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The Substituted Judgment Approach: Its Difficulties and Paradoxes in Mental Health Settings

Published online by Cambridge University Press:  28 April 2021

Thomas G. Gutheil  and
Paul S. Appelbaum
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Extract

Circe directed Ulysses to fill the ears of his seamen with wax, so that they should not hear the strain [of the Sirens]; and to cause himself to be bound to the mast, and his people to he strictly enjoined, whatever be might say or do, by no means to release him till they should have passed the Sirens’ island. His men obeyed… . At the sound of the Sirens Ulysses struggled to get loose, and by cries and signs to his people begged to be released; but they, obedient to his previous orders, sprang forward and bound him still faster. They held on their course, and the music grew fainter till it ceased to be heard, when with joy, Ulysses gave his companions the signal to unseal their ears, and they relieved him from his bonds.

Type
Article
Information
Law, Medicine and Healthcare , Volume 13 , Issue 2 , April 1985 , pp. 61 - 64
Copyright
Copyright © American Society of Law, Medicine and Ethics 1985

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References

Bulfinch, T., Mythology (Dell Books, New York, N.Y.) (1959) at 89.Google Scholar
See, e.g., In re Quinlan, 348 A.2d 801, 819 (N.J. Super. Ct. Chan. D.V. 1975); mod. rem, 355 A.2d 647 (NJ 1976).Google Scholar
See, e.g., In re Spring, 405 N.E.2d 115 (Mass. 1980); In re Severns, 425 A.2d 156, 159 (Del. 1980); Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).Google Scholar
Gutheil, T.G. Appelbaum, P.S., Clinical Handbook of Psychiatry and the Law (McGraw-Hill, New York, N.Y.) (1982) at 210–52.Google Scholar
Gutheil, T.G. Appelbaum, P.S., Substituted Judgment: Best Interests in Disguise? Hastings Center Report 13(3): 8–11 (June 1983).Google ScholarPubMed
Id. at 9–11.Google Scholar
Gutheil, T.G. Appelbaum, P.S., “Mind Control,” “Synthetic Sanity,” “Artificial Competence,” and Genuine Confusion: Legally Relevant Effects of Antipsychotic Medications, Hofstra Law Review 12: 77–120 (1983).Google Scholar
Id.Google Scholar
In re Storar, 420 N.E.2d 64 (N.Y. 1981); Annas, G. J., The Case of Mary Hier: When Substituted Judgment Becomes Sleight of Hand, Hastings Center Report 14(4): 23–25 (August 1984).Google ScholarPubMed
See generally Frank, J., Law and the Modern Mind (Anchor Books, New York, N.Y.) (1963).Google Scholar
For a similar suggestion, see President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions: The Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship (U.S. Gov't Printing Ofc., Washington, D.C.) (1982) at 180–81.Google Scholar