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



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        The basic problem courts have with the application of the substituted judgment doctrine in cases involving minors and the mentally incompetent is that is is frequently confused with the best interests standard. The best interests standard allows decisions to be made which promote a patient's best interests. This standard is usually applied in terms of beneficence and looks to consequences which will benefit a minor or incompetent.91 Alternatively, "[s]ubstituted judgment is an effort to make the decision the person would have made if competent. As we have seen time and time again, subjects and patient do not always make the decisions that others feel are in their best interests."92

        Even leading authorities on medical ethics, however, have blurred the distinction between the two standards. According to Paul Applebaum, Charles Lidz and Alan Meisel;

All surrogate decisions makers are, in a general way, under a duty to act in the best interest of incompetent patients. The difficulty with the best interest standard is not in the statement of it but in giving content to it. The substituted judgment approach is, in fact, one way of doing so. That is a surrogate on the basis of instructions - written or oral, express or implied - is seeking to implement the patient's best interests as the patient would have defined them. Thus, the substituted judgment approach is merely one way in which the best interests standard is given content.93

D. Don Welch criticizes this argument in his article "Walking in Their Shoes: Paying Respect to Incompetent Patients." He writes:

This statement is exactly wrong. Substituted judgment is not a way of giving content to the best interests standard. Rather, best interests is one item that should be taken into account when making a substituted judgment. The inverted relationship in which these authors place the two concepts reflects their failure to acknowledge the priority that autonomy should have over beneficence in their development of a theory of informed consent.94

        Even the Strunk court reveals a confusion between the best interests standard and the substituted judgment doctrine when it places an emphasis on benefit.95 Theoretically, benefit should not be the key issue in a substituted judgment, but this is a key issue in a best interests standard.

        Other judges have made the same mistake when evaluating the substituted judgment doctrine in relation to the best interests standard. In Wentzel v. Montgomery General Hospital, Inc., Judge Smith wrote, "Each approach has its own difficulties but use of the doctrine of substituted judgment promotes best the interests of the individual, no matter how difficult the task involved may be."96 This is precisely what a substituted judgment is not designed to do. Rather substituted judgment allows a patient to make decisions that may be contrary to her best interests, based on her personal preferences.97

        A benefits test is frequently applied when equating best interests with substituted judgment. It is argued that respect for incompetents is preserved when making decisions in this manner because:

A competent person will ordinarily satisfy his wants and preferences. To the extent that the benefits rule advances the incompetent's previously expressed preferences, or procures him more of the primary goods if his preferences are unknown, there is a firm basis for ascribing to him choices which yield a net benefit.98

Here again, a presumption of best interests is intermingled with the doctrine of substituted judgment though this is theoretically incorrect.

        Perhaps the reasons for this confusion are the differing situations to which courts have applied substituted judgment. In cases involving removal of life-sustaining treatment from those which were competent but are presently in a vegetative state, courts have easily looked to a subjective standard which is based on the patients actual, expressed wishes and wants. In cases involving organ transplantation, sterilization, or refusal of life-sustaining treatment to minors or those who have never been competent, courts are confused as to what standard to apply. This may be because minors and incompetents are traditionally accorded the best interests standard in cases involving issue of informed consent.99 In an effort to allow procedures to be performed which courts view as beneficial to society rather than to the incompetent individual, judges have become uncomfortable with the best interest standard which is paternalistic in nature and benefits the incompetent. Therefore, courts have looked for another doctrine to apply and have found substituted judgment. The problem in applying this standard to those who have never been competent, however, is that the substituted judgment doctrine is not based on benefit, yet benefit cannot be overlooked in cases involving incompetents. Therefore courts have incorrectly applied the substituted judgment doctrine to cases involving minors and incompetents by combining this doctrine with a best interests beneficence analysis. This is wrong in theory and in practice and allows procedures to be performed on those typically accorded more protection under the law, which may never have been permitted had they been capable of consent. The result is to give the incompetent less protection than the competent thereby rendering nugatory the true purpose of the doctrine.

       91 D. Don Welch, Walking in their Shoes: Paying Respect to Incompetent Patients, 42 VAND. L. REV 1617, 1629 (1989).
       92 Id. at 1629.
       93 Id. at 1629 (citing P. APPLEBAUM, C. LIDZ & A. MEISEL, INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE 99 (1987)) (emphasis in original) (footnote omitted).
       94 Id. at 1630.
       95 Strunk, 445 S.W.2d at 148, Justice Day, dissenting In re Guardianship of Pescsiski, 226 N.W.2d 180,182 (Wis. 1975) wrote: The court in that case [Strunk] did find, based on the testimony of a psychiatrist, that while the incompetent had the mental age of six, it would be of benefit to him to keep his brother alive so that his brother could visit him on occasion; I would regard this as pretty thin soup on which to base a decision on whether or not the donee is to be permitted to live.
       96 447 A.2d at 1259.
       97 In re Guardianship of Roe, 421 N.E.2d 40, 59-60 n.20 (Mass 1981).
       98 Robertson, supra note 33, at 64 (footnote omitted). "Primary goods are 'things that every rational man is assumed to want.'" Id. at 64 n.94.
       99 Welch, supra note 91, at 1617.

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