Deciding for a child: a comprehensive analysis of the best interest standard

Abstract

This article critically examines, and ultimately rejects, the best interest standard as the predominant, go-to ethical and legal standard of decision making for children. After an introduction to the presumption of parental authority, it characterizes and distinguishes six versions of the best interest standard according to two key dimensions related to the types of interests emphasized. Then the article brings three main criticisms against the best interest standard: (1) that it is ill-defined and inconsistently appealed to and applied, (2) that it is unreasonably demanding and narrow, and (3) that it fails to respect the family. Finally, it argues that despite the best interest standard’s potent rhetorical power, it is irreparably encumbered by too much inconsistency and confusion and should be rejected.

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Notes

  1. 1.

    While the ambit of this article is decision making for children, I should acknowledge that the best interest standard is used beyond just this context, most notably in decision making for incompetent adults with no knowledge of previously articulated desires or wishes.

  2. 2.

    For more information on the decision making abilities of children, see Klayman [2], Weithorn and Campbell [3], and Scott et al. [4].

  3. 3.

    This phrase comes from In re: Weberlist, but is not accompanied by any further elucidation of what constitutes “traditional” best interests, beyond survival [8].

  4. 4.

    Compare Cruzan v. Director, MO Dep’t of Health [13] with In re Drabick [14], both cases of patients in PVS without evidence of the patients’ preferences. The Cruzan court determined that it would be in the objective interest of the patient to continue ANH, while the Drabick court concluded the opposite, that the patient’s interests were best served by a decision to withdraw medical nutrition and hydration.

  5. 5.

    See, for instance, In re Storar [15]; Superintendent of Belchertown V. Saikewicz [16]; Wadlington [17].

  6. 6.

    While the United States had a significant role in the drafting of the Convention, and signed it in 1995, it has not yet ratified it. When a country signs a protocol or treaty, it indicates general support for its objectives and provisions, as well as its intention to become party to the protocol or treaty in the future. However, until the protocol is ratified, the country is not legally bound to its content. The U.S. has traditionally spent significant time, sometimes up to three or four decades, to formally ratify treaties that it has signed [21].

  7. 7.

    Please note, I am including only theories that identify with the “best interest” language, in either a strict or expanded way. Indeed, not all theories adopt this language, and there are several that have offered significant alternatives (including Lainie F. Ross’s Constrained Parental Autonomy [30] and Douglas Diekema’s harm principle [31]). However, because I am not considering them to be versions of a best interest account, they will be dealt with later in the discussion.

  8. 8.

    Special thanks to an anonymous reviewer from Theoretical Medicine and Bioethics for recommending this analysis.

  9. 9.

    These basic categories are an adaptation of Abraham Maslow’s need categories in his hierarchy of needs [33]. My usage of them does not, however, include the hierarchical structure, meaning no one category of needs is prioritized over others.

  10. 10.

    Interestingly, several empirical studies have demonstrated that this variability is evident in clinical practice for newborns, as well. Janvier et al. [36] showed that the best interest standard is applied differently to neonates versus full term infants, grade school aged children and adults, despite the exact same outcomes being described for each.

  11. 11.

    See the court case In re Storar [15].

  12. 12.

    This is an observation that many have made about Beauchamp and Childress’s principles of bioethics. Beauchamp and Childress argue that their four principles are mid-level principles, meaning they can be justified using a variety of comprehensive philosophies, and they can, in turn, justify a variety of interpretations, depending on the particular case. Indeed, many find this to be critical weakness of Beauchamp and Childress’s theory. See, e.g. [38].

  13. 13.

    The selection of Buchanan and Brock’s formulation will be discussed and defended in a following section.

  14. 14.

    The basic facts of this case came from Ross [30, p. 21] while many of the details have been added for the sake of the discussion at hand.

References

  1. 1.

    Downie, R.S., and F. Randall. 1997. Parenting and the best interest of minors. Journal of Medicine and Philosophy 22(3): 219–231.

    Article  Google Scholar 

  2. 2.

    Klayman, J. 1985. Children’s decision strategies and their adaptation to task characteristics. Organization Behavior and Human Decision Processes 35: 179–220.

    Article  Google Scholar 

  3. 3.

    Weithorn, L.A., and S.B. Campbell. 1982. The competency of children and adolescents to make informed treatment decisions. Child Development 53: 1595.

    Article  Google Scholar 

  4. 4.

    Scott, E.S., N.D. Reppucci, and J. Woolard. 1995. Evaluating adolescent decision making in legal contexts. Law and Human Behavior 19: 224–226.

    Article  Google Scholar 

  5. 5.

    Locke, J. 1988. Two treatises of government. Cambridge: Cambridge University Press.

    Google Scholar 

  6. 6.

    Dare, T. 2009. Parental rights and medical decisions. Pediatric Anesthesia 19(10): 947–952.

    Article  Google Scholar 

  7. 7.

    Developments in the law: The constitution and the family. 1980. Harvard Law Review 93(6): 1156–1383.

  8. 8.

    In re Weberlist. 79 Misc. 2d 753 (N.Y. Sup. Ct., 1974).

  9. 9.

    Clarke, A.M. 1980. The choice to refuse or withhold medical treatment. Creighton Law Review 13(3): 795–841.

    Google Scholar 

  10. 10.

    Developments in the law: Medical technology and the law. 1990. Harvard Law Review 103 (7):1519–1676.

  11. 11.

    Dresser, R.S. 1994. Missing persons: Legal perceptions of incompetent patients. Rutgers Law Review 46(2): 609–719.

    Google Scholar 

  12. 12.

