Roger writing the LAWmag

Factitious Disorder by Proxy, Legal Information Disorder Directly

Upon first reading an international news story this morning from Australia, the reaction of most lawyers to the words "factitious disorder by proxy" may have been to pay real attention as would certainly have been the reaction of the non-lawyer, the man on the Clapman Omnibus to the tragic facts the story presented. But for any lawyer, that story would also revive some long-lost interest in criminal law.

Previously, "Munchausen's Syndrome by Proxy"

The story from Australia raised the use of a very novel defence to a very serious criminal charge. The type of defense mentioned in the news story is as fantastic as the best of Baron Munchausen's children stories, though without the fictionality, sheer horror and criminality.

Although rare, the throey behind factitious disorder by proxy is not completely unknown to the criminal law though previously under other labels: factitious disorder and Munchausen Syndrome.

As such, the intentional infliction of harm upon another for ADHD reasons could come under the umbrella of a mental disorder and allow the perpetrator to escape full criminal liability for her direct actions. Consider the case of Ramona v the Superior Court of Lon Angeles in which, in 1997, Justice Ortega of the Court of Appeals of California offered that:

"... expert testimony is admissible ... to explain the symptoms of Munchausen's syndrome by proxy, a condition whereby a parent secretly causes the child's illness in order to attract attention or sympathy."

Mental disorderThere had even been a 1981, earlier California case of this phenomena: The People v. Phillips, in which the tragic facts of another mother's alleged actions towards her infant daughter, fatal sodium poisoning, are documented and referred to by the Court in the judgment as "Munchausen's syndrome by proxy".

Factitious Disorder by Proxy

According to the Australian newspaper, in that article that was reprinted around the world given the novelty of it if not, unfortunately, for the unusual tragedy of it, a real human young mother living on the Gold Coast of Australia was given a seemingly small sentence by a court sitting in Brisbane, of a short period of incarceration following conduct that was truly horrific. Apparently, the young mother had a form of attention deficit disorder that almost killed her daughter

ADHD or not, the next fact in chronological order was about as criminal as criminal can be.

The mother invented - completely fabricated the story that her four-year-old daughter was suffering from some form of leukemia. Following a planned-out buasiness plan, she then opened a "My Daughter's Fight For Her Life" Facebook page asking for donations.

So far, sick behavior and commercial fraud, but not firmly within the grip of the criminal law. What put her in that category was what she did next.

In order to give credence to her invention and in all likelihood, to increase the flow of donations, she managed to obtain chemotherapy pharmaceutical products over the Internet (from that lovely beacon of law and justice, Canada, of all places). The mother opened her package and then administered these drugs to her daughter over a period of nine months. In fact, and again according to the Australian newspaper, what the chemotherapy drugs did  was make her daughter seriously ill and almost killed her by causing a bone marrow failure. The daughter will, in all likelihood, have permanent and serious health problems.

These facts truly boggle the mind. It is difficult to say or to propose rationally, what might have been the point of the exercise other than criminal behavior, plain and simple.

When she was sentenced before Judge Anthony Rafter, her lawyer Catherine Morgan, likely with an expert opinion to back her up, made legal history by proposing to the court that the mother was not fully responsible for her actions because, and here we quote from the Australian newspaper:

“The mother had suffered from an extremely rare mental disorder known as factitious disorder by proxy, where a person deliberately produces, feigns, or exaggerates symptoms of someone in their care."

Judge Rafter, to his credit, sentenced the mother to prison.

But still, the thunderous words “factitious disorder by proxy” had entered the halls of law and justice, surely to be pulled out again.

It seems almost self-evident that any mother who would administer to her four-year-old daughter chemotherapy medication for no medical reason is either criminally insane or just plain and simple the worst kind of crook, a sociopath prepared to put the safety of others, even that of a child, on the line to earn a few bucks on Facebook and to scratch their ADHD exzema, figuratively speaking.

Factituous disorder is well-known to those in the business of psychiatry but this, the "by proxy" species of it, is a hard-to-stomach variety of it.

Here is an individual (1) capable of setting up a donation page on Facebook and (2) capable of securing hard-to-find drugs on the Internet. Thus, to this observor, with an impressive package of cognitive abilities when it comes to earning money, safety of her child be damned. But when she is caught and convicted and it comes time for accountability and sentencing, out comes a proposed "Stay Out of Jail" card, a diagnosis of a mental disorder facetious disorder by proxy.

There are, to be sure, cognitive or mental disorders that divest the accused from responsibility for their actions, such as the completely undiagnosed situation of an epileptic who has his or her first seizure while driving a car, crashing his vehicle while unconscious, and injuring others. In such a case, the words act of God appear to be more applicable.

Lawyers, though, don't have the letters "M.D." after their names. And so continues:

“... the feud between medical men and lawyers and all questions concerning the criminal liability of lunatics (which) is of old standing.”1

REFERENCES AND CITATIONS

  • Brisbane Times, Queensland Mum Fed Girl Cancer Drugs For Attention, June 11, 2014
  • NOTE 1: Oppenheimer, Heinrich, The Criminal Responsibility of Lunatics, (London: Sweet & Maxwell, 1909), page 1.
  • People v. Phillips, 175 Cal. Rptr. 703 (Court of Appeals of California, 1981)
  • Ramona v. Superior Court of Los Angeles County, 57 Cal. Rptr. 4th 107 (1997)
  • The Australian Newspaper, June 11, 2014, Mother Poisoned Daughter, 4, With Cancer Drugs to Attract Attention [URL at the time was http://www.theaustralian.com.au/news/nation/mother-poisoned-daughter-4-with-cancer-drugs-to-attract-attention/story-e6frg6nf-1226950624987]

The End

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