After more than 50 years of evidence showing that methadone maintenance (MM) treatment works, the courts—both civil and criminal—are making decisions only a doctor should make, telling patients to stop taking their legally prescribed methadone. These decisions are coming down particularly hard on women, who in some cases are being told by Child Protective Services (CPS) that they have to get off methadone if they want custody of their newborn child.
This happened in a case of a model patient who entered MM treatment, and then found out that she was pregnant. The case, described to AT Forum by Emma Ketteringham, JD, director of legal advocacy for National Advocates for Pregnant Women (NAPW), involved a woman who was stable and doing well in MM treatment. “She did everything right, availing herself of all the services the opioid treatment program (OTP) had to offer, including parenting classes,” says Ms. Ketteringham. Yet when her baby was born, and she told the hospital she was receiving MM treatment, and even showed documentation from the program, someone from the hospital reported her to CPS. This report resulted in an immediate investigation, with the CPS caseworker telling her that she had to go off methadone if she wanted her baby back. She wanted to continue her successful MM treatment and regain custody of her child.
The law is on the side of women in MM treatment in OTPs. It is against the law for the court system—or any other government agency—to single out people in medication-assisted treatment (MAT) and require them to stop taking their medication, or to switch to another medication or another form of treatment, according to the Legal Action Center. If a child welfare caseworker tells a woman that she must stop taking methadone in order to gain custody of her child, this is a violation of the Americans with Disabilities Act (ADA), says Katie O’Neill, JD, senior vice president of the Legal Action Center. The ADA prohibits disability-based discrimination. “People who participate in MM treatment for opiate addiction are considered to be Individuals with a disability, so you cannot legally prohibit someone from receiving that treatment.”
But the job of CPS is to protect infants and children from abuse and neglect. When a newborn is going through the neonatal withdrawal syndrome, a caseworker who is not knowledgeable about methadone treatment may conclude that the mother has “exposed” her newborn to a drug—methadone. The caseworker interprets that as neglect, and threatens the mother with loss of her baby if she stays in MM treatment.
CPS investigations are secret—the person reporting the “neglect” does so anonymously. “We see cases from all over the country where women are threatened with loss of custody orhave had their children removed because they receive MM treatment during pregnancy,” says Ms. Ketteringham. Family court judges who make decisions about custody do sowithout a jury, and in some states, the mother has no attorney or is discouraged from fighting the charges by her own attorney, says Ms. Ketteringham. Family courts “notoriously make decisions relying on claims made by caseworkers rather than on evidence presented by experts,” she adds.
“Many lawyers appointed to represent women facing a loss of custody in family court are not knowledgeable about clinical or legal realities of MM treatment,” adds Ms. O’Neill.
The best way to prevent any problems after the baby is born is communication between the OTP, the hospital where the baby will be delivered, and the obstetrician. “Although the mother should not have to, she should organize advocacy on her behalf before the baby is born,” Ms. Ketteringham says. “She should make sure someone in her program will advocate on her behalf, have the printed or online literature about MM treatment during pregnancy handy, and contact a lawyer or organization that advocates for pregnant women and parents in the child welfare system.”
The model patient, Ms. Ketteringham’s client, eventually won her case, but it took nine months, during which time her baby was in foster care. When AT Forum went to press, the decision in the case had not yet been published, but the judge had returned the baby to the mother. She is still in MM treatment and doing well.
For Additional Reading
MMT and Pregnancy, an AT Forum patient education brochure, available in English and Spanish: https://atforum.com/patient-education-brochures/.
A newsletter from the National Advocates for Pregnant Women: http://advocatesforpregnantwomen.org/.
Know Your Rights, a brochure from the Legal Action Center on the rights of people in MMT, available in English and Spanish: http://www.lac.org/doc_library/lac/publications/Know_Your_Rts_-_MAT_final,_9.28.10.pdf,
SAMHSA Brochure Pregnant Women 2006.080904-39-5315-04-44.pdf: https://atforum.com/documents/SAMHSAbrochurePregnantWomen2006.080904-39-5315-04-44.pdf