Who decides what is in a child or young person’s best interests?
Where a child lacks competence, there is a presumption that the child’s parents have the child’s best interests at heart. Although they usually coincide, the interests of the child and those of the parents are not always synonymous. Doctors should be alert to situations in which parents’ decisions appear to be contrary to their child’s interests.
Where a child is able to express a view about non-therapeutic male circumcision (NTMC), his views on what would be in his best interests are of importance to the decision-making process. The BMA cannot envisage a situation in which it is ethically acceptable to circumcise a child or young person, either with or without competence, who refuses the procedure, irrespective of the parents’ wishes.
Doctors should only undertake NTMC where they are satisfied that it is in the best interests of the child. The reasons for this professional judgement should be recorded in the medical record.
Where a child lacks competence, is parental request alone sufficient?
Parental preference alone does not constitute sufficient grounds for performing NTMC on a child unable to express his own view. Parental preference must be weighed in terms of the child’s interests (see next section).
It is the parents’ responsibility to explain and justify requests for circumcision, in terms of the individual factors in relation to that child’s best interests. They need to explain why the benefits of NTMC outweigh the risks inherent in any surgical procedure.
What needs to be taken into account when assessing a child’s best interests?
In addition to considering the child’s health interests (see our guidance on the health risks and benefits), it is important that doctors consider other matters including the child’s social and cultural circumstances, as part of an overall best interests assessment.
Where a child is living in a culture in which circumcision is perceived to be required for all males, the increased acceptance into a family or society that circumcision can confer, is considered to be a strong social or cultural benefit. Exclusion may cause harm by, for example, complicating the individual’s search for identity and sense of belonging. Some religions require circumcision to be undertaken within a certain time-limit, and so a decision to delay circumcision may also be harmful. Clearly, assessment of such intangible risks and benefits is complex.
What does the GMC say on wider best interests?
‘34. Both the GMC and the law permit doctors to undertake procedures that do not offer immediate or obvious therapeutic benefits for children or young people, so long as they are in their best interests … and performed with consent...
‘35. To assess their best interests you should consider the religious and cultural beliefs and values of the child or young person and their parents as well as any social, psychological and emotional benefits. This may be relevant in circumcision of male children for religious or cultural reasons, or surgical correction of physical characteristics that do not endanger the child’s life or health.’
GMC, 0-18 years: guidance for all doctors
Furthermore, the harm of a person not having the opportunity to choose not to be circumcised or choose not to follow the traditions of his parents must also be taken into account, together with the damage that can be done to the individual’s relationship with his parents and the medical profession, if he feels harmed by an irreversible non-therapeutic procedure.
The following should be taken into account when assessing best interests in relation to NTMC:
- the child or young person’s own ascertainable wishes, feelings and values
- the child or young person’s ability to understand what is proposed and weigh up the alternatives
- the child or young person’s potential to participate in the decision, if provided with additional support or explanations
- the child or young person’s physical and emotional needs
- the risk of harm or suffering for the child or young person
- the views of parents and family
- the implications for the family of performing, and not performing, the procedure
- relevant information about the child or young person’s religious or cultural background; and
- the prioritising of options which maximise the child or young person’s future opportunities and choices.
What have the courts said on wider best interests?
The courts have confirmed that a child’s lifestyle and likely upbringing are relevant factors to take into account. The individual factors of each case need to be considered.
For example, in Re J, J was a 5-year-old boy who lived with his mother, a non-practising Christian. His father, a non-practising Muslim, wanted him to be circumcised. Asked to decide whether J should be circumcised, the court considered all the factors relevant to J’s upbringing and concluded that J should not be circumcised because of three key facts:
- he was not, and was not likely to be, brought up in the Muslim religion;
- he was not likely to have such a degree of involvement with Muslims as to justify circumcising him for social reasons; and as a result of these factors,
- the ‘small but definite medical and psychological risks’ of circumcision outweighed the benefits of the procedure.
How do I balance these different interests?
Best interests assessments for NTMC can be challenging for some doctors, due to uncertainty over how to broach or consider best interests, specifically weighing up unquantifiable spiritual and cultural risks and benefits (of which the assessing doctor may have limited understanding) along with potential health risks and benefits. In addition to asking parents to explain and justify requests for circumcision, doctors may wish to ask what the implications might be for a child if he is not circumcised, and/or whether circumcision can be deferred until the child can make his own decision (see our guidance on deferment).
On a more practical level, doctors may be concerned that if they decide not to circumcise, a child may be circumcised in unhygienic or otherwise unsafe conditions. In some cases, a boy’s underlying health issues may not preclude NTMC but may increase the risk of performing it. Doctors may consider it better that they carry out the procedure, or refer to another practitioner, rather than allow the child to be put at greater risk. On the other hand, very similar arguments are also used to try to justify very harmful cultural procedures, such as female genital mutilation or ritual scarification.
Where a doctor does not believe that NTMC is contrary to the interests of a child but is uncertain over what is in the best interests of a child or young person, further discussion should take place and, where appropriate, a doctor should seek a second opinion. In some cases, it may be necessary to seek legal advice.
As with all best interests assessments, there are no set formulae to follow when weighing different interests; it is a matter of professional judgment. As with any other aspect of care, health care professionals must be able to justify their decisions and should record the basis on which their decisions are made.
Next page - Consent and refusal
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