the individual while applying the legal substituted judgment
(19) Even under a best-interest decision-making framework, the OPPG standards require the guardian to consider the ward's past practice and weigh evidence of their choices, which are concepts more properly related to substituted judgment
Filling the Gap of Substituted Judgment
Proceedings with the Implementation of a Medical Review Team
Strict substituted judgment
. Guardians operating under the doctrine of strict substituted judgment
must base their decisions on the incapacitated person's prior specific directions, expressed desires, and current competent opinions (Forlik & Whitten, 2012).
was critical of reading language or concepts into a statute in order to do justice based on the express limitations placed on the judiciary to "avoid judicial legislation." (183) After an extensive review of the development of the common law regarding the application of substituted judgment
to make gifts on behalf of individuals who previously had capacity, the court pointed out that there has been no similar development of the law for individuals under an SCPA 17-A guardianship.
The health care team's question involves not just FB's substituted judgment
, but also the impact of caregiver burden on it.
Where a competent surrogate decision-maker makes a voluntary and informed refusal of treatment, the physician must not treat the patient unless the physician believes that the surrogate decision-maker is acting outside his or her authority (for example, is making a substituted judgment
that is not in accordance with the patient's previously expressed wishes or is making a best interests judgment that is not in the patient's best interests) and the physician has sought and been given authorization from a court to treat the patient.
The Massachusetts Appellate Court applied the substituted judgment
doctrine in In re Moe (1991).
Clinically, despite ethical and legal theory to the contrary, (39) medical decision making for patients unable to speak for themselves is generally a messy mixture of best interests, substituted judgment
, and more.
I begin by rejecting a mode of analysis that some courts have employed in the past to resolve this issue--the doctrine of "substituted judgment
." I then show how the ultimate right of parent-guardians to tender proxy consent can be derived from the other traditional framework courts employ in this area--the "best interests" of the prospective donor.
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).
Both of the common standards governing decisionmaking on behalf of formerly competent patients -- "substituted judgment
" and "best interests" -- display strong preoccupation with the patient's putative desires even when she never prepared advance instructions.
: how accurate are proxy predictions?
Surrogate decision makers are to use substituted judgment
whenever possible to make decisions that the patient would make for himself or herself if he or she were able.