The law presumes that all persons are capable of guiding their own day-to-day lives, but the presence of various types and degrees of mental disability or mental incapacity can call this capability into question. When competency is convincingly demonstrated to be impaired, to the extent that decision-making requires input, persistent guidance, or outright control by some external entity, the civil courts might elect at that juncture to impose some form of “substituted judgment.” Substituted judgment undertakes to address three broad and potentially overlapping decision-making domains, described here with brief accompanying examples: prior judgment (regarding wills and other advance directives), present judgment (regarding informed consent and the corresponding right to refuse treatment), and future judgment (regarding guardianship and conservatorship). This chapter will explore each of these domains in detail, identifying the contributions mental health professionals can make to reliable and valid forensic assessment in this regard.

Bouvia v. Superior Court was a California decision from 1985 in which a twenty-eight-year-old quadriplegic woman sought to have a feeding tube removed and to refuse any further lifesaving measures. The original opinion held that a competent adult has the right to refuse life-sustaining treatment but its description of “the ignominy, embarrassment, humiliation and dehumanizing aspects created by her helplessness” prompts this chapter’s authors to question whether the original court supported Bouvia’s decision because of her right to choose or because the justices believed her life was not, in fact, worth living. Professor Barry Furrow proffers a poetic feminist rewrite focusing on the factors that were important to Bouvia, rather than her inability to perform the roles that concerned the original court. Furrow also considers whether recognizing an autonomy “right” in this case ignores the larger issue of lack of resources to support disabled people. Professor Joan Krause’s commentary illuminates the original court’s decision to focus on the principle of personal autonomy to resolve this dispute - and thus to ignore any broader public responsibilities to the disabled community.

The focus in modern bioethics on the importance of patient autonomy – with its emphasis on informed consent and patient rights – has transformed medical practice and clinical research. We analyze the concept of autonomy and distinguish two ways in which autonomy is morally important for bioethical questions. We discuss respect for autonomy and its relationship to rights before delineating a taxonomy of ways in which someone’s autonomy can be interfered with. We evaluate two justifications for interfering with someone’s actions: paternalistic justifications and prevention of harm to others. Respect for autonomy grounds the requirement to obtain consent from competent patients and research participants. We provide a detailed analysis of the conditions for valid consent. The last part of our ethical analysis discusses surrogate decision-making for those who lack competence to decide for themselves. Finally, we apply our theory to the right to refuse medical treatment and the ethics of direct-to-consumer advertising of pharmaceuticals.