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could be employed to make health care treatment decisions on behalf of adults who
lacked capacity (Re F [1990]). However, this principle was not further defined and the
question of what precisely was meant by ‘best interests’ was, and continues to be,
largely unanswered. Instead, the Lords deferred to the judgement of health
professionals. In combination with the Bolam test they found that when treating an
incompetent adult, as long as doctors acted in good faith in the best interests of their
patients, and in accordance with a responsible body of medical opinion, they would not
be liable in battery (Re F [1990], Lord Brandon, at 68).
This accorded legal and health care decision makers considerable discretion to apply
their value judgements within conceptual frameworks which do not recognise their part
in the process. As a result, judgements which stem from ‘beyond-the-evidence’ are
portrayed via positivist means as being ‘within-the-evidence’.
The rational field frame
When a rational field is created, it is framed by our values, environment, instincts and
classifications. This frame acts as a filter, a lens through which we interpret and apply
the ‘just is’ evidence and apply rational methods to achieving our goals.
Environment: While I have positioned positivist legal process as a means to establish
the legality of withdrawing food and hydration from insensate patients within the
rational field, the entire structure and institution of ‘law’ has created and sustained an
environment underpinned by ideologies that value-free reasoning is not only possible,
but preferable. For example, legal education equips lawyers to reject their subjective
responses and emotional reactions to cases are dismissed as incapacitating and isolating
(Kennedy, 1992, p. 51). A growing body of critical legal theory is beginning to
challenge perceptions about judicial impartiality and theorists are exploring ways to
take advantage of judicial discretion, for example, to achieve so-called ‘therapeutic’
outcomes in mental health law. However, the positivist approach remains influential, so
as well as providing the process to make best interest determinations, it is an important
component of the rational field frame.
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