than Symptom Based Collaborative Based: Child sees doctor as in symptom based approach, but also receives psychological counseling, mentoring, and other outside sources to treat the underlying issues rather than just the symptoms Least Detrimental Alternative Aids the child in becoming self-sufficient adult Looks at the future health and safety of child Timely decision because underlying issues not being treated only worsen as age goes on

No PRN Medications Orders Unless Doctor Specifically Orders for Emergency : 

No PRN Medications Orders Unless Doctor Specifically Orders for Emergency Pro Re Nata (PRN): Standing orders that allow caregivers in group homes to administer psychotropic medication for the emergency management of behaviors without a physician's approval Problem: The Staff has sole discretion to give medication and use is often to manage children through medication rather than other less detrimental alternatives (therapy). IL Prohibits unless doctor proscribes,TN requires separate consent procedure, and in AL if they are used two or more times in a week then a comprehensive case review is triggered

Medical Home + Database for Oversight : 

Medical Home + Database for Oversight One of the biggest issues is longitudinal oversight because foster children are like traveling nomads Database: Allows any doctor within the state to access the child’s records including medications and dosage “Medical Home”: Standard place where foster children receive all of their psychiatric treatment (American Academy of Pediatrics) Focuses on Child’s needs rather than Guardian Ensures health and safety of child through oversight Timely and efficient decisions

Semi-Annual Review by Court with GAL Appointed : 

Semi-Annual Review by Court with GAL Appointed Keeps age of the child and his or her own wishes in the analysis Allows the present mental and physical health needs of the child as well as his or her future needs to be met Looks at the stability of the child, and The potential of harm, safety, and whole development of the child can be reviewed

Enforcement Mechanisms : 

Enforcement Mechanisms Tort Class Actions if Fail to Follow Minimal Guidelines Removal of State or Federal funding if private contractor fails to meet these requirements Judicial Supervision is more simple and common

Curing the Medication Straightjacket : 

Curing the Medication Straightjacket Overall, stronger informed consent laws and a clear psychiatric standard of care should be adopted to cure the potentially deadly psychotropic straightjacket state foster children are often strapped into.