CARE AND PROTECTION OF HAMID v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case is before us on the mother's petition, pursuant to G. L. c. 231, § 118, first par., seeking expedited review of an order of the Juvenile Court allowing a motion by the Department of Children and Families (department) seeking the forgoing or discontinuation of certain life-sustaining medical treatment for the child. A single justice of this court granted the mother leave to appeal and stayed the judge's order. We affirm.

Background. The petitioner is the mother of the child, now seventeen months old. The child was admitted to Boston Children's Hospital (BCH) on December 9, 2019, after nearly drowning and suffering a cardiac arrest. He has been diagnosed with severe neurologic injury attributed to the loss of oxygen to his brain. According to his treating physician, the child “has no signs of ․ higher-level consciousness․ In other words, he does not interact with the world.” The child's treatment team does not expect that his condition will show any improvement over time.

On December 10, 2019, the department filed a care and protection petition in the Juvenile Court, pursuant to G. L. c. 119, § 24, and took custody of the child.³ The child remains in the department's temporary custody. A judge appointed both counsel and a medical guardian ad litem (GAL) for the child.

On March 12, 2020, the department moved for an order in the Juvenile Court directing the child's medical providers to forgo certain life-sustaining medical treatment,⁴ “[p]erform [c]ompassionate extubation,” and “[r]edirect care to focus on comfort for the child.” On April 14, 2020, the judge held a hearing on the motion; at the hearing, the mother opposed the department's motion, the father ⁵ supported it, and the child's attorney suggested that additional testing was warranted before an order issued. The judge allowed the department's motion on April 17, 2020,⁶ and issued detailed findings of fact and rulings of law on April 30, 2020. As noted, the mother was granted leave to appeal the judge's order allowing the department's motion concerning the child's medical treatment.

Discussion. 1. Substituted judgment. The department, having assumed custody of the child, had the power to make determinations about his medical care. See G. L. c. 119, § 21. See also Care & Protection of Jeremy, 419 Mass. 616, 620 n.7 (1995). “For decisions involving extraordinary medical care of a child in its custody, such as an order to give or withhold life-prolonging treatment, the policy of the department is to seek prior judicial approval and, in addition, the appointment of a GAL to investigate whether an order for such treatment should enter.” Care & Protection of Sharlene, 445 Mass. 756, 768 (2006), citing 110 Code Mass. Regs. §§ 11.13, 11.17 (1993); 110 Code Mass. Regs. § 11.18 (1995). In this case, the department took these steps in the Juvenile Court.

Presented with the department's motion, the judge conducted the required evidentiary hearing and correctly applied a substituted judgment standard in order to determine whether “the child would, if competent, choose to forgo the use of extraordinary means to sustain life.” Care & Protection of Sharlene, 445 Mass. at 774 (Spina, J., concurring). See Matter of Moe, 385 Mass. 555, 566-567 (1982) (discussing substituted judgment standard in context of guardian's petition to sterilize ward). “In making a substituted judgment determination, the court ‘dons “the mental mantle of the incompetent” and substitutes itself as nearly as possible for the individual in the decision-making process․ [T]he court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent.’ ” Care & Protection of Beth, 412 Mass. 188, 194 (1992), quoting Matter of Moe, supra at 565. As her detailed findings demonstrate, the judge properly considered “(1) the patient's expressed preferences, if any; (2) the patient's religious convictions, if any; (3) the impact on the patient's family; (4) the probability of adverse side effects from the treatment; and (5) the prognosis with and without treatment.”⁷ Care & Protection of Beth, supra at 195. In applying these criteria, the judge also properly considered the best interests of the child. See id. at 195 n.11.

Here, the judge carefully considered each of the applicable factors; we conclude that her findings were properly supported by a preponderance of the evidence presented at the hearing, including the expert testimony of the child's attending physician, Alon Geva, and reports of a second medical expert, Ryan W. Carroll, and of the GAL.⁸ See Care & Protection of Sharlene, 445 Mass. at 769 (affirming judge's substituted judgment determination where “[t]he judge carefully considered the factors required by our cases ․ under the settled preponderance of the evidence standard”).

There is no dispute that the child, not yet two years old, was incompetent to make informed decisions about his medical treatment, and that a substituted judgment analysis was required.

Likewise, it was uncontested that the child lacked the capacity to express a preference concerning his treatment options. See Custody of a Minor (No. 3), 378 Mass. 732, 745 (1979). The expert medical opinions credited by the judge properly supported her additional finding that the child will remain incapable of expressing a preference in the future. See Matter of Spring, 8 Mass. App. Ct. 831, 839 (1979), S.C., 380 Mass. 629 (1980), quoting Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 752-753 (1977) (substituted judgment inquiry should also “tak[e] into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person”). While the mother testified to her belief that the child could regain some function, both the child's treating physician, Dr. Geva, whom, as we have noted, the judge explicitly credited, and Dr. Carroll, opined that the child's brain damage is “global,” severe, and permanent, and that the child's neurological function is unlikely to improve beyond his present, minimally conscious state.

The mother does not challenge either the judge's determination that the child held no religious beliefs that would inform his decision, nor her finding that the mother's view was not influenced by religious considerations. Those findings are, in any event, supported by the evidence.

