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Intervention principles in pediatric health care: the difference between physicians and the state

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Abstract

According to various accounts, intervention in pediatric decisions is justified either by the best interests standard or by the harm principle. While these principles have various nuances that distinguish them from each other, they are similar in the sense that both focus primarily on the features of parental decisions that justify intervention, rather than on the competency or authority of the parties that intervene. Accounts of these principles effectively suggest that intervention in pediatric decision making is warranted for both physicians and the state under precisely the same circumstances. This essay argues that there are substantial differences in the competencies and authorities of physicians and the state, and that the principles that guide their interventions should also be conceived differently. While both the best interests standard and the harm principle effectively incorporate important aspects of physicians’ ethical obligations, neither adequately reflects the state’s ethical obligations. In contrast to physicians, the state has major obligations of distributive justice and neutrality that should form an integral part of any proposed ethical principles guiding state intervention in pediatric decision making. The differences are illustrated by examining recent cases involving parental refusal of chemotherapy in aboriginal Canadian communities and parental refusal of blood transfusions by Jehovah’s Witnesses.

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Notes

  1. In many jurisdictions, it should be noted, physicians have very little discretion about which cases to report. Their legal duties in this regard are outlined in “mandated reporter” requirements. However, the topic of this essay is physicians’ ethical duties, not their legal ones. So for now, I leave open the question of whether and under what circumstances physicians have an ethical obligation to report cases of neglect.

  2. “Primary goods” is John Rawls’ term for “things that every rational man is presumed to want,” among which Rawls considers “rights and liberties, opportunities and powers, income and wealth” [19, p. 62]. They are thus essentially the class of instrumental, non-ultimate interests.

  3. There does not necessarily seem to be a 1:1 correlation between accepting a blood transfusion and losing eternal life, although Jehovah’s Witnesses have drawn a connection between these in the case of children. According to the Watch Tower Society, Jehovah’s Witnesses “know that if they violate God’s law on blood and the child dies in the process, they have endangered that child’s opportunity for everlasting life in God’s new world. Their love is not motivated by overriding emotion that seeks satisfaction only at the moment, but their love is deep, seeking the everlasting welfare of their loved ones” [20, pp. 55‒56].

  4. Diekema provides a striking example of this approach. Diekema argues that the harm principle clearly requires intervening in cases involving Jehovah’s Witnesses who refuse blood transfusions on behalf of their children [5]. Diekema’s reasoning goes like this: blood transfusions are, in many cases, the only way of avoiding death; consequently, for children who need them, transfusions are a major benefit. Moreover, the risks associated with blood transfusions are “minimal” [5, p. 255]. Consequently, to deprive the child of a transfusion is to visit the child with great net harm. Intervening in parental refusals is thus clearly recommended by the harm principle. But what can Diekema mean when he says that the risks of receiving a blood transfusion are “minimal”? If the parents are correct, the risks associated with receiving the transfusion are devastating. Diekema never explains this point. His treatment is typical of the bioethics literature surrounding this topic, in that it excludes consideration of spiritual interests without going into great detail about why such considerations should not count in the analysis of the child’s interests. For exceptions to this general trend, see [21, 22].

  5. This is not to say that if physicians did have training in spiritual or cultural interests, they could make decisions for either adults or children. It is just to emphasize the complete absence of any reason for thinking that physicians, as a group, have the competency to decide about the ultimate interests of anyone, regardless of age.

  6. Similarly, the state should presumably not privilege its own interests on the liberal view either. This would seem to call into question the United States Supreme Court’s claim in Prince v. Massachusetts [29] that it can restrict the freedom of minors because it has an interest in the kinds of citizens they turn into. However, proponents of the BIS and the harm principle have not claimed that intervention is justified when it is in the interest of the state, so I will not pursue this question further here.

  7. Such an effect was predicted by Judge Murray Sinclair, chair of the Truth and Reconciliation Commission. According to Judge Sinclair, speaking with reference to the case of J.J., “when the medical community asks the legal system to force parents to submit their children to treatments they do not support, ‘it now just generates more distrust’” [33].

  8. The parens patriae doctrine was utilized in Prince v. Massachusetts [29], which set the precedent that is sometimes cited by courts intervening in medical decisions, such as those involving Jehovah’s Witnesses’ refusals of blood transfusions on behalf of their children.

  9. These elements of the doctrine were elaborated in Wellesley v. Wellesley [36] and Ex parte Crouse [37], as explained by Jeffrey Blustein [38].

  10. I use the term “neutrality” here to refer to a variety of normative responses to the problem of pluralism that all involve some form of “not taking sides.” Not all liberal thinkers have understood neutrality in the same way, and of course they develop a variety of accounts of what neutrality in this broad sense entails. Some liberal perfectionists have been critical of the idea that the liberal state can be neutral, for example. Whether the state can be absolutely neutral is beside the point being made here, though. Most forms of liberalism have at least wanted to protect individuals’ rights to live according to conscience and religion. For more on this, see [42].

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Acknowledgements

I would like to thank audiences at the American Society of Bioethics and Humanities and the Canadian Bioethics Society for comments on presented versions of this paper, and the reviewers and editors at Theoretical Medicine and Bioethics for their helpful comments, insights, and criticisms on earlier versions of this manuscript.

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    D. Robert MacDougall

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MacDougall, D.R. Intervention principles in pediatric health care: the difference between physicians and the state. Theor Med Bioeth 40, 279–297 (2019). https://doi.org/10.1007/s11017-019-09497-6

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