Prof Imogen Goold1
1Faculty of Law, University Of Oxford
In English law, competent adults are permitted to make their own decisions about the medical care. However, children are largely not permitted to do so, except in some cases where a competent child may consent to treatment (but not refuse). For children, someone else makes decisions for them. Where parents disagree with medical practitioners, this can result in the court being called upon to make a decision in the child’s best interests.
In such cases, the courts in England frame themselves as external, objective decision-makers, determining what is ‘best’ from an ostensibly neutral position. Implicit to this process is the idea that some notion of what is ‘best’ can be determined, a position that has rightly been challenged. In this paper, I build on this rejection of a single notion of what is ‘best’ to explore the courts’ seemingly belief that they are applying an objective test of what is best. I make the claim that courts seem to understand themselves as arriving at an objectively determined position, supported by an analysis of a series of best interests decisions. I then challenge this position, arguing that it is not possible to (or at least it is untenable) for the court to take an ‘objective’ position on matters that are, in fact, questions of subjective value. In not recognising this, the courts are effectively imposing their own values on children. This is particularly problematic, I argue, as the courts rarely acknowledge that this is case (by instead regarding themselves as being objective). Taking this approach means that in some cases, the courts’ values are being imposed upon children who do share those values. I explain how in such cases, such a decision may not be best for that child, and argue that the courts should better understand how they are approaching such cases, and be transparent about the values to which they are subscribing (and hence imposing on others).
Biography:
Imogen Goold is Professor of Medical Law at the University of Oxford. Before coming to Oxford, she was a research member of the Centre for Law and Genetics at the University of Tasmania. In 2002, she took up as position as a Legal Officer at the Australian Law Reform Commission, working on the inquiries into Genetic Information Privacy and Gene Patenting. After leaving the ALRC in 2004, she worked briefly at the World Health Organisation, researching the provision of genetic medical services in developing countries. Her research interests include the impact of moral arguments on the regulation of IVF; the application of personal property law principles to human body parts; children and consent in medical treatment decisions; and negligently induced psychiatric injury claims.