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NOTES A SPOONFUL OF SUGAR WON’T HELP THIS MEDICINE GO DOWN: PSYCHOTROPIC DRUGS FOR ABUSED AND NEGLECTED CHILDREN MAGGIE BRANDOW* I. INTRODUCTION When a social worker arrived at Tony’s house one day, Tony knew she was finally coming to take him away. She had been there once before after a neighbor overheard Tony’s painful cries while his father was beat- ing him. Tony was relieved that he would no longer have to fear his fa- ther’s drunken wrath, but he knew that by entering “the system” he would have to endure months, maybe years, of court hearings, legal wrangling, and multiple placements. Tony was sent to a group home that housed eight teenage boys, each of whom had come out of similar abusive circum- stances. At fifteen, Tony struggled socially, often fighting with the other boys and getting into trouble. He had a difficult time concentrating in school, and he was depressed over the break-up of his family. His doctor at the group home said that some medicine would help Tony, something called Ritalin. After taking it for four weeks, Tony felt sluggish and was not quite himself. He did not like the way the medication made him feel. He wanted to stop taking it, but the group home supervisors said that he could not because the court had ordered him to take it. Everyone kept telling him that they were only thinking of what was best for him, but all * Class of 1999, University of Southern California Law School; B.A., 1995, Vanderbilt Uni- versity. I would like to thank Professor Tom Lyon for his guidance and Referee Robert Stevenson and Alan Castillo for introducing me to this problem. I would also like to thank my husband and best friend, Chris Brandow, for his insight, encouragement, and love. 1151 1152 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 Tony knew was that he did not feel any better. Although Tony’s case is hypothetical, there are real children like Tony throughout our nation, children whose suffering from child abuse is compounded by their suffering from the potentially severe side effects of psychotropic1 medications. Most of these children take psychotropic medications prescribed by a doctor and authorized by the court. They have little or no say in the matter, because most states do not grant minors the right to consent to, or refuse, treatment with psychotropic medications. In- stead, most states require the consent of the minor’s parents before a child can take such drugs. For children who live with their parents, and for par- ents who have the best interests of their children in mind, this system of consent works well. However, such is not the case for children who have been removed from their parents’ home because of abuse or neglect. Minors who are “dependents” of the court are essentially under the care, custody, and control of the state as embodied by the dependency court.2 Upon finding that a parent has abused a child, the state asserts its role as parens patriae, effectively becoming the parent and decisionmaker for the child.3 The court assigns the child a temporary placement (such as the home of a relative caregiver or foster family, a group home, or an in- stitution) while it spends usually more than a year trying to reunify the family. If family reunification is unsuccessful, the court decides upon a permanent custodial situation for the child, choosing among the three op- tions of adoption, guardianship, or long-term foster care. Some dependent minors are mentally ill or emotionally disturbed and require mental health treatment. As part of this treatment, a physician may prescribe to a child a type of psychotropic medication. It is at this point that the question arises: Who should have the power to consent to the treatment of this child with psychotropic medication? The parents who have lost custody of their child because of abuse or neglect? The state that has taken over the custody of the minor through its parens patriae role? 1. The dictionary defines “psychotropic” as “of a drug: acting on the mind.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1834 (1981). 2. Because the Author is most familiar with the Los Angeles County Juvenile Dependency system, this Note will predominantly use the terminology of that system. The term “dependency court” will thus refer to the court which has jurisdiction over abused and neglected children. “Juve- nile dependent” or “dependent minor” will refer to those children who have been adjudged dependents of the juvenile court as a result of their parents’ abuse or neglect. See generally CAL. WELF. & INST. CODE § 300 (Deering 1996). 3. “Parens patriae” literally means “parent of the country” and refers to the state’s traditional role as the guardian of persons under legal disability. BLACK’S LAW DICTIONARY 1003 (5th ed. 1979). 1999] PSYCHOTROPIC DRUGS 1153 Or the mentally ill or emotionally disturbed child who must deal with both the benefits and side effects of these powerful, mind-altering medications? And what happens if the child does not want to take them? This Note will examine the roles that each of these characters plays in the treatment of a dependent child with psychotropic medications. It will culminate in the argument that adolescent, court-dependent minors them- selves ought to have the right to consent to or refuse psychotropic medica- tions. In order to make this argument, Part II will examine the law regarding the administration of psychotropic medications to dependent minors in California, a state which has one of the largest juvenile dependency sys- tems in the country. Part III will discuss the mixed role of parents within the dependency system, arguing that they should not hold the power to consent since they have demonstrated that they do not make decisions in the best interests of their child. Part IV will examine the role of the state in determining whether or not a child should take psychotropic medica- tions. It will argue that the state cannot properly assert its role as parens patriae in this context, because parens patriae may only be asserted on behalf of children who lack the capacity to make their own decisions in situations in which it is in their best interests for the state to intervene. Part V will articulate four reasons why adolescent, court-dependent minors themselves should have the right to consent to or refuse psychotropic medications. First, psychological studies show that these minors are as competent as adults to make important medical decisions. Second, chil- dren have constitutional rights which deserve protection. Third, psycho- tropic medications pose a potentially significant threat to minors, espe- cially those in group home settings. Finally, a minor’s consent to treatment could increase the effectiveness of the treatment itself. Before determining which of these players ought to hold the power to consent, however, it is necessary to examine current law in this area. II. THE LAW This Note will focus upon California law for several reasons. First, Los Angeles County has one of the largest juvenile dependency systems in the United States. It is home to about one-tenth of the nation’s abused and neglected children.4 Second, over 73,000 children live in foster care in 4. See Shawn Hubler, Shedding Light on the Dark World of Child Abuse, L.A. TIMES, Mar. 11, 1999, at B1. 1154 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 L.A. County,5 and it is estimated that up to 80% of these children are mentally ill or emotionally disturbed.6 Thus, many court-dependent chil- dren in L.A. County are treated with psychotropic medications. Furthermore, California law is arguably unclear in the area of admin- istering psychotropic drugs to children. California statutes expressly pro- vide that parents, instead of children, have the right to consent to treatment with psychotropic medications.7 However, the L.A. County juvenile de- pendency court recently modified its policy on the authorization of psy- chotropic medications: As of May 1998, the court allows minors aged twelve or older to refuse such treatment.8 Similarly, a California regula- tion pertaining to residential facilities for juvenile delinquents permits such minors to refuse psychotropic medications. Because juvenile dependents and juvenile delinquents both lack the protection of their parents and live under the custody and control of the state as parens patriae, California law should grant them the right to consent to or refuse this treatment. A. CALIFORNIA STATUTES Sections of both the California Family Code and the California Wel- fare and Institutions Code pertain to the treatment of minors with psycho- tropic medications.9 These Code sections generally support the proposi- tion that California law does not grant minors the legal right to consent to treatment with psychotropic drugs. The right to consent to such treatment belongs to their parents, and when their parents are not available, as in the case of abused and neglected children, to the Juvenile Court.10 The California Family Code governs the consent by minors to mental health treatment.11 Section 6924(b) provides: A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are satisfied: 5. See Cheryl Romo, Calm Exterior Hides Turmoil At Kids’ Shelter, L.A. DAILY J., June 29, 1998, at 10. 