Substituted judgment for the never‐capacitated: Crossing Storar's bridge too far

Bioethics ◽  
2021 ◽  
Author(s):  
Jacob M. Appel
Keyword(s):  
Substituted Judgment

Trial by Triad: substituted judgment, mental illness and the right to die

2021 ◽  
pp. medethics-2020-107154
Author(s):  
Jacob M Appel
Keyword(s):  
Depressive Symptoms ◽  
Depressive Disorders ◽  
Substituted Judgment ◽  
Diminished Capacity ◽  
Accepted Standard ◽  
The Usa ◽  
Aid In Dying ◽  
Incapacitated Patients ◽  
The Right

Substituted judgment has increasingly become the accepted standard for rendering decisions for incapacitated adults in the USA. A broad exception exists with regard to patients with diminished capacity secondary to depressive disorders, as such patients’ previous wishes are generally not honoured when seeking to turn down life-preserving care or pursue aid-in-dying. The result is that physicians often force involuntary treatment on patients with poor medical prognoses and/or low quality of life (PMP/LQL) as a result of their depressive symptoms when similarly situated incapacitated patients without such depressive symptoms would have their previous wishes honoured via substituted judgment. This commentary argues for reconsidering this approach and for using a substituted judgment standard for a subset of EMP/LQL patients seeking death.

Virtue Ethics and Action Guidance

2021 ◽  
Vol 82 (4) ◽  
pp. 565-582
Author(s):  
Daniel J. Daly
Keyword(s):  
Virtue Ethics ◽  
Substituted Judgment ◽  
Moral Exemplars ◽  
Action Guidance ◽  
Practicable Method

Theological ethicists rarely allow the virtues to perform the heavyweight work of guiding action. This article contests this tradition and argues that, and demonstrates how, virtue ethics provides a practicable method of normative action guidance. The article contends that there are five interrelated but distinct modes of virtue action guidance. The first three modes—dialogue, emulation, and substituted judgment—invite the agent to take counsel with moral exemplars. The interrogative and discovery modes direct agents to morally deliberate using thick accounts of the virtues.

scholarly journals The Legal Characteristics of the Patient’s «Living Will»: Doctrine and Jurisprudence

Medicne pravo ◽  
2021 ◽  
pp. 52-68
Author(s):  
A. A. Lytvynenko
Keyword(s):  
Living Will ◽  
Best Interests ◽  
Legal Capacity ◽  
Undue Influence ◽  
Witness Testimony ◽  
Substituted Judgment ◽  
Civil Proceedings ◽  
Legal Document ◽  
Life Sustaining Treatment ◽  
The Will

The advance of medical technologies since the mid-20th century has enabled to prolong a patient’s life in critical situations, though not all patients would tolerate to undergo such treatment. Therefore, the legal question encompass- ing the problem was to resolve the issue of a patient’s refusal of life-sustaining treatment. Since most of such patients are usually irresponsive and lack legal capacity, a solution featuring a legal document akin to a testament or trust has been proposed in the early 70s. Upon the gist of this document, a patient having full legal capacity would anticipate his/her further incapacitation and command to conduct or refuse medical treatment. His/her will, which is reflected in a «living will» has to be notarized, and upon the jurisprudence of various countries worldwide, though not omnipresently, affirmed by a court in order to avoid fraud and satisfaction of the illegitimate interests of third parties. Despite being introduced in the 1970s, living wills are still seldomly drafted by patients. In such case, when the patient lacking a living will falls incapaci- tated, his/her legal representatives and/or the healthcare institution commence civil proceedings so as to define the future fate of the patient using the concept of a substituted judgment, constructed by the courts upon the evidence of the past beliefs and habits of the said person, which requires extensive witness testimony. Resolving the presumed will of the patient is a very complicated issue, and in terms of lack of evidence, courts are not likely to authorize ter- minating the patient’s treatment, acting with a «negative» presumption to rule so. However, courts still may rule that futile treatment is not of the best interests of the patient (which is frequent in respect with minor patients who were born with major congenital ailments). Therefore, a living will, if legitimately drafted, is considered as a firm evidence of the will of the incapacitated person to continue, or to terminate treatment. The «living will» is an entirely voluntary-drafted document and is void upon the fact of undue influence, like an ordinary testament. The intro- duction of such document into the national legislation requires adopting vari- ous legislative acts, and such document is not legally valid unless provided by appropriate legislation. A living will reflects the will of the patient, not his/her legal representatives, and may not be drafted by them. In rare exemptions, the patient, unable of writing, may dictate the will’s content to a duly authorized person (e.g., a guardianship judge, like in Italy). Thus, the approval of the living will execution is the compliance with the will of the patient concerned: his/her guardian expresses his/her will, and the court affirms it. The control- ling function of the courts is hereby apparent. All in all, the «living will» is a considerable institute of private law, enacted in various countries worldwide and has its legal prospects in Ukraine, as well.

