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opportunities for discussion and debate about the values guiding distribution of
scarce renal replacement therapy would have been afforded. For example, should
age and dementia be determining factors about access to renal dialysis? Is it
appropriate to use strict guidelines which absolve clinicians from resource
allocation decisions but are inflexible and do not consider individual cases? These
questions are the concern not only of clinicians, but society.
Instruments of bad faith
The guidelines were the primary methods of objectification, but other methods were
also employed by the court.
Clinical judgement. The Court was asked whether there had been a deficiency in
“an administrative decision-making process” (Shortland [1998], p. 125). The
judgement of the process was couched in terms of clinical decision making. This
meant that the decision not to provide renal dialysis to Mr Williams required
conformity with prevailing medical standards. The judge found that the process met
this criteria. Doctors consulted from around New Zealand were unanimously of the
view that Mr Williams was “unsuitable” for long term dialysis (p. 132). But what
exactly did they mean by unsuitable? Had they deemed anyone with the early stages
of dementia not to be worth the cost of expensive dialysis? Portraying these value
judgements as “clinical” eliminated the subjectivity from the decision – which was
said to be “made in good faith in the belief that they were in the best interests of Mr
Williams” (p. 122).
The Court. In the case report there are occasions when the judge attributes his
comments and opinion to “the Court”. For example, in the words of the first
appellate judge, “it is totally inappropriate for the Court to attempt to direct a doctor
as to what treatment should be given to a patient” (p. 125). At the end of the case
the judge states that, “in any event it is not for the Courts to be arbiters of the merits
in cases of this kind” (p. 134). In this way, the judge distances his subjective self
from the process and places responsibility for the decision with the objective
authority of the Court.
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