Using bioethics discourse to determine when parents should make health care decisions for their children: Is deference justified?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This Article critiques the current law governing health care decisionmaking for children, and proposes changes in the law consistent with bioethics principles. The basic criticism of existing law is that it is rooted in a rights-based discourse, in which the sick child's interests are decided in the shadow of a parental deference presumption. As a result, too much deference is given to some parents and too little deference to others. Moreover, many of these cases are decided in the context of abuse and neglect, which fails to recognize the moral nature of these medico-ethical decisions. This Article proposes that the rights-based discourse be replaced by a bioethics discourse, guided by the core principles of beneficence and autonomy. With this change in focus, parents would be entitled to deference to the extent the patient's interests were futhered. Specifically, parents would be able to make health care decisions, unless they possessed a conflict of interest making it unlikely that they would be able to serve the child patient's interests. The Article sets forth a taxonomy of categorical and situational conflicts. If a conflict exists, a court must determine the patient's best interests. If a conflict does not exist, parents can make health care decisions within a protected zone of privacy.
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