Can A Minor Refuse Lifesaving Medical Treatment? A Discussion Of In Re: Cassandra C.

Governor Malloy recently reappointed former state Supreme Court Justice Joette Katz as Commissioner of the Department of Children and Families (“DCF”), reflecting his faith in her ability to run the critically important, but much maligned, agency. And, by accepting that reappointment, Katz revealed that she is either a saint or a glutton for punishment.

The punishment may continue (undeservedly so in my humble opinion) as the public learns more about a case that the Connecticut Supreme Court will hear, on an expedited/emergency basis, this Thursday, January 8.  The case, In re Cassandra C., involves a now 17-year-old girl who was diagnosed last September with cancer, specifically, high-risk Hodgkin’s lymphoma. (Several media entities reported on the case over the past few days. However, the existence of the expedited appeal has been reflected on the Supreme Court’s electronic docket since mid-December.)

As Cassandra’s attorneys acknowledge in their appellate brief, “[t]he uncontroverted testimony of several medical professionals indicated that Cassandra’s disease, if treated with chemotherapy, presented an 85% chance of survival, but if left untreated, presented a near certainty of death within two years.” See Joint Brief of Respondent Mother and Minor Child (“Joint Br.”) at 2 (emphasis supplied). The problem is Cassandra apparently doesn’t want the chemotherapy that will almost certainly cure her. She apparently prefers virtually certain death. And Cassandra’s mother won’t consent on her behalf. Neither Cassandra’s nor her mother’s objections to the treatment are religiously-based.  See Brief of Petitioner-Appellee (“DCF Br.”) at 18. They just don’t want the life-saving treatment.

Cassandra lives with her mother. Cassandra’s parents are divorced and her father plays no meaningful role in her life. After Cassandra developed a mass on the right side of her neck last spring, the mother repeatedly failed to bring Cassandra to medical appointments concerning the diagnosis of the mass, repeatedly fought with her doctors over the accuracy of their eventual diagnosis in September 2014, and repeatedly argued with the doctors over how they communicated Cassandra’s diagnosis to her. (The facts the trial court found concerning the mother’s conduct are set forth in detail in DCF’s appellate brief.  See DCF Br. at 2-8.)

The mother’s neglect of Cassandra’s dire medical condition led Cassandra’s doctors to refer the matter to DCF, which then petitioned the trial court for an order of temporary custody. After evidentiary hearings at which Cassandra, her mother and Cassandra’s treating physician testified, the trial court determined that neither the mother nor Cassandra were competent to make medical decisions regarding Cassandra’s care and treatment. Accordingly, the trial court granted temporary custody to DCF and authorized the agency to act as Cassandra’s medical decision maker. In short, the trial court determined that the mother’s conduct constituted unlawful “neglect” of her daughter’s physical welfare and that Cassandra herself was not competent to make decisions concerning her medical treatment.

Cassandra and her mother then filed the appeal that the Supreme Court will hear on January 8. Their central claim is that the Supreme Court (not the legislature) should exercise its common law authority to recognize the “mature minor” doctrine. As a general rule, adults have the legal right to refuse medical treatment, including life-saving care. However, the law deems minors legally incompetent to make decisions concerning their medical care and treatment. Thus, parents generally provide the necessary consent doctors need to provide treatment to minor children. Under the mature minor doctrine, however, a minor child may present evidence to a court that, notwithstanding her age, she is nonetheless sufficiently competent to make medical decisions for herself. The doctrine has been recognized in a number of states, but not Connecticut, and it is frequently (but not exclusively) invoked in very different circumstances, such as medical malpractice-type cases where a minor who sought care from a physician then sues the doctor for “battery,” alleging that she (the minor) lacked the capacity to consent to the treatment she requested. See DCF Br. at 24.

The legal issue Cassandra and her mother raise on appeal is a serious one.  But, the issue faces several significant obstacles. As someone once said, the devil is in the details.

