Medical Treatment Decisions for Children in DCF Custody

 Case Summaries



Baird v. Attorney General, 371 Mass. 741 (1977)

This case concerned the statute governing consent for abortion for minors.  The SJC recognized  the “mature minor” doctrine.  The court held that where the best interests of a minor will be served by not notifying his or her parents of intended medical treatment, and where the minor is capable of giving informed consent, the minor may consent to the treatment.  No judicial involvement is required, but court approval may be sought, and if it is, the judge “may give effective consent” to the treatment.


Belchertown v. Saikewicz, 373 Mass. 728 (1977)

At issue in this case was whether to provide life-prolonging treatment to an elderly, profoundly retarded person with terminal leukemia.  The SJC recognized the general right of persons to refuse medical treatment in appropriate circumstances.  A person faced with a terminal illness has the right to refuse life-prolonging treatment.  Where a person is incompetent to exercise that right, the court must make a substituted judgment determination, i.e., what that person would decide if he were competent.  In these proceedings, a guardian ad litem should be appointed to represent the interests of the person.  The guardian ad litem, after a thorough investigation, should present all reasonable arguments in favor of administering the treatment, to ensure that all viewpoints and alternatives are considered.


Super. of  Worcester v. Hagberg, 374 Mass. 271 (1978)

In a proceeding to involuntarily commit a person to a mental health facility, proof beyond a reasonable doubt is required.


Custody of a Minor, 375 Mass. 733 (1978)

In this case, parents refused chemotherapy treatment for their child who was diagnosed with leukemia, in favor of alternative treatment.  The SJC held as follows:  A care and protection petition under c.119, §24 is properly filed where parents are refusing to consent to life-saving treatment for their child (the probate and superior courts also have equitable jurisdiction to hear such a matter).  The state has a compelling interest in promoting the welfare of children and in the preservation of life, and as such a court may order medical treatment for a child over parental objections where the treatment is necessary to save the child’s life.  Where person is incompetent to consent to treatment “by reason of his tender years”, the substituted judgment doctrine is consistent with the “best interests of the child” test.  The best interests test is “objective”; the decision is not made by the child, but on behalf of the child


In re Dinnerstein, 6 Mass. App. Ct. 466 (1978)

The Appeals Court held that a physician may enter DNR order on chart of incompetent adult without first obtaining a court order where person has an unremitting, incurable mortal illness.



Custody of a Minor (No. 3), 378 Mass. 732 (1979)

In this follow up case to Custody of a Minor, 375 Mass. 733 (1978), the SJC stated that in the case of a child, the substituted judgment doctrine and bests interests test are “essentially coextensive, involving examination of the same criteria and application of the same basic reasoning.”


Doe v. Doe, 377 Mass. 272 (1979)

A petition for guardianship of an incompetent adult with authority to admit under c. 201, §6, must meet same standard as a commitment under c.123, namely proof beyond a reasonable doubt of a likelihood of serious harm.


In re Spring, 380 Mass. 629 (1980)

The SJC affirmed a lower court order withholding life prolonging treatment from an elderly, incompetent person with terminal kidney disease.  The SJC discussed the importance of expediting these cases, and ways to expedite appellate review.


Commonwealth v. Nassar, 380 Mass. 908 (1980)

Parents charged with manslaughter in the death of their child were found not guilty by reason of mental illness and civilly committed.  The SJC held that the involuntary commitment of a mentally ill person requires that there be no less restrictive alternative.


Guardianship of Roe, 383 Mass. 415 (1981)

Case concerned administration of antipsychotic medication to a mentally ill adult living in the community.  The SJC held that the court must make substituted judgment determination.  There is no bright line test for which treatments require judicial determination.  The factors to consider include: extent of patients’ mental impairment; whether patient in custody of state institution; prognosis with and without proposed treatment; complexity, risk and novelty of proposed treatment; possible side effects; patient’s level of understanding and probable reaction; urgency of the decision; consent of patient, spouse or guardian; good faith of those who participate in decision; clarity of professional opinion as to what is good medical practice; interests of third persons; administrative requirements of any institution involved; intrusiveness of proposed treatment; nature and extent of prior judicial involvement; likelihood of conflicting interests.


