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clinical judgement values are objectified and the actual values which guide decision
making remain implicit. Giving a blunt appraisal of the implications for medical
practice of the original Burke decision, Gillon [2004] said in an editorial for the British
Medical Journal: “If not overturned, the judgement is likely to tilt the balance of
medical practice towards non-beneficial and wasteful provision of life prolonging
medical treatment” (p. 810). These are the sorts of value judgements which may
underpin best interest determinations and which, while cloaked under the guise of
clinical judgement and medical facts continue unseen, unchecked and unscrutinised.
Summary
We are in a period of conflict between an old paradigm, which continues to regard
value-free decision making as both possible and preferable, and a new paradigm which
challenges those perceptions. We will remain in this period of conflict until we adopt a
completely new way of looking at what are essentially value judgements within
positivist legal and medical science frameworks.
The old paradigm promotes bad faith. In a bid to achieve certainty and to conform with
conventional systems, judges and doctors employ objectivist methods which aim to
detach subjectivity from what are essentially value judgements. Through examination
of case law, I have demonstrated that despite the veneer of medical evidence and
positivist legal process, these are grave and difficult decisions that will always require
values to guide and inform them. So far, the criticism of the best interest test as a
mechanism for making decisions on behalf of incapacitated adults has largely called for
greater determinacy. But this is simply not possible. The decisions are so complex and
unique, that to reduce best interest determinations to a single formula or check list is
never going to resolve the issues.
The new paradigm is an antidote to bad faith. To recognise and reveal the values which
guide and inform best interest determinations presents a significant challenge which
goes to the very heart of the medical and legal establishments. However, the nature of
decisions about, for example, permanently removing the reproductive capacity of
women with learning disabilities, or the removal of hydration from a young person in a
persistent vegetative state, is not going to change. As the momentum gathers and the
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