CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ FUTILE MEDICAL CARE: CHILDREN, PARENTS AND COURTS by national law must offer a meaningful and effective way how to resolve it. Cases involving minor patients seem to be most naturally adjudicated on by the same courts which normally oversee other matters related to children, such as custody or child support. National law should lay down a clear regulatory framework which would cover both the procedure before anyone involved decides to engage a court, and the subsequent judicial proceedings. The pre-litigation part is very important; when consensus is reached, there is little need to advance into a full-blown dispute. Respecting the principles set out in Lambert v. France , the law should make clear who should be included in any decision-making process (e.g. parents, other family members, doctors, other members of the health care team etc.), what the specific roles of the individual actors should be and how the process should be organised and its outcome documented. The next step which needs to be regulated is how the procedure may be transformed from the pre-litigation phase to a judicial proceeding, especially, who is entitled to start a legal action and how it should be performed. The law needs to stipulate in which courts and under what specific rules the action should be heard and determined. The end of the dispute also deserves proper attention. It is necessary to make sure that once the case is judicially resolved, it will be a res iudicata , without an easy way of later overturning the result and with a sufficient guarantee for those involved (especially the respective health care providers and their personnel) that the decision will shield them from civil or criminal liability if they act in compliance with it. Besides these procedural requirements, the law should also set out the basic criteria for the decision-making. It will undoubtedly attach significant weight to the wishes of the patient; however, in case of a minor these may not be known at all. Nonetheless, it should be clear from the law what kind of legal standard should be used (such as best interest of the patient), and how it should be deduced what this standard comprises (e.g. whether such best interest should be determined in accordance with the presumed will of the patient, in accordance with an objective assessment by medical experts, or pursuant to any other consideration deemed relevant by the lawmaker). Conclusion Deciding on whether to withhold or discontinue life-sustaining treatment of a patient is a truly difficult matter with extremely serious consequences. This is the case with respect both to adults and children. When patients are unable to express any relevant opinion, they are at their most vulnerable. The law often conveys the will of the society which it regulates that those who cannot properly defend themselves should be defended by others. A minor patient, especially a little child, surely falls within this category. In the most severe cases such as those mentioned in part 1 above, there is little or none indication how the patient would decide if he or she were capable. The lack of his or her will in this respect requires that others make the decision on his or her behalf. It is possible to substitute a child’s decision by one made by his or her parents. Another approach is to seek an expert opinion of health professionals. A judge can contemplate what he or she would wish to happen if hypothetically placed in the position of the patient. All these viewpoints may have both merit and flaws. That is why the law should offer clear mechanisms how all relevant opinions should be brought together and, ideally, form a consensual outcome.

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