scholarly journals On the Likelihood of Surrogates Conforming to the Substituted Judgment Standard When Making End-of-Life Decisions for Their Partner

2019 ◽  
Vol 39 (6) ◽  
pp. 651-660 ◽  
Author(s):  
Eleonore Batteux ◽  
Eamonn Ferguson ◽  
Richard J. Tunney
Keyword(s):  
Older Adults ◽  
End Of Life ◽  
Real Life ◽  
Considerable Proportion ◽  
Next Of Kin ◽  
Substituted Judgment ◽  
End Of Life Decisions ◽  
Life Decisions ◽  
The Right ◽  
Substituted Judgment Standard

A considerable proportion of end-of-life decisions are made by the patient’s next-of-kin, who can be asked to follow the substituted judgment standard and decide based on the patient’s wishes. The question of whether these surrogate decision makers are actually able to do so has become an important issue. In this study, we examined how the likelihood of surrogates conforming to the substituted judgment standard varies with individual differences in mortality acceptance and confidence in their decision making. We recruited 153 participants in romantic relationships between 18 and 80 years old from the general population. We asked them to make hypothetical end-of-life decisions for themselves and on behalf of their partner, as well as predict what their partner would do, and complete a series of questionnaires. Participants predicted that their partner would make similar decisions to their own but were more likely to accept a life-saving treatment that could result in reduced quality of life on their partner’s behalf than for themselves. Decisions made by older adults were more likely to conform to the substituted judgment standard, which is encouraging given that they are more likely to be confronted with these decisions in real life, although this was not due to differences in mortality acceptance. Older adults were also more likely to have had previous discussions with their partner and thereby know that person’s wishes and feel confident that they made the right decision, but these factors did not affect their likelihood of conforming to the substituted judgment standard. This shows that encouraging discussions about end of life among families would ease the decision process, but more work is needed to ensure that surrogates can adhere to the substituted judgment standard.

Substituting a Judgment of Best Interests: Dignity and the Application of Objective Principles to PVS Cases in the U.K.

2005 ◽  
Vol 12 (4) ◽  
pp. 335-345 ◽  
Author(s):  
Geoffrey Pradella
Keyword(s):  
United States ◽  
The United States ◽  
Legal Issues ◽  
Best Interests ◽  
Substituted Judgment ◽  
Abortion Debate ◽  
The United Kingdom ◽  
National Legislatures

AbstractThe mêlée that surrounded the last days of Terri Schiavo's life was reminiscent of a classical Greek tragedy. Much like Antigone, Ms. Schiavo became enmeshed in irresistible and opposite forces, resolved to use her situation as an arena for the determination of political and legal issues as diverse as the exercise of states' rights, the extent of individual rights, the role of the judiciary, the re-opening of the abortion debate, and the regulation of stem cell research. As Europeans watched the drama unfold, the forces at play in the United States clashed head-on, in a rhetorically inflammatory spectacle which, on this side of the Atlantic, left many aghast. Most unsettling was the prospect of individuals wielding the power of state and national legislatures in what was, ultimately, an intensely personal affair.In the United Kingdom, the struggle was a stark reminder of the differences, not only between British and American political culture, but between our approaches to legal issues which present themselves at the end of life. The existence of well-established procedures and principles, and the extensive involvement of neutral third parties and the courts in pursuit of an objective determination of an individual patient's 'best interests', are key to the conclusion that Terri Schiavo's case would have been handled at least as effectively and efficiently as it was by the courts in Florida and the United States. That issues of consent and capacity can be determined by British courts on the basis of generally applicable principles leads to the subsequent conclusion that a 'best interests' determination leaves significantly less scope for conflict than the individualistic, much more personal and determinative construct of the 'substituted judgment' test in the United States.

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