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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 …
Contributors DW drafted the manuscript and TN helped to plan, edit and research.
Funding Wellcome Trust (WT106587/Z/14/Z).
Competing interests None declared.
Provenance and peer review Not commissioned; internally peer reviewed.
↵i This is a composite case experienced by DW. Details have been altered.
↵ii Birchley is correct in this sense—all cases that fall above the HT would also sit above the BIT (choices that impose a significant risk of serious harm by definition do not maximally promote the well-being of the child). However, the reverse does not apply.
↵iii One example is the difference between oral and intramuscular preparations of vitamin K. Although it appears from epidemiological studies that intramuscular vitamin K is more effective than oral vitamin K in preventing haemorrhagic disease,7 there have been no randomised controlled trials that have looked at this question.4