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On a very practical level, Bailey provides the clinician’s perspective of trying to apply
the principle on a daily basis in an intensive care environment (2001). Bailey argued
that the test does not provide an ethically defensible means of determining whether
treatment should be administered or withheld. Furthermore, she highlighted the direct
link between best interest determinations in the intensive care environment and quality
of life judgements. In the intensive care context, Bailey found that the guidelines
offered to help clinicians make determinations were vague, unstructured and lacking
any conceptual framework (Bailey, 2001, p. 162). Bailey further observed that best
interest determinations are based on unquestioned assumptions about doctors being able
to judge quality of life, to weigh up risks and benefits, and to decide on a fair
distribution of resources.
Critique of the best interest test in particular cases
In England and New Zealand, critique of the best interest principle exists primarily in
response to specific cases which have sparked interest in the use of the best interest
principle. The case of Tony Bland considered the removal of food and fluids from a
young man in a persistent vegetative state which resulted from horrific injuries he
sustained at the Hillsborough football disaster in England in 1989. The House of Lords
found that it was in Tony Bland’s best interests to discontinue artificial nutrition and
hydration. The case prompted a great deal of attention, in particular the House of Lords
denial that the case was about euthanasia. For example, Mason and McCall Smith
called for a more honest approach, challenging the courts to admit that the deliberate
removal of sustenance from vegetative patients is indistinguishable from euthanasia
(1999, p. 407). In response to Bland, Laurie and Mason described the language and
justifications employed in best interest determinations as “arguably hypocritical,
dishonest, misleading, illogical and, as a result questionable in moral and ethical terms”
(2000, p. 177).
Diesfeld (2000) critiqued the House of Lord’s response in R v Bournewood Community
and Mental Health NHS Trust, Ex parte L [1998] (England) which employed the best
interest test to justify the informal detention of an autistic man outside the protections
of mental health legislation. Diesfeld argued that in doing so, the House of Lords failed
to provide optimum protection for vulnerable members of society (2000, p. 281).
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