When the scales do not balance: What should we do with the Best Interests Standard?

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Abstract

Introduction
Because of both their age and their critical illness, life or death decisions for most patients on the Paediatric Intensive Care Unit in the United Kingdom are made on the basis of their best interests, as determined by the healthcare team and the child’s family. English law and professional ethical guidelines suggest these interests include not only medical interests, but also a more holistic assessment of the child’s emotional and psychosocial interests.
Where families and clinicians are unable to agree on a child’s best interests, the courts have the final say, but rather than producing clear boundaries, this has produced a series of conflicting legal outcomes from cases that have prima facie similarity: in short, the scales of justice do not appear to balance. Deciding what is best for a child is a delicate process; a lack of predictability from the courts makes the prospect of protracted, costly and perhaps futile recourse to law unwelcome. Instead, disagreements are played out against a background of spiralling costs and a deteriorating medical situation where the child’s interests may become hostage to the intransigence of one or other party.

Best interests as least imperfect solution
This notwithstanding, a strategy of compromise between clinicians and families may still represent a way forward, although it is unknown if sufficient common ground exists between families and clinicians for genuine compromise to take place, even in good faith. Certainly there is evidence that conceptions of best interests in practice are far more nuanced than many philosophical conceptions explain. Further, the best interests standard has been criticised for the indeterminacy of such interests and the subjectivity in any best interest judgement. Yet despite all this, no convincing alternative has emerged, leading to many commentators suggesting it is the least imperfect solution to the problem of deciding what is best for children.

A better ‘best interests’ concept
In this presentation, I lay the foundations to a determination of a concept of best interests that is both philosophically robust and practically useful in the treatment of infants in paediatric intensive care. Such an account must ‘rebalance the scales’, usefully accounting for the subjective nature of best interests, explaining how to consistently approach the conflation of parental and child interests and determine the method by which - and the degree to which - societal interests should be taken into account in the treatment of the family and the child. A multitude of conceptions of best interests exist internationally within the ethics literature and across the health disciplines. Reflecting on such conceptions, I draw on a professional background in paediatric intensive care nursing and my ongoing empirical research in this area. I offer an enriched view of the best interests approach that heeds philosophy, the practical responses of other specialities faced with similar problems and the basis on which other jurisdictions deal with the challenges of determining the interests of those who have never been known.
Original languageEnglish
Publication statusPublished - 21 Sep 2012
EventEuropean Association of Centres of Medical Ethics - University of Bristol, Bristol, United Kingdom
Duration: 20 Sep 201222 Sep 2012

Conference

ConferenceEuropean Association of Centres of Medical Ethics
CountryUnited Kingdom
CityBristol
Period20/09/1222/09/12

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