6. While this figure is not necessarily supported by direct empirical research, it represents the best estimate of several juvenile dependency practitioners. Even practitioners who may disagree with this estimate would probably agree that at least half of abused and neglected children suffer from mental illness or severe emotional disturbance. 7. See Cheryl Romo, Juvenile Court Imposes Tough New Drug Rule, L.A. DAILY J., Apr. 24, 1988, at 1, 9. 8. See L.A. COUNTY SUPER. CT. R. 17.6. 9. CAL. FAM. CODE § 6924 (Deering 1996); CAL. WELF. & INST. CODE § 369 (Deering 1996). 10. See CAL. FAM. CODE § 6924 (Deering 1996); CAL. WELF. & INST. CODE § 369 (Deering 1996). 11. CAL. FAM. CODE § 6924 (Deering 1996). 1999] PSYCHOTROPIC DRUGS 1155 The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services. The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counsel- ing or residential shelter services, or (B) is the alleged victim of incest or child abuse.12 The statute requires that professional persons offering mental health treatment notify the minor’s parents or legal guardians, involve them in the therapy if appropriate, and exempt them from paying for the treatment.13 Section 6924(f) then specifically states: “This section does not authorize a minor to receive . . . psychotropic drugs without the consent of the minor’s parent or guardian.”14 California law thus does not permit minors to consent to treatment with psychotropic medications but places that decision in the hands of the minor’s parents or guardian. This fact is problematic for court-dependent minors, because their parents have not only demonstrated an inability to act in their best interests, but have also caused them to become wards of the state as a result of abuse or neglect. The California Welfare and Institutions Code delineates the rules for these minors regarding consent to psychotropic medications.15 Section 369 pertains to medical, surgical, dental, or other remedial care for court- dependent children, and section (b) provides: Whenever it appears to the juvenile court that any person concerning whom a petition has been filed with the court is in need of medical, sur- gical, dental, or other remedial care, and that there is no parent, guardian, or person standing in loco parentis16 capable of authorizing or willing to authorize the remedial care or treatment for that person, the court, upon the written recommendation of a licensed physician and surgeon . . . and after due notice to the parent, guardian, or person standing in loco pa- rentis, if any, may make an order authorizing the performance of the necessary medical, surgical, dental, or other remedial care for that per- son.17 This Code section requires the court’s authorization for medical 12. Id. § 6924(b). 13. See id. § 6924(c)-(e). 14. Id. § 6924(f). 15. CAL. WELF. & INST. CODE § 369(b) (Deering 1996). 16. “In loco parentis” means “In the place of a parent; instead of a parent; charged, fictitiously, with a parent’s rights, duties, and responsibilities.” BLACK’S LAW DICTIONARY 708 (5th ed. 1979). 17. CAL. WELF. & INST. CODE § 369(b) (Deering 1996). 1156 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 procedures to be performed upon dependents of the court in cases in which a parent or guardian is not available or not willing to provide consent. It makes no mention of psychotropic medications, but psychotropic medications probably fall within the rather broad category of “medical, surgical, dental, or other remedial care.” This Code section is the only mention of the health care of court-dependent minors, so it is the last word on the subject in California. Thus, California statutory law grants parents the right to consent to psychotropic medications for their children, and it requires court authori- zation for medical treatment of court-dependent minors whose parents are unavailable to provide consent. B. L.A. COUNTY DEPENDENCY COURT POLICY Although California Family Code section 6924 clearly prohibits mi- nors in general from consenting to psychotropic medications, L.A. County has recently altered its policy to allow some court-dependent minors to re- fuse such treatment. As of May 1998, this policy allows minors aged twelve or older to refuse psychotropic drugs.18 It requires the juvenile court to authorize any psychotropic medication request from the minor’s treating physician. The court’s job is to review the physician’s request and decide whether or not the proposed treatment is appropriate. The court then either authorizes or denies the treatment. However, the authorization form states that minors aged twelve or older may refuse treatment with psychotropic medications.19 Therefore, no matter what the court decides, older minors may refuse such treatment. This refusal provision is analo- gous to a state regulation pertaining to juvenile delinquents. C. CALIFORNIA REGULATION PERTAINING TO DELINQUENT CHILDREN While supporting the general notion that either parents or the court holds the right to consent to the child’s treatment with psychotropic medi- cations, the California Code of Regulations (“C.C.R.”) indicates that de- linquent minors may have the right to refuse such treatment. The C.C.R. mentions the administration of psychotropic medications to delinquent mi- nors in title 15, which describes the minimum standards for juvenile de- tention facilities. Section 1439 therein requires that the health adminis- trator or responsible physician of a juvenile facility develop written policies and procedures governing the use of voluntary and involuntary 18. See L.A. COUNTY SUPER. CT. R. 17.6. See also Romo, supra note 7. 19. See L.A. COUNTY SUPER. CT. R. 17.6. 1999] PSYCHOTROPIC DRUGS 1157 psychotropic medications.20 It then states: (b) Psychotropic medications shall not be administered to a minor absent an emergency unless informed consent has been given by the par- ent/guardian or the court. Minors shall be informed of the expected benefits, potential side effects and alternatives to psychotropic medications. Absent an emergency, minors may refuse treatment. (c) Minors found by a physician to be a danger to themselves or others by reason of a mental disorder may be involuntarily given psychotropic medication immediately necessary for the preservation of life or the pre- vention of serious bodily harm, and when there is insufficient time to obtain consent from the parent, guardian, or court before the threatened harm would occur. It is not necessary for harm to take place or become unavoidable prior to initiating treatment. (d) Administration of psychotropic medication is not allowed for disci- plinary reasons.21 The fact that the juvenile facility must obtain a parent’s or the court’s permission before administering psychotropic medications is consistent with both the Family Code and the Welfare and Institutions Code, but the clause permitting minors to refuse is a significant element that California statutes do not share.22 This regulation thus provides greater protection of minors’ rights than the statutes provide. This added protection makes sense in regards to juvenile delinquents living in residential facilities, because they are directly under the control of the state. It likewise makes sense in regards to juvenile dependents living in foster care, because they are also directly under the control of the state. However, California law has not yet codified this kind of protection for them. D. DEPENDENT CHILDREN SHOULD HAVE AS MUCH PROTECTION AS DELINQUENT CHILDREN UNDER CALIFORNIA LAW Residents of juvenile detention facilities probably receive greater protection under the law because they are directly under the control of the state, and it would be alarming to imagine the state forcibly medicating a child.23 Having been sent to live in state-run facilities, juvenile delin- quents are under the day-to-day control of the state rather than that of their parents. These children do not have their parents’ protection—they do not 20. See CAL. CODE REGS. tit. 15, § 1439(a) (1997). 21. Id. § 1439(b)-(d). 22. See infra Part II.A. 23. See infra Part V.C.3. 