Dave Archard

‘My child, my choice’ has become the slogan of choice for parents and their supporters who object to the recommendations for the treatment of their children made by doctors. In my recent article in the Northern Ireland Legal Quarterly, I reflect on this slogan.

Of course, it is absurd to think that parents can choose just as they see fit for their children in all matters and whatever their choice. Interestingly, the slogan echoes that of the feminists – ‘My body, my choice’ – made in respect of a claimed freedom of choice about abortion. However, the power of that slogan derived from the thought that a woman’s body is hers alone. And no one can think that a child is – like a woman’s body – something that can be exclusively owned by someone.

Yet the slogan has an obvious and intuitive appeal. Why shouldn’t parents make the final decision of what treatment a child receives? And why should the views of doctors be allowed to prevail over the strongly held and heartfelt views of the parents? Disagreements between parents and medical staff as to how a child should be treated do occur, although thankfully the number of those disagreements that result in open conflict, loss of mutual trust and resort to the courts are few. However, it is these that attract considerable attention, not least for the way in which they are fought out in the public eye and in terms that are exacerbated by the use of social media.

So what might lend support to the parents’ complaint against the doctors and courts? In jurisprudence and bioethics there has been interest in whether or nor it would be better in such disputes to use a harm rather than a best interests principle. That is, instead of determining which of the choices of treatment – of doctors or of parents – is the best for the child, we ought to think about a court making the final decision only when the choice of the parents causes or risks significant harm. After all, this is the standard used to trigger the removal of children from the care of their parents.

The best interest standard has been affirmed – and reaffirmed – by courts and by the Supreme Court. It is the ‘gold standard’ for making medical decisions in cases of disagreement. So it should be. The harm principle is a threshold principle for child protection and a suspension of parental rights. The two standards – harm and best interests – have different functions and apply in very different contexts. Once a child is in the care of doctors and a decision must be made as to its treatment that decision must – if there cannot be agreement on what it should be – be one that is in the best interests of the child.

But why not think that nevertheless the views of parents should carry a certain weight, one that allows them to trump the contrary views of the doctors when there is intractable disagreement between the relevant parties? No good argument has, in my view, been offered to show why there should be such a weight, one that allows parents but not doctors a final discretion in what treatment a child should receive.

It is certainly not a good argument to say that parents should choose just because they are a child’s parents. And it cannot be, as already said, that children are the property of parents to dispose of as they wish. Is it that parents know what it is best for their children? But then it is what is best for the child that matters, and we should not simply assume without further argument that parents always and infallibly know what is best.

Of course, we should take account of the interests of parents, and what is best for any child is bound up with what care and commitment parents can provide. Yet we should not let this be taken to mean that the interests of child and parent cannot be distinguished. It is the former that matter.

Disagreement alone does not provide a reason to favour the parents; nor does some appeal to the uncertainty of values. Such circumstances leave us neutral between doctors and parents.

Undoubtedly, there will on occasion be disagreements between parents and doctors. It will be important to find means of resolving these that can be supported by all and that do not result in bitter dispute. It does not help in that search for resolution to make an appeal to a simple-minded and poorly defended assertion of parental rights.