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In their essay, “Clarifying Substituted Judgment: the Endorsed Life Approach,”1 Wendler and Phillips add to a growing body of literature that acknowledges what has been apparent to many clinicians and commentators for a long time: something is seriously wrong with the contemporary US approach to surrogate decision making. Their essay summarises background that has been more extensively reviewed elsewhere: the history of how we came to this impasse, and the many theoretical and empirical critiques of substituted judgement.2 Drawing on this background, they propose an alternative to substituted judgement that differs little from the Substituted Interests Model that we proposed in 2010,3 doing so, in part, by misrepresenting our published views.
The overlap between their model and ours is befuddling, but by calling their approach an attempt to ‘clarify’ rather than replace the substituted judgement standard, they only further muddy the waters. The approach they advocate is so similar to our Substituted Interests Model that giving it a different name and calling it an ‘interpretation’ of substituted judgement will only wind up being confusing for surrogates, clinicians and policy makers.
Their primary motivation seems to be to ‘save’ substituted judgement since it is so well established in law and bioethical education. After noting some of the many problems with substituted judgement, they nonetheless both propose retaining the name and advise asking the surrogate to provide ‘the decision the patient would make for herself, if competent.’ They give two reasons for this: (1) they believe this directive is a useful approximation of the standard they think is really the correct one, namely, to provide the decision most consistent with the life the patient seems to have endorsed for herself, and (2) they think substituted judgement has become so ensconced in policy and practice that it would …
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