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The best interest standard and children: clarifying a concept and responding to its critics
  1. Johan Christiaan Bester
  1. Correspondence to Dr Johan Christiaan Bester, UNLV School of Medicine, University of Nevada, Las Vegas, Nevada 89102, USA; jcbester{at}gmail.com

Abstract

This work clarifies the role of the best interest standard (BIS) as ethical principle in the medical care of children. It relates the BIS to the ethical framework of medical practice. The BIS is shown to be a general principle in medical ethics, providing grounding to prima facie obligations. The foundational BIS of Kopelman and Buchanan and Brock are reviewed and shown to be in agreement with the BIS here defended. Critics describe the BIS as being too demanding, narrow, opaque, not taking the family into account and not suitable as limiting principle. This work responds to these criticisms, showing that they do not stand up to scrutiny. They either do not apply to the BIS, only apply to misuses of the BIS or criticise a BIS that is not seriously defended in the literature.

  • children
  • decision-making
  • family
  • minors/parental consent
  • paediatrics

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The best interest standard (BIS) has been the prevailing ethical principle in paediatric ethics for many decades. It has served as ethical guide in making medical decisions for children, illuminating ethical obligations, values and ethically sound decisions. It has also functioned as ethical and legal standard in situations where parental choices should be overridden to protect the interests of the child.

In the past 25 years or so, the BIS has been the subject of severe criticism from some authors.1–6 It has been criticised for being too demanding, too narrow, too opaque, not taking the family into account and not suitable in cases where parental choices are to be overridden.

These critiques of the BIS appear devastating on first glance. But on deeper inspection, there are many issues that make these critiques unpersuasive. Critics do not always represent the BIS as found in the work of its leading defenders accurately, and the critiques often appear misplaced.

In this article, I seek to bring clarity to this ongoing debate in paediatric ethics, clarifying the place and role of the BIS in medicine and paediatric ethics. I will start with philosophical reflection on the foundation of medical ethics and the moral commitments of medicine. I will show that the BIS is well aligned with the general ethical commitments of medicine and show how a BIS framework can be derived from the general ethical commitments of medicine.

Next, I will provide a brief overview of the BIS as it appears in the influential works of Kopelman,7 and Buchanan and Brock.8 I will show how the BIS they defend agrees with the BIS framework I develop from the general ethical commitments of medicine. This counters potential criticisms that there are many different BIS or that it is ill defined.

After this, I will critically review the most prominent and substantive critiques of the BIS. I will show that these criticisms do not hold up to scrutiny. Some critiques are misplaced and incorrectly identify the BIS as responsible for problems that have another source. Other critiques create a straw-man version of the BIS that is not actually defended in the literature. Some critiques make use of troubling moral dilemmas to show the supposed impotence of the BIS, while not taking into account that moral dilemmas by their very nature strain our ethical principles.

I will conclude that the BIS is well placed to act as ethical standard for medical decision-making for children, rests on the foundation of the clinician’s obligation to her patient and is well able to withstand criticism. Now of course, where limitations in the BIS are identified, we should do the work of philosophical and moral reflection and improve it. But none of the criticisms, I would argue, justifies an abandonment of the BIS.i

Moral foundations of medicine: the clinician and her patient

I engage here in philosophical reflection on the ethical framework of medicine to show how the BIS can be grounded in the general ethical commitments of medicine.

Medicine exists primarily for one reason: to benefit patients, and particularly in the areas of their health and well-being. This can be expressed by saying things such as medicine is there to relieve suffering, provide healing, prevent illness and promote the health of patients. There can be no other justification for the existence of medicine than the provision of such benefits to patients.

Medicine is practised in the context of interaction between clinicians (doctors, nurses and so on) and patients, giving rise to the clinician-patient relationship. It is more widely known as the doctor-patient relationship, but contemporary medicine is more likely to be delivered in teams and include a wide variety of healthcare professionals. It is therefore more appropriate to talk about the clinician-patient relationship, realising that the moral foundations of medicine equally provide grounding for the practice of nurses, nurse practitioners, social workers and psychologists, as it does to physicians.

If we accept that medicine exists primarily for the benefit of patients, and is delivered in a clinician-patient relationship, it commits us to recognising ethical components necessarily part of the clinician-patient relationship. Clinicians, endowed with medical training, skill and treatment-prescribing authority, have to work to promote the well-being and health of their patients. The primary focus of the clinician is to advance the health interests and well-being of their patient. This is why medicine is often described as a fiduciary relationship: a fiduciary is obligated to set aside their own interests, and use their knowledge, authority and skill to further the interests of the person meant to be the receiver of benefits in the fiduciary relationship.

