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Commentary
Substituted judgment in real life Rebecca Dresser In ‘Clarifying Substituted Judgment: The Endorsed Life Approach,’ David Wendler and John Phillips present the latest in a series of attempts to develop an adequate theoretical basis for the substituted judgment standard.1 Experience with the conventional interpretation—decide as the patient would if she were competent—has revealed problems in its application. Most notably, empirical data show that surrogates often have mistaken beliefs about a loved one’s treatment views. In such cases, treatment decisions based on the substituted judgment standard fail to reflect the patient’s true treatment preferences. If substituted judgment cannot replicate the patient’s autonomous choice, how can we justify its use? Wendler and Phillips suggest that we adopt the ‘endorsed life’ interpretation of the standard. This interpretation aims to respect a patient’s autonomy by selecting the treatment decision ‘that best promotes the course of life that the patient valued.’1 Wendler and Phillips argue that their approach is the most defensible response to criticism of the substituted judgment standard. I am not so sure about that. First, I question the authors’ claim that abandoning substituted judgment would leave us with unacceptable alternatives. Wendler and Phillips reject one such alternative, the best interest standard, because it is too difficult to determine a patient’s best medical interests. And once best interest is rejected, they say, we lose the patientcentred approach to decision-making altogether. Treatment decisions for incompetent patients must instead reflect what is best for others, such as family members, clinicians and other patients. Wendler and Phillips exaggerate the difficulty of applying the best interest standard. They also ignore its longstanding and widespread use. For decades, the best interest standard has governed treatment decisions for children, incompetent adults who have never been competent, and incompetent adults whose prior preferences and values are unclear. When prior preferences cannot resolve a treatment question, the focus Correspondence to Professor Rebecca Dresser, Department of Law, Washington University, St Louis, MO 63130, USA; [email protected]
turns to the patient’s welfare. Sometimes, it is difficult to determine what treatment option would be best for a patient, but that difficulty need not, has not and should not lead us to abandon the patient-centred approach to treatment decision-making. Second, Wendler and Phillips contend that the endorsed life approach is superior to two other recent proposals offering ways to think about the substituted judgment standard. Daniel Brudney urges surrogates to make treatment decisions based on their understanding of who the patient was as an individual.2 Wendler and Phillips label Brudney’s emphasis on authenticity problematic because it could support choices that are inconsistent with the life the person valued. This would occur when a person’s actual choices deviated from the ones he believed he ought to make. The endorsed life approach instructs surrogates to make choices that reflect the person a patient wished to be, rather than the person he was. In this context, the authors claim, ideals, rather than actions, should be given greater normative weight. But why should this be the case? One could argue that the way a person lived is the most genuine indication of the life that person valued. Evidence about a patient’s aspirational life would also be more susceptible to distortion and misinterpretation than would evidence about her actual life. Competent patients make treatment choices that reflect their actual, not always admirable, values and preferences. Why should surrogates depart from this model? Wendler and Phillips also contend that the endorsed life approach is better than the ‘substituted interests’ approach Daniel Sulmasy and Lois Snyder propose.3 Like Brudney, these authors advise surrogates to make decisions that reflect patients’ authentic values and preferences. Wendler and Phillips object to the substituted interests approach because it also allows surrogates to consider objective factors in determining patients’ interests. Considering objective factors like pain and distress is consistent with the original understanding of the substituted judgment standard. Wendler and Phillips omit an important feature of the early court rulings on the standard. The rulings covered an incompetent individual’s surplus income.
J Med Ethics September 2015 Vol 41 No 9
Money could be distributed to relatives only if adequate resources remained to cover the property owner’s care.4 As Allen Buchanan and Dan Brock argue, this limitation should apply in the medical setting, too: ‘the inherently speculative nature of substituted judgment, along with the vulnerable position of the incompetent, require that substituted judgment may not be used to justify a course of action that serves the interests of others at the expense of the ward’s basic interests.’5 In real life, applying substituted judgment, as well as advance directives and the best interest standard, is messy. Surrogates making medical decisions are typically distressed family members heavily reliant on physicians for information and guidance. Family members can disagree with one another or with clinicians. If the patient is conscious, maintaining comfort becomes a major concern. In this emotional, uncertain and socially complex situation, specific interpretations of substituted judgment are unlikely to have much impact on surrogates’ choices. No matter which interpretation of substituted judgment holds sway, most surrogates and clinicians will try to respect what was important to the patient, while also protecting him from undue pain and other burdens. Surrogates should be free to make choices that reflect their understanding of the patient as an individual, but clinicians should contest decisions that would impose clear harm on patients in their incompetent state.6 Properly interpreted, the original formulation of substituted judgment is a justifiable and workable approach to decision-making for incompetent patients. Competing interests None. Provenance and peer review Commissioned; internally peer reviewed.