Antipsychotic medication falls within category of treatment requiring judicial consent because it is: mind-altering, likelihood of severe and irreversible side effects, and because it is used for control and discipline (and unintentionally misused as a result of ignorance or inadequate resources).


The SJC also defined when an emergency situation exists.  Relying on Websters’s it stated that an emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action”; “a possibility of immediate, substantial and irreversible deterioration of a serious mental illness.”  The possibility that the patient’s condition might deteriorate into a chronic, irreversible condition at an uncertain but relatively distant date is not an emergency;.  Further, in determining whether “immediate action” is required, the relevant time period begins when the claimed emergency begins, and ends when individual with reasonable diligence, could obtain judicial review of proposed action “This time period will be brief, “expedited decision can be obtained when appropriate.”


A substituted judgment determination is what that person would decide if he or she were competent and must reflect to the greatest degree possible the values and preferences of the individual.  It is subjective, not objective.  The doctrine is rooted in the rights of competent persons to refuse treatment.  The way to extend that basic right to an incompetent person who is unable to make an informed decision, is by trying to get as close as possible to what person would decide.


Factors to consider in making substituted judgment include (not exclusive list, may not all be applicable in all cases): expressed preferences; religious beliefs; impact on family (the preferences of family per se are irrelevant except to extent person would consider them in making his or her decision); probability of adverse side effects; consequences if treatment refused (presumes that more likely the consequences will be dire, more likely person would consent, but not controlling, competent persons refuse life saving treatment all the time); prognosis with treatment (consider both the extent of benefits expected and the likelihood of their occurring.  The judge’s findings should address each of these six factors and any other relevant factors.  The judge should prepare written findings for each factor; each factor should include the pros and cons of treatment and must analyze the relative weight of the findings.


There are some circumstances where state interest overrides right to refuse treatment.  The state’s interest include preservation of life, protection of interests of innocent third parties, prevention of suicide, and maintaining the ethical integrity of the medical profession.   General interest in residents functioning to the maximum level of their capacity does not outweigh fundamental right to refuse treatment.  If substituted judgment determination is that patient would refuse treatment, may only administer where state interest overrides.  Where state interest in protecting public safety is of sufficient magnitude to override right to refuse, must be proved beyond a reasonable doubt.


In re Mary Moe, 385 Mass. 555 (1982)

The probate court may order sterilization of an incompetent person if it determines, using the substituted judgment doctrine, that the person would choose sterilization.  In such proceedings, the guardian ad litem appointed to represent the person “should present all reasonable arguments in favor of the court’s denial of the petition, so that “all viewpoints and alternatives will be aggressively pursued and examined at the subsequent hearing.”


Bradley v. Comm’r of Mental Health, 386 Mass. 363 (1982)

In this case, the patient no longer was a candidate for placement at Bridgewater but was in need of “intermediate” secure facility which patient alleged DMH did not have.  The SJC held that where patient entitled to transfer to less secure facility, court may enter order directing patient be committed to a facility designated by DMH and declaring DMH’s obligation to provide a suitable facility.  If DMH unable or unwilling to provide ordered “suitable facility” court may order DMH to provide particular facility to patient.


Thompson v. Commonwealth, 386 Mass. 811 (1982)

In a c.123, §9(b) petition by a mentally ill person seeking release from a mental hospital, the  burden of proof is on the petitioner.




Custody of a Minor (No. 1), 385 Mass. 697 (1982)

Where abandoned child is in the custody of DSS pursuant to c.119, §24 & 26, the juvenile court has authority to issue a no code order.  Decision whether to withhold life-prolonging treatment from terminally ill child is based on substituted judgment decision; where the child is of tender years this standard is consistent with the best interests of the child test.


Harnish v. Children’s Hosp., 387 Mass. 152 (1982)

Every competent adult has right to refuse treatment.  Knowing exercise of this right requires knowledge of the available options and risks of the treatment.  This is the doctrine of informed consent.  In order for a competent adult to exercise this right, the physician must inform the patient of all significant medical information that the physician possesses or should possess that is material to an intelligent decision.  This may include: nature of the patient’s condition, the nature and probability of risks involved, the benefits to be reasonably expected, the inability of the physician to predict results, if that is the situation, the irreversibility of the procedure (if so), the likely result of no treatment, and the available alternatives, including their risks and benefits.


