Legal Basis for the Court’s Intervention over Medical Treatment of Children

Abstract

In the medical treatment of children disputes can arise where parents cannot agree with one another, or where the medical treating team and parents cannot agree, this will generally be those situations where the medical team and parents are at loggerheads over what is to be done. This paper focuses on the latter kind of dispute.  The paper considers solely on the threshold question: at what stage should the court be permitted to make decisions on behalf of very ill children when parents and the medical treating team cannot agree? It focuses specifically on minors who are not competent to give consent (non- Gillick -competent children), therefore, it does not concern itself with the issues around children who are competent to consent to treatment. It first gives a brief account of the ethical position in peadiatrics treatment. It then reviews the role of the courts, using a number of high-profile cases as examples. There are arguments and concerns about the erosion of what some regarded as the territory of parental authority. That parents have both the primary responsibility and the primary right to make decisions in respect of their sick children.  The paper centres on those situations where a court is called upon to intervene in decisions about a child’s medical care and how such disputes are resolved. It reveals that disputes come to the courts when there is a serious risk that the parent’s decision will result in significant harm to the child. It concludes that the courts have made it clear that courts have the authority to make medical decisions on behalf of children and that the threshold for judicial intervention is the welfare of the child, often referred to as the ‘best interests’ approach.

Keywords: consent, parental responsibility, medical decision-making, court’s involvement, ethics, best interest, children, parental refusals

DOI: 10.7176/JLPG/121-05

Publication date:June 30^th 2022