If you ask the wrong question, you'll get the wrong answer
- Correspondence to Charles Foster, Green Templeton College, University of Oxford, Oxford, UK;
- Accepted 20 March 2012
- Published Online First 13 August 2012
There are two main and several subsidiary difficulties with this paper.1
The first main problem is that the authors, in calling for a revolution in the way that withdrawal of treatment cases are dealt with, fail to recognise that their desired revolutionary utopia is the ordinary workaday world of the law courts.
The English law in relation to the administration of treatment to children, and the withdrawal of treatment from them, is straightforward: the only lawful treatment is that which is in the child's best interests. The Children Act 1989 (Section 1(1)(a)) puts it slightly differently, but synonymously: the welfare of the child is the paramount consideration. Yes, the views of those holding parental responsibility are sought, but those views do not determine where the child's best interests lie. This is often misunderstood. One hears people talk about a parental veto on proposed treatment or a withdrawal of treatment. There is no such veto. There is a de facto (but not de jure) presumption that a parent's views on what is in their child's best interests will coincide with what those best interests are, but that presumption is rebuttable, and is very commonly rebutted, for instance, as the authors note, in many Jehovah's Witness cases. …