The Taking of Justina Pelletier by Judge Joseph F. Johnston

Juvenile judges in Massachusetts and other states routinely sever parental rights on the grounds of wrongful medical treatment. Suspicions of medical child abuse are generally brought to the courts' attention by research hospitals who upon occasion have pursuits outside the well-being of the child.

When the intervenors are successful the institutions are permitted to keep the children, proceed with divergent courses of medical treatment and bill Medicaid for the cost. If the now ward of state has a condition of interest to the research facility the child may be selected for experimental therapies such as psychiatric isolation. Parents, foster children and their former physicians have no voice in these decisions.

Circumstantial evidence suggests that Boston Children's Hospital was engaged in somatoform disorder research when the psychiatric staff filed a medical child abuse complaint against Justina Pelletier's parents. Justina was not the only child targeted by the hospital. The Boston Globe reported that at least five other children over an eighteen-month period preceded the path of Justina in Boston Children's Hospital medical child abuse complaints.

A lawsuit filed in May 2014 alleges that the parents of a child who was receiving treatment at Boston Children's Hospital in June 2012 were put on the state abuse watch list and were then threatened with loss of their daughter if they did not agree to her psychiatric confinement.

The taking of Justina Pelletier by Judge Joseph F. Johnston on the basis of a medical child abuse allegation is an example of the unchecked power of hospitals, the Department of Children and Families and the Massachusetts juvenile court system.

Although medical child abuse was not addressed by the U.S. Court of Appeals for the First Circuit in their ruling against the Department of Children and Families et al in March 2014 the court found that the Massachusetts child protection agency's practices were "conscience shocking" and were depriving foster children of constitutional protections.

The decision by Judge Johnston to allow the incarceration of Justina Pelletier, a fourteen-year-old foster child with no history of mental issues, meets the Supreme Court's test of "shocks the conscience."

The following is a brief recap of the Pelletier travesty as reported by The Boston Globe. Dr. Alice Newton and Judge Joseph F. Johnston were the parties responsible for Justina's sixteen-month captivity.

Dr. Alice Newton, head of Boston Children's Hospital child protection team, notified the state Department of Children and Families in February 2013 that their newly-admitted patient, Justina Pelletier, was a victim of medical child abuse. Swayed by Dr. Newton's certainty Judge Joseph Johnston held within days that Justina Pelletier had been harmed by her parents, Lou and Linda Pelletier. The rationale for taking Justina: the parents were permitting Dr. Mark Korson of Tuft's Medical Center to treat their daughter for a mitochondrial condition.

Dr. Newton conveniently neglected to tell Judge Johnston that Boston Children's Hospital treats mitochondrial disorders and performs the highly criticized cecostomy surgery.

If Lou Pelletier had obeyed Judge Johnston's gag order, Justina may have remained a ward of the state until her eighteen birthday.
Former rulings make it clear that Judge Johnston erred when he chose to separate Justina from her parents and place her under state custody for the reasons cited by the Supreme Judicial Court of Massachusetts in Sevigny’s Case, 337 Mass. 747 (1958). :

The courts are not to determine which side of a medical dispute is sound where each side is supported by reason and logic.

When Judge Johnston returned Justina to her parents on June 18, 2014 the contretemps became moot. But the question remains, was Judge Johnston conducting a kangaroo court ?

Boston Children's Hospital Threatens Parents with Medical Child Abuse

The state practice of revoking parental rights based on medical child abuse [disparate medical opinions] is being legally challenged by the parents of a child who received treatment at Boston Children's Hospital in June 2012.

Nature of the Action:

The Massachusetts Department of Children & Families ("DCF") has violated and continues to violate the fundamental rights of parents under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, to choose which healthcare providers will examine and treat their children. DCF has unconstitutionally expanded the concept of "medical child abuse" without sufficient and justifiable standards to intrude on sincere, vigilant and loving efforts by parents who face competing diagnoses and different views on the medical condition of their children.

This May 2014 civil complaint bears an uncanny resemblance to the case of Justina Pelletier. Both children entered Boston Children's Hospital with complex medical histories and both were reevaluated and subsequently diagnosed with undifferentiated somatoform disorders. The Boston Globe reported in December 2013 that Boston Children's Hospital has a history of alleging medical child abuse and then subjecting the taken children to psychological therapy.

Abuse allegations are self serving because when the hospital is successful in its claims, the state permits the institution to keep the children, dismiss previously established diagnoses and proceed with its own judgment. Elizabeth Wray was another child whose parents were charged with medical child abuse while their daughter was receiving care at BCH. In the cases referenced the new diagnoses are psychological in nature.

Rob Graham, Boston Children's Hospital spokesman has refuted claims that the hospital conducted research on Justina Pelletier. In a written response to the Hartford Courant, Graham said that the "allegations that research was conducted on the patient are baseless and patently false."

Undifferentiated somatoform disorders are difficult to identify and manage conditions. Research on the subject suggests that some patients may require psychiatric confinement and intensive cognitive behavioral therapy. Dr. Alice Newton , head of Boston Children's Hospital child protection team and orchestrator of the Justina Pelletier custody petition told The Boston Globe that these drastic measures were worthwhile. It is likely, but yet unproven, that Boston Children's psychiatric staff were engaged in somatoform clinical research.

