3.3Ordering Medical Treatment for a Child

A.Consent to a Child’s Treatment

When a child is placed outside the home, a child placing agency, the department,¹ or the court may consent to “routine, nonsurgical medical care, or emergency medical and surgical treatment” of a child. MCL 722.124a(1).

Note: The court may also enter a dispositional order to provide a child with appropriate “medical, dental, surgical, or other health care” it considers necessary after the court takes jurisdiction over the child. See MCL 712A.18(1)(f); In re AMB, 248 Mich App 144, 176-177 (2001). “[A]fter a [respondent-]parent has been [adjudicated as] unfit, MCL 712A.18(1)(f) affords [trial] courts the broad authority to make medical decisions for a child under their jurisdiction, and [the] respondent[-parent] cannot rely on provisions in the Public Health Code to trump this broad grant of judicial authority.” In re Deng, 314 Mich App 615, 629 (2016) (finding “[t]he [J]uvenile [C]ode includes no provision restricting the trial court’s authority to enter dispositional orders affecting a child’s medical care on the basis of a parent’s [religious] objections to vaccinations, and it would be inappropriate to graft on such an exception from the Public Health Code[]”).

Where the child is placed with a child care organization, the child placing agency, the department, or the court must execute a written instrument that grants the organization authority to consent to the child’s emergency medical and surgical treatment. MCL 722.124a(1). The department may also execute a written instrument granting the child care organization the authority to consent to the child’s routine, nonsurgical medical care. Id.

Note: A child care organization is “a governmental or nongovernmental organization having as its principal function receiving minor children for care, maintenance, training, and supervision, notwithstanding that educational instruction may be given. Child care organization includes organizations commonly described as child caring institutions, child placing agencies, children’s camps, children’s campsites, children’s therapeutic group homes, child care centers, day care centers, nursery schools, parent cooperative preschools, foster homes, group homes, or child care homes.” MCL 722.111(1)(b).

Where the child is placed with a child caring institution, the child placing agency, the department, or the court must, in addition to emergency medical and surgical treatment, execute a written instrument that grants the institution authority to consent to the child’s routine, nonsurgical medical care. MCL 722.124a(1).

Note: A child caring institution is “a child care facility that is organized for the purpose of receiving minor children for care, maintenance, and supervision, usually on a 24-hour basis, in buildings maintained by the child caring institution for that purpose, and operates throughout the year. . . . Child caring institution also includes an institution for developmentally disabled or emotionally disturbed minor children.” MCL 722.111(1)(c).

B.Ordering Emergency and Nonemergency Treatment

MCL 722.124a(1) is not tied to any particular phase of a child protective proceeding. In re AMB, 248 Mich App at 178-179. Rather, once a placement order is issued for out-of-home care, “[the court] has statutory authority to order medical or surgical treatment in an emergency, or routine, nonsurgical treatment even when there is no emergency.” Id. at 179.

Even if a child has yet to live with a foster family or the department² still needs to arrange for a foster family to be involved in the child’s care while in the hospital, in cases where the child has a medical emergency the court has the authority to order medical or surgical treatment of a child under MCL 722.124a(1) once the placement order is issued for out-of-home care. In re AMB, 248 Mich App at 180-182.

The court may order an evaluation or examination of a child by a physician, dentist, psychologist, or psychiatrist. MCR 3.923(B). Similarly, MCL 712A.12 permits the court to order an examination of a child by a physician, dentist, psychologist, or psychiatrist after a petition is filed and during the course of additional investigation. The court may also permit photographing of a child after a petition has been filed. MCR 3.923(C).

Note: The Court of Appeals has defined psychological evaluations as routine care for emotionally disturbed children in temporary custody. In re Trowbridge, 155 Mich App 785, 787-788 (1986).

A parent established as unfit during the adjudicative phase “must yield to the trial court’s [dispositional] orders regarding the child’s welfare[; c]onsequently, during the dispositional [phase], the trial court has the authority to order vaccination of a child when the facts proved and ascertained demonstrate that immunization is appropriate for the welfare of the juvenile and society.” In re Deng, 314 Mich App 615, 625, 627 (2016) (finding “a parent who has been adjudicated as unfit [does not have] the right during the dispositional phase of the child protective proceedings to object to the inoculation of her children on religious grounds[;]” “following adjudication, which affords a parent due process for the protection of his or her liberty interests, the parent is no longer presumed ‘fit’ to make decisions for the child and that power, including the power to make medical decisions involving immunizations, rests instead with the court^[3]”), citing MCL 712A.18(1)(f) and In re Sanders, 495 Mich 394, 409-410, 418 (2014).

