Academic journal article Issues in Law & Medicine

Is 'Substituted Judgment' a Valid Legal Concept?

Academic journal article Issues in Law & Medicine

Is 'Substituted Judgment' a Valid Legal Concept?

Article excerpt

In November 1988, Carrie Coons of Rensselaer, New York, suffered a massive stroke and slipped into a coma. Doctors inserted a feeding tube to provide her nourishment; doctors also abandoned hope. They described her condition as an irreversible vegetative state.

Apparently without hope, Carrie's sister sought a court order permitting physicians to withdraw the feeding tube. Based on evidence that Carrie would have wanted the feeding tube withdrawn, the New York Supreme Court granted permission.

Over the weekend of April 8-9, 1989, Carrie Coons, the victim of a massive stroke, lying helpless in an irreversible vegetative state, woke up. When doctors asked if she wished to have the feeding tube removed if she slipped back into a coma, Carrie replied, "These are difficult decisions," and fell asleep. The news accout noted that her doctors, lawyers, and sister are baffled.(1)

The central truth remains. Ironically, it comes from the lips of one given up for dead by the medical profession and assigned by the courts to a death by starvation. Indeed, these are difficult decisions for the courts. They place before us a nearly impenetrable, pathless thicket through which the courts are asked to journey. Carrie Coons reminds us that courts are composed of mortals and that the medical profession upon which we so faithfully rely because of the immense good it can do, is still groping to understand. Carrie Coons reminds us that we have not yet found our way.

That medicine can now reclaim life from a once sure death is nearly a cliche. For patients whose lives are restored to fullness by such technology, we offer nothing but praise for its advent. But we are as children about the technology, in awe over the good it can do, but unable to determine in advance when a greater harm is produced by its improvident use or even to understand what we have done and are capable of doing.

In the United States, we find ourselves particularly perplexed. "No other country goes to nearly such lengths to preserve life. Japanese surgeons perform no organ transplants. In Britain kidney dialysis isn't generally available to anyone over fifty-five through the National Health Service."(2) Because we do not turn away from the greater technology, we face the deeper dilemma.

This article discusses the viability of the doctrine of substituted judgment. In our continuing effort to find the path through the thicket, substituted judgment has provided a direction. The author argues, however, that substituted judgment is not the answer, but instead leads falsely, taking us deeper into the thicket, where danger lurks. This conclusion is one at which the author has not arrived easily. The author's personal preference often favors the result reached by advocates of substituted judgment. But this author is unable to lend his assent to a doctrine that, to reach its end, requires wholesale mutations of the principles of law on which it rests.

Substituted Judgment: Its Legal Pedigree

Property Cases

Substituted judgment proceeds from the notion that a court may act on behalf of a person who is incompetent by attempting to decide for him as though he were competent. The doctrine found its first expression in the English case Ex parte Whitbread in re Hinde, a Lunatic.(3) The court allowed the property of an incompetent person to be employed for the support of his relative "because the Court will not refuse to do, for the benefit of the Lunatic, that which it is probable the Lunatic himself would have done."(4)

Whitbread provides a basis for a court assuming decision-making authority over an incompetent person's property. Interestingly, its reasoning is virtually impossible to distinguish from a focus on best interests and the application of the reasonably prudent person standard.(5)

What is the best interests standard? As its name implies, the best interests test requires the decisionmaker to choose a course of action that is in the ward's best interests. …

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