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Decision making is further inhibited because one of the two options is already firmly
established as preferable by the health professionals involved. Historically the judiciary
have proven reluctant to question the clinical decision making of health professionals
(Keywood, 1995, p. 128; Sheldon, 1997, p. 75-103). Keywood describes the “rather
special relationship” which exists between the medical profession and the courts, with
judges inclined to respect their clinical judgement and who have declined to perform
close scrutiny, particularly in matters of diagnosis and treatment (1995, p. 127). Case
law is littered with examples, but the following is representative.
I find it difficult to conceive of a situation where it would be a proper
exercise of the jurisdiction to make an order positively requiring a
doctor to adopt a particular course of treatment… unless the doctor
himself or herself was asking the court to make such an order.
Re J [1993] (England) Balcombe LJ, cited Kennedy & Grubb, 2000, p. 821
Whilst the new paradigm challenging unfettered medical decision making discretion
has resulted in cases coming before the courts, the common law doctrine of precedent
has promoted and supported traditional approaches. Re F [1990] established best
interest decisions as primarily medically determined. This ensured that the same
approach was followed in the many cases that followed both in England and
internationally. For example, one of the first cases in New Zealand to employ the best
interest test was Auckland Area Health Board v Attorney General [1993]. This case was
an application by doctors of the intensive care unit of the Auckland Hospital for a
declaration clarifying whether they would be guilty of culpable homicide under the
Crimes Act 1961 (NZ) if they withdrew the life support system of a patient with an
extreme case of Guillain-Barre syndrome. The test was invoked, and finding the
withdrawal of treatment in accordance with a responsible body of medical opinion, the
actions of health professionals were declared lawful.
Reverting to the fact-centred medical approach achieves a veneer of certainty and
value-neutrality in the form of empirical evidence, clinical judgement and the evidence
of experts. But this does not alter the evaluative nature of the decisions, and the values
which guide them do not disappear. Instead they are hidden behind the combined
illusion of objective legal process and medical science. Is this an example of bad faith?
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