Tuesday, April 28, 2015

Religiously Motivated Child Medical Neglect



Religious liberty, protected by the first amendment of the US Constitution, and the rights of parents to raise their children as they see fit are two central features to American Democracy.  When these principles come into conflict with our country’s strong desire to protect children from harm, it makes for a very divisive and charged environment. 

Parents of certain religious faiths often refuse medical treatment for themselves and their children on the grounds that it violates central tenants of their chosen religion. For instance, Jehovah Witnesses refuse blood transfusions, and Christian Scientists refuse almost all medical treatment. One of the central tenants to this religion denies the reality of disease and promotes avoidance of medical services. Instead, Christian Scientists and other similar religions choose faith healing through prayer as their method of prevention and treatment.  

Cases of religiously motivated child medical neglect are often legally complex and only tend to come to public view after the child’s death. Rarely are these cases identified in the early stages of a child’s medical diagnosis, if diagnosed at all, and hardly ever processed through the child protection system. These cases often look very different from other cases of child neglect and medical neglect when religion is not a factor.  

Research

One of the more comprehensive studies of religiously motivated child medical neglect was conducted by pediatrician Seth Asser and CHILD (Children’s Healthcare is a Legal Duty, Inc.) president Rita Swan. This study reviewed one-hundred-seventy-two child deaths over a twenty year period where faith healing was practiced in lieu of medical care. They estimated the probability of survival based on expected survival rates for children with similar disorders who receive medical care.

Through this research, they found that one-hundred-forty of the children would have had at least a ninety percent likelihood of survival with medical care. Eighteen more had expected survival rates of less than fifty percent, and all but three of the remaining would likely have had some benefit from medical help. This study is often utilized to show just how serious the lack of medical care is to a child’s health and wellness and how dangerous religiously motivated medical neglect is to a child’s safety.

Laws  

The US Supreme Court decision of Prince v Massachusetts, “The right to practice religion freely does not include the liberty to expose the community or child to communicable disease, or the latter to ill health or death…. Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion. . . . ”  

However, despite this ruling, in 1974 the US Department of Health, Education, and Welfare required states receiving federal child abuse prevention and treatment grants to have religious exemptions to child abuse and neglect charges. With federal money at stake, states enacted exemptions for parents who relied on prayer rather than medical care when their children were sick or injured. And a decade later nearly every state had these exemptions in the juvenile code, criminal code, or both.

According to Erik Pitchal, a Boston-based attorney specializing in child welfare law and policy and lecturer in family law at Northeastern University this exemption means that, “Child endangerment that results in death or injury to the child is a felony in Iowa. This provision provides an affirmative defense to the criminal charges.  The burden is on the defendant to prove both that he belongs to a certain religion and that the religion in question has a tenet or practice that conflicts with the specific medical treatment that the prosecution claims he should have provided.”  

Unless a state has statutory protection, for parents who withhold medical treatment on religious grounds, the state can and will prosecute successfully. And recently, states have begun to repeal these exemptions. As in the case noted above, Oregon has put new law into practice repealing their exemption which then allows Sprout’s parents to be charged with denying medical care to their son.

Pitchal says, “While standing legal precedents has established the right of an adult to refuse life sustaining treatment, they do not allow parents or guardians to deny children necessary medical care. The law has consistently favored child protection, but often it is too late, because the child is already dead.”

He further went to say, “It is very hard for child protection authorities to draw the line earlier, however, because as long as parents are not subjecting their children to harm at the given moment, they are free to raise them in their chosen religious faith. The problem is how to ensure that children being raised in a faith that rejects medical treatment are healthy and survive to an age when they can choose their own beliefs. “

Consideration When Hiring an Investigator

Because of complex legal statutes that vary in scope in each state, HIPPA laws that block access to medical records and how rarely these cases come into public view, these cases can be a challenge to investigate. Any investigator you hire should do the following:

Understand State Law: An investigator should at the onset of a case, research and understand state law related to child medical neglect and any exemptions. These laws are complex and are currently being challenged and revised in many states. An investigator should be diligent in their research and seek experts to examine and interpret case law and legal statues.

Understanding the Child Protection System and Seek Experts:  In addition to understanding their state’s laws, the investigator should also understand their state’s child protection system.  Understanding the process and what other professionals might be involved in a case like this will help an investigator understand who to interview and what information might or might not be available to them.  This is also particularly important if working for the defense to see if reports have been called in and if cases were previously unfounded allowing the parents to continue denying medical treatment to their child. This information can be challenging to obtain but collateral interviews will help to determine if child protective services was ever involved in the case to see at the onset if records even exist.  Investigators should also access medical experts to better understand the nature of the illness and how traditional medical treatment may have determined a different outcome for the child.

Central Tenets of the Religion in Question:  Investigators should thoroughly research the religion in question.  Pitchal offers the following advice to investigators involved in one of these cases, “Investigators should talk to ministers/leaders in the religion and review all available literature. This is especially important for smaller sects that may be relatively unknown.” He further suggests that investigators seek out a professor of religion who has studied the group and can offer information about how consistent they are in their beliefs – in other words, are they “really” a religion, or are they more of a cult.  It is important for an investigator to understand if the members find support for their beliefs regarding medical treatment in the Bible or some other source – and how important to their religion overall is that source.  For example, if there is a prayer book that is used for most things, but that document says nothing about medical treatment, and if the parents claim that they withheld medical treatment because of what they read in an article in the church newsletter, it would be evidence that opposition to medical treatment is not a central tenet of the religion. 

Parents Beliefs and Intent: The investigator should contact as many members of the religious group in the parents’ community as possible to learn about the parents’ involvement in the religion.  How frequently do they attend services?  For how long have they done so?  Do they send their children to the Sunday school or other programs sponsored by the group?  If a search has been conducted of the home, inventory records for evidence of involvement in the religion – books, pamphlets, prayer beads, or whatever else a true believer in that faith would likely have in their home.  The investigator would need to have studied the religion sufficiently in order to have the right context to assess this.  As Pitchal noted, when these cases to go court it is often the parent’s intent that really matters. Everything turns on what the parents intended to do, and why. 

Interviewing Collateral Witnesses:  In addition, an investigator should interview members of the family, neighbors, people at the child’s school and anyone else that may have been aware of the child’s medical condition and care. An investigator should not assume that the extended family, friends or neighbors will present with the same religious ideals as the parents of the child. Finding witnesses willing to speak with the investigator can yield valuable information about the child’s overall care, how long the family has been involved in a particular religion and even how vested in its practices the parties in question may be. These interviews can also yield historical information about the medical histories and practices of other members of the family.  There have been cases where parents claim a medical exemption and the courts later find that the parents themselves routinely receive medical care for themselves but have denied their child the same care.

Conclusion
To successfully investigate these cases, an investigator must thoroughly educate themselves about the religion in question and the illness the child was diagnosed with, or in some cases, what the medical examiner ruled as the cause of death.  An investigator should never solely rely on their opinion or basic internet research about a religion. Seeking and engaging legal, religious and medical experts will help ground an investigator in the critical information about a case and lay a solid foundation for further investigation.

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