1158 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 live with their parents, and their parents are no longer their primary care- takers. Instead, their caretakers are state employees who have less emo- tional investment but significant financial stakes (their jobs) in the chil- dren. For all of these reasons, juvenile delinquents are a highly vulnerable class and therefore deserve the extra protection granted by C.C.R. title 15, section 1439. Juvenile dependents deserve the same kind of extra protection be- cause they too are a vulnerable class of persons. These children are also directly under the care and control of the state. They were removed from their parents’ home because of abuse or neglect, and they live in state- appointed, state-funded foster care. While some substitute caretakers may form close emotional bonds with their foster children, many have little emotional bond with them but significant financial interest in them. Such caretakers may be more inclined to medicate children for inappropriate reasons such as behavior control, discipline, or even punishment. Also, they are less able to work with each child individually because of the de- mands of the other children who may live with them. Thus, juvenile de- pendents are similarly situated to juvenile delinquents and should likewise receive added protection under California law. At the very least, then, court-dependent children should have the right to refuse treatment with psychotropic medications. This right should be granted by California statutory law, not just by L.A. County Dependency Court policy. Whether such minors’ rights should go beyond refusal to the right to consent depends on the answer to this Note’s initial question: Who should have the power to consent to a court-dependent minor’s treatment with psychotropic medications? III. THE PARENT Because children are removed from the custody of their parents and placed in foster care as a result of their parents’ abuse or neglect, parents of court-dependent minors are not qualified to hold the right to consent to their child’s treatment with psychotropic medications. A. THE RIGHTS OF PARENTS WITHIN THE DEPENDENCY SYSTEM The Supreme Court has repeatedly said that parents have a funda- mental right to raise their children as they see fit without governmental in- trusion.24 The law thus recognizes a presumption in favor of parental 24. See Wisconsin v. Yoder, 406 U.S. 205 (1972) (upholding the rights of Amish parents to 1999] PSYCHOTROPIC DRUGS 1159 autonomy and family privacy against coercive state intervention, trusting parents to act in the best interests of their children and requiring of them only minimum standards of care.25 However, parental rights are not absolute. Rather, the state can inter- vene when children are placed in jeopardy by either their parents’ action (abuse) or inaction (neglect).26 Parental rights to authority over their chil- dren are based both on the assumption that the parent is more mature and experienced, and therefore has better judgment than the child, and on the expectation that the parent will act in the best interests of the child.27 If parents do not act in the best interests of their children, then their authority will be diminished28 and the state can remove their children from their custody.29 State law varies from jurisdiction to jurisdiction as to what rights parents retain after their children have been removed from their home as a result of abuse or neglect, but all states provide services to par- ents as an opportunity for them to regain the fundamental right that they have lost as a consequence of their abusive or neglectful actions.30 One of the rights that parents may lose when they abuse their children is the right to consent to medical care. When parents provide consent for their child’s medical care, it is presumed that they are using substituted judgment to decide how the minor would choose if the minor were com- petent to make such a choice.31 Substituted judgment, however, is based on the assumption that a parent will act in the best interests of the child in making the decision.32 This is a dangerous assumption, because even in the most ideal situation of a “loving, intact, two-parent family,” there are refuse to send their children to school beyond the eighth grade as a free exercise of their religion be- cause the state’s interests in having educated citizens were outweighed both by the parents’ freedom of religion and by the fact that Amish people contribute significantly to society even without com- pleting formal education). See also SAMUEL M. DAVIS & MORTIMER D. SCHWARTZ, CHILDREN’S RIGHTS AND THE LAW 58-59 (1987); ROBERTA GOTTESMAN, THE CHILD AND THE LAW 44, 115-16 (1981) (citing Prince v. Massachusetts, 321 U.S. 158 (1944)). 25. See Joseph Goldstein, Medical Care for the Child at Risk: On State Supervention of Pa- rental Autonomy, in CHILD, PARENT, AND STATE LAW AND POLICY READER 460, 462 (S. Randall Humm, Beate Anna Ort, Martin Mazen Anbari, Wendy S. Lader, & William Scott Biel eds., 1994). 26. See GOTTESMAN, supra note 24, at 44, 115-16. 27. See Mindy S. Rosenberg & Robert D. Hunt, Child Maltreatment: Legal and Mental Health Issues, in CHILDREN, MENTAL HEALTH, AND THE LAW 79, 84-85 (N. Dickon Reppucci, Lois A. Wei- thorn, Edward P. Mulvey, & John Monahan eds., 1984). 28. See id. 29. See, e.g., CAL. WELF. & INST. CODE § 300 (Deering 1996). 30. See GOTTESMAN, supra note 24, at 117. 31. See Gerald P. Koocher & David Ray DeMaso, Children’s Competence to Consent to Medi- cal Procedures, in 17 PEDIATRICIAN 68, 71 (1990). 32. See id. at 72. 1160 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 conflicts of interests between parents and child33 which could prevent the parents from choosing in the child’s best interests. B. PARENTS WITHOUT CUSTODY SHOULD NOT HOLD THE POWER TO CONSENT These conflicts of interest are amplified in the dependency context and should prevent parents from holding the power to consent to their children’s medical care. First, it is clear that these parents do not act in the best interests of their children. If they did, they would not lose custody of their children because of abusive or neglectful behavior. Some of these parents may not act in their child’s best interests because they are alto- gether malevolent, but others are just sadly unable to do so because of their own dysfunctional upbringing, lack of education, or even mental illness. However, in either case, children deserve better judgment than these par- ents can provide. Second, these parents should not hold the power to consent because they may be the very cause of the child’s problems. Emotional distur- bances during childhood are increasingly viewed as a consequence of dis- turbed family systems, and when a disturbed family system is the source of the child’s problems, a parent may misinterpret the child’s behavior and needs and therefore make incorrect choices on the child’s behalf.34 This danger is, again, heightened in the dependency context, because many ju- venile dependents are probably emotionally or mentally disturbed as a re- sult of the abuse they have suffered. Third, these parents may have abused the child for the very reason that the child now needs mental health treatment. For example, hyperac- tivity can frustrate a parent to the point where the parent finally abuses the hyperactive child.35 Such a parent will probably not be able to think ra- tionally about various treatment options for this behavior. Instead, the parent may tend to choose the treatment, like psychotropic medication, that would guarantee an end to the disruptive behavior, even if it were overly restrictive or had potentially dangerous side effects. Thus, parents whose children are dependents of the juvenile court as a result of their abuse or neglect should not hold the right to consent to their 33. Id. 34. See Richard E. Redding, Children’s Competence to Provide Informed Consent for Mental Health Treatment, 50 WASH. & LEE L. REV. 695, 699-700 (1993). 35. See Speech of Howard Davidson, Learning Disabilities and the Juvenile Justice System: What Lawyers Should Know, Presented at ABA Meeting, Young Lawyers Division (1983). 1999] PSYCHOTROPIC DRUGS 1161 children’s treatment with psychotropic medications. IV. THE STATE When a parent is incapable of authorizing medical treatment for a child who is under the jurisdiction of the juvenile court, California law grants that responsibility to the court as parens patriae.36 In general, the state’s parens patriae power is limited by three principles: (1) the pre- sumption that children lack the mental competence and maturity possessed by adults, (2) the fact that the child’s parents are unfit, unwilling, or unable to care for the child, and (3) the requirement that the parens patriae power be exercised only to further the best interests of the child.37 Only one of these principles supports the state’s exercise of its parens patriae power in the treatment of minors with psychotropic medications. Parens patriae is the doctrine that endows the state with the authority and responsibility to protect those who cannot protect themselves in the interest of helping them become responsible citizens.38 This “limited pa- ternalistic power” extends to children generally because they are presumed to lack the capacity to act in their own best interests.39 However, the state cannot assert its parens patriae power on behalf of an individual who is competent to make his or her own decisions, because a competent individ- ual’s decisions are a private matter.40 Thus, “[t]he state’s parens patriae power is grounded in the actual or assumed incapacity of the individual to engage in rational decision-making in his or her own best interest.”41 If a child is competent to make decisions, the state may not assert its parens patriae power on the child’s behalf. Part V of this Note will dem- 36. See CAL. WELF. & INST. CODE § 369(b) (Deering 1996). Parens patriae literally means “the parent of the country.” BLACK’S LAW DICTIONARY 1003 (5th ed. 1979). See also Samuel M. Leaf, Note, How Voluntary Is the Voluntary Commitment of Minors? Disparities in the Treatment of Children and Adults Under New York’s Civil Commitment Law, 62 BROOK. L. REV. 1687, 1691 (1996). 37. See Rosenberg & Hunt, supra note 27, at 85. 38. See Edward P. Mulvey, N. Dickon Reppucci, & Lois A. Weithorn, Mental Health, Law, and Children: A Brief Overview, in CHILDREN, MENTAL HEALTH, AND THE LAW 15, 17 (N. Dickon Rep- pucci, Lois A. Weithorn, Edward P. Mulvey, & John Monahan eds., 1984). 39. Rosenberg & Hunt, supra note 27, at 84-85. 40. See Leaf, supra note 36, at 1691. 