These ideas have been central to the practice of medicine for thousands of years, and date back at least to the Hippocratic tradition and Hippocratic Oath. In the Hippocratic tradition and in the principles-based approach of Beauchamp and Childress, these moral commitments of medicine are described by the principles of beneficence and non-maleficence.9 But these two principles can also be combined by saying that clinicians ought to act in the best interests of patients or serve the best interests of patients. These principles are so codified in the declarations of the World Medical Association (WMA),10 and for example in the work of Lo.11

While it may seem like a fairly intuitive and straightforward thing to say that clinicians ought to promote the health and well-being of their patients, defining health and well-being can be rather challenging. WHO, for example, defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity'.12 This is a fairly broad definition, and includes all aspects of the person, not just physical health. There are different conceptions of what exactly is meant by ‘well-being’. Some view it as purely the fulfilment of wishes and desires, so that a person’s well-being is connected to the person’s view of the good and the person’s values. On this view, a person’s well-being is related to how much the person is achieving her stated goals and views of the good. Others think there is a more objective list of things that make for well-being if fulfilled. On this view, well-being is linked to observable and more objective measures of species-normal functioning.ii

Both of these aspects seem relevant to well-being. There are at least two important components to health and well-being we should consider: components related to a person’s view of the good and the person’s values related to the good, and components related to normal functioning and absence of disease. It may therefore seem as if our obligation to benefit a patient may have more subjective components and more objective components—we have to consider what is important to the patient, but we also have to consider objective measures of functioning and absence of disease.

There are therefore important qualifiers and boundaries to this seeking of benefit for the patient. If clinicians are obligated to benefit patients, clinicians need to know what is important to patients. It is no help at all to provide those things that are unwelcome to patients, and it is a unique kind of harm to impose things that are contrary to a patient’s wishes and values. That is to say, an important component of well-being is that the person’s values and wishes should be considered. Interfering with someone’s self-determination impinges on their well-being. Another consideration is that we have to balance conflicting obligations between patients fairly. It is unjustifiable to benefit one patient by harming another; clinicians have multiple patients (and even communities) to consider, so that benefits and burdens must be distributed fairly.iii These have been described in the principles of autonomy and justice, which have been described by the WMA and in the principles framework of Beauchamp and Childress.

It is therefore an important point that obligations related to benefit promotion and harm avoidance, or best interest obligations, are prima facie in nature. They are things clinicians should always do unless there is an overriding ethical reason not to. Prima facie obligations should be weighed against countervailing obligations.

Furthermore, these general ideas of providing benefit and avoiding harm are fairly broad and general ethical guidelines. They stand in need of application and specification. This is similar to how the other principles in medical ethics work. For example, the very general idea of respecting autonomy is specified into more specific prima facie obligations to obtain informed consent, to provide disclosure of relevant information and so forth. The BIS is similar. It is a general principle which has to be specified to provide grounding for more specific prima facie obligations in clinical situations.

In the case of child-patients, these principles also inform the obligations of the clinician.iv The clinician’s commitment is to the patient—the child. The clinician is obligated to act in ways that promote the child’s welfare and health, and to remove or avoid harms. The clinician is a fiduciary to the child, divesting of self-interest and acting so that the child’s interests are served. To do this, a clinician needs a sense of which interests are important to the child and should promote and protect these interests. Thus far, I have considered well-being for adults: it contains components related to self-determination and the person’s values, as well as more objective components related to functioning and absence of disease. In children we have to think slightly differently about well-being, since children (as I have defined them) lack the capacity for self-determination. But, children will in future develop the capacity for self-determination, and this represents the focus of an important set of childhood interests. Interests broadly are things that are important for a child’s well-being. Given the nature of childhood well-being, children have two main sets of interests: the child’s immediate interests (including pleasure, normal functioning and to be free from pain or suffering), and future-looking interests related to development and future flourishing (pp. 226–227, 247–248).8 Attention should be given to interests related to present and future well-being, such as adequate nutrition, prevention of disease and physical injury, opportunities for education and cognitive development and so on. An important childhood interest is the parent-child relationship. Parents are nurturers, tasked with protecting the child and providing what is needed for the child’s welfare. Relational attachments are important childhood interests, both providing for immediate interests and future development. The parent-child relationship (and, indeed, the child’s place in the family) are important considerations for the clinician. A helpful list of the varied interests of children that fall into these broad categories I have stipulated here has been compiled by Malek.13

