One of the great games that judges play is to act as if their decisions are based on objective standards. For understandable reasons,judges prefer that their decrees be seen as resting on accepted principles of law rather than on a judicial choice between two competing,plausible opinions. One such accepted principle has been that decisions giving consent for medical treatment of incompetent patients should be made to serve the "best interests" of the patients.' In recent years,courts increasingly have used a new, seemingly less objective standard called "substituted judgment" to replace the best interests standard in certain situations. Under this new standard, a court substitutes the judgment of a third party for that of the incompetent patient. The third party tries to make the decision the incompetent patient would have made if competent. The Supreme Court of New Jersey has taken the lead in this emerging trend with the decisions in In re Conroy and its progeny, developing an analytical scheme that incorporates both the best interests standard and the substituted judgment standard depending on the facts of particular cases.
The thesis of this Essay is that the limited recognition of the substituted judgment standard should be expanded to the point that best interests considerations are understood to be only an ingredient in substituted judgment decision making. The argument involves two phases.The first phase of the argument is to ask and answer three questions:(1) Why do we value informed consent? (2) What is the meaning of the"incompetence" exception to the requirement of informed consent? (3)What do the answers to these first two questions tell us about the character of third-party consent, when a particular patient has been found to be incompetent? This line of questioning leads to a conclusion that considerations of substituted judgment should be given a clear priority over considerations that traditionally have been labeled the patient's best interests.
D. Don Welch,
Walking in Their Shoes: Paying Respect to Incompetent Patients,
42 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol42/iss6/3