Determining a Child’s Best Interests when Parents Refuse Medical Treatment—CAHS v Kiszko & Anor [2016] FCWA 19

2016 ◽  
Vol 13 (3) ◽  
pp. 365-368 ◽  
Author(s):  
Michaela Okninski
Keyword(s):  
Medical Treatment ◽  
Best Interests

Of Love and Laetrile: Medical Decision Making in a Child's Best Interests

1979 ◽  
Vol 5 (3) ◽  
pp. 269-294
Author(s):  
Eve T. Horwitz
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Burden Of Proof ◽  
State Intervention ◽  
Convincing Evidence ◽  
State Agency ◽  
Best Interests ◽  
Medical Decision ◽  
Appropriate Treatment ◽  
Life Threatening

AbstractTwo recent cases have raised important questions concerning the appropriateness of state intervention in parental choices of unorthodox medical treatment for children with life-threatening conditions. This Note first discusses whether, and if so, when, state intervention in a child's treatment selection by its parents is appropriate, and then analyzes the tests a court should apply in deciding upon an appropriate treatment. The Note recommends a decision-making approach that requires the appropriate state agency to prove, by clear and convincing evidence, that the parents' choice of medical treatment either is directly or is indirectly harming their child. Under this approach, if the state meets its burden of proof the court then must apply the ‘best interests’ test, rather than the ‘substituted judgment’ test, to choose an appropriate medical treatment for the child.

scholarly journals ‘Our legal responsibility…to intervene on behalf of the child’: Recognising public responsibilities for the medical treatment of children

2021 ◽  
Vol 21 (1) ◽  
pp. 19-41
Author(s):  
Jo Bridgeman
Keyword(s):  
Medical Treatment ◽  
Social Services ◽  
Local Authority ◽  
The State ◽  
Parental Authority ◽  
Best Interests ◽  
Legal Responsibility ◽  
Local Authorities ◽  
Professional Responsibilities ◽  
Seriously Ill

This article argues for recognition of public responsibilities to protect the welfare of children with respect to decisions affecting their health and medical treatment. As the quote in the title of this article, from David Plank, the Director of Social Services responsible for bringing the case of Baby Alexandra before the courts, identifies, early cases concerning children’s medical treatment were brought by local authorities to determine responsibilities to protect the welfare of children. In cases such as Re B (1981), Re J (1990) and Re W (1992), the court was asked not only to determine the child’s best interests but also to clarify the duties of the local authority, Trust, court and child’s parents to the child. The respective duties established apply to all involved in cases brought before the courts on the question of a child’s future medical treatment, whether or not the child is in the care of the state. Recent cases concerning the medical treatment of seriously ill children have involved claims of parental authority to determine the care of their child. To the contrary, this article argues that court involvement is required when parents are disagreed with the child’s treating doctors over the child’s medical treatment because of public as well as parental and professional responsibilities for the welfare of all children.

Medical treatment and best interests: judicial interpretation of values, wishes and beliefs under the Mental Capacity Act 2005

2020 ◽  
Vol 22 (3) ◽  
pp. 165-173
Author(s):  
Owen P. O'Sullivan
Keyword(s):  
Medical Treatment ◽  
Clinical Decision ◽  
Case Law ◽  
Decision Makers ◽  
Best Interests ◽  
Content Type ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Mental Capacity Act ◽  
The Uk

Purpose The prominence of the best interests principle in the Mental Capacity Act 2005 represented an important transition to a more resolutely patient-centred model regarding decision-making for incapable adults (“P”). This paper aims to examine the courts’ consideration of P’s values, wishes and beliefs in the context of medical treatment, reflect on whether this has resulted in a wide interpretation of the best interests standard and consider how this impacts clinical decision makers. Design/methodology/approach A particular focus will be on case law from the Court of Protection of England and Wales and the Supreme Court of the UK. Cases have been selected for discussion on the basis of the significance of their judgements for the field, the range of issues they illustrate and the extent of commentary and attention they have received in the literature. They are presented as a narrative review and are non-exhaustive. Findings With respect to values, wishes and beliefs, the best interests standard’s interpretation in the courts has been widely varied. Opposing tensions and thematic conflicts have emerged from this case law and were analysed from the perspective of the clinical decision maker. Originality/value This review illustrates the complexity and gravity of decisions of the clinical decision makers and the courts have considered in the context of best interests determinations for incapacitated adults undergoing medical treatment. Subsequent to the first such case before the Supreme Court of the UK, emerging case law trends relating to capacity legislation are considered.

