VII. Circumstances Requiring Parents to Obtain Medical Care
Given Repeal, Circumstances Under Which Massachusetts Parents Who Are Adherents of Spiritual Healing Would Be Required to Obtain Medical Treatment for their Children

With repeal, parents who are adherents of spiritual healing will be held to the same legal standard for obtaining medical help for their children as all other parents in Massachusetts.

What is the requirement? Naturally, the law does not and should not compel a parent to take the child to the doctor for trivial, self-limiting illnesses such as the usual childhood cold or nosebleed. But at what point does the law declare that a parent is required to seek medical attention for a sick child?

Massachusetts statutory requirements, as codified in Chapter 119, section 24, provides in its definition of child neglect that parents must provide their children with "necessary and proper physical care." The regulations of the Department of Social Services, the enforcing agency, define proper physical care to include medical attention.

Under Chapter 119, the only remedy for the medical neglect of a child is a temporary custody proceeding: a child, by court order, may be temporarily removed from parental custody for the purpose of medical treatment. In 1991, In the Matter of Elisha McCauley, the Massachusetts Supreme Judicial Court ruled that parents do not "…have an absolute right to refuse medical care for their children on religious grounds…" The court further stated that the State has an interest "…in having a dangerously sick child receive medical treatment over her parents' religious objections."

Chapter 119 establishes the State's responsibility to provide necessary medical care to children, but what duty does state law establish for parents themselves (without resort to the custody process) to provide necessary medical care for their seriously ill children? Massachusetts common law (court decisions) does establish a parental duty to provide necessary medical care to seriously ill children. However, at present there is no criminal statute which establishes a parental duty to provide necessary medical care and which, at the same time, sets a penalty for parental failure to comply. Without such a criminal penalty, the State has no means to enforce the parental duty to provide necessary medical care. The Massachusetts child neglect misdemeanor statute (contained in Chapter 273, section 1) which required parents to provide their children with "proper physical care" was repealed in 1986. The religious exemption to the law was allowed to remain in Chapter 273, section 1, thereby leaving a religious exemption to a non-existent child neglect statute.

While Massachusetts criminal law establishes no penalty for parental failure to provide necessary medical care while a child lives, failure to provide such care to a seriously ill child should the child subsequently die due to lack of medical care carries severe penalties for parents under the state's manslaughter law.

In Massachusetts, the law on manslaughter has been developed through a series of Supreme Judicial Court decisions. A person may be convicted of involuntary manslaughter if, where there is a legal duty to act, the person engages in intentional conduct, either of commission or omission, which is "wanton and reckless," i.e., which "…involves a high degree of likelihood that substantial harm will result to another." (Commonwealth v. Welansky, 1944)

A person's conduct may be found to be wanton and reckless even if the person does not foresee the consequences of his action or his failure to act:

The standard of culpability to be applied…is based in part on the knowledge of facts which would cause a reasonable man to know that a danger of serious harm exists. Such knowledge has its roots in experience, logic, and common sense, as well as formal legal standards. (Commonwealth v. Godin, 1977)

Even if a particular defendant is so stupid [or] so heedless…that in fact he did not realize the grave danger, he cannot escape the imputation of wanton and reckless conduct in his dangerous act or omission, if an ordinary normal man under the same circumstances would have realized the gravity of the danger. (Commonwealth v. Michaud, 1983)

The Supreme Judicial Court has applied this standard for involuntary manslaughter to parental failure to provide proper medical care to a child when such failure results in the child's death. In Commonwealth v. Gallison, 1981, the Supreme Judicial Court "…explained the duty parents have to provide for the care and welfare of their children, and in doing so, upheld the manslaughter conviction for a mother, in part, for failing to provide medical care for her child" (quoted in Commonwealth v. Twitchell, 1989). In the Gallison case, the Supreme Judicial Court wrote:

...the defendant should have been aware of the increased risk of harm and thus [her] failure to remedy the situation was the kind of conduct which constitutes wanton and reckless conduct.

Therefore, under Massachusetts manslaughter law, a parent is required to obtain medical care at the point at which serious harm may come to the child. How is a parent to know when that point occurs? By the type of judgment most reasonable parents would exercise.

The question is then raised: does not the Massachusetts religious exemption law protect parents using spiritual healing from involuntary manslaughter charges? In Massachusetts, in Commonwealth v. Twitchell, 1989, a Superior Court ruled that the religious exemption law applies only to the child neglect law in which it was contained (prior to 1986) and does not apply to the separate Massachusetts involuntary manslaughter law which contains no religious exemption. Established principles of law state that requirements of one statute do not carry over to a second statute unless the second statute expressly contains the same subject matter and manifests a common legislative objective. The Court ruled that child neglect and manslaughter are not the same subject matter. The California Supreme Court in 1988 made the same ruling with regard to the California manslaughter law and that state's religious exemption.

