empirical fallacies in the debate on substituted judgment

ORI GIN AL ARTICLE

Empirical Fallacies in the Debate on SubstitutedJudgment

Mats Johansson • Linus Brostrom

Published online: 25 February 2012

� Springer Science+Business Media, LLC 2012

Abstract According to the Substituted Judgment Standard a surrogate decision

maker ought to make the decision that the incompetent patient would have made,

had he or she been competent. This standard has received a fair amount of criticism,

but the objections raised are often wide of the mark. In this article we discuss three

objections based on empirical research, and explain why these do not give us reason

to abandon the Substituted Judgment Standard.

Keywords Substituted Judgment Standard � Incompetence �Proxy decision making

Introduction

Incompetent patients need someone else to make decisions on their behalf, and a

central issue concerns how such decisions are to be made. According to one

influential idea the surrogate decision maker ought to make the decision that the

patient would have made now, if competent. This, we believe, is the most common

interpretation of the so-called Substituted Judgment Standard (SJS). SJS has been

extensively discussed. The received view is that doing what the patient would have

done, if competent, is one way of protecting, or promoting, the person’s autonomy,

or self-determination [1–4]. While some commentators, ourselves included, have

suggested that giving consideration to what the patient would have done might serve

some other purpose than to respect self-determination [5, 6], much of the discussion

concerns whether surrogates really can be expected to know what the patient would

have decided [7].

M. Johansson (&) � L. Brostrom

Department of Medical Ethics, Lund University, BMC I12, 221 84 Lund, Sweden

e-mail: [email protected]

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Health Care Anal (2014) 22:73–81

DOI 10.1007/s10728-012-0205-4

If indeed the point of respecting the patient’s hypothetical wishes is to respect the

patient’s autonomy, the prospects of surrogate accuracy would certainly seem to be

an important matter. As indicated, the assumption that SJS has to do with autonomy

deserves scrutiny, but the broader discussion about the values underlying SJS and

about the merits of this and other decision making standards can be found

elsewhere. The present article has a narrower focus, intended to highlight a number

of issues that deserve to be discussed regardless of what values or interests SJS and

other decision-making standards ultimately succeed in protecting. On our view,

progress has been hampered not only by insufficient attention to what the moral

foundation of SJS could be, but also by some more general philosophical and

methodological mistakes, which tend to get repeated. In one way or another those

mistakes emanate from attempts to draw moral conclusions from various empirical

findings. For example, in a fairly recent discussion of SJS, A.M. Torke, G.C.

Alexander and J. Lantos, for example, identify what they take to be fatal flaws to

this standard [8]. They argue that three lines of research ‘‘show the weakness of

substituted judgment’’, and that a different approach is called for. The three lines of

research are empirical, but whereas two of them concern surrogates’ prospects of

successfully satisfying SJS, the third puts into question whether there are moral

reasons for even trying. We shall discuss the implications of these lines of research.

The discussion will be structured around five general points, which in different ways

reveal the problems of drawing normative conclusions about SJS from empirical

results. The lessons to be learned, we believe, are to a large extent applicable in the

discussion about other decision-making standards too.

Surrogates’ Evidence is Not Limited to Advance Statements RegardingTreatment Preferences

Much of the empirical research that has been done on surrogate decision making is

believed to embarrass SJS, by allegedly showing that surrogates cannot be trusted to

successfully apply this standard. One such line of research indicates that

individuals’ treatment preferences to some extent change over time [9–11]. The

putative problem with these changes, according to the critics, is that they make

substituted judgments so unlikely to be accurate that it would be unwise to rely on

SJS [8]. What would make substituted judgments too unreliable is a question that

we shall return to shortly. But that issue aside, it is not explained in the first place

why people changing their minds would make these judgments unreliable at all.

Presumably the underlying idea is that changes of mind make the task of substituted

judgment a daunting one, since the surrogate evidently cannot rely on any one past

preference as the answer to what the patient now wants, or would want. For

example, while those with advance directives have been shown to have somewhat

more stable preferences, the possibility of changes of mind indicates that one has to

be cautious not to rely on previously expressed preferences when judging what the

patient now would have wanted. Substituted judgment may certainly require

extrapolation, imagination and real efforts to make proper use of all the evidence

there might be for assuming that this is what the person would want. Unless there is

74 Health Care Anal (2014) 22:73–81

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some particular reason for thinking that surrogates are incapable of such efforts,

however, there is no reason to believe that substituted judgments are likely to be

inaccurate. It is a little like dismissing the effort to find christmas gifts that would

make one’s children happy on Christmas eve just because one can no longer rely on

the wish list they wrote down in March. We know that they may well have changed

their mind, and we adjust for this by looking at what else we know about them and

their more recent joys and inclinations. Correspondingly, as has been recognized,

health care professionals and surrogates should think twice before going by advance

directives that have not been updated, if the goal is to do what the patient now

would have wanted [11]. But this is just wise caution regarding the use of advance

directives, and has no bearing by itself on the value of SJS. Why changes of mind

should threaten this standard remains to be explained.