41. Bruce J. Winick, The MacArthur Treatment Competence Study: Legal and Therapeutic Im- plications, 2 PSYCHOL. PUB. POL’Y & L. 137, 145 (1996). In In re E.G., 549 N.E.2d 322 (Ill. 1989), the Supreme Court of Illinois upheld a minor’s right to refuse a blood transfusion because she was a mature minor and she understood the consequences of her decision. Because the state’s parens pa- triae interest is dependent upon a person’s inability to protect herself, it cannot assert this interest when the person, as here, has the ability to protect herself. 1162 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 onstrate that older adolescent minors have adult-like competency to make their own rational decisions regarding treatment with psychotropic medi- cations.42 Thus, the first principle limiting parens patriae, the incompe- tence of children to make their own decisions, is absent in this context. For this reason, the state should not hold the power to consent to minors’ treatment with psychotropic medications. The second principle limiting the state’s parens patriae power is not problematic in this context, because children enter the dependency system as a result of their parents’ demonstrated unfitness, unwillingness, or in- ability to care for them. This fact might, then, indicate that the court should hold the power to consent. However, the third limiting principle requires that the state only inter- fere as parens patriae if doing so would further the best interests of the child. There are several reasons why it is not in the best interests of the child for the state to hold the power to consent to psychotropic medica- tions. First, the state is inadequate to protect minors from the potential harms of psychotropic medications, because it cannot maintain sufficiently close contact with each minor. In order to determine whether or not psy- chotropic medications are truly appropriate for a minor, the court needs more than just the recommendation of a physician who sees the child per- haps once each month. The state does not have the staff, time, or funding to supervise each minor more closely. Social workers are extremely over- burdened and cannot add to their already full schedules extra monitoring of children on psychotropic medications. They have “neither the resources nor the sensitivity to respond to a growing child’s ever-changing needs and demands.”43 Judges simply “cannot be substitute parents [to court- dependent minors] and courts cannot be substitute families . . . .”44 Second, the state may be overly willing to medicate minors because of its desire not to lose any foster care homes, which may not be able to function effectively if they cannot use psychotropic medications to handle disturbed children. This argument is based on the notion that some place- ments use psychotropic medications as a tool for behavior control.45 A third danger of the state acting as parent is that the court will force its own set of mores and values upon a family. The state must not be used “to reinforce prejudice and discrimination against those who are cosmeti- 42. See infra Part V.A. 43. Goldstein, supra note 25, at 463. 44. Id. at 474. 45. See infra Part V.C.2. See also Tracy Weber, Caretakers Routinely Drug Foster Children, L.A. TIMES, May 17,1988, at A1. 1999] PSYCHOTROPIC DRUGS 1163 cally or otherwise different.”46 Minors placed on psychotropic medica- tions may sometimes be hyper or depressed, but they may not possess deep psychological problems warranting powerful medications. Courts looking at these children from a distance may overestimate their need for medica- tion. Thus, it is probably not in the best interests of children for the court to hold the power to consent to psychotropic medications on their behalf. The state cannot properly assert its role as parens patriae by con- senting to the treatment of court-dependent minors with psychotropic medications. Although it may exercise this power when a child’s parents are unfit, it may not do so when the child is competent to make decisions or when its intervention would not promote the child’s best interests. The question then arises, if neither the parent nor the state should hold the power to consent, who should? V. THE CHILD Adolescent court-dependent minors should have the legal right to provide informed consent for their own treatment with psychotropic medi- cations for several reasons. First, psychological studies indicate that ado- lescent minors are as competent as adults to make important medical deci- sions. Second, children have constitutional rights that deserve protection under the law. Third, psychotropic medications pose a potentially signifi- cant threat to minors, especially in group home settings. Finally, a minor’s own consent to treatment could increase the effectiveness of the treatment. Each of these reasons will be examined in turn. A. MINORS SHOULD BE ABLE TO CONSENT TO PSYCHOTROPIC MEDICATIONS BECAUSE THEY CAN PROVIDE INFORMED CONSENT 1. The Doctrine of Informed Consent For consent to medical or mental health treatment to be legally valid, it must be informed.47 Informed consent is knowing, voluntary, and com- petent.48 46. Goldstein, supra note 25, at 474. 47. See Jan C. Costello, “If I Can Say Yes, Why Can’t I Say No?” Adolescents at Risk and the Right to Give or Withhold Consent to Health Care, in CHILD, PARENT, AND STATE: LAW AND POLICY READER 490, 495 (S. Randall Humm, Beate Anna Ort, Martin Mazen Anbari, Wendy S. Lader, & William Scott Biel eds., 1994). 48. See RICHARD E. REDDING, DUE PROCESS PROTECTIONS FOR JUVENILES IN CIVIL COMMITMENT PROCEEDINGS 18 (1991) [hereinafter DUE PROCESS PROTECTIONS]. See also Lois A. 1164 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 “Knowing” means possessing relatively complete information49 or enough information about the proposed treatment and alternatives to make an informed decision.50 One scholar suggests that informed consent should require “a conscientious explanation of all information that a rea- sonable person would consider significant to the decision” explained in a way that is “reasonably comprehensible to general lay understanding.”51 Such information could include the nature of the patient’s condition, the reasons for the treatment, the likelihood of improvement with the treat- ment, the reasonable treatment alternatives available, and the potential side effects.52 “Voluntary” signifies a volitional act devoid of coercion, undue influ- ence, or unfair inducements.53 This element is problematic when it comes to children, for they can be very susceptible to the influences of parents, caretakers, and peers, sometimes making decisions to avoid punishment or criticism.54 Because children are highly deferential to others,55 it is im- portant to make sure that a child’s consent is not “merely an acquiescent or deferent response to authority” but is truly voluntary.56 “Competent” can be defined in many ways.57 Most simply, it is the basic capacity to arrive at a decision by assimilating information through a reasonable process of thinking.58 In theory, it implies a high level of un- derstanding where the patient thinks abstractly and makes inferences about the implications of treatment, but in practice, it often emphasizes the pa- Weithorn, Children’s Capacities in Legal Contexts, in CHILDREN, MENTAL HEALTH, AND THE LAW 25, 35 (N. Dickon Reppucci, Lois A. Weithorn, Edward P. Mulvey, & John Monahan, eds., 1984) [hereinafter Legal Contexts]; Wallace J. Mlyniec, A Judge’s Ethical Dilemma: Assessing a Child’s Capacity to Choose, 64 FORDHAM L. REV. 1873, 1893 (1996); Lois A. Weithorn, Children’s Capaci- ties for Participation in Treatment Decision-Making, in EMERGING ISSUES IN CHILD PSYCHIATRY AND THE LAW 22, 28 (Diane H. Schetky & Elissa P. Benedek eds., 1985) [hereinafter Participation]; Lois A. Weithorn & Susan B. Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, in CHILD DEVELOPMENT 1589, 1590 (1982); Thomas Grisso & Linda Vierling, Minors’ Consent to Treatment: A Developmental Perspective, 1978 PROF. PSYCHOL. 412, 415. 49. See Redding, supra note 34, at 740. 50. See Legal Contexts, supra note 48, at 35. See also Participation, supra note 48, at 28. 51. Dennis E. Cichon, Developing a Mental Health Code for Minors, 13 T.M. COOLEY L. REV. 529, 582 (1996). 52. See CAL. CODE REGS. tit. 9, § 851 (1997). 53. See Costello, supra note 47, at 495. See also Legal Contexts, supra note 48, at 35; Partici- pation, supra note 48, at 28. 54. See Redding, supra note 34, at 741. 55. See Legal Contexts, supra note 48, at 45. 56. Grisso & Vierling, supra note 48, at 421. 57. See infra Part V.A.2. 58. See Grisso & Vierling, supra note 48, at 418. 1999] PSYCHOTROPIC DRUGS 1165 tient’s understanding of basic factual information.59 Traditionally, the law has not permitted minors like Tony to provide informed consent to medical or mental health treatment because it deemed them “incompetent” to do so.60 However, if such minors were actually found to be as competent as adults, then the law would have to recognize their right to provide their own informed consent. In order to examine mi- nors’ competency, we must first examine the various standards of compe- tency in general. 