116 Pages Posted: 7 Dec 2016
Date Written: 2016
Doctors and hospitals have begun to level a new charge — “medical child abuse” (MCA) — against parents who, they say, get unnecessary medical treatment for their kids. The fact that this treatment has been ordered by other doctors does not protect parents from these accusations. Child protection officials have generally supported the accusing doctors in these charges, threatening parents with loss of custody, removing children from their homes, and even sometimes charging parents criminally for this asserted overtreatment. Judges, too, have largely treated such charges as credible claims of child abuse.
Despite the rising number of parents faced with these charges, this phenomenon has received no critical attention whatsoever in legal literature. This law review article is the first to explain why, as a legal matter, medical child abuse charges are deeply and fundamentally flawed. It is certainly true that the (likely few) twisted parents who intentionally use the medical system to hurt their children have committed child abuse. Yet the broad definition of MCA developed by doctors captures within its diagnostic net many loving parents making the best decisions they can for their genuinely sick children.
This article demonstrates that the broad definition of MCA developed by physicians and adopted within the child protection system violates the constitutional rights of parents to make medical decisions for their children. Meanwhile, the framing of MCA as a medical “diagnosis” turns what should be a legal decision regarding child abuse into a medical determination, in the process omitting important legal requirements. Finally, the loose diagnostic standards constructed to “diagnose” MCA rest on both flawed science and flawed medical standards. In short, the MCA theory developed by physicians and enforced by child protection officials is bad constitutional doctrine, bad law, bad science, and bad medicine. Any of these flaws in itself should be sufficient to bar the presentation of the theory of MCA in the courtroom. The presence of all these flaws leaves this conclusion beyond doubt.
Suggested Citation: Suggested Citation
Eichner, Maxine, Bad Medicine: Parents, the State, and the Charge of 'Medical Child Abuse' (2016). 50 UC Davis Law Review 205 (2016); UNC Legal Studies Research Paper No. 2880569. Available at SSRN: https://ssrn.com/abstract=2880569