One of the most common questions I receive from family members whose children or loved ones have been Baker Acted (placed in a psychiatric facility for an involuntary mental health examination) is whether the patient can refuse psychiatric medication, or “psychotropics.” I get this question most often from parents who are inclined to refuse psychiatric medications for their young children. The answer to the question is more complicated than it might seem at first blush.
The short answer is “yes.” A person has a constitutional right to refuse medication and other forms of medical treatment, and that includes the right of parents to refuse to allow that their children be medicated. For an adult, the right derives from the concept of ‘substantive due process’ as well as constitutional protections of privacy. For children, the right of a parent to refuse medication revolves around the very fundamental protections given to parents when it comes to care and child-rearing decisions regarding their offspring. The only exception to this is when the patient is posing a substantial danger to himself or others. (Alternatively, if an adult patient has been deemed incompetent to make health care decisions and has been appointed a “guardian advocate,” the guardian advocate makes medication determinations on behalf of the patient. These decisions can be challenged via petition to the court by a third-party, such as a family member or friend.)
The longer answer is, “Technically yes, but there are practical considerations, and a facility can either keep the patient longer — even though they are not supposed to do so — and may even register a complaint with the Department of Children and Family Services alleging medical abuse by the parent who refuses psychotropic medications.” I know, it’s a mouthful.
Depending on the patient’s unique circumstances, diagnosis, and needs, there are good reasons for being hesitant to permit psychotropic medications. For example, most SSRI and SSNI anti-depressant medications have “black box” warnings that they can create suicidal thoughts or behaviors in kids younger than 18 (and in some cases, younger than 24). It typically takes weeks for these thoughts and behaviors to abate, if they abate at all. In most instances, a child is not going to be at the facility longer than 72 hours (or a little longer if the end of the exam period falls on a weekend). For those kids who do experience suicidal ideation on antidepressants, the amount of time they are at the facility simply isn’t long enough for them to adjust. Therefore, the use of medications in these cases may very well make the patient worse, not better — particularly if she was admitted for suicidal behaviors in the first place.
It’s a strange circumstance, but it actually happens quite frequently. A young patient, perhaps in her preteen years, is admitted for some form of suicidal thinking or behavior. In one case I handled, a 12-year-old girl had written in her journal that she was sad due to the passing of her grandmother, and she speculated that it might be more pleasant to be in heaven with her Nana. This was deemed “suicidal behavior” by the school administration, and she was committed under the Baker Act (!). This simply wasn’t sufficient grounds to initiate an involuntary examination, but the situation only got worse when the child arrived.
She was deemed to have depression — at 12-years-old — and was placed on an antidepressant with a black box warning for…
You guessed it: suicidal thoughts and behavior. So essentially, a very young girl who was committed to a psychiatric facility for being suicidal (even though she was actually just experiencing typical childhood angst and grief) was then placed on a medication that has a common and well-known side effect of the very problem for which she was admitted.
There are other considerations that many people are sadly not aware of. The efficacy of antidepressants has been called into serious question in the past decade. While these medications may be effective for some, and generally only those with very severe and intractable symptoms, they are largely ineffective for many (if not most). In fact, one analysis demonstrated that approximately a quarter of individuals became significantly worse after being placed on SSRIs. (Don’t let the title of that study fool you; you have to dig deep to discover the significantly negative effects that these medications had on many of the subjects.)
Not only that, but the common claim that depression is caused by a “chemical imbalance” has never been proven, after decades of research trying to find such a causal link. In fact, it appears that there is no relationship whatsoever between a person’s serotonin levels and whether he or she becomes depressed. Run, don’t walk, away from any doctor who claims that you’re depressed because of “low serotonin.”
Similarly, there are some concerns about antipsychotics — sometimes euphemistically called “mood stabilizers.” These are the drugs that are commonly prescribed for people with schizophrenia and bipolar disorder. The issue here is that younger children, especially those younger than approximately 14, cannot accurately be diagnosed with either of these conditions. Behavior that may manifest as “bipolar” may be due to all manner of other factors, and putting a child on medication may interfere with his or her brain and body development.
In the early ‘00’s, one psychiatrist named Joseph Biederman popularized the diagnosis of “pediatric bipolar disorder.” Previously, it was widely accepted that there was no such thing as childhood bipolar, and that it couldn’t be diagnosed until late adolescence at the earliest. Nevertheless, the label took off. The rates of diagnosis of childhood bipolar skyrocketed, and along with the label came heavy medication such as Risperdal (risperidone, an antipsychotic) and Valproate (typically used to treat seizures). Yet both of these medications can have very severe side effects, including organ damage and, in the case of Valproate, masculinization of prepubescent girls. It was later learned that the Biederman was deliberately engaging in junk science based on pervasive conflicts of interests, and he was professionally disciplined. Nevertheless, the label has persisted.
Thus the problem with these early diagnoses is threefold: 1.) they are very likely premature and incorrect; 2.) we don’t know how long-term use of anitpsychotic and other medications might affect the development of children or their behavior in later life; and 3.) the side effects of the medications can be pretty terrible. For example, one side effect of antipsychotics called akathisia (a severe internal restlessness) can manifest in such a way that the doctor believes it is part of the underlying mental disorder. They then prescribe even more medications, possibly making the condition even worse, when the cause of the behavior is actually a side effect of the first medication.
Now, there are certain situations in which medications are absolutely necessary. Some adults might respond well to antidepressants, or were perhaps already on them prior to their admission. Some adults and children may be admitted while in the throes of an acute psychotic episode, or they may be violent and dangerous without some form of restraint. In these situations, clearly, medication must be administered for the well-being of the patient. However, there is nothing wrong with being skeptical and cautious about acquiescing to psychotropics.
I mentioned above that there are practical considerations. While individuals have a constitutional right to refuse medications in most cases, it must be kept in mind that the doctors and treatment staff hold almost all of the cards during the patient’s stay. They can make indications in the clinical record and even testify during a hearing to behaviors that they claim justify a longer stay in the facility. One of their buzzwords is “medication noncompliant,” which signals to a magistrate or judge (who may be unfamiliar with the patient’s needs or history or the general facts about psychotropics) that the person is unwilling to submit to necessary treatment. Therefore in practical terms, refusing medication might extend a person’s stay — even though this is not technically supposed to happen.
And finally, as noted above, a parent who refuses medications for a child may even be referred to DCF for committing medical abuse against a child. In fact, this is located in one of the DCF’s policy manuals concerning the Baker Act:
“In the case of a minor whose parent’s refusal to consent to medically necessary treatments that might rise to the level of ‘medical neglect,’ a report to the DCF Abuse Registry should be made.”
That’s right: if you refuse to allow medication for your child, and the facility deems it “medically necessary,” they may just report you for child abuse. And it cuts both ways. I have seen an adult patient who was threatened with having her children taken away by DCF if she didn’t submit to further treatment, including medications that she did not wish to take. This was not a person who was psychotic or having any sort of episode that would absolutely require medication, but rather a woman who was going through an intermittent period of depression.
So, back around to the original question: can a person refuse medication? A patient can technically refuse medication, and a parent can refuse on behalf of a child. But there may be consequences, such as a longer stay or a report of abuse to the authorities. This is why it is so important to ensure that you have competent legal representation when a loved one ends up in a Baker Act facility. Our firm has specialized expertise not only in the Baker Act, but in the medications that the patient may encounter and legal rights and considerations when it comes to accepting medication treatment. Give us a call at (407) 706-3967, email us at info@parrislaw.org, or fill out our contact form and we will walk you through what you need to know.
