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I contend that because we seek certainty, we have called on the courts to adjudicate the
decisions. However, legal decision makers (like others) cannot establish a definitive
answer to the fundamental human questions raised. Judges working within positivist
frameworks also seek certainty, which they have found largely by deferring back to
medical solutions. I use best interest case law to support and develop my arguments. I
conclude by suggesting that the only way to break the philosophical impasse is by
recognising, accepting and revealing the values which inform and guide best interest
determinations.
The process of revolution
In chapter two I drew parallels with Kuhn’s process of scientific revolution to
demonstrate how values become objectified in law. To briefly re-cap, when a new
paradigm is created in science, it must be valued by sufficient numbers of the relevant
community for it to be successful. Because the new paradigm is incompatible with the
old paradigm, there is a period of conflict. In the period of conflict, there is debate,
during which the opportunity arises for the expression of values about the competing
paradigms. The relevant communities make their choices and the new world view
succeeds if there is sufficient support. The revolution is complete once the new
paradigm is completely normalised within the scientific community. This process may
take many years and even across generations.
The new paradigm
A new paradigm is emerging in medical decision making. Traditionally, health care
treatment decisions for incapacitated adults were left to the discretion of health
professionals. Social conventions promoting a paternalistic “doctor knows best”
approach flourished in an environment in which medical professionals were accorded
God-like status (Brazier, 1992). Under these conditions, treatment decisions were the
domain of doctors, with an assumption that the ethical principle of beneficence
underpinned their intentions (Eastman & Peay, 1999, p. 28). Medicine was seen by
some as a new religion, doctors were seen as magicians and there was increasing
medicalisation of the events of our everyday lives (Kennedy, 1981). In this
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