JOURNAL OF LAW AND HEALTH, Volume 7: Pages 107-130. (1992)



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        In recent years, courts have used, or attempted to use, the doctrine of substituted judgment to compel certain medical procedures upon incompetents or minors of tender years. The substituted judgment standard, as first articulated in the case of Ex Parte Whitbread in re Hinde, a Lunatic, holds that "the court will act with reference to the lunatic, and for his benefit, as it is probable that the lunatic himself would have acted had he been of sound mind."1 This case involved a petition for funds to be drawn from the surplus estate of a lunatic to support his near relatives.

        Over the years the courts have extended this doctrine to encompass medical procedures where a person, incapable of consent, can donate organs or tissues to a family member in need, or refuse medical treatment under the rubric of a "substituted judgment."2 Courts have also applied this standard to cases where a parent or guardian wishes to sterilize a retarded minor or adult.3

        In 1990, an Illinois man attempted to have this doctrine applied to a situation involving young children and a relatively new medical procedure. In the case of Curran v. Bosze,4 a father wished to compel his illegitimate three and one half year old twins to submit to a bone marrow harvesting procedure so the cells could be transplanted into his son who was dying of leukemia. The father argued that under the doctrine of substituted judgment, the children would agree to the procedure if they were old enough to make an informed rational decision. The Illinois Supreme Court rejected this premise, holding that the future intentions of three and one half year olds could not be ascertained by a court of law or anybody else, and therefore a substituted judgment standard was inappropriate. While the court did not permit this procedure in this instance, the case raises interesting questions about the application of the substituted judgment doctrine as it relates to increasing advances in medical technology.

        In many cases, courts have incorrectly applied the doctrine of "substituted judgment" to violate the bodily integrity of a minor (who is usually physically or mentally disabled), or an adult incompetent, to bring about a result which on its face seems beneficial to all involved. What courts have failed to do however, is protect the best interests of these incompetent persons and to recognize their right to be protected, especially when they cannot consent, from non-therapeutic body invasions. In this context, "best interests" are determined by weighing the risks, needs and benefits to the affected person.5 The type of "non-therapeutic" procedures to which courts typically apply substituted judgment are those which are of no physical benefit to the incompetent person, but which may benefit another person or the guardians of the incompetent individual.

        The doctrine of substituted judgment was originally applied in terms of property issues, while the best interests standard was typically applied to situations involving health interests of minors and incompetents. Over time, however, courts have come to confuse the best interest standard with the substituted judgment doctrine in certain situations and apply the substituted judgment doctrine in cases in which it is not appropriate. This misinterpretation and confusion often endangers the life and health of minors and incompetents, and places them in positions where courts and families may take advantage of their legal disability. This article will discuss the doctrine of substituted judgment in reference to these issues and examine (1) the theory of the substituted judgment doctrine; (2) the doctrine of informed consent; (3) the misapplication of the doctrine of substituted judgment to medical decisions involving minors and incompetents; (4) the confusion between the best interests standard and the doctrine of substituted judgment; and propose a possible new standard to be used in cases involving minors or incompetents facing compelled medical procedures.

       1 35 Eng. Rep. 878, (Ch. 1816)
       2 Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969)
       3 Stump v. Sparkman, 435 U.S. 349) Petition to sterilize a somewhat retarded fifteen year old approved without a hearing, without notice and without a guardian ad litem, using a mother's substituted judgment. Id. See also Wentzel v. Montgomery General Hospital, Inc. 447 A.2d 1244 (Md. 1982), cert. denied, 459 U.S. 1147 (1983). Court applies substituted judgment doctrine to authorize sterilization of an incompetent thirteen year old. Id.
       4 566 N.E. 2d 1319 (Ill. 1990)
       5 In re Jobes, 529 a. 2d 434, 457 (N.J. 1987)(quoting Martha Minow, Beyond State Intervention in the Family: For Baby Jane Doe, 18 U. MICH. J.L. REF. 933, 973 (1985)).

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(File revised 13 March 2002)