Abstract/Summary

This chapter deals with the sensitive and complex question of decision-making for critically ill children. An analysis of the case law reveals that although parents are generally believed to be the most suitable interlocutor for a shared decision with the medical team focussing on the child’s best interests widely construed, where conflict arises, it is necessary to seek court intervention. I examine how the framework of the child’s best interests includes consideration of what the child may want herself, yet this begs the question why is the judge’s interpretation of what the child would want any more valid than that of parents or the doctors? Rejecting the claim that the court should only be involved where it is shown that the parents’ decision on the child’s treatment would cause harm to the child, I question whether it would be more appropriate to develop the best interests test into a ‘not against the child’s interests’ test, or indeed, what is ‘compatible’ with the child’s interests. This would have the advantage of alleviating the perception that it is a binary decision between a right and wrong choice, and better serve the overall objective of minimising conflict and ensuring the best outcome for the child. Focusing on how the decision is taken is ultimately just as important as who makes the decision.