The Legalities of Substance Abuse Testing Procedures for Pregnant Women. Alaina N. Crislip, MPH, JD Flaherty Sensabaugh Bonasso PLLC 2011

Transcription

1 The Legalities of Substance Abuse Testing Procedures for Pregnant Women Alaina N. Crislip, MPH, JD Flaherty Sensabaugh Bonasso PLLC 2011

2 GOAL Protect the health and well-being of mothers, fetuses and newborns. Substance abuse during pregnancy requires greater care and attention by the provider. In order to achieve goal, need to reach consensus on how to identify and treat women who abuse substances during pregnancy.

3 Background No state specifically criminalizes drug use during pregnancy. Whitner v. State, South Carolina S. Ct. case which upheld conviction that a woman s substance abuse late in pregnancy constitutes criminal child abuse.

4 HIGHLIGHTS 15 states consider substance abuse during pregnancy to be child abuse, 3 states consider it grounds for civil commitment 14 states require health professionals to report suspected prenatal drug abuse, and 4 states require them to test for prenatal drug exposure if they suspect abuse.

5 HIGHLIGHTS (cont.) 19 states have either created or funded drug treatment programs specifically targeted to pregnant women, and 9 provide pregnant women with priority access to state-funded drug treatment programs. 4 states prohibit publicly funded treatment programs from discriminating against pregnant women.

6 Testing for Substance Abuse Prenatal testing Newborn testing Post-partum testing

7 Determining When to Test Mandatory testing for all presenting pregnant women? Sounds like a good idea, BUT....

8 Positive Test Results for Substance Abuse Evidence of a crime [4 th Amendment issue?] Reporting obligations? Resource availability? Non-compliant? Court/law enforcement involvement? Who pays for the testing? Immunity?

9 Unintended Consequences Pregnant women will avoid pre-natal care? Unborn victims of violence?

10 Possible Approaches to Testing Test all pregnant women and newborns Test pregnant women and newborns, based on objective, uniform medical criteria Test no pregnant women or newborns

11 Three Models of Consent No consent required-all patients are tested based on physician practice/hospital policy (general consent to treat) Informed consent required for testing the mother, but not the infant (reasonable suspicion) Informed consent required for testing both the mother and the infant

12 WHAT IS CONSENT? Agreement to the test or procedure: Measured by the patient s need for information so as to be able to make an informed decision about the treatment. Based on what the provider knows or should know to be the patient s informational needs. Existence and materiality of risk should be disclosed.

13 Informed Consent (cont.) A doctor always has a duty to obtain the informed consent of a patient for a course of treatment... [T]his means that doctors have always had, and will always have, a duty to talk to their patients about the proper uses, improper uses, and risks [associated with a course of treatment or procedure]. State ex rel. Johnson & Johnson v. Karl (2007)

14 Informed Consent: AMA Informed Consent It is a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention. Physician should disclose: The patient s diagnosis, if known; The nature and purpose of a proposed treatment or procedure; The risks and benefits of a proposed treatment or procedure; Alternatives (regardless of their cost or the extent to which the treatment options are covered by health insurance); The risks and benefits of the alternative treatment or procedure; and The risks and benefits of not receiving or undergoing a treatment or procedure.

15 Consent considerations Ethical obligations Legal obligations Patient wants to know What is being tested for Protocol followed if results are positive Risk to mother/fetus for refusing to be tested Risk of law enforcement involvement

16 Evaluating Prenatal Substance Abuse Testing Screening is the initial step in substance abuse evaluation and is accomplished through screening tools WV Prenatal Risk Screening Instrument. Testing refers to laboratory analysis of biological specimens and follows screening. All pregnant women will be screened but not all will be tested.

17 Uniform Risk Screening Tool Screening is NOT testing-no consent needed for screening. Participation in the screening process is implied consent. Repeat process intermittently to reinforce teaching aspect of screening or when reasonable suspicion of abuse.

18 Screening Disclosure prior to screening is advisable Screening leads to selective testing when there is a reasonable suspicion requiring a diagnosis to provide competent treatment.

19 Positive Test Results for Newborn Evidence of child abuse? May lead to mandatory statutory penalties for mother IF REASONABLE SUSPICION OF SUBSTANCE ABUSE, MUST TEST TO PROVIDE APPROPRIATE MEDICAL CARE.

20 West Virginia Unborn Victims of Violence Act- W. Va. Code , excludes acts or omissions by the pregnant woman Reports of Suspected Child Abuse or Neglect-W. Va. Code 49-6A-1, et seq., definition of child does not include fetus, but includes infant [any child under the age of eighteen years of age].

21 Recent Passed Legislation House Bill 3028-Infant and Maternal Mortality Review Team Bundled Senate Bill 295 -Uniform Risk Screening Tool [aka SB133/HB2618]

22 Introduced Legislation House Bill 3037-Creating Crime and criminal penalties for drug and alcohol abuse during pregnancy resulting in diagnosed harm to the infant.

23 Possible Future Action in WV Introduce Legislation which could include: Oversight agency with authority to engage in rulemaking for protocols to be followed Immunity from criminal prosecution based solely on test results Immunity for medical provider

24 Possible Future Action in WV (cont.) State s commitment to provide sufficient detox/rehab facilities including development of priority protocols Funding/reimbursment

25 QUESTIONS? Alaina N. Crislip, MPH, JD Flaherty Sensabaugh Bonasso PLLC 200 Capitol Street Charleston, WV (direct dial)