PORTLAND — The court-appointed guardian for a boy infected with HIV asked the state supreme court Tuesday to force the boy’s mother to treat him with a drug “cocktail” that she has refused so far.
In her appeal, Mary K. Brennan argued that a judge who sided with the boy’s mother ignored science when he ruled that her refusal to treat the boy did not amount to an “imminent threat.”
The 4-year-old boy’s immune system will continue to deteriorate unless he receives the treatment, Brennan said.
“A child’s life is at stake, and I hope the court will rule in his favor,” she said after the hearing.
Valerie Emerson, who did not attend the hearing, said she decided not to treat her son, Nikolas, because she did not want him to suffer like her 3-year-old daughter, who went through an agonizing death while on AZT.
The Maine Department of Human Services initially sought to take custody of the boy if his mother did not agree to the drug treatment. The family lives in the Bangor area.
Newport District Judge Douglas Clapp ruled in September that the DHS did not demonstrate that the mother put the boy in jeopardy by refusing treatment.
The DHS chose not to appeal the decision, so Brennan brought the appeal herself in her capacity as guardian. Clapp appointed Brennan to be Nikolas’ guardian to represent the boy’s best interest in court. Nikolas lives with his mother.
The Maine Supreme Judicial Court heard the appeal on an expedited basis, but there was no timetable for a decision.
Brennan contended Clapp relied too much on the mother’s previous experiences with AZT in his decision. She said it is the consensus of health professionals that new drug treatments are much more effective.
But she faced a skeptical court.
Chief Justice Daniel Wathen noted that to prevail Brennan had to do more than simply to show disagreement over the judge’s interpretation of evidence. She had to show the judge made an error of law, he said.
Hilary Billings, Emerson’s attorney said the judge’s decision was sound because there is no proof that the drug therapy would help the boy. On the contrary, there is evidence the treatment could ultimately prove detrimental over a period of years, the lawyer said.
“I don’t think this court will overturn the District Court judgment,” he said. `I’d be really surprised if that happened.”
Emerson, who is infected with HIV herself and has stopped taking medication as well, passed the virus on to Nikolas at birth. She has two other children who do not have the virus.
Her only daughter, Tia, died of AIDS-related pneumonia in 1996 despite getting the drug AZT and other drugs.
Scientists say the so-called AIDS cocktail, made up of a highly active protease inhibitor plus two nucleoside analogue reverse transcriptase inhibitors, is more effective than AZT.
Because of the treatment, the number of AIDS deaths nationwide plummeted 47 percent last year, said David Winslow, spokesman for the Maine Department of Human Services. In Maine, the figures are even more dramatic, with AIDS deaths dropping from 70 in 1995 to six last year, he said.
Winslow said that regardless of the supreme court’s decision, the agency still holds out hope that the mother will ultimately agree to the drug treatments.
“We feel it’s an effective treatment,” he said. “We believe protease inhibitors can prolong and perhaps save Nikolas’ life.”