Saturday, 22 February 2020

Sidebar: What is Substituted Judgement?

In situations where someone has been deemed unable to make their own decision regarding an intrusive treatment (like taking psychiatric drugs classified as ‘antipsychotics’), a court of law must be tasked with determining what that person would do if they were seen as able to make an independent choice.
A number of factors that any individual would typically consider in making their own decision must be considered by the court in their effort to make that determination.
Considerations typically include:
  • The person’s expressed preferences
  • Impact on family (while also considering whether family relationships have been close or estranged, etc.)
  • Any relevant religious or spiritual beliefs that may guide or prohibit certain interventions
  • Prognosis with and without treatment
However, here’s the real challenge: the courts should attempt to consider these points in the same way that the individual in question would consider the same points for themselves. In other words, the decision should not be based on what doctors, family members, or courts think is ‘best’ for that person, but rather, what it is believed they would choose if they were in a space to make an informed choice themselves. (Input from doctors, family, etc. may be considered, but only to the extent it is believed that person would ordinarily consider such input.) Any statements the person made about treatment in the past are very important. So, too, is what they’re saying in the moment (regardless of the belief that they’re not able to make the decision on their own), as is any advanced directive (or WRAP plan, etc.) that they’ve previously developed.
The point of this approach is to preserve respect for autonomy. It is substantively different than the ‘best interest’ standard, which would empower someone else to do what they think is ‘best’ or ‘good’ for the person presently believed to not be able to make their own decisions.



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