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Substituted judgment in real life
  1. Rebecca Dresser
  1. Correspondence to Professor Rebecca Dresser, Department of Law, Washington University, St Louis, MO 63130, USA; dresser{at}wulaw.wustl.edu

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In ‘Clarifying Substituted Judgment: The Endorsed Life Approach,’ David Wendler and John Phillips present the latest in a series of attempts to develop an adequate theoretical basis for the substituted judgment standard.1 Experience with the conventional interpretation—decide as the patient would if she were competent—has revealed problems in its application. Most notably, empirical data show that surrogates often have mistaken beliefs about a loved one's treatment views. In such cases, treatment decisions based on the substituted judgment standard fail to reflect the patient's true treatment preferences.

If substituted judgment cannot replicate the patient's autonomous choice, how can we justify its use? Wendler and Phillips suggest that we adopt the ‘endorsed life’ interpretation of the standard. This interpretation aims to respect a patient's autonomy by selecting the treatment decision ‘that best promotes the course of life that the patient valued.’1 Wendler and Phillips argue that their approach is the most defensible response to criticism of the substituted judgment standard.

I am not so sure about that. First, I question the authors’ claim that abandoning substituted judgment would …

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