Parents’ Rights Weren’t Violated in Chemo Case

(CN) - Utah doctors and child-protection workers did not violate a couple's constitutional rights by urging a judge to order chemotherapy for their son, who was diagnosed with a rare form of cancer, the 10th Circuit ruled Wednesday.

Sandy residents Daren and Barbara Jensen have been battling the state over the custody and medical care of their son, Parker, who was diagnosed in 2003 with Ewing's sarcoma, a rare and aggressive form of cancer.

When the Jensens refused to allow chemotherapy treatment for the then-12-year-old boy, Dr. Lars Wagner and other medical personnel reported them to the Department of Children and Family Services (DCFS).

The Jensens consulted with out-of-state doctors and sought alternative therapies. They wanted their son evaluated by doctors at the Children's Hospital of Los Angeles, and they sought a second opinion from a clinic in Vienna, Austria.

But a juvenile court ordered that the state take custody of Parker and that he begin chemotherapy. The order was never carried out, however, because the Jensens temporarily left the state. They were later charged with misdemeanor custodial interference.

In 2005, they filed suit in state court against five state actors: Dr. Wagner; Karen Albritton, the state's expert medical witness; DCFS director Richard Anderson; social worker Kari Cunningham; and assistant Utah attorney general Susan Eisenman, who prosecuted the juvenile case.

They claimed the defendants violated their Fourth Amendment rights and their right to control their son's medical care.

The case was removed to federal court, but was thrown out by U.S. District Judge Ted Stewart. A state-court judge tossed other claims in 2009.

The Denver-based appeals court agreed that the defendants had acted in good faith and could not be sued. The court acknowledged that parents have the right to control their child's medical care, but said the Jensens' rights had not been violated.

"The record demonstrates that no less than seven qualified and competent doctors evaluated [the plaintiffs' son], diagnosed him with life-threatening cancer, and recommended that he immediately undergo chemotherapy treatment in order to save his life," Judge Deanell Reece Tacha wrote for three-judge panel. "In this particular situation, the Jensens did not have a clearly established constitutional right to refuse the unanimous recommended treatment or to solicit additional opinions until they found a doctor who disagreed that conventional treatment was necessary."

She added, "[W]hen a child's life is under immediate threat, a state's interest in protecting the child is at its zenith, and a state has broad authority to intervene in parental decisionmaking that produces the threat to the child's life."

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