2. Standards of Competency “Competency” or “capacity” generally signifies the mental ability to use information or knowledge provided by a physician to make a rational choice.61 Competence is a legal term of art used to denote competence to consent to a particular treatment.62 Since competency is increasingly re- garded as a “functional and highly contextualized inquiry,”63 any informed consent discussion should focus on the minor’s ability to provide such consent in that particular context.64 Because there is no single definition of competency, recognition of a child’s competence to consent will depend upon the standard by which it is evaluated.65 Four commonly recognized standards of competency are: (1) appreciation (composed of both inferential understanding and factual un- derstanding), (2) rational reasoning or reasonable decisionmaking, (3) rea- sonable outcome of choice, and (4) evidence of choice.66 According to one clinician, the currently preferred standard of com- 59. See Legal Contexts, supra note 48, at 35. 60. See DUE PROCESS PROTECTIONS, supra note 48, at 18. 61. See generally Mlyniec, supra note 48, at 1893. 62. See Redding, supra note 34, at 709-11. Competency is thought to be “domain-specific,” meaning that a child may be capable of understanding and making an informed decision regarding one certain type of treatment but not another. See id. at 748. Therefore, a court must determine an indi- vidual’s competence to perform a particular task or role, such as to consent to hospitalization, to man- age property, to consent to treatment, or to stand trial. See Winick, supra note 41, at 152. 63. Winick, supra note 41, at 152. 64. See DUE PROCESS PROTECTIONS, supra note 48, at 26. 65. See Redding, supra note 34, at 710. Kirk and Bersoff refer to this problem as “the elusive concept of competency to make treatment decisions.” Trudi Kirk & Donald N. Bersoff, How Many Procedural Safeguards Does It Take to Get a Psychiatrist to Leave the Lightbulb Unchanged? A Due Process Analysis of the MacArthur Treatment Competence Study, 2 PSYCHOL. PUB. POL’Y & L. 45, 47 (1996). Kirk and Bersoff’s table provides information regarding the standards of competency used in all 50 states. See id. at 56 tbl. 1. 66. See Weithorn & Campbell, supra note 48, at 1590. See also Redding, supra note 34, at 710. 1166 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 petency is “appreciation.”67 It emphasizes the patient’s ability to appreci- ate the nature, extent, and probable consequences of the proposed treat- ment.68 It requires that the patient be able to show a level of understanding that goes beyond factual comprehension and make inferences about the implications of treatment for her own life.69 This aspect of appreciation may be called inferential understanding.70 In addition to inferential understanding, appreciation encompasses the child’s ability to understand basic factual information provided by the caregiver.71 In practice, informed consent is based upon this standard of factual understanding,72 because this is usually what consent forms assess in treatment settings.73 A second standard of competency is called the “rational reasons” or “reasonable decisionmaking process” standard.74 This standard empha- sizes the manner or process by which the patient arrives at a treatment de- cision in order to determine whether or not the treatment choice was de- rived from rational or logical reasoning.75 This test may involve determining the consequences of each decision and weighing their advan- tages and disadvantages.76 A third standard is the “reasonable outcome” test, which examines whether or not the patient’s choice itself is reasonable.77 This is an objec- tive standard that asks whether or not a reasonable person would have made the same choice in the same situation; the reasonableness of the choice is dependent upon the likelihood of self-harm as a result of the choice.78 67. See Weithorn & Campbell, supra note 48, at 1590. See also Participation, supra note 48, at 28. 68. See Legal Contexts, supra note 48, at 35. See also Weithorn & Campbell, supra note 48, at 1590; Participation, supra note 48, at 28. 69. See Legal Contexts, supra note 48, at 35. See also Participation, supra note 48, at 28. 70. See Participation, supra note 48, at 28-29. 71. See Legal Contexts, supra note 48, at 35. 72. See id. See also Participation, supra note 48, at 28. 73. See Weithorn & Campbell, supra note 48, at 1590. 74. See Legal Contexts, supra note 48, at 35. See also Participation, supra note 48, at 29. 75. See Legal Contexts, supra note 48, at 35. See also Participation, supra note 48, at 29; Weithorn & Campbell, supra note 48, at 1590. 76. See Legal Contexts, supra note 48, at 43-44. Richard Redding thinks that this standard should be applied to juveniles because it includes factual understanding, rational decisionmaking, and the ability to make and communicate a choice. See Redding, supra note 34, at 716. 77. See Legal Contexts, supra note 48, at 36. See also Participation, supra note 48, at 29; Weithorn & Campbell, supra note 48, at 1590. 78. See LAURENCE D. HOULGATE, THE CHILD & THE STATE: A NORMATIVE THEORY OF JUVENILE RIGHTS 67, 72 (1980). 1999] PSYCHOTROPIC DRUGS 1167 A fourth standard is the “evidence of choice” test, which simply re- quires that a patient express a preference among treatment alternatives.79 According to this standard, a child’s decision could be reasonable merely because the child stated one valid reason supporting the preference.80 Any of these four standards is a possible candidate for evaluating whether minors are competent to provide informed consent for treatment with psychotropic medications. Even if the most rigorous test—apprecia- tion—is used, adolescent minors can demonstrate that they are competent to provide informed consent. 3. Older Minors Are Competent to Provide Informed Consent “A sizable and convincing body of research shows that children pos- sess far more competence than has previously been recognized.”81 While adults are presumed competent unless it is shown that they are incompe- tent, children are generally presumed to be incompetent.82 However, psy- chological studies reveal that children aged fourteen or fifteen and older are remarkably similar to adults in both their decisionmaking processes and the decisions that they reach.83 Thus, minors of that age and older should receive the same presumption of competence that adults enjoy. “[T]here is ample evidence that adolescents are generally indistin- guishable from adults in their reasoning about treatment decisions.”84 Child psychologists Thomas Grisso and Linda Vierling found “little evi- dence that minors of age 15 and above as a group are any less competent to provide consent than are adults.”85 They thus concluded, “[E]xisting evi- 79. See Legal Contexts, supra note 48, at 36. See also Participation, supra note 48, at 29; Weithorn & Campbell, supra note 48, at 1590. 80. See Legal Contexts, supra note 48, at 43-44. 81. DUE PROCESS PROTECTIONS, supra note 48, at 18. 82. See id. 83. See Costello, supra note 47, at 495. 84. Gary B. Melton, Family and Mental Hospital as Myths: Civil Commitment of Minors, in CHILDREN, MENTAL HEALTH, AND THE LAW 151, 155 (N. Dickon Reppucci, Lois A. Weithorn, Ed- ward P. Mulvey, & John Monahan eds., 1984). 85. Grisso & Vierling, supra note 48, at 423. However, Grisso and Vierling found that minors below ages 11-13 generally do not possess cognitive capacities sufficient to consider the complexities of treatment alternatives, benefits, and risks, and provide intelligent consent. See id. at 420, 423. They also note that tendency towards conformity is greater in early adolescence, as is deference to authority, so that voluntariness is more lacking in that age group as well. See id. at 423. Grisso and Vierling say that there may be no circumstances under which a minor younger than 11 should be able to provide consent for medical treatment, but between the ages of 11 and 14, there may be some cir- cumstances under which minors are competent to provide consent. See id. at 424. According to Weithorn and Campbell, nine-year-old minors appeared less competent than adults according to com- petency standards requiring understanding and a rational reasoning process, but they were similar to 1168 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 dence provides no psychological grounds for maintaining the general legal assumption that minors at age 15 and above cannot provide competent consent.”86 Researchers Lois Weithorn and Susan Campbell likewise con- cluded that “findings do not support the denial of the right of self- determination to adolescents in health-care situations on the basis of a pre- sumption of incapacity,”87 because fourteen-year-olds “demonstrate a level of competency equivalent to that of adults” in health-related decisions.88 Grisso and Vierling suggest that by age fifteen, minors adequately possess psychological abilities which are important to the decisionmaking process, such as the ability to attend to a task, delay immediate response while reflecting upon a decision, weigh more than one treatment alterna- tive and set of risks, hypothesize about things that have not yet happened, and use inductive and deductive reasoning.89 These minors can compre- hend information about future possibilities that result from several differ- ent choices, and they can conceptualize abstract ideas and implications concerning these options.90 Weithorn and Campbell found that fourteen- year-olds meet all four standards of competency.91 They state, “The ages of 18 or 21 as the ‘cutoffs’ below which individuals are presumed to be in- competent to make determinations about their own welfare do not reflect the psychological capacities of most adolescents.”92 The law should be changed to reflect the true capacity of children to provide informed consent. Children aged fourteen or fifteen and older ap- pear to be cognitively capable of making responsible decisions for them- selves regarding medical treatment.93 Thus, such minors should be al- adults when it came to evidence of choice and reasonable outcome standards. See Weithorn & Camp- bell, supra note 48, at 1595-96. 