    Griffith, D.B. 1991. The best interests standard: A comparison of the state’s parens patriae authority and judicial oversight in best interests determinations for children and incompetent patients. Issues in Law and Medicine 7(3): 283–338.

    Google Scholar 

  13. 13.

    Cruzan v. Director, MO Dep’t of Health. 497 U.S. 261 (1990).

  14. 14.

    In re:Drabick. 245 Cal. Rptr. 840 (Ct. App. 1988).

  15. 15.

    In re Storar. 420 N.E.2d 64 (N.Y.), cert. denied, 454 U.S. 858 (1981).

  16. 16.

    Superintendent of Belchertown v. Saikewicz. 370 N.E.2d 417 (1977).

  17. 17.

    Wadlington, W. 1994. Medical decision making for and by children: Tensions between parent, state and child. University of Illinois Law Review 1994(2): 311–336.

    Google Scholar 

  18. 18.

    American Medical Association. 2006. Surrogate decision making. In Code of medical ethics, opinion E-8.081. Chicago, IL: AMA.

  19. 19.

    President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. 1982. Making health care decisions: A report on the ethical and legal implications of informed consent in the patient-practitioner relationship. Washington, DC: U.S. Government Printing Office.

  20. 20.

    U.K. Parliament. 2005. Mental Capacity Act 2005. Chap. ix. http://www.legislation.gov.uk/ukpga/2005/9/contents.

  21. 21.

    Amnesty International. 2007. Convention on the rights of the child: Frequently asked questions. http://www.amnestyusa.org/children/crn_faq.html. Accessed February 2, 2012.

  22. 22.

    Lo, B. 2009. Resolving ethical dilemmas: A guide for clinicians. Baltimore, MD: Lippincott, Williams & Wilkins.

    Google Scholar 

  23. 23.

    Beauchamp, T.L., and J.F. Childress. 2008. Principles of biomedical ethics. 6th ed. New York: Oxford University Press.

    Google Scholar 

  24. 24.

    Jonsen, A., M. Siegler, and W. Winslade. 2006. Clinical ethics: A practical approach to ethical decisions in clinical medicine. 6th ed. New York: McGraw Hill.

    Google Scholar 

  25. 25.

    Buchanan, A.E., and D.W. Brock. 1989. Deciding for others: The ethics of surrogate decision making. Cambridge: Cambridge University Press.

    Google Scholar 

  26. 26.

    Blustein, J. 1982. Parents and children. New York: Oxford University Press.

    Google Scholar 

  27. 27.

    Drane, J.F., and J.L. Coulehan. 1995. The best interest standard: Surrogate decision making and quality of life. Journal of Clinical Ethics 6(1): 20–29.

    Google Scholar 

  28. 28.

    Kopelman, L.M. 2005. Rejecting the Baby Doe Rules and defending a “negative” analysis of the best interests standard. Journal of Medicine and Philosophy 30: 331–352.

    Article  Google Scholar 

  29. 29.

    Goldstein, J., A. Solnit, S. Goldstein, and A. Freud. 1996. The best interests of the child: The least detrimental alternative. New York: Free Press.

    Google Scholar 

  30. 30.

    Ross, L.F. 1998. Children, families and healthcare decision-Making. Oxford: Clarendon Press.

    Google Scholar 

  31. 31.

    Diekema, D.S. 2004. Parental refusals and medical treatment: The Harm Principle as threshold for State intervention. Theoretical Medicine 25: 243–264.

    Article  Google Scholar 

  32. 32.

    Hester, M. 2007. Interests and neonates: There is more to the story than we explicitly acknowledge. Theoretical Medicine and Bioethics 28: 357–372.

    Article  Google Scholar 

  33. 33.

    Maslow, A.H. 1943. A theory of human motivation. Psychological Review 50(4): 370–396.

    Article  Google Scholar 

  34. 34.

    Rawls, J. 1971. Theory of justice. Cambridge: Harvard University Press.

    Google Scholar 

  35. 35.

    Kopelman, L.M. 1997. The best interests standard as threshold, ideal and standard of reasonableness. Journal of Medicine and Philosophy 22(3): 271–289.

    Article  Google Scholar 

  36. 36.

    Janvier, A., I. Leblanc, and K.J. Barrington. 2008. The best interest standard is not applied for neonatal resuscitation decisions. Pediatrics 121(5): 963–969.

    Article  Google Scholar 

  37. 37.

    Walker, K. 1998. Jurisprudential and ethical perspectives on the best interests of children. Interchange 29(3): 287–308.

    Google Scholar 

  38. 38.

    Takala, T. 2001. What is wrong with global bioethics? On the limitations of the four principles approach. Cambridge Quarterly of Healthcare Ethics 10(1): 72–77.

    Article  Google Scholar 

  39. 39.

    Masden v. Harrison. Eq. No. 68651 (Mass., June 12, 1957).

  40. 40.

    Hart v. Brown. 289 A.2d 386 (Conn. Super. Ct., 1972).

  41. 41.

    Crouch, R.A., and C. Elliott. 1999. Moral agency and the family: The case of living related organ transplantation. Cambridge Quarterly of Healthcare Ethics 8(3): 275–287.

    Article  Google Scholar 

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Acknowledgments

I would like to thank Ana Iltis for her guidance and help in the preparation of this manuscript, as well as the reviewers at Theoretical Medicine and Bioethics for their helpful suggestions in the refinement of my arguments.

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Correspondence to Erica K. Salter.

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Salter, E.K. Deciding for a child: a comprehensive analysis of the best interest standard. Theor Med Bioeth 33, 179–198 (2012). https://doi.org/10.1007/s11017-012-9219-z

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Keywords

  • Pediatric decision making
  • Best interest standard
  • Surrogate decision making