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



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        In 1816, Lord Eldon created the doctrine of substituted judgment to permit an incompetent person, Hinde, to grant an allowance to his near relative from the surplus of his estate.6 It has been argued that the creation of this doctrine was, in itself, a legal fiction and that Lord Eldon established it to allow the preservation of the law of property while achieving the desire to grant money to the lunatic's niece.7

        Ironically, while Lord Eldon's doctrine of substituted judgment purports to "act as the lunatic would have acted if of sound mind."8 Lord Eldon seemed to have made no effort to discover what had once been in Mr. Hinde's mind. The Whitbread decision does not mention any evidence of Mr. Hinde's prior spending practices or his propensity for making gifts."9 Instead Lord Eldon looked to an objective point of view and found a "generic, reasonable lunatic - a generic reasonable lunatic giving his money away."10

        While already on shaky ground in the 19th century, the doctrine found its way into American law and eventually into the area of informed consent in medical cases. It is here that the "fiction" of substituted judgment has reached its most dangerous incarnation.

[M]any equity courts assumed that the authority to remove vital tissue, to withhold or withdraw life-support systems, to sterilize the incompetent, and to force psychotropic drugs on mental patients over their vocal dissent. Arguably some of these courses of medical treatment directly harmed the incompetent and directly or indirectly benefitted others."11

        In theory, the doctrine of substituted judgment looks to the individual to determine what she would do in a particular situation if she were competent. This doctrine works well in situations where a person, once competent, is rendered incompetent to consent to medical procedures through injury or disease. The once competent person has developed a system of morals and beliefs, and patterns of behavior which the court can examine when evaluating what she would do in a particular situation.12 The Supreme Court most recently articulated and accepted this standard in Cruzan v. Director, Missouri Department of Health.13 The Court, however, went on to hold that in cases involving a petition to terminate artificial hydration and nutrition of a patient, the states did not have to accept the substituted judgment of a family member absent clear and convincing evidence of the patient's wishes.14

        It is interesting to note, that in a case where the doctrine of substituted judgment can be applied appropriately, the Supreme Court permits the requirement of clear and convincing evidence to assure that the wishes articulated are that of the patient and not of the family, no matter how well motivated the family's decision may be. The Cruzan decision illustrates the Supreme Court's acceptance of a stringent interpretation of this standard even in a situation where there is some evidence of a patient's desires. In theory, the substituted judgment doctrine should only be applied in cases like Cruzan where a person, once competent, has made some statements as to her beliefs regarding a particular situation and has developed a life which can be used as frame of reference to determine her wishes.

        In In re A.C., the District of Columbia Court of Appeals recognized that

Most people do not foresee what calamities may befall them, much less do they consider, or even think about, treatment alternatives in varying situations. The court in a substituted judgment case, therefore, should pay special attention to the known values and goals of the incapacitated person and should strive, if possible, to extrapolate from those values and goals what the patient's decision would be.15

        This definition should set the outer limits of the substituted judgment doctrine: Looking to a particular individual's known value system to determine her decision in a particular situation. Instead, courts have tragically misapplied the doctrine of substituted judgment to achieve what judges believe to be "beneficial" decisions in cases where consent cannot be obtained. It is here that the doctrine of substituted judgment and the standard of best interests becomes confused. Substituted judgment is a subjective standard, and therefore can only apply to persons who have been competent at one time. The best interests standard, however, is to be applied to the minor or incompetent who has never been competent and is, therefore, entitled to more protection under the law.16

       6 Whitbread, 35 Eng. Rep. at 878.
       7 Louise Harman, Falling off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 YALE L.J. 1, 22 (1990)
       8 Whitbread, 35 eng. Rep. at 878.
       9 Harmon, supra note 7, at 23.
       10 Id. at 23 (quoting John A. Robertson, Organ Donations by Incompetents and the Substituted Judgment Doctrine, 76 COLUM. L. REV. 48, 61 n. 73 (1976)).
       11 Id. at 60.
       12 See generally Cruzan v. Director, Missouri, Dept. of Health, 497 U.S. 261 (1990).
       13 Id.
       14 Id. at 269.
       15 In re A.C., 573 A.2d 1235, 1250 (D.C. App. 1990). Hospital sought authority to perform caesearean delivery of terminally ill patient's baby. Tragically, substituted judgment may have been incorrectly used in this case because patient may, in fact, have been competent to decide. Id. at 1253.
       16 See generally Mills v. Rodgers, 457 U.S. 291 (1982). Mental patients who were institutionalized were forced to accept unwanted treatment with anti-psychotic drugs. Court recognized a Massachusetts case which states that liberty interests of person adjudicated as incompetent are broader than those protected directly by the Constitution of the United States. Id. at 303.

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