A VIRTUE-ETHICAL APPROACH TO SUBSTITUTED JUDGMENT by ProQuest

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									Vol. 25:2 summer 2009




a Virtue-ethiCal aPProaCh to
substituted Judgment
L I N U S B R O S T R Ö M , P H D , A N D M AT S J O H A N S S O N , P H D




Abstract
According to the substituted judgment standard, the surrogate ought to make the
decision that the patient would have made, had he or she been competent. Normally, this
standard is thought to protect the patient’s right to autonomy in a situation where the
patient is no longer capable of exercising this right on his or her own. This idea could,
however, be questioned. It could, for example, be argued that since merely hypothetical
decisions are not real decisions, respecting these is not enough for the protection of
autonomy. Moreover, it could (and has) been argued that surrogates are quite inept when
it comes to identifying the relevant hypothetical decision. Hence, there are theoretical as
well as practical problems in assuming that the substituted judgment standard protects
patient’s right to autonomy. The purpose of this paper is to explore a way to make sense
of the intuitive appeal of the substituted judgment standard, without having to deal with
the problems mentioned above. For this reason an alternative way of morally justifying
the substituted judgment standard is introduced, namely in terms of respect for persons
as an important human virtue. It is argued that this approach has several interesting
consequences for issues such as how to choose among different interpretations of the
standard, and the importance of surrogate accuracy.
Key words: substituted judgment, surrogate decision making, medical decision making,
virtue ethics

Introduction
Patients who are considered to be incompetent, or decisionally incapacitated, need
a surrogate decision maker to make important health care decisions for them. A few
different standards for decision making have been proposed, to serve as a criterion for
what makes a surrogate decision the right one, and possibly also to practically guide
the surrogate in his or her decision making. One of those is the so-called Substituted
Judgment Standard (SJS). According to this standard, the surrogate ought to make
the decision that the patient would have made, had he or she been competent. Most
commentators see SJS as protecting the patient’s right to autonomy in a situation where
the patient can no longer exercise this right on his or her own1, and for this reason, among
others, the standard has found wide appeal.
     SJS is not without problems. The most frequently voiced misgiving is that in many
cases it seems impossible or at least very difficult to know what the patient would have
decided, if competent. Whatever is known about the patient is seldom enough, the
objection goes, to let us make a reliable inference about what the patient would have
chosen to do.2 Even on a traditional understanding of what SJS is all about, it is not clear   107
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      that this epistemic objection is quite as damaging as some commentators appear to think.
      But however this may be, we have ourselves challenged SJS on other accounts too. For
      one thing, the standard is less determinate in content than what is usually acknowledged.
      It says that the surrogate ought to make the decision that the patient would have made
      if competent, but it does not say how competent the surrogate ought to imagine the
      patient to be. Nor does it specify what e
								
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