A parent’s failure to provide a child with medical treatment on the basis of his or her religious beliefs does not preclude a court from ordering medical or nonmedical treatment where necessary. MCL 722.634.

C.Withdrawal of Life Support

1.Court’s Authority to Order Cessation of Treatment

The court has the authority to order the cessation of treatment under MCL 722.124a(1) when treatment becomes futile. In re AMB, 248 Mich App at 182. However, judicial intervention on behalf of a minor or other incompetent patient is only warranted in the decision to withdraw life support when the parties disagree about treatment or where other appropriate reasons exist. In re Rosebush, 195 Mich App 675, 687 (1992).

In In re AMB, the child was born with severe heart and other defects that required her to remain on life support systems. In re AMB, 248 Mich App at 149, 151-152. She had a poor prognosis for long-term survival. In re AMB, supra at 149. The child’s putative father was also the father of the child’s mother, who was 17 years old at the time and allegedly developmentally delayed.⁴ Id. at 150. The DHHS filed an original petition alleging the sexual abuse of the child’s mother and the mother’s inability to care for the child. Id. at 152. Following a preliminary hearing, a referee entered an order authorizing the petition, requiring that the child receive all necessary treatment to sustain her life, and placing the child in foster care or with a relative. Id. at 152-153. Four days later, the DHHS filed an amended petition alleging that the child was being kept alive by life support systems, that the child’s mother was incapable of making an informed decision regarding the child’s condition, and that the DHHS was requesting the court to make a determination of the child’s best interests. Id. at 154-156. Following a second preliminary hearing (where the court received testimony from a treating physician indicating that the life support measures had ceased to be treatment and were futile), the referee entered an order authorizing the hospital to end life support. Id. at 156-161, 182. The Court of Appeals found that the lower court had statutory grounds to authorize the hospital’s removal of life support, but warned that the lower court’s authority to withdraw life support “depend[ed] on the circumstances of each case. . . . [Alt]hough MCL 722.124a(1) enabled the family court to act in this case even before holding an adjudication, [the Court] stress[ed] that parties and family courts involved in protective proceedings must make every possible effort to hold an adjudication before authorizing withdrawal of life support.” In re AMB, 248 Mich App at 182.

Note: The Child Abuse Prevention and Treatment and Adoption Reform Act (CAPTA), 42 USC 5101 et seq., does not prevent the DHHS from seeking an order to withdraw life support where a treating physician indicates a child’s life support measures cease to be treatment and are futile. 42 USC 5106g(6)(B)-(C); In re AMB, 248 Mich App at 185-186.

2.Parent’s or Surrogate’s Decision to Withdraw Life Support

The court may permit a parent or surrogate to make serious medical decisions for a minor or an incompetent patient, including the decision to withdraw life support. In re Rosebush, 195 Mich App at 682-683.The court may also intervene in a decision to withdraw life support if “‘the parties directly concerned disagree about treatment, or other appropriate reasons’ exist.” In re AMB, 248 Mich App at 171, quoting Rosebush, supra at 687.

Note: It may be appropriate for a court to intervene when a parent has a conflict of interest regarding withdrawal of life support that may interfere with his or her ability to act in the child’s best interests. “[T]he parent accused of causing the injury may face more severe criminal penalties should the child die rather than surviving for some time in a severely impaired or vegetative state. Medical providers may have significant concerns regarding the parent’s ability to act in the child’s best interest. When this situation presents itself, doctors will look to institutional ethics committees and the courts for guidance regarding end of life and other critical medical decisions.” Paulsci and Stoika, End of Life Decisions in Children With Concerns of Child Maltreatment, 5 Mich Child Welfare L J 25 (2001). It is well established that a patient’s removal from life support is not an intervening cause of the patient’s death absolving a criminal defendant from criminal liability. See People v Bowles, 461 Mich 555, 559-560 (2000).

3.Standards for Withdrawing Life Support

Before a court enters an order permitting the withdrawal of life-sustaining medical care, the following standards must be applied:

(1) The court must determine whether the patient is competent because a competent patient has an absolute right to make medical decisions (including the right to decline medical intervention). In re AMB, 248 Mich App at 198-199.

Note: Neither the patient’s youth nor his or her involvement in a child protective proceeding conclusively resolves the issue of competence. In re AMB, 248 Mich App at 199, citing In re Rosebush, 195 Mich App at 681-682. If the facts do not conclusively determine the issue of competence, the trial court should conduct an evidentiary hearing. In re AMB, supra at 199.

