Legal issues, health information and AD/HD (Long)
Ian N Ford (ianford@DIRCON.CO.UK)
Sun, 17 Aug 1997 19:08:33 +0100
Dave makes some good points, but perhaps one ought to explain that
<in loco parentis> comes from the Latin and means " in the place of the
parent " ( from locus = place ) However, it has been argued that this
only applies when the person in loco parentis assumes <all> parental
responsibilities, e.g. a guardian when the natural parent is dead or
inapacitated, and that schoolteachers, youthworkers etc. are actually
in a different position. English law talks about " parental rights and
responsibilities " separately from the duties of <any> adult having
" care and control " of a minor - what used to be decsribed as " actual
custody " . My understanding is that being in loco parentis means you
have full parental rights and responsibilities, i.e. a legal or moral
obligation to provide for the child as a parent would. In this sense it
is unlikely that a Scouter would be truly in loco parentis.
The UK law is probably different from that of US, so caveat lector ...
Here the legislation is the Children Act which requires that any person
having the control of a child under sixteen years of age should " take
all reasonable steps to promote the health, safety and welfare of the
child ... " ( not a direct quote, but close enough.
Caselaw in UK is that a Scouter must act as a " reasonable parent " would
act in the circumstances , the test of reasonableness being that of the
judge and / or jury, not the actual parent. So just because Jimmy's dad
takes a belt to him when he misbehaves doesn't give the Scoutmaster the
right to do likewise. Fortunately the English courts have determined that
the degree of care is such that they recognise that a Scouter may have twenty
or more children to look after, and attention will divided accordingly.
[AAgain, I am not sure what the situation is in your state. Here in UK a
child can be sued if s/he is of sufficient understanding - so if it can
be shown that a Scout could reasonably expect that his/her action will
cause injury then liability arises. Most kids would recognise that
hitting another Scout with an axe, say, would cause them damage. Of
course, in reality the Scout is unlikely to be <worth> suing unless he
has a private income ( unlikely) ... so the next course of action is
against the adult who has control of the child - i.e. the Scouter. It
might be a defence if the Scouter could say " I did not know that Jimmy had
behavioural problems that means that he needed more than one twentieth of
my attention ... had I known I would have been more vigilant. His parents
have been negligent in not apprising me of the risk, so they are partly
to blame. ( Contributory negligence. )
Again, it has to be proven that the Scouter or parent ought to have
reasonably forseen that Jimmy would cause the problem. If Jimmy is known
to have a penchant for starting fires before he sets fire to the whole of
the National Park then that would suggest a need for closer supervision
than if he has no previous history of fire raising.
In the specifics of AD/HD - Medication is not a " cure " but a part of a
whole package of therapy. It has been argued that it is only when the
patient stops taking medication that the prescriber can tell if it needs
to be continued, or the dose changed. There are practical reasons for
doing this during the Summer break, when the pressures of school are
absent and hopefully the child will be supervised by the parent. Although
it is now disputed that stimulant drugs restrict growth, there is still a
body of professional opinion that recommends a " drug holiday " and it
would be a nice point to argue in court. I could probably find expert
witnesses to argue either point of view, or possibly both simultaneously.<g>
The issue is not whether or not Jimmy is taking his Ritalin, but knowing
that Jimmy has a problem with impulsivity, inattention, disorganization,
lack of social skills, etc. that needs to be dealt with all the time.
Medication helps to control the symptoms, but all it does is deals with
the impulsive element. Unmedicated, Jimmy may have an idea and carry it
out, only to regret it almost immediately. What happens is the idea is
translated into action before the part of the brain that inhibits action
kicks in. Most adults want to bust their boss on the nose at some time,
but the frontal lobe says, in effect " that is not a good idea if you
want to keep your job. " AD/HD means you bust him on the nose and only
then does the realisation sink in that it was not a good move.
What kids - and adults - with AD/HD need is help with anger management,
help in learning to read social cues more appropriately, and ability to
" reframe " situations more positively. Tylenol will help the symptoms of
banging your head against a wall, but the best treatment is to learn to
stop banging your head against the wall.
But to return to legal generalities ...
The other issue is <criminal> responsibility, which in England and Wales
can be age nine, subject to the child's understanding. For serious
offences such as murder it can be younger - as in the case of the two
boys who murdered James Bulger. If a crime is involved then it is the boy
who is liable ... although most jurisdictions have a special system for
dealing with offences by juveniles, and separate forms of punishment.
Assault, theft, criminal damage, etc. are <criminal> acts for which the
young person may be liable if he knows that what he is doing is " wrong ".
Legally this is known as " mens rea " - roughly speaking an intent to
carry out an act which you know is wrong. If a child picks up a gun
thinking it is a toy and shoots someone, for example, there is no guilty
intent. On the other hand, if he knows that he has a " real " gun and
that it is likely to cause injury, and he still pulls the trigger then he
will possibly be found guilty with diminished responsibility, or maybe
held fully liable.
Clearly an adult who facilitates the commision of a crime by a juvenile -
e.g. by leaving the loaded gun unattended, or giving it to the child to
borrow without proper supervision , may be guilty of " aiding and
abetting " the offence, or may be subject to civil action for negligence.
So if you see a kid in your care in the parking lot with a wire coat hanger
and a length of parcel strapping you ought to ask why ... otherwise when
he " borrows " a vehicle it could be claimed that you were negligent in
not taking reasonable steps to prevent the crime.
I am not a lawyer, and in any case the above is my understanding of the
law of England and Wales, for what it is worth. However, the general
principles will probably still apply.
Ian N Ford DMS FRSH
Trainer, Channel District, Transatlantic Council BSA
Social Work Practice Teacher, postgrad. psychology student etc.
[ Insert usual disclaimers etc. here ]
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City