It 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.
This 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.
This 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.
For 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.
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