Substituted Judgment in Medical Practice: Evidentiary Standards on a Sliding Scale

See, for example, Beauchamp T.L. Childress J.F. , Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994): At 170–78.

Buchanan A.E. Brock D.W. , Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge: Cambridge University Press, 1989): At 112.

Baergen R. , “Revising the Substituted Judgment Standard,” Journal of Clinical Ethics, 6 (1995): 30–38.

This characterization of substituted judgment as “subjective” will likely meet with criticism; however, the description of the best interest standard as “objective” might be challenged with the argument that the interests of a particular individual can be factored into the standard. I suggest that this personalized characterization of the best interest standard actually represents a modification of the substituted judgment standard, appealing to the notion of what the patient would “really want” without presentation of evidence to support that claim.

Ex parte Whitbread in re Hinde, a Lunatic, [1816] 35 Eng. Rep. 878 (U.K.).

Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).

See Buchanan Brock , supra note 2, at 113–15.

Liacos P.J. , “Is ‘Substituted Judgment’ a Valid Legal Concept?,” Issues in Law and Medicine, 5 (1989): 215–24.

In re Eichner, 426 N.Y.S.2d 517, 542 (N.Y. App. Div. 1980).

Unless otherwise noted, the term incompetent will refer to an individual who was previously competent and, therefore, able to have expressed preferences.

426 N.Y.S.2d at 543.

See Dresser R. , “Still Troubled: In re Martin,” Hastings Center Report, 26, no. 4 (1996): 21–22.

See Saikewicz , 370 N.E.2d at 754; and In re Conroy, 486 A.2d 1209, 1232 (N.J. 1985).

Pellegrino E.D. Thomasma D.C. , For the Patient's Good (New York: Oxford University Press, 1988): At 4–36.

426 N.Y.S.2d at 545.

Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

See Buchanan Brock , supra note 2, at 122.

See Dresser , supra note 12, at 21.

In re Conroy, 486 N.J. at 1229.

See id. at 1230.

See id. at 1232.

See Buchanan Brock , supra note 2, at 117–22.

For example, Annas G.J. , “The Health Care Proxy and the Living Will,” N. Engl. J. Med., 324 (1991): 1210–13.

See, for example, Suhl J. , “Myth of Substituted Judgment: Surrogate Decision Making Regarding Life Support is Unreliable,” Archives of Internal Medicine, 154 (1994): 90–96; and Seckler A. , “Substituted Judgment: How Accurate Are Proxy Predictions?,” Annals of Internal Medicine, 115 (1991): 92–98.

Some evidence suggests that physicians are less capable in making substituted judgment decisions for their patients. See Uhlmann R.F. Pearlman R.A. Cain K.C. , “Physicians' and Spouses' Predictions of Elderly Patients' Resuscitation Preferences,” Journal of Gerontology, 43 (1988): M115–M21.

See Cruzan, 497 U.S. at 281.

I serve on the ethics committee that reviewed this case.

I serve on the ethics committee that reviewed this case.

See Buchanan Brock , supra note 2, at 116.

Baron C. , “On Taking Substituted Judgment Seriously,” Hastings Center Report, 20, no. 5 (1990): 7–8.

Drane J.F. Coulehan J.L. , “The Best-Interest Standard: Surrogate Decision Making and Quality of Life,” Journal of Medical Ethics, 6 (1995): 20–29.