Transcript The best way for society to deal with an identified - NOFAS

Ethical, Legal, and
Policy Issues
Competency #7
Midwest Regional Fetal Alcohol
Syndrome Training Center
MRFASTC
Competency 7: Ethical,
Legal, and Policy Issues
• This competency covers ethical,
legal, and policy issues related to
fetal alcohol spectrum disorders
(FASDs).
MRFASTC
The best way for society to
deal with an identified
pregnant binge/frequent
drinker is:
A. Counsel against drinking and recommend
voluntary treatment programs
B. Restrain her from drinking with a mandatory
treatment program
C. Restrain her from drinking with imprisonment
D. All of the above
E. Other
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IOM, 1996
Of all the substances of abuse
(including cocaine, heroin and
marijuana), alcohol produces by
far the most serious
neurobehavioral effects in the
fetus.
Institute of Medicine. Fetal Alcohol Syndrome: Diagnosis, Epidemiology,
Prevention, and Treatment (1996). National Academy Press, Washington, D.C.
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Ethical Issues
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Introduction
Confidentiality
MRFASTC
Introduction
• Basic Principles
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Autonomy—person’s right to self-determination
in making health decisions
Beneficence—seek the benefit for their patients
Non-maleficence—avoid causing harm or
minimizing harms to others
Justice—fair distribution of social benefits and
burdens
• “Respect for Persons”—honor each person’s
dignity and interests
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Confidentiality
• Essential aspect of provider-patient relationship
• Not absolute
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Exceptions when providers learn that patient
may cause bodily harm to themselves or others.
Includes learning of alcohol exposure by a
pregnant patient who risks serious harm to
herself and might also include risks to her fetus.
• Acknowledge limitations to patient
MRFASTC
Legal and Policy Issues
• Fetal rights and the maternal-fetal
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relationship
Limitations of coercive and punitive
approaches
A public health approach
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Fetal Rights and the
Maternal-Fetal Relationship
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Ethical perspective
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Evaluated in terms of personhood
- Does the fetus have human rights?
- Ethical status of fetus not settled, but well-being of each
person starts during fetal development
Legal perspective
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Federal law-fetuses are not given the legal status
of “persons,” with rare exception
State law—varies by state
Well-being—woman and fetus affected by wellbeing of each other
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Law and Order
•
Married couple in process of separating
• Wife (Jennifer) drank in her early pregnancy
• She seeks abortion; husband seeks injunction
against abortion to raise the child himself; court
finds for wife’s right to seek abortion
• Jennifer wants baby but continues to drink
• Court order given for mandatory outpatient
treatment but she violates the order
• Now court order sought for mandatory inpatient
treatment
Your task as a jury will be: Should Jennifer be
sentenced to mandatory inpatient treatment
for her alcohol use during pregnancy?
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MRFASTC
Whitner vs. State of SC
1992: Cornelia Whitner sentenced to 8 years
prison for criminal child endangerment
Baby tests + for cocaine metabolites at birth
 State recognizes viable fetus as a “person” (the
only state to interpret statutes thus, to date).
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Whitner’s sister and 2nd son
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Cornelia Whitner
• Age 14, her mother dies
• Father little known to her
• Quits school, becomes mother at age 16
• Drug dependence
• Children placed with family members
• Exchanged sex for favors, sometimes leaves
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kids with others and disappears for short times
3rd child, Tevin Dashuan Whitner, taken @ 3
days old (placed with great aunt)
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Judge Eppes
• Sentencing Whitner to 8 years
• At time of Whitner’s guilty plea, she is in drug
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counseling and baby shows no harmful
effects
He says, “Is this a crack baby? Why
wouldn’t you just take a pistol and put it
in your mouth and blow your head off?
You wouldn’t do that, would you?”
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Ferguson vs. City of
Charleston (US Sup Ct
2001)
MUSC, collaborating with local police dept and
prosecutors:
• Give certain women drug tests upon
presentation for prenatal care or delivery
• Drug tests were given (mostly) without
informed consent
• Results given to police
• 30 women were prosecuted for child abuse
based on alleged harm to the fetus caused by
drug use
(MUSC serving predominantly low income and
African American patients)
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MRFASTC
US Sup Ct Ruling
• The drug tests were a violation of 4th
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Amendment to the Constitution because
women did not give informed consent and
“immediate objective was to generate
evidence for law enforcement purposes.”
