(1) Recognizing that it is impossible to
itemize every extraordinary medical treatment, the Department shall utilize the
following factors to determine whether a medical treatment is extraordinary:
(a) Complexity, risk and novelty of the
proposed treatment: The more complex the treatment, the greater the risk of
death or serious complications, the more experimental the procedure, then the
greater the need to determine that the treatment is extraordinary, and to
obtain parental consent or to seek judicial approval prior to authorizing
treatment. See In the Matter of Guardianship of Richard Roe
III, 421 N.E.2d 40, 53 (1981). In the Matter of
Spring, 405 N.E.2d 115 (1980). In the Matter of Moe,
432 N.E.2d 712 (1982).
(b) Possible
side effects: The more serious and permanent the side effect, the greater the
need to determine that the treatment is extraordinary, and to obtain parental
consent or to seek judicial approval prior to authorizing treatment. See
Superintendent of Belchertown State School v. Saikewicz, 370
N.E.2d 417 (1977). Rogers v. Commissioner of DMH, 390 Mass.
489, 501-502 (1983). In the Matter of Guardianship of Richard Roe
III, 421 N.E.2d 40 (1981). Custody of a Minor, 385
Mass. 697, 434 N.E.2d 601 (1982).
(c) Intrusiveness of proposed treatment: The
more intrusive the treatment the greater the need to determine that the
treatment is extraordinary, and to obtain parental consent or prior judicial
approval. See In the Matter of Hier, 18 Mass. App. Ct. 200,
464 N.E.2d 959, (1984). Superintendent of Belchertown State School v.
Saikewicz, supra. In The Matter of
Moe, supra. In The Matter of Spring,
supra.
(d)
Prognosis with and without treatment: The less clear the benefit from the
proposed treatment the greater the need for parental consent or prior judicial
approval. See Superintendent of Belchertown State School v. Saikewicz, supra;
Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982); In The Matter of
Spring, supra.
(e) Clarity of
professional opinion: The more divided the medical opinion, the greater the
need for parental consent or prior judicial approval. See In The Matter of
Spring, supra.
(f) Presence or
absence of an emergency: In a medical emergency a physician can act without
anyone's consent. See M.G.L. c. 112, § 12F.
(g). Prior judicial involvement: if a court
has been involved in past medical decisions, this argues for judicial
involvement in any future medical treatment decision, but this is not
conclusive. See In The Matter of Guardianship of Richard Roe III, supra at
56.
(h) Conflicting Interests:
Where the interests of the decision maker conflict with the interests of the
child, there is greater need for obtaining parental consent or prior judicial
approval. In the Matter of Guardianship of Richard Roe III, 421 N.E.2d 40
(1981).
(2)
No Consent by Department. The Department shall not
give its consent to extraordinary medical treatment for any child in the care
or custody of the Department. For all such children, the Department shall seek
prior judicial approval for any extraordinary medical treatment (unless
parental consent is obtained for children in the care of the Department, as set
forth at 110 CMR 11.17(3)).
(3)
Consent by Parent. With respect to a child in the care
of the Department, the right to consent to extraordinary medical treatment
shall remain with the parent(s), except to the extent such right has been
specifically limited by the legislature or by the rulings of a court or by
written agreement between the parents and the Department.
(4)
Guardianship.
The Department shall not give its consent to extraordinary medical treatment
for its ward, except where it is specifically empowered to do so by statute,
regulation or case law. In all other cases the Department shall seek prior
judicial approval for extraordinary medical treatment.
