Ilana Gomez, CLS ’21
The legacy of the 1985 class-action lawsuit, Flores v. Reno, promulgated the Flores Settlement Agreement (“Flores Settlement”) and began a nationwide conversation on the ethical standards of processing undocumented minors separated from their parents and families. The agreement, which has proved a contentious crux for Trump’s zero-tolerance policy, essentially ordered the government to detain children in the “least restrictive” settings, create and implement appropriate standards of care of detained children, and release children “without unnecessary delay” to specific individuals listed in the agreement.
Many U.S. detention centers have failed to meet the Flores standards, and some have allegedly provided psychotropic medication without appropriate authorization.[1] In 2018, the Center of Human Rights and Constitutional Law (CHRCL) filed a class action lawsuit, Flores v. Sessions, against a Texas facility in Manvel, Texas, alleging that the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) unlawfully administered psychotropic drugs to detained children without appropriate consent.[2] On one occasion, ORR staff threw a child to the ground and forcibly opened his mouth, while another complaint detailed coercive practices where children were threatened to take medication.[3] Such threats included telling the children that the only way they could leave the center was if they took the medication.[4] This treatment violates the Flores Settlement’s requirement where ORR facilities must “comply with all applicable state child welfare laws and regulations,” and only provide children with “appropriate mental health interventions when necessary.”[5]
In July 2018, U.S. District Judge Dolly Gee ordered in Flores v. Sessions, that Texas state child welfare laws and regulations govern the administration of any psychotropic medication to children at the Texas detention center in question.[6] Therefore, legally authorized persons defined in the Texas Administrative Code, Texas Family Code, or a court, must disclose any administration of psychotropic medication to detained children. In an emergency situation, however, the detention center could administer medication if it is immediately necessary to provide medical care in order to prevent the imminent probability of death or substantial bodily harm to the child or others.[7]
This recent decision, while a step in the right direction, might be insufficient for the protection of detained children’s consent rights considering the varying state child welfare laws and regulations defining informed consent. In Arizona, for example, an ORR Director or a licensed physician can medically authorize psychotropic medication to detained children.[8] The ORR also has a policy that if a state law requires informed consent from a parent – and it is not possible or timely to retrieve it due to the inability to locate the parent – then the ORR may direct a facility to seek a court order authorizing the medication.[9] It is clear that child welfare laws were drafted without undocumented and parentless children in mind, and therefore appropriate policy specific to the needs of migrant families separated at the border is both necessary and urgent.
[1] Scott J. Schweikart, April 2018 Flores Settlement Suit Challenges Unlawful Administration of Psychotropic Medication to Immigrant Children, 21 AMA Journal of Ethics 67, 67-68 (2018).
[2] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 20-21 (C.D. Cal. Nov. 5, 2018).
[3] Samantha Schmidt, S. Trump Administration Must Stop Giving Psychotropic Drugs to Migrant Children Without Consent, Judge Rules, Washington Post (July 31, 2018) https://www.washingtonpost.com/news/morning-mix/wp/2018/07/31/trump-administration-must-seek-consent-before-giving-drugs-to-migrant-children-judge-rules/
[4] Id.
[5] U.S. Department of Health & Human Services, Office of Refugee Resettlement, Children Entering the United States Unaccompanied: Section 3. (2015)
[6] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 23-24 (C.D. Cal. Nov. 5, 2018).
[7] Id. at 23.
[8] U.S. Department of Health and Human Services, Office of Inspector General,
Care Provider Facilities Described Challenges Addressing Mental Health Needs of Children in HHS Custody (2019).
[9] Id.