Summarizing the above discussion, the present inadequate and dangerous mixture of laws for the protection of Massachusetts children from serious, religiously-based medical neglect is made up of the following legal elements:

1. a civil reporting and custody process for state provision of necessary care (Chapter 119). The proper functioning of the system presupposes that the condition of the seriously ill child will be reported in time.
   
   
2. An unenforceable legal duty of parents, themselves, to provide their living, seriously ill children with necessary medical care (common law). At present, there is no criminal child neglect statute which establishes a parental duty to provide necessary medical care and which establishes a penalty for parental failure to comply. Therefore, religiously-motivated parents have, and may continue to, overlook or ignore their legal responsibility, especially when this legal responsibility may appear to be waived by…
   
   
3. An ambiguous and legally doubtful "religious exemption" law. The Massachusetts Superior Court has ruled that the exemption does not apply when a child is "in jeopardy of serious bodily injury or death." (Commonwealth v. Twitchell, 1990) Still, the Christian Science Church claims the exemption allows parents to reject the use of medicine for seriously ill children.
   
   
4. The involuntary manslaughter law which allows for prosecution of parents whose seriously ill children die because of lack of medical care due to parental refusal to provide such care.

The contradictions and flaws in this legal arrangement are so serious as to jeopardize the lives and health of children whose parents rely on spiritual healing; it was this flawed legal arrangement which in part led to the terrible and unnecessary death of Robyn Twitchell, and therefore, to the unavoidable and tragic prosecution of the parents.

Perhaps the most insidious aspect of the present legal arrangement is that the penalty for serious medical neglect of a child only attaches after the child's death. The most useful function of penalty is to deter. Penalty for specific behavior is society's clear warning that the behavior is unacceptable.

Children whose parents practice spiritual healing are in grave danger when the law establishes no enforceable legal duty for parents to provide necessary medical care while the child still lives, but instead leaves parents vulnerable only after a preventable tragedy. This legal arrangement provides parents who wish to rely on spiritual healing an incentive to risk their child's life up until the very last moment, believing the law does not deter their behavior while the child lives. The current laws may well encourage parents to avoid medical treatment close or past the point of no return.

It would be better, however, to make a parent's legal duty clear before a child dies. Many parents would be relieved to obey the law if the state would make its standards clear.

Rita Swan, The Exchange, Jan./Feb., 1988

The Christian Science Church in counseling the Twitchells as to their religious right to pursue spiritual healing and refuse medical care referred to the religious exemption, but did not counsel the Twitchells (according to Court testimony) of possible manslaughter charges if Robyn were to die. The Church's failure to instruct on this point has led a number of legally naïve parents in other states to face serious felony charges. Again, the solution is to set a clear, pre-death warning against serious medical neglect.

Without such a pre-death standard, there is also no incentive for parents to seek medical care for children suffering from non-life-threatening (but serious) illnesses or conditions which involve prolonged pain or which may result in permanent disability.

Children are also put in jeopardy as a result of the fact that the only alternative for pre-death enforcement of parental medical neglect is a civil custody proceeding for state provision of medical care. Parents utilizing spiritual healing are discouraged from providing medical care: 1) by the religious exemption; and 2) by the lack of a child medical neglect statute. If a parent believes he or she may continue spiritual healing and avoid medical care so long as no one reports the child's illness, then the incentive is to shield the child's condition from responsible public authority. Since Christian Scientists and some other faith-healing groups shun most medical care, there is often no way the child's condition will come to the attention of the reporting system. Among such groups, often fellow members are the only persons who know about a child's illness.

Christian Science healers have no training in medical diagnosis, nor do they often report the serious medical conditions of children they are treating to public authorities. The fate of such children cannot be left exclusively to the reporting system. Parents must be required to provide their seriously ill children with necessary medical care. Having twenty-four hour custody and care of their children, parents are usually in the best position to assess their children's health. The state cannot continuously monitor the health of children whose parents subscribe to faith-healing methods.

In order for children of parents who subscribe to spiritual healing to be adequately protected against unnecessary suffering, disability, and death, two major statutory changes are necessary:

1. In order to eliminate the remaining ambiguity caused by the religious exemption, the exemption must be repealed
   
   
2. A new child neglect statute requiring parents to provide their seriously ill children with necessary medical care must be passed into law. Massachusetts is one of the only two states that does not have a criminal child neglect statute requiring parents to provide their children with the necessities of life; in many of the state neglect laws necessary medical care is included as one of the necessities.

Should parents who religiously object to medicine be required to provide their children with medical care? Because of the inherent right of all children to live and grow, and because of society's responsibilities to protect that right, all parents must be expected to exercise a basic standard of judgment regarding the need for effective medical care in the case of serious childhood illness.

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