Malpractice Rx

Divorce, custody, and parental consent for psychiatric treatment

Douglas Mossman, MD, and Christina G. Weston, MD

Dear Dr. Mossman: spite her fears—notifying and involving I treat children and adolescents in an acute Johnny’s father can be important, even inpatient setting. Sometimes a child of divorced when it’s not legally required. parents—call him “Johnny”—is admitted to the hospital by one parent—for example the mother—but she doesn’t inform the father. Custody and urgent treatment Although the parents have joint custody, Mom A minor—defi ned in most states as a per- Douglas Mossman, MD doesn’t want me to contact Dad. son younger than age 18—legally cannot I tell Mom that I’d like to get clinical infor- give consent for medical care except in mation and consent from Dad, but she refuses, ® Dowdenlimited circumstances, Health such Media as contracep- saying, “This will make me look bad, and my tive care.1,2 When a minor undergoes psy- ex-husband will try to take emergency custody chiatric hospitalization, physicians usually of Johnny.” My hospital’s legalCopyright departmentFor says personalmust obtain consent use from only the minor’s legal consent from both parents isn’t needed. custodian. These scenarios always leave me feeling upset Married parents both have legal custo- and confused. I’d appreciate clarifi cation on how dy of their children. They also have equal to handle these matters. rights to spend time with their children and DO YOU HAVE A Submitted by “Dr. K” make major decisions about their welfare, QUESTION ABOUT such as authorizing medical care. When POSSIBLE LIABILITY? nowing the correct legal answer parents divorce, these rights must be reas- ■ Submit your to a question often doesn’t supply signed in a court-approved divorce decree. malpractice-related the best clinical solution for your Table 1 (page 64) explains some key terms questions to Dr. Mossman K at douglas.mossman@ patient. Dr. K received a legally sound re- used to describe custody arrangements af- dowdenhealth.com. 2,3 sponse from hospital administrators: a par- ter divorce. ■ Include your name, ent who has legal custody may authorize Several decades ago, children—espe- address, and practice medical treatment for a minor child with- cially those younger age 10—usually re- location. If your question is chosen for publication, out fi rst asking or informing the other par- mained with their mothers, who received your name can be ent. But Dr. K feels unsatisfi ed because the sole legal custody; fathers typically had withheld by request. hospital didn’t provide what Dr. K sought: visitation privileges.4 Now, however, most ■ All readers who submit questions will be included a clinically sound answer. states’ statutes presume that divorced in quarterly drawings This article reviews custody arrange- mothers and fathers will have joint legal for a $50 gift certifi cate ments and the legal rights they give di- custody.3 for Professional Risk Management Services, vorced parents. Also, we will discuss the Joint legal custody lets both parents Inc’s online market-place mother’s concerns and explain why—de- retain their individual legal authority to of risk management publications and resources (www.prms.com).

Dr. Mossman is director, Glenn M. Weaver Institute of Law and Psychiatry, University of Cincinnati College of Law, and volunteer professor of psychiatry and associate program director, Institute for Psychiatry and Law, University of Cincinnati College of Medicine. Dr. Weston is assistant professor and associate director, division of child and adolescent psychiatry, Wright State Current Psychiatry University Boonshoft School of Medicine, Dayton, OH. Vol. 7, No. 8 63

For mass reproduction, content licensing and permissions contact Dowden Health Media.

63_CPSY0808 63 7/17/08 8:24:23 AM Malpractice Rx

Table 1 Child custody: Key legal terms Term Refers to

Custody arrangement The specifi ed times each parent will spend with a minor child and which parent(s) can make major decisions about a child’s welfare

Legal custody A parent’s right to make major decisions about a child’s welfare, including medical care

Visitation The child’s means of maintaining contact with a noncustodial parent

Physical custody Who has physical possession of the child at a particular time, such as during visitation

