Abstract
The ideal way through life for each of us is a journey, where we can control our own lives and make our own decisions. For some this is not possible, and for these people decisions need to be made on their behalf. Healthcare decisions are of fundamental importance, and of these, the most acute are about life and death. This thesis discusses the tragedy of the incompetent patient, for whom such a life or death decision must be made. The difficulty of these sorts of decisions has necessitated decision-making on behalf of these incompetent patients by the judiciary. The case may have gone to court because of differences of opinion between the medical profession and the families, or it may be because it is unclear whether the proposed action is even legal. Regardless of how it came within the court’s domain, the judges then become the decision-makers for the incompetent patient.
To make these difficult decisions the judge uses the best interests of the patient as the decision-making principle. Best interests is a complicated term, as it necessitates the involvement of other values, which are compared and evaluated. To understand how well judges are using this principle, this thesis analyses cases from four Commonwealth jurisdictions, concluding that the best interests test has been applied in a way that is less consistent than can be expected from a common law jurisdiction focused on predictability. Specifically, there is little agreement on the definition of best interests, nor is there a common formula for the weighting and balancing of the various interests which are inevitably at stake. What counts as interests, and which interests a permanently incompetent person is attributed with also varies. Additionally, the focus on the individual, which is fixed in its centrality to the best interests test, has become its primary goal, to the detriment of recognising a wider interpretation of interests that the patient may have, including the interest that he or she may have for others, such as their family. This thesis discusses all of these issues, and concludes with a list of recommendations for the consideration of the best interests test when applied to the permanently incompetent person.