The Accuracy of Substituted Judgments has to be Assessed in Relationto the Appropriate Hypothetical Preferences

The other line of research believed to cast doubt upon surrogates’ prospects of

complying with SJS consists of the many studies that claim to have shown that

surrogates actually tend to make inaccurate substituted judgments. The literature

reporting on these alleged results is extensive, and much of it has been summarized

in a systematic review [7]. Before addressing the implications of the relevant

findings, one could raise the question whether this line of argument is consistent

with the argument from changes of mind. In accuracy studies (potential) patients

have typically been asked what they would prefer in various future scenarios, and

the premise of this literature seems to be that the correct verdict on what the patient

would have preferred is given by their answer to this question. However, if changes

of mind are common, what is the justification for singling out respondents’ answer

at a certain point in time as defining the correct answer? Conversely, if this answer

is the one by which surrogates’ accuracy ought to be measured, why would

subsequent changes of mind be a problem? The argument from changes of mind

thus undermines the assumption made in accuracy studies, that there is a

straightforward way to assess surrogates’ capacity to comply with SJS.

This tension aside, appealing to the empirical evidence for surrogates’ poor

prediction accuracy fails. The studies in question simply do not show that surrogates

have made inaccurate substituted judgments. Basically this is because surrogates’

prediction accuracy regarding patients’ actual treatment preferences, or regarding

patients’ conjectures about future hypothetical preferences, need not say much

about surrogates’ accuracy in making judgments about what patients would have

preferred, had they been competent at decision point. The problem is not merely one

of empirically testing hypotheticals with counterfactual premises. What patients

would have preferred under relevant counterfactual circumstances is not even a

straightforward empirical matter, but involves making up our minds about what

scenario we ought to imagine the patient to be in. Just how competent should this

person be imagined to be? With what insights and what values (as these may

certainly change, depending on, among other things, one’s life situation)? And how

Health Care Anal (2014) 22:73–81 75

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favorable should the surrogate imagine the external circumstances surrounding the

decision to be? These questions not only need to be settled, but doing so will involve

some degree of idealization of the patient and his or her decision conditions. For

example, making the treatment decision that the patient would have made the last

time he or she was competent may well be morally wrong, if this person was just

barely competent (or informed) then, affected by various irrelevant considerations

and likely not to make a decision that reflected ‘‘who he or she really was’’.

Crucially, one cannot assess surrogates’ accuracy in identifying the relevant (partly

idealized) preferences simply by matching surrogate predictions with what

individuals say they would prefer in various future scenarios. We elsewhere make

this case in greater detail [12].

This methodological quandary should not be dismissed as being merely of

academic interest. Anyone inclined to discredit SJS based on these empirical

findings would have to argue that the tested ability still approximates the ability that

we ultimately would like to assess. That is, one would have to argue that if

surrogates are unlikely to accurately predict patients’ actual treatment preferences

for future scenarios when those individuals are (still) competent (or predict their

conjectures about future hypothetical preferences), surrogates are also unlikely to

accurately predict what patients would have decided, if competent at the time of the

real decision. But why would that be? In the absence of a substantial explanation of

why an inability to do x would imply an inability to do y, there is simply no ground

for making this inference. For one thing, whether real world decision making will be

as challenging as the decision making looked at in accuracy studies depends on

exactly what decisions surrogates will be allowed to make. If, for example,

surrogates actually will be limited to making decisions when there is an

uncontroversial decision—what any person ‘‘with sound mind’’ would choose—

surrogates should be expected to do better than in the possibly trickier situations

involved in the research paradigm under scrutiny. If, conversely, surrogates are

called upon only when it is utterly unclear what the average person would decide,

and nothing much seems to hang in the balance, it is not clear that there even is a

determinate answer, in the face which surrogates can be proven wrong.

Until the exact circumstances under which surrogates will actually be expected

to make the relevant decisions are fixated (and these circumstances will typically

vary, depending on legislation, tradition and more), there is simply no way of

telling in what ways accuracy studies are artificial, and thus no way of telling what

inferences about real and relevant abilities they allow. Moreover, that appropriate

substitute judgments to some extent idealize the individual concerned, and the

circumstances surrounding the decision, also imply that the real world task may in

fact be easier than the one researchers have assessed. Figuring out what the

person’s hypothetical wishes are involves not so much the complex task making a

prediction about what decision she will make given the myriad of factors that

typically affect her choices, but rather identifying a limited number of core values

and desires, deducing from those what would be the most sensible thing to do in

the current situation.

In view of these considerations, the burden of proof clearly lies with those who

assume that the abilities found wanting are the ones required by SJS.