Sole legal custody A custody arrangement in which only one parent retains the right to make major decisions for the child Clinical Point Joint legal custody A custody arrangement in which both parents retain the right In many states, to make major decisions affecting the child noncustodial parents Modifi cation of custody A legal process in which a court changes a previous custody order may authorize Source: Adapted from references 2,3 treatment if they have physical control make decisions on behalf of minor chil- ceed with only Mom’s consent.1 However, of the child when dren, although the children may spend if Dr. K knows or has reason to think that care is needed most of their time in the physical custody Johnny’s father would refuse to give con- of 1 parent. This means that when urgent sent for ongoing, nonurgent psychiatric medical care is needed—such as a psychi- care, providing treatment over the father’s atric hospitalization—1 parent’s consent objection may be legally questionable. Un- is suffi cient legal authorization for treat- der some joint legal custody agreements, ment.1,2 both parents need to give consent for med- What if a child’s parent claims to have ical care and receive clinical information legal custody, but the doctor isn’t sure? about their children.2 A doctor who in good faith relies on a Moreover, trying to treat Johnny in the parent’s statement can properly provide face of Dad’s explicit objection may be urgent treatment without delving into clinically unwise. Unfortunately, many custody arrangements.2 In many states, couples’ confl icts are not resolved by di- noncustodial parents may authorize treat- vorce, and children can become pawns in ment in urgent situations—and even some ongoing postmarital battles. Such situa- nonurgent ones—if they happen to have tions can exacerbate children’s emotional physical control of the child when care is problems, which is the opposite of what needed, such as during a visit.1 Dr. K hopes to do for Johnny. What can Dr. K do?

Nonurgent treatment Address a parent’s fears. Few parents are After receiving urgent treatment, psychi- at their levelheaded best when their chil- atric patients typically need continuing, dren need psychiatric hospitalization. To nonurgent care. Dr. K’s inquiry may be help Mom and Johnny, Dr. K can point out anticipating this scenario. In general, par- these things: ents with joint custody have an equal right • Many states, such as Ohio,5 give Dad to authorize nonurgent care for their chil- the right to learn about Johnny’s treatment Current Psychiatry 64 August 2008 dren, and Johnny’s treatment could pro- and access to treatment records. continued on page 66

64_CPSY0808 64 7/17/08 8:24:28 AM Malpractice Rx

continued from page 64 Table 2 often symptoms appear in both environ- Why both parents’ input ments. Dad’s perspective may be vital, is valuable but when postdivorce relationships are strained, what parents convey about each More information from different perspectives other can be biased. Getting information concerning behavior in a variety of contexts and settings directly from both parents will give Dr. K a more realistic picture of the child’s envi- Less biased information ronment and psychosocial stressors.7 Better treatment planning

Better medication management Treatment planning. After a psychiatric hospitalization, both parents should be More effective therapy aware of Johnny’s diagnosis and treatment. Clinical Point Johnny may need careful supervision for • Sooner or later, Dad will fi nd out about recurrence of symptoms, such as suicidal Parents may feel the hospitalization. The next time Johnny or homicidal ideation, that can have life- guilty about the visits his father, he’ll probably tell Dad threatening implications. stress the divorce what happened. In a few weeks, Dad may has caused and may receive insurance paperwork or a bill from Medication management. If Johnny is blame themselves the hospital. taking medication, he’ll need to receive it for their child’s • Dad may be far more upset and prone regularly. Missing medication when John- to retaliate if he fi nds out later and is ex- ny is with Dad would reduce effectiveness psychiatric illness cluded from Johnny’s treatment than if he is and in some cases could be dangerous. notifi ed immediately and gets to participate Both parents also should know about pos- in his son’s care. sible side effects so they can provide good • Realistically, Dad cannot take Johnny monitoring. away because Mom has arranged for ap- propriate medical care. If hospitalization is Psychotherapy. Often, family therapy is indicated, Mom’s failure to get treatment an important element of a child’s recovery for Johnny could be grounds for Dad to and will achieve optimum results only if all claim she’s an unfi t parent. family members participate. Also, children need consistency. If a behavioral plan is part of Johnny’s treatment, Mom and Dad Why both parents are needed will need to agree on the rules and imple- Johnny’s hospital care probably will ben- ment them consistently at both homes. efi t from Dad’s involvement for several reasons (Table 2). Work with parents More information. Child and adolescent When one divorced parent is reluctant to psychiatrists agree that in most clinical inform the other about their child’s hospi- situations it helps to obtain information talization, you can respond empathically to from as many sources as possible.6-9 John- fears and concerns. Despite mental health ny’s father might have crucial information professionals’ best efforts, psychiatric ill- relevant to diagnosis or treatment, such as ness still generates feelings of stigma and family history details that Mom doesn’t shame. Divorced parents often feel guilty know. about the stress the divorce has brought to their children, and they may consciously or Debiasing. If Johnny spends time living unconsciously blame themselves for their Current Psychiatry 66 August 2008 with both parents, Dr. K should know how child’s illness. In the midst of an ongoing

