Medical Decision-Making on Behalf of Young Children: A Comparative Perspective (Imogen Goold, Cressida Auckland and Jonathan Herring, eds, Hart, 2020, c.£60)
In this book, inspired by high-profile cases in England and Wales concerning life-sustaining treatment decisions and young children, the editors seek to contribute to the debates that have resulted a comparative perspective on medical decision-making in relation to such children. They do so by pulling together a range of contributors from jurisdictions around the world including from Europe, the Americas, Asia and Africa. Almost without exception their contributors rise magnificently to the challenge of describing and contextualising decision-making in their jurisdictions. That they contextualise is particularly important, because one overriding theme of the book for me was the extent to which, in many countries, asking questions predicated on the basis that the law and, in particular, the courts, might have any place to play is simply the wrong place to start. Readers of this work, and I hope that there are many, will no doubt judge for themselves whether the cases of Alfie Evans and Charlie Gard indicate that England and Wales might constitute an outlier internationally not only (as some of the media coverage suggests) in the approach taken by the courts to decision-making, but also as regards the very question of whether the courts might have any role in decision-making in relation to young children. I should note there are very striking similarities with the position in relation to adults with impaired decision-making capacity, where there are also differences as to the extent to which the position is ‘juridified’ (for a hugely stimulating discussion of this, you may wish to watch Dr Lucy Series’ contribution to the webinar held on 7 October 2020 by the Law Society of England and Wales to celebrate 15 years of the MCA).
What is particularly helpful about this book is that it is not simply an edited collection of contributions around a theme, but rather is a collection showing strong editorial control. This manifests itself in the very useful concluding chapter by Imogen Goold and Cressida Auckland reflecting on the themes that can be drawn from the comparisons. It also, and almost even more helpfully, manifests itself that in many of the chapters the contributors make it clear that they are aware of what others producing chapters within the book are saying, so that they themselves are able to reflect and undertake their own comparisons.
One slight regret, and something I for one would be keen to see remedied in any second edition, is that there is no coverage from any Islamic state. One chapter covers a jurisdiction (Malaysia) where at least some decision-making is governed by Sharia law, but it would be very interesting to gain a perspective from countries where different tenets of Islam hold primary sway.
Overall, however, this is both a fascinating and impressive work. I very much hope that the editorial team can be persuaded to turn their attention next to the very thorny area of older children, where into the mix then gets thrown also questions of how to take account of the voice of the child, and how that is to be done in circumstances where that child may have cognitive impairments.
[Full disclosure, I was provided with a copy of this book by the publishers at my request. I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]