A philosophical critique of the best interests test as a criterion for decision making in law and clinical practice
The best interest test is the legal mechanism which governs decision making on behalf of adults who lack the capacity to make their own health care treatment decisions. The test has attracted considerable criticism from health professionals, academics, judges and lawyers for being ill-defined and non-specific. The question of what is meant by 'best interests' remains largely unanswered. As a consequence, the test gives medical and legal decision makers considerable discretion to apply their personal value judgements within supposedly value-free philosophical frameworks - unreasoned and opaque decision making processes are the inevitable result. Because of the dominance of supposedly value-free philosophical frameworks, the place of values in decision making is not always fully understood. Reasoning is not possible without values, which stem from our emotions and passions, our upbringing, our religion, our cultures, our processes of socialisation and from our life experiences. Values help us make sense of our daily lives. I argue that law - like any other social institution - is essentially a human, values based construct. I put forward a theory of values-based law which argues for the recognition that laws, rules and conventions are based on, and contain, individual values. Currently, medical and legal decision makers justify grave decisions on behalf of society's most vulnerable citizens without revealing, or even acknowledging the values which drive and inform their decisions. Any opportunities to scrutinise or debate the values driving decisions are lost. Ultimately, values-based law argues that values underlying best interest determinations must be exposed to facilitate honest, transparent and fulsome decision making on behalf of adults who lack capacity. By applying the theory of values-based law, supposedly value-free decision making processes are exposed as insufficient to facilitate fulsome, honest and transparent legal reasoning.