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May 20th, 2009
09:59 AM ET

When parents refuse treatment for children: A legal and ethical Q&A

Editor's Note: A Minnesota judge issued an arrest warrant Tuesday for the mother of Daniel Hauser, a 13-year-old boy who is refusing treatment for his cancer, after neither she nor the boy showed up for a court appearance.

Doctors say Daniel Hauser's lymphoma responded well to a first round of chemotherapy in February.
Doctors say Daniel Hauser's lymphoma responded well to a first round of chemotherapy in February.

Anderson Cooper spoke with CNN Senior Legal Analyst Jeffrey Toobin and Arthur Caplan, Chairman of the Department of Medical Ethics at the University of Pennsylvania.

Cooper: Dr. Caplan, is this a tough call for you?

Dr. Caplan: It's not a tough call for me, Anderson. When you compel treatment, it has to be something that's well established and proven. This is. The chemotherapy success rate for the cancer that this boy has, if we can get it going soon, is about 95%. It's very, very good. You wouldn't push as hard if you had an experimental treatment or something that was iffy. Other facts, if you look at the situation with the chemotherapy, the alternative the parents proposed is well known to have a success rate of zero. So sometimes you can say, well, you know, the parents prefer surgery. We prefer chemo. Let's go with what they want first. you've got to move to save this child's life. Parental rights are strong, but they do have a limit when you're basically sacrificing your child for a religious belief that they themselves can't articulate.

Cooper: Dr. Caplan, though, it may be tough to actually give this boy treatment. He's saying he's going to kick and refuse, you know, and make it difficult for doctors to put any needles in him. How do you deal with that?

Dr. Caplan: Well, I'll tell you, I've seen these cases. What happens is, you've got the dad who's already started to come around and say maybe chemo. They'll work with a psychologist. They will try very hard to bring the boy around. And I will tell you, Anderson, there's a lot of success in sort of swaying people once they understand and see one of their parents start to waver. I've never seen a case where you actually had to strap a child down and sedate them and administer chemotherapy that way. Could happen, but most of the time when parents begin to sort of change their minds and the dad is here, you get the kid to come on, too.

Cooper: Art, are you surprised to hear that maybe the dad is starting to change his mind, or you say that's what often happens in these cases?

Dr. Caplan: It often happens that way. When you're really up against it and you start to realize the doctors are saying this is the cure and you've got to go with it, pretty soon, or you're going to miss the opportunity, one or both parents usually begin to waver. One other point, Anderson, you can sometimes get a parent who holds out to work with you, saying you pray, you do the ceremonies, healing ceremonies you want, we'll do the chemo, we can work together. That sometimes brings them around, too.

Cooper: Jeff, if they continue to refuse treatment and this boy dies, god forbid, would the parents be charged?

Toobin: They could be. Oftentimes the prosecutors exercise their discretion and say, look, they've lost a child. They've suffered enough. But the point is not to, you know, prosecute later. It's to save the kid now. That's the focus of everybody's effort. And what makes this case so excruciating is that you have a real cure here. 90-plus percent, and you have a 0% chance for the others. As art was saying, this one is a particularly easy case. Sometimes you have cases where there's only a 10% chance of saving the child. And the parents just want to take the kid home and, you know, do hospice care. That's an understandable situation under circumstances. This is not. This is, as far as I'm concerned, just child abuse.

Cooper: What's the legal precedent for something like this?

Toobin: There actually are a lot of precedents mostly involving Christian scientists, Jehovah's witnesses and virtually all the time the court says what this mother is doing while we sympathize with her pain, this is child abuse. This is the same thing –

Cooper: She could do it for herself, but it's the fact that she's making that decision for a minor.

Toobin: Absolutely. This is a minor. He is not qualified to make this decision for himself. This is what it needs to be a minor. Other people make your decisions for you, and you are not allowed to make this decision. This is the same thing as if he got hit by a car blocking the ambulance and letting him bleed to death. There is no difference. and if need be, they have to take the kid away and strap him down and put - and apply chemotherapy that way. It's horrible to think of, but it's life or death.

Cooper: In terms of what would the mom be charged with if, in fact, she is found?

Toobin: Child neglect, child abuse. It is a form of assault. It's just - you know, you are allowed to believe anything you want. And you are allowed to treat yourself in line with your own beliefs if you are an adult. But you can't impose religious beliefs on a child who has no other options.