This gives rise to an ethical framework for the medical care of children as follows. When providing care for the child, the clinician has to promote the child’s various interests to the best of her ability. When faced with a healthcare decision, clinicians should evaluate the options that are on the table and then choose the course of action that best promotes or protects the child’s various interests. Prima facie, the clinician is obligated to institute this option. But there are, like with adults, important caveats and countervailing ethical considerations. Clinicians cannot place unjust burdens on other individuals or patients in order to narrowly maximise the benefit to this patient in front of them. Furthermore, clinicians should consider the effect of their decisions on all the child’s relevant interests. Burdening the child’s family unduly would negatively impact the patient. For example, if we place burdens on parents that require them to neglect their other obligations such as their jobs and bills, it may lead to financial hardship and parental and relational stress. This may in turn limit opportunities open to the child, as well as place pressure on the child’s attachments. Here, the child-parent bond and the family are important to consider. Parents and the parent-child relationship matter immensely to children and should therefore matter to clinicians. Parents are important because they are important to children. This is why parents are given a role in medical decision-making for the child.v

The BIS is therefore a broad guideline that provides grounding for the obligations of the clinician. It rests on the moral foundations of a clinician’s obligations to patients. By applying and specifying the BIS to specific situations, we can stipulate obligations that clinicians owe children. The BIS requires of the clinician to place the patient central in decision-making, to work to protect the patient’s interests. Clinicians are not concerned primarily with what is due to parents (or any other interested party), but with what is due to the patient. It is a prima facie obligation, meaning that it is not a narrow, wooden sort of requirement to be done at all costs, but requires consideration of countervailing ethical obligations. Children have a plethora of specific interests and needs that should be promoted and protected by the clinician. Among these are medical needs, but there are also unique familial and parent-child interests of the child deserving of protection and promotion. Weighing these means that a clinician should consider the parent-child relationship as an important interest in making medical decisions and consider this interest in the calculus of which treatment decision to follow. In most situations, this is not problematic. However, complex cases may give rise to moral dilemmas. In such situations, careful reasoning and weighing of interests and values is important.

Having now stipulated a BIS framework derived from medicine’s general ethical commitments, let me turn to the BIS of Buchanan and Brock as well as Kopelman.

The BIS of Buchanan and Brock

Buchanan and Brock consider decision-making for young children as a special kind of surrogate decision-making for incompetent patients.8 The ethical values that form the foundation of their surrogate decision-making framework are patient self-determination, patient welfare and distributive justice. They argue that where an incompetent patient’s prior wishes (when the patient was competent) are known, a substituted judgement standard should be used (pp. 89–122). When such wishes are not known, a best interest principle should be used to protect patient welfare (pp. 88–123). They provide a general definition of the best interest principle: ‘acting so as to promote maximally the good of the individual’ (p. 88). This requires a clinician to determine for each treatment option how the option advances the patient’s different interests, and how it sets back other interests. The option that should be followed is the one that provides the greatest advancement of interests over setbacks. The best interest principle requires that the ‘current and future interests of the incompetent individual’ be placed centrally; or in other words that the option to be followed is that one ‘with the greatest net benefit to the patient’ (p. 123).

It is this formulation of the BIS in the work of Buchanan and Brock that critics usually cite. But Buchanan and Brock modify their BIS framework significantly when it comes to children. They start by describing how the values that ground decision-making for children differ. One grounding value when deciding for children is the well-being of the child, or the good of the child (p. 226). Another grounding value is the interest of parents in making decisions for the child, related to the child’s being situated in a parent-child relationship (pp. 226–237). There are important reasons, they argue, that parents have this interest. At the same time, this interest is not unlimited and cannot overrule a child’s other important interests.

An additional distinction made by Buchanan and Brock is between guidance principles and intervention principles. From guidance principles clinicians derive their obligations to the patient and determine a way in which decisions for the patient are to be made. The best interest principle functions as a guide in this sense. But it should be seen more as regulative ideal, something to strive for, rather than a demand for always literally doing what’s ‘best’ (pp. 88–89). Intervention principles describe when clinicians or the state should remove decision-making authority from a surrogate. So, it is important to realise that there are two levels at which clinicians should think when making decisions for incompetent patients: first, how do I maximally promote the various interests of my patient? Second, when should the decision-making authority of the surrogate be challenged?

Except where the basic interests of a child are threatened, a failure of parents to do what is literally the best for the child instead of what is acceptable for the child should not lead to interference with parental authority. It should be noted that while Buchanan and Brock describe a child’s basic interests as a threshold for intervention, they never quite fully explain what is meant by basic interests or how it differs from interests as such. We are never provided with a list of basic interests. Basic interests are defined as those things that are necessary for a child’s well-being; withholding these would impinge on a child’s well-being. But interests themselves are defined as those things that are needed for a child’s well-being. Both interests and basic interests are derived from a conception of childhood well-being that aims at the child’s immediate interests and developmental interests, so that the distinction is not clear.vi Their main point here, I think, is that the BIS should serve as an ideal, a guide that describes clinician obligations and good parental decisions. It should not serve as a ‘strict and literal’ requirement (p. 236). Suitable intervention principles would give parents some discretion in determining what is best for the child when all countervailing ethical and practical considerations are considered.

