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Medical laws are developed in the best interest of both doctors and patients

The Practical Guide to Humanitarian Law

It is used to guide decisions in both law and medicine. It just seems like common sense. That said, we shall argue that invoking the best interest standard for surrogate decision-making is problematic. In what follows, we shall begin by briefly reviewing what is said in defense of the best interest standard and what is said in criticism of it. Using cases from pediatrics to illustrate our concerns, we shall then move on to raise several specific concerns.

We argue that, at the very least, reliance on the best interest standard is subjective, and that it leads to behavior that is intolerant and polarizing. We also point out how appeals to the best interest standard can be vague, making it less useful than supporters presume that it is.

Furthermore, we explain how using it as a point of reference can be misleading, egocentric, irrelevant, and unjust. We then turn to explaining why we cannot entirely abandon standards for assessing surrogate decisions and why pediatricians must accept responsibility for monitoring the decisions that parents or others who make decisions on behalf of children are allowed to make. Finally, we will put forward our own recommendation for evaluating surrogate decisions.

Kopelman is well known as a vigorous defender of the best interest standard. Veatch has been one of the most prominent critics of the best interest standard.

He notes the possibility of conflicts between those who focus exclusively on health concerns and those who factor in other interests and goals.

  1. For instance, it is often taken for granted that widespread agreement enhances accuracy, and certainly statistical agreement of independent physical measurements is more likely to indicate correctness than error. Such remuneration has sometimes been disguised as payments to physicians for education, consulting, or research.
  2. If physicians decide to accept drug samples, they should be given to patients who lack financial access to medications in situations in which appropriate generic alternatives are not available and the medication can be continued at little or no cost to the patient for as long as the patient needs it. From this point of view, the problem with PSDM is that implementation of this ideal is too opaque, and a more transparent method should be considered.
  3. The second part of this argument seems to be about unburdening the decision makers, so is a prudential one and remains incongruent with paramountcy. Even in the case of prosecution of the worst crimes, the ICC Rules of Procedure and Evidence protect medical secrecy and do not consider admissible information obtained in violation of such professional secrecy, unless the patient consents to it Rule 73.
  4. The bone marrow transplant team thought it was obvious that the best interest of the patient required a donation from the brother who did not have sickle cell disease.

Although Veatch does not explicitly medical laws are developed in the best interest of both doctors and patients decisions on behalf of young children in that article, we may assume that he would count parents as those who share deep values with the pediatric patient. The Best Interest Standard is Subjective, Intolerant, and Polarizing When we identify something as the best, we are picking out 1 thing.

There is only 1 best apple pie at the state fair, 1 best student in the class, and 1 best picture of the year. That said, we know that there can be disagreement about which 1 in each category is the best. Different people value different things.

Some like large chunks of apple in their pie; others prefer the apples to be sliced thinly. Some prefer thin crust, and others prefer a crumb topping. Some prefer their pie to be sweet with hints of cinnamon and nutmeg; others prefer an unadulterated tart apple taste. Even when people agree on the factors that are most relevant to a specific judgment, they can prioritize them differently and, therefore, reach different conclusions about what is best.

Today we live in a pluralistic society. Inherent in that reality is the fact that the people we encounter have radically different views about what counts as good and widely divergent perspectives on what is best. When medical professionals adopt the view that they are the arbiters of what is best for a patient, it is certainly possible that other parties with an interest in a decision could see the situation differently.

When doctors maintain that their professional responsibility requires them to advocate for what is best, they put themselves in the position of not being able to tolerate any deviations from their preferred course. It polarizes the parties involved and leaves those with opposing views standing their ground with no room to compromise. We invite you to consider some cases from our experience that illustrate a variety of ways in which the best interest standard may be found wanting.

The distinct problems that we identify are instructive, even though these concerns share some measure of similarity. Vague The parents of 3 sons had a difficult choice to make. Their 11-year-old had leukemia and needed a bone marrow transplant. He also had sickle cell disease. They could use the better-matched son as the stem cell donor and minimize the effects of graft versus host disease.

They could also use the son who was a less perfect match. He did not have sickle cell disease, so a transplant that used his stem cells might also cure the sickle cell disease.

This case was brought to the attention of our ethics committee because the doctors involved violently disagreed about what was best for their patient.

  1. He clearly had many of the features of trisomy 18 including diminished neurologic functioning and an inability to handle secretions, necessitating frequent suctioning.
  2. As planned by the Institute of Medicine, this study was not intended to consider recommendations on physician payment; that is a primary charge of the Medicare Payment Advisory Commission MedPAC; a body that advises the U.
  3. Clinicians appear more pessimistic about the quality of life of disabled children than either parents or the children themselves [ 80 ].

The bone marrow transplant team thought it was obvious that the best interest of the patient required a donation from the brother who did not have sickle cell disease. As they saw it, that option was best because it could cure both diseases at once.

The pediatric oncology team was equally adamant that the best interest of the patient required using the better-matched brother as the donor. To them it was best to minimize the extent of the graft versus host disease. Considering the case from the perspective of the best interest would require the decision-maker to determine which course was best and to impose that decision on everyone involved.