86. Grisso & Vierling, supra note 48, at 412. 87. Weithorn & Campbell, supra note 48, at 1589. 88. Id. at 1595. 89. See Grisso & Vierling, supra note 48, at 418. 90. See Participation, supra note 48, at 29. 91. See Weithorn & Campbell, supra note 48, at 1595. See also Legal Contexts, supra note 48, at 25. 92. Weithorn & Campbell, supra note 48, at 1596. 93. Even though it could be argued that minors who need psychotropic medications, by virtue of their very illness, have diminished capacity to provide informed consent, many researchers have dismissed the long-held notion that a person is incompetent to provide informed consent simply be- cause of mental illness. See DUE PROCESS PROTECTIONS, supra note 48, at 27. Courts and scholars recognize that even being mentally ill enough to be civilly committed is not equivalent to being in- competent, because mental patients who are quite disturbed may retain the faculties needed to make competent choices. See Elyn R. Saks, Competency to Refuse Psychotropic Medication: Three Alter- natives to the Law’s Cognitive Standard, 47 U. MIAMI L. REV. 689, 696 & n.21 (1993) (citing perti- nent cases such as Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983) and Mills v. Rogers, 457 U.S. 291 (1982)). Additionally, the types of psychological or psychiatric impairments suffered by children and 1999] PSYCHOTROPIC DRUGS 1169 lowed to make their own decisions regarding psychotropic medications by providing, or withholding, informed consent.94 B. MINORS SHOULD BE ABLE TO CONSENT TO PSYCHOTROPIC MEDICATIONS BECAUSE THEY HAVE CONSTITUTIONAL RIGHTS THAT DESERVE PROTECTION A second reason why minors should hold the power to consent to psychotropic medications is that they possess rights under the United States Constitution. The Supreme Court has recognized that children pos- sess many rights, including due process,95 free speech,96 and privacy rights,97 and it has extended constitutional protection to them as individu- als.98 However, it has also shown deference to parents’ preferences for their children.99 The Supreme Court has not followed a particularly con- sistent approach in analyzing the constitutional rights of minors, but it has said that their rights do not come into being only when children reach the age of majority but instead exist even during childhood. One scholar says that three interweaving principles “delineate the constitutional rights of children.”100 First, In re Gault stands for the proposition that children have rights of their own, and some of these rights are constitutionally protected because neither the Fourteenth Amendment nor the Bill of Rights is only for adults.101 Second, parents have a broad range of authority over children, and this authority has constitutional as- pects such that the state cannot intrude too deeply into the family without violating the constitutional rights of parents.102 Third, the state does not have to treat children like adults, but it does have to protect children, even from their parents.103 adolescents do not necessarily negate their competency as decisionmakers. See Participation, supra note 48, at 32. Even minors in psychiatric inpatient care suffer mostly from conduct disorders and other problems which are not expected to impair the cognitive capacity that is necessary for decision- making. See id. 94. Because it is likely that some twelve- or thirteen-year-olds may be as mature as some four- teen- or fifteen-year-olds, they should likewise be permitted to make their own decisions if they can demonstrate competency. 95. See In re Gault, 387 U.S. 1 (1967). 96. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969). 97. See Planned Parenthood of Cent. Miss. v. Danforth, 428 U.S. 52 (1976). 98. See Tinker, 393 U.S. at 503. 99. See, e.g., Parham v. J. R., 442 U.S. 584 (1979). 100. Robert H. Mnookin, Defining the Questions, in IN THE INTEREST OF CHILDREN: ADVOCACY, LAW REFORM, AND PUBLIC POLICY 15, 32 (Robert H. Mnookin ed., 1985). 101. See id. 102. See id. 103. See id. These three principles set up the triad of characters that this Note analyzes. 1170 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 The Supreme Court first explicitly recognized children’s rights in 1967.104 In re Gault held that juvenile delinquents have a right to due pro- cess of law, just as adults do, when facing a potential deprivation of lib- erty. In 1969, the Court in Tinker v. Des Moines Independent Community School District upheld the First Amendment rights of students who were protesting the Vietnam War.105 In Tinker, the Court said that minors, as well as adults, are “persons” under the Constitution and therefore have fundamental rights which the State must respect.106 “Perhaps the most significant source of minors’ increasing power to give or withhold consent has been case law recognizing their constitutional rights of liberty and privacy.”107 In 1976, the Court declared that minors have a constitutional right to privacy. Planned Parenthood of Central Missouri v. Danforth held that it was unconstitutional for a state statute to require an unmarried minor to obtain her parents’ consent before obtaining an abortion.108 The Court wrote, “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.”109 In 1979, the Court in Bellotti v. Baird again invoked the right to pri- vacy when it held that a state statute could not require parental permission for an unmarried minor to obtain an abortion without providing her a pro- cedure whereby she could ask a judge to rule that she is “mature” and therefore competent to make her own decision.110 If the judge ruled that she was not “mature,” then the judge would make the decision for the mi- nor in light of her best interests.111 While this holding supports the mi- nor’s right to privacy, it also notes that states may limit the freedom of mi- nors to make important affirmative choices which have potentially serious consequences, because minors often lack the experience, perspective, and judgment to avoid choices that could harm them.112 The second theme underlying the Supreme Court’s approach to the 104. See In re Gault, 387 U.S. 1 (1967). 105. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).. 106. See Id. at 509. See also HOULGATE, supra note 78, at 34. 107. Costello, supra note 47, at 496. 108. 428 U.S. 52 (1976). 109. Id. at 74. The Court protected the minor’s right to privacy again in Carey v. Population Servs. Int’l when it overturned a state law that prohibited the sale of nonprescriptive contraceptives to minors under the age of sixteen. See Carey, 431 U.S. 678 (1977). 110. 443 U.S. 622 (1979). 111. See id. 112. See id. at 635. 1999] PSYCHOTROPIC DRUGS 1171 constitutional rights of children is concern for preserving the authority and autonomy of parents. In 1979, the Court moved away from its trend of recognizing minors’ rights.113 Instead, it recognized family privacy inter- ests as outweighing the autonomy interests of minors.114 In Parham v. J. R., the Court held that parents may commit their children to civil institu- tions after proper application and an inquiry by a neutral fact-finder.115 This holding has been widely criticized because it was based upon an idyl- lic notion that parents always act in the best interests of their children be- cause of the “natural bonds of affection” that exist between them.116 How- ever, in 1981, the Court in H. L. v. Matheson again showed its support for parental authority in the home when it upheld a state statute requiring that a doctor notify a minor’s parent or guardian before performing an abortion on her.117 The third theme underlying the Supreme Court’s approach to the con- stitutional rights of children is its willingness to protect children by re- stricting their freedom. In 1944, the Supreme Court in Prince v. Massa- chusetts said that it could control the conduct of children more than it could control that of adults.118 The Court in Prince found a vital state in- terest in protecting the welfare of children, so it asserted its parens patriae power.119 In 1968, the Court in Ginsberg v. New York120 held that it was not constitutionally impermissible to accord minors fewer rights than adults to view sexually explicit material.121 Like Prince, Ginsberg said that the state may pass laws which restrict the liberty of children more severely than that of adults.122 “[T]he liberty interest of a minor is not coextensive with that of an adult,” so the state’s power to control children reaches be- yond its authority to control adults.123 Justice Stewart’s concurrence notes: “[A] child . . . is not possessed of . . . full capacity for individual choice . . . . It is only upon such a premise . . . that a State may deprive 113. See Melton, supra note 84, at 151. 114. See Legal Contexts, supra note 48, at 37. 115. 