Northeastern University School of Law Legal Skills in Social Context Social Justice Program Prepared for: The Office of the Child Advocate Court-Ordered.

Northeastern University School of LawLegal Skills in Social ContextSocial Justice ProgramPrepared for:The Office of the Child Advocate

Court-Ordered Consent: Revisiting the Rogers

Process for Children in State Custody

Opinions or recommendations in this report do not necessarily represent the official position of the Office of the Child Advocate, the Rogers Working Group, any agency of the Executive Office of Health and Human Services, Massachusetts Juvenile Court Department, Northeastern University School of Law or Tufts University.

Opinions or recommendations in this report do not necessarily represent the official position of the Office of the Child Advocate, the Rogers Working Group, any agency of the Executive Office of Health and Human Services, Massachusetts Juvenile Court Department, Northeastern University School of Law or Tufts University

Child enters DCF custody, either with an existing prescription for antipsychotics, or the child is prescribed them once in DCF custody

DCF submits a request to the court for a GAL

Court appoints a Rogers GAL and schedules a Rogers hearing

GAL conducts investigation, meets with child, psychiatrist, social worker, etc.

GAL submits report to the court.

Doctor writes affidavit regarding the prescription, submits it to the court.

Court hearing is held, judge reviews GAL's report & prescriber's affidavit. Judge also hears statements or objections from child or parents if there are any.

Judge will approve or deny the requested prescription.

Judge will review the Rogers order at a time determined when initial approval was given

Rogers Process: Step by Step

Interviews Conducted: Legal Stakeholders (44) GALs, GAL/Attorneys and court clinic social workers:

Boston, Cambridge, Quincy, Salem, Medford, Framingham, Fall River, Attleboro, Springfield, Gardner

Attorneys (non-GALs): Boston, Brockton, Framingham, North Reading, Chelmsford,

Springfield, Greenfield

Judges: Boston, Salem, Lowell, Walpole, Worcester, Fall River,

Springfield

Clerks: Boston

Interviews Conducted: Agency Stakeholders (39)

Interviews Conducted: Medical Stakeholders (15)

Pediatric psychiatrists: Boston, Framingham, Taunton, Amesbury, Worcester,

Springfield

DMH psychiatrist and nurse: Worcester

Psychiatric nurse: Swansea

Court clinician: Boston

Interviews Conducted: Placement Stakeholders (11)

Foster parents: Arlington

Directors of residential programs: Boston, Waltham, Walpole

Residential program medical directors and doctors: Boston, Methuen

Common Themes Across Stakeholder Groups

Importance of Oversight

Sufficient Financial Support

Process is too Slow

Children in Transition Have Unique Needs

Better Access to Training

Improve Communication between Stakeholders

“Sometimes the process benefits, and sometimes it hinders. You have to wait for the GAL, you have to wait for the affidavit. If I were a parent, and my child was in pain, I’d do whatever I could to get them help. But if the kid’s in custody, you have to get the affidavit and go through the process, and it may be six weeks before we get court approval.”

-DCF Attorney, On the speed of the process

“The doctor needs to have more information about the child before prescribing.  The doctor’s aren’t always informed about a child’s trauma history. In one case the child didn’t trust the doctor, because he didn’t know the child’s history. The child thought the doctor was just medicating her to get her to behave.  I had a case where the child tried to commit suicide at five years old, but had told the doctor “no” when asked if he had a history of suicidal thoughts. The child didn’t know what “suicidal” meant.  The doctor should have gotten the child’s history from the department.  I’ve had cases where diagnoses and medical histories don’t follow the child.  In one of my cases, a child was diagnosed with a mood disorder when in a group home, but the diagnosis did not follow her to the doctor she saw in her foster home.  The doctor placed her on a medication that conflicted with her disorder and made her worse and she ended up being expelled from school.”

-Attorney and GAL, On a child’s medical history

“The hard part is that I am an attorney, I’m not a doctor, and a lot of the questions the judges are asking are more in the medical field, so I have to educate myself as much as I can, but I’m still an attorney trying to explain it. I think it’s a difficult position to be in at times, but I don’t know the answer. It takes up too much time for a psychiatrist to come to court and not see the patients, so it has to be that the attorneys are the GAL, but that can be harmful to the child too, because I am not a medical professional and I am trying to describe all these medical terms to the judges myself.”

-GAL, On the importance of medical training

“I don’t know if there’s a consultant to the judge that gives them an idea of what the ranges of these medicines are, or if they’re always relying on the prescriber to tell them the dose range, because there’s a part of the Rogers where we write what the typical dose range is for these medications…Sometimes it’d be nice if there was some explanation back from the judge about why they picked that dose, because the order will come back just saying, “Okay you can prescribe this dose in this range and that’s it.”…there was no documentation about why, the rationale, so that feels like it’s not a two-way conversation.”

