Deciding for Others: Limitations of Advance Directives, Substituted Judgment, and Best Interest

Medical ethics has traditionally been governed by two guiding, but sometimes conflicting, principles—autonomy and benevolence. These principles provide the rationale for the two most commonly used standards for medical decisionmaking—the Substituted Judgment Standard shows our concern for autonomy, whereas the Best Interest Standard shows our commitment to benevolence. Both standards are vulnerable to criticisms. Further, the principles can seem to offer conflicting prescriptions for action. The criticisms and conflict figure prominently in discussion of advance directive decisionmaking and Alzheimer's disease. After laying out each of the current standards and its problems, with Alzheimer's issues as my central concern, I offer a new standard that avoids the problems while honoring our concerns for both autonomy and benevolence.

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Harvesting Organs from Minors and Incompetent Adults to Supply the Nations Organ Drought: A Critical Review of the Substituted Judgment Doctrine and the Best Interest Standard

Indiana Health Law Review ◽

10.18060/16515 ◽

2007 ◽

Vol 4 (2) ◽

Cited By ~ 1

Author(s):

Beth A. Schenberg

Keyword(s):

Critical Review ◽

Best Interest ◽

Substituted Judgment ◽

Best Interest Standard

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Avoiding Family Feuds: Responding to Surrogate Demands for Life-Sustaining Interventions

The Journal of Law Medicine & Ethics ◽

10.1111/j.1748-720x.1999.tb01438.x ◽

1999 ◽

Vol 27 (1) ◽

pp. 74-80 ◽

Cited By ~ 12

Author(s):

Ann Alpers ◽

Bernard Lo

Keyword(s):

Decision Making ◽

Advance Directives ◽

Family Members ◽

Active Role ◽

Best Interest ◽

Ethical Guidelines ◽

Medical Decisions ◽

Case Examples ◽

Surrogate Decision ◽

Personal Community

The laws and ethical guidelines governing decision making for incompetent patients evolved from controversies in which family members refused life-sustaining interventions. These cases led to a consensus that advance directives to limit interventions should be respected and that a surrogate designated by the patient or specified by statute could refuse interventions, even when other relatives disagreed. Surrogate decision-making statutes and ethical principles about respect for delegated autonomy promote an active role for family members or other surrogates in medical decisions for incompetent patients. Inviting surrogates to participate actively in medical decisions recognizes the importance of the patient's personal community and assures that decisions will reflect the patient's own preferences and values.The standard approach to decisions for incompetent adults gives advance directives priority over a surrogate's substituted judgment, which in turn has priority over assessments of the patient's best interest. A patient may express advance directives by appointing a proxy, stating specific preferences, or articulating general values. We use case examples to illustrate the limitations of all three types of advance directives.

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The Incompetent Developmentally Disabled Person's Right of Self-Determination: Right-to-Die, Sterilization and Institutionalization

American Journal of Law & Medicine ◽

10.1017/s0098858800009862 ◽

1989 ◽

Vol 15 (2-3) ◽

pp. 333-361 ◽

Cited By ~ 1

Author(s):

William A. Krais

Keyword(s):

Developmentally Disabled ◽

Self Determination ◽

Right To Die ◽

Constitutional Rights ◽

Best Interest ◽

Substituted Judgment ◽

Legal Fiction ◽

The Disabled ◽

Life Sustaining Treatment ◽

The Right

The developmentally disabled, specifically those mentally incompetent from birth, are entitled to a full panoply of constitutional rights and protections. These rights include the right to terminate life-sustaining treatment, the right of procreative integrity and the right not to be involuntarily institutionalized. However, the mentally incompetent developmentally disabled are generally unable to exercise these rights. This Note asserts first that proper procedural safeguards are necessary to guarantee the exercise of these constitutional rights by the incompetent disabled individual. Second, the Note focuses upon how best to preserve the disabled person's autonomy. The Note subsequently rejects the substituted judgment standard as a legal fiction, and endorses the best interest test which necessarily comports with the evidence, and properly accounts for the disabled person's incompetency.

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