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the judge conclude that the application is likely to advance the best interests of the
claimant (Re A [2000], Thorpe LJ, p. 13). This interpretation raises questions about
what is meant by the good of the individual, demanding a weighing of the benefits
arising from possible courses of action (Bailey, 2001). Which evidence is placed on the
gains side of the balance sheet and which to losses is a value judgement and entirely
dependent on the preferences of the decision maker.
Another alternative which has been mooted is the reasonable person standard. This
involves selecting the course of action according to what most reasonable persons
would choose (Docker, 2001) or what patients under similar conditions but competent
have tended to choose (Pellegrino & Thomasma, 1988). Reasonable patient approaches
are akin to the substituted judgment test which has been favoured over the best interest
test in some cases in the United States (Re Lucille Boyd [1979] (U.S) cited Kennedy &
Grubb, 2000, p. 835). This approach is no less problematic. As Lord Mustill observed
in Bland:
To postulate a patient who is in such condition that he cannot know that
there is a choice to be made, or indeed know anything at all, and then
ask whether he would have chosen to terminate his life because that
condition made it no longer worth living is surely meaningless…. The
idea is simply fiction.
The best interest test has been described as a welfare appraisal and this interpretation
has been used more recently in two sterilisation cases in the U.K. (Re A [2000], Re S
[2001]). The welfare appraisal finds its origins in family law and focuses on the
patient’s contemporaneous needs, operating with the singular focus of the present
welfare of the patient (Griffith, cited Myers, 1994). However, the welfare appraisal is
also ill defined, and goes no further than acknowledging that a best interests
determination should not comprise solely of considering the medical best interests of
the adult concerned.
The existing critique of the best interest test reflects decision makers grappling to make
complex, value judgements within frameworks which do not acknowledge the
necessary and integral role of values. Attempts to achieve a particular formula for
making ethically complex best interest determinations using value-free decision making
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