Other Extraordinary Medical Treatment

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. 110 CMR: DEPARTMENT OF CHILDREN AND FAMILIES 11.17: continued (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.