Minors and Contested Medical-Surgical Treatment

Abstract

Use of the best-interests test as the legal standard to justify medical treatment (or its cessation) in respect to legally incompetent adults or minors has come under sustained critique over the years. "Best interests" has variously been alleged to be indeterminate as well as susceptible to majoritarian ideology and inherent bias. It has also been alleged to be inferior to rights-based approaches. Against the background of several particularly hard cases involving minors discussed by Gillett in a prior article in this journal, this article considers some of these critiques. It concludes that these critical accounts make significant contributions to enabling a more procedurally and substantively robust consideration of what might be in a child's best interests. However, it is argued that none of these accounts alone provide a superior framework that would justify jettisoning the concept of best interests. Further, it is suggested that best interests still has an important role in achieving patient-centered decisionmaking in this context. It concludes by suggesting a taxonomy of considerations when determining best interests.

The theorisation of ‘best interests’ in bioethical accounts of decision-making

“…A range of other duties, of varying specificity, are identified, including medical duties to prolong life, promote health or relieve suffering [ 44 , 61 ], respecting advance decisions [ 63 ], beneficence [ 76 ] and nonmaleficence [ 34 ], and duties to promote children’s best interests [ 51 , 58 , 65 ]. The frequent discussion of rights in proximity to best interests (see below) often draws Kantianism into the law by invoking dignity and autonomy [ 77 ].…”

“…In other cases Kant’s means-end prohibition is presented in a way that may inform judgements of best interests [ 44 ]. In the context of best interests, the Kantian concept of ‘dignity’ can also inform discussion of rights [ 77 ]. As we shall see below, rights have a mixed relationship with best interests.…”

“…For rights and interests to be connected in this way, it has been observed that we must conceive of rights based on objective interests, rather than on preferences or will [ 37 ]. Opposingly, those who argue rights have a priority over interests [ 77 , 81 ] are likely to implicitly favour a ‘will’ theory of rights. 2 While such views do not necessarily deny that there are objective goods that might constitute interests where an account of the will is absent, rights based on interests need detailed specification if they are to guide practice.…”

“…Thresholds of parental discretion—below which parental liberty is curtailed—are cited frequently. While best interests itself may be taken as a threshold below which parental (or other’s) choices are scrutinised [ 56 – 58 ], dissatisfaction with the opacity or fairness of best interests means that harm [ 46 , 65 , 67 , 77 , 84 , 86 ] and reasonableness [ 58 , 65 , 86 ] are more frequently cited alternatives. Distress [ 67 ], informedness [ 58 ] and basic interests [ 34 ] are also mentioned.…”

“…The critique asserts that the opacity of best interests decisions makes people with disabilities vulnerable to decisions that ignore their interests. Instead, factors such as resource limitations, third party interests [ 69 , 77 , 87 ] and decision-maker prejudices [ 42 , 75 ] may guide best interests decisions. Defending best interests, Snelling [ 77 ] suggests that these hazards may be mitigated by foreknowledge.…”