The Effects of Introducing a Harm Threshold for Medical Treatment Decisions for Children in the Courts of England & Wales: An (Inter)National Case Law Analysis

Limiting court involvement in end-of-life treatment decisions for children in England & Wales: Advantages and limitations of a specialist committee deciding on futility

Given the costs of litigation high-profile court cases about withdrawing life-sustaining medical treatment for seriously ill children in England & Wales tend to be followed by discussion about how to avoid similar cases in future. Whilst two proposals, mediation and replacing the best interests standard with a harm threshold, have received broad attention, a proposal to replace the court by a specialist review committee has not been further investigated. This article analyses the effects of a putative replacement of the courts by a specialist review committee using the process enacted by the futility clauses in the Texas Advance Directives Act (TADA) as a model. Under TADA life-sustaining treatment may legally be withdrawn when a review committee deems it futile and no alternative healthcare provider can be identified. The investigation finds that installing a national review committee with the power to decide whether life-sustaining treatment is futile would have reduced the number of court cases about withdrawal thereof in England & Wales to a handful over the last 3 decades. In addition to shorter procedures and costs savings, a national review committee modelled after TADA would have advantages for both clinicians and parents. Advantages for clinicians are more limited exposure to delivery of clinical care that may cause moral distress and less exposure to adverse press and social media content. Advantages for parents are that the process would establish them as ethical decision makers and offer the possibility of a transfer of the care of the child provided an alternative healthcare provider can be found. As such decisions taken by a specialist review committee may be more acceptable for parents than those of the courts.