442 U.S. 584, 620-21 (1979). 116. Cichon, supra note 51, at 552-53 (citing Parham, 442 U.S. at 602). 117. See DAVIS & SCHWARTZ, supra note 24, at 69-70 (citing H. L. v. Matheson, 450 U.S. 398 (1981)). 118. 321 U.S. 158, 168 (1944) (upholding a state statute that prohibited children from selling newspapers or magazines in a public place). See also HOULGATE, supra note 78, at 35. 119. See HOULGATE, supra note 78, at 35. 120. 390 U.S. 629 (1968). 121. See HOULGATE, supra note 78, at 35. 122. See id. 123. Ginsberg, 390 U.S. at 650. 1172 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 children of . . . rights, . . . deprivations that would be constitutionally intol- erable for adults.”124 When children lack the capacity to make their own choices, the state may design laws that restrict their liberty if those laws will protect them from abuses that would prevent them from becoming independent, well- developed people.125 In 1988, the Court in Thompson v. Oklahoma again referred to chil- dren’s inferior capacity to make their own choices as a basis for depriving them of rights.126 It noted that teenagers are less able to evaluate the con- sequences of their conduct because of their inexperience and lesser amount of education and intelligence.127 Hence, “[t]he difference that separates children from adults for most purposes of the law is children’s immature, undeveloped ability to reason in an adult-like manner.”128 “The rights of children have [thus] been limited by the Court’s recog- nition of the interests of parents and the state in the upbringing and welfare of children.”129 The Court has struggled with two basic difficulties in its attempt to define the constitutional rights of children.130 One difficulty is that legal tradition recognizes the primary role of parents in child-rearing, but it is not clear whether the parents’ or the child’s rights should prevail when the two collide.131 The other difficulty is that children lack adult ca- pacity and maturity, so they should not be given the same rights and obli- gations as adults but should instead receive protection from the state.132 However, these difficulties are not really problematic when it comes to children in Tony’s position. First, their parents no longer exercise pri- mary authority over them. Instead, their parents have at least temporarily lost the right to rear them because they have abused or neglected them. The idyllic notion of the family that was present in Parham is clearly not present in the dependency context. Thus, there is no risk of collision be- tween parents’ and child’s rights. Second, it has already been shown that 124. Id. at 649-50. 125. See HOULGATE, supra note 78, at 35. In the 1982 case New York v. Ferber, the Court con- tinued to protect children by upholding a state statute that prohibited the distribution of material de- picting sexual performances by minors under age 16. See DAVIS & SCHWARTZ, supra note 24, at 71 (citing New York v. Ferber, 458 U.S. 747 (1982)). 126. 487 U.S. 815 (1988). 127. See id. at 835-36 n.43. 128. Id. 129. Leaf, supra note 36, at 1697. 130. See Mnookin, supra note 100, at 31. 131. See id. at 31-32. 132. See id. at 31. 1999] PSYCHOTROPIC DRUGS 1173 older minors do not lack the capacity to make medical treatment decisions, so the state should not assert its protective interest in children as it did in Ginsberg and Thompson. Older minors like Tony have adult-like capacity to make important decisions. Therefore, neither of the principles that often limit minors’ constitu- tional rights is compelling in the context of adolescent court-dependent minors facing treatment with psychotropic medications. The law should respect the constitutional rights of these children by allowing them to con- sent to or refuse such treatment. C. MINORS SHOULD BE ABLE TO CONSENT TO PSYCHOTROPIC MEDICATIONS BECAUSE PSYCHOTROPIC MEDICATIONS CAN BE DANGEROUS A third reason why the law should permit court-dependent minors to make their own decisions regarding psychotropic medications is that such medications may be dangerous to the child’s health. Only the child will directly bear the consequences of taking psychotropic drugs, and only the child, then, is capable of fully evaluating the potential risks and benefits of the treatment. 1. Psychotropic Medications Can Have Serious Side Effects Psychotropic medications generally act as a sedative, reducing psy- chotic symptoms and violent tendencies of mentally ill patients.133 They include drugs like ritalin, thorazine, mellaril, prolixin, trilarfor, haldol, and stelazine.134 These drugs can benefit mentally ill people by enabling them to function in society, by permitting them to benefit from other forms of therapy, and by controlling their psychotic behaviors.135 However, these medications can also have negative side effects, including “somnolence, lassitude, confusion, impaired motor functioning, fatigue, excitement, restlessness, convulsions, dry mouth, blurred vision, constipation, vari- ability in heart rate, stomach discomfort and hypotension.”136 One of the most harmful potential side effects is tardive dyskenisia, a serious “neuro- logical disorder which produces involuntary and grotesque movements of the face, mouth, tongue, jaw and extremities and which is irreversible in its 133. See Kathleen Knepper, The Importance of Establishing Competence in Cases Involving the Involuntary Administration of Psychotropic Medications, 20 L. & PSYCHOL. REV. 97, 124 (1996). 134. See id. at 97 n.2. 135. See id. at 124. Professor Saks believes that psychotropic medications are “profoundly nor- malizing” and cause many people to feel truly better. Saks, supra note 93, at 731, 732 & n.98. 136. Knepper, supra note 133, at 125. 1174 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 most severe form.”137 Some side effects can even lead “to chronic irre- versible neurological impairment [or] death.”138 By not allowing children to provide, or withhold, their informed con- sent for treatment with these medications, the law exposes them to great risks. The children themselves bear the burden of the drugs’ side effects, yet they currently have no legally recognized voice in the decisionmaking process. The law should allow abused and neglected children like Tony to consent to or refuse psychotropic medications so that they will not be forcibly harmed by the side effects of the drugs, or by caretakers’ and phy- sicians’ improper use of them. 2. Psychotropic Medications May Be Used Improperly by Caretakers and Physicians “Children are especially vulnerable to adverse side-effects, some of which may be permanently debilitating and even fatal. And yet, the use of psychotropic drugs on children is widespread, often being carelessly pre- scribed.”139 Clinicians tend to over-diagnose the seriousness of their pa- tients’ conditions, and inappropriate medication of children for relatively mild conditions is common.140 Psychotropic drugs are widely used for treating behavior and adjustment problems in children.141 In fact, it is pos- sible that psychotropic medications are frequently used indiscriminately as a method of controlling problem behaviors rather than treating mental ill- ness.142 Psychotropic medications are assumed to be comparatively safe and effective, so they are frequently given to children on a “trial and error” basis without adequate consideration of the risks to the child.143 Psychotropic medications are especially subject to abuse in institu- tions, because they produce a compliant psychological state in the patient which makes the patient more manageable for custodians.144 The juvenile dependency system could potentially be a breeding ground for dangerous abuse of psychotropic medications. After all, children entering the system frequently suffer from behavioral problems, and they are often placed with caretakers who have little or no emotional bond with them. Group homes, 137. Id. 138. Kirk & Bersoff, supra note 65, at 59. See also Redding, supra note 34, at 737-38. 139. Cichon, supra note 51, at 605. 140. See Redding, supra note 34, at 702. See also Cichon, supra note 51, at 555-56. 141. See Dennis E. Cichon, The Right to “Just Say No”: A History and Analysis of the Right to Refuse Antipsychotic Drugs, 53 LA. L. REV. 283, 310-12 (1992) [hereinafter Right to Say No]. 142. See Redding, supra note 34, at 738. 143. Right to Say No, supra note 141, at 311 n.7. 144. See Knepper, supra note 133, at 126. 