Abstract
On a traditional interpretation of the substituted judgement standard (SJS) a person who makes treatment decisions on behalf of a non-competent patient (e.g. concerning euthanasia) ought to decide as the patient would have decided had she been competent. I propose an alternative interpretation of SJS in which the surrogate is required to infer what the patient actually thought about these end-of-life decisions. In clarifying SJS it is also important to differentiate the patient’s consent and preference. If SJS is part of an autonomy ideal of the sort found in Kantian ethics, consent seems more important than preference. From a utilitarian perspective a preference-based reading of SJS seems natural. I argue that the justification of SJS within a utilitarian framework will boil down to the question whether a non-competent patient can be said to have any surviving preferences. If we give a virtue-ethical justification of SJS the relative importance of consent and preferences depends on which virtue one stresses—respect or care. I argue that SJS might be an independent normative method for extending the patient’s autonomy, both from a Kantian and a virtue ethical perspective.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
See also Broström et al. (2007b, I, p. 5).
See for instance Savulescu (1999). As I use the expressions “counterfactual” and “purely hypothetical” they refer to what as a matter of fact will not obtain, in contrast with what is “hypothetical” but may obtain.
Kuczewski describes this rule or way of thinking, which according to him has dominated legal thinking, in the following way: “If the patient has not left such a document, we remain concerned to determine his/her wishes. So we proceed by means of substituted judgment” (1999, p. 32).
See Barnbaum (1999, p. 168).
If we regard a preference as essentially a disposition to act or react in the presence of certain beliefs, and if we think that dispositions always have a neurological basis (and Broström et al. seem to embrace both of these ideas), then the patient’s hypothetical preferences could, at least in theory, be reconstructed to the extent that the dispositional basis of the preference can be reconstructed. For instance, in a case of dementia the patient’s hypothetical preferences are those she would have if she were not in a state of dementia. True, in 90% of cases, or thereabouts, such patients will as a matter of fact not recover, but the theoretical question concerns whether sufficient structures have survived in their brains to make sense of the idea of a reconstruction of the disposition on a neurological basis. It is not obvious to me that this is ruled out in principle. In practice it is still impossible, but in theory such a reconstruction seems possible to the extent that the structural basis is still there or can be reconstructed.
Some may claim that the distinction between consent, or decisions, and preferences can be described as a distinction between second-order and first-order preferences. I believe that though these two pairs of distinctions sometimes overlap, this is not always the case. I may accept, and even approve of the way I work, having the kind of preferences I have—e.g. I might have stronger preferences where the well-being of my own child is concerned than I have when it comes to other people’s children without consenting, or deciding, in a way that favours my child’s well-being. Here I approve of my partial first-order preferences but make an impartial moral decision.
Indirectly, decisions may also have an important role in preference utilitarianism if people urge respect for a formerly competent patient’s hypothetical or past decisions rather than her preferences.
I treat Savulescu as a representative of the Kantian position because he focuses on autonomy in the justification of SJS.
One possibility is to acknowledge the potential for such a discrepancy between actual consent and preference but not between the idealized versions.
See also footnote 5.
References
Barnbaum, D. 1999. Interpreting surrogate consent using counterfactuals. Journal of Applied Philosophy 16: 167–172.
Beauchamp, T.L., and J.F. Childress. 2001. Principles of biomedical ethics, 5th ed. Oxford: Oxford University Press.
Broström, L., M. Johansson, and M. Klemme Nielsen. 2007a. What the patient would have decided”: A fundamental problem with the substituted judgment standard. Medicine, Health Care and Philosophy 10: 265–278.
Broström, L., M. Johansson, and M. Klemme Nielsen. 2007b. The substituted judgment standard: Studies on the ethics of surrogate decision making. Lund: Department of Medical Ethics.
Hardwig, J. 2006 (first published 1997). Is there a duty to die? In Contemporary moral problems, ed. J. E. White (8th ed.). Belmont: Thomson/Wadsworth.
Kuczewski, M.G. 1999. Commentary: Narrative views of personal identity and substituted judgment in surrogate decision making. Journal of Law, Medicine and Ethics 27: 32–36.
McPherson, C.J., K.G. Wilson, and M.A. Murray. 2007. Feeling like a burden to others: A systematic review focusing on the end of life. Palliative Medicine 21: 115–128.
Pruchno, R.A., E.P. Lemay, L. Feild, and N.G. Levinsky. 2005. Spouse as health care proxy for dialysis patients: Whose preferences matter? The Gerontologist 46: 812–819.
Pruchno, R.A., E.P. Lemay, L. Feild, and N.G. Levinsky. 2006. Predictors of patient treatment preferences and spouse substituted judgments: The case of dialysis continuation. Medical Decision Making 26: 112–121.
Savulescu, J. 1999. Rational desires and the limitation of life-sustaining treatment. In Bioethics: An anthology, ed. H. Kuhse, and P. Singer, 533–550. Oxford: Blackwell.
Tonelli, M.R. 1997. Substituted judgment in medical practice: Evidentiary standards on a sliding scale. Journal of Law, Medicine & Ethics 25: 22–29.
Wolff, J. 1996. An introduction to political philosophy. Oxford: Oxford University Press.
Wrigley, A. 2007. Proxy consent: Moral authority misconceived. Journal of Medical Ethics 33: 527–531.
Acknowledgements
My thanks to Naomi Clyne, Paul Robinson and two anonymous reviewers for Medicine, Health Care and Philosophy for helpful comments and suggestions.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Egonsson, D. Some comments on the substituted judgement standard. Med Health Care and Philos 13, 33–40 (2010). https://doi.org/10.1007/s11019-009-9194-y
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11019-009-9194-y