Freedom from unreasonable search and
seizure
Applies to public hospitals
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Objections to Court Rulings
ACOG, AAP, AMA, ANA, AMWA, March of
Dimes, Drug Policy Alliance
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Rulings may drive pregnant women away
from necessary care
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Now we know….
• JAMA Publication, Medline Review of 36 articles
Among children aged 6 years or younger, there is
no convincing evidence that prenatal cocaine
exposure is associated with developmental toxic
effects different in severity, scope, or kind from
the sequelae of multiple other risk factors. Many
findings once thought to be specific effects of in
utero cocaine exposure are correlated with other
factors, including prenatal exposure to tobacco,
marijuana, or alcohol, and the quality of the
child’s environment. Prenatal care and drug tx…
have been shown to optimize infant outcome.
DA Frank, M Augustyn,17
W Grant Knight, T Pell, B Zuckerman. Growth, development, and behavior in early
childhood following prenatal cocaine exposure. JAMA 2001:285:1613-25.
MRFASTC
Tennessee Reporting of Child
Abuse and Neglect: Fetuses
Risk to a fetus is not reportable to Dept of Children’s Services in
TN: State of TN Atty Gen Opinion No. 02-136 (Dec 23/02) This
statute (TN Code Ann. Sec. 37-1-403 (a)) uses the term “child”
to define upon whom harm must be inflicted to invoke the
reporting requirement; it does not use the term “fetus.” When a
fetus is to be covered by a statute, the term “fetus” is specifically
included. … See Tenn. Op. Atty. Gen. No. 95-023 (March 27,
1995) (opining that drug use by an expectant mother does not
constitute child abuse under Tenn. Code Ann. Sec 39-15-401 …
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Tennessee Reporting of Child
Abuse and Neglect: Children
If in the physician’s judgment (reasonable
suspicion) a child/children is at risk of abuse
or neglect, then ethical, legal and
professional codes require reporting to
appropriate authorities
TN DCS Policy 14.2 The reporter is free from
civil and criminal liability for reports of
suspected child abuse or neglect made in
good faith.
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Limitations of Coercive and
Punitive Approaches
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Law enforcement measures
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Wisconsin—pregnant women whose habitual drinking
exposes a fetus to substantial risks of physical harm
taken into custody for involuntary inpatient alcohol
treatment
Legal decisions
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Whitner vs. State of South Carolina (1997)—only
state that permits criminal prosecution of women for
endangerment of fetus
Ferguson v. City of Charleston (2001)—limits how
health care providers at public hospitals can intervene
to prevent fetal alcohol exposure
MRFASTC
Limitations of Coercive and
Punitive Approaches
• Acknowledgement of contributing factors in
maternal drinking
Alcohol and drug addiction are illnesses
 Women don’t intend to harm themselves and
their fetuses
 Role of treatment programs for alcohol and
drug abuse
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• Threatening and incarcerating women do not
produce a lasting reduction in risk exposure
MRFASTC
ACOG Opinion 321, 2005
Six Objections to Punitive and
Coercive Legal Approaches
to Maternal Decision Making
Maternal decision making, ethics, and the law. ACOG Committee
Opinion No. 321. ACOG. Obstet Gynecol 2005;106:1127-37.
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1. Coercive and punitive legal
approaches to pregnant women who
refuse medical advice fail to recognize
that all competent adults are entitled to
informed consent and bodily integrity.
A fundamental tenet of contemporary medical ethics is
the requirement for informed consent, including the
right of competent adults to refuse medical
intervention.
In the United States, even in the case of two
completely separate individuals, constitutional law
and common law have historically recognized the
rights of all adults, pregnant or not, to informed
consent and bodily integrity, regardless of the
impact of that person’s decision on others.
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2. Court-ordered interventions in cases of informed
refusal, as well as punishment of PG women for
their behavior that may put a fetus at risk, neglect
the fact that medical knowledge and predictions of
outcomes in obstetrics have limitations.
Women almost always are best situated to
understand the importance of risks and benefits in
the context of their own values, circumstances,
and concerns.
Fallibility – present to various degrees in all medical
encounters – is sufficiently high in obstetric
decision making to warrant wariness in imposing
legal coercion.
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MRFASTC
3. Coercive and punitive policies treat
medical problems such as addiction and
psychiatric illness as if they were moral
failings.
Although once considered a sign of moral weakness,
addiction is now, according to evidence-based
medicine, considered a disease – a compulsive
disorder requiring medical attention.
Studies overwhelmingly show that pregnant drug
users are very concerned about the consequences
of their drug use for their fetuses and are
particularly eager to obtain treatment once they find
out they are pregnant.
