Is mom a criminal for not allowing surgery on her son?

When Tina Marie Carlsen smuggled her 9-month-old son, Riley Rogers, out of Children's Hospital & Regional Medical Center hours before his scheduled kidney surgery last week, it was the culmination of a long and intense battle with doctors over how to treat her child.

Carlsen wanted to explore alternative treatments. But hospital officials, who believed they were running out of time, finally went to court to have Riley taken from her custody.

Monday, after an Amber Alert and police manhunts, Riley was back in the hospital and Carlsen was in custody, charged with second-degree kidnapping.

It's a situation that sends chills through many parents — and doctors alike. How can a parent who objects to medical treatment of her child become a criminal?

Even though going to court to take custody away from parents who refuse treatments for their children is always a last resort, it happens regularly, said Dr. Doug Diekema, interim director of the Treuman Katz Center for Pediatric Bioethics at Children's.

"This is very, very different than a parent who beats their child, who is trying to harm their child," he said. Parents who object to medical treatment typically have their child's interests at heart, though their decisions may in fact harm their child.

Although parents are generally given quite a lot of latitude when it comes to making decisions for their children, their freedom screeches to a halt when they put their child at risk of serious harm, Diekema notes.

"One of the questions in law has always been where we draw that line," Diekema said.

Doctors are not empowered to override parents' decisions, so courts of law must decide, said medical ethicist Tom McCormick, senior lecturer emeritus in the department of medical history and ethics at the University of Washington.

In most cases, the medical situation has to be "life-threatening" or likely to grievously impair or cause suffering to a child, and risks of not treating must be weighed against those of treatment, he said. "The threat to a child's life and safety must be imminent," McCormick said.

Even so, in Riley's case there is some dispute about how imminent the threat was.

As a statewide Amber Alert was issued by police Thursday evening, they said the baby would die "imminently" if not treated. But the next day, Children's medical director, Dr. Richard Molteni, said in a statement: "We do not believe that Riley's health condition puts him in imminent danger."

Molteni added that the baby was "very vulnerable," and a minor change, even a cold, could quickly become a "life-threatening situation."

Hospital officials and the state's Child Protective Services would not say Monday whether Riley had undergone surgery, citing patient-privacy laws.

Diekema said most disputes over medical treatment of children involve cancer and chemotherapy, complex cases because of varying chances of survival.

"If there's only a 10 percent chance of surviving with chemo, then we ought to let parents decide. But if it's 90 percent, then that's a different question," he said. Courts are a good venue to weigh competing interests, he added.

But state intervention can be "serious harm" in itself, Diekema has often argued.

"It's a big deal to take a child out of a home, a big deal for parents to be told they can't make decisions for their child," he said. "So we have to weigh that, and do everything possible to avoid getting to the point where we seek a court order." Typically, the removal of custody is temporary, he said.

In Riley's case, his mother and the hospital had been disagreeing over his treatment for at least weeks. The hospital got a court to take custody away from Carlsen on June 9.

Diekema, who sits on the hospital's ethics committee, said the standard was "very clearly met." Riley was in serious danger, and the procedure needed wasn't intensely painful to undergo, nor did it involve a lot of suffering, he said.

"In my mind, the equation was very clear," he said.

Years ago, Children's routinely got court orders to give blood transfusions to children whose parents were members of the Jehovah's Witness church, who oppose blood transfusions on religious grounds.

About five years ago, the hospital changed its approach. Rather than take the parents to court, it simply informs them upfront of its policy and lets them decide whether to have the child treated there or not: "We will not let a child die here because of the need for a blood transfusion."

"I think that's a reasonable compromise," Diekema said.

Usually, compromise works, he says, as it did in a recent cancer case. "The most recent one took two weeks and a lot of time for our oncology team," he said. "But it's better than going to court."

McCormick said some otherwise good parents just have a "blind spot" when it comes to medical decisions for their child, and Diekema agreed:

"That doesn't make them criminals, and it doesn't make them bad parents," he said.

"I think it would be awful if someone went to jail. I don't think it's the appropriate approach in these cases. This is where mercy needs to balance justice a little bit."

Carol M. Ostrom: 206-464-2249 or costrom@seattletimes.com