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frameworks are bound to fail. It is not surprising that research from the United States
has demonstrated that employment of more sharply defined legal standards is
ineffective in solving the difficulties with the best interests test (Artis, 1999; Mercer,
1997).
Artis’ (1999) research into child custody cases indicates that attempts to achieve greater
specificity for best interests standards have a limited effect on reducing the concerns
associated with indeterminacy. Her findings demonstrate that even though guidelines
and lists were enacted to restrict judges' discretion and reduce bias, it was not clear that
they did. Judicial decisions remained a function of a variety of factors, including age,
gender, race, and marital status (Artis, 1999, p. 6). Mercer (1997) examined the use of
the ‘primary caretaker standard’ adopted in West Virginia as an alternative to the best
interests test. This standard provided a ten point list of factors for determining
appropriate outcomes in child custody cases, but despite implementation of the more
specific primary care taker standard, judicial decision making increasingly reverted
back to using the best interest standard (Mercer, 1997).
While the subjectivity of best interest determinations has been acknowledged (Biegler,
2002, p. 360) the view that reasoning can somehow be separated from values when
making decisions on behalf of incapacitated adults persists (Edwards, 2002; Savulescu,
1995). This view reflects the dominance of objective, value-free philosophies which
underpin legal and medical decision making and which do not acknowledge that best
interest determinations are primarily value driven.
The aim of my thesis is not to create a theory, or to provide a definitive solution, on
how to make best interest determinations. This is simply not possible. What is required
is a new philosophical approach which challenges traditional objectivist approaches to
law and legal reasoning and recognises the ethically complex, value dependent nature
of best interest determinations. Then the necessary role of values can be revealed so
that all components of reasoning which go into making decisions on behalf of others
can be revealed: not just the legal “facts” and medical “evidence”.
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