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I felt, instinctively, that there was a fundamental problem with decision making on
behalf of others. But I could not say with any certainty what it was. So, like others, I
turned to the law. Surely the law has it all worked out? However, in law I found the
best interest test: a mechanism which not only allowed, but positioned, health
professionals as the final arbiters for treatment and non-treatment decisions on behalf of
those who could not express their own wishes. I was unable to reconcile the reliance on
the best interest test, which assumes so much in terms of the motivation and ethical
decision making ability of health professionals, with the reality of what I had seen in
clinical practice. Furthermore, on examination of best interest case law, I observed the
same issues which had concerned me in clinical practice. Complex ethical questions
were reduced to questions of medical fact and scientific evidence. Why was the law
failing to call health professionals to account for the values which were driving their
decisions? This was a philosophical problem which went to the heart of law and legal
process.
Law and legal process, like medical science, is underpinned by centuries of entrenched
and supposedly value-free philosophy. This has contributed to an objectivist myth
which has detached the basis and origins of law from values. Within this environment,
processes have developed which aim to disconnect the necessary human, subjective
component from decision making process. For example, the judge is perceived as an
instrument of the law and reasoning is portrayed as based on rational methods (such as
induction and deduction) or legal science (using precedent and expert evidence).
Values-based law has established that law is a response to and stems from values. Law
is dependent on subjective, human evaluation. Whilst traditional methods are thought to
lend objectivity to judicial decision making, this is illusory. What results is not decision
making which is value-free, but best interest determinations made according to the
unspecified values of health professionals and judges. Not only is there a failure to call
medical decision makers to account, but similar value-free approaches in law fail to
recognise, and even sometimes deny, that values have any part in the process.
As well as detaching values from decision making process, objectivist approaches fail
to acknowledge the intrinsic subjective nature of best interest determinations. Framing
ethical and social concerns, such as euthanasia, quality of life versus sanctity of life and
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