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from the process. Or, to put it another way, the use of the old paradigm does seem to
promote bad faith.
The new paradigm which challenges objective, value-free decision making and calls for
the recognition and transparency of values which drive best interest determinations is
an antidote to bad faith. Opportunities have emerged which promote a more values
oriented approach, or at least question the continuing dominance of traditional methods
for reaching best interest determinations.
Human rights
The human rights argument has been used to critique the use of permanent surgical
solutions for contraceptive or menstrual management purposes (see for example,
Kennedy, 1991 and Keywood, 1995). The use of a human rights framework to protect
and promote the interests of people with intellectual disability has been well
documented. (See for example the Declaration on the Rights of Mentally Retarded
Persons, United Nations, 1971.) To fully examine the impact of these instruments in
relation to people with intellectual disabilities within the confines of this thesis is not
possible. However, examination of case law suggests that applying this approach may
offer a mechanism for revealing the values underpinning best interest determinations.
Human rights are an expression of values. For example, does someone with an
intellectual disability have a right to be a parent? This is a subjective judgement which
can only be answered by careful consideration of all the issues and confronting our
values which are necessarily instrumental in reaching an answer. Are there concerns
about the safety and development of a child brought up by parents with intellectual
disabilities? And if we decide that yes, people with intellectual disabilities do have the
right to parent, then as a society are we obliged to provide sufficient support to
facilitate the optimal environment for both the parents and the child? As a society are
we prepared to make those provisions? And are we prepared to accept the consequences
if there are detrimental effects for the parents or the child? The process of considering
which human rights are relevant when considering sterilisation or hysterectomy
therefore has the effect of forcing values into the open.
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