2-5.
REFUSAL ON BEHALF OF A MINOR
Parental decision makers acting on behalf of minors have only a limited right to
refuse, because of their overriding obligation to act in the best interests of the child. If a
parent refuses necessary treatment, the courts will intervene and appoint a guardian
who will give consent. The court considers the age and maturity of the minor and the
risk-benefit factors of the treatment, in determining what weight to give the wishes of the
minor. The prerogative to decline is limited to treatment that is elective or not likely to
be beneficial. Courts have generally permitted the refusal of extraordinary care for
terminally ill or irreversibly comatose minors and incompetent adults.
When acting on behalf of a minor, the surrogate decision-maker must:
Act in the best interests of the child.
Consent to necessary treatment.
Figure 2-3. Surrogate decision makers have a limited right to refuse treatment
for minors.
INCOMPETENT TERMINAL PATIENT'S RIGHT TO REFUSE UPHELD
IN ONE CASE, OVERRIDDEN IN ANOTHER
In Superintendent of Belchertown vs. Salkewicz (Mass. 1977), the court authorized
the withholding of chemotherapy for 67-year old Joseph Salkewicz, a profoundly
retarded man. It was felt that he would not have understood the pain resulting from
chemotherapy, and would have had to be held down physically for doctors to give
him the necessary drugs and blood transfusions. The court summed up its
decision as follows. "To presume that the incompetent person must always be
subjected to what many rational and intelligent persons may decline is to
downgrade the status of the incompetent person by placing a lesser value on his
intrinsic human worth and vitality," it is of interest to note that, like John Storar,
Salkewicz was a mentally retarded person who had never been competent. Yet, in
the Storar case (held 4 years later in New York) the court did not allow the
terminally ill and incompetent Storar patient to refuse blood transfusions. Observes
medical ethicist Ruth Macklin; "Cases that are apparently similar may be decided
differently in different jurisdictions."1 This highlights a point made earlier: In many
cases, the courts have as much difficulty making morally equitable decisions as any
of us. They too must apply an array of often-conflicting values. There may seem,
on the face of it, some differences between the Salkewicz and Storar cases with
regard to type of treatment: extraordinary treatment (chemotherapy) vs. routine
therapy (blood transfusion, almost as basic as food itself). Says Macklin: "...other
factors have a greater moral significance [than the type of treatment, that is, mode
of dying ...peaceful and easy vs. painful and frightening."2
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