‘Fairness and reasonableness of the child's decision:’ a proposed legal standard for children's participation in medical decision making

Abstract

Using as illustration the case of Nikolas E., a six-year-old child with HIV/AIDS, this article considers the competing rights of children, parents, and state in cases involving pediatric medical disputes. The article outlines arguments in favor of and against children's participation in medical decisions and describes legal standards currently used in resolving pediatric medical disputes. The article then proposes adoption of a new legal standard described as the 'fairness and reasonableness of the child's decision,' and articulates advantages and disadvantages of such an approach, as well as the factors that should be considered in implementing the standard. Finally, the article argues for a methodology for including children's wishes in pediatric medical decision making that is based upon Monahan and Walker's model for including social science evidence in legal contexts and evaluates alternative strategies for including children meaningfully in the process of making medical decisions that affect them.