Hamline University - School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute
January 1, 2011
Journal of Clinical Ethics, Vol. 22, No. 2, pp. 134-138, 2011
In this issue of the Journal of Clinical Ethics, Douglas Diekema argues that the best interest standard (BIS) has been misemployed to serve two materially different functions. On the one hand, clinicians and parents use the BIS to recommend and to make treatment decisions on behalf of children. On the other hand, clinicians and state authorities use the BIS to determine when the government should interfere with parental decision-making authority. Diekema concedes that the BIS is appropriately used to 'guide' parents in making medical treatment decisions for their children. But he argues that the BIS is inappropriately used as a 'limiting' standard to determine when to override those decisions. Specifically, Diekema contends that the BIS 'does not represent the best means for determining when one must turn to the state to limit parental action.' He argues that this limiting function should be served by the harm principle instead of by the BIS.
The author contends that the BIS’s limiting function should not be reassigned to the harm principle. In this article the author makes two arguments to support the position. First, the BIS has effectively served, and can serve, both guiding and limiting functions. Second, the harm principle would be an inadequate substitute. It cannot serve the limiting function as well as the more robust BIS.
Keywords: best interest standard, clincians, parental, parents, harm principle
Pope, Thaddeus Mason, The Best Interest Standard: Both Guide and Limit to Medical Decision Making On
Behalf of Incapacitated Patients (January 1, 2011). Journal of Clinical Ethics, Vol. 22, No. 2, pp. 134-138, 2011. Available at SSRN: http://ssrn.com/abstract=2003515