• Ethics

In our paper, we pointed to several problems, both practical and theoretical, with the Substituted Judgment Standard (SJS)—at least when the SJS is understood as literally requiring that surrogates always make the decision that the incompetent patient would have made, if competent.1 These problems show that the SJS, so implemented, does not respect patient autonomy. Others have considered these same problems and found them decisive, concluding that the SJS ought to be abandoned. In contrast, we argued that the SJS is best understood not in terms of replicating the decision that the patient would make if competent, but in terms of the standard's underlying purpose: respecting the patient's values and allowing them to continue, as nearly as possible, the sort of life they found worth living for themselves. We called this the Endorsed Life Approach. Understood in this way, the SJS neither consists in nor always requires asking what the patient would decide if competent, and so is not subject to the same challenges; it also offers a way to respect the autonomy of patients even after they have become incapacitated. We believe that this way of thinking about the standard is consistent with how the SJS is often understood and applied in practice.

Dresser and Chan question whether our approach represents a significant departure from the standard interpretation of the SJS.2 ,3 Dresser notes that, given the messy realities of clinical practice, most surrogates and clinicians will respond to roughly the same concerns “no matter which interpretation of substituted judgment holds sway”. She concludes that “properly interpreted, the original formulation of substituted judgment is a justifiable and workable approach”. Chan claims that our Endorsed Life Approach does not “significantly differ from the standard interpretation” since, in implementing the standard interpretation, the surrogate must take into account …