First, DCF argues that whether Connecticut should recognize the mature minor doctrine is really a question for the legislature, not the courts.  DCF Br. at 21-23.

Second, neither Cassandra nor her mother raised the mature minor doctrine in the trial court. That is, their attorneys never asked the trial court to recognize and apply the doctrine. Indeed, Cassandra’s attorneys candidly admit that the “claims made in this appeal are largely unpreserved.” Joint Br. at 4, n.3. The general rule in Connecticut, and elsewhere, is that an appellate court cannot consider claims that a party failed to raise in the trial court in the first instance. Cassandra’s attorneys ask the Supreme Court to make an exception to that rule given the emergency nature of the case and because the issues “involve the potential adoption of ‘judicial procedures. . . that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” Id.

The third obstacle is that, given the trial court’s factual findings, formal recognition of the mature minor doctrine may not make any difference in this case. When Cassandra filed her appeal and noted in her appellate papers that she intended to raise the mature minor doctrine for the first time on appeal, DCF filed a document called a “motion for articulation” with the trial court. (Such motions are frequently filed in cases that have been appealed.) The motion asked the trial court to articulate its reasoning further regarding its decision to grant DCF decision-making authority over Cassandra’s medical care. Specifically, DCF asked the court to address two questions:  (a) The extent to which the trial court credited the testimony of Dr. Isakoff (Cassandra’s treating physician) in which Dr. Isakoff indicated that Cassandra did not have the capacity to make sound medical decisions concerning her cancer treatment, and (b) To the extent that the child and the respondent mother have raised the “mature minor doctrine” on appeal, whether the trial court made a finding that the child was a mature minor? Cassandra and her mother opposed this motion, arguing that DCF was “estopped” from asking for an articulation and that the evidence before the trial court, on which the articulation would be based, was “inadequate to make such a determination.” The trial court rejected the opposition and issued the following articulation:

Question A:

The court finds credible the testimony of Dr. Isakoff, the treating oncologist. He stated that Cassandra did not have the capacity to make sound medical decisions concerning her cancer treatment. His testimony and demeanor in court demonstrated his caring and thoughtful concerns for this adolescent. He spoke of the life threatening nature of Cassandra’s cancer and that she had no chance of survival without treatment. With treatment, it is a curable disease and her five year survival chances, based on clinical trials, are excellent. In view of all the information which had been provided to Cassandra, her apparent willingness to undergo treatment while secretly knowing she would not, the consequences of such behavior on the efficacy of future treatment, and the totality of all the facts she knew, Dr. Isakoff concluded that she did not have such capacity. And the court agrees and so finds.

The court observed Cassandra’s demeanor at trial as well and saw how closely she followed her mother’s testimony and hung on her every word. The DCF investigations worker testified on November 12, 2014 that Cassandra and her mother are close. She noted that Cassandra’s mother did not appear to be in support of the chemotherapy and that Cassandra is concerned about going against what her mother would like to see happen.  On December 9, 2014, Cassandra’s mother testified that Cassandra is a bright intelligent girl and that she can make her own decisions. She stated she believed it was Cassandra’s right as a human being to decide whether to accept chemotherapy. She asserted her daughter was competent and old enough.

Such assertions are problematic, however, and without adequate support in the testimony and facts of this case. The doctors had reported to DCF that Cassandra’s mother dominated most medical appointment conversations, during which Cassandra was withdrawn and not participating a great deal. The record is replete with her mother’s arguments with physicians about the diagnosis, her seeking three separate opinions about the diagnosis, attempting to change pediatricians and delaying follow-up appointments and needed treatment. The court concludes that Cassandra’s mother has engaged in a passive refusal to follow reasonable medical advice for her mortally ill child. Her refusal brought about the physicians’ referral to DCF in the first instance. Cassandra is a child that has been home schooled since the ninth grade and is totally dependent on her mother, her sole caretaker, as her father is not involved in her life. She has no siblings. She does not possess the necessary level of maturity or independence to make life and death decisions about her own medical care, as demonstrated both by her conduct and her behavior subsequent to the initial court order.

