Medical consent at issue for ailing foster children

In the wake of the June death of a 7-month-old foster girl in deteriorating health, the Clark County Department of Family Services’ medical consent practices are being reviewed.

The agency is required to get parental consent for medical procedures involving general anesthesia or other sedation needed by children in custody.

If the biological parents can’t be found, the agency can request a court order for treatment instead, said Brigid Duffy, chief deputy district attorney for the juvenile division of the Clark County prosecutor’s office.

It’s important for the public to understand the “big picture of where we are in trying to get help for kids who need help,” Duffy said. “I don’t want to say that parents’ rights are an obstacle, but it creates something we have to consider before we can get an end result.”

The issue of medical consent garnered attention in July after the 7-month-old’s grieving foster mother implored state lawmakers to review Clark County’s procedures.

Sheila Smith said the baby’s life might have been saved by earlier treatment.

In a life-or-death situation, hospitals do have the ability to perform medical procedures on children without parental consent, Duffy said.

If Family Services goes through court, Duffy’s agency can file a motion that would be heard within 21 days, she said. In emergencies, her office can file a separate motion for a hearing within 24 working hours.

A children’s advocacy organization also is working with county officials to make it easier for children in foster care to get necessary medical treatment.

“At what level we are going to be seeking legislation or policy practice change will depend on the research that we get,” Denise Tanata Ashby, executive director for the Children’s Advocacy Alliance, said on Thursday.

Ashby’s organization recently launched the Stakeholder Opinion Survey to find ways to improve Nevada’s child welfare system.

“When we get responses that we feel are policy issues, we take it to the department and have a discussion with them,” she said.

The 7-month-old’s death was such a case.

OBTAINING ADVANCE CONSENT

The Children’s Advocacy Alliance is looking at how other agencies handle parental consent for medical treatment. One option is getting broad parental consent at the beginning of a Family Services case.

Another option is expanding the decision-making scope of foster parents and of the agency.

Jeanne Marsh, director for the Washoe County Children’s Services Division, said her agency has parents sign medical releases when their children are removed from the home. The medical release is also addressed during the 72-hour emergency child protective hearings.

“The judge states the order out loud so that parents are aware, and then the parents get a copy of the orders,” she said.

But it’s the department’s practice to include parents in any medical situation when possible, Marsh said.

In the case of the 7-month-old girl who died in Clark County, the foster mother took the ailing baby to the hospital, but doctors needed to run a test to treat her, which required consent from the biological mother.

Family Services couldn’t locate the biological mother and told Smith it would take two weeks to get a court order for the needed procedures, the foster mother said in July.

Hospital staff conducted the procedure after seven days because the infant was in serious decline, Smith said. The baby later died.

Janice Wolf, directing attorney for the Children’s Attorneys Project at Legal Aid of Southern Nevada, said she didn’t know the specifics of the 7-month-old’s death, but noted there was another option — filing an “emergency setting slip” to get cases in front of the court quickly.

“While it’s nice to do motions, I don’t understand why a slip wasn’t used,” she said.

Wolf believes current medical consent practices in Clark County do work. But part of making them work in cases like that of the 7-month-old girl is effectively communicating the urgency of the situation.

“It sounds like someone didn’t realize how urgent it was,” Wolf said.

LIABILITY VERSUS NEED

The medical consent practices in Clark County have been in place since the early 2000s. At the time, a couple of parents became upset because the Nevada Division of Child and Family Services sought medical treatment for foster children when parents thought they should have been consulted, Duffy explained.

Since the current medical consent policy was put in place, “there’s been some really tough days,” she said.

In a few circumstances, a parent was responsible for their child’s medical problems through abuse or neglect. While the parent faced criminal charges, the hospital wanted a decision on do not resuscitate orders, Duffy said.

“If we make that decision, that could be the (difference) between attempted murder and murder,” Duffy said.

Duffy met with the grieving foster parents of the 7-month-old girl but couldn’t talk about case specifics because the district attorney’s office represents Family Services. The agency is not commenting on details of the girl’s death.

Family Services also would not comment on what’s being done to improve current medical consent practices. Officials referred the Review-Journal to a July statement released when the baby’s death was first reported. The statement reiterated the department’s current policy.

There also are liability issues officials have to consider.

“If we make those gigantic leaps into saying this more-than-routine medical procedure is needed and something happens, and we, being the department, consent to it without a court (order), then the liability falls on the department and not onto the court,” she said.

There might also be some hesitation on the part of hospitals to proceed without parental or court consent because of liability issues, Ashby said.

“There’s got to be a balance between protecting both the agency and the medical providers, but also making sure the kids are getting the medical care they need when they need it,” she said.

Dr. Jay Fisher, head of University Medical Center’s pediatric emergency department, said he speaks to the hospital’s lawyers about their practices frequently and there’s a great latitude in the law to do what’s right for patients.

“It would be highly unusual to look at a team of professionals and say that they were neglectful or guilty of some type of incorrect activity” for providing a life-saving measure to a child, he said.

Under state statute, the director or other authorized representative for a child welfare agency should organize one or more multidisciplinary teams to review the death of a child in several circumstances, including if the child dies while in custody of the agency.

“The statute does not require an additional team to be convened,” Kristi Jourdan, Family Services spokes­woman, said last month when asked if a team was formed to review the death of the 7-month-old girl. “The current Clark County Child Death Review Team process, which reviews every child death in our community, already meets the statutory requirements, according to the district attorney’s office.”

Tara Phebus with the Clark County Child Death Review Team said she couldn’t talk about specific cases, but the team meets monthly to review all child deaths.

Duffy would like to see the court move away from the current medical consent practices because of their complexity.

“I recognize that parents have rights and they are fundamental rights, regard­less of how these kids landed in the system, but at some point, I would like to see the courts say the department has this ability and trusts the department to make these decisions,” she said. “But that’s not going to be a popular stance because parents have rights.”

It would be ideal if parents stayed in constant communication with Family Services, but that’s not the case, Duffy said.

“The district attorney’s office will find a way to help the department attain the ability to have more control over those decisions,” she said. “We’ll keep working with the courts to figure out a better process.”

Contact Yesenia Amaro at yamaro@reviewjournal.com or 702-383-0440. Follow @YeseniaAmaro on Twitter.

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