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Substituted Judgment Might be the Most Reliable Decision Tool Available

Even if one was to accept that surrogates often are inaccurate, or that frequent

changes of mind make substituted judgments unreliable, these assumptions would

not by themselves amount to an argument against SJS. For one thing, the alleged

fact that we are rather bad at making accurate substituted judgments should not lead

us to conclude that we should stop trying to, if making substituted judgments is the

most reliable way available of achieving what we want. Consider an analogy.

Having reliable weather forecasts is often important, and we may not be as good as

we would like at making them. However, if correctly forecasting the weather is

important to us, no longer relying on the best meteorological models available is not

a rational response to the realization that we often get it wrong. The systematic

review by Shalowitz et al. [7] suggests that surrogates have demonstrated, roughly, a

68% accuracy rate, which, while not particularly impressive, is clearly better than

chance. If deciding as the patient would have, if competent, would be the way to

protect important values (of autonomy, say), how could refraining from trying be a

rational response to the observation that we do not get it right as often as we would

like? After all, switching to some other approach to surrogate decision making

would not merely be switching to some other method of addressing a challenging

epistemic situation, but changing the aim.

Certainly one might argue that if surrogates’ success rate probably never will

exceed a chosen threshold (be that at chance, or at 68%, or any other number), that

rate is simply too low in order for it to be acceptable to adhere to SJS. Under such

circumstances one might consider aiming for something different in surrogate

decision making. Such a switch, however, would be rational only if reaching that

other aim could be shown to have greater prospects of success. And what viable

alternative is there to SJS, if there are no advance statements that would allow for a

more straightforward respect for self-determination? What primarily comes to mind

is the so called Best Interest Standard, according to which surrogates ought to make

that decision which best protects the interests, appropriately understood, of the

patient [2]. And whatever exactly the relevant notion of the patient’s interest is (in

terms of quality of life, for instance), two related questions immediately arise. What

is surrogates’ success rate when applying this decision-making standard, and how

are we to know? Replacing SJS on the grounds that surrogates may get patients’

hypothetical preferences wrong 32% of the times they try, with a standard that not

only promotes other values than those we really wanted to promote, but is such that

its success rate for all that we know could be just as low or lower (to the extent that

it can be assessed at all), would certainly be an odd thing to do.

Substituted Judgment Need Not be a Decision Tool at All

Another reason why discouraging empirical findings do not, on their own,

undermine SJS relates to what is ultimately meant by a decision-making standard.

There is a potential ambiguity here that we have not yet bothered to pay attention to.

By decision-making standard one could mean a condition that good decisions ought


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to satisfy: in this sense, meeting SJS simply amounts to making the decision that the

patient would make, if competent. But one could also mean an explicit instruction to

oneself or other surrogates: in this sense, using SJS amounts to having the condition

or its expression somehow guide the surrogate in the process of reaching a decision.

(It may or may not additionally involve acts of imagination, where the surrogate

attempts to come up with the right answer by some act of empathic understanding.)

Basically, this is the well-established distinction within moral philosophy between

right-making characteristics and decision-making procedures, as first explicated by

Eugene Bales in his discussion about act-utilitarianism [13]. Typically there is a

tacit assumption that those two things go hand in hand, i.e. that surrogates should to

be told that they ought to try to make the decision that the patient would have made,

and in one way or another be guided by this thought, because that is the decision

they ought to make. Assume, however, that for some reason we ought to refrain

from thinking in terms of SJS when making surrogate decisions. Perhaps imagining

purely hypothetical scenarios just makes us confused, and that we therefore are well

advised to think instead in terms of what might be ‘‘best for’’ the patient, or to simply

ground our decision in what we spontaneously feel is the most respectful thing to do.

That is, assume, if only for the sake of the argument, that asking a surrogate to guess

what the patient would have decided is not a particularly effective way of having the

surrogate come up with the right answer. This does not imply that SJS should be

rejected as a measure of accuracy. In other words, the empirical results on preference

change and prediction accuracy may show that using SJS as a practical guideline is a

bad idea, but this would not disqualify it from being the criterion that surrogate

decisions morally ought to satisfy, by whatever route possible.

