Medical decision-making on behalf of young children: Is it time to move to a significant harm threshold? [IN PERSON]

This talk will be led by Dr Cressida Auckland

In recent years, a series of high-profile disputes between the parents of very ill children and their child's medical practitioners have made their way through the courts. In such cases – which include among them that of Charlie Gard, Alfie Evans, Tafida Raqeeb and  Alta Fixsler -- all parties believe that the course of action they favour is what is best for the child, yet those parties cannot reach agreement. The question thus arises, of who should have the ultimate say over a child's medical treatment?

The courts have made it clear that they have the authority to make medical decisions on behalf of children and affirmed the orthodox position that the threshold for judicial intervention is the welfare of the child, often referred to as the “best interests” approach. In this talk, I will evaluate that position, exploring whether the current threshold for judicial intervention is too low. This question – which is the subject of a current Bill before Parliament -- raises deeper questions about the relationship between the state and its citizens, and the legitimate boundaries for state interference in family and private life.
It will be argued that many decisions in which such disputes arise are not solely medical decisions, but value decisions. Where the decision about a child rests on these value-judgements, and where there is space for reasonable disagreement, there are good reasons to think that parents, due to their particular relationship to the child, should have the final say over a child's care, unless there is a sufficient reason for them to be overridden. After all, taking respect for difference seriously means being committed to promoting a plurality of values, even (perhaps especially) where you find them disagreeable. Given this, it will be suggested that the authority of parents to take medical decisions should yield only where the parents’ decision carries a “serious risk of significant harm” to the child, at which point the court then has the authority to intervene.

Dr Cressida Auckland is an Assistant Professor in Medical Law at the London School of Economics, and an Academic Fellow of Middle Temple. Her research focuses in particular on issues relating to capacity, consent and end-of-life decision-making.