scholarly journals Consensus in medical treatment in the French and Saudi laws: التراضي في العلاج الطبي في القانون الفرنسي والسعودي

2021 ◽  
Vol 5 (14) ◽  
pp. 91-68
Author(s):  
Mabrouk Shneeb Zarrouk Nafkha Mabrouk Shneeb Zarrouk Nafkha
Keyword(s):  
Medical Treatment ◽  
Medical Profession ◽  
The Other ◽  
Best Interests ◽  
Social Solidarity ◽  
Medical Decision ◽  
Specific Patient ◽  
Patient’S Satisfaction ◽  
Social Views ◽  
The Right

Medical treatment is mutual consent between two parties, the doctor on the one hand, and the patient on the other, to conduct a therapeutic intervention, which is initially the main goal of this research. By adopting an analytical and descriptive methodology for legal texts, opinions of jurisprudence, and judicial jurisprudence, the physician is free, in principle, to select and contract with his patients. This is what the study aims to clarify. The physician has the right to consent to contracting with or rejecting a specific patient, regardless of the nature of the motive. A doctor, like other people, has complete freedom to practice his profession in the manner that he pleases. As he has the right to accept or reject the invitation for treatment, he is not obligated to answer the patient's request. A critical reading of these texts and a comprehensive look at the opinions reveal that the doctor's refusal of treatment could come as a result of professional reasons and/or personal reasons. Others add the cases of religious convictions and the inability resulting from his lack of specialization in treating the disease. However, considering the concept of social justice, the freedom to practice the medical profession is no longer an absolute freedom exercised in that traditional individual spirit that entitles those with free professions to practice it or refrain from practicing it as they please, which is what the researcher seeks to explain. Medicine in general is nothing but a social function in which the practitioner must seek the spirit of social solidarity. As a result of these social views, the physician must commit to performing them according to the best interests of society. The doctor is not entitled to refrain from helping or answering the call of a patient. On the other hand, the study aims to clarify that medical treatment requires the patient's consent as well. It was found that there was a difference of jurisprudence regarding this, but it does not prevent the doctor from making obligations towards the patient. While some jurists believe that the doctor or surgeon has the right to impose a medical decision whose necessity he assesses in the light of his conscience and experience, even against the will of the patient, others maintain that he cannot treat the patient without taking his free and enlightened consent. Still others see that the patient must be satisfied specifically in certain cases. In this sense, the doctor is allowed to tell white or open lies. The study concluded that the doctor must, at all stages, show the patient the feasibility of the required treatment and surgery and the extent of their success before each medical or surgical intervention. The result of the recognition of the patient’s right to maintain his physical sanctity must also work on the principle of the doctor’s obligation to provide the patient with this information and inquiries until the patient’s satisfaction comes enlightened or insightful despite the emergence of realistic problems related to obtaining the patient’s satisfaction The study generally recommends: 1- Enacting new laws that override the jurisprudential differences over consent, define its cases and arrange responsibility for it. 2- Assigning a substitute to the doctor to enlighten the patient and search for his consent in specific cases 3- Appraising the creative role of jurisprudence in the article of medical contracting and resolving the related problems.