Filed under: 360° Q & A • 360° Radar • Anderson Cooper • Ethics • Health Care • Jeffrey Toobin
soundoff (14 Responses)
  1. Pam

    I fully understand and support the right to make your own decisions when they concern your own, adult, body. But no parent has the right to essentially "force" their child to die when a cure is so obvious and available. It would be a blatant form of neglect. Religion or not, at some point we must use a little common sense. I hope they find this child before it is too late. And if they do not, then this mother should be charged with manslaughter!!!

    May 20, 2009 at 11:23 am |
  2. Chris Erickson

    This is ridiculous. Let me paraphrase what is said above:
    "You're allowed your religious beliefs, as long as you don't live them out...."

    "The minor can't make decisions for himself, and the parents can't make the decisions either, the state must make the decisions."

    I'll bet the same people who support forcing medical care on a child would also say that MINORS need a 'right to choose' for abortions, but not medical care. How hypocritical...

    As a culture, we are just teaching people to not have any belief or conviction, and to practice vast amounts of hypocracy.

    May 20, 2009 at 11:19 am |
  3. Oncocare

    What if this was an adult? Can we compare this with suicide?
    Is there any legal basis to prosecute those who promote such practice/ therapy? I see as a much bigger problem in our society and there are groups / people making billions on such therapies. Refusal of very logical and proven cancer therapy for alternative/ unproven therapy is not that uncommon.

    May 20, 2009 at 11:17 am |
  4. Brian Murphy

    I'm fine with the Judge ordering the treatment and the doctors strapping the boy down and forcing it on him as long as the doctors and the Judge are willing to be prosecuted for murder if the boy dies. Seems only fair.

    But neither of them will have the courage to make such a pledge, even with the odds 95% percent in their favor. The Judge will hide behind judicial immunity and the doctors will hide behind the Judge's order. The only person willing to take responsibility for her decision is the mother. And, of course, she is the one who will be prosecuted.

    It's just plain wrong.

    May 20, 2009 at 11:16 am |
  5. Jim Keller

    If a mother can terminate a pregnancy, even if the baby is viable, why not be able to withhold treatment of her child? I don't agree with either being ok, but if one is, not sure how you can be against the other. It seems to me to be a pro-choice issue.

    May 20, 2009 at 11:16 am |
  6. AG

    So if you and your child make a decision it is Child Abuse...But what do you call it when the courts rush in and forcefully take a child from their parents using Sheriff's and Court orders? I am sure that leaves no psychological damage to either party. One of my closest friends had this happen...they forced blood transfusions on him, against his wishes-via a court order...threatened to sedate him if he fought against it..., and the state took custody of t the child. Guess what? He died anyway despite the doctors best efforts! These doctors need to get rid of their God complex and let families make reasonable decisions about their medical treatment. In my case, my friend was doomed from the beginning...he had a very active case of Leukemia...you could have transfused him every 15 minutes and he would have still died...I guess all of the stress from the threats and court orders only helped to speed up the process. There is no shame in dying. We are all going to do it someday.

    May 20, 2009 at 11:16 am |
  7. Yuna

    I agree 100% with Toobin! As much as I believe that "adults" can choose to believe and worship as they wish, this is a child who can not make his own decisions. This is a matter of life and death situation and this woman (mom) maybe brainwashed in her "cult" of religion (because some religions are like that) but she does not have the right to choose to let her son die because of her "religion" and that's what is going to happen if this child does not get the medical treatment. Anyone who disagrees with me and Toobin and 90% of the educated world should go back to school and become educated in the facts of medical science. Heck, it's just common sense. My heart breaks for these kids who are stuck with parents that are so closed minded and unfortunately, some of them die because the parents refuse to face realtiy and would rather live in their "religious world".

    May 20, 2009 at 11:12 am |
  8. Joe

    Whatever happened to freedom of religion?

    Keep the government out of family affairs.

