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[2000], p. 13). Responses to this criticism have resulted in numerous attempts to define
and provide guidelines for the tests’ application in both medical and legal contexts.
Tick lists representing a list of criteria to be taken into account in best interests
determinations have proven popular. Such lists have been compiled in case law and by
professional advisory bodies (British Medical Association, 2003). For example, in a
case that found hysterectomy for menstrual management and sterilisation to be in the
best interests of a female with intellectually disabilities, the judge identified seventeen
specific factors for consideration to ensure a measure of uniformity in best interest
determinations in similar circumstances (Re X [1991] (NZ)).
However, despite what may appear to be comprehensive accounts of necessary
considerations, lists can never be exhaustive. For every consideration which is listed for
one circumstance, considerations may be different in another circumstance. For
example, if a hysterectomy is proposed for a woman with intellectual disabilities
because she becomes hysterical at the sight of blood, this may be weighed in the
decision to allow a hysterectomy. But if this factor is not included on the list, is it to be
excluded by the court as a consideration? Even though this solution attempts to provide
greater specificity, check lists can never take into account every possible consideration
particular to the individual adult and the context in which a best interest determination
is taking place.
A cost benefit analysis has been suggested as the proper method of making best
interests determinations (Beauchamp & Childress, 2001; Buchanan & Brock, 1986;
Edwards, 2002; Re A [2000], Thorpe LJ). Applying this interpretation, the surrogate
decision maker is required to identify the highest net benefit from among the available
options. To do this, different weights must be assigned to each option, discounting or
subtracting perceived risks or costs. A comparative assessment then locates the highest
net benefit (Beauchamp & Childress, 2001). In Re A [2000] (p. 13) Thorpe, LJ
suggested that a balance sheet should be drawn up. Any factors of actual benefit should
be one side. On the other, any counterbalancing disbenefits to the applicant. The judge
should then identify potential gains and losses, making some estimate of overall gains
or losses that might accrue. At the end, only if the account is in significant credit will
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