Substituted judgment for the never-capacitated: Crossing Storar's bridge too far

Since several landmark legal decisions in the 1970s and 1980s, substituted judgment has become widely accepted as an approach to decision-making for incapacitated patients that incorporates their autonomy and interests. Two notable exceptions have been cases involving minors and those involving cognitively or psychiatrically impaired individuals who never previously possessed the ability to contemplate the medical decisions involved in their care. While a best interest standard may have universal merit in pediatric cases, this paper argues that substituted judgement has been rejected too broadly for never-capacitated patients. It then lays out a three-condition test for using substituted judgment in these cases. For a subset of never-capacitated patients who belong to distinctive religious or cultural communities with clear medical values and have an appropriate surrogate, these values may prove helpful in vindicating the interests of the never-capacitated and should not be blanketly dismissed.

Automated summary

Substituted judgment is widely accepted in decision-making for incapacitated patients, except for those who never previously possessed the ability to contemplate medical decisions. This paper argues that a three-condition test should be used for never-capacitated patients and that the medical values of certain religious or cultural communities may be helpful in vindicating their interests.