According to the complaint Dr. Gary Gosselin, Boston Children's Hospital Inpatient Psychiatric Medical Director, advised the parents that their daughter would be placed under state jurisdiction if they failed to agree with the hospital's orders. With no suitable options the parents agreed to: accept the somatoform diagnosis, pursue no further second opinions and commit their daughter. The forced isolation worsened the child's condition, she was released but remained subject to DCF's supervision.

Intimidated by Boston Children's Hospital dictates and the institution's connection to the Department of Children and Families, the parents are asking for injunctive relief to continue to seek other medical advice without fear of losing their daughter to protective custody.

Justina Pelletier and the other Children Chosen for Nontherapeutic Research

No Entity may Utilize Children in Nontherapeutic Research—Maryland Court of Appeals

Medical researchers are generally required to obtain consent before selecting subjects for experimental studies but there are two vulnerable populations not covered by the The Federal Policy for the Protection of Human Subjects (Common Rule). The first consent-waiver group is foster children , the other, trauma patients . Wards of state have been clinical trial test vessels since 1989.

The most recent example of a foster child being used in ambiguous behavioral research is Justina Pelletier. She and other minors while patients at Boston Children's Hospital were placed under state custody on the premise that the parents were medically abusing their children. Once under state jurisdiction, these children were held by the hospital and treated for their newly-diagnosed psychosomatic disorders. These novel measures, instituted by Dr. Alice Newton , were expected to demonstrate that parental influence was the cause of the children's physical complaints. The circumstances of Justina's sixteen-month confinement as reported by The Boston Globe has precipitated a law to protect children from similar mistreatment. Titled, Justina's Law, H.R. 4989 would:

prohibit the use of federal funds to conduct or support treatment or research involving a ward of the state in which the individual's health is subjected to greater than minimal risk with no or minimal prospect of direct benefit.

An example of the use of children, with parental consent, in nontherapeutic research is the Kennedy Krieger Institute/Johns Hopkins lead abatement clinical study conducted in the early nineties. In 2001 the Maryland Court of Appeals determined , along with other issues, that:

in Maryland a parent, appropriate relative, or other applicable surrogate, cannot consent to the participation of a child or other person under legal disability in nontherapeutic research or other studies in which there is any risk of injury or damage to the health of the subject.

The lead measurement blood study 1993-1999, deliberately exposed hundreds of children to a known toxic property on the basis of the principle of the greater good. Involved parties, outside the complaint, included the EPA and the Johns Hopkins Institutional Review Board.

Concerns expressed by the court:

The researchers and their Institutional Review Board apparently saw nothing wrong with the search protocols that anticipated the possible accumulation of lead in the blood of otherwise healthy children as a result of the experiment, or they believed that the consents of the parents of the children made the research appropriate.

Annotation: Of the more than three thousand Institutional Review Boards directing research, many have been censured for their conduct. Members of Congress and the General Accounting Office have found IRB standards lacking, but nevertheless these entities control the clinical trial environment. Janet Woodcock, director of CDER at the FDA, has reported that " the agency inspects at most 1 percent of all clinical trials ." An AMA survey conducted in 2002 found that IRB chairpersons could not agree on risk parameters for routine procedures performed on a healthy eleven-year-old child. For instance there was no consensus on whether pharmacokinetic testing was a minimal risk, minor increase over minimal risk or more than a minor increase over minimal risk procedure.

Otherwise healthy children, in our view, should not be enticed into living in, or remaining in, potentially lead-tainted housing and intentionally subjected to a research program, which contemplates the probability, or even the possibility, of lead poisoning or even the accumulation of lower levels of lead in blood, in order for the extent of the contamination of the children's blood to be used by scientific researchers to assess the success of lead paint or lead dust abatement measures. Moreover, in our view, parents, whether improperly enticed by trinkets, food stamps, money or other items, have no more right to intentionally and unnecessarily place children in potentially hazardous nontherapeutic research surroundings, than do researchers. In such cases, parental consent, no matter how informed, is insufficient.

Here, the IRB, whose primary function was to insure safety and compliance with applicable regulations, encouraged the researchers to misrepresent the purpose of the research in order to bring the study under the label of "therapeutic" and thus under a lower safety standard of regulation. The IRB's purpose was ethically wrong, and its understanding of the experiment's benefit incorrect.

Children, it should be noted, are not in our society the equivalent of rats, hamsters, monkeys, and the like.

The Nuremberg Code , cited often by the Appeals Court, was written to guard the public from scientific abuses with the "essential" informed consent rule. In the court's opinion citizens are empowered with the freedom to choose their medical course of treatment both by the Nuremberg Code and the due process Amendments.

Those who disagree with the Appeals Court Nuremberg Code ruling argue that:

the failure to conduct such research causes greater harm because it deprives disadvantaged populations of the benefits of imminent improvement in their health conditions.

The question is, whose opinion is trustworthy?