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Cranley-Glass, K. (1992). Elderly Persons and Decision-Making in a Medical Context: Challenging Canadian Law. Unpublished Doctor of Civil Laws, McGill University, Montreal. Damasio, A. (1994). Descartes Error. Emotion, Reason and the Human Brain. New York: HarperCollins. De Luca, R. (2003). Perspectives on Informed Consent: An Investigation into Attitudes and Practices in Relation to Medical Treatment in a Group of New Zealand Hospitals. Unpublished PhD Thesis, University of Waikato, Hamilton, New Zealand. Devlin, P. (1961). The Enforcement of Morals. Oxford: Oxford University Press. Devlin, P. (1979). The Judge. Oxford: Oxford University Press. Dickerson, A.B. (2004). Kant on Representation and Objectivity. Cambridge: Cambridge University Press. dictionary.reference.com (No Date). Convention. Retrieved February 20, 2006 dictionary.reference.com (No Date). Paradigm. Retrieved March 3, 2006 Diesfeld, K. (2000). Neither consenting nor protesting: an ethical analysis of a man with autism. Journal of Medical Ethics, 26, 277-281. Docker, C. (2001). Limitations of the best interests and substituted judgement standards. Dying in dignity Mensa Sig News Journal, 3(1). Dowse, L. & Frohmader, C. (2001). Sterilisation and Reproduction Health of Women and Girls with Disabilities. Tasmania: Women With Disabilities Australia. Dworkin, R. M. (1970). Is law a system of rules? In R. S. Summers (Ed.), Essays in Legal Philosophy (pp. 25-60). Oxford: Blackwell. Dworkin, R. M. (1986). Law's Empire. Cambridge, Massachusetts: Harvard University Press. Dworkin, R. M. (1994). Law, Philosophy and Interpretation. In F. Atria & N. MacCormick (Eds.), Law and Legal Interpretation. (2003). Aldershot: Ashgate Dartmouth. Dyer, C. (2004). Professor Roy Meadow struck off. British Medical Journal, 331, 177. Dyer, C. (2005a). Court rules in favour of GMC’s guidance on withholding treatment. British Medical Journal, 329, 818. Dyer, C. (2005b). GMC appeals against judgement on withholding treatment. British Medical Journal, 331, 309. 214
Eastman, N., & Peay, J. (1999). Law Without Enforcement: Theory and Practice. In N. Eastman & J. Peay (Eds.), Law Without Enforcement. Integrating Mental Health and Justice (pp. 1-37). Oxford: Hart Publishing. Eckhoff, T. (1976). Guiding standards in legal reasoning. Current Legal Problems, 1976, 205-219. Edwards, D. (2002). A philosophical discussion of end-of-life decision-making methods for incompetent patients. International Journal of Palliative Nursing, 8(3), 146-151. Edel, A. (1953). Concept of values in contemporary philosophical value theory. Philosophy of Science, 20(3), 198-207. Emory, D. (No Date). The Structure of Scientific Revolutions. Outline and Study Guide. Retrieved January 6, 2006, from www.des.emory.edu/mpf/kuhn.html Escher, M., Perneger, T., & Chevrolety, J. (2004). National questionnaire survey on what influences doctors' decisions about admission to intensive care. British Medical Journal, 329, 425-429. Feek, C., McKean, W., Henneveld, L., Barrow, G., Edgar, W. & Paterson, R. (1999). Experience with rationing health care in New Zealand. British Medical Journal. 318, 1346-1348. Fellowes, M. (2000) Australia’s Recommendations for the Sterilisation of the Mentally Incapacitated Minor – A More Rigorous Approach? Web Journal of Current Legal Issues. Retrieved April 3, 2001, from http://webjcli.ncl.ac.uk/2000/issue2/fellowes2.html Finnis, J. (1995). Legal Positivism. In T. Honderich. (Ed.), The Oxford Companion to Philosophy. (pp. 476-477). Oxford: Oxford University Press. Fitzgerald, J., & Moltzen, N. (2004). Psychological evaluation of the child's best interests: The interpretation of data in the preparation of child welfare reports in the New Zealand family court. Psychiatry, Psychology and Law, 11(2), 214- 225. Frean, A. (2004, July 31). The new line separating life and death. The Times, p. 1. Freckleton, I., & Selby, H. (Eds.). (2002). Expert Evidence: Law, Practice, Procedure and Advocacy (2nd ed.). Sydney: Lawbook Co. Fulford, K.W.M. (1998). Dissent and Dissensus: The Limits of Consensus Formation in Psychiatry. In H.A.M.J. ten Have and H.-M. Sass (Eds.), Consensus Formation in Healthcare Ethics (pp. 175-192). Boston: Kluwer Academic Publishers. 215
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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
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opportunities for discussion and de
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situations we meet in our every day
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I contend that because we seek cert
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For years, health professionals hav
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The sterilisation was regarded as u
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the sterilisation procedure would b
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Decision making is further inhibite
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subjectivity and denying the inesca
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uncertainty about the provision of
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In 3 instances 12 it was establishe
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childbirth, child-rearing, and that
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More recent research supports Saber
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doctor reported that C “did under
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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 and 196: What if… judges were able to expl
Page 197 and 198: Epilogue I write this epilogue in r
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: Biegler, P. (2002). Should patients
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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