Emergency Exception: Implied Consent on Child Medical Treatment

Week 2
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Week 2
TQ 2.1: Emergency Exception
The emergency exception, which is also referred to as the doctrine of “implied consent” according to the American Association of Pediatrics [AAP] (2011), is the legal basis that allows health professionals to take any action in the event consent is unavailable. The rule is also supported by an ethical basis, that is, the duty of the health professional to pursue that which serves the best interests of the child. In essence, the rationale behind the emergency exception is that any reasonable person would consent to an emergency treatment if they understand the severity of the emergency (AAP, 2011). Nevertheless, it is important to understand that there are some conditions provided by the AAP (2011) that must be met before the health professional proceeds with the treatment. First, the emergent condition must place the life or health of the child in danger. Second, consent must be unavailable, that is, the guardian must be unavailable or not in a position to consent to the treatment. Third, the transport or treatment of the child cannot be postponed safely until consent can be attained. Fourth, the health professional must administer care or treatment only for the condition that places danger to the life or health of the child. In essence, health professionals ought to do what they believe serves the best interest of the child.
TQ 2.2: Douglas County v. Anaya
The parents challenge the newborn screening statute on two grounds. First, it is their argument that the law violates their First Amendment right that allows them to exercise their religion freely (Supreme Court of Nebraska, 2005). Since they raised free exercise of religion alongside a parental substantive due process claim, it is their argument that they now have a hybrid-rights claim, which necessitates a strict scrutiny review (Supreme Court of Nebraska, 2005). This means that there has to be a compelling government interest to justify the law. As cited in Employment Div., Ore. Dept. of Human Res. v. Smith, for one to freely exercise their religion, it means having the right to not only believe but also profess any religious doctrine that they find desirable(Supreme Court of Nebraska., 2005). Exercising religion also encompasses carrying out physical acts. Second, it was the argument of the parents that their right to the 14th Amendment/Fundamental Liberty interests had been infringed on. In this regard, they felt that enforcing immunization on their child would be abridging their privileges as U.S. citizens.
As per the court’s conclusion, the hybrid rights claim by the Anayas did not call for a strict scrutiny analysis of § 71-519 (Supreme Court of Nebraska., 2005). The court rejected the notion of strict scrutiny since a party does not have the capacity to force the standard on the government by just proclaiming that more than one constitutional right has been violated. In addition, the court decided that it would not use a stricter standard than that used in the case of Smith to assess state regulations that are generally applicable and exceptionless. It can only do so after the Supreme Court determines that the Free Exercise Clause standards can vary depending on whether other Constitutional rights are involved (Supreme Court of Nebraska., 2005). As per the court, § 71-519 is of general applicability and neutral; therefore, its effects on the claims raised by the Anayas could be examined under a rational basis review. With the evidence for the effects of the disease being presented, the state had interests in protecting the health of all children in Nebraska.
In addition, the court noted that it has never been established by the courts before that parental rights to childbearing are guaranteed (Supreme Court of Nebraska, 2005). As such, the rights of parenthood and rights of religion have limitations.
TQ 2.3: Matter of Christine M.
Under section 1012 (f), a neglected child is one below eighteen years of age whose physical, mental, and emotional wellbeing is placed under threat by the parent's failure to exercise a minimum degree of care. The court finds that Christine is a neglected child because she is three years old and her natural parents have refused to let her get immunized (Casetext, 1992). Therefore, the failure of the parents to vaccinate was the reason by the court finds Christine is a neglected child. It is important to note that there are two tests under the section 1012 (f) of determining whether a child is neglected. First, the condition of child must be caused by the parent’s failure to provide minimum level of care. Second, the parent’s act must have resulted in the impaired condition of the child. In the case, a physician has recommended the immunization following a measles outbreak, which places her in danger of contracting the disease. Immunization is vital because the disease has the capacity of causing permanent lung damage or even death. In this regard, failure to allow immunization can be considered to be neglect because it can cause impairment. What’s more, Christine has got three older siblings who are all immunized and this makes the court feel that she should not be an exception.
TQ 2.4: Religious Exemptions
In the Matter of Christine M, the father informed the doctor that it was against his religious beliefs to have Christine immunized. In addition, the father listened to a radio presentation that discredited vaccination, which changed his previous convictions. From then on, he forbade any vaccination to be administered to his children. The court, however, rejects the father's argument that his daughter should be exempted from vaccination primarily because his opposition to vaccination is not sincere. The father clearly articulated how his religious beliefs were against inoculation. However, he failed to show that his opposition to vaccination is based on sincere religious conviction. In addition, the father failed to show that he did not merely frame his conviction from a religious point of view just to attain the needed exemption. As shown in the case, the father did recognize that the Church of God Seventh Day had no teachings in place that were against vaccination. He had also consented to the vaccination...