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Chapter 4 - Values and best interest determinations
We are in the midst of a revolution. It is a revolution about decision making and an
increasingly influential world view which rejects the objectivist myth in law and
medicine. The best interest test is both a symptom and a gauge of the conflict between a
new paradigm, which calls for values transparency, and an old paradigm, which
continues to rely on traditional value-free methods.
There is a fundamental philosophical incompatibility between each approach. This has
led to a paradox. We are no longer content to accept medical decision making which
fails to capture the complexity and intrinsic subjectivity of decisions about, for
example, withdrawing life sustaining treatment from insensate patients and sterilising
women with intellectual disability. But we also seek certainty. So we have turned to the
law to find the answers.
However, both law and medicine are entrenched in objectivist approaches which simply
have no mechanisms to account for values. The combined methods of medical science
and positivist legal process can no longer be convincingly portrayed as the sole bases
for justifying fundamental ethical questions. The indeterminacy of the best interest test
implicitly acknowledges that the decisions are enormously complex and cannot be
made by reference to an objective guideline or check list. This lack of specificity is
also forcing the values which guide and drive decisions into the open. From case law it
appears that decision makers are grappling with what are inescapably value judgements
in frameworks which are not equipped for the new paradigm.
I begin this chapter by returning to Kuhn’s theory of scientific revolution. I propose that
we are currently in a micro state of nature between two conflicting paradigms
concerning medical decision making. I suggest that this period of conflict has placed us
in a position of uncertainty about how best to make decisions on behalf of incapacitated
adults. I draw on the existential framework developed in chapter three to explain our
response to this uncertainty.
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