Is 'substituted judgment' a valid legal concept?

• Author: Robertson, Edward D., Jr.

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 Based on evidence that Carrie would have wanted the feeding tube withdrawn, the New York Supreme Court granted permission.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. Although some argue that this standard is an objective one,(6) the standard obviously requires some subjective analysis of the ward's best interests.(7) In this sense it can be difficult to manage. Courts have ordered blood transfusions for infants over the religious objections of their parents(8) and have permitted the removal of a kidney from an incompetent person for transplant into his brother.(9) Each decision was based on the ward's best interests.(10) In its application, however, best interests has generally shown a prejudice in favor of treatment and in the preservation of life.(11) This is consistent with its focus on the protection of the ward's best interests.

Transition to Medical Treatment Issue

The application of substituted judgment to medical treatment issues has been the product of two transitions, one external and one internal. The external transition is an obvious one; courts chose to apply the doctrine to medical care decisions relating to persons who are incompetent. Internally, the transition was far more subtle. Courts shifted their focus "from the protection of interests to the protection of rights, . . . ."(12) While carefully claiming noble ancestry through Whitbread, advocates of substituted judgment were less careful in adhering to the principles upon which Lord Eldon based his decision.

The legal underpinning of substituted judgment is the notion that a court merely voices the incompetent person's decision, announcing the decision the person would have reached if competent.(13) The decision is not made based on the ward's best interests, but as an expression of the ward's supposed right to decide. On this basis, the doctrine collects all of those broad, decisional rights available to competent persons and assumes that those rights apply with equal force to persons who are incompetent. It further permits a decision by assuming that the incompetent person exercises those rights in the same manner as a competent person. This "logical" progression is breathtaking.

The Rights Upon Which Substituted Judgment Depends

Informed Consent

The common law recognizes the right of individual autonomy over decisions relating to one's health and welfare. "The right of self-determination and individual autonomy has its roots deep in our history."(14) From this root of autonomy, the common law developed the principle that a battery occurs when a physician performs a medical procedure without valid consent.(15) Informed consent arose in recognition of the value society places on a person's autonomy and as the primary vehicle by which a person can protect the integrity of his body.(16)

If one can consent to treatment, one can also refuse it. Thus, as a necessary corollary to informed consent, a person's right to refuse treatment arose. "The patient's ability to control his bodily integrity . . . is significant only when one recognizes that his right also encompasses a right to informed refusal."(17)

The critical word, of course, is informed.

There are three basic prerequisites for informed consent: [1] the

patient must have the capacity to reason and make judgments, [2]

the decision must be made voluntarily and without coercion, and

[3] the patient must have a clear understanding of the risks and

benefits of the proposed treatment alternatives or nontreatment,

along with a full understanding of the nature of the disease and

the prognosis.(18)

Competent persons thus have the right to choose a course of treatment or nontreatment based on a full understanding of their options. Thus, when a doctor informs the patient of the need for one procedure, but subsequently performs another, without allowing the patient the opportunity to make the decision, the physician may be liable for battery even though the procedure is performed without negligence.(19)

The Right to Privacy

A right to privacy is not expressly provided by the U.S. Constitution. In Griswold v. Connecticut,(20) however, the United States Supreme Court found a broad right to privacy lurking in the shadow of the Bill of Rights. In 1973, Roe v. Wade(21) extended the right of privacy to the decision of a woman to bear a child, but cautioned:

[T]he privacy right involved, therefore, cannot be said to be

absolute. In fact it is not clear to us that the claim . . . that one has an

unlimited right to do with one's body as one pleases bears a close

relationship to the right of privacy. . . . The Court has refused to

recognize an unlimited right of this kind in the past.(22)

Despite the cited language from Roe, courts have not been hesitant to extend the right of privacy to encompass a near absolute right to make choices regarding one's body. In In the Matter of Quinlan,(23) the New Jersey Supreme Court wrote: "Presumably this right [to privacy] is broad enough to encompass a patient's decision to decline medical treatment under certain circumstances, in much the same way as it is broad enough to encompass a woman's decision to terminate pregnancy under certain conditions."(24) This language, and an oblique reference to New Jersey's constitution,(25) is the extent of the analysis indulged in by the New Jersey Supreme Court. The wonder of stare decisis,(26) however, is that once decided, a case can be followed without the necessity of undertaking a reasoned analysis of its holding.(27) Quinlan thus provides the basis for a number of cases in which a person's right to refuse medical treatment becomes an absolute constitutional right.(28)

But the language of Roe is not an aberration. In the most recent of the United States Supreme Court's privacy decisions, Bowers v. Hardwick,(29) the Court refused to extend Roe to homosexual relationships:

Nor are we inclined to take a more expansive view of our

authority to discover new fundamental rights imbedded in the Due

Process Clause. The Court is most vulnerable and comes nearest to

illegitimacy when it deals with judge-made constitutional law

having little or no cognizable roots in the language or design of

...