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Viewing best interest determinations in this way also exposes the artificial split
between reason and the subjective response of decision makers central to legal
positivism (and other modes of technical rationality). Each decision maker has their
own rational field through and with which to contemplate decisions and employ means
to achieve their goals. With this understanding we can both confront the reality that
there are no objective moral truths and see the many possibilities to enhance decision
making that result from this new vantage point.
In Bland decision makers did not claim to have reached the ‘right’ answer, or to have
established an objective moral truth. Their decision was in no way deficient as a result.
Quite the opposite; by acknowledging that individual values have an integral and very
necessary role in decision making, new levels of openness and honesty were
demonstrated. While technical rational and legal positivist methods provide a means
with which to examine different aspects of decisions, reason cannot exclusively provide
the answers. Claiming right or wrong answers to difficult ethical questions via set
formulas which establish ‘the truth’ potentially blocks a thorough, deliberative process,
promotes an elitist approach to ethics, and creates anxieties about reaching the ‘right’
answer. Conversely, recognising and exploiting the possibilities which stem from a
fuller, more realistic approach of reasoning provides opportunities for greater
discussion, tolerance, understanding and consideration of diverse perspectives.
These points are starkly illustrated by comparing Bland to the case I introduced at the
start of this epilogue. Shortland represents best interests case law which sits at the most
positivist end of the decision making spectrum. The cases were similar, in that they
both concerned end of life treatment decisions. However, the perimeter of the rational
field through which the case was examined was dominated by positivist approaches.
The means used to reach the decision, specifically, guidelines and ‘clinical evidence’,
blocked the exposure of the individual values of judges and doctors and judgements
which stemmed from ‘beyond-the-evidence’ were portrayed as from ‘within-the-
evidence’. For example, ‘beyond-the-evidence’ value judgements from experts that
there was no potential for renal dialysis to improve Mr Williams quality of life was
accepted as evidence and categorised as a ‘clinical judgement’ about ‘medical interests’
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