    May 20, 2009 at 11:12 am |
  9. Charles Felterson

    I find this an extraordinary story. I am disappointed by the lack of sympathy from both the media (Anderson Cooper), and the system(the police). My heart goes out to the mother. Completely. I am a father of four. I have a son with a congenital condition, and frankly, the farther he stays away from a hospital, the better. I have watched two loved ones, my mother and my father-in-law die in the hospital like animals to slaughter, guinea pigs, horrible deaths without dignity or peace, and everyone said it was right, but it wasn't. My mother's operation was supposed to be routine! Nobody even apologized when they killed her. She doesn't even know her grandchildren now. I wanted to do what this mother did but didn't have her courage. I didn't want to be hunted down for opposing a brutal and uncaring system with doctors, who, excuse me, are on their way to their four o'clock tee time.

    I wanted to rescue my father-in-law, who went to the best, and as sure as I'm here alive and well without a doctor, they killed him. I wanted to take him to the shoreline he loved and wrap him in a blanket and give him a Bombay Martini the way he liked it and let him die in peace if he was going to die. I wish I had done it. I wish I had taken my mother someplace beautiful to live, instead of letting her die in the hospital. A lot of people feel the way I do, but they too are afraid to end up on the wrong side of the law.

    I say good for the mother. Give me a mother's love over the hospital any day. Toobin is an idiot!

    May 20, 2009 at 10:53 am |
  10. Jim M

    Some persons may raise doubts as to the "government" getting involved with medical and other care for children and so called conflicts with parental rights. The old Roman law principal of "patria potestas", where the father had life and death authority of even adult children has been modified through the centuries.
    However, the question still remains as to the degree of that principal, especially as relating to medical treatment of a minor in the Hauser case.
    In my opinion, most state statutes do not arbitraily allow government agencies to automatically take all rights away from any parent. As in this case, the state agency is required to obtain a judicial approval. Such a judicial path does allow the parent to appeal the dicision at various levels in the court system One of the less fortunate failures of the judicial system is that most courts are not specialized. The judge is often left with conflicting evidence and may issue an order out of sympathy rather than a well grounded presentation of evidence by the state agency bringing the matter before the court.
    As we recall from the Terry Schivo case in Florida, the last entity we should have involved in making life and death decisions is the legislature. These matters should never be left to legislative majorities.

    May 20, 2009 at 10:52 am |
  11. Diane N.

    Sounds like the people initiating the treatment are the forceful abusive threatening ones. Not the mother. I also heard in the report last night that the boy had had chemo once before and he felt like it was going to kill him. How can you ignore that?? I feel like the mother is trying to protect her son from being forced this into this treatment and should be allowed to explore other options. Yes cancer is a physical disease but it is also mental. Outlook on life and how someone feels while they have the disease can have an affect on the disease it can be argued. I believe the mother has the right to protect her child if she feels that something isn't right with a situation and this situation has proven to be a lynching.

    May 20, 2009 at 10:43 am |
  12. margaret a. brown

    I refused chemo & radiation for stage 3 breast cancer. My breast was removed. If my immune system was so low for me to get cancer why would I put poison in my body or burn it. They affect every organ. I know a woman who had stage-1 cancer, she didn't have to have chemo but decided to be on "the safe side". She was dead in 6-wks from a lung infection. Doctors know little about nutrition and people blindly follow what they say about chemo like sheep. I juiced, juiced, juiced, cut out all meat. See Lorraine Day website. She is/was a doctor at San Fran Hospital. The courts are putting this child thru stress. One doesn't need stress when they have cancer. My suggestion is the parents speak with Cancer Ctr of America which emphasizes nutrition and then make a guided/informed decision. Arresting this woman for caring for HER son the way she thinks best is ludicrous.

    May 20, 2009 at 10:43 am |
  13. Angie

    Boy this makes me mad. Stop thinking that kids are science experiments. They shouldn't bare the burden that adults can not and will not endure! When the cancer returns, it should be the choice of the patient/parent. At what point does one look at quality of life? We simply have more compassion for animals!

    May 20, 2009 at 10:22 am |
  14. Michelle D . Fonthill. Ont

    My heart breaks for Daniel Hauser he is desperatley in need of treatment yet his mother does not take it seriously . It's a case of child abuse while it painful to watch your child go through this teerible disease she is not doing him any good by running off like that. The religous aspect is out the window in this case what kind of God woud not want you to have treatment or medecine for any child's well being .I pray he will return home and get the treament he needs.

    May 20, 2009 at 10:13 am |