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- Title
The Effects of Introducing a Harm Threshold for Medical Treatment Decisions for Children in the Courts of England & Wales: An (Inter)National Case Law Analysis.
- Authors
Neefjes, Veronica M. E.
- Abstract
The case of Charlie Gard sparked an ongoing public and academic debate whether in court decisions about medical treatment for children in England & Wales the best interests test should be replaced by a harm threshold. However, the literature has scantly considered (1) what the impact of such a replacement would be on future litigation and (2) how a harm threshold should be introduced: for triage or as standard for decision-making. This article directly addresses these gaps, by first analysing reported cases in England & Wales about medical treatment in the context of a S31 order, thus using a harm threshold for triage and second comparing court decisions about medical treatment for children in England & Wales based on the best interest test with Dutch and German case law using a harm threshold. The investigation found that whilst no substantial increase of parental discretion can be expected an introduction of a harm threshold for triage would change litigation. In particular, cases in which harm is limited, currently only heard when there are concerns about parental decision-making, may be denied a court hearing as might cases in which the child has lost their capacity to suffer. Applying a harm threshold for triage in decisions about withholding or withdrawing life-sustaining treatment might lead to a continuation of medical treatment that could be considered futile.
- Subjects
WALES; ENGLAND; PEDIATRICS -- Law &; legislation; PARENTS; LEGAL procedure; PATIENT-family relations; DECISION making; COURTS; HARM reduction; MEDICAL triage
- Publication
Health Care Analysis, 2024, Vol 32, Issue 3, p243
- ISSN
1065-3058
- Publication type
Article
- DOI
10.1007/s10728-023-00472-w