View/Open - Scholarly Commons Home

Abstract
The best interest test is the legal mechanism which governs decision making on behalf
of adults who lack the capacity to make their own health care treatment decisions. The
test has attracted considerable criticism from health professionals, academics, judges
and lawyers for being ill-defined and non-specific.
The question of what is meant by ‘best interests’ remains largely unanswered. As a
consequence, the test gives medical and legal decision makers considerable discretion
to apply their personal value judgements within supposedly value-free philosophical
frameworks - unreasoned and opaque decision making processes are the inevitable
result.
Because of the dominance of supposedly value-free philosophical frameworks, the
place of values in decision making is not always fully understood. Reasoning is not
possible without values, which stem from our emotions and passions, our upbringing,
our religion, our cultures, our processes of socialisation and from our life experiences.
Values help us make sense of our daily lives.
I argue that law – like any other social institution - is essentially a human, values based
construct. I put forward a theory of values-based law which argues for the recognition
that laws, rules and conventions are based on, and contain, individual values.
Currently, medical and legal decision makers justify grave decisions on behalf of
society’s most vulnerable citizens without revealing, or even acknowledging the values
which drive and inform their decisions. Any opportunities to scrutinise or debate the
values driving decisions are lost. Ultimately, values-based law argues that values
underlying best interest determinations must be exposed to facilitate honest, transparent
and fulsome decision making on behalf of adults who lack capacity. By applying the
theory of values-based law, supposedly value-free decision making processes are
exposed as insufficient to facilitate fulsome, honest and transparent legal reasoning.
ix