Fairly Bland: an alternative view of a supposed new ‘Death Ethic’ and the BMA guidelines

Legal Studies ◽  
2001 ◽  
Vol 21 (4) ◽  
pp. 618-643 ◽  
Author(s):  
David Price
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Mental State ◽  
Best Interests ◽  
Alternative View ◽  
Common Language ◽  
Net Benefit ◽  
Sanctity Of Life ◽  
Legal Standard ◽  
Polar Opposite

Recently in this journal John Keown attacked the BMA Guidance published on ‘Withholding and Withdrawing Life-prolonging Medical Treatment’, arguing that it was, fundamentally at odds with the sanctity of life doctrine as properly understood, condemning the intentional termination of individuals' lives. In riposte it is asserted that even this modified version of the doctrine cannot support a defensible moral or legal standard for decision-making here, being founded upon an excessive emphasis on the mental state of the clinician and an inappropriately narrow focus on the effects of the proposed treatment on the ‘health’ of the patient, as opposed to being primarily driven by the (best) interests of the patient. The attempt to divorce treatment decisions from broader evaluations of the net benefit or other otherwise able to be attained by the patient from such treatment, including the taking into account of the individual's handicapped state, accordingly fails. Acceptance of such reality is, at the least, the first step toward a common language for further dialogue even between those with polar opposite opinions in this sphere.

Informed Consent Revisited

1996 ◽  
Vol 5 (2) ◽  
pp. 214-220 ◽  
Author(s):  
Amnon Goldworth
Keyword(s):  
Informed Consent ◽  
Medical Treatment ◽  
Clinical Setting ◽  
Relevant Information ◽  
Best Interests ◽  
Limited Capacity ◽  
Legal Requirement ◽  
Good Level ◽  
Level Of Understanding ◽  
The Way

More than three decades after its introduction as a legal requirement for medical treatment in the clinical setting, informed consent continues to be viewed with skepticism as to its need or effectiveness. Some maintain that it is not required because the ordinary individual believes that doctors can be trusted to behave In the best interests of their patients. This issue will be discussed in a later portion of this article. Others are persuaded that informed consent is an unattainable ideal given the limited capacity of the ordinary individual to understand the relevant information. This view is supported by studies intended to show that satisfactory understanding on the part of patients cannot be achieved. In rebuttal, Apple-baum, Lidz, and Meisel observed that:Such statements are easily refuted by reference to studies of situations in which reasonable comprehension actually has been achieved. A sounder interpretation of all these studies might be that patients and subjects can attain a good level of understanding in many cases, but that several factors — including the manner in which disclosure is made as well as patients' limitations — may get in the way.

Helga Wanglie Revisited: Medical Futility and the Limits of Autonomy

1993 ◽  
Vol 2 (2) ◽  
pp. 161-170 ◽  
Author(s):  
David H. Johnson
Keyword(s):  
Medical Treatment ◽  
Vegetative State ◽  
Persistent Vegetative State ◽  
Medical Futility ◽  
Best Interests ◽  
Public Controversy ◽  
The World ◽  
Sentient Beings ◽  
To Receive

There is little to indicate from, her circumstances that events would propel Helga Wanglie, an 86-year-old Minneapolis woman, into the center of public controversy. We know little of her life prior to the events that removed her from the world of conscious, sentient beings. By the time of her death on 4 July 1991, Mrs. Wanglie had become the focus of a nationwide public and professional debate on the rights of a patient in a persistent vegetative state (PVS) to receive aggressive medical treatment when such treatment is felt by the patient's doctors not to be in the patient's best interests.

Substituted Judgment, Best Interests, and the Need for Best Respect

1994 ◽  
Vol 3 (2) ◽  
pp. 195-208 ◽  
Author(s):  
Susan R. Martyn
Keyword(s):  
Medical Treatment ◽  
Terminal Illness ◽  
Best Interests ◽  
State Courts ◽  
Substituted Judgment ◽  
Physical Suffering ◽  
The Face ◽  
The Right

Perhaps the most troublesome medical decisionmaking cases facing state courts concern serious healthcare decisions involving patients with severe or profound retardation. The courts who face this issue encounter a difficult dilemma. A decision to terminate a medical treatment of a dependent, vulnerable person requires considerable solicitude. Allowing a helpless person to die sooner than is medically possible directly conflicts with that person's most basic right – the right to live. However, continuing treatment in the face of terminal illness may not only prolong but also increase intense mental and physical suffering. Perpetuating near torture in the name of protecting a person's life may be equally worrisome.

