Choosing for another beyond autonomy and best interests

Hastings Center Report

Volumn 39, Issue 2, 2009, Pages 31-37

  Brudney, Daniel ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

BIOETHICS; HUMAN; MEDICAL DECISION MAKING; MEDICAL ETHICS; MEDICAL PRACTICE; MEDICAL RESEARCH; PATIENT CARE; RESPONSIBILITY; REVIEW; ARTICLE; ATTITUDE TO DEATH; CUSTODY; DECISION MAKING; MENTAL CAPACITY; PERSONAL AUTONOMY; PSYCHOLOGICAL ASPECT;

ATTITUDE TO DEATH; DECISION MAKING; ETHICS, MEDICAL; HUMANS; MENTAL COMPETENCY; PERSONAL AUTONOMY; PROXY;

EID: 65549104654     PISSN: 00930334     EISSN: 1552146X     Source Type: Journal    
DOI: 10.1353/hcr.0.0113     Document Type: Review

References (29)

1. See endnote 15.
2. See A. Buchanan and D.W. Brock, Deciding for Others: The Ethics of Surrogate Decision-Making (Cambridge, U.K.: Cambridge University Press, 1989), 93-96;
3. A.R. Jonsen, M. Siegler, and W.J. Winslade, Clinical Ethics, fifth edition (New York: Mc-Graw Hill, 2002), 84-85.
4. I. Kant, The Metaphysics of Morals (Cambridge, U.K.: Cambridge University Press, 1996), 154.
5. R. Young, Personal Autonomy: Beyond Negative and Positive Liberty (New York: St. Martin's Press, 1986), 5.
6. See, in particular, J.S. Mill, On Liberty (Cambridge, U.K.: Cambridge University Press, 1989), chapter 3.
7. My focus on authenticity is due to many conversations with John Lantos. For a discussion of authenticity in clinical contexts, see M. Siegler and A.D. Goldblatt, "Clinical Intuition: A Procedure for Balancing the Rights of Patients and the Responsibilities of Physicians," in The Law-Medicine Relation: A Philosophical Exploration, ed. S.F. Spicker, J.M. Healey, and H.T. Engelhardt (Boston, Mass.: D. Reidel Publishing Company, 1981), 5-31.
8. Of course, people sometimes have conversions. Saul of Tarsus became St. Paul. Dramatic changes in a life do not entail a problem with self-determination. Still, they raise a flag.
9. To see authenticity as a value is not to be committed to the suspect claim that there is a "true me." I use authenticity as a normative, not a metaphysical category. It involves only the claim that living in accordance with one's beliefs and values is (usually) a good thing. Whether my beliefs and values express the true me is a separate and, here, irrelevant issue.I thank Farr Curlin for pressing me to note this issue.
10. For a powerful argument that the policy of making advance directives is, at least in practice, something that should be changed, see A. Fagerlin and C.E. Schneider, "Enough: The Failure of the Living Will," Hastings Center Report 34, no.2 (2004): 30-42.
11. See D.I. Shalowitz, E. Garrett-Mayer, and D. Wendler, "The Accuracy of Surrogate Decision Makers: A Systematic Review," Archives of Internal Medicine 166 (2006): 493-497
12. For a thoughtful discussion of the complexities involved in surrogate decision-making, see J.T. Berger, E.G. DeRenzo, and J. Schwartz, "Surrogate Decision Making: Reconciling Ethical Theory and Clinical Practice," Annals of Internal Medicine 149 (2008): 48-53.
13. An excellent presentation of this distinction is in Buchanan and Brock, Deciding for Others, 116.
14. For the view that the moral justification for substituted judgment is that it advances patient autonomy, see R.M. Arnold and J. Kellum, "Moral Justifications for Surrogate Decision Making in the Intensive Care Unit: Implications and Limitations," Critical Care Medicine 31, no.5 (suppl.) (2003): S348;
15. Shalowitz, Garrett-Mayer, and Wendler, "The Accuracy of Surrogate Decision Makers," 493.
16. This is the case, for instance, with Hobbes's and Locke's accounts of the social contract.
17. On the moral relevance of hypothetical consent in social contract theory, see R. Dworkin, "The Original Position," University of Chicago Law Review 40, no.3 (1973): 500-533,
18. and D. Brudney, "Hypothetical Consent and Moral Force," Law and Philosophy 10, no. 3 (1991): 235-270