Thus, it is not so much that basic interests represent something radically different than the child’s interests in general. It is the idea that children should receive a basic minimum of their interests that would secure their well-being; interests do not have to be maximised once we have considered countervailing considerations, but interests cannot be compromised in ways that would threaten the child’s well-being. The child’s interests form the central consideration and starting point of decisions regarding the child, a central feature of the BIS.

The BIS of Buchanan and Brock therefore aligns closely with the general framework I have described. Their BIS is much more fluid, prima facie and aspirational than critics typically acknowledge. Their BIS also provides a central place to the child’s attachments and the parent-child relationship when determining a child’s best interest. A remaining question, less clear from the work of Buchanan and Brock, is what should be used as intervention principle. Clearly, the BIS is not meant to be a literal requirement, but to provide the foundation for prima facie obligations. In their work, they appeal to the child’s welfare forming a line that should not be crossed. From here, one can formulate the idea of a set of basic childhood interests that are non-negotiable restrictions on parental and clinician decisions.

The BIS of Kopelman

Kopelman first describes the historical context of the development of the BIS as legal standard.7 Earlier views considered children as property of parents until children came of age, giving parents unlimited authority over children. In the 19th century, this changed: the interests of children came to be seen as important, and it was realised that limits should be placed on what is considered acceptable parenting. The BIS became a central component of legal decision-making for children during this time. This historical context shows an important feature of the BIS: it places the child centrally in decisions regarding the child and pushes back on the idea that children are property or chattel. Instead, the BIS reminds us that childhood interests represent moral claims, even if children cannot communicate these interests for themselves. The BIS forms a safeguard against subjugation of childhood interests that are essential for childhood well-being.vii This also shows why the BIS is so well aligned with the ethics of medicine: for the clinician, the patient (the child) is the primary focus of the clinician’s obligations.

Kopelman describes the BIS as an umbrella concept that includes three different conceptions or uses of best interests. First, the BIS is used during state intervention to protect children. The BIS is not necessarily used to trigger state intervention; in fact, Kopelman argues, many children live in less than best circumstances that do not warrant intervention. Instead, some threshold for acceptable parenting is identified. viii Once this threshold is crossed, the state intervenes. The BIS guides the intervention of the state: the state must among available intervention options choose the one that best serves the interests of the child. Kopelman argues that the BIS plays an additional role in providing justification for the existence of thresholds that trigger state intervention. It serves the interests of children in general that there are such laws that limit parental choices below an acceptable threshold, so that the existence of limiting principles is ultimately justified by the BIS.

Second, the BIS is an ideal that is used to identify what is prima facie owed to children. When faced with individual or policy decisions focusing on children, decision-makers ought to prima facie choose the option that best promotes the well-being of the children in question. Thus, these BIS guided obligations should be discharged unless a countervailing ethical consideration exists that overrules the BIS obligation. The BIS should not be understood to be an absolute duty, or unbending. Rather, it stipulates prima facie duties, or should act as an ideal that guides medical decisions.

Third, Kopelman describes the BIS as a standard of reasonableness. This means that the BIS guides us to choose the most reasonable among a set of available options. This takes into account that limits exist, placed by the legitimate rights and interests of others. Cast this way, the BIS does not ask us to do literally the best for the child, even at the peril of other ethical obligations and values. Rather, we should ask: what is the best option given the available options? In my view, this relates as well to the fact that some childhood interests are interwoven with the interests of the parents, family and community. This includes interests such as attachments, emotional and cognitive development, belonging and personal security. Rather than literally insisting on what is medically most beneficial or least harmful to the child, a wider view of how the child’s interests are situated in a web of relationships should be taken.

One possible line of criticism against Kopelman’s framework might be that it describes three different BIS, and that it therefore underlines the point of critics that the BIS is ill-defined and vague. In response, one may point out that this is precisely how one would expect a general ethical principle that grounds prima facie obligations to work. Kopelman here shows how the BIS provides grounding for more specific obligations in specific situations. In adult medicine, we recognise that the more general principle of autonomy provides grounding for the specified obligation of informed consent, as well as for obligations of disclosure and privacy. This does not mean autonomy is ill-defined or that there are many principles of autonomy at work. Instead, this is how the general principle is meant to work. Similarly, the BIS is employed in different practical situations to provide us with more specific ethical guidance.

