Is 'substituted judgment' a valid legal concept?

• Author: Liacos, Paul J.

One of the most significant and controversial subjects in medicine today involves making decisions about the treatment of patients who are incompetent. That this has become a subject for debate at all is a tribute to those doctors and scientists who have brought about great advances in medical science in the last few decades. When there were no known treatments for persons with certain diseases or disabilities, there were no questions whether those persons should be treated. Our present problem, though a happy one, is that we now have a choice, whereas in the past there was none. Where there is choice, however, there is difficulty.

The scope of treatment decisions now made available to us by new developments in medical and psychiatric science raises particularly complex problems. As great as our new knowledge is, it is not perfect. Predictive dicisionmaking imports value judgments. What were purely medical matters now involve philosophical, social, and moral issues. The difficulty of choice is compounded where one person is making a choice for another on a subject of crucial importance to that other person. Because of the crucial importance of these decisions and the difficulty in making them, it is imperative that we carefully consider what sort of process of decisionmaking we ought to use. Our consideration ought to be free from any prejudice, jealousy, or misunderstanding, either among or within the professions. We ought to be thinking not of ourselves, but of the people whose lives are at stake.

In recent years, some courts have accepted a role overseeing what once were decisions made solely by doctors, patients, and family members. Some medical professionals feel that such court involvement represents an unwarranted intrusion into an area best reserved for the experts. Unfortunately, there has been a good deal of misunderstanding among professionals in the fields of medicine and law as to the meaning of some of the judicial opinions in the area. These decisions have held that in some circumstances it is the courts that must make the ultimate medical treatment decisions for people who are unable to do so themselves. This does not imply a lack of faith in the medical profession. The courts are not engaged in making medical judgments that they are not qualified to make. Nor is the involvement of the courts in making these decisions on whether to treat incompetent persons a compromise of the ethical integrity of the medical profession. The author's intention is to discuss the reasoning behind judicial views on treatment of incompetent persons and the criteria to be used in making such decisions. What the criteria should be, and who the decisionmaker should be, are inextricably related issues.

The focus of this article is on the doctrine of substituted judgment. Two leading Massachusetts cases which utilized the substituted judgment doctrine are Superintendent of Belchertown State School v. Saikewicz(1) and Brophy v. New England Sinai Hosp., Inc.(2) They present commonly recurring fact patterns which are useful to illustrate the applications of the substituted judgment doctrine.

The Saikewicz case was decided by the Massachusetts Supreme Judicial Court in 1977. Joseph Saikewicz was a profoundly retarded man of sixty-seven who was diagnosed on April 19, 1976, as suffering from an acute form of leukemia. Mr. Saikewicz was a resident of the Belchertown State School, a facility of the Massachusetts Department of Mental Health. He had lived in state institutions since 1923 and in this particular one since 1928. Mr. Saikewicz had a mental age of about two years and eight months and an IQ of ten, and was unable to communicate verbally.(3)

A week after Mr. Saikewicz was diagnosed as suffering from leukemia, officials at the Belchertown State School petitioned the probate court for the appointment of a guardian for Mr. Saikewicz and for the immediate appointment of a guardian ad litem with authority to make the necessary decisions concerning his medical treatment. The guardian ad litem filed a report with the court, in which he indicated that Mr. Saikewicz' illness was incurable and that, although chemotherapy was the medically indicated treatment, he recommended against administering it. The guardian ad litem's reason for so recommending was that the treatment would cause Mr. Saikewicz fear, pain, and adverse side effects and that he would not be able to understand why he was being subjected to it. He concluded that these negative effects outweighed the benefit of the possibility of some limited extension of life. After a hearing on this report, at which the patient's two attending doctors recommended against chemotherapy, the probate judge on May 13, 1976, entered an order that no treatment for Mr. Saikewicz' leukemia be administered except by order of the court, but that steps be taken to safeguard his well-being in other respects and to reduce any discomfort he might have. The matter was appealed to the Massachusetts Supreme Judicial Court. The Supreme Judicial Court concluded on July 9, 1976, that the lower court had been correct in its order.(4)

The Massachusetts Supreme Judicial Court held that, where a person has a fatal illness for which treatment is available that can prolong the person's life, but cannot cure the illness, and which involves serious and painful intrusions on the person's body, and where the person is incompetent to decide whether to have the treatment, proceedings to determine whether treatment should be given or withheld should be held in the appropriate Massachusetts court.(5)

The other major case involving similar issues...