66_CPSY0808 66 7/17/08 8:24:33 AM Malpractice Rx

custody dispute, the parent initiating a psychiatric hospitalization may feel espe- June cially vulnerable and reluctant to inform POLL RESULTS the other parent about what’s happening. Being attuned to these issues will help Could a patient’s violent act you address and normalize a parent’s have been prevented? fears. Parents should know that a court A man under outpatient care of the state’s regional behavioral health authority was could support their seeking treatment for diagnosed with schizophrenia, paranoid their children’s illness, and they could be type. He killed his developmentally contributing to medical neglect if they do disabled niece, age 26. The niece’s family not seek this treatment. claimed the death could have been prevented if the man was civilly committed In rare instances, not informing the other or heavily medicated. Was the behavioral parent may be the best clinical decision. health authority liable? Clinical Point In situations involving child abuse or ex- LIABLE: NOT LIABLE: Usually, Mom and treme domestic violence, a parent’s learn- 11% 89% ing about the hospitalization could create DATA OBTAINED VIA CURRENTPSYCHIATRY.COM, JUNE 2008 Dad will see their safety issues. In most instances, however, ❒ What did the court decide? child soon after both Mom and Dad will see their child soon The mother was found to be 39% at fault, hospitalization, so the patient 11% at fault, and the behavioral after hospitalization, so one parent cannot health authority 50% at fault for the one parent cannot hope to conceal a hospitalization for very woman’s death and paid half of the verdict hope to conceal it long. Involving both parents from the out- amount to the parents. A $101,740 verdict set usually will give the child and his family was returned for the niece’s mother and for very long the best shot at a positive outcome. a $100,625 verdict was returned for the father. References Cases are selected by CURRENT PSYCHIATRY from 1. Berger JE. Consent by proxy for nonurgent pediatric care. Medical Malpractice Verdicts, Settlements & Experts, Pediatrics 2003;112:1186-95. with permission of its editor, Lewis Laska of Nashville, 2. Quinn KM, Weiner BA. Legal rights of children. In: Weiner TN (www.verdictslaska.com). Information may be BA, Wettstein RM, eds. Legal issues in mental health care. New incomplete in some instances, but these cases represent York, NY: Plenum Press; 1993:309-47. clinical situations that typically result in litigation. 3. Kelly JB. The determination of child custody. Future Child 1994;4:121-242. 4. Melton GB, Petrila J, Poythress NG, Slobogin C. Psychological evaluations for the courts: a handbook for mental health professionals and lawyers. 3rd ed. New York, NY: Guilford Press; 2007. 8. Bostic JQ, King RA. Clinical assessment of children and 5. Ohio Rev Code § 3109.051(H). adolescents: content and structure. In: Martin A, Volkmar 6. American Academy of Child and Adolescent Psychiatry. FR, eds. Lewis’s child and adolescent psychiatry: a comprehensive Practice parameters for the psychiatric assessment of children textbook. 4th ed. Philadelphia, PA: Lippincott Williams & and adolescents. J Am Acad Child Adolesc Psychiatry 1997;36(10 Wilkins; 2007:323-44. suppl):4S-20S. 9. Weston CG, Klykylo WM. The initial psychiatric evaluation 7. American Academy of Child and Adolescent Psychiatry. of children and adolescents. In: Tasman A, Kay J, Lieberman Practice parameter for the assessment of the family. J Am Acad J, eds. Psychiatry. 3rd ed. London, UK: John Wiley & Sons; Child Adolesc Psychiatry 2007;46:922-37. 2008:546-54.

Bottom Line A divorced parent with legal custody of a child can authorize urgent psychiatric treatment without fi rst informing the other parent. However, addressing parents’ fears and obtaining information from both parents aids treatment planning, medication management, and family therapy and can lead to a better clinical outcome.

Current Psychiatry Vol. 7, No. 8 67

67_CPSY0808 67 7/17/08 8:24:37 AM