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

Published online by Cambridge University Press:  01 January 2021

Mark R. Tonelli
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Extract

Consensus is growing among ethicists and lawyers that medical decision making for incompetent patients who were previously competent should be made in accordance with that person's prior wishes and desires. Moreover, this legal and ethical preference for the substituted judgment standard has found its way into the daily practice of medicine. However, what appears on the surface to be an agreement between jurists, bioethicists, and clinicians obscures the very real differences between disciplines regarding the actual implementation of the sub stituted judgment standard. Ethicists and judges have carefully outlined how substituted judgments ought to be made and evaluated. Although differences arise, especially at the state court level, regarding the scope of the substituted judgment standard and its relation to other standards of surrogate decision making, agreement is fairly widespread on the priority of substituted judgment and on the necessity of sufficient evidence being available in order to support a particular substituted judgment.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 25 , Issue 1 , Spring 1997 , pp. 22 - 29
Copyright
Copyright © American Society of Law, Medicine and Ethics 1997

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References

See, for example, Beauchamp, T.L. Childress, J.F., Principles of Biomedical Ethics (New York: Oxford University Press, 4th ed., 1994): At 170–78.Google Scholar
Buchanan, A.E. Brock, D.W., Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge: Cambridge University Press, 1989): At 112.Google Scholar
Baergen, R., “Revising the Substituted Judgment Standard,” Journal of Clinical Ethics, 6 (1995): 30–38.Google Scholar
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.Google Scholar
Ex parte Whitbread in re Hinde, a Lunatic, [1816] 35 Eng. Rep. 878 (U.K.).Google Scholar
Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).Google Scholar
See Buchanan, Brock, , supra note 2, at 113–15.Google Scholar
Liacos, P.J., “Is ‘Substituted Judgment’ a Valid Legal Concept?,” Issues in Law and Medicine, 5 (1989): 215–24.Google Scholar
In re Eichner, 426 N.Y.S.2d 517, 542 (N.Y. App. Div. 1980).Google Scholar
Unless otherwise noted, the term incompetent will refer to an individual who was previously competent and, therefore, able to have expressed preferences.Google Scholar
426 N.Y.S.2d at 543.Google Scholar
See Dresser, R., “Still Troubled: In re Martin,” Hastings Center Report, 26, no. 4 (1996): 21–22.CrossRefGoogle Scholar
See Saikewicz, , 370 N.E.2d at 754; and In re Conroy, 486 A.2d 1209, 1232 (N.J. 1985).Google Scholar
Pellegrino, E.D. Thomasma, D.C., For the Patient's Good (New York: Oxford University Press, 1988): At 4–36.Google Scholar
426 N.Y.S.2d at 545.Google Scholar
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).Google Scholar
See Buchanan, Brock, , supra note 2, at 122.Google Scholar
See Dresser, , supra note 12, at 21.Google Scholar
In re Conroy, 486 N.J. at 1229.Google Scholar
See id. at 1230.Google Scholar
See id. at 1232.Google Scholar
See Buchanan, Brock, , supra note 2, at 117–22.Google Scholar
For example, Annas, G.J., “The Health Care Proxy and the Living Will,” N. Engl. J. Med., 324 (1991): 1210–13.CrossRefGoogle Scholar
See, for example, Suhl, J. et al. , “Myth of Substituted Judgment: Surrogate Decision Making Regarding Life Support is Unreliable,” Archives of Internal Medicine, 154 (1994): 90–96; and Seckler, A. et al. , “Substituted Judgment: How Accurate Are Proxy Predictions?,” Annals of Internal Medicine, 115 (1991): 92–98.CrossRefGoogle Scholar
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.CrossRefGoogle Scholar
See Cruzan, 497 U.S. at 281.Google Scholar
I serve on the ethics committee that reviewed this case.Google Scholar
I serve on the ethics committee that reviewed this case.Google Scholar
See Buchanan, Brock, , supra note 2, at 116.Google Scholar
Baron, C., “On Taking Substituted Judgment Seriously,” Hastings Center Report, 20, no. 5 (1990): 7–8.CrossRefGoogle Scholar
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.Google Scholar