Abstract
Health care workers or others may wish to override parental decisions because of their impact on the health or safety of a child or others. Justification of such an action requires two types of principle: an authority principle that designates the process for reversal, and an intervention principle that specifies the grounds for reversal. It is generally accepted that states may overrule parents’ decisions for good cause. I argue that the role of the state is to provide sufficient protection against parental malfeasance. Parental malfeasance can be construed as either exposing a child to harm or as insufficient defense of the child’s interests. I propose a test to determine what sorts of parental decisions might trigger intervention. I also propose constraints on government action to minimize government unfairness in applying the test. I show how this plays out in application.
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Notes
- 1.
For reasons of clarity and style I will use the words ‘physician’ and ‘doctor’ to encompass all health care professionals. Similarly, a ‘parent,’ in this paper, is a legal guardian serving as default surrogate decision-maker for a child.
- 2.
What I say here about medical treatment may apply to non-medical situations, such as maintaining unsanitary home conditions.
- 3.
States in this essay are entities with sovereign authority over a geographically defined area; governments are organizations (or their agents) that legitimately exercise state power.
- 4.
A modus vivendi has the following elements. It (1) is an expedient resolution of differences, (2) negotiated under the aegis of a legitimate governing body, which resolution (3) reflects the importance of parties’ interests to the parties themselves, (4) as well as the relative strength of the various parties. A modus vivendi agreement is prudential and is not based on moral concerns.
- 5.
Ross (1998) and Iltis (2010), among others, have proposed standards intermediate between BIS and HP. They would require that parents provide an upbringing that allows their children to become autonomous adults, and their trigger for intervention is set accordingly. Space does not allow a full discussion of their work. Some feminist legal scholars have expressed parallel ideas in legal terms. Ross’ term, constrained parental autonomy, has received a lot of traction as allowing parents to balance interests of all family members provided that decisions do not harm a child.
- 6.
Both the Treaty of Lisbon and the ECHC are binding on the 27 EU nations, all of which also belong to the Council of Europe and are subject to the ECoHR. It is theoretically possible that the ECoHR and the EU’s European Court of Justice could issue conflicting opinions. This does not seem to have happened (ECoHR 2011).
- 7.
Pluralistic sufficientarianism, allows other considerations to apply above the sufficiency level, but is not germane to the present argument.
- 8.
The consensus of the literature on the subject recommend ethics consultation with full exploration of reasons for parental refusal of physician recommendation. A shared decision is preferable to a coerced solution.
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Further Readings
Buchanan, A., and D.W. Brock. 1989. Deciding for others: The ethics of surrogate decision-making. Cambridge: Cambridge University Press.
Dwyer, J.G. 2014. Who decides? In The nature of children’s wellbeing: Theory and practice, ed. Alexander Bagattini and Colin MacLeod. Chapter 10, 157–175. Dordrecht, Netherlands: Springer.
Katz, Aviva L., Sally A. Webb, and the Committee on Bioethics, American Academy of Pediatrics. 2016. Informed consent in decision-making in pediatric practice. Pediatrics 138 (2): e20161485.
Ross, L.F. 1998. Children, families, and health care decision-making. Oxford: Clarendon Press.
Acknowledgements
I am grateful to Drs. Nico Nortjé and Johan Bester for inviting this contribution, and for their valuable comments. Much of the work in this chapter was performed in collaboration with Dr. Kavita Shah Arora and Hillel Y. Levin, as cited. Finally, I would like to express my gratitude to Dr. Pamela Ravin Jacobs, my intellectual partner, life partner, sounding board, and inspiration.
The opinions herein are my own, and do not necessarily reflect the opinions of the New York City Health and Hospitals Corporation, Physician’s Affiliates Group of New York, State University of New York, or any division of these organizations.
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Jacobs, A.J. (2022). When Should Society Override Parental Decisions? A Proposed Test to Mediate Refusals of Beneficial Treatments and of Life-Saving Treatments for Children. In: Nortjé, N., Bester, J.C. (eds) Pediatric Ethics: Theory and Practice . The International Library of Bioethics, vol 89. Springer, Cham. https://doi.org/10.1007/978-3-030-86182-7_26
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