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Acknowledgements With sincere thanks (in no particular order) to: David Anderson-Ford – who introduced me to, and inspired me to think about, law, ethics and best interest determinations. David Seedhouse – for his philosophy, expertise, supervision and for good faith. Kate Diesfeld – for her wisdom, knowledge and guidance. The PhD group – for their clarity, their challenges and their constant interest in my thesis. Murray and Norman – for their unfailing patience and support. Mum and Dad – for their enthusiasm, encouragement and understanding. vii
Dedication To all the people who have had, and for those in the future who will have, treatment and non-treatment decisions made on their behalf. viii
Page 1 and 2: A Philosophical Critique of the Bes
Page 3 and 4: Legal principle ...................
Page 5 and 6: Legal process .....................
Page 7: Attestation of Authorship “I here
Page 11 and 12: Introduction This thesis is a philo
Page 13 and 14: • Detention of an adult with auti
Page 15 and 16: compatible donor. Y appeared to be
Page 17 and 18: grounds. The value judgements which
Page 19 and 20: Cases concerning sterilisation of w
Page 21 and 22: esearch, Mercer identified the bias
Page 23 and 24: the judge conclude that the applica
Page 25 and 26: Chapter 1 - The objectivist myth Th
Page 27 and 28: purely empirically and scientifical
Page 29 and 30: of values-based law is based on the
Page 31 and 32: knowledge, and suggests that if kno
Page 33 and 34: Aren’t some values fundamental? A
Page 35 and 36: economics and sociology. A differen
Page 37 and 38: Some of Damasio’s everyday exampl
Page 39 and 40: longer do so? Or because he has no-
Page 41 and 42: Hume’s psychology of the passions
Page 43 and 44: authority is refuted by Kohlberg’
Page 45 and 46: Societies and cultures Biological f
Page 47 and 48: cases by means of precedent; “by
Page 49 and 50: throughout the world. Sir Meadow ac
Page 51 and 52: paradigm, legal methods are employe
Page 53 and 54: Precedent It has been argued that w
Page 55 and 56: eading the same newspapers and watc
Page 57 and 58: Dworkin’s response appears to be
Page 59 and 60:
that the behaviour has detrimental
Page 61 and 62:
means, for example, that people are
Page 63 and 64:
Kant’s philosophy is uncompromisi
Page 65 and 66:
know the victim is your son. Kant
Page 67 and 68:
greatest number. Faced with the ver
Page 69 and 70:
eal life decisions is impossible wi
Page 71 and 72:
Chapter 2 - Values-based Law There
Page 73 and 74:
ules which is decisive on every iss
Page 75 and 76:
the social world that we live in. C
Page 77 and 78:
Consider another incident in Lord o
Page 79 and 80:
35). However, as I have tried to sh
Page 81 and 82:
Part Two - The State of Nature The
Page 83 and 84:
maintaining the fire. The fire goes
Page 85 and 86:
the boys, they discard their identi
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Locke, 2002, p. 3 Accordingly, natu
Page 89 and 90:
Stage three is the state of nature.
Page 91 and 92:
Describing the background to his no
Page 93 and 94:
longer calmer periods - which he ca
Page 95 and 96:
As time distanced the boys from the
Page 97 and 98:
In response to the new paradigm, th
Page 99 and 100:
The public debate facilitates the e
Page 101 and 102:
Consider the enactment of English p
Page 103 and 104:
sun. And so on. We do not say, at t
Page 105 and 106:
Theoretical methods for fixing laws
Page 107 and 108:
Consider the recent enactment of th
Page 109 and 110:
Chapter 3 - Bad Faith Values-based
Page 111 and 112:
In Being and Nothingness Sartre int
Page 113 and 114:
What makes bad faith bad? If we per
Page 115 and 116:
How can we believe by bad faith in
Page 117 and 118:
Good faith A further implication of
Page 119 and 120:
mother.” (Warnock, 1978, p. 117).
Page 121 and 122:
The Milgram experiments and bad fai
Page 123 and 124:
The agentic state From his findings
Page 125 and 126:
Self-deception For Sartre, self-dec
Page 127 and 128:
to continue to follow the orders of
Page 129 and 130:
state in which soldiers become inst
Page 131 and 132:
emain unanswered and important aspe
Page 133 and 134:
Conscious awareness However success
Page 135 and 136:
Objectification. Intention Deceptio
Page 137 and 138:
Case study 2 - the American soldier
Page 139 and 140:
of this kind, unfathomable situatio
Page 141 and 142:
Good faith Gillman’s research dem
Page 143 and 144:
the question at hand. The question
Page 145 and 146:
opportunities for discussion and de
Page 147 and 148:
situations we meet in our every day
Page 149 and 150:
I contend that because we seek cert
Page 151 and 152:
For years, health professionals hav
Page 153 and 154:
The sterilisation was regarded as u
Page 155 and 156:
the sterilisation procedure would b
Page 157 and 158:
Decision making is further inhibite
Page 159 and 160:
subjectivity and denying the inesca
Page 161 and 162:
uncertainty about the provision of
Page 163 and 164:
In 3 instances 12 it was establishe
Page 165 and 166:
childbirth, child-rearing, and that
Page 167 and 168:
More recent research supports Saber
Page 169 and 170:
doctor reported that C “did under
Page 171 and 172:
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 and 224:
Biegler, P. (2002). Should patients
Page 225 and 226:
Eastman, N., & Peay, J. (1999). Law
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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