Parents and treatment decision-making for very young children at the end of life: a comparative analysis

Abstract

It is commonly accepted that parents have the responsibility to make decisions regarding the medical treatment of their very young children. This remains so at the end of their child’s life when the decision must be made to withdraw treatment or pursue further interventions. In practice, this responsibility is conditional on the parents acting in their child’s best interests. When parents make treatment decisions which are deemed by healthcare professionals to be contrary to the child’s best interests, disputes can arise which may require resolution by the courts if an agreement cannot be reached in partnership. Under its inherent jurisdiction, the court then determines the course of action to be taken. This assessment lacks sufficient normative grounding with no guiding principle, resulting in excessive flexibility which is not properly constrained.

Given the flexibility of best interests, an inquiry into how—if at all—the decision-making process can be improved may be beneficial. In that sense, this thesis introduces one possible improvement in the form of the application of human dignity in making decisions. It will do this by comparing the German law approach to determining the child’s best interests, based largely on the Grundgesetz, with the English law approach developed through the common law. The German approach is guided by the principle of human dignity, which offers a strong principled basis not just for the decisions made but for the intervention in the parents’ decision-making responsibilities. The thesis will therefore address the level of engagement with the parents’ views and responsibilities in the two jurisdictions and how the courts engage with them whilst discharging the fundamental duty to protect the child’s interests. It will suggest that English law may benefit from closer engagement with human dignity using German law as a model, and it will lay the preparatory foundations for the PhD thesis to follow.