Again an analogy might be helpful. Rules of grammar tell us what counts as

grammatically correct sentences in a given language, and thus serve as a yardstick

for what it takes to get it right. Importantly, that does not mean that learning and

trying to apply the relevant rules is the best way to see to it that the sentences we

speak are grammatically correct. For instance, telling a small child that in English

modal verbs do not inflect for person, number or tense will in all likelihood be

useless information, and may even turn out to be counterproductive. Nonetheless

this is a rule that determines whether or not the child spoke correctly. Of course, in

other cases, learning and trying to apply the rule might be a reliable way of

satisfying it. The point, however, as in the context of decision-making standards, is

that whether a certain norm works in a satisfactory way as a practical guideline, or

whether the right-making characteristics of sentences (or decisions) can be can be

explained to language users (or surrogates) in a way that is intelligible to them, will

depend on the particulars of each individual case. It is thus perfectly consistent to

champion SJS as an articulation of the morally right decision, while agreeing that it

may not be advisable to instruct surrogates to apply this principle. Correspondingly,

the accuracy that needs to be measured is not surrogates’ accuracy when being

instructed to apply SJS, but their accuracy in deciding as the patient would when

given the best possible tools for making such decisions, whatever those tools turn

out to be. (As to this last issue, we have no views on what would be the best way to

make surrogates actually make the decisions patients would. It is simply an

empirical issue, which cannot be prejudged.)


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Substituted Judgment Allows for Taking Surrogates’ Own Judgmentinto Consideration

Surrogates may or may not be well equipped to follow SJS, but Torke et al. also

appeal to research that suggests that the majority of patients may not even want their

own ‘‘prior wishes’’ to singlehandedly settle end-of-life treatment decisions. For

example, in one study of patients’ and surrogates’ attitudes about the use of advance

directives and how patients want decisions to be made, it turned out that patients

often wish to allow surrogates some leeway in making the relevant decisions,

permitting other considerations than those directly related to patients’ (actual or

hypothetical) substantive treatment preferences [14]. These and similar findings

may seem to undermine the moral basis of SJS. As mentioned, this standard is

typically viewed as a standard that serves to protect patients’ right to autonomy, but

if patients do not want to be ‘‘victims’’ of SJS, that would seem to give us a reason

not to rely on this standard, out of respect for autonomy.

Once again it should be recalled that SJS does not suggest that prior wishes

should settle end-of-life decisions. The wishes that one should respect are those that

the patient would now have had, if he or she had been competent. But if we ignore

this misleading rendering of SJS, what critics like Torke and co-authors presumably

are concerned with is giving due weight to the possibly widespread view that family

members or physicians should ‘‘have input into the decisions’’ regarding treatment,

instead of merely trying to figure out what treatment decisions the patient would

make if competent.

Three points should be sufficient to show that this view need not discredit SJS.

First, determining what standards ought to govern surrogate decision making

should obviously not be settled by anything remotely similar to a voting

procedure. Hence, it is not clear what to make of the suggestion that ‘‘the

majority’’ of patients do not want SJS to be followed. Our widely accepted right

to autonomy is not a right to have our opinions about decision-making standards

influence what ethical principles will govern health care in general, but a right to

influence the course of our own individual future. Thus, however much autonomy

considerations may require us to respect those who do not want SJS to guide

decisions about their care, those who do want SJS to govern decisions about their

future certainly should not have this possibility withdrawn merely because theirs

might be a minority preference.

Second, the argument depends on the assumption that our prior actual wishes

ought to trump what we now would have wanted, if competent. This is a substantial

moral assumption, one over which reasonable people can disagree. Respecting the

wishes that people once had is certainly one way of respecting their right to

autonomy, but SJS has been suggested to protect this right too. If it does, there are

two conflicting principles of autonomy at work, and one would have to assess what

is morally most important—to satisfy prior actual wishes or to satisfy current

hypothetical ones. It is fair to say that in the literature on surrogate decision making,

and in much legislation, SJS is typically treated as a second-best solution,

acceptable only when no prior decisions have been made or no prior wishes are

known, but ultimately this position needs to be argued for.


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Third and finally, SJS is arguably more flexible than commonly believed. Even if

this standard is usually formulated in ways that suggest that it is applicable only

when patients would have some substantial treatment preference, this should not be

essential to the idea of substituted judgment. For example, a patient would perhaps

have wanted (if competent) that surrogates make whatever decision they feel

comfortable with themselves, or that doctors make whatever decision is most in line

with clinical practice, say. To respect such hypothetical wishes because this is what

the patient would have wanted is not only to act in accordance with the wording of

SJS, but to act in accordance with the fundamental idea behind this standard.

Concluding Remarks

None of the three empirical objections to SJS that have been addressed in this article

are convincing. This is not to say that SJS is the standard that surrogates ought to

use or satisfy. It is just to say that any case against SJS needs to be based on

different arguments. Whether other empirical findings can be made to bear on the

adequacy of this standard is unclear at this point, and depends in part on how the

standard should be understood. SJS first has to be evaluated on moral grounds. For

example, does this standard, if adhered to in decision making, really protect the right

to autonomy, as common wisdom has it, or could it be that it actually reflects some

distinctly different moral consideration? And is SJS best thought of as a tool for

decision makers—a way of thinking—or does it make more sense to interpret it as

the objective measure of when a decision is morally justified? None of these

questions can be properly addressed merely by means of empirical research.

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