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Re: Determining wisdom

Johnston makes an important point regarding the judging someone’s competence from the apparent wisdom of their decision. I’m struck by an interesting parallel. As an editor at ADC I see papers which discuss complex predictive tests. Examples of this might be a test to determine the likelihood of a patient surviving a disease process. These papers are submitted at various stages in their genesis.

Stage one is where there has been a lot of data sifting, and candidate results - predictors - are identified as possibly indicative of important outcomes. Sometimes the authors of these papers apply the indicators back on their original population and demonstrate that they work, but under these circumstances they are required to add the strong caveat that they work only for that population.

Stage two is where the possible predictors are prospectively applied to a new population and the outcome observed. This is much stronger evidence, and allows the authors to describe their tests as truly predictive.

It strikes me that, since these ethical situation in Johnston's paper occur in individual patients, we regard ourselves as stuck with the first stage. We are calibrating our competence test by using the very outcome we’re interested in. As a consequence, it is a very weak test.

What we need, instead, is a way of testing competence in some way which does not actually involve the specific issue at stake. What form this test might take is beyond my limited abilities, but it might involve assessing the individual's ability to understand and retain information, assess risk, and understand outcomes. This will be very difficult, but surely no more difficult than the situation the young person, their family and those who are caring for them already find themselves in.

(I thank the Birmingham Children's Hospital Ethics Advisory Group for their help in discussion in formulating this idea)

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Re: “Best interests” verses “Rights”

Thank you for highlighting this important topic that has wider implications than medicine alone. As you rightly say overt conflict is rare and there are several steps before the courts can or should become involved, but the possibilities should be considered.

I feel the key difference is whether the law is designed "in the best interests" or in terms of the "rights of the child". The arguments that follow differ according to which paradigm is chosen. Case law appears to be split, with Miss Jones being allowed to refuse, but in the case of Re W, she was not. I do think that consenting to and refusing treatment are different issues, if using the “best interests” argument. The treatment that is offered is almost by definition in the best interests of the patient, assuming a normal situation. So to consent will be in the best interests, while refusing is not. If using a rights-based approach, then there should be no difference, unless it can be argued that it takes a greater mental capacity to refuse a treatment.

The two issues may be the same as it could be in the best interests of the child to adhere to their rights. This would appear to be the case with Miss Jones, and this argument is likely to be further challenged under the Human Rights Act. There is then the decision as to whether the sufficiency of a person’s capacity is context specific. Do some decisions need greater capacity? For example, a five year old could have the capacity to refuse a plaster for a wound, but not to an appendicectomy.