Kopelman’s BIS is therefore closely aligned with the framework I have defended, as well as the BIS of Buchanan and Brock. We see a robust and flexible ethical construct that places the interests of the child centrally, can afford consideration of non-medical interests, provides grounding for prima facie obligations and takes into account countervailing ethical obligations and practical constraints.

Having now clarified the BIS, and having shown how it relates to the ethical commitments of medicine, I turn to a consideration of the criticisms often levelled at the BIS.

Criticisms of the BIS

The BIS is vague and indeterminate

Some maintain that the BIS is unable to provide guidance or act as limiting standard because it is imprecise, poorly defined and vague. Best interest determinations, they argue, are inherently subjective. Some critics point out that it is difficult to make BIS determinations because of value differences, and disagreements about how to weigh different childhood interests and countervailing obligations.1 3 5 6 Additionally, some argue that the BIS is poorly defined, has too many different faces and is inconsistently applied to arrive at different conclusions in similar situations by courts and clinicians.3 5

The first point in this critique is that the BIS is devoid of content and ill-defined. This is another way of saying that it is too generalised and unspecific to be of use in clinical situations. Indeed, it is true that the BIS is a general principle that provides little specific guidance in itself beyond stating the ideal that the child’s interests should be the central consideration in decisions about the child. But this is no different than any of the principles of medical ethics, such as beneficence and non-maleficence that the BIS is related to. These general principles are not meant to provide specific guidance. Instead, they form the basis of clinicians’ prima facie obligations. Beauchamp and Childress explain that these principles are broad guidelines, devoid of specific content.9 Clinicians find grounding for specific obligations through a process of reasoning called specification, where principles are applied to concrete situations to derive prima facie obligations. We have to provide the content and focus that the general principles lack through specification. Beneficence, autonomy, non-maleficence and justice are just as general and broad as is the BIS; if we seek guidance from these principles without specification, it leaves us with the same indeterminacy.

An example of how the BIS can be specified to provide prima facie obligations in clinical settings is stating something like ‘In clinical situations where a number of treatment options are available at similar cost and with similar adverse effects, recommend the option that provides the highest rate of cure'. This is a pretty straightforward specified ethical guideline, which rests on the BIS and is applicable to specific clinical situations.

The critique therefore misunderstands the kind of thing that the BIS is, and at which level of ethical reasoning it functions. Those who object to the BIS on these grounds must also similarly object to other general grounding principles such as autonomy or justice.

The second point of this critique is that disagreements over what is best for the child are inevitable since best interest determinations are based on value judgements. Different people will weigh different childhood interests differently. In response, I would point out that this is not a feature of the BIS itself, but rather of the pluralistic nature of the society we live in. This is a feature of a liberal society. Therefore, any of our ethical principles may be vulnerable to disagreement based on differing value judgements, especially in complex medical situations.

This may be the case even with principles that may be perceived as more straightforward, such as harm avoidance (non-maleficence). Disagreement about what counts as a harm in a given situation may be driven by different views about what counts as important childhood interests, as well as which interests are more important than others. In a case of withdrawal of life-sustaining treatment for a critically ill and suffering child, for example, different views about which childhood interest is most important lead to different views on what counts as a harm. Some may be convinced that it is harmful to withdraw treatment when we know that it would end the life of the child. Others may think it a greater harm to remain alive in a state of pain and suffering where prognosis is poor. In such a situation, intractable disagreement may persist over what non-maleficence obligates the clinician to do. This is not the fault of non-maleficence; it is the nature of our pluralistic society that is responsible. The solution, therefore, is not to abandon non-maleficence as being too vacuous or non-specific. Rather, clinicians should engage in discussions that elucidate and clarify the values that drive the disagreement. From there a process of weighing different obligations and values should follow. This is exactly the way in which the BIS should be deployed in complex clinical situations where value conflict is present.

The third point of the critique is that the BIS is inconsistently used in practice. This I readily concede. It seems clear that some decision-makers use the concept however they wish. However, it is not the fault of the BIS or truer of the BIS than of our other ethical principles. Take an example from adult medicine. It is not the fault of the principle of autonomy if a clinician argues that an intoxicated patient who cannot sign a consent form should not receive emergency life-saving treatment because autonomy means we need the patient’s permission before we can treat. This is a misunderstanding and misapplication of autonomy by the clinician. Indeed, in my experience as clinical ethics consultant I often had to correct misunderstandings of what the principle of autonomy requires in specific situations. Yet, this does not mean that the principle of autonomy is fatally flawed. It is the incorrect use that should be corrected, not the principle that should be criticised. Similarly, just because some people misuse the BIS, it does not follow that the BIS is a flawed principle. The problem here is that people deploy ethical reasoning in the clinical setting incorrectly, not that ethical principles are no good.

The BIS is too narrow, too demanding and too inflexible, and fails to respect the family

Arguments along the following lines appear in the work of critics of the BIS.1 3–5 Critics argue that according to the BIS, we must identify that one best option that provides greatest benefit over harm for the child. This does not allow consideration of the interests of other family members or other patients and asks us to narrowly focus only on what is best for this child. Furthermore, the BIS is too demanding, placing unreasonable obligations on parents and clinicians; they must strive for what is best despite the costs, not just what is good enough. And lastly, it is not always possible to identify one best option.

A first point in this critique is that the BIS asks of us to do what is literally the best for the child without consideration of countervailing ethical considerations or practical constraints. It does not seem to me as if this version of the BIS is seriously defended in the literature. It is not consistent with the BIS I have defended here, nor with the BIS of Kopelman or Buchanan and Brock. The BIS is a general grounding principle from where we derive more specific obligations. These obligations are prima facie obligations—meaning that they should be done unless we have countervailing ethical considerations that overrule them. The BIS is not the sort of unbending, demanding thing that these critics portray it to be. Instead, it is more like the subtle interaction of prima facie obligations derived from general principles we see in other areas of medical practice—where beneficence, non-maleficence, autonomy and justice all provide grounding for prima facie duties that can conflict. Deliberation and weighing is needed in order to know how best to proceed. If a clinician or judge applies the BIS in an inflexible and demanding manner without considering countervailing ethical considerations, this reflects an error of judgement, not a defect in the principle.

A second point in this critique appears to be that only one option can possibly be the best. But this is often not the case in clinical practice. Sometimes there are a range of options that could all be best or acceptable. Medical judgement often relies on interpretation of risk ratios and cure rates that do not convey precise information about which specific option is literally the best. Consequently, the BIS functions as general guide from which we can stipulate acceptable options. It is not a problem for the BIS if there are four options that are all similarly good and we have the leisure to choose any option we wish. Nor does the BIS demand that we identify exactly which is literally the best if we cannot say which of the four acceptable treatment options is literally the best. If we have one option that is clearly superior to the other, all things considered, then we should obviously choose the better one. If it is not clear which option is best, we should do as well as we can all things considered.

A third point of this critique seems to be that the BIS focuses narrowly on medical interests only and neglects other crucial interests. This is again a misapplication of the BIS. Any worthwhile best interest determination should take a wider view of the child’s interests. We cannot claim we have done what is best for the child if we ignore some set of important childhood interests. So, we should resist any call that we have done what is best for the child if one interest is narrowly focused on while others are undermined.

Again, I would readily concede that the BIS has been used in practice in ways that are too demanding, too narrow and in ways that fail to respect the familial and attachment interests of the child. This is an error of ethical reasoning we should point out when we see it. Taking examples from use of the BIS in legal situations, we see that courts have sometimes used the BIS inconsistently.14 Sometimes the BIS has been used in ways that sets up an adversarial relationship between the family and the child, forgetting the child’s interests bound up in the parent-child bond (p. 337).14 Sometimes it has been claimed in judicial practice that the BIS leads to a single best answer, rather than a plurality of answers or a range of acceptable options.15 I view these as misapplications and misunderstandings of the BIS, rather than actual problems with the BIS. As I argued under the previous set of objections, any of our other moral principles can be misapplied in practice in a similar way; this is not a particular shortcoming of the BIS. So, if the critique is levelled at misapplications of the BIS, I fully agree. In the academic literature I have cited, it is clear that the BIS is not meant to work this way.

A fourth point I would comment on here is the issue of moral dilemmas. In support of their critiques of the BIS, critics often use cases containing moral dilemmas. Some of these moral dilemmas are of the kind that do not lead to easy resolution. This may make it seem as if the BIS is a particularly challenged and contestable ethical principle. Consider, however, the nature of moral dilemmas. Hursthouse distinguishes between moral dilemmas that are resolvable and others that are not resolvable.16 Non-resolvable dilemmas may be tragic—resolution is not possible and we must make a tragic choice. In a tragic dilemma, we are faced with two ethical obligations we must both discharge, but we can only discharge one and have to leave the other undone. Now, it is in the nature of moral dilemmas that they strain our ethical reasoning and our moral principles. Non-resolvable dilemmas leave us unsatisfied and with regret, realising that we have left something of moral importance undone. It is a mistake to apply the BIS to moral dilemmas and then conclude the BIS is uniquely flawed among our ethical principles. Of course we will have an unsatisfactory choice to make when faced with a dilemma. This says more about the nature of moral dilemmas as a component of our moral lives than it does about the BIS as an ethical principle.