Hashimi v. Kalil, 388 Mass. 607 (1983)

The 14 day-time limit to hold hearing on petition for civil commitment is mandatory.


Rogers v. Comm’r of Dep’t of Mental Health, 390 Mass. 489 (1983). 

This case concerned the administration of antipsychotic medication to a person involuntarily committed to a mental hospital.  The SJC held as follows:  A person involuntary committed to a mental hospital is presumed competent to make treatment decisions.  Incompetence must be determined in accordance with the statutory definitions, see G.L. c. 201, §6, that person is incapable of taking care of himself by reason of mental illness.  If the court determines the person is not competent, then the court must make a substituted judgment determination.  Parties must be given adequate notice, an opportunity to be heard, and to purse an appeal.  A guardian ad litem should be appointed and the opinions of experts gathered so that all views are presented to the judge.  The judge may delegate to the guardian power to monitor the treatment plan.  The Court restates the factors to consider in determining whether or not a substituted judgment determination must be made (i.e. what is extraordinary treatment).  If treatment is ordered, the court should authorize a specific treatment plan.  The order should provide for periodic reviews.


In a nonemergency situation, there is no state interest sufficiently compelling to override the person’s decision to refuse treatment with antipsychotic medication.  There are two types of emergencies, in which antipsychotic medication may be administered without the patient’s consent.  The first is as a chemical restraint.  Defines “chemical restraint” as antipsychotic medications prescribed against person’s will for the benefit and protection of others under the  state’s “police power”.  May be administered only in accordance with statutes and regulations in an emergency.  Patient must pose imminent threat of harm to self or others and there must be no less intrusive alternative.  Predictable crises are not emergencies.  Antipsychotic medications also may be administered against person’s will to prevent an immediate, substantial and irreversible deterioration of a serious mental illness under the state’s “parens patriae” powers.  “Interim’ treatment may be provided.  If doctors determine should continue, must seek court determination.




DYS v. a Juvenile, 398 Mass. 516 (1986)

Upholds constitutionality of c.120, permitting youth over 18 to be committed to DYS secure facility if they are dangerous to the public as a result of their mental illness and applies standards and definitions from c.123.  Where psychiatrist did not give Lamb warnings to youth, order of commitment was reversed.


Norwood Hospital v. Munoz, 409 Mass. 116 (1991)

The mother of a minor child refused blood transfusion for herself on religious grounds.  The SJC held that a competent adult has right to refuse medical treatment, where there was no evidence that her child would be left without care in the event of her death.


In re McCauley, 409 Mass. 134 (1991)

Court may order blood transfusion for 8-year old over parents’ religious objections.  Test to be applied is best interests of the child.


Guardianship of Weedon, 409 Mass. 196 (1991)

Where antipsychotic medication is ordered as part of a substituted judgment determination under c.201, §6, the order must provide for periodic review and include a termination date


Guardianship of Doe, 411 Mass. 512 (1992)

Using substituted judgment doctrine, court ordered removal of feeding tube from woman in a permanent vegetative state who had been profoundly mentally retarded since birth.


Care and Protection of Beth¸412 Mass. 188 (1992)

In this case a 5-year old child was in a permanent vegetative state as a result of a car accident.  Both the child and her mother (who also was a minor) were in the custody of DSS.  The court,  applying the substituted judgment doctrine, held that a “do not resuscitate” order should be entered.


D.L. v. Comm’r of Social Services, 412 Mass. 558 (1992)

In this case, plaintiff’s challenged DSS regulations authorizing it to consent to admittance of a child in its custody to a mental health facility for up to 90 days and requiring judicial review for longer stays.  The SJC upheld the regulation.  The Court reasoned that if DSS did not have such power, that children in its custody would be at a substantial disadvantage compared to children in the custody of their parents, who can admit their children without delay.  The Court did not address the standard for judicial review after the 90-day period.


Guardianship of Brandon, 424 Mass. 482 (1997)

This case concerned the use of aversives as part of a treatment plan for a severely disabled man.  The SJC held that at periodic reviews of substituted judgment treatment plans, the standard of review is whether the person’s condition and circumstances have substantially changed since the order was entered.