1999] PSYCHOTROPIC DRUGS 1175 in particular, have abused psychotropic medications by resorting to them as a method of controlling a large number of disturbed children (often teenage boys like Tony).145 Without the right to refuse psychotropic medi- cations or even to be informed of their potential side effects, court- dependent minors are particularly susceptible to this kind of abuse. Furthermore, these children may be prescribed psychotropic medica- tions for normal childhood behaviors that their caretakers are unwilling or unable to address. “[M]any children have been admitted to psychiatric fa- cilities for such illnesses characterized as personality, conduct or transi- tional disorders,” with symptoms such as “truancy, promiscuity, drug abuse, aggression, running away, persistent lying, or stealing.”146 In other words, characteristics that many mental health professionals view as evi- dence of normal child development have resulted in children being admit- ted to mental institutions.147 A similar danger exists regarding psycho- tropic medications. Minors may be placed on psychotropic medications simply because they are difficult to deal with or are going through a rebel- lious phase. Minors may also be placed on psychotropic drugs because their pre- scribing physicians have little training in psychiatry and are subject to multiple conflicts of interest that influence them to prescribe the medica- tions. In situations like Tony’s, the prescribing physician is often em- ployed by the group home.148 Group home doctors are sometimes general practitioners instead of psychiatrists, so they may not have sufficient spe- cialized training to understand either the minor’s condition or the effect that psychotropic medications may have upon the minor.149 Rather than promoting the interests of individual children, these doctors may be pro- moting the interests of group home custodians in being able to control their wards, or the interests of the group home as a whole in having calm resi- dents. Group home doctors have a vested interest in ensuring that the group home runs smoothly, because if it does not, the home could gain a bad reputation and lose its court referrals. The doctor’s job could thus be in jeopardy if the group home were to close. Court-dependent minors liv- ing in group homes, then, are in danger of inappropriate treatment with psychotropic medications and should be protected by holding the power to consent to or refuse them. 145. See Weber, supra note 45. See also California’s Lost Children, CAL. J., Dec. 1, 1997, at 10. 146. Leaf, supra note 36, at 1718-19. 147. See id. 148. See Weber, supra note 45. 149. See id. 1176 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 3. The United States Supreme Court Has Expressed Concern Regarding Psychotropic Medications Although it has never heard a case regarding the treatment of children with psychotropic medications, the Supreme Court has heard several cases regarding the use of such medications on adults. In these cases, the Court has expressed great concern regarding the importance of protecting people from being forcibly medicated. In Washington v. Harper, the Court held that individuals have a constitutionally protected liberty interest in free- dom from unwanted psychotropic medication.150 It stated, “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”151 In affirming its de- cision in Harper, the Court in Riggins v. Nevada characterized involuntary treatment with psychotropic medications as a “particularly severe” inter- ference with an individual’s liberty.152 “[A]bsent a legitimate state inter- est, an individual possesses the right to be free from forced administration of psychotropic drugs. This right is recognized as an aspect of the consti- tutional right to privacy and bodily integrity.”153 The law should protect the privacy and bodily integrity of minors by taking into account the Su- preme Court’s concern regarding forced treatment with psychotropic medications. It should grant older court-dependent minors like Tony the right to consent to or refuse such treatment rather than effectively allowing them to be forcefully medicated as under current law. D. MINORS SHOULD BE ABLE TO CONSENT TO PSYCHOTROPIC MEDICATIONS BECAUSE CONSENT CAN ENHANCE TREATMENT EFFECTIVENESS A final reason why court-dependent children should have the legal right to decide whether to take psychotropic medications is the fact that their treatment may be more effective if they willingly consent to it. There are important clinical advantages to including children in the treatment de- cisionmaking process.154 Allowing children to participate reduces nega- tive attitudes they may have towards treatment, such as resistance and re- 150. 494 U.S. 210, 221 (1990) (cited in Kirk & Bersoff, supra note 65, at 48). 151. Harper, 494 U.S. at 229. 152. Riggins v. Nevada, 504 U.S. 127, 133 (1992) (cited in Kirk & Bersoff, supra note 65, at 59). 153. James C. O’Leary, Note, An Analysis of the Legal Issues Surrounding the Forced Use of Ritalin: Protecting a Child’s Right to “Just Say No,” 27 NEW ENG. L. REV. 1173, 1201 (1993) (foot- notes omitted). 154. See Participation, supra note 48, at 26. 1999] PSYCHOTROPIC DRUGS 1177 actance. It improves their understanding, increases their commitment, and results in greater follow-through, better outcomes, an increased sense of responsibility, and improved relationships between them and the adults in- volved in the decisionmaking.155 Treatment participants whose consent has been sought are likely to have a more positive attitude towards treat- ment than those who are being treated without having given formal con- sent.156 Children who participate in decisionmaking adjust better to treat- ment,157 are more committed to treatment,158 show greater compliance with treatment, and prematurely terminate treatment less frequently.159 The more a patient chooses to participate, the more the activity will be a positive experience.160 Patient choice in favor of treatment seems to be an important determinant in bringing about treatment success.161 In ad- dition to bringing about more successful treatment outcomes, children’s participation in decisionmaking is psychologically beneficial for them.162 Participation in decisionmaking can teach them how to make good deci- sions, reducing their dependency on adults and helping them gain feelings of competence and self-determination.163 Respecting the decisionmaking capabilities of children can nurture their self-confidence.164 On the other hand, “coerced participation is seldom productive and usually counterproductive.”165 Involving nonconsenting minors in therapy is likely to produce negative reactions.166 Reluctance and dissatisfaction are particularly prevalent in mandated treatment, and nonconsenting chil- dren experience less progress in treatment.167 Nonparticipation in deci- sionmaking can have negative psychological consequences such as re- 155. See Linda Taylor & Howard S. Adelman, Facilitating Children’s Participation in Decisions That Affect Them: From Concept to Practice, 15 J. CLINICAL CHILD PSYCHOL. 346, 346 (1986). 156. See Howard S. Adelman, Robert Lusk, Vivian Alvarez, & Katherine Acosta, Competence of Minors to Understand, Evaluate and Communicate About Their Psychoeducational Problems, 16 PROF. PSYCHOL. 426, 428 (1985). 157. See Howard S. Adelman, Nancy Kaser-Boyd, & Linda Taylor, Children’s Participation in Consent for Psychotherapy and Their Subsequent Response to Treatment, J. CLINICAL CHILD PSYCHOL. 170, 175 (1984). 158. See Winick, supra note 41, at 159. 159. See Participation, supra note 48, at 27, 32-33. 160. See Adelman, et. al., supra note 156, at 427-28. 161. See Winick, supra note 41, at 158. 162. See Participation, supra note 48, at 27, 32. 163. See Taylor & Adelman, supra note 155, at 346. 164. See Cichon, supra note 51, at 614. 165. Taylor & Adelman, supra note 155, at 348. 166. See Adelman, et. al., supra note 156, at 432-33. 167. See Howard S. Adelman & Linda Taylor, Children’s Reluctance Regarding Treatment: In- competence, Resistance, or an Appropriate Response?, 15 SCH. PSYCHOL. REV. 91, 94 (1986). 1178 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 72:1151 duced commitment to following the prescribed treatment effectively,168 reinforcement of feelings of incompetence and hopelessness, destruction of motivation, and creation of learned helplessness or prolonged depend- ency.169 Exclusion from the treatment decisionmaking process “may actu- ally harm the treatment recipients. At the very least, it probably reduces the efficacy of [the] treatment.”170 Thus, it is important for treatment ef- fectiveness that the law recognize the right of court-dependent minors to provide or withhold informed consent to treatment with psychotropic medications. VI. CONCLUSION Abused and neglected adolescents like Tony need and deserve greater protection under the law regarding the administration of psychotropic medications. Children aged fourteen or fifteen and older should them- selves hold the power to consent to or refuse such medications. Parents of court-dependent children should not hold the power to consent, because they have demonstrated that they often do not act in the best interests of their children. The state should not hold the power to consent either, be- cause it should only assert its protective parens patriae power on behalf of those who are incompetent and when its action furthers the best interests of children. Adolescent children are as competent as adults to make good de- cisions regarding their health care. Their constitutional rights to privacy and autonomy neither interfere with their parents’ fundamental rights nor with the state’s parens patriae interest. Psychotropic medications pose a significant threat to these children. Minors’ consent could increase the ef- fectiveness of their therapy overall. Therefore, the law should protect abused and neglected children from forcible medication with psychotropic drugs by allowing them to provide, or withhold, their informed consent as they see fit. Perhaps then they will finally feel better. 168. See Adelman, Kaser-Boyd, & Taylor, supra note 157, at 176. 169. See Winick, supra note 41, at 160. 170. Kirk & Bersoff, supra note 65, at 61.
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