The Effects of Introducing a Harm Threshold for Medical Treatment Decisions for Children in the Courts of England & Wales: An (Inter)National Case Law Analysis
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引用次数: 0
Abstract
The case of Charlie Gard sparked an ongoing public and academic debate whether in court decisions about medical treatment for children in England & Wales the best interests test should be replaced by a harm threshold. However, the literature has scantly considered (1) what the impact of such a replacement would be on future litigation and (2) how a harm threshold should be introduced: for triage or as standard for decision-making. This article directly addresses these gaps, by first analysing reported cases in England & Wales about medical treatment in the context of a S31 order, thus using a harm threshold for triage and second comparing court decisions about medical treatment for children in England & Wales based on the best interest test with Dutch and German case law using a harm threshold. The investigation found that whilst no substantial increase of parental discretion can be expected an introduction of a harm threshold for triage would change litigation. In particular, cases in which harm is limited, currently only heard when there are concerns about parental decision-making, may be denied a court hearing as might cases in which the child has lost their capacity to suffer. Applying a harm threshold for triage in decisions about withholding or withdrawing life-sustaining treatment might lead to a continuation of medical treatment that could be considered futile.
期刊介绍：
Health Care Analysis is a journal that promotes dialogue and debate about conceptual and normative issues related to health and health care, including health systems, healthcare provision, health law, public policy and health, professional health practice, health services organization and decision-making, and health-related education at all levels of clinical medicine, public health and global health. Health Care Analysis seeks to support the conversation between philosophy and policy, in particular illustrating the importance of conceptual and normative analysis to health policy, practice and research. As such, papers accepted for publication are likely to analyse philosophical questions related to health, health care or health policy that focus on one or more of the following: aims or ends, theories, frameworks, concepts, principles, values or ideology. All styles of theoretical analysis are welcome providing that they illuminate conceptual or normative issues and encourage debate between those interested in health, philosophy and policy. Papers must be rigorous, but should strive for accessibility – with care being taken to ensure that their arguments and implications are plain to a broad academic and international audience. In addition to purely theoretical papers, papers grounded in empirical research or case-studies are very welcome so long as they explore the conceptual or normative implications of such work. Authors are encouraged, where possible, to have regard to the social contexts of the issues they are discussing, and all authors should ensure that they indicate the ‘real world’ implications of their work. Health Care Analysis publishes contributions from philosophers, lawyers, social scientists, healthcare educators, healthcare professionals and administrators, and other health-related academics and policy analysts.
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