ADHD - what rights do children have?

The best interests of the child are the guiding principle in Switzerland. This means that the best interests of the child take precedence over other interests, possibly even over the wishes of the parents. Measures taken within the education system or healthcare system that do not take sufficient account of the interests of the child may therefore be unlawful.

However, it is difficult to determine in individual cases what is in the best interests of the child and what is not, especially when parents', school and children's interests and medical opinion differ regarding the support of a child with ADHD. Are known side effects of a medication such as sleep disturbances or loss of appetite justifiable if the child manages to pass from 3rd to 4th grade or gets along better with friends and siblings as a result?

Does it possibly benefit the child's welfare indirectly if the increased opportunity to structure himself relieves his family? To make matters worse, an independent «third party» authority or a court rarely decides on the child's welfare in this context.

Rather, the actors are directly involved and sometimes it may be unclear who is «in charge» when the interests of the parents, the professionals and the child are in conflict. Parents have both a right and a duty to care for their children, especially in health and school matters. In principle, they are the legal representatives of their underage children and have a say in all support measures and medical treatment for schoolchildren.

For example, a teacher cannot decide on their own whether a child should attend additional lessons with a speech therapist. This can only be done in consultation with the parents. A doctor must also ask the parents whether they agree with the proposed therapy before starting treatment. Emergencies are reserved.

As treatment with medication is not harmless, the decision is no longer solely at the discretion of the parents: not only must the medical necessity first be clearly and reliably diagnosed and decided by the healthcare professional, but the child must also be involved in the decision-making process.

Depending on the child's comprehension and degree of maturity, its capacity for judgement, it also decides for itself. There are no fixed age requirements in Swiss law as to when a child is capable of judgement. This must be assessed on a case-by-case basis. A child must be able to understand and assess what it is doing and also be able to act in a differentiated manner.

An example: A 12-year-old child with an AD(H)S diagnosis refuses a medication because he has known its effects for a year, has already discussed them with his parents and/or doctor and then comes to the conclusion that it is not helping him to improve his performance at school.

The child must also be able to communicate this. However, even if a child is able to participate and/or co-decide appropriately, it is at primary school age that they are most exposed to the influence of adults. In other words, they can still be influenced.

Medication deliberately accepts certain side effects, possibly irreversible consequences such as growth disorders, tics or psychoses, which the child has to bear alone. This could also be seen as a fundamental legal problem: Are authorised representatives really allowed to decide something for the child if the child alone has to bear the negative consequences?

Schools and parents have a legal duty to work together for the benefit of the child. If the child needs support, the teacher plays an important role. As a rule, they will be the first to seek dialogue with the parents and draw their attention to the child's «conspicuous behaviour» in class. A joint decision is then made on support measures.

The teacher also plays an important role in the success of a child with AD(H)S at school. If the child's welfare is at risk, the parents do not want to take remedial action and the possibilities of counselling have been exhausted, the school also has a duty to inform the child and adult protection authority.

If the co-operation between parents and school works well, for example through ongoing verbal feedback, the parents are also relieved. The child's right to participation and co-determination in school matters must also be respected. They should therefore always be involved in school-parent-house discussions. Ultimately, the decisive question is how children's rights and best interests can be safeguarded in this complex matter.

Firstly, the child must participate in an age-appropriate manner, i.e. they must express their opinion and have a say in their treatment on an ongoing basis. Furthermore, the suffering of the child must clearly «outweigh» the psychological and physical disadvantages that can arise from the side effects of a medication. There is a great need for research to be able to better assess this.

From a legal perspective, formal hurdles in prescribing authorisation should also be discussed, such as protection against overprescribing - the symptoms must persist for at least a year and the treatment must be reviewed once a month.

Also to be discussed are a restriction to child psychiatrists or additional training for general practitioners so that exclusion diagnoses can be made.

AD(H)S - Medical law principles

Careful medical diagnosis: An AD(H)S diagnosis must be made according to recognised and well-tested diagnostic criteria (DSM-5, ICD 10). Among other things, it can only be considered accurate if the child has been personally examined, problem behaviour has been present for more than six months, the symptoms occur in several areas of life (home, school) and the impairments are of a certain severity.

Prescribing Ritalin: In Switzerland, all authorised doctors are permitted to diagnose AD(H)S and, if necessary, prescribe the drug Ritalin (or another preparation containing the active ingredient methylphenidate, MPH).

However, the Swiss Agency for Therapeutic Products Swissmedic recommends on its website that «treatment with medication should only be started by doctors who specialise in behavioural disorders in children and adolescents or adults, and should also be supervised by such a doctor».

Medical necessity of the treatment

There are now a whole range of different approaches to treating diagnosed ADHD. The choice is up to the parents, their child and the medical professional. It is clear that the health disadvantages to be feared in the event of non-treatment must outweigh the suffering, damage and risks of treatment.

Informed Consent

The prerequisite for valid consent to treatment and any physical intervention is prior information about the treatment method in question (including possible benefits, risks, side effects and costs). If this information is not provided, those affected cannot assess what this treatment means and their consent is legally invalid.

Normally, the parents or the responsible parent may give their consent to a child's medical treatment. The child must always be involved in the decision. The higher the level of maturity of the child/adolescent and the broader their own experience with AD(H)S, the more likely they are to make their own decision. Treating a child with medication without medical necessity and/or without informed consent is contrary to international law, constitutional law, criminal law and civil law.

Neuro-enhancement

If a child is treated with medication without medical necessity, we can speak of neuro-enhancement, i.e. a performance enhancement measure. Cosmetic surgery, for example, is not medically indicated, but it may be that the patient concerned feels decidedly better afterwards.

It is also possible that a child taking a medication does not need it from a medical point of view, but feels better because it has fewer outbursts and is therefore less ostracised by friends or learns better and is praised more as a result. The boundaries become very fluid here.