19. It is hardly definitive evidence, but it may be of interest to present the first two hits that came up when I Googled "substituted judgment." Consider a definition of "Substituted Judgement" (sic) from Ascension Health, found at http://www.ascensionhealth. org/ethics/public/issues/ substituted. asp: "The form of surrogate decision-making regarding end-of-life care in which the surrogate attempts to establish with as much accuracy as possible what decision the patient would have made if that patient were competent to do so. This conclusion can be based on the patient's preference expressed in previous statements or the surrogate's knowledge of the patient's values, beliefs, personality, and prior life style. This standard seeks to preserve the patient's right of self-determination by placing the patient's own preferences at the center of deliberation, while recognizing that it is the exception rather than the rule that the patient will have articulated his or her preferences in advance. Substituted judgment is to be distinguished from a decision based on an advance directive." This definition conflates the issue of what the patient did say ("previous statements") with the issue of evidence of what she would say ("the surrogate's knowledge of the patient's values, beliefs, personality, and prior life style"). The second Google hit gave the following opening sentence of an abstract from Annals of Internal Medicine: "Substituted judgment has been proposed as a method of promoting the autonomy of the mentally incapacitated patient." So far as "autonomy" includes self-determination, a mentally incapacitated patient has no such thing to promote. See A.B. Seckler et al., "Substituted Judgment: How Accurate Are Proxy Predictions?" Annals of Internal Medicine 115, no.9 (1991): 743-745
20. See A.B. Seckler et al., "Substituted Judgment: How Accurate Are Proxy Predictions?" Annals of Internal Medicine 115, no.9 (1991): 743-745
21. Even the best have faltered here, including Beauchamp and Childress and Buchanan and Brock. Both pairs of authors insist that substituted judgment should not be used for beings that have never been autonomous - for instance, someone who has been profoundly mentally disabled since birth - because such individuals were never autonomous and so cannot be autonomous-by-proxy. In fact, no one can be autonomous-by-proxy, if "autonomous" means self-determining. What these authors might be trying to get at is that the "What would the patient choose?" question can be relevant only if the patient was, at some point, capable of having a set of beliefs and values that were sufficiently rich that it makes sense to think of her life being or failing to be in accordance with them. But the relevance to such a patient of the "What would the patient choose?" question cannot be a vindication of her (now nonexistent) capacity for self-determination. Both pairs of authors verge on making the point I am after, but neither quite does so. See T.L. Beauchamp and J.F. Childress, Principles of Biomedical Ethics, fifth edition (Oxford, U.K.: Oxford University Press, 2001), 99-100,
22. and Buchanan and Brock, Deciding for Others, 112.
23. I thank John Lantos for pressing me to deal with cases of this kind.
24. See R. Dworkin, Life's Dominion (Cambridge, Mass.: Harvard University Press, 1993);
25. A. MacIntyre, After Virtue (South Bend, Ind.: University of Notre Dame Press, 1981), chapter 15;
26. and C. Taylor, The Ethics of Authenticity (Cambridge, Mass.: Harvard University Press, 1991).
27. See also J. Blustein, "Choosing for Others as Continuing a Life Story: The Problem of Personal Identity Revisited," Journal of Law, Medicine, & Ethics 27 (1999): 20-31.
28. For a good discussion, see J. Griffin, Well-Being (Oxford, U.K.: Oxford University Press, 1986), chapter 1.
29. I thank Lainie Ross for urging me to consider this additional complexity.