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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
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