To cite Dresser R. J Med Ethics 2015;41:731–732. Received 1 October 2014 Accepted 17 October 2014 Published Online First 6 November 2014
▸ ▸ ▸ ▸ ▸
http://dx.doi.org/10.1136/medethics-2013-101852 http://dx.doi.org/10.1136/medethics-2014-102502 http://dx.doi.org/10.1136/medethics-2014-102503 http://dx.doi.org/10.1136/medethics-2014-102505 http://dx.doi.org/10.1136/medethics-2015-102950
731
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Commentary J Med Ethics 2015;41:731–732. doi:10.1136/medethics-2014-102504
2 3
REFERENCES 1
732
Wendler D, Phillips J. Clarifying substituted judgment: the endorsed life approach. J Med Ethics 2015;41:723–30.
4
Brudney D. Choosing for another: beyond autonomy and best interests. Hastings Cent Rep 2009;39(2):31–7. Sulmasy D, Snyder L. Substituted interests and best judgments: an integrated model of surrogate decision making. JAMA 2009;304:1946–7. Harmon L. Falling off the vine: legal fictions and the doctrine of substituted judgment. Yale L J 1990;100:1–71.
5
6
Buchanan A, Brock D. Deciding for others: the ethics of surrogate decision making. Cambridge: Cambridge University Press, 1989:117–18. Dresser R. Standards for family decisions: replacing best interests with harm prevention. Am J Bioethics 2003;3(2):54.
J Med Ethics September 2015 Vol 41 No 9
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Substituted judgment in real life Rebecca Dresser J Med Ethics 2015 41: 731-738 originally published online November 6, 2014
doi: 10.1136/medethics-2014-102504 Updated information and services can be found at: http://jme.bmj.com/content/41/9/731
These include:
References Email alerting service
This article cites 5 articles, 1 of which you can access for free at: http://jme.bmj.com/content/41/9/731#BIBL Receive free email alerts when new articles cite this article. Sign up in the box at the top right corner of the online article.
Notes
To request permissions go to: http://group.bmj.com/group/rights-licensing/permissions To order reprints go to: http://journals.bmj.com/cgi/reprintform To subscribe to BMJ go to: http://group.bmj.com/subscribe/
Commentary
Substituted judgment in real life Rebecca Dresser In ‘Clarifying Substituted Judgment: The Endorsed Life Approach,’ David Wendler and John Phillips present the latest in a series of attempts to develop an adequate theoretical basis for the substituted judgment standard.1 Experience with the conventional interpretation—decide as the patient would if she were competent—has revealed problems in its application. Most notably, empirical data show that surrogates often have mistaken beliefs about a loved one’s treatment views. In such cases, treatment decisions based on the substituted judgment standard fail to reflect the patient’s true treatment preferences. If substituted judgment cannot replicate the patient’s autonomous choice, how can we justify its use? Wendler and Phillips suggest that we adopt the ‘endorsed life’ interpretation of the standard. This interpretation aims to respect a patient’s autonomy by selecting the treatment decision ‘that best promotes the course of life that the patient valued.’1 Wendler and Phillips argue that their approach is the most defensible response to criticism of the substituted judgment standard. I am not so sure about that. First, I question the authors’ claim that abandoning substituted judgment would leave us with unacceptable alternatives. Wendler and Phillips reject one such alternative, the best interest standard, because it is too difficult to determine a patient’s best medical interests. And once best interest is rejected, they say, we lose the patientcentred approach to decision-making altogether. Treatment decisions for incompetent patients must instead reflect what is best for others, such as family members, clinicians and other patients. Wendler and Phillips exaggerate the difficulty of applying the best interest standard. They also ignore its longstanding and widespread use. For decades, the best interest standard has governed treatment decisions for children, incompetent adults who have never been competent, and incompetent adults whose prior preferences and values are unclear. When prior preferences cannot resolve a treatment question, the focus Correspondence to Professor Rebecca Dresser, Department of Law, Washington University, St Louis, MO 63130, USA; [email protected]
turns to the patient’s welfare. Sometimes, it is difficult to determine what treatment option would be best for a patient, but that difficulty need not, has not and should not lead us to abandon the patient-centred approach to treatment decision-making. Second, Wendler and Phillips contend that the endorsed life approach is superior to two other recent proposals offering ways to think about the substituted judgment standard. Daniel Brudney urges surrogates to make treatment decisions based on their understanding of who the patient was as an individual.2 Wendler and Phillips label Brudney’s emphasis on authenticity problematic because it could support choices that are inconsistent with the life the person valued. This would occur when a person’s actual choices deviated from the ones he believed he ought to make. The endorsed life approach instructs surrogates to make choices that reflect the person a patient wished to be, rather than the person he was. In this context, the authors claim, ideals, rather than actions, should be given greater normative weight. But why should this be the case? One could argue that the way a person lived is the most genuine indication of the life that person valued. Evidence about a patient’s aspirational life would also be more susceptible to distortion and misinterpretation than would evidence about her actual life. Competent patients make treatment choices that reflect their actual, not always admirable, values and preferences. Why should surrogates depart from this model? Wendler and Phillips also contend that the endorsed life approach is better than the ‘substituted interests’ approach Daniel Sulmasy and Lois Snyder propose.3 Like Brudney, these authors advise surrogates to make decisions that reflect patients’ authentic values and preferences. Wendler and Phillips object to the substituted interests approach because it also allows surrogates to consider objective factors in determining patients’ interests. Considering objective factors like pain and distress is consistent with the original understanding of the substituted judgment standard. Wendler and Phillips omit an important feature of the early court rulings on the standard. The rulings covered an incompetent individual’s surplus income.
