Update, July 31, 2018 Yesterday, a federal district court judge in Los Angeles ruled that the government must obtain written consent or a court order before administering any psychotropic drugs to immigrant children at Shiloh Treatment Center in Manvel, Texas, except in an emergency. Judge Dolly Gee was responding to a class action lawsuit against the U.S. Justice Department on behalf of immigrant children in government-funded shelters. The lawsuit focuses on practices at Shiloh, a psychiatric facility that operates under a contract with the federal Office of Refugee Resettlement.
Fleeing an abusive stepfather in El Salvador, Gabriela headed for Oakland, California, where her grandfather had promised to take her in. When the teenager reached the U.S. border in January 2017, she was brought to a federally funded shelter in Texas.
Initially, staff described her as receptive and resilient. But as she was shuttled from one Texas shelter to another, she became increasingly depressed. Without consulting her grandfather, or her mother in El Salvador, shelter staff have prescribed numerous medications for her, including two psychotropic drugs whose labels warn of increased suicidal behavior in adolescents, according to court documents. Still languishing in a shelter after 18 months, the 17-year-old doesn’t want to take the medications, but she does anyway, because staff at one facility told her she wouldn’t be released until she is considered psychologically sound.
Gabriela’s experience epitomizes a problem that the Trump administration’s practice of family separation exacerbated: the failure of government-funded facilities to seek informed consent before medicating immigrant teenagers. Around 12,000 undocumented minors are in custody of the Department of Health and Human Services’ Office of Refugee Resettlement. The majority crossed the border unaccompanied, while more than 2,500 were separated from their parents while Trump’s “zero tolerance” policy was in effect from April to June.
Emotional distress and mental health issues are prevalent among these children, sometimes a result of traumatic experiences in their home countries, at other times triggered by being separated from parents at the border, or by fear that they will never be released from ORR facilities. Former shelter employees, and doctors and lawyers working for advocacy groups say the shelters lack sufficient counselors and too often turn to powerful psychotropic drugs when kids act out.
Under most states’ laws, before a child is medicated, a parent, guardian, or authority acting in the place of the parent — such as a court-appointed guardian ad litem — must be consulted and give informed consent. But in these shelters, the children are alone. Shelter staff may not know the whereabouts of the parents or relatives, and even when that information is available, advocates say that the shelters often don’t get in touch. Nor do they seek court approval. Instead, they act unilaterally, imposing psychotropic drugs on children who don’t know what they’re taking or what its effects may be.
“These medications do not come cost-free to children with growing brains and growing bodies — psychotropic medications have a substantial cost to a child’s present and future,” said Dr. Amy Cohen, a psychiatrist who has been volunteering in border shelters. “A person whose sole concern is, what is in the best interest of a child — a parent or a guardian ad litem — that role is desperately needed now.”
Gabriela is one of five immigrants under age 18 who are plaintiffs in a class-action lawsuit filed last month in federal court in Los Angeles against Alex Azar, the head of HHS, and Scott Lloyd, director of ORR. The suit alleges that children are overmedicated without informed consent. Another plaintiff, 16-year-old Daniela, became suicidal after being separated from an older sister who accompanied her from Honduras to the U.S. border. She has been given Prozac, Abilify, Clonidine, Risperdal, Seroquel and Zyprexa in various shelters as staff have been unable to settle on a diagnosis, detecting at different times bipolar disorder, generalized anxiety disorder, PTSD, and major depressive disorder. Her older sister was released from custody and allowed to stay in the U.S., but wasn’t consulted about whether Daniela should take those medications, which have side effects including weight gain, uncontrolled spasms, and increased suicide risk. The lawsuit doesn’t disclose the last names of the plaintiffs. Another ongoing class action lawsuit in the same court, against the Department of Justice, alleges the U.S. is inappropriately medicating immigrant minors as young as 11 years old, violating standards established in a 1997 legal settlement.
In legal filings, Justice Department lawyers have said that the shelters are acting appropriately, in accord with state laws on informed consent. “There is good reason for this Court to conclude that ORR’s provision of such medications complies fully with ‘all applicable state child welfare laws and regulations,’” the department said. State and local authorities, rather than the court, are best positioned to determine whether shelters are in compliance, it also argued.
Reports of overmedication extend beyond the lawsuits. At the Northern Virginia Juvenile Detention Center, which has a program for unaccompanied immigrant teenagers, at least 70 percent of the residents were on antidepressants, anti-anxiety medications and sleep aids, often taking multiple pills, according to two former employees. The two staffers, who left the facility a few months ago, worried that the adolescents were over-medicated. Although the shelter offered group therapy, many teens didn’t participate.
Most of the teenagers had crossed the border alone, but often had family members in the U.S. who were seeking to sponsor them. Even in cases where a child had a mother or father living in the U.S., the parent was never contacted for permission to medicate, said the former employees, who asked for anonymity for fear of affecting future employment.
