Spanner in the Works or Cogs in a Wheel?

2020 ◽  
pp. 69-92
Author(s):  
Thérèse Callus
Keyword(s):  
Decision Making ◽  
State Intervention ◽  
Case Law ◽  
Best Interests ◽  
Critically Ill Children ◽  
Medical Team ◽  
Shared Decision ◽  
Binary Decision ◽  
Court Intervention ◽  
Complex Question

In what circumstances should medical treatment decisions concerning a child be treated differently from any one of a myriad of important decisions that parents routinely make for their children without any state intervention? Who is best placed to make such decisions and on what basis? Why does conflict arise and how can it be minimized? This chapter deals with the sensitive and complex question of decision making for critically ill children. An analysis of the case law reveals that parents are generally believed to be the best-placed to make a shared decision with the medical team focusing on the child’s best interests. However, when conflict arises, it is necessary to seek court intervention. I examine how the framework of the child’s best interests includes consideration of what the child personally may want, yet this begs the question why is the judge’s interpretation of what the child would want any more valid than that of the parents or the doctors? Rejecting the claim that the court should only be involved when it is shown that the parents’ decision on the child’s treatment would cause harm to the child, I suggest framing the question as a ‘not against the child’s interests’ test, or what is ‘compatible’ with the child’s interests. This would alleviate the perception that it is a binary decision between a right and wrong choice, and better serve the overall objective of minimizing conflict. Focusing on how the decision is taken is ultimately just as important as who makes the decision.

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 Recurrent Syncope, a Clue in Amyloid Cardiomyopathy

2018 ◽  
Vol 2018 ◽  
pp. 1-6
Author(s):  
Julian A. Marin-Acevedo ◽  
Catalina Sanchez-Alvarez ◽  
Ali A. Alsaad ◽  
Ricardo J. Pagán
Keyword(s):  
Heart Failure ◽  
Decision Making ◽  
Cardiac Amyloidosis ◽  
Clinical Manifestations ◽  
Medical Team ◽  
Shared Decision ◽  
Amyloid Cardiomyopathy ◽  
Myocardial Thickening ◽  
Infiltrative Cardiomyopathies

Infiltrative cardiomyopathies include a variety of disorders that lead to myocardial thickening resulting in a constellation of clinical manifestations and eventually heart failure that could be the first clue to reach the diagnosis. Among the more described infiltrative diseases of the heart is amyloid cardiomyopathy. The disease usually presents with subtle, nonspecific symptoms. Herein, we illustrate a case of recurrent syncope as the initial presenting symptom for systemic amyloid with polyneuropathy and cardiomyopathy as a cause of syncope. The article illustrates the role of advanced cardiac imaging in the diagnosis of the disease with a focused literature review. We also highlight the role of early, shared decision-making between patient, family, and medical team in the management of cardiac amyloidosis.

scholarly journals Undisclosed probing into decision-making capacity: a dilemma in secondary care

2021 ◽  
Vol 22 (1) ◽  
Author(s):  
Sandip Talukdar
Keyword(s):  
Decision Making ◽  
Ethical Dilemma ◽  
Secondary Care ◽  
Case Law ◽  
Healthcare Systems ◽  
Shared Decision ◽  
Main Text ◽  
Psychiatric Examination ◽  
Therapeutic Engagement ◽  
Decision Making Capacity

Abstract Background The assessment of patients’ decision-making capacity is ubiquitous in contemporary healthcare. This paper examines the ethics of undisclosed probing of capacity by psychiatrists. The discussion will refer to the law in England and Wales, though the highlighted issues are likely to be relevant in similar jurisdictions. Main text Decision-making capacity is a private attribute, and patients may not necessarily be aware that one of their personal abilities is being explored. Routine exploration of capacity has not historically been a part of psychiatric examination, but it is now difficult to avoid during psychiatric interview.Ethical practice and shared decision-making require patients to be aware that their decision-making may be evaluated by the doctor at some point, and the potential implications of an objective professional conclusion of incapacity. Case law directs that patients should be informed about any assessment of their decision-making ability, though the extent to which this has translated into practice is unclear. However, explanation about the assessment may cause a patient to react negatively, which may impede therapeutic engagement and constitute an ethical dilemma. It is argued that in the absence of systemic measures, professionals should retain the discretion to decide whether a particular patient should be informed about the impending probe into their decision-making ability, or not. In the latter instance, concealment of information about the assessment or its purpose should be subject to the caveats and safeguards associated with any recourse to therapeutic exception. Conclusion The necessity to mandatorily inform patients about assessment of their capacity introduces a novel ethical dilemma for psychiatrists. The negotiation of this dilemma should not be the prerogative of the clinician, and requires systemic initiatives to ensure universal awareness of patients about the possibility of their capacity being assessed during their journeys through healthcare systems.