The court finds, from the testimony and its observations of both the mother’s and Cassandra’s demeanor at trial, that Cassandra is overshadowed by the strong negative opinions her mother holds about her cancer diagnosis and treatment, including chemotherapy.

Question B:

The second question concerning Cassandra’s maturity is, in large part, answered by the court’s findings above. The court has only heard brief testimony by the mother concerning Cassandra’s maturity. The court gives greater weight to the testimony that she is not very mature. The physician’s thoughtful assessment of her capacity, the court’s own observations of the parties and the witnesses, the observations of the DCF investigations worker and Cassandra’s own actions all support the conclusion that she is an immature seventeen year old. She is not yet fully separated or independent of her mother. She engages in compulsive and risky actions and is unable or unwilling to speak her true mind to those in authority. While the court does not conclude that her mother has coerced her into her present position of refusing treatment, the court does find that her life circumstances make it difficult for her to hold opinions her mother does not share.

The court finds, from all the facts, that Cassandra is not a mature minor. She is as yet incapable of acting independently concerning her own life threatening medical condition. And time is running out for the recommended course of treatment to have a positive outcome for her future.

See DCF Br., Attached Appendix at A7-A10.

On appeal, Cassandra and her mother challenge these factual findings in several ways.  Initially, they argue that the trial judge had no basis on which to make these findings because the mature minor doctrine issue “was not presented to her and the doctrine has yet to be accepted or defined under Connecticut law by the [Supreme] Court.” Joint Br. at 15.  Of course, the issue was not presented to the trial judge because Cassandra and her mother never raised it in the trial court. Nevertheless, before Cassandra had filed her appeal, DCF had requested an evidentiary hearing to consider Cassandra’s competency to make medical decisions. That hearing was held on December 9, 2014. DCF Br. at 33-34. As previously noted, DCF also asked the trial court to further articulate its findings concerning that hearing when Cassandra and her mother filed their appeal papers and made clear they intended to raise the mature minor doctrine on appeal for the first time.

Next, Cassandra and her mother argue that the “putative competency hearing in this case did not consist of the type of evidence needed to make an informed competency assessment. Indeed, there was not a psychological evaluation or any expert testimony from a psychiatrist or psychologist proffered. . . .” Joint Br. at 32 (emphasis supplied). Again, neither Cassandra nor her mother ever attempted to offer such evidence. DCF also notes in its brief that although Cassandra and her mother assert that the mature minor doctrine requires testimony by a psychiatrist or psychologist, “they have cited no authority that [such] testimony is a necessary condition to determine the child’s competency or maturity to make medical decisions on her own behalf.” DCF Br. at 35.

This last point–whether the mature minor doctrine requires expert testimony by a psychiatrist or psychologist concerning the competency of the minor–is really the nub of this appeal. DCF argues that such testimony, while certainly permissible, is not required. If the Supreme Court agrees to consider the issue even though it was not raised below, if it adopts the mature minor doctrine, and if it agrees that the doctrine absolutely requires such testimony, the result is not a decision that Cassandra can reject life-saving treatment. Rather, the case will have to be remanded to the trial court for another evidentiary hearing at which Cassandra will be entitled to present expert psychiatric and/or psychological testimony of her competence to make medical decisions. She will likely bear a heavy burden of proving her competence by “clear and convincing evidence.” DCF Br. at 20. DCF will be entitled to present its own experts. The trial court will have to decide who to believe, subject to the difficult burden of proof.

I have long since abandoned predicting the outcome of appellate cases. We’ll just have to wait and see what the Supreme Court does with In re: Cassandra C. The issues raised are serious, but they face significant obstacles. The ACLU has submitted an amicus brief in support of Cassandra and her mother. Whatever the outcome, I sincerely hope and pray that Cassandra ultimately lives a long, happy and healthy life.