The harm threshold: A view from the clinic

Calls for a harm threshold to mediate the best interests test have gained momentum following the case of Charlie Gard. This chapter considers normative and empirical claims made by proponents of the harm threshold. While I accept that the best interests test may need of reform, I deny that the harm threshold is the answer. The chapter is divided into two parts. Part one investigates the empirical basis of the claim about parental decision-making in medical practice. It uses an analysis of interviews that reveal some thresholds of decision-making that are volunteered by parents and healthcare professionals in discussions about non-treatment decisions in paediatric intensive care. To some extent I recognise that this data can be used to support the empirical claims made on behalf of the harm threshold. In the second part of the chapter, I take issue with the normative conclusion that this clinical picture means we ought to support the introduction of a harm threshold into medical law. I argue that a harm threshold is largely unmotivated because the current system of decision-making patently does consider the rights of parents as well as children. Proponents of the harm threshold may nevertheless be motivated simply by the desire to make medical law consistent with public law. I argue that there are differences in the level of certainty in clinical and social outcomes, that imply we need significantly more caution when making social welfare decisions. I also note that unintended consequences from the adoption of the harm threshold that may impinge on the rights of parents and increase conflict in the healthcare arena. Finally I argue that the very characterisation of arguments for parental rights as being about liberty is incorrect.