Florida Asks Federal Appeals Court To Block Psychiatrist From Talking To Children Without Parental Consent

TALLAHASSEE (CBSMiami/NSF) -- Arguing that a judge gave "short shrift" to the rights of parents, the state is asking a federal appeals court to block a psychiatrist from talking to children without parental consent as part of a class-action lawsuit over solitary confinement in juvenile-detention facilities.

Attorneys for the Florida Department of Juvenile Justice went to the 11th U.S. Circuit Court of Appeals on Friday after U.S. District Judge Robert Hinkle last month cleared the way for the interviews as part of a long-running challenge to the use of solitary confinement.

The state contends that a psychiatrist serving as an expert for the plaintiffs in the case should not be able to talk with children unless parents sign off.

"Petitioners (the Department of Juvenile Justice and the department secretary) assert here that a psychiatric evaluation where private mental health histories are explored, confidential records are examined and intimate details of childhood trauma are revealed, is exactly the type of evaluation that requires informed consent to perform regardless of whether it is done for treatment or for other purposes such as litigation," the appeal said. "In the case of a minor child, that informed consent can only be obtained by the parent or guardian. Petitioners do not stand in the way of plaintiffs' attempt to support their case through these mental health evaluations but do insist that the parents first provide consent."

But Hinkle last month drew a distinction between experts talking to children about the effects of solitary confinement and doing formal mental-health evaluations.

"First, the plaintiffs' experts do not propose to diagnose or treat class members or to conduct mental-health evaluations as would be done in the course of diagnosing or treating a patient," Hinkle wrote. "The experts will not become the class members' treating mental-health experts. That Florida law sometimes requires parental consent to treat a minor does not mean Florida law requires parental consent for the steps the plaintiffs and their experts propose to take. This is the fundamental flaw in the defendants' (the state's) position."

The appeal is the latest twist in the lawsuit, which was filed in 2019 and contends that use of solitary confinement in juvenile-detention facilities violates the U.S. Constitution and discriminates against children with disabilities in violation of the Americans with Disabilities Act and a federal law known as the Rehabilitation Act.

Hinkle in October allowed the lawsuit to move forward as a class action. He identified the named plaintiffs as G.H., a 15-year-old boy diagnosed with attention deficit hyperactivity disorder, mood disorder, and post-traumatic stress disorder, and R.L., a 15-year-old girl diagnosed with conditions such as bipolar disorder, post-traumatic stress disorder and major depressive disorder. Hinkle wrote that both had been repeatedly placed in solitary confinement in juvenile-detention facilities.

The appeal filed Friday deals only with the issue of whether a psychiatrist working as an expert for the plaintiffs should be able to talk to children without receiving parental consent. The plaintiffs are represented by attorneys from the Southern Poverty Law Center, Florida Legal Services and the Florida Justice Institute.

Lawyers for the state asked the Atlanta-based appeals court to order Hinkle to deny the plaintiffs' request to conduct the interviews without parental consent.

"(The) district court abused its discretion on this discovery issue and gave short shrift to the fundamental and constitutional rights of the parents of the class members," the 34-page appeal said. "Because petitioners are charged with the care and custody of the juveniles --- whose parents are likely not even aware of the litigation nor have any idea that plaintiffs' psychiatrist intends to evaluate the juveniles --- petitioners are bringing this petition."

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