A federal class action lawsuit filed against the state of Maine alleging that hundreds of children in foster care are being given potentially harmful psychotropic drugs without adequate safeguards. The suit is asking the state to take several immediate steps to protect kids’ constitutional rights.
Brought by the national advocacy group, Children’s Rights, the Portland, Maine-based law firm Bernstein Shur and Maine Equal Justice, the lawsuit alleges that nearly 500 children, about 20 percent of those in foster care, are receiving one or more psychotropic drugs. These are powerful drugs such as antidepressants, mood stabilizers, and anti-anxiety medications that advocates say can be harmful to kids.
Attorney Jack Woodcock of Bernstein Shur says that was the case for six children named in the complaint, including a seven-year-old boy identified only as Brian C.
“Brian C. is taking at least four psychotropic medications concurrently while he was in state custody. And these medications harmed him. He expressed suicidal ideations. He had a 25-pound weight gain and it disrupted his learning in brain development,” he says.
Woodcock says the boy described in his own words that when he was on the medication his brain “didn’t work.”
According to the complaint, the Maine Department of Health and Human Services and the Office of Child and Family Services have acknowledged the serious risks associated with psychotropic medication administered to foster children as well as their responsibility to protect these children against the dangers. But the plaintiffs say that hasn’t happened.
“We think the root of the problem is not just that psychotropic drugs are used often with children but that, truly, the state is failing in its responsibility to set up proper oversight mechanisms and guardrails,” says Marissa Nardi with the advocacy group Children’s Rights.
Specifically, Nardi and Woodcock say the state has failed to maintain comprehensive and up-to-date medical records for children in custody and to provide the records to caregivers. They say the state also failed to enforce an adequate informed consent process for administering a recommended psychotropic drug. And third, it failed to establish a system to ensure that all drugs are flagged for review by a child psychiatrist.
“So a lot of the time what happens is that kids are prescribed psychotropic medication to control their behavior, sort of as a chemical strait jacket. So we are really putting the onus on the state to create oversight structures to make sure that kids don’t fall through the cracks,” Nardi says.
Nardi’s group filed a similar lawsuit in Missouri that was settled last year when the state agreed to overhaul how it monitors children on psychotropic drugs. And this week it also filed a lawsuit against New Hampshire.
In a written statement, a spokesperson for the Maine Department of Health and Human Services said the lawsuit in Maine is not about protecting children. Jackie Farwell says if that were the motivation for the New York-based group, it would have reported these allegations through appropriate channels and allowed DHHS to investigate and take appropriate action.
Farwell points out that the Mills administration is working to improve child welfare records management and has continued to reduce the use of psychotropic drugs as part of broader child welfare reforms.