Examples frequently used are of this type:ix a boy aged 4 years has a severe chronic illness that leaves him disabled and in pain. Symptoms can be controlled completely by a medication that is so expensive that it would bankrupt the family. Critics would often argue that the BIS literally applied would require that parents opt in favour of the treatment. The BIS, they say, leaves no room for consideration of other family members, demands literally the best be done and focuses only on the medical interests of the child. The BIS does not work this way. This is a misunderstanding or misapplication of the BIS. But even setting that aside, notice the dilemma faced by the parents. They are obligated to avoid financial ruin, because of obligations to their child, each other and (if applicable) their other children. They are also obligated to choose medical treatment that will help their child, which would bankrupt them. This is a tragic choice, with either option unpalatable. No matter what, the parents will make a decision that leaves something of moral importance undone. It is not the BIS that is to blame; even if we remove the requirement to do what is best for their child, is it not clear that it is tragic that the child’s symptoms and disability cannot be treated because of financial reasons? Instead of directing us to discard an ethical principle like the BIS, dilemmas like these should direct us to take our justice obligations into account and ask hard questions about what society owes its children. In the given example, treatment is obviously the best option for the child should the financial burdens be removed. If the financial burdens remain, it is not clear what is overall best for the child. Is this not where society should intervene, providing help to children where parents cannot? Surely, just discarding the BIS as ethical principle is the least satisfactory solution.

The BIS cannot function as a limiting principle

Some critics of the BIS argue that the BIS cannot function as a limiting principle, and instead another principle should be sought. Suggested alternatives include the harm principle (and the related zone of parental discretion),1 17 18 the not unreasonable principle3 and various family based approaches such as Ross’ constrained parental autonomy.4 Reasons cited include the critiques of the BIS I have already responded to, and some others: practitioners are said to in practice actually use a different standard than the BIS, and it is argued that the same principle cannot (or at least should not) function as both guide and limiting principle.

Can and does the BIS serve as a limiting principle? It seems that in at least some instances, it can and it does. Pope argues that the BIS has been used as limiting principle in the courts, and in so doing a rich array of guidelines have arisen to aid in application of the BIS.19 These seem to represent specifications of the more general BIS, providing more specific guidance in concrete situations. This aligns well with the BIS framework for medical decision-making I have defended. The BIS is a general guidance principle, which provides grounding for the prima facie obligations. It is these specified guidelines and rules, applied to practical situations, that often function as limiting principles. The BIS, then, has the moral force to act both as guiding principle as well as limiting principle.

Is there currently a better available limiting principle? The harm principle appears to be the most popular of these suggested alternate limiting principles.20 The harm principle is attractive, because of a number of reasons. At first glance it seems simpler than the BIS, less vague and less open to disagreement. Paediatricians are often concerned with harm avoidance and harm removal. Still, the harm principle continues to be the subject of debate and some have pointed out serious difficulties with using the harm principle for this purpose.19 21 22

But let us suppose there is a different principle that fulfils the limiting function better in some situations. It still seems, as Pope demonstrates, that the BIS can and does function as limiting principle in some situations. Furthermore, the BIS would still fulfil important functions related to limiting parental authority. The BIS would function as the principle guiding the court or state once it has been clear in light of the limiting principle that a parental decision should be overruled. The limiting principle would only state that parents should be overruled; the BIS would stipulate which decision the court should make once parents are overruled. Also, the BIS would provide grounding for the new limiting principle in the way Kopelman described: it is best for children in general that such limiting principles and laws exist.7

It seems to me, though, that the debate on which principle should function as limiting principle places the focus on the wrong question. The correct questions are: (1) which childhood interests are non-negotiable and should be protected by society? And (2) How do we weigh these non-negotiable interests when they conflict with each other? These contested issues seem to me to be the main source of conflict and disagreement in complex paediatric medical situations, rather than any particular deficiency in the BIS.

Conclusion

I have reviewed the best interest standard as ethical principle in the medical care of children. The BIS fits well within the framework of a clinician’s obligations to her patients. The BIS is a cornerstone in medical ethics generally, and in paediatrics more specifically. It is a general ethical guideline that provides grounding for prima facie obligations. These prima facie obligations represent specifications derived by reasoning through the application of the general guideline to concrete situations. The BIS is not meant to be a literal or wooden requirement, but a general principle and an ideal.

Various authors have criticised the BIS severely. I have argued that these critiques are mistaken or misplaced. Some of the critiques are focused on a version of the BIS that is not seriously defended by BIS proponents. This is specifically so when critics portray the BIS as a literal or inflexible requirement instead of the general grounding principle it actually is. Some of the critiques lay at the foot of the BIS difficulties that have other sources. The BIS is no more vague or opaque than any of our other medical ethics principles, and disagreements about values are not the fault of some particular defect of the BIS itself. Rather, the nature of the pluralistic society we live in is the source of many intractable disagreements. Some of the critiques imagine the BIS cannot function as limiting principle. And indeed, it cannot if devoid of specified content and without the supplementation of specified duties or mediating maxims. But this is true of any generalised principle that functions at the level the BIS does.

