ABSTRACT
Whilst the cases within health care law are dominated by concerns with the extremes, where the spectre of death or sex stand near, the health care of ourselves and our children is more usually concerned with matters far more mundane. Considering both the ordinary and the extreme, this chapter explores legal responsibilities in relation to the health care of children from before birth to the age of majority and across the spectrum of medical intervention. Decisions made about health care on behalf of, and by, children are contemplated within the context of their relationships with those making the decisions and providing the care. Parental care enables children to develop from a position of dependence upon others for the provision of the basic requirements of good health to possessors of the skills necessary to take responsibility for their own well-being. At each stage parents and, when older, children negotiate with health care professionals to achieve the common aim of the good health of the child but, for reasons which I shall explore, not always in agreement as to the means or the ends of that goal. Parents may feel that they are being supervised by, rather than working with, professionals when carrying out their responsibilities in relation to the basic health care of their young child. Yet the surveillance and monitoring undertaken by professionals takes on a different guise with the initiation of legal action in the face of parental support for older children refusing their consent to treatment. That there may be disagreement between parents and professionals as to the appropriate treatment of the child (or whether to treat in the face of a refusal) should not mask the fact that both feel so strongly because, in different ways, they care. I suggest that insights may be gained into the different views of parents and professionals, the resort to legal advice and the conclusions reached by the courts in relation to whether the decision of an older child should be overridden in their best interests by examining the relationships between the child and those caring for her, whether as parent or professional. Drawing upon the work of Carol Gilligan and Robin West, I suggest that a feminist analysis may provide an explanation for decisions to provide medical treatment in the face of a refusal which may be experienced by the child as oppressive and, by identifying the reasons for those decisions, that an ‘ethic of
care’ model of decision-making in relation to the medical treatment of children may be more appropriate than an approach based upon the abstract rights of the separate isolated individual. First, however, I want to locate decisions made by older children within the context of the care meted out to younger children and the insight which that provides into the relationships between parents and professionals.
