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law, at the very least, will foster debate and contribute to a new era of understanding. Once values are recognised as foundational to law, and necessary and instrumental in legal decision making, the way is paved for a more realistic and transparent approach to best interest determinations. 186
Epilogue I write this epilogue in response to points raised during the examination process of my thesis. I would like to gratefully acknowledge the examiners’ insights and comments which have provided me with this opportunity to expand, clarify and strengthen my arguments. The best interest test has been employed for over 3 decades as the legal mechanism for making treatment and non-treatment decisions on behalf of adults who lack capacity. During this time, the test has been subject to considerable attack from health care professionals, judges and academics for being non-specific and ill defined. However, it is not the test per se that is at fault. It is obvious that health professionals and legal decision makers should act in the best interests of vulnerable adults who cannot make their own treatment decisions. Instead, the problem lies with conceptual frameworks which fail to take account of the values of decision makers. A new understanding of decision making is required to achieve reasoned, open, honest and transparent best interest determinations. The basic problem In 1997 Mr Rau Williams was a 63 year old Maori gentleman who lived in the far North of New Zealand. He had chronic renal failure as a result of a long history of diabetes. Mr Williams was also assessed as having adequate dementia. The only treatment for renal failure is a kidney transplant and in the interim whilst waiting (which in 1997 was up to 7 years) patients are treated with dialysis which artificially performs the function of the kidneys. Mr Williams was declined dialysis treatment by the state public health provider, Northland Health. Mr Williams died the day after the appellate court upheld the decision because it was in accordance with established guidelines and ‘made in good faith in the belief that they were in the best interests of Mr Williams’ (Shortland v Northland Health Ltd [1998], p. 122). It seems self-evident that to make a decision about withholding life sustaining treatment on the basis of age or a diagnosis of dementia involves some degree of ethical evaluation. However, in the case report there are three occasions where the judge 187
Page 1 and 2:
A Philosophical Critique of the Bes
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Legal principle ...................
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Legal process .....................
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Attestation of Authorship “I here
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Dedication To all the people who ha
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Introduction This thesis is a philo
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• Detention of an adult with auti
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compatible donor. Y appeared to be
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grounds. The value judgements which
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Cases concerning sterilisation of w
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esearch, Mercer identified the bias
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the judge conclude that the applica
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Chapter 1 - The objectivist myth Th
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purely empirically and scientifical
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of values-based law is based on the
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knowledge, and suggests that if kno
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Aren’t some values fundamental? A
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economics and sociology. A differen
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Some of Damasio’s everyday exampl
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longer do so? Or because he has no-
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Hume’s psychology of the passions
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authority is refuted by Kohlberg’
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Societies and cultures Biological f
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cases by means of precedent; “by
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throughout the world. Sir Meadow ac
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paradigm, legal methods are employe
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Precedent It has been argued that w
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eading the same newspapers and watc
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Dworkin’s response appears to be
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that the behaviour has detrimental
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means, for example, that people are
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Kant’s philosophy is uncompromisi
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know the victim is your son. Kant
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greatest number. Faced with the ver
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eal life decisions is impossible wi
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Chapter 2 - Values-based Law There
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ules which is decisive on every iss
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the social world that we live in. C
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Consider another incident in Lord o
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35). However, as I have tried to sh
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Part Two - The State of Nature The
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maintaining the fire. The fire goes
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the boys, they discard their identi
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Locke, 2002, p. 3 Accordingly, natu
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Stage three is the state of nature.
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Describing the background to his no
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longer calmer periods - which he ca
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As time distanced the boys from the
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In response to the new paradigm, th
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The public debate facilitates the e
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Consider the enactment of English p
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sun. And so on. We do not say, at t
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Theoretical methods for fixing laws
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Consider the recent enactment of th
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Chapter 3 - Bad Faith Values-based
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In Being and Nothingness Sartre int
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What makes bad faith bad? If we per
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How can we believe by bad faith in
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Good faith A further implication of
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mother.” (Warnock, 1978, p. 117).
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The Milgram experiments and bad fai
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The agentic state From his findings
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Self-deception For Sartre, self-dec
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to continue to follow the orders of
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state in which soldiers become inst
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emain unanswered and important aspe
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Conscious awareness However success
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Objectification. Intention Deceptio
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Case study 2 - the American soldier
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of this kind, unfathomable situatio
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Good faith Gillman’s research dem
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the question at hand. The question
Page 145 and 146: opportunities for discussion and de
Page 147 and 148: situations we meet in our every day
Page 149 and 150: I contend that because we seek cert
Page 151 and 152: For years, health professionals hav
Page 153 and 154: The sterilisation was regarded as u
Page 155 and 156: the sterilisation procedure would b
Page 157 and 158: Decision making is further inhibite
Page 159 and 160: subjectivity and denying the inesca
Page 161 and 162: uncertainty about the provision of
Page 163 and 164: In 3 instances 12 it was establishe
Page 165 and 166: childbirth, child-rearing, and that
Page 167 and 168: More recent research supports Saber
Page 169 and 170: doctor reported that C “did under
Page 171 and 172: assertion that traditional societie
Page 173 and 174: Re M appears to be the only case in
Page 175 and 176: irregular periods. The mother descr
Page 177 and 178: hysterectomy for a 29 year old woma
Page 179 and 180: Three cases adopted a predominantly
Page 181 and 182: A cluster of cases from Australia f
Page 183 and 184: equires a ceasarian section deliver
Page 185 and 186: (1) In determining for the purposes
Page 187 and 188: clinical judgement values are objec
Page 189 and 190: Conclusion and recommendations An a
Page 191 and 192: allocation of scarce health resourc
Page 193 and 194: Values transparency in best interes
Page 195: What if… judges were able to expl
Page 199 and 200: of high quality research’ at the
Page 201 and 202: Visualising our personal values on
Page 203 and 204: Rational fields Rational fields and
Page 205 and 206: Type 5: ‘Filing reality - classif
Page 207 and 208: Within the rational field is not on
Page 209 and 210: conclusion about value, about what
Page 211 and 212: A similar picture emerges from the
Page 213 and 214: The present appeal raises moral, le
Page 215 and 216: expressing differing emotional resp
Page 217 and 218: Environment Doctor knows best Relat
Page 219 and 220: Statute The Code of Health and Disa
Page 221 and 222: Re S (Medical Treatment; Adult Ster
Page 223 and 224: Biegler, P. (2002). Should patients
Page 225 and 226: Eastman, N., & Peay, J. (1999). Law
Page 227 and 228: Henaghan, M. (2002). Human rights a
Page 229 and 230: Laurie, G. T., & Mason, J. K. (2000
Page 231 and 232: Myser, C. (1994). A philolosophical
Page 233 and 234: Singer, P. (2001). Writings on an E
Page 235 and 236: Case reference Re H [1993] NZFLR LE
Page 237 and 238: Re S (Medical Treatment; Adult Ster
Page 239 and 240: In re B (A Minor) Wardship: Sterili
Page 241 and 242: Case reference Re X (Sterilisation:
Page 243 and 244: Re Marion (No 2) [1992] 17 FamLR Au
Page 245 and 246: Re S (Adult Patient: Sterilisation)
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