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Dr Wallis’ article1 is a plea for mediated settlements (rather than judicial decisions) to determine medical disputes in childhood. His reasonable proposal may underestimate both the similarity of his solution to the judicial status quo and the inherent difficulty of the arbitrator’s task; but nonetheless deserves consideration. Leaving that consideration to one side, this response offers an alternative explanation to his account of the role of English courts in providing clinicians with neutral judgements as to where children’s best interests lie.
Both medical and legal professions owe a fiduciary duty to their patients/clients; and (in the context of the Gardi litigation) have furtherance of the child’s welfare as their paramount duty. Equally, both use judgement to construct a conclusion, broadly reliant on preceding decisions or practice. Doctors and lawyers have much in common.
The goddess Lustitia (‘Lady Justice’) holds a set of scales to measure the weight of supportive and opposing evidence. Blindfolded, she allows the relative weight of evidence alone to decide the case. While one can see the necessity to balance what we can do against what we should do (an ancient dilemma), no reason is advanced by the editorial as to why ‘the law’ should be considered as a competing interest. Rather, our judicial system establishes certainty as to whether a proposed course of action is consistent with a child’s best interests. Judicial decisions on children’s welfare have been founded for many years on a balance-sheet exercise, minimising the influence of subjectivity. Any flaws in jurisprudence are exposed in the harsh light of the forensic logic of an appellate court. The clear duty of any court is …
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