Using the Best Interests Standard to Generate Actual Duties

Abstract

This claim is puzzling, because if the best interests standard were difficult to apply in practice, then how could it be the prevailing standard? A standard is useful insofar as it can be applied consistently, and if it cannot, it would not be a “prevailing standard” in any meaningful sense. I agree that the best interests standard is the prevailing standard in making recommendations or decisions in pediatrics as well as in other professions. However, I argue that it is generally clear how this standard should be applied in such disciplines and that it is a useful standard for making professional recommendations and decisions for those unable to decide for themselves about what is in their best interests. Deciding what is in someone’s best interest requires some notion of the good to be gained or the harm to be avoided. In medicine, judging what is better, best, or worse is assessed in terms of the goals of medicine. These goals include preventing or curing diseases, prolonging life, minimizing or eliminating disabilities, and relieving pain and suffering. Perhaps those who argue that the best interests standard is difficult to apply are preoccupied with disputes such as what is best to do when the goals of medicine come into conflict or when no clear evidence exists about how to fulfill them. Yet these disputes about how professionals should use the best interests standard occur against a background of general agreement about expectations, norms, data, goals and means to achieve them, reasoning processes, and methodologies for testing and justification, or so I argue. To understand the role of the best interests standard as a useful standard, it is necessary to distinguish some of the different ways it is used (Kopelman 1997; 2007). In what follows, I focus on its use in making decisions for those