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Substituted consent : from lunatics to corpses

Mendelson, Danuta 2007, Substituted consent : from lunatics to corpses, Journal of law and medicine, vol. 14, no. 4, pp. 449-462.

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Title Substituted consent : from lunatics to corpses
Author(s) Mendelson, Danuta
Journal name Journal of law and medicine
Volume number 14
Issue number 4
Start page 449
End page 462
Publisher LawBook Co.
Place of publication North Ryde, NSW
Publication date 2007-05
ISSN 1320-159X
Keyword(s) substituted consent
doctrine of surrogate judgment
Summary This analysis traces the origins and evolution of the doctrine of surrogate or substituted judgment, especially its application to medical treatment, including non-therapeutic sterilisation, decisions regarding life and death choices, and more recently, removal of sperm or eggs from incompetent, dying or dead males and females. It argues that the doctrine, which has been acknowledged to be a legal fiction, has an effect of devolving legal and moral responsibility for life and death choices, as well as non-consensual, non-beneficial intrusive procedures, from the competent decision-makers to the incompetent patient. It focuses on the subjective nature of the substituted judgment standard; the problematic nature of evidence propounded to establish the putative choices of the incompetent person; lack of transparency relating to the conflict of interest in the process of substituted judgment decision-making; and the absence of voluntariness, which is an essential element of a valid consent.
Language eng
Field of Research 180199 Law not elsewhere classified
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2007, LawBook Co.
Persistent URL http://hdl.handle.net/10536/DRO/DU:30007720

Document type: Journal Article
Collections: School of Law
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