In re Rena, 46 Mass. App. Ct. 335 (1999)

A hospital sought an order for blood transfusion for a 17 year old over the religious objections of the teen and her parents.  Competent adults may refuse life saving treatment (citing Norwood Hosp. v. Munoz).  A court may order life preserving medical treatment of minor over parent’s objections after weighing the interests of the parents, the state and the child (citing In re McCauley, Custody of Minor).  In determining the child’s best interests, court should apply the same criteria as in making substituted judgment determinations (citing Car and Protection of Beth).


In assessing the child’s expressed preference, religious convictions and present and future competency, the judge should consider the maturity of the child to make an informed decision.  The Court does not reject the best interests test (compare fn. 2 citing Illinois and Maine case law and Mass abortion statute), but says that the judge must make a determination as to the minor’s maturity to make an informed decision, and in determining best interests must evaluate the evidence in light of the minor’s maturity.  Also, the  judge erred by relying on the representations of the child’s counsel and not hearing the child’s own testimony.


Shine v. Vega, 429 Mass. 456 (1999)

A competent adult may refuse life-saving treatment even in a life-threatening emergency.


In re Laura, 54 Mass. App. Ct. 853 (2002)

The Appeals Court held that statements made by an individual to a psychotherapist during a court-ordered examination may be admitted in a proceeding to involuntarily commit the person under G.L. c. 123, §12(e) only if the judge first finds that the person knowingly and voluntarily waived her privilege pursuant to Commonwealth v. Lamb, 365 Mass. 265 (1974).  Id. at 858-860.  In this case the mother of a child involved in a care and protection case in the Juvenile Court was arrested on a warrant and brought to court for an evaluation pursuant to G.L. c.123, §12(e).  Although the evaluator testified that he gave her the Lamb warnings, he stated that she seemed to have difficulty understanding the warnings.  The Appeals Court held that at this point the judge sua sponte should have made an inquiry into whether the mother actually understood and knowingly waived her rights.  Id. at 858.


Care and Protection of Sharlene, 445 Mass. 756 (2006)

In this case DSS had obtained temporary custody of Sharlene (11), who was hospitalized and in an irreversible vegetative state as a result of certain injuries.  (The child – the subject of considerable media coverage – has since emerged from the “irreversible” vegetative state.)  DSS and child’s counsel jointly requested that the child’s health care providers withdraw life support measures and make no attempt to resuscitate her (“DNR order”).  The stepfather – who was criminally charged with assault and battery on the child – sought standing to object to the DNR order.  He filed a motion, which the court denied, seeking to be declared the child’s de facto parent.  He was allowed to attend, but not participate in, a hearing at which the court allowed the motion, and ordered that its decision be impounded and not disclosed to the stepfather.  The court subsequently allowed the stepfather access to the order, but excluded the general public.  The stepfather filed a petition to the single justice under G.L. c. 211, § 3, challenging the denial of his request for de facto parent status, seeking a new hearing on the DNR order at which he would have a voice, and arguing that the public should have access to all proceedings and records in the case.


The SJC affirmed the Juvenile Court’s orders denying the stepfather de facto parent status and denying public access to the proceedings.  It also affirmed the DNR order, holding that the Juvenile Court properly applied the substituted judgment standard.  According to the SJC, “if Sharlene could rationally consider her current medical condition, and her future prognosis, she would accept the joint request of the department and her counsel to enter the [DNR] order.”  445 Mass. at 769-70.  The SJC noted that no one – other than the stepfather, who lacked standing – opposed the order.  Id. at 770 n. 16.


In addition, the court rejected the stepfather’s argument that the proceeding should be open to the public.  The Court reasoned that the Legislature had expressly directed that all care and protection proceedings be closed to the public under G.L. c. 119, § 38, and the Juvenile Court’s Standing Order 1-84, approved by the SJC, makes all case records property of the court.  These protections, according to the Court, are necessary to safeguard the privacy of the child and her siblings (who were part of the underlying case but not parties to the DNR proceeding), “so that they may grow and become adults without unnecessary stigma associated with this case.”  Id. at 772.  The SJC mentioned in a footnote that, in order to seek relief from the Standing Order, a party would have to file a motion, supported by an affidavit, pursuant to Rule 11 of the Uniform Rules on Impoundment Procedure (2005), which applies to cases where material is required to be impounded by statute, court rule, or standing order.  Id. at 772 n. 18.