The judge's written findings document her thoughtful recognition of the different, but “profound” impact of the treatment decisions made for the child on each of the child's parents. The mother does not take issue with the judge's assessment of the effect of the child's treatment choices on the family.⁹

Finally, the judge carefully weighed the impact of each of the care plans proposed for the child. Noting the mother's involvement in the child's care during his hospitalization and recognizing that the mother believed that the child had demonstrated a level of consciousness and engagement greater than that attributed to him by his medical team, the judge nonetheless credited the opinions of the child's doctor, who testified that the child was in a “minimally conscious state,” capable of only reflexive, and not purposeful, movement.¹⁰ The judge considered the mother's desire for the child to undergo a tracheostomy and surgical placement of a gastrostomy tube, and the fact that these measures could make it possible for the child to live outside the hospital, likely in a long-term care facility. She also considered, however, the risk that such treatment would cause the child pain, and expose him to additional long-term and acute problems, including potentially fatal complications, without ameliorating his neurological injury.

The judge's findings are each supported by a preponderance of the evidence, and she correctly applied the substituted judgment standard.¹¹ See Care & Protection of Beth, 412 Mass. at 196.

2. Weight given to the mother's treatment recommendation. We are not persuaded by the mother's contention that the judge's findings failed to give appropriate weight to the mother's treatment recommendation, nor by her argument that the judge improperly favored the father's preferences about the child's care. In conducting her substituted judgment analysis, the judge properly considered both the mother's and the father's preferences for the child's treatment as part of her consideration of the impact of that choice on the child's family. The judge also explicitly recognized the mother's consistent involvement in the child's inpatient care regimen, her expressed willingness to continue to care for him if he were discharged from the hospital, and the “devastating” impact on the mother of the decision to discontinue life-sustaining care for the child. It is apparent from the record that the judge's substituted judgment determination took into account all of the evidence presented, and gave significant weight to the opinions of the medical experts. While the judge's decision may have aligned more closely with the father's wishes under these difficult circumstances than with the mother's wishes, there is nothing to suggest that the judge gave the father's preference more weight in her assessment than she gave to the mother's position.

3. Compliance with department policy. Where the department seeks to forgo life-sustaining medical treatment for a child in its custody, G. L. c. 119, § 38A, provides that “[t]he commissioner shall determine and make the department's recommendation to the court.” Here, despite the failure of the signatories to the department's “Proposed Order to Forgo and Discontinue Life Sustaining Medical Treatment” form to check the box indicating whether or not the proposal was approved, we are satisfied, based on the substance of the proposal and the Commissioner's signature on the form, that the Commissioner approved the recommendation to forgo and discontinue that treatment, and that the oversight in failing to check the box appropriate to that choice amounted only to a regrettable scrivener's error. See Pond v. Pond, 424 Mass. 894, 898 (1997); Berman v. Sandler, 379 Mass. 506, 511 (1980).

4. Conflict of interest concerns. We are not persuaded by the mother's final argument that the department's reliance on Dr. Carroll, a physician at Massachusetts General Hospital, to provide the second opinion concerning the proposed discontinuation of the child's life-sustaining care presented either an actual conflict of interest or the appearance of such a conflict. There was no evidence at the hearing that Dr. Carroll was “affiliated with” Dr. Geva or with BCH; in fact, all evidence was to the contrary.

Conclusion. The order allowing the department's motion to forgo life-sustaining medical treatment by (i) the forgoing of cardiac interventions, including chest compressions, vasopressors, cardiac medications, and cardioversion; (ii) the forgoing or discontinuation of respiratory interventions, including intubation, tracheostomy, mechanical ventilation, Bi-Pap/C-Pap, and supplemental oxygen; (iii) compassionate extubation; and (iv) redirection of care to provide comfort to the child, is affirmed.

So ordered.

FOOTNOTES

3.   The mother and the putative father waived their rights to a temporary custody hearing. See note 4, infra.

4.   Specifically, “[d]iscontinuing/forgoing cardiac medications, chest compressions, pressor medications, cardioversion, supplemental oxygen, BiPap, CPap, intubation, tracheostomy and ventilator.”

5.   Although the father is not listed on the child's birth certificate, the mother does not dispute that he is the child's father. At the hearing, the father's counsel represented that the father had begun the process of establishing his paternity, but that his effort was interrupted when he contracted the coronavirus.

6.   The judge stayed the order.

7.   “The judge should also consider any countervailing State interests, which may include: (1) the preservation of life; (2) the protection of innocent third parties; (3) the prevention of suicide; and (4) the maintenance of the ethical integrity of the medical profession.” Care & Protection of Beth, 412 Mass. at 195. We note that the BCH ethics committee recommended that the department's plan as proposed in this case was ethically justifiable.

8.   The judge explicitly credited the testimony of Dr. Geva and the opinion of Dr. Carroll.

9.   To the extent that the mother challenges the judge's weighing of the mother's preferences as compared to those of the father, we address the concern infra.

10.   The mother testified that she had observed the child responding to her voice, moving his head, and blinking his eyes. Dr. Geva testified, however, that the child did not have “purposeful movements,” and that while his eyes opened spontaneously, he neither opened them in response to stimuli nor tracked or followed things with them.

11.   To the extent that the mother argues that the judge relied on improper considerations of the expense of caring for the child as the mother wishes, we see nothing in the judge's findings to suggest that she did so.