Yet, both perspectives reflected a sincere concern for the patient and a genuine desire to do good. Invoking the best interest of the patient does not resolve the vagueness of the different considerations that would tend to make 1 course the clearly best choice. Sometimes all we can do is identify those options that would be unacceptable, leaving a set of choices with no clear and objective best. In medical laws are developed in the best interest of both doctors and patients end, the parents chose what they considered best.

The ethics committee found this option to be within the range of acceptable choices. As we saw it, there was no single best choice, just an array of relevant considerations.

In this case, there was no 1 best option, but at least 3 acceptable alternatives. Selecting 1 route among the 3 was a matter for the parents to decide. Our job was not to second-guess them but to offer them support for whichever path they took. Nonjudgmental regard, a professional responsibility of medicine, requires clinicians to recognize that people will have different values, and even when they share the same values, they may prioritize them differently.

Respect for autonomy requires that we accept the priorities of our patients. And when family members are the appropriate decision-makers for patients who do not have decisional capacity, we should show respect for the choices that reflect their ordering of priorities even when we might order things differently, so long as their choices are not unreasonable. Misleading When Mrs Jones was pregnant with her sixth child, the fetus was found to have trisomy 18 with no significant life-threatening anomalies.

Mrs Jones was determined to have the child and bring him up at home. She requests resuscitation, if needed, at delivery. When the child was born he did not require resuscitation.

He clearly had many of the features of trisomy 18 including diminished neurologic functioning and an inability to handle secretions, necessitating frequent suctioning. He required feeding by nasogastric tube and a nasal cannula with oxygen and increased airway pressure to keep him comfortable. After many weeks the neonatal team concluded that the child would not be able to go home any time in the near future and informed the mother that he needed a tracheotomy and gastrostomy. She was told that these procedures were in his best interest.

Mrs Jones was reluctant to agree with these measures. She was worried that something would go wrong. It was never entirely clear that the recommendation was in the best interest of the child because he may not have needed the intervention if he stayed in the acute care setting for another month or 2. Such institutions typically would not accept a child with a nasogastric tube and nasal cannula.

Yet, when an intervention is described in those terms, it may be only 1 of several acceptable options or a course that actually is not best for the patient but best for others involved.

In this case, it is not at all obvious which course would be best for the patient. When the child was evaluated shortly after birth, the team may have accepted a decision to withhold aggressive treatment and allow him to die.

When a decision that would allow the child to die is acceptable, and a decision to treat aggressively is also acceptable, it is hard to justify a position that would rule out a course that falls somewhere in between.

Egocentric Considering the Good of Others Ella is a 2-month-old with several serious congenital anomalies.


After an extensive workup, the treating team of pediatricians concludes that features of her brain make it clear that if she survives she will have poor mental function. Furthermore, her only chance for survival is a small bowel transplant. The team explains to the parents that because of the low chance of success and the high risk of complications, the parents may opt for palliative care or have their infant listed for a transplant. The parents do not want Ella to have a transplant.

They explain that they will pray, and God will heal her. Prayer alone would not save Ella. They thought a transplant was in her best interest. The frustration of the treating team, however, reflected how reluctant they were to deviate from the best interest standard.

In this case, the parents had very much wanted to have a child. The decision to forgo small bowel transplantation and allow their child with serious congenital anomalies to die was unspeakably difficult for them.

Rather than having to say that they were choosing to let their daughter die, it was easier for them to live with their choice as a decision to pray rather than to move ahead with a transplant. Forgoing transplantation was a reasonable decision under the circumstances. In this case, the parents would live with the pain of the decision that they made.

They would remember their daughter Ella, what they had chosen to do, and how she died. Caring medical professionals could see that the interests of the parents also deserved attention. Compassion required them to allow the parents to express their choice in their terms, not as sentencing their daughter to death, but as prayers for her recovery from her loving parents.

Typically, egoists are decried as selfish and reviled medical laws are developed in the best interest of both doctors and patients failing to take others into account in their decisions.

It is peculiar that when we regard those who cannot make decisions for themselves, we ascribe the perspective of the selfish egoist to them. We ask only, what is in the best interest of the patient? That means we refuse to consider the impact of the decision on others in determining what should be done.

Case 3 suggests that there are times when the interests of others may be as or more important than what is best for the patient. In such cases, adherence to the best interest standard could be the wrong thing to do.

It would require the parents to accept the transplant, or to at least declare that they were refusing the procedure because they considered it best to allow their daughter to die. Irrelevant Choosing the Worse Option Jose was a 3-month-old who was brought to the hospital after frequent vomiting and failure to thrive. He was found to have a rare genetic anomaly that made it impossible for him to digest certain proteins.

During his hospitalization, 1 particular formula was found to be tolerated somewhat. The parents, a young couple from a rural Mexican village, had accepted all of the recommended treatments and tests. When they were finally given a fatal prognosis and offered palliative care, they wanted to take Jose home, feed him a regular baby formula, and treat him with Mexican medicine and prayer. This was not a case of a family refusing highly beneficial treatment: