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



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        In order to alleviate the confusion surrounding the application of the substituted judgment doctrine to cases involving minors and incompetents, a new standard must be developed to apply to these particular circumstances. This new standard would be applied in cases involving compelled medical procedures to be performed on minors and incompetents which are not life saving or life prolonging. This standard will cover situations similar to Curran, Strunk and Wentzel, but will not apply to cases such as Saikewicz, where the medical procedure is, in fact, life saving or life prolonging and perhaps a basic best interests standard should be applied. Nor will this standard apply to cases such as Cruzan where a person who was once competent has expressed beliefs and wishes and a substituted judgment may be ideal. This standard will not be applicable to cases involving fetal organ and tissue donation or anencephalatic babies. These issues are best left to another discussion as they involve the rights of the unborn and complicated issue of brain development and survival which are not addressed in this discussion. Rather, this standard would be implemented to protect the young and the incompetent from abuse, and to keep parents and courts from placing less value on the life of an incompetent.

        This new standard begins with the proposition that substituted judgment can never be used in cases involving minors and the mentally deficient. In theory and by definition, substituted judgment can only be applied in situations where persons have developed a system of judgment in addition to beliefs and ideals. This can never be true in cases of very young or permanently incompetent persons.

        The second element of this proposed standard involves a presumption that no compelled medical procedure is in a minor's or incompetent's best interests.100 Although several cases merely brush over this fact, all surgery has inherent risks, and these risks may be magnified where a person is too young or unable to understand the procedure. Second, pain may be more difficult to detect and handle in cases of the young or mentally deficient as they may not be able to express and identify how they hurt.

        Since this standard will be based on a presumption that no compelled procedure is in best interests, one can only rebut this presumption by clear and convincing evidence. In essence, this makes the standard a "higher scrutiny best interests standard." The proof required will be much more than an amorphous psychological benefit which may inure upon the minor or incompetent who may undergo the medical procedure. While psychological benefit may be real, there are different levels of "psychological benefit" and specific facts must be considered in each case. This may allow for certain cases of sterilization where it can be proven by several sources that it is in the incompetent's best interests, or other possible procedures not contemplated by this article which may even pass muster of a higher scrutiny best interests test.

        Although family may seem like the ultimate decision maker in cases such as the ones mentioned in this article, cases like Strunk have shown that parents may not always be disinterested parties. Parents sometimes look out for their own interests or the interests of others when determining the fate of their incompetent child or adult. Therefore, there must be more sources than just the family to turn to in cases such as these. Although courts already appoint guardians ad litem, deference is usually paid to parents or guardians in cases involving substituted judgment. Since it is clear that substituted judgment must not be applied in these cases, it follows that parent's or guardian's decisions should not be given greater weight than the decision of the guardian ad litem. Additionally, medical doctors and psychologists should have a great deal of input into these decisions, as should medical ethicists. The combination of the family, the legal community, the medical community and the philosophical community with a higher scrutiny level should best protect the interests of minors or incompetents in these situations. The strong presumption approach is still necessary in combination with several decision makers as these decisions must still be made based on benefit to the individual and not to "society" as a whole. The presumption approach eliminates room for abuse in these situations.

        Decisions involving organ and tissue donation frequently must be made quickly. Nevertheless, courts should not disregard the safeguards built into this proposed standard but must exercise them expeditiously. Priority should be given to these types of cases, and our medical or legal systems should cooperate in procuring the proper experts. Sometimes this may fail, but this failure should be viewed in the same way as we view our criminal justice system. The margin of error should be on the side of the incompetent just as it is on the side of the criminal defendant. With these safeguards in place, incompetents will not be treated as tissue and organ banks used to benefit those considered more valuable to society.

       100 Walter M. Weber, Substituted Judgment Doctrine: A Critical Analysis, ISSUES IN LAW AND MEDICINE VOL. 1 NUMBER 2 131 (1985). Weber makes a similar proposal which he labels the "presumptions approach" which basically states that the incompetent individual is presumed to desire life. Id. at 154 Weber argues:

The incompetent patient, maintained by certain therapies, is presumed to desire life. To the extent that physicians and caregivers nevertheless proceed to `unplug' incompetents, this standard will act only to prevent the official devaluation of the lives of incompetents to dispose of their wards ... Thus, the presumptions approach may reduce the efficient allocation of resources. While this public goal may suffer, the social goal of upholding life gains. The presumptions approach would manifest the state's special solicitude for its weaker members and effectively proclaim the great respect held for all human life.

Id. at 155. The standard proposed in this article, however, protects not only the sanctity of life of the incompetent, but her right to bodily integrity and her right to procreational autonomy.

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(File revised 16 March 2002)