It is unfortunate that in researching this article, much like our article about CPS and drug testing, there is very little information available about what it means if you are accused of medical neglect by Child Protective Services.
Frankly, much of the information we reviewed provided very little specifics and only offered generic definitions.
In this article, we hope to answer your most frequently asked questions if you have been accused of medical neglect by Child Protective Services or the Department of Family Services.
What is Medical Neglect?
Medical neglect of a child is generally considered a form of child abuse or child neglect.
Many states don't have very good definitions of medical neglect, including our state of Nevada.
In general, medical neglect can be defined as "a parent’s failure to provide adequate medical or dental care for their child, especially when it is needed to treat a serious physical injury or illness."
In Nevada, our child abuse statutes can be found at NRS 432B.
Needless to say, NRS 432B does not offer a specific definition for medical neglect.
The best we can do in Nevada, is look at the definition for abuse and neglect which states
“Abuse or neglect of a child means (a) Physical or mental injury of a nonaccidental nature; (b) Sexual abuse or sexual exploitation; or (c) Negligent treatment or maltreatment of a child caused or allowed by a person responsible for the welfare of the child under circumstances which indicate that the child’s health or welfare is harmed or threatened with harm."
In Nevada, even though we don't have a specific definition for medical neglect, we have been provided with some information about what WILL NOT constitute medical neglect.
NRS 432B states "a child is not abused or neglected, nor is the health or welfare of the child harmed or threatened for the sole reason that "the parent or guardian of the child, in good faith, selects and depends upon nonmedical remedial treatment for such child, if such treatment is recognized and permitted under the laws of this State in lieu of medical treatment.
What Are Some Examples of Medical Neglect?
Medical neglect can be anything the Department of Family Services or Child Services decides puts your child in imminent danger of harm.
Scary right??? . . . We know.
Below are some classic examples of medical neglect in child abuse cases:
denying a child access to emergency care
refusing to pay a child's medical expenses without good reason
ignoring or not following the medical recommendations of a doctor when the child has a treatable condition
failing to administer medication too a child
Keep in mind that if your child's medical condition deteriorates significantly, it is likely you could be accused of child abuse or neglect and medical neglect or abuse of a child if you fail to get adequate medical care for your child or if you don't follow the doctor's recommendations for treating your child.
What If I Have Religious Objection To My Child Getting Recommended Medical Treatment?
While we'd love to tell you that you have the right to refuse your child medical treatment on religious grounds, we'd be lying.
Simply, Protective Services and Family Services can intervene and force your child to get medical treatment even if you object on religious grounds.
The United States' Supreme Court has specifically stated
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves. Prince v. Commonwealth of Massachusetts, 321 US 158 (1944).
What does this mean for you?
If you have a religious objection to your child getting medical treatment and you refuse the treatment, you could find yourself accused of medical neglect or child abuse.
Can I Be Accused Of Medical Neglect If The Recommended Treatment Wont Help My Child?
This becomes a more complicated question of medical neglect.
In general, the State has to weigh the risk of a procedure compared to its potential success.
For example, the Supreme Court of Delaware reviewed a case where parents were charged with abuse and neglect by refusing to follow a prescribed medical regimen for their daughter. The child's prognosis was extremely poor. The physician's recommendations required significant bodily invasion including 24 hour intensive nursing care, antibiotics, the assistance of a respirator, a catheter and a feeding tube. In that case, the Court decided that there was no abuse because the medical care was too great an invasion to outweigh the risks.
The bottom line?
You could still be accused of medical neglect even if the treatment won't help your child.
The good news?
Chances are the charges won't stick as long as you can prove that the treatment would not help your child.
Will Protective Services or Child Welfare Intervene If I Refuse Medical Treatment For My Child?
Unfortunately, the answer here is it depends.
Keep in mind that doctors, nurses, first responders and most hospital staff or mandatory reporters.
This means that if a doctor, nurse, paramedic or other medical professional, believes your child is being abused or neglected, they are required, by law, to report it to authorities. If you are reported by one of these individuals, chances are you can expect a call or visit from Child Protective Services.
Just because child services gets called doesn't mean they will automatically open a case or take your child.
Many factors are involved when Child Services looks at a particular family.
These include whether the child is in an imminent risk of danger or harm if Child Services does not intervene. This can include getting involved when a child has a life threatening illness or condition and the parent(s) are not getting proper treatment or are no following through on recommended treatment.
You might also find child services involved if your child has a chronic condition that would result in harm to the child if left untreated.
What Happens If Child Protective Services Suspects Me Of Medical Neglect?
There are a few different options when child services suspects a parent of medical neglect.
In a perfect world, if a parent is suspected of medically neglecting their child, we would expect the child services investigator to talk to the parent and figure out why medical services are not being provided for the child.
Is there a religious objection?
Does the parent not understand the severity of the child's condition?
Does the parent believe that the proposed medical treatment would not help the child?
Depending on how these questions are answered, parents might be able to work with Child Services to get proper treatment for their child or encourage Child Services to speak with medical professionals about why the parents are objecting to a proposed treatment plan.
Another option, if Protective Services does not formally remove the child is for the doctor or hospital to seek guardianship over the child for the purposes of rendering treatment.
This has been approved by the Nevada Supreme Court in a case from 2004: In the Guardianship of L.S. and H.S. v. Valley Hospital Medical Center and Michele Nicols, R.N., 120 Nev. Adv. Op. 18 (2004). In this case, the parents objected to their child having medically necessary treatment on religious grounds. Valley Hospital was appointed as temporary guardian to provide life-saving medical treatment for the child. The Nevada Supreme Court determined that appointing the hospital as the child's temporary guardian was legally appropriate under the circumstances.
Can I Be Charged With A Crime Of Medical Neglect If I Refuse Medical Treatment For My Child?
It is possible that in addition to having your children removed by Child Protective Services, you can also be charged with a crime for child abuse or child neglect if you refuse to allow medical treatment for your child.
In Nevada, a charge of child abuse or child neglect can be prosecuted as a gross misdemeanor or a felony depending on the severity of the case.
Keep in mind that Nevada does not consider it to be child abuse if you obtain community accepted alternative care for your child and you are choosing this treatment in good faith.
What Do I Do If I Am Charged With Medical Neglect Or My Children Are Taken By Protective Services For Medical Neglect?
Medical neglect cases are serious and can be very complicated.
In addition, medical neglect cases usually require immediate action due to the need to figure out whether medical treatment is necessary and helpful to save a child's life.
In addition, medical neglect is serious and most courts do not take these cases lightly.
If you have any legal questions, concerns, or disputes involving medical neglect of a child, you should contact a lawyer immediately.
At Rosenblum Law Offices, we are two of thirteen lawyers in Clark County, Nevada charged with representing parents who have been accused of abuse and neglect. In addition, Molly Rosenblum, Esq. previously represented doctors, hospitals and medical facilities and is well versed in medical-legal matters. These factors make Rosenblum Law Offices uniquely suited to represent individuals accused of medical neglect.
If you or someone you know needs assistance with a medical neglect or child abuse/neglect case, contact us right away at (702) 433-2889 or fill out our on-line form for more information.