The Doctrine of Best Interest and The Extent of Decision Making Ability of Parents

The journey from childhood to adulthood is characterized mostly by decisions made by parents for such a child. This is premised on the fact that one of the pivot roles of parents is to make decisions for their children, since it is not arguable that children within a certain age bracket lack capacity to make decisions. It is thus imperative that parents make the best decisions for their children because of the biological bond.

 In medical jurisprudence, parents are recognized as decision makers for the children and as such they are qualified to give or withhold consent wherever capacity is not established. However, the doctrine of best interest is a limitation to the right of decision making of parents for children. The doctrine acts as a check on the powers of parents as surrogate decision makers for their children. This doctrine provides that in making treatment choices, the best interest of such a child should be the primary concern. Hence, in a situation where the parents and the doctors are in a limbo as to which decision favors the best interest of a child, the court is allowed the right of way to make such decisions on the sole basis of what decision is the most beneficial to the child, hence, the best interest doctrine. 

This Article focuses on the doctrine of best interest as it affects decision making ability of parents, using the recent judgement of the European Court of Human Rights as a case study.

A child after birth becomes the responsibility of the parents. And to this end, the parents are responsible for making the decisions that affect the child. Specifically, in medical jurisprudence, parents are legally recognized as natural proxy decision makers for their children. Quite a number of reasons have been adduced for this, one of which is that there is the presumption that parents possess what a child lacks in maturity, experience and capacity required to make judgments. Some are also of the view that parents bear some of the longer term consequences; financial, social, psychological, emotional and others, of the particular treatment choices made on behalf of their children[i]. 

Thus, it’s only fair that these parents should have the right to make desirable inputs concerning the health of their children.  

This notion that parents are best suited to make medical decisions for their incapable minors is placed on judicial footing in the case of B (R) v Children’s Aid Society of Metropolitan, Toronto[ii] where Forest J noted that ‘the common law has always in the absence of demonstrated neglect or unsuitability, presumed that parents should make all significant choices affecting their children, and has afforded them liberty to do as they choose’.

Despite the recognized fact that parents have the right to make decisions for their incapable minors, it is pertinent to state that this right is not sacrosanct or inviolable. To this end, the principle of best interest would be considered.

This principle connotes that the best interest of the child must be the primary consideration in medical decision making. From a literal interpretation point of view, best interest can be appraised to be that the paramount beneficial concern of the child should be the determining basis for making decisions. In applying this principle, the exercise must seek to reflect the assumed view of the child… the child’s perspective on life is the crucial test.[iii]  Furthermore, in the assessment of the best interest for a child, the views of the child, previously expressed preferences would be considered. Elaborately, the medical decision made on behalf of a child must not be made based on sentimental affiliations, the decisions must be that which is of great benefit to the child.

In Re A (Minors) (Conjoined Twins: Separation)[iv] The Court of Appeal authorized the killing of the weaker of two conjoined twins, Mary and Jodie born in Manchester, after a scan revealed their condition. The parents refused to consent to surgery as they were devout Roman Catholics and thus the court had to intervene in the best interest of the weaker of the conjoined twins who would not just be subjected to pains but had a low life expectancy rate.

The courts have further stated in the case of JD v East Berkshire Community Health NHS Trust[v] that, ‘A doctor is obliged to act in the best interests of his patient. In this case the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parents normally march hand in hand. But when considering whether something does not feel ‘quite right’ a doctor must be able to act single minded in the interests of the child.’

The doctrine of best interest does not only come up when parents are at loggerheads with medical practitioners as regards treatment but also when parents do not agree on the particular treatment for a child. In  Re C (Welfare of Child; Immunization)[vi] the court intervened where the father and mother disagreed on the treatment of their child.

The importance of this principle and its application is best revealed when considered from a distance. For example, parents tend to be sentimental when it comes to treatment of their children, while this is expected, it becomes a problem when certain decisions have to be made to protect the child from a lot of trauma, pain and to preserve the dignity of such a child.

 A child that has no life expectancy with or without the treatment but is still put on life support because the parents do not want such a child dead is a clear example of how sentiments can override the best interest of a child and in this situation the courts have to intervene, not as a meddlesome interloper or a busybody but to preserve the best interest of the child. 

This was the case of Charlie Gard, a baby suffering from a rare genetic disorder known as mitochondrial DNA depletion syndrome caused by genetic mutation. This condition has a poor prognosis for most patients.

Charlie is on life support and has been in intensive care and the doctors wish to take the life support away. His parents however disagree with the doctors. In an appeal to the European Court of Human Rights in Strasbourg France. The court ruled that the life support be discontinued, because it ‘was most likely Charlie was being exposed to continued pain, suffering and distress and that undergoing experimental treatment with no prospects of success would offer no benefit, and continue to cause him significant harm’.[vii]

Parents are rightly at the helm of important medical decisions made as regards children. However as noted earlier, this right is not absolute neither is it inviolable, there are times when their positions as parents limits the viability of such decision making ability and at this point, it is left to the medical practitioners and the courts to make decisions in order to provide comfort and to prevent prolonged painful and unhelpful medical treatments even when such would lead to termination of life.     

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[i] O.A. Yusuf, Best Interest on Trial: Medical Decision making on behalf of the Incapable Child; Akungba Law Journal; Vol. 1 No. 3 January, 2009 at 17

[ii] (1995) 1 SCR 315 at 372 LA;

[iii] Lord Donaldson in Re B (Adult, Refusal of Treatment [2002] 2FCR

[iv]  [2000] Lloyd’s Rep Med 425 at 464-465.

[v] [2005] UKHL 23; [2005] 2 AC 373

[vi] [2003] ECWA Civ. 1148.

[vii] http://edition.cnn.com/2017/06/27/health/charlie-gard-european-court-ruling bn/index.html?sr=twCNN062717charlie-gard-european-court-ruling-bn0607PMStoryLink&linkId=39161244

Article by Olunlade Emmanuel Oluwasegun.
Law Graduate, Afe Babalola University Ado Ekiti (ABUAD). 
Olunlade_emmanuel@yahoo.com


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