Re: Withholding info/Scout's poor behavior
Michael F. Bowman (mfbowman@CAPACCESS.ORG)
Tue, 19 Aug 1997 02:40:46 -0400
On Thu, 14 Aug 1997, Jay Thal wrote:
> First question is for those with some legal expertese out there:
> 1. What liabilities redound to the parents/guardians of a boy who is or should
> be medicated, or who has previously manifestered dangerous behavior, if the
> parents fail to: a) inform; b) send the meds along; c) remove the boy from meds
> w/o medical advise, if that boy injures another?
Jay's question is one that could easily get a divided review in the legal
community because there are factors involved that defy any bright line
test of liability. However, there are two things that the parents need
to know and understand up front.
First, they are liable for the acts of a minor child generally. So if
the child harms another person or destroys property, they may be found
liable for the damage in civil court proceedings.
Second, they may assume more liability if those acts arose as a
consequence of the negligence of the parents in exercising their duties
as parents which include the obligation to exercise due care to prevent
their children from damaging the property of others or causing injury.
If the parent knows the child will become destructive without medication and
fails to see to it that medication is provided or that anyone is aware of
the situation, there is a good chance they may be held accountable
legally. And if they take deliberate steps to prevent the medication from
being used with the knowledge that withholding it has the predictable
consequence of the child becoming violent, it will be far worse for them.
Aside from these two liability issues, is the issue of whether the
parents might also be referred by the injured parties, the plaintiffs in
a lawsuit, or the court to a state child protective services agency for
evaluation to determine whether withholding the medication amounted to
endangerment of the child and/or abuse, in which case the child may be
removed from the family until such time as a court determines that
custody can be returned and on a showing that the parents will act
responsibly toward the child.
Jay, is that enough to put the fear in 'em?
The notion that a Scout Leader has responsibility as in loco parentis for
a medical condition not known and perhaps deliberately concealed from
him/her is probably doomed to failure in a Court, unless there is a
showing that upon learning of the need for medication, the leader failed
to take action to try to remediate the situation. In such cases the
Court is going to look at the reasonableness of the leader's actions in
light of the unique circumstances of the case. The other side will try
to flay the leader alive to shift the burden to him in some cases, but
this should not succeed if the leader's counsel is on his/her toes. The
real sucker punch is that the leader will probably get dragged in and
incur costs, if things get way too formal and into court. But, if he/she
does, then again, the standard should be whether they acted reasonably
with the knowledge they possessed under the circumstances they
confronted, including their responsibility to other youth in their
charge. Many Courts here will take the same line that Ian mentioned and
recognize that the leader had an equal duty to each child and as a result
could not be reasonably expected to keep watch over a particular child
100% of the time. And in some cases we may find a successful argument
that the parents were negligent, if they did not accompany the child in
cases where the child needs watching 1-to-1 by an adult all the time.
> 2. If there are penalties, then should they not be provided/announced to the
> parents - not to keep the boy out of Scouting, but to assure that they embrace
> an informed risk?
Some units have used permission forms for activities that state that the
parent has to the best of their knowledge disclosed any and all known
medical conditions of the child and that they the parents assume all
liabilty for any consequences of their failure to make a full disclsoure
and further release the leaders from any liability. The clause has some
questionable value in a legal proceeding, but does have the real value of
moral persuasion. It also is one of those things that has an impact on
the trier of facts in a case.
Speaking only for myself in the Scouting Spirit, Michael F. Bowman
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