The medical fate of never-competent persons cannot be resolved according to the approach governing previously competent persons -- surrogate focus on self-determination via advance instructions or projections of what the now-incompetent person would want in the circumstances. For never-competent medical patients, the commonly stated approach to surrogate decision making is best interests of the incapacitated ward.
This article examines and questions the conventional wisdom regarding a "best interests of the patient" standard. When a parent is the surrogate decision maker, the medical course chosen need not be the best course, so long as it is a plausible medical option and is not so antithetical to the patient’s interests as to constitute neglect or abuse. And while third party interests are not officially part of a never-competent patient’s interests, third-party interests constitute a looming omnipresence that inevitably influences surrogate decision making at the margins. That is so especially where the never-competent patient’s own interests are murky or in equipoise, and the potential impact on third parties is extreme.
Never-competent persons, as possessors of full moral status, are also entitled to be treated with dignity. This normally means that a surrogate decision-maker will maximally preserve the life of a ward. Sometimes, though, respect for the intrinsic human dignity of a fatally stricken ward dictates that the ward be allowed to die. A permanently unconscious person offers an example, as does an infant with multiple deficits whose short life will be pervaded by intrusive medical interventions. In these rare instances, the deterioration or debilitation of a human being is so extreme that further medical intervention would be inhumane. This is so for some never-competent persons, just as it is for some formerly competent persons.
Elder Law | Health Law | Medical Jurisprudence
Date of this Version
Norman L. Cantor, "The Bane of Surrogate Decision Making: Defining the Best Interests of Never-Competent Persons" (June 2004). Rutgers Law School (Newark) Faculty Papers. Working Paper 24.