Posted on November 16, 2017 at 4:47 PM
always interesting to see how different countries handle pediatric
decision-making in health care. For example, Australia now has shifted more
towards respecting minors’ autonomy with its recent legislation. I first heard
about this law during the Legal Update at the American Society of
Bioethics and Humanities Annual Meeting this past October. The new law in Victoria, Australia coming into effect in March
2018 will require physicians to honor advanced directives written by children.
Any child with capacity will be allowed to write their own advanced directives.
There is no age limit as for who can write an advanced directive. The advanced directives must still be signed and
witnessed, like adult advanced directives, and one of the witnesses must be a
medical practitioner who must certify the person appears to have
decision-making capacity and understands the effect of statements made.
law will in essence create a situation where substituted judgment standard of
decision making may become applicable. Traditionally, we use best interests’
standard for decision making in children because they are presumed to lack
capacity and therefore can not make valid past preferences. However, if an
advanced directive written by a child is valid, then we would have valid
preferences and some evidence in order to navigate substituted judgment on
behalf on the child patient. This will expand decision-making standards for
children as well as avoid concerns of parents not having best interests of the
child in mind.
law will also call into question the practice of using assent verse consent for
minors. The law is giving weight and value to a written stated preference but
yet, we may not be honoring the verbal preferences of those same individuals.
For example, a 15-year-old could write an advanced directive that would be
valid but verbal consent for that same 15-year-old may not be valid if we are
operating under the same traditional parental authority/ child assent model. It
reinforces the age-old presumption that a written preference is more valid than
a verbal preference, simply because it can last the trial of time and is an
easier form of evidence to prove. Granted, the design of advanced directives is
to govern in the future when the individual loses capacity. However, advanced
directives also operate under the premise that the individual completing them
have capacity to do so, implicitly also the capacity to consent to treatment.
This new law gives children some authority for their future selves but no authority
around their current selves.
those in favor of including children in the health care decision making
process, this seems like a great idea. This may also seem like a great idea for
proponents of increasing advanced health care planning. However, it some ways
this exacerbates the issues raised both in considering pediatric
decision-making and honoring advanced directives. For example, should an
adolescent patient make decisions for their future adult self (the unresolvable
question of how much control the present self should have over the future
self)? This seems more applicable to the pediatric population as
developmentally adolescents are changing so much over a short period of time
(in comparison to a lifespan). Having such a law makes sense for terminally-ill
mature minors with capacity who may not live for a full lifespan, assuming of
course they have contemplated, understand, and appreciate their medical
circumstances. What a child may want one day may dramatically change the next. It
is a step forward to properly enhancing children in health care decision making
but it should be a cautionary step forward. Overall, this raises the question
of how much autonomy is truly necessary for healthcare decision making.