scholarly journals Communication strategies and persuasion as core components of shared decision-making for children with life-limiting conditions: A multiple case study

2021 ◽  
pp. 026921632110689
Author(s):  
Emma Popejoy ◽  
Kathryn Almack ◽  
Joseph C Manning ◽  
Bridget Johnston ◽  
Kristian Pollock
Keyword(s):  
Decision Making ◽  
Shared Decision Making ◽  
Extended Family ◽  
Communication Strategies ◽  
Multiple Case Study ◽  
Best Interests ◽  
Shared Decision ◽  
Psychosocial Wellbeing ◽  
Multiple Case

Background: Families and professionals caring for children with life-limiting conditions face difficult healthcare decisions. Shared decision-making is promoted in many countries, however little is known about factors influencing these processes. Aim: To explore the communication strategies used in shared decision-making for children with life-limiting conditions. Design: A longitudinal, qualitative, multiple-case study. Cases were centred around the child and parent/carer(s). Most cases also included professionals or extended family members. Data from interviews, observations and medical notes were re-storied for each case into a narrative case summary. These were subject to comparative thematic analysis using NVivo11. Setting/participants: Eleven cases recruited from three tertiary hospitals in England. 23 participants were interviewed (46 interviews). Cases were followed for up to 12 months between December 2015 and January 2017. 72 observations were conducted and the medical notes of nine children reviewed. Findings: Strategies present during shared decision-making were underpinned by moral work. Professionals presented options they believed were in the child’s best interests, emphasising their preference. Options were often presented in advance of being necessary to prevent harm, therefore professionals permitted delay to treatment. Persuasion was utilised over time when professionals felt the treatment was becoming more urgent and when families felt it would not promote the child’s psychosocial wellbeing. Conclusions: Communication strategies in shared decision-making are underpinned by moral work. Professionals should be aware of the models of shared decision-making which include such communication strategies. Open discussions regarding individuals’ moral reasoning may assist the process of shared decision-making.

‘Turning up the volume’: Increasing respect for the wishes and feelings of women with intellectual impairment in decisions about their reproductive rights in England and New Zealand

2021 ◽  
pp. 096853322110447
Author(s):  
Joanna M Manning
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Case Law ◽  
Best Interests ◽  
Family Court ◽  
Persons With Disabilities ◽  
Court Judge ◽  
Mental Capacity Act 2005 ◽  
The Will ◽  
Mental Capacity Act

In 2004 a New Zealand Family Court Judge ordered that two extremely serious and irreversible interventions (termination of pregnancy and sterilization) be carried out on a 29-year-old woman, with mild to moderate intellectual disability, over her strenuous objection. Though her appeal was partially successful, an option which both respected her wishes and feelings and in all likelihood better promoted her best interests was not explored. A decade later, another Family Court judge held that it was in the best interests of a young woman with Down syndrome to be sterilized for contraceptive purposes, in spite of her indication that she might wish to have babies one day. The decisions were made under NZ’s adult guardianship legislation, into which courts have incorporated a best interests principle, which they have interpreted broadly. But, in contrast to the Mental Capacity Act 2005 (MCA), NZ’s statute lacks any requirement for decision-makers to take into account the wishes and feelings of the person with mental impairment. That requirement has been the catalyst for a more-empathetic, person-centric interpretation in English case law. Further reform to the MCA is advocated for, which would give formal primacy to P’s wishes and feelings through presumptions or special phrases, as well as requiring a reasoned justification for departing from them. The Convention on the Rights of Persons with Disabilities goes even further: the article 12 right to legal capacity requires respect for the ‘will and preferences’ of people with mental impairments and controversially, according to the UN Committee’s interpretation, requires the replacement of substitute decision-making regimes based on best interests with supported decision-making frameworks based on a person’s will and preferences.

Informed Consent Obtainment, Malpractice Litigation, and the Potential Role of Shared Decision-making Approaches

2017 ◽  
Vol 24 (3) ◽  
pp. 264-284 ◽  
Author(s):  
Søren Fryd Birkeland
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
Shared Decision Making ◽  
Potential Role ◽  
Case Law ◽  
National Sample ◽  
Shared Decision ◽  
Contributing Factors ◽  
Inadequate Information

AbstractMalpractice lawsuits are a substantial concern in health systems with miscommunication, inadequate information, and unsuccessful patient involvement in decision-making seeming to be contributing factors. This paper draws attention to the explicit role of informed consent (IC) obtainment in actualized complaint cases and to what extent novel methods to exercise IC through means of shared decision-making (SDM) and supporting tools might be applicable. A national sample of cases from the Health Professionals Disciplinary Board in Denmark is reviewed and discussed together with international legal instruments and case law. It is confirmed that patients claim their right to participate in decision-making about healthcare options. In many situations SDM and accompanying tools would apply and possibly they could sometimes prevent IC duty breaches, assist documenting IC procedures, and help avert the need for litigation.

