Medication for stress: When can a child decide for themselves?

If a child is not yet capable of making its own judgement, adults must decide on medical treatment. But when is a child capable of judgement? A guide through the legal jungle.

Tim is thrilled. He's finally a secondary school pupil! The joy soon gives way to disillusionment: the new teacher is at least as strict as his football coach. Tardiness is punished with cleaning duty in the school building.
Laszlo is new to the grammar school and on the second day of school he receives his timetable with 14 exams to be taken before his grades are due. He swallows twice: «I'll have to get through it, the Matura doesn't come for free.»
Lirida has trouble sleeping at night, can't get out of bed in the morning, complains of headaches and has to be accompanied to school by her father every day so that she can make it there at all.
Three examples of young people that show: Everyone deals with pressures, expectations and stress differently.

When are children overwhelmed?

Insomnia, as in Lirida's case, can be a sign of excessive stress. As described in part 1 of our series, stress has a negative impact on our health. Recent studies show that young people tend to trivialise signals from the body such as headaches, weight changes, skin rashes and hair loss: «Oh, it's just a stressful phase, an exam period, so I'll treat myself to a cupcake now». Or: «I'm just an adrenaline junkie.» In other words, there is a tendency to construct a new normality out of constant excessive demands and overload.

Who is to blame for the constant pressure?

To answer this question, let's first take a look at the legal situation. According to Art. 24 and Art. 27 of the UN Convention on the Rights of the Child (CRC), which came into force in Switzerland in 1997, parents or other legal guardians, teachers and healthcare professionals are responsible for the child's well-being and development. In addition to healthcare, this also includes nutrition, clothing, personal hygiene, accommodation and appropriate leisure and recreation.
In line with this are the child's right to education and the parents' duty to educate the child in accordance with Art. 302 of the Swiss Civil Code (ZGB): The child has a right to be brought up so that it can develop physically and mentally. It should be able to live a healthy life, feel comfortable and receive a general and vocational education.

Parents' duty to educate their children goes beyond providing access to school knowledge.

However, they should also be given access to literature, art and media, and should be able to take responsibility and become competent in organising their own lives. Parents' duty to educate their children therefore goes beyond providing access to school knowledge and concerns the holistic development of the child's personality.

Optimising performance is not one of the educational duties, but ...

According to the Zurich Elementary School Act (§1 para. 3), for example, «the school endeavours to promote the holistic development of children into independent and socially competent individuals. The school endeavours to awaken and maintain the joy of learning and achievement. In particular, it promotes a willingness to take responsibility, motivation, the ability to judge and criticise as well as the ability to engage in dialogue. The lessons take into account the individual talents and inclinations of the children and create the basis for lifelong learning.»

Conclusion: There is nothing about optimising performance in the statutory educational duties set out in the Swiss Civil Code, the Elementary School Act or the Convention on the Rights of the Child. However, it is not that simple, because parents, teachers and children are all part of our society, which demands performance optimisation. Parents and teachers generally want the best for the child, and in some circumstances the child may also want to be among the best on their own initiative.

When is a child's welfare at risk?

So is society to blame when children are exposed to so much stress that they become ill? As we know, society is made up of a large number of individuals - citizens, parents, teachers, medical professionals, education and health policy makers. They are all committed to the overriding interests of children, and they all have a responsibility at the intersection of health, school and family to ensure the protection and well-being of children.
In addition, the state is also obliged by the constitution and the Convention on the Rights of the Child to take measures for the special protection of children. State child protection proceedings are initiated if parents or other legal guardians are unable to fulfil their child-rearing duties and the child's health is impaired.

The best interests of the child include health and family aspects

If a child's welfare is at risk, the child and adult protection authority (Kesb) decides instead of the parents. It takes more than a headache for a child's welfare to be legally endangered - although this could be the first indication that something is wrong. Child endangerment is often a combination of various factors that result in a child not being able to develop in a healthy way physically, mentally, intellectually and/or socially.
There are guidelines for assessing whether a child's welfare is at risk. However, regardless of whether the child's welfare is at risk or not, the following applies: if parents, a healthcare professional or even a teacher do not respect the child's health and personality, the child's right to privacy may be violated . For example, if Lirida's parents do not take their daughter seriously when she complains of a headache, or if the girl is given medication against her will, this violates her personal rights. This can result in claims for damages or compensation.