Is childhood a disability? Using Mental Capacity Tribunals and the Deprivation of Liberty Safeguards to shield children's capacity to consent to and refuse medical treatment

2014 ◽  
Vol 19 (2) ◽  
pp. 96-106 ◽  
Author(s):  
Robin Mackenzie ◽  
John Watts
Keyword(s):  
Mental Health ◽  
Decision Making ◽  
Medical Treatment ◽  
Mental Health Treatment ◽  
Mental Capacity ◽  
Best Interests ◽  
Legal Analysis ◽  
Content Type ◽  
Decision Making Capacity ◽  
The Law

Purpose – The purpose of this paper is to demonstrate that the common and statutory law governing children's capacity or competence to consent to and to refuse medical treatment is unsatisfactory and to suggest solutions. Design/methodology/approach – Critical legal analysis of the law on assessing minors’ decision-making capacity in relation to legal recognition of their consent to and refusal of medical treatment. Findings – Without legal mechanisms which protect both children and their rights, all children and young people are effectively disabled from exercising age and capacity-related autonomy and participation in decisions affecting their lives. Yet in English law, inconsistencies between legal and clinical measures of decision-making capacity, situations where compulsory medical or mental health treatment is lawful, and tensions between rights and duties associated with human rights, autonomy, best interests and protections for the vulnerable create difficulties for clinicians, lawyers and patients. Research limitations/implications – As the paper acknowledges in its recommendations, the views of stakeholders are needed to enrich and inform legal reforms in this area. Originality/value – The paper makes suggestions to amend the law and clinical practice which are original and far reaching. The paper suggests that in order to observe children's rights while protecting them appropriately, the Mental Capacity Act 2005 and Deprivations of Liberty Safeguards should be applied to minors. The paper recommends the establishment of Mental Capacity Tribunals, similar in nature and purpose to Mental Health Tribunals, to provide legal safeguards and mechanisms to foster the supported decision-making envisaged in recent United Nations Conventions.

scholarly journals Charlie Gard: in defence of the law

2018 ◽  
Vol 44 (7) ◽  
pp. 476-480 ◽  
Author(s):  
Eliana Close ◽  
Lindy Willmott ◽  
Benjamin P White
Keyword(s):  
Decision Making ◽  
Medical Treatment ◽  
Legal Framework ◽  
Best Interests ◽  
Independent State ◽  
Current Role ◽  
Alternative Approach ◽  
Life Sustaining Treatment ◽  
The Law ◽  
Difficult Cases

Much of the commentary in the wake of the Charlie Gard litigation was aimed at apparent shortcomings of the law. These include concerns about the perceived inability of the law to consider resourcing issues, the vagueness of the best interests test and the delays and costs of having disputes about potentially life-sustaining medical treatment resolved by the courts. These concerns are perennial ones that arise in response to difficult cases. Despite their persistence, we argue that many of these criticisms are unfounded. The first part of this paper sets out the basic legal framework that operates when parents seek potentially life-sustaining treatment that doctors believe is against a child’s best interests, and describes the criticisms of that framework. The second part of the paper suggests an alternative approach that would give decision-making power to parents, and remove doctors’ ability to unilaterally withhold or withdraw life-sustaining treatment that they regard is futile. This proposal is grounded in several values that we argue should guide these regulatory choices. We also contend that the best interests test is justifiable and since the courts show no sign of departing from it, the focus should be on how to better elucidate the underlying values driving decisions. We discuss the advantages of our proposed approach and how it would address some of the criticisms aimed at the law. Finally, we defend the current role that the judiciary plays, as an independent state-sanctioned process with a precedent-setting function.

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