scholarly journals Medical Tourism and the Best Interests of the Critically ill Child in the Era of Healthcare Globalisation

2020 ◽  
Vol 28 (4) ◽  
pp. 696-730
Author(s):  
Neera Bhatia ◽  
Giles Birchley
Keyword(s):  
Critically Ill ◽  
Healthcare Professionals ◽  
Medical Tourism ◽  
Case Law ◽  
Best Interests ◽  
Critically Ill Children ◽  
Medical Law ◽  
Novel Treatments ◽  
Critically Ill Child ◽  
The Law

Abstract In this article, we examine emerging challenges to medical law arising from healthcare globalisation concerning disputes between parents and healthcare professionals in the care and treatment of critically ill children. We explore a series of issues emerging in English case law concerning children’s medical treatment that are signs of increasing globalisation. We argue that these interrelated issues present distinct challenges to healthcare economics, clinical practice, and the operation of the law. First, social media leverages the emotive aspects of cases; secondly, the Internet provides unfiltered information about novel treatments and access to crowdfunding to pay for them. Finally, the removal of barriers to global trade and travel allows child medical tourism to emerge as the nexus of these issues. These aspects of globalisation have implications for medicine and the law, yet child medical tourism has been little examined. We argue that it affects a range of interests, including children’s rights, parents’ rights as consumers, and the interests of society in communalised healthcare. Identifying putative solutions and a research agenda around these issues is important. While cases involving critically ill children are complex and emotionally fraught, the interconnectedness of these issues requires the law to engage and respond coherently to the impacts of healthcare globalisation.

Concepts of health, ethics, and communication in shared decision making

2017 ◽  
Vol 14 (1) ◽  
pp. 83-95 ◽  
Author(s):  
Lauris Christopher Kaldjian
Keyword(s):  
Decision Making ◽  
Shared Decision Making ◽  
Well Being ◽  
Best Interests ◽  
Shared Decision ◽  
Goals Of Care ◽  
Concept Of Health ◽  
Beliefs And Values ◽  
Concepts Of Health ◽  
Health Dialogue

Shared decision making depends on respectful dialogue that allows patients and clinicians to discuss medical facts and the beliefs and values that give them meaning for a particular patient. This dialogue is most likely to succeed when tests and treatments are placed within a purpose-oriented landscape that sets goals of care in the foreground so that the direction of decision making is clear before too much focus is placed on interventional options. The beliefs and values that guide patients allow them to identify and prioritize their most important goals of care in light of other dimensions of decision making. These beliefs and values will also reveal concepts of health that anchor goals of care. When patients and clinicians disagree about treatments or goals, it may be because a clinician is guided by a biostatistical concept of health, while a patient is guided by one that prioritizes well-being. Such disagreements may also be described in terms of patient preference (autonomy) and the clinician’s assessment of the patient’s best interests (beneficence). By probing the beliefs and values that explain goals of care and concepts of health, dialogue can help reconcile disagreements in shared decision making. And even when resolution is not forthcoming, and a decision must be ‘un-shared’, dialogue can demonstrate respect for patients through the consideration clinicians show when they take time to understand and explain.

scholarly journals Providing treatment to prisoners with mental disorders: development of a policy

2003 ◽  
Vol 182 (4) ◽  
pp. 299-302 ◽  
Author(s):  
Mark Earthrowl ◽  
John O'Grady ◽  
Luke Birmingham
Keyword(s):  
Decision Making ◽  
Mental Disorders ◽  
Psychiatric Hospitals ◽  
Treatment Decision ◽  
Case Law ◽  
Care Staff ◽  
Best Interests ◽  
Health Care Staff ◽  
Ethical Implications ◽  
Decision Making Capacity

BackgroundMental disorder is more prevalent among people in prison than in the general population. Prisoners who require transfer to psychiatric hospitals for treatment face long delays. Doctors working in prisons regularly face ethical and legal dilemmas posed by prisoners with mental illness.AimsTo develop a policy for providing treatment under the common law to prisoners with mental disorders who lack treatment decision-making capacity while arrangements are made to transfer them to hospital.MethodThe policy was developed through literature review and consultation with the Faculty of Law at Southampton University and health care staff at Winchester prison in the UK.ResultsThe policy provides guidelines for establishing decision-making capacity standards for documentation, and guidelines for implementation based on the Mental Health Act Code of Practice, other best-practice guidelines and case law.ConclusionsIt can be argued that case law allows more-extensive treatment to be provided in the best interests of the incompetent prisoner, beyond emergency situations. The policy has ethical implications and its use should be carefully monitored.

scholarly journals Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

2019 ◽  
Vol 37 (2) ◽  
pp. 157-177
Author(s):  
Mark Klaassen
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Primary Role ◽  
European Court ◽  
The Right ◽  
Compliance Tests

The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.

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