16 Best Interest Principle

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Details about the best interest principle:

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- established in law and much of medical ethical literature as the appropriate principle to govern decision-making for others in cases in which you cannot rely upon consent.
- BIP is a guidance principle for decisions made by a proxy or surrogate decision-maker, on behalf of someone who is unable to decide for themselves.
- BIP says ‘make the decision that is best for the non-competent person’.
- requires that decisions made for a non-competent individual (such as a young child) optimally serve that individual’s interests
- no consideration for third parties
- requirement that decisions maximally serve the interests of the non-competent creates challenges for decision-makers- many diff interests form best interests

Front 2

Why Use the Best Interest Principle?:
4. Society has a history of not looking after its vulnerable members well: the adoption of the BIP provides a measure of assurance that the vulnerable matter and will be protected, and that society will insist on this.

Back 2

There are several reasons to focus decision-making upon the interests of the non-competent person:
1. In some decision-making contexts, such as treatment-related ones, the decision is ‘about’ the non-competent person. They are the principle parties who will be affected by the decision, so it makes sense to focus on them.
2. We allow for people to make treatment-related decisions purely on the basis of their own interests. The same primacy of personal interests should apply when individuals cannot decide for themselves.
3. Those who lack competence are vulnerable- they rely on others to protect their interests. It is easy for their interests to be sacrificed in favour of other interests as, typically, they are unable to defend themselves. This special vulnerability to harm and abuse makes it especially important to ensure that their interests are safeguarded.

Front 3

Making a decision in conformity with the BIP involves several steps:

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• Identifying the options that are available
• Identifying the various interests that are implicated in or affected by the decision
• Establishing a hierarchy of interests- which of the person’s interests are most central to his overall ‘best interests’
• Establishing how each option is likely to affect the various interests of the person
• Weigh the likely impact of each option against importance of each interest
• then making the choice that serves this account best.
• Note: because there is a need to identify and quantify interests and risk there is a big chance individuals will have diff decisions that all are in the best interests of non- competent individual

Front 4

Kopelman: uses of the Best Interest Principle

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- Threshold for intervention
- Standard of reasonableness
- Ideal
- Note: Making life and death decisions using the BIP is particularly hard, because one of the options is death. Comparing any level of quality of life against death is difficult- it involves judgements that we cannot ‘prove’ the truth of

Front 5

Threshold for Intervention:

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where the BIP is used to determine whether the care given to (for instance) a child and the decisions made for her meet an acceptable level. If they fall below the level set by the BIP, then intervention (generally by the state) may be required. Problems: over demanding, unrealistic and punitive- very difficult to provide best care for non- competent eg mum feeding child unhealthy food- should state intervene

Front 6

Standard of Reasonableness:

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When a decision has been wrested away from the parents of guardians, and must be made by a third party (eg a judge; social worker), the BIP can be used as the principle that guides the decision.

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Ideal:

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The BIP can be promulgated as the correct standard by which policies relating to (for instance) children should be guided. Options often fall below ideal but best option available. Eg parents being together best option for child with separated parent but not possible.

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Basic Interest Prinicple:

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It holds that decisions for non-competents should secure their basic interests. Instead of working out what is best, we work out what is ‘good enough.’ Any decision that counts as ‘good enough’ is acceptable.
• More realistic, less demanding
• Can include others’ interests- more prone to abuse?
• Focus on ‘Good enough’ parenting- but what is good enough
• The Basic Interest Principle might be used in some contexts, and the BIP in others. For instance, the Basic Interest Principle may produce a good Threshold for Intervention and the BIP may be better suited to the Ideal and Standard of Reasonableness functions.

Front 9

Children, the BIP and the Problem of Malleability:
One might think that this problem will be more pronounced under the Best Interest Principle, because basic interests will be those interests that are less amenable to external manipulation (eg no amount of parental control can change the fact that I have interest in being adequately nourished).

Back 9

This problem is particularly prominent when scrutinizing decisions for very young children.
The content of a child’s interests is not completely set in stone at the time of conception or birth.
Some interests-such as those relating to basic physical survival, freedom from overwhelming pain, emotional attachment and security, are shared by all children and arise by virtue of human nature.
Other interests are formed gradually, and depend upon or can be influenced by, the decisions that are in fact made for them during their life.
It can be difficult to predict in advance which interests will be amenable to change through environment, and which will not. Difficult to decide what is best decision early on in someone life – if best interest is actually being served

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Children’s emerging autonomy:

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Over the time when children’s autonomy develops, parents and caregivers retain a lot of responsibility for them. Arguably, this responsibility requires parents a measure of discretion to override children, for their own interests. But the limits of parental discretion are contestable. Parents may want to be the ones who determine what is in their child’s interests beyond the point at which children feel that that is reasonable.
The crossover between parental claims for control and children’s claims forms another problematic point for the Best Interest Principle.
Even if parents retain control over medical decisions, when should children’s ideas about their own interests come to affect, or even determine what is in their best interests?