Weighing up the benefits and risks of medical treatment

The best interests of the child encompass several aspects: health, family and social. However, there is no definitive definition, as it is subject to change over time.
Laszlo apparently finds it normal to be stressed: if all his colleagues are also stressed, he perceives this as less negative than if he were the only one in the class. Recent studies on bullying also show the same effect - but this does not mean that bullying is legally permitted today.
Back to Lirida's headaches: if they are recognised, discussed and treated with medication so that the girl feels better afterwards and the treatment has no side effects on her health, everything is legally in order.

Benefit-risk ratios are individual - depending on the severity of the impairments and suffering.

The benefits and risks of every treatment must be weighed up. If, for example, a methylphenidate drug is administered to a child with a permanent and carefully diagnosed attention deficit disorder, which can have side effects such as tics, sleep disturbance and weight loss, the risk-benefit ratio is weighed up differently depending on how severe the child's impairments and suffering are.
If a child is treated without medical necessity, for example for aesthetic reasons or to improve their grades, this is known as human enhancement.
The term refers to medical or biotechnological interventions that are not primarily of a therapeutic or preventative nature, but are aimed at improving people. Unlike therapy, enhancement is not intended to remedy an illness or ailment, but to improve a person's mental or physical performance.

Who can help the child and how?

However, the boundaries between medically induced measures and those that are not are blurred. An example: A child with behavioural problems takes a medication that it would not need from a medical point of view because there are other forms of therapy. However, the child feels better with the medication, has fewer outbursts, is no longer ostracised by friends and learns better as a result.
Parents who represent their child who lacks the capacity to make judgements should - in consultation with a medical professional - choose a therapy that clearly outweighs the health disadvantages to be feared in the event of no treatment, the suffering, damage and risks of treatment that are to be accepted - and also in the longer term.
The law only ever regulates the minimum standard. Lirida's well-being will undoubtedly benefit more if, for example, a bedtime ritual is found with her that helps her to recover better during the night.

Good communication is key.

Conclusion: In order to find out who can best help the child and how, all those involved - child, parents, teachers, medical professionals - should communicate with each other and all remember that the child's holistic personal development at home and at school is important.

About the author:

Sandra Hotz, Dr. iur., ist Spezialistin für Familien- und Medizin- recht, Rechtsanwältin und Privatdozentin der Universität Zürich sowie «Kinder fördern»- Projektleiterin am Institut für Familienforschung an der Universität Fribourg.
Sandra Hotz, Dr iur., is a specialist in family and medical law, a lawyer and private lecturer at the University of Zurich as well as "Kinder fördern" project manager at the Institute for Family Research at the University of Fribourg.

On the legal concept of judgement

In the case of a 13-year-old girl, the Federal Supreme Court ruled that the medical professional should not have listened to the mother's consent to treat her daughter. The girl had refused the osteopath's intervention to correctly position her coccyx (through the rectum).
A child capable of judgement only gives informed consent as to whether the treatment is for a somatic or mental illness. A child lacking capacity, on the other hand, is represented by their parents vis-à-vis the medical professional providing treatment. They are obliged to act in the best interests of the child. The holders of parental custody decide jointly on health-related matters. If only one parent has parental custody, the other parent must always be informed about the child's health-related matters that also affect the child's education.
According to Art. 12 CRC, a child who is incapable of judgement is also entitled to participation rights in health matters on the basis of their right of personality. This means that a child must be informed about treatment methods, treatment alternatives and risks in an understandable manner and be consulted about their wishes. If they are not sufficiently involved, this constitutes a violation of their personal rights. There are some explicit legal exceptions. The power of representation for children lacking capacity is excluded in the following matters (so-called absolute personal rights):

  • Sterilisation
  • Lebende Organentnahme
  • Genitalbeschneidungen bei Mädchen

In folgenden Behandlungen wird ein Vertretungsverbot der Eltern in Rechtswissenschaft und -politik kontrovers diskutiert:

  • Geschlechtszuweisung und -änderung
  • Enhancement wie Schönheitsoperationen, Neuroenhancement 
  • Schwangerschaftsabbruch
  • Beschneidungen bei urteilsunfähigen Buben aus religiösen Gründen

Book tip:

Vera King, Bengina Gemisch, Hartmut Rosa (eds.) Lost in Perfection Impacts of Optimisation on Culture and Psyche, London 2018

Read more:

This article is the last part of our 6-part series WAS KINDER KRANK MACHT from the magazine 10/18.

  • Teil 1: Was setzt Kinder unter Druck?
  • Teil 2: Was stresst unsere Kinder und wie helfen wir ihnen?
  • Teil 3: Wenn eine sichere Bindung fehlt?
  • Teil 4: Wie helfen wir Kindern in einer Umbruchsituation?
  • Teil 5: Wie helfen wir Kindern mit Zurückweisungen umzugehen?