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

210 University of California, Davis [Vol. 50:205
than sixteen months and two birthdays out of her parents’ custody,
much of it in BCH’s locked psych ward where she was allowed to see
her parents just one hour a week, Justina was finally returned to her
parents in June 2014, far sicker than when she entered. 11
The Pelletier case is just one of a rising number of cases in which
doctors are asserting MCA. Two doctors first suggested this label in
the mid-1990s, 12 but it has only recently taken significant hold in the
child abuse medical community. 13 Proponents of this new “diagnosis”
argue that parents who seek medical care that a doctor deems
unnecessary are committing child abuse, and doctors should report
them as such to child protection officials. 14 The fact that the child has
genuine medical diagnoses does not exclude an MCA diagnosis. 15
Neither does the fact that another doctor ordered the challenged care,
and often still believes it is necessary. 16
Some hospitals are now using the threat of reporting MCA to child
protection officials in order to coerce parents to accept care plans
drafted by the hospitals’ doctors, even when the parents do not believe
these plans are in their children’s best interests. 17 In cases in which
11 See Neil Swidey & Patricia Wen, Justina Pelletier Heads Home After Judge Ends State
Custody, BOS. GLOBE (June 17, 2014), http://www.bostonglobe.com/metro/2014/06/17/
judge-orders-custody-justina-pelletier-returned-parents/mDWtuGURNawSuObO0pDX4J/
story.html# [hereinafter Justina Pelletier]; Swidey & Wen, Frustration on All Fronts, supra
note 2 (noting that Justina’s parents would be allowed “just a single hour-long visit each
week”); see also Joshua Rhett Miller, ‘Awesome!’ Justina Pelletier Shouts on Way Home to
Family After 16-Month Ordeal, FOX NEWS (June 18, 2014), http://www.foxnews.com/
politics/2014/06/18/connecticut-girl-at-center-medical-dispute-faces-long-recovery-roadfamily-says/
(quoting Justina Pelletier’s mother: “[a]nd hopefully she’ll walk again — I’m
not sure.”).
12 See THOMAS A. ROESLER & CAROLE JENNY, MEDICAL CHILD ABUSE: BEYOND
MUNCHAUSEN SYNDROME BY PROXY 46-47 (2008).
13 See Swidey & Wen, Medical Collision, supra note 2 (“[T]he term ‘medical child
abuse’ . . . has taken hold in the medical world just in the last few years.”).
14 See, e.g., ROESLER & JENNY, supra note 12, at 1 (arguing that this behavior “is
simply a form of child abuse”).
15 See id. at 149 (“Seventy-four percent of the medically abused children had
actual illness but also received harmful medical care that was not required.”).
16 The charges of medical child abuse against Justina Pelletier’s parents involved such a
dispute. See supra notes 2–11 and accompanying text; see also Neil Swidey, The PANDAS
Puzzle: Can a Common Infection Cause OCD in Kids?, BOS. GLOBE (Oct. 28, 2012),
https://www.bostonglobe.com/magazine/2012/10/27/the-pandas-puzzle-can-commoninfection-cause-ocd-kids/z87df6Vympu7bvPtapETLJ/story.html
(As attorney Beth Maloney
framed the issue to a judge in one MCA case: “What we have is an argument within the
medical community about whether infection can cause behavioral disorders and mental
health issues. . . . And Boston Children’s Hospital is going to work that out on the backs of
parents in your courtroom.”).
17 See infra note 125 and accompanying text.