1. (1) Recognizing that it is impossible to itemize every extraordinary medical treatment, the Department shall utilize the following factors to determine whether a medical treatment is extraordinary:

   1. (a) Complexity, risk and novelty of the proposed treatment: The more complex the treatment, the greater the risk of death or serious complications, the more experimental the procedure, then the greater the need to determine that the treatment is extraordinary, and to obtain parental consent or to seek judicial approval prior to authorizing treatment. See In the Matter of Guardianship of Richard Roe III, 421 N.E.2d 40, 53 (1981). In the Matter of Spring, 405 N.E.2d 115 (1980). In the Matter of Moe, 432 N.E.2d 712 (1982).
   2. (b) Possible side effects: The more serious and permanent the side effect, the greater the need to determine that the treatment is extraordinary, and to obtain parental consent or to seek judicial approval prior to authorizing treatment. See Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (1977). Rogers v. Commissioner of DMH, 390 Mass. 489, 501-502 (1983). In the Matter of Guardianship of Richard Roe III, 421 N.E.2d 40 (1981). Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982).

   3. (c) Intrusiveness of proposed treatment: The more intrusive the treatment the greater the need to determine that the treatment is extraordinary, and to obtain parental consent or prior judicial approval. See In the Matter of Hier, 18 Mass. App. Ct. 200, 464 N.E.2d 959, (1984). Superintendent of Belchertown State School v. Saikewicz, supra. In The Matter of Moe, supra. In The Matter of Spring, supra.

      1. (d) Prognosis with and without treatment: The less clear the benefit from the proposed treatment the greater the need for parental consent or prior judicial approval. See Superintendent of Belchertown State School v. Saikewicz, supra; Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982); In The Matter of Spring, supra.
      2. (e) Clarity of professional opinion: The more divided the medical opinion, the greater the need for parental consent or prior judicial approval. See In The Matter of Spring, supra.
      3. (f) Presence or absence of an emergency: In a medical emergency a physician can act without anyone's consent. See M.G.L. c. 112, § 12F. (g). Prior judicial involvement: if a court has been involved in past medical decisions, this argues for judicial involvement in any future medical treatment decision, but this is not conclusive. See In The Matter of Guardianship of Richard Roe III, supra at 56.
      4. (h) Conflicting Interests: Where the interests of the decision maker conflict with the interests of the child, there is greater need for obtaining parental consent or prior judicial approval. In the Matter of Guardianship of Richard Roe III, 421 N.E.2d 40 (1981).
      5. (2) No Consent by Department. The Department shall not give its consent to extraordinary medical treatment for any child in the care or custody of the Department. For all such children, the Department shall seek prior judicial approval for any extraordinary medical treatment (unless parental consent is obtained for children in the care of the Department, as set forth at 110 CMR 11.17(3)).
      6. (3) Consent by Parent. With respect to a child in the care of the Department, the right to consent to extraordinary medical treatment shall remain with the parent(s), except to the extent such right has been specifically limited by the legislature or by the rulings of a court or by written agreement between the parents and the Department.
      7. (4) Guardianship. The Department shall not give its consent to extraordinary medical treatment for its ward, except where it is specifically empowered to do so by statute, regulation or case law. In all other cases the Department shall seek prior judicial approval for extraordinary medical treatment.

11.18: Legal Proceedings

1. (1) Whenever the Department may not consent to a medical procedure, but must seek prior judicial approval for such procedure, the Department shall seek the appointment of a guardian ad them to investigate whether such procedure should be administered, and thereafter report back to the court.
2. (2) At any subsequent hearing when the court is considering the question of whether such treatment ought to be administered, the Department shall not request that the court authorize the Department to consent to such treatment; but rather the Department shall request that the court, using a substituted judgment standard, make the decision whether to authorize such treatment.

11.19: Autopsy

For children in the care of the Department at the time of their death, the right to consent or refuse to consent to an autopsy belongs to the parent(s). The Department shall not consent to an autopsy for children who die while in the care of the Department, unless the Department, after diligent efforts, is unable to contact the parent(s) to seek their consent, in which case the Department may then consent.

For wards or children in the custody of the Department at the time of their death, the Department may request and may consent to an autopsy.

11.20: Burial

Burial of wards or children in the care or custody of the Department at the time of their death shall be accomplished by consulting with the parents, in the first instance. If the parents refuse to make burial arrangements or cannot be contacted, the Department shall make and pay for appropriate burial arrangements, consistent with the provisions of M.G.L. c. 119, § 23(H).

11.21: Organ Donation

For children in the care of the Department at the time of their death, the right to consent or refuse to consent to a request for organ donation after the child's death belongs to the parent(s). The Department shall not consent to organ donation by children who die in the care of the Department.

For wards or children in the custody of the Department at the time of their death, the Department shall determine on a case-by-case basis whether to consent to a request for organ donation.

11.22: Confidentiality of Medical Records and Information

1. (1) Except for cases in litigation (in which case 110 CMR 12.09 shall govern), with respect to the medical records of a child in the care or custody of the Department or a child who is a ward of the Department:

   1. (a) The Department shall not distribute or release medical documents or information contained anywhere in a child's record or case file to any unauthorized person (as defined at 110 CMR 11.22(3)) without the written consent of one of the child's parents or without an order of a court of competent jurisdiction.
   2. (b) The child's parent(s) or attorney or guardian or guardian ad litem shall have access to all medical documents or information contained anywhere in a child's record or case file; unless the person who contributed such information has requested in writing to the Department that the information not be disclosed (for which purpose the mere stamp "Confidential" shall not be sufficient), or unless otherwise provided by statute. The child's parent(s) may also request medical documents regarding their child directly from the hospital or medical provider pursuant to the provisions of the "Patient's Bill of Rights" at M.G.L. c. 111, § 70E.

2. (2) With respect to the medical records of a child surrendered for adoption to the Department or in the custody of the Department after an adjudication under M.G.L. c. 210, § 3:

   1. (a) The Department shall not distribute or release information in a child's medical record to any unauthorized person without court order.
   2. (b) Unauthorized person for purposes of 110 CMR 11.22(2) shall include the parents of the child.
3. (3) Unauthorized person for purposes of 110 CMR 11.22(1) and (2) shall include everyone except: the child's physician or any other medical provider, the child's foster parents, the appropriate authorities at a residential facility in which the child is or is intended to be living, the appropriate authorities at any school the child is attending, the child's substitute care provider, the subject child if over 14 years of age, or any other person who the Department determines requires such information to render medical or other professional assistance to the subject child.

1. (4) When any ward or child in the care or custody of the Department requests that the Department not notify, or release medical records, to their parents, guardian(s) or any other party, of an intended or completed medical treatment, the Department shall determine on a case-by-case basis whether to adhere to the child's request, in accordance with M.G.L. c. 112, §§ 12F and 12R.