Substituted judgment is a principle that allows a surrogate decision-maker to attempt to establish, with as much accuracy as possible, what decision an incompetent patient would make if he or she were competent to do so.
48) The varying forms of guardian statutes are divisible into three categories of decision-making approaches: best interest,
substituted judgment, and silence.
Substituted judgment has significant though frequently overlooked limitations.
The Massachusetts Appellate Court applied the
substituted judgment doctrine in In re Moe (1991).
However much we might welcome the standard of
substituted judgment as an extension of patient autonomy, we also must be aware of the potential for the radically different understandings of the patient and his or her wishes that give rise to the sort of conflict that arose between Michael Schiavo and the Schindlers.
It is not the "Vulcan mind meld" of pure
substituted judgment.
175) In determining the patient's
substituted judgment, the factors considered were the patient's expressed preferences, his religious beliefs relative to this type of decision, the impact on the patient's family, the probability of adverse side effects, the prognosis of the patient with and without treatment, and how the patient would view his present and future incompetence.
First, it examines why one of the standards employed by many courts facing this issue--the
substituted judgment standard--is patently inappropriate for most situations of this nature.
In view of my medical training and current personal opinion, had I been on an ethical committee (granting there ever was one) advising the physician on this issue, I would--respecting my grandmother's autonomy as expressed by the
substituted judgment of her surrogate agent and consistent with the principle of nonmaleficence--recommend that her life-support be disconnected and she be allowed to die in her own house, according to her wishes and life values.
Theoretically, surrogates are to make decisions using one of two criteria:
substituted judgment or best interest standard (Beauchamp & Childress, 1994).
56) Some versions of
substituted judgment authorize a surrogate decisionmaker to use such data in order to make a best approximation of what the patient would want, if competent.
146) The
substituted judgment standard, which originated in English courts, permits the fact fender to determine what the incompetent or minor would have chosen had she been confronted with the decision, and act upon that finding.
