Ashley’s Case: Court Order Should Have Been Obtained

Ashley is the little profoundly disabled girl who was subjected to non therapeutic interventions, including a hysterectomy and a mastectomy, in addition to hormone therapies to keep her “small.” At the time, I wrote here at SHS that, at the very least, matters such as this should be brought to court for review before engaging in such serious interventions.

I hate to say it, but I think any such future cases should be decided beforehand in a court of law, with full arguments made on both sides of the question. I can’t think of another way to protect the profoundly disabled from well meaning but potentially dangerous and unnecessary medical procedures.

I got a bit of flack for that. But now, even the Seattle Hospital agrees that the matter should have been brought to a court beforehand. From the story in the Seattle Times:

Children’s Hospital & Regional Medical Center admits it was acting outside the law when its doctors performed a controversial hysterectomy on a severely disabled 6-year-old girl, even though her parents and doctors had concluded the operation was in her best interest.

In response to an investigation by a disability-rights organization, hospital officials now acknowledge they should first have sought court approval for the 2004 surgery on the girl, known publicly only as Ashley. The hospital says the error was the result of a “communication breakdown.”

Uh huh. It’s always a communication breakdown, isn’t it? The entire investigative report by the Washington Protection and Advocacy System an be accessed here. A few excerpts:

- The sterilization portion of the “Ashley Treatment” was conducted in violation of Washington State law, resulting in violation of Ashley’s constitutional and common law rights.
- The Washington Supreme Court has held that a court order is required when parents seek to sterilize their minor or adult children with developmental disabilities, and that the individual must be zealously represented by a disinterested third party in an adversarial proceeding to determine whether the sterilization is in the individual’s best interests.
- Courts have also limited parental authority to consent to other types of medical interventions that are highly invasive and/or irreversible, particularly when the interest of the parent may not be identical to the interest of the child. Thus, the other aspects of the “Ashley Treatment”— surgical breast bud removal and hormone treatments—should also require independent court evaluation and sanction before being performed on any person with a developmental disability.
- The implementation of the “Ashley Treatment” also raises discrimination issues because, if not for the individual’s developmental disabilities, the interventions would not be sought. Such discrimination against individuals because of their disabilities is expressly forbidden by state and federal law.

In any event, good for the disability rights organization that wouldn’t let this go, and as a result, have acted forcefully to protect the interests of children such as Ashley.