CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ JEHOVAH’S WITNESSES AND THE BEST INTERESTS OF THE CHILD a rule, be no difference between the outcome of court decision-making either on the basis of the best interests standard or the harm principle. Under the harm principle, the treatment would be for the parents alone to decide on for example if its benefit is certain but only small. An example may be found in the vaccination against a common childhood illness. 34 Whereas it has been consistently concluded by the courts in several countries as well as by the European Court of Human Rights that such a vaccination is in the child’s best interests, 35 the courts would not be likely to conclude that its refusal would do significant harm to the child. 36 The best interests standard remains the leading principle for decision-making regarding children. Even if this was to change in the future due to a vivid professional discussion regarding the suitability of the harm principle, the possible paradigmatic change would only bear little practical consequences for the issue of blood products provision. The Jehovah’s Witnesses parents would still, as a rule, not be able to legally prevent their children from obtaining blood products when it is a medical necessity. 3.2 Participatory Rights of the Child Participatory rights of the child are based on Article 12(1) of the Convention on the Rights of the Child, which states: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” From the perspective of developmental psychology, a number of studies have put the beginning of the cognitive competency to personal health care decision-making to the gap between the ages of 11 and 15. 37 However, the volitional maturity might be dragging behind. That is especially significant in emotional situations when adolescents are known to be much more inclined to take risks compared to adults. For that reason, the clinicians are advised to help adolescents minimise the consequences of the emotional burden as much as possible, for example by protecting them from peer pressure. 38 34 See ibid., p. 90. 35 For the analysis of compulsory vaccination in the Czech Republic, see ŠOLC, M. Compulsory Vaccination of Minors in the Czech Republic, published in this issue of the Czech Yearbook of Public & Private International Law. 36 See WILKINSON, D. In Defence of a Conditional Harm Threshold Test for Paediatric Decision-Making. In GOOLD, I., HERRING, J., AUCKLAND, C. (eds.). Parental Rights, Best Interests and Significant Harms. Medical Decision-Making on Behalf of Children Post-Great Ormond Street Hospital v Gard . Oxford, New York: Hart Publishing, 2019, pp. 94–95. 37 See for example DOLEŽAL, T. Způsobilost nezletilých udělit souhlas s poskytováním zdravotních služeb. [Informed Consent to the Medical Treatment of Minors.] Časopis zdravotnického práva a bioetiky [Journal of Medical Law and Bioethics]. (2018, Vol. 8, No. 1), pp. 50–51, HEIN, I.M.,TROOST, P.W., LINDEBOOM, R. et al. Accuracy of the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) for Measuring Children’s Competence to Consent to Clinical Research. JAMA Pediatrics. (2014, Vol. 168. No. 12), pp. 1147– 1153. doi: https://doi.org/10.1001/jamapediatrics.2014.1694, or WEITHORN, L. A., CAMPBELL, S. B. The Competency of Children and Adolescents to Make Informed Treatment Decisions. Child Development. (1982, Vol. 53, No. 6), pp. 1589–1598. doi: https://doi.org/10.2307/1130087, as cited in ŠOLC, M. The Best Interests of the Child in Medical Research. In ŠTURMA, P. (ed.) Czech Yearbook of Public & Private International Law. Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 11. Česká společnost pro mezinárodní právo, Praha 2020, pp. 417–418. 38 See GROOTENS-WIEGERS, P., HEIN, I. M., VAN DEN BROEK, J. M., DE VRIES, M. C. Medical decision-making in children and adolescents: developmental and neuroscientific aspects. BMC Pediatrics. (2017, Vol. 17, No. 120.) doi: https://doi.org/10.1186/s12887-017-0869-x, as cited in ŠOLC, M. The Best Interests

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