J Med Ethics September 2015 Vol 41 No 9
Money could be distributed to relatives only if adequate resources remained to cover the property owner’s care.4 As Allen Buchanan and Dan Brock argue, this limitation should apply in the medical setting, too: ‘the inherently speculative nature of substituted judgment, along with the vulnerable position of the incompetent, require that substituted judgment may not be used to justify a course of action that serves the interests of others at the expense of the ward’s basic interests.’5 In real life, applying substituted judgment, as well as advance directives and the best interest standard, is messy. Surrogates making medical decisions are typically distressed family members heavily reliant on physicians for information and guidance. Family members can disagree with one another or with clinicians. If the patient is conscious, maintaining comfort becomes a major concern. In this emotional, uncertain and socially complex situation, specific interpretations of substituted judgment are unlikely to have much impact on surrogates’ choices. No matter which interpretation of substituted judgment holds sway, most surrogates and clinicians will try to respect what was important to the patient, while also protecting him from undue pain and other burdens. Surrogates should be free to make choices that reflect their understanding of the patient as an individual, but clinicians should contest decisions that would impose clear harm on patients in their incompetent state.6 Properly interpreted, the original formulation of substituted judgment is a justifiable and workable approach to decision-making for incompetent patients. Competing interests None. Provenance and peer review Commissioned; internally peer reviewed.
To cite Dresser R. J Med Ethics 2015;41:731–732. Received 1 October 2014 Accepted 17 October 2014 Published Online First 6 November 2014
▸ ▸ ▸ ▸ ▸
http://dx.doi.org/10.1136/medethics-2013-101852 http://dx.doi.org/10.1136/medethics-2014-102502 http://dx.doi.org/10.1136/medethics-2014-102503 http://dx.doi.org/10.1136/medethics-2014-102505 http://dx.doi.org/10.1136/medethics-2015-102950
731
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Commentary J Med Ethics 2015;41:731–732. doi:10.1136/medethics-2014-102504
2 3
REFERENCES 1
732
Wendler D, Phillips J. Clarifying substituted judgment: the endorsed life approach. J Med Ethics 2015;41:723–30.
4
Brudney D. Choosing for another: beyond autonomy and best interests. Hastings Cent Rep 2009;39(2):31–7. Sulmasy D, Snyder L. Substituted interests and best judgments: an integrated model of surrogate decision making. JAMA 2009;304:1946–7. Harmon L. Falling off the vine: legal fictions and the doctrine of substituted judgment. Yale L J 1990;100:1–71.
5
6
Buchanan A, Brock D. Deciding for others: the ethics of surrogate decision making. Cambridge: Cambridge University Press, 1989:117–18. Dresser R. Standards for family decisions: replacing best interests with harm prevention. Am J Bioethics 2003;3(2):54.
J Med Ethics September 2015 Vol 41 No 9
Downloaded from http://jme.bmj.com/ on November 19, 2015 - Published by group.bmj.com
Substituted judgment in real life Rebecca Dresser J Med Ethics 2015 41: 731-738 originally published online November 6, 2014
doi: 10.1136/medethics-2014-102504 Updated information and services can be found at: http://jme.bmj.com/content/41/9/731
These include:
References Email alerting service
This article cites 5 articles, 1 of which you can access for free at: http://jme.bmj.com/content/41/9/731#BIBL Receive free email alerts when new articles cite this article. Sign up in the box at the top right corner of the online article.
Notes
To request permissions go to: http://group.bmj.com/group/rights-licensing/permissions To order reprints go to: http://journals.bmj.com/cgi/reprintform To subscribe to BMJ go to: http://group.bmj.com/subscribe/
