I discuss conditions for the validity of proxy consent to treatment on behalf of an incompetent person. I distinguish those incompetents who, when previously competent, expressed an opinion on the treatment in question from those who were never competent or who, though previously competent, never expressed an opinion on the proposed treatment. In the former case valid proxy consent usually requires respecting the stated wishes of the patient. The latter case is more difficult. I consider a widely-held principle which appeals (...) to the counterfactual wishes of the incompetent person. I argue that it is unacceptable and propose in its place a principle having to do with the best interests of the patient. Keywords: proxy consent, informed consent, competence, hypothetical wishes, substituted judgment, counterfactual wishes CiteULike Connotea Del.icio.us What's this? (shrink)

The purpose of this paper is to examine the distinction between "negative" and "positive" duties. Special attention will be given to certain criticism raised against this distinction by Michael Tooley.

The paper clarifies the relative merits and proper roles of standards of review in the determination of proxy consent for those unable to make decisions concerning their own medical treatment. The "substituted judgment" standard asks which treatment the incompetent person would choose if competent, while the "best interests" test asks which treatment would benefit the patient. The tests are discussed in relation to the moral principles of autonomy and beneficence which provide their justification. I distinguish six types of cases involving (...) incompetent patients and argue that which standard is appropriate depends on the type of case involved. A "rational choice" standard, which asks "What would the incompetent patient choose if his or her choice were rational?", is proposed as a way of determining best interests. Keywords: proxy consent, nontreatment of incompetent persons, substituted judgment CiteULike Connotea Del.icio.us What's this? (shrink)