The Best Interest Standard: Both Guide and Limit to Medical Decision Making On
Behalf of Incapacitated Patients

Journal of Clinical Ethics, Vol. 22, No. 2, pp. 134-138, 2011

Posted: 27 Feb 2012  

Thaddeus Mason Pope

Mitchell Hamline School of Law; Queensland University of Technology - Australian Health Law Research Center; Saint Georges University; Alden March Bioethics Institute

Date Written: January 1, 2011

Abstract

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

JEL Classification: K32

Suggested Citation

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: https://ssrn.com/abstract=2003515

Thaddeus Mason Pope (Contact Author)

Mitchell Hamline School of Law ( email )

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HOME PAGE: http://www.thaddeuspope.com

Queensland University of Technology - Australian Health Law Research Center ( email )

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Brisbane, Queensland 4000
Australia

Saint Georges University ( email )

West Indies
Grenada

HOME PAGE: http://www.thaddeuspope.com

Alden March Bioethics Institute ( email )

47 New Scotland Ave
MC 153
Albany, NY 12208
United States

HOME PAGE: http://www.thaddeuspope.com

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