Bad Medicine Parents the State and the Charge of “Medical Child Abuse”

206 University of California, Davis [Vol. 50:205
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.
TABLE OF CONTENTS
INTRODUCTION ................................................................................... 209
I. THE GENESIS OF MEDICAL CHILD ABUSE CLAIMS ...................... 214
A. The Rise and Fall of the Munchausen’s Syndrome by
Proxy Diagnosis ................................................................ 214
B. The Rise of the Medical Child Abuse Diagnosis .................. 218
C. Medical Child Abuse Charges Today ................................. 228
II. BAD CONSTITUTIONAL DOCTRINE: MEDICAL CHILD ABUSE
CHARGES AND PARENTS’ CONSTITUTIONAL RIGHTS .................. 239
A. Parents’ Constitutional Right to Make Health Care
Decisions for Their Children .............................................. 240
B. The Broad Definition of Medical Child Abuse and Parents’
Constitutional Rights ......................................................... 245
III. BAD LAW: THE MEDICAL CHILD ABUSE “DIAGNOSIS” AND
PARENTS’ RIGHT TO A FAIR TRIAL ............................................. 247
A. Child Abuse as a Legal Decision Rather than a Diagnostic
Determination ................................................................... 249
1. Differential Diagnosis Versus Differential Etiology ... 249
2. “Diagnosing” the Parent as Abusive ........................... 252