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4. Coercive and punitive policies are potentially
counterproductive in that they are likely to
discourage prenatal care and successful
treatment, adversely affect infant mortality
rates, and undermine the physician-patient
relationship
Various studies have suggested that attempts to
criminalize pregnant women’s behavior discourage
women from seeking prenatal care.
Threats and incarceration have been ineffective in
reducing the incidence of alcohol and drug abuse
among pregnant women, and removing children from
the home of an addicted mother may subject them to
worse risks in the foster care system.
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5. Coercive and punitive policies directed
toward pregnant women unjustly single
out the most vulnerable women.
Decisions about detection and management of
substance abuse in pregnancy are fraught with
bias, unfairly burdening the most vulnerable
despite the fact that addiction occurs consistently
across race and socioeconomic status.
In the landmark case of Ferguson v City of
Charleston, which involved selective screening
and arrest of pregnant women who tested positive
for drugs, 29 of 30 women arrested were African
American.
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6. Coercive and punitive policies create the
potential for criminalization of many types of
otherwise legal maternal behavior
Because many maternal behaviors are associated with
adverse pregnancy outcome, these policies could
result in a society in which simply being a woman of
reproductive potential could put an individual at risk for
criminal prosecution. (i.e., poorly controlled diabetes,
periconceptional folic acid deficiency, obesity, and
prenatal exposure to certain medications)
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Supporters of Non-punitive
Approaches
• American College of Obstetricians and
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Gynecologists
American Academy of Pediatrics
American Medical Association
American Nurses Association
American Public Health Association
National Council on Alcoholism and Drug
Dependence
March of Dimes
MRFASTC
A Public Health Approach
• Education and prevention as an alternative
to punitive interventions
“When you drink, your baby drinks”
 Effective use of contraception
 Preconception abstinence from alcohol
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MRFASTC
Signage Laws: An Example
of Effective Public Policy
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Signs reach broad
audiences
Opportunities for
projects
MRFASTC states
with signage laws:
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Missouri, Nebraska,
Illinois
MRFASTC
A Public Health Approach:
Challenges
• Many women do not know the dangers of
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alcohol to a fetus
Social norms tolerate or even encourage
drinking in pregnancy
Health care providers are reluctant to address
alcohol use with female patients
Lack of training
 Discomfort
 Lack of time during health visits
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MRFASTC
A Public Health Approach:
Challenges
• Drug and alcohol abuse treatment
needed for women with alcohol
dependence and abuse
• Screening by health care providers
• Few treatment options available for
pregnant women and women with
dependent family members
MRFASTC
Legal/Ethical Issues
• As practitioners, you deal with the ethical
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principles of confidentiality and autonomy
on a daily basis.
In working with families with children with
FAS, many of the legal/ethical issues you
will encounter relate to the conflict
between maternal and child rights.
MRFASTC
Ethical Issues
• Most physicians do not
report mothers who drink
during pregnancy.
MRFASTC
Ethical Issues
• Confidentiality in the patient-provider
relationship is founded on several
important elements:
 First,
on their right to privacy.
 Secondly, on their trust in you as a
necessary component of the
therapeutic relationship.
MRFASTC
Ethical Issues
• There are exceptions to confidentiality:
 The
patient is a danger to herself.
 The patient is a danger to the
community or a third party.
 The patient gives consent.
MRFASTC
Advocacy Considerations
• What is the problem you are highlighting?
• Is there a solution to it? If so, what is it?
• Who can make the solution possible?
• Whose support do you need to gain in
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order to make the solution happen?
What do you need to do or say to get the
attention of those who can make the
solution happen?
MRFASTC
What Can You Do?
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Know Local Policies, Laws
Educate
 Self: Know risks, screening, intervention options
 Health Providers: Respectful Prevention Messages,
Screening, intervention
 Society: Raise and discuss issues
Promote alcohol / drug screening
Stamp out ‘just an occasional drink’ message for PG
Recognize own biases
Listen and Empathize with at-risk women
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The best way to deal with an
identified pregnant
binge/frequent drinker is:
A. Counsel against drinking and recommend
voluntary treatment programs
B. Restrain her from drinking with a mandatory
treatment program
C. Restrain her from drinking with
imprisonment
D. All of the above
E. Other
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Summary
• Prevention education: health provider’s first
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responsibility is to prevent FASDs
Health care providers have ethical
responsibility to facilitate help for women and
her child
Ethical care, well-informed laws, and policies
strive for universal prevention measures and
benefits for those affected by FASDs
MRFASTC