Care by the Family or Care by the State?
| Date | 01 November 1995 |
| Published date | 01 November 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02058.x |
llte
Modem Law Review
[Vol.
58
If the underlying problem is really underfunding, then making these issues
explicit can only contribute to a better informed debate about the proportion of
GNP
which is allocated to health care.37 Managing underfunding by making
hidden and possibly ill-informed calculations about who shall live and who shall
die on criteria which are not purely clinical, and which are therefore outside both
the competence and the legitimacy of the doctor, is not an answer to the question.
It might usefully be asked whether classifying decisions in this area as ‘medical
law’ and as part of some emerging body of medical jurisprudence actually helps or
hinders the cause of getting the issues into the public domain.
If
there is such a
thing as medical law, it has not so
far
succeeded in elaborating the circumstances
in
which health authorities should be accountable, in a public law sense, for spending
and allocation decisions. Requiring health authorities to give reasons for their
decisions and to show that they have engaged in a rational process in precisely the
same way that we require of other public bodies would better enable
us
to
establish, first, the extent to which they have or have not reached a decision which
no reasonable authority could have reached and, secondly, the extent to which we
should recognise any special claims or limitations resulting from the particular
ethical dilemmas which they face.
Care
by
the
Family
or
Care
by
the State?
Mary
Hayes”
The law relating to children encompasses a number of profoundly difficult issues.
One of the most serious questions with which a court may have to grapple is when
should it authorise a local authority to receive a child into their care against the
wishes of the child’s parents or other family members? When a care order is made,
the local authority designated by the order acquires parental responsibility for the
child.’ This means that the local authority is entitled to exercise almost all the
rights, duties, powers, responsibility and authority which by law a parent of a child
has in relation to the child.2 In essence, a care order authorises a local authority to
remove a child from his or her home and to make plans for the child’s future
upbringing. Although, technically speaking, the parental responsibility of the
parents is not taken from them when a care order is made,3 decision-making
powers in relation to the child are
firmly
vested in the local authority. It is the
authority which has the power to determine the extent to which the child’s parents
may meet their own parental responsibility for their child.4 The authority must
37 It is reported that we currently spend only
€528
per person
on
health compared with an OECD average
of €966. The government has consistently argued that the discrepancy is due to the efficiency with
which administrative costs are kept low within the
NHS.
Calculating the true cost of health care is
notoriously difficult:
see
generally Mayston,
‘NHS
Resourcing: A Financial and Economic Analysis’
in Culyer, Maynard and Posnett
(eds),
Competition in Health Care: Reforming the NHS
(London:
Macmillan, 1990).
*Faculty of Law, University of Sheffield.
1
2
3
s
2(5)(6).
4
s
33(3)(b).
Children Act 1989,
s
33(3)(a). All further statutory references are to the Children Act 1989 unless
otherwise stated.
s
3(1). Limits on the scope of the local authority’s rights and powers can
be
found in
s
33.
878
0
The
Modem
Law Review Limited
1995
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