By law, when an unaccompanied minor crosses the border, the Department of Homeland Security must transfer the child to ORR within 72 hours. Children who arrive with parents can’t be held in a detention center for more than 20 days. The Bush and Obama administrations typically would release the family with an appointment to show up in court, while the Trump administration decided to separate the family, with the parents remaining in detention. ORR then places the unaccompanied or separated child in one of the roughly 100 shelters contracted to provide housing, education, and medical services. Immigrant children can remain in the shelters for months or even years. If the minor crossed unaccompanied but has family members in the U.S., as Gabriela did, the relative must be cleared by ORR as a sponsor, a stringent vetting process that can take months.
To provide mental health services, shelters typically have an in-house counselor who holds therapy sessions, and a psychiatrist on call to conduct mental health evaluations and prescribe medications. The troubled teens aren’t always easy to handle. Sometimes they try to run away or start fights. In a statement obtained by advocates for one of the pending class-action lawsuits, a 17-year-old boy described breaking a chair and window in frustration.
Virginia law has an exception that allows minors to give consent, without adult permission, for mental health care. The law is intended to help minors who want mental health treatment without having to disclose their diagnosis to their parents, according to Jessica Berg, dean of Case Western Reserve University’s School of Law and co-author of a book on informed consent.
Such laws presume “the individual in question actually has capacity” to make the decision, meaning that the physician should first determine that the minor can understand the consequences of treatment and make an educated choice, said Berg.
That’s not happening at the Virginia center, the former employees said. While skipping consent procedures, staff also made it hard for children to say no. A federal field specialist from the Department of Homeland Security instructed staff to file a “significant incident report” every time a teen refused to take medication, said one of the former employees. That report could then be used to justify delaying reunification with family. The teenagers, fearing being written up, would take their pills, the staffer said.
Johnitha McNair, executive director of the Northern Virginia Juvenile Detention Center, didn’t respond to phone calls and an email requesting comment.
Other states, such as Texas and California, require informed consent from responsible adults for mental health prescriptions. Four of the five immigrant plaintiffs in last month’s class action lawsuit, including Gabriela, were given psychotropic drugs at Shiloh Treatment Center in Manvel, Texas, a facility for youths with especially severe mental health issues.
If a child “has a viable sponsor, Shiloh informs the sponsor about any changes in medication prescribed for the child, including starting a new medication or increasing the dose of a current medication,” the Justice Department said in response to the other lawsuit. It didn’t say what ORR would do if there wasn’t a “viable sponsor” available. Gabriela’s attorneys say that her grandfather wasn’t consulted even though he was a viable sponsor.
Shiloh is closely monitored by state officials for compliance with informed consent rules, the Justice Department said, adding, “ORR is not aware of any reported concerns by the State of Texas about Shiloh’s compliance with Texas state guidelines.”
HHS, the department that includes ORR, declined to comment when asked how it handles informed consent and how many children in its shelters were on psychotropic medications. When asked about its mental health policies, HHS sent a link to its policy guide, which says, without further elaboration, that shelters must provide “appropriate mental health interventions when necessary.”
Holly Cooper, co-director of the Immigration Law Clinic at the University of California, Davis, and one of the attorneys representing Gabriela in the class-action suit, said there needs to be a standard policy across all ORR shelters requiring a court-appointed neutral decision maker to approve the use of psychotropic medications when parents aren’t available or can’t be found. That’s already the law in California and Texas, which together are home to about 40 percent of the facilities receiving immigrant minors: A shelter cannot simply declare without court approval that it’s acting in the place of the parent.
ORR doesn’t “have the best interest of these children in mind. There has to be court oversight,” Cooper said.
Cooper said she’s investigating numerous reports of children who were separated from their families in recent months being medicated without their parents’ permission. Leecia Welch, an attorney at the National Center for Youth Law, said she’s hearing similar stories.
A federal judge has ordered the Trump administration to reunify all of the separated children with their families. As of July 12, the administration had reunited 57 children under age five with their parents, and was still working on reunifying more than 2,000 minors over the age of five.
Cohen, the psychiatrist working with advocacy groups at shelters on the border, has heard firsthand from immigrant teenagers about pressure tactics used to induce them to take pills. One teenage girl told Cohen she didn’t want to take antidepressants. So why was she taking them? Cohen asked. Because she was told that otherwise she would lose shelter privileges such as going to a nearby park, the girl said.
A teenage boy told Cohen that he had expected to be detained for only one or two days before being released to family members in the U.S. Eight months later, he’s despondent as he waits for ORR to decide whether his relatives qualify as sponsors. He told Cohen that he cried for two days when the only friendly staff member at his facility left. Shelter staff prescribed antidepressants.
“He wasn’t told what symptoms were being treated or what side effects he should expect,” said Cohen. Instead, he was informed that if he didn’t take his pills, “he couldn’t get out of there,” she said.
Cohen declined to share the teenagers’ names or further details because their cases may be litigated. For some children, medication might be warranted, she said, but the medical records she reviewed indicate that the facilities are opting for drugs too quickly.
The teenage boy’s shelter provided 20 minutes of counseling each week, but in eight months, nobody taught him basic techniques to calm himself down. Cohen interrupted her interview with him to teach him what she could in the limited time they had together. She showed him how to inhale through his nose, hold his breath for four counts, and then exhale slowly.
When you get upset, she instructed him, just remember to breathe.