Guardians operating under the doctrine of expanded
substituted judgment may base their decisions on the incapacitated person's prior general statements, actions, values, and preferences (Forlik & Whitten, 2012).
72) These statutes instead implement a
substituted judgment model which relies principally on the subjective preference of the patient.
They concluded that these results demonstrate the difficulty in obtaining true
substituted judgment.
The Accuracy of
Substituted Judgments in Patients with Terminal Diagnoses, 128 ANNALS INTERNAL MED.
Consequently, although some courts claim to apply the
substituted judgment standard in these cases, (108) others properly decline to engage in the fiction of doing so.
Regardless of that, if the case were such that she was fully lacking the capacity to make a decision about her medical treatment, we are under the obligation to respect the
substituted judgment of her health care proxy.
Thus,
substituted judgment is not a helpful criterion for making a surrogate decision for persons under the age of 18 because of the child's limited ability or inability to communicate and/or the absence of a fully-developed value system.
Many view the two standards --
substituted judgment and best interests -- as part of a continuum.
ultimately applied the
substituted judgment doctrine and authorized the transplant because the court believed it was what the incompetent would do if he were able to make the decision himself.
The
substituted judgment standard seeks to determine what the impaired individual would choose if she were capable of decision-making and aware of her current circumstances.
The
substituted judgment standard takes a middle course, allowing the surrogate to form her own conclusion about what the patient would have wanted from his prior statements or, if he has not explicitly expressed a preference, from what the surrogate knows about the patient's values, beliefs, personality, and prior lifestyle.
166 (2006): 493-97) show that patient-designated and next-of-kin surrogates incorrectly identify patients' end-of-life wishes one-third of the time, which calls into serious question whether
substituted judgment is ethically appropriate.