(2) If the patient is incompetent, the court must determine which of the following legal standards to apply:

(a) The substituted judgment standard, which “seeks to fulfill the expressed wishes of a previously competent patient, including a ‘minor of mature judgment.’” In re AMB, 248 Mich App at 199.

(b) The limited-objective substituted judgment standard used in Michigan, which “requires “‘some trustworthy evidence that the patient would have refused the treatment, and the decision[]maker is satisfied that it is clear that the burdens outweigh the benefits of that life for’” the patient.” In re AMB, 248 Mich App at 199-200.

(c) The best interests standard, which “applies when the patient has never been competent or has not expressed [his or] her wishes concerning medical treatment.” In re AMB, 248 Mich App at 200.

Note: In applying the best interests standard, the court may examine “‘[e]vidence about the patient’s present level of physical, sensory, emotional, and cognitive functioning; the degree of physical pain resulting from the medical condition, treatment, and termination of the treatment, respectively; the degree of humiliation, dependence, and loss of dignity probably resulting from the condition and treatment; the life expectancy and prognosis for recovery with and without treatment; the various treatment options; and the risks, side effects, and benefits of each of those options.’” In re AMB, 248 Mich App at 200, citing In re Rosebush, 195 Mich App at 690 (additional citations omitted).

(3) The trial court may appoint a guardian ad litem for a child-patient, depending upon the seriousness of the medical condition and the time allowed for the decision. In re AMB, 248 Mich App at 202-203.

(4) If the surrogate decisionmaker is allegedly incompetent to make a decision on withdrawing life support from an incompetent patient, the court must receive evidence on the issue. In re AMB, 248 Mich App at 204. The evidence must:

(a) establish “that the person who would otherwise act as the surrogate decisionmaker for the incompetent patient is also incompetent to make the critical medical decision at issue[]”; and

(b) be clear and convincing that an incompetency actually exists that prevents a parent or other surrogate from making a decision concerning the patient’s care. In re AMB, 248 Mich App at 204-206.

Note: According to In re AMB, “jurisdiction over the child alone is not reason enough for a court to make a decision to withdraw life support. Rather, the record must provide clear and convincing evidence to support the court’s determination that it, not a parent or other surrogate, must make the decision to withdraw life support.” In re AMB, 248 Mich App at 206.

(5) When requesting withdrawal of life support, the petitioner must “provide a second opinion from an independent physician or establish why this second opinion is not necessary.” In re AMB, 248 Mich App at 208. The court may weigh the “presence or absence of medical consensus, the factors that contributed to medical disagreement or agreement, and the factors that make any independent physician opinion more or less relevant to the ultimate decision to withdraw life support.” In re AMB, supra at 208.

Note: Independent physician confirmation is inappropriate in cases involving a competent or formerly competent patient who expressed his or her wishes “no matter the degree of medical consensus.” In re AMB, 248 Mich App at 208 n 149, citing In re Martin (Michael), 450 Mich 204, 221-222 (1995).

(6) As a matter of procedural due process, parents must be given notice of and an opportunity to be heard at any hearing related to a request to withdraw life support from their child. In re AMB, 248 Mich App at 211-213.

(7) Although a referee may conduct hearings relevant to a request to withdraw life support and make recommended findings of fact and conclusions of law, a judge, not a referee, must enter the order allowing withdrawal of life support. MCL 712A.10(1); In re AMB, 248 Mich App at 216-217.

D.Psychotropic Medications

It may be beneficial for a child who suffers from emotional or behavioral disorders to use psychotropic medications as part of a mental health plan. However, psychotropic medications must not be used to discipline or control a child. Dwayne B v Granholm, settlement agreement of the United States District Court for the Eastern District of Michigan, filed July 3, 2008 (Docket No. 2:06-cv-13548).⁵ 

A child’s parent must consent to the child’s use of psychotropic medication. Dwayne B, supra. If a child’s parent is not available, the DHHS must seek consent from the court. Id.

For additional information on the administration of psychotropic medication to children in foster care, see the DHHS’s Children’s Foster Care Manual (FOM), Psychotropic Medication in Foster Care FOM 802-1,⁶ and the American Bar Association Center on Children and the Law, Psychotropic Medication and Children in Foster Care: Tips for Advocates and Judges, available at https://www.courts.michigan.gov/4a6716/siteassets/court-administration/standardsguidelines/childprotectionjuvdel/psychotropic-medication-and-children-in-foster-care-tips-for.pdf.