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How should we make decisions about medical treatment for a very young child? What should we do when there is a disagreement between parents and clinicians about what would be best for the child? The conventional answer, as found in textbooks, professional guidelines and the law, is that decisions should be based on the best interests of the child. However, as noted by Giles Birchley in an article in this issue,1 a number of ethicists have argued that the focus should instead be on harm; parents should be overruled where their decision would cross a threshold level of harm.2 ,3 Birchley, in his article, disagrees. He argues that the harm threshold (HT) suffers from problems of negative connotations, narrow scope and indeterminacy, and that it would be better to clarify the values that should inform best interests.
What is the question?
Before addressing whether Birchley is right, we should clarify the type of question that we are dealing with. Is this a legal question or is it an ethical question? If it is a legal question, are we asking what is currently lawful or what the law should be? The question of what the law currently is will depend on the jurisdiction, as well as perhaps on the specific scenario. As Birchley notes, UK law includes both an HT and a best interests standard, though for medical treatment decisions it is the latter that is usually applied.1 Here we will focus on the question of wider relevance—of what the law should be in this area.
Second, we should distinguish between what should happen and what is permissible. Not everything that ought to happen is a matter for the law. As we will see, the argument in favour of the HT draws specifically on the gap between what parents ought to …