It can be argued that courts could play a legitimate role if the substituted judgment
standard were appropriate in these situations.
A loose substituted judgment
standard would acknowledge, as the Wendland court did, that PVS and MCS are different.
And many advance directives are simply general statements about a person's values and beliefs; as such, they supply no more guidance than the evidence supporting a treatment decision based on substituted judgment
And this was not the first case in which doubts were raised about the quality of the evidence supporting a substituted judgment
Maybe it is difficult for patients to articulate what they want for themselves, but how much harder is it For a proxy to articulate what patients would want were they competent, or, if they flout substituted judgment
and opt for the best interests standard, to articulate what they would want for someone else?
Thus a substituted judgment
is really a conditional judgment: if the person were competent, then he or she would decide such and such.
Thus, in many real decisions, surrogates must use a combination of advance directives, substituted judgment
, and best interests reasoning - the stronger and more decisive the evidence of the patient's wishes, the more weight should be given to advance directive and substituted judgment
reasoning, the weaker and less decisive this evidence, the more weight must be given to best interests reasoning.
7] These empirical data threaten the theoretical assumptions that preferences for life-sustaining therapies can be made reliably in advance of illness, and that surrogates can act accurately under a substituted judgment
While many state statutes expect appointed surrogates to exercise some form of substituted judgment
, at least two states (Florida and Kentucky) require agents to consider three factors in making a surrogate decision: the recommendations of the patient's physician, the wishes of the patient and the patient's best interests.
Since the best-interest standard is invoked when personally grounded decisions are not possible, the rationale for surrogate decisionmaking does not rest - as it does in substituted judgment
- in extending the notion of respect for patients' right to control their own lives, but rather in protecting the welfare of vulnerable people.
Thus, as the Doe court recognized, substituted judgment
in such cases is "a legal fiction.
Most states provide some variant of two basic standards to guide surrogates: the substituted judgment
standard and the best interest standard.