The BIS is a foundational ethical principle for those clinicians who care for children. Many of the critiques levelled at the BIS underestimate the role the BIS plays, and can be shown to be misplaced or mistaken. The BIS is well placed to provide grounding for the obligations of clinicians who make care decisions for children.

References

Footnotes

  • i I will focus on the BIS in moral reasoning and ethical decision-making, and not on the law or the legal standard. I realise, though, that what I present here will have implications for legal reasoning that employs the BIS, particularly as relates to medical decision-making for children.

  • ii This is a fairly simplistic summary; the issue is potentially quite complex. See the discussion of these different conceptions of well-being in Buchanan and Brock, pp. 30–35. I find the account of well-being by Powers and Faden fairly persuasive: that well-being refers to reaching an adequate minimum in each of six dimensions—health, personal security, reasoning, respect, attachment and self-determination.23

  • iii The point here is that burdens and benefits should be distributed in a fair manner. Some may argue that there are cases where it appears we may be harming one person to benefit another, such as living kidney or bone marrow transplantation. Even in such cases one should take care that benefits and burdens are distributed fairly. In cases of living organ donation we do so through informed consent and protections for donors built into the system.

  • iv In this paper, I will focus on children who lack the capacity for autonomous decision-making. The principle of autonomy therefore does not apply to the child in the same way it does to adult patients. Children’s capacity for autonomy develops as they grow, and children do have future autonomy to consider. Much of a child’s forward-looking interests are tied to ensuring that children are able to grow into fully autonomous persons in the future, able to articulate and pursue a version of the good.

  • v I acknowledge that alternative justifications have been given for allowing parents to make decisions for their children. Buchanan and Brock, for example, argue that parents have an interest in making decisions for their children for a number of reasons, including a parental right to found a family and direct it in accordance with their own values, and that parents have special knowledge regarding their children, and are best placed to judge what is in the child’s best interest (pp. 235–237).8 For someone who is primarily concerned with what is due the child, as clinicians must be, grounding parental involvement as an important childhood interest makes a compelling case for the parental role in decision-making.

  • vi Others have followed the idea of basic interests by Buchanan and Brock linked to the child’s well-being or flourishing as a threshold for intervention. Ross, for example, describes that children should be provided with the ‘goods, skills, liberties and opportunities necessary to become autonomous adults capable of devising and implementing their own life plans’ (p. 47).4 These basic interests are connected to Rawls’ idea of primary goods—those things minimally needed to secure a decent life. But again, in children these seem to be the same thing as interests in general, those things needed for a child’s well-being (immediate interests and future development). So, it is not clear what is different between basic interests and interests as a whole. The idea, I think, is that we need not slavishly maximise the child’s interests against all costs, but should ensure for children what they need to flourish as bare non-negotiable minimum. The prima facie obligation to do what maximally benefits the child remains, but when we consider countervailing obligations and practical constraints, the non-negotiable minimum forms a boundary against other claims.

  • vii As I previously described, this includes immediate interests (eg, related to normal functioning and being free from pain) and future-looking interests (developmental interests related to developing the capacity for self-determination).

  • viii This gets us into a discussion on what should function as appropriate limiting standard or threshold for acceptable parenting. Kopelman does not clearly specify a limiting principle, only that it is more modest than literally maximising a child’s interests against all other claims, while still being linked to protecting the child’s well-being. I think the idea is once again that the child’s interests should be provided for at least to the level that secures the child’s well-being. This just means that interests represent strong moral claims that should be provided for, a central feature of the BIS. See also discussion on basic interests under Buchanan and Brock, and discussion of limiting principles further down.

  • xi I have derived this case example from case descriptions that contains similar types of dilemmas in the work of Rhodes and Holzman (case 1, p. s123),3 Ross (p. 21)4 and Salter (pp. 191–192).5 Additionally, see further examples where critics use case examples where various obligations and values are in conflict, giving rise to dilemmas, to show how problematic the BIS supposedly is: Diekema (p. 247),1 Rhodes and Holzman (cases 2–7),3 Salter (p. 190)5 and Veatch (pp. 6–7).6

  • Contributors JCB conceived of, wrote and edited this article in its entirety.

  • Funding This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

  • Competing interests None declared.

  • Patient consent Not required.

  • Provenance and peer review Not commissioned; externally peer reviewed.

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