Driven by new legislation and a motivation to create more meaningful oversight, California's courts are calling for far more justification before judges authorize the use of powerful psychiatric drugs that are now too freely prescribed to foster children.
The state's juvenile court judges have long had the responsibility for signing off on those prescriptions, but too often they fail to question requests for multiple medications at once, unapproved drugs and unproven regimens for very young children. The proposed new rules aim to turn these often blanket approvals into serious probing of prescribers and others who care for foster children, from social workers to foster parents and legal advocates.
Sacramento Superior Court Judge Jerilyn Borack, who presides in juvenile court and helped craft the new rules, said the goal is to have judges approve medications for a foster child "as if this was their own child."
The new procedures represent the first and most significant statewide response yet to a package of bills signed into law late last year by Gov. Jerry Brown to curb rampant use of psychiatric drugs in foster care. The problem received far-reaching response after "Drugging Our Kids," this newspaper's 2014 investigative series.
The newspaper found the foster care system often depends on antipsychotics and other mind-altering medications to manage children's behavior, not to address rare mental illnesses they are designed to treat. Under the new proposals, judges will probe deeper into a child's overall mental health care: If nondrug therapies have not been tried, why not? How are the medications expected to improve the child's condition? How is their sleep, and ability to engage in school? And, in a nod to children's rights to refuse the drugs: Did the child take the medication willingly, or was it a struggle?
Indeed for the first time, children's input -- no matter their age -- would become more central to the courts' decisions. Children would not have to fill out forms. They could draw a picture, talk to an advocate, even speak to the judge directly about how they felt on psychotropics, and whether side effects could be overshadowing potential therapeutic gain.
The current forms have "a lot of check boxes, and a lot of teeny-tiny lines that doctors may or may not write on, and we didn't feel that met the requirements of the new law," Borack said. "If we just give them a check box we are telling them we don't need much more than a yes or no."
In contrast, she added, the expanded forms "will be a way to evidence how little information some of us got in the past, and how that is no longer adequate. The doctors say, 'Well, I'm the doctor. Just trust me and sign off on it.' "
The public has until Jan. 22 to comment on the new proposed rules and forms now posted on the website of the Judicial Council of California, the policymaking body of the state's courts. A final decision will be made April 15, after a series of public meetings, with the new rules taking effect in July.
California is unique in the nation for requiring juvenile court approval of all psychotropics prescribed to foster children. But in many counties, the approvals rarely provide a meaningful review of whether medications are appropriate or even safe. Doctors fail to fill out medication requests completely, and judges often approve medications they know very little about in terms of why they are needed and how they may be helping -- or harming -- the children.
This newspaper found that over the past decade, almost 1 in every 4 teens in foster care receives psych meds, the majority prescribed the most powerful and untested variety, antipsychotics. Many of these drugs leave youths suffering from obesity, diabetes, uncontrollable tremors and severe lethargy while failing to treat the true causes of their emotional difficulties.
The new court rules follow some of the provisions of Senate Bill 238, one of three new laws taking effect in January to better protect foster youths from unsafe medications. A fourth bill, requiring even more of the courts and physicians, did not pass this year but is set to be reintroduced next month.
Under the new rules, doctors could no longer prescribe one drug after another with no explanation of whether they worked. They would be required to discuss specifically whether prescriptions alleviated symptoms. Social workers and probation officers would have to state specifically, in the next six months, what types of therapies "other than medication" the child is enrolled in.
Critique of the proposals is expected to grow, as word gets out to physicians, caseworkers and others that they will be asked to do more to justify medications, as well as fill out more paperwork.
Mark Edelstein, medical director of EMQ FamiliesFirst, a Campbell-based nonprofit providing mental health services to foster children, said that although he agrees with most of the Judicial Council's recommendations, he is concerned that forms for doctors will double in length from three to six pages.
"Child psychiatrists are already in short supply, and requiring even more paperwork would give them less time to provide direct clinical care to foster youth, an already underserved population," Edelstein said. "This kind of administrative burden drives good doctors out of the public sector."
But retired longtime Los Angeles juvenile court Judge Terry Friedman -- the architect of the 1999 California system that requires court approval for all psychotropic prescriptions to foster youths -- called the changes "realistic, balanced and smart." Together, Friedman added, "they will save countless kids from unnecessary and excessive medication while assuring that foster youth receive the drugs they truly need."
State Sen. Holly Mitchell, D-Los Angeles, who authored the bill requiring the court changes, said in an emailed statement that necessary care should not be impeded through "red tape." But she remains hopeful that more accountability "will halt the practice of medicating for convenience the foster children we are supposed to protect and nourish."