-Psychiatrist, On communication between medical and legal stakeholders

Incorporate More Medical and Clinical Input

Have All Stakeholders Be More Knowledgeable About the Process and Have an Opportunity to Contribute

Have a Process that Provides a Consent Decision in the Most Efficient and Timely Manner

Have Service Providers Informed about Psychopharmacology

Ensure that Treatment was Appropriate for the Children’s Needs

Guiding Goals

Recommendations

Reinforcing the Rogers Process

Altering the Rogers Process

New Processes

Reinforcing the Rogers Process

Standardized Training

DCF Rogers Doctor/Nurse Practitioner

Reporting Mechanism on Rogers Concerns

Automatic Review When Child is on Multiple Psychoactive Medications

Comprehensive List of Medications

Record-Keeping System

“My biggest concern about the process is that judges and GALs are not trained in psychopharmacology. It is a very important discipline. It requires a lot of medical and psychopharm training. It feels like the judges don't have the full picture because they don't have the training. If a layperson looks at the medications, multiple medications, higher doses, of course you might be concerned. We involve pediatricians and psychiatrists. There's a lot of medical side effects from the medication.”

-Nurse, On the need for more training

“When it doesn’t go smoothly: the GAL doesn’t get an appointment on time, the report is not done on time, the lawyer doesn’t show, there is a contested hearing, or the doctor refuses to show. I actually had a doctor who didn’t show twice to court, and so we ended up having to call him and say, ‘Here’s the deal, you either come to court this time, or the judge will order for your arrest. ..So we really advise you to be there because the judge is really ticked you’ve failed to be there twice.’ He showed. But that’s not the way you want to do business.

We are asking doctors to write affidavits, come to court, and the reason they don’t want to do it is that they don’t get reimbursed for it. The court process needs to be more respectful of their time. I’ve heard of some cases where the doctors are sitting there waiting and they don’t even get to them sometimes. That’s not appropriate.”

-DCF Attorney, On failure of Rogers duties

Altering the Rogers Process

Checklist for GALs

Standardized Affidavit

Build in Second Medical Opinion

Administration of Antipsychotics be Continued once Rogers is Initiated

Interdisciplinary Committee Model

“The only time I have ever seen something denied is when the affidavit is insufficient. When the judge says, ‘I can’t order based on this, this is ridiculous’. The doctor has put the wrong name, the wrong date of birth, has information confused. They tried to make a standard Rogers affidavit a couple years ago, but it’s twenty-four pages…so, doctors weren’t doing that. So suddenly, we were getting a two page something about nothing. Like, I don’t even get the sense from this that the doctor has seen them (the child).”

-DCF Attorney, On the difficulties of the affidavit

“My colleagues and I know that there is a problem or risk of the overuse of some of these medications – with the antipsychotic medications, which are the ones that we have to go through this process for. But we kind of think that in all areas of medicine in healthcare whenever there is a concern about overuse, it’s better for there to be review processes developed that are clinical and that are based upon peer review.”

-Pediatric Psychiatrist, On the need for medical review

“One example is a six year old boy with out of control behavior…We submitted the Rogers, and the judge decided no, because of the child’s age and size, and, I believe, what the GAL said. We stopped the Respiradol, and he decompensated…If this kid was a 15 year old 200 pound, they would have allowed the Respiradol, but because he was a 6 year old peanut…they asked me, why can’t you give him a half a milligram? I explained that we had tried that, why should this kid have to go through this experience of decompensating, not to mention what it did to a 6 year old child to be kept two weeks in a lockdown unit.”

-Medical Director, On continuing a child’s medication prior to the Rogers process

New Process

Interdisciplinary Committee Model

Medical Panel of Experts

“I would like the judiciary to stay out of it because I don’t think it is a good use of resources. They should only come into play if there is a disagreement about the child’s best interest…If a parent, foster parent, or prescriber raises a concern then you can take it to a judge. Similar to how we use the court in disagreements about child custody. But I think 99% of these or more will be resolved outside of court.”

-Child Psychiatrist, On judicial review

“I like idea of having some kind of quick, accessible panel that’s available. It can’t fall into this bureaucracy of request where you have to wait 4 weeks for it. I think they should have the ability to review medical histories, authorize administration, and then start having some kind of monitoring system of what’s going on. There doesn’t necessarily need to be court monitoring, but some kind of monitoring.”

-DCF Manager, On a panel of experts

Wrap Up

“Any change, even a change for the better, is always accompanied by drawbacks and discomforts.”

–Arnold Bennett, Historian and Journalist

»Costs & Financial Priorities»Changes in Culture & Practice»More Opportunities to Research Other

States»Shared Goals among Stakeholders

Thank YouJudge Gail Garinger

Researchers: Dr. Laurel Leslie, Tom Mackie and Dr. Justeen Hyde

Jenna Pettinicchi

Dr. Christopher Bellonci and Elizabeth Armstrong

Rogers Working Group (RWG)

Michele Scavongelli

Professor O’Connell, our Advising Attorney Anne Gillespie, Research Librarian Alfreda Russell, Professor Maze-Rothstein, and Mary Murphy

Thank you to all the attorneys, judges, GALs, social workers, psychiatrists, nurses, residential facility staff, foster parents, court clinicians, court clerks,

DCF and DMH professionals.

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