Substituted Judgment: The Parens Patriae Justification for Involuntary Treatment of the Mentally Ill

Abstract

Civil commitment and forced treatment are often defended by the claim that a benevolent government can exercise “substituted judgment” to supersede the impaired decisionmaking processes of the mentally ill. This article argues that the claim is tenable, but only if its proponents provide satisfactory answers to two questions: First, how should we define the kind of incompetence that makes an individual a proper subject for substituted judgment? Second, is there a necessary relationship between such incompetence and mental illness?