The Volitional Approach to Surrogate Decision-Making

Abstract: When a patient lacks capacity, medical decisions on their behalf are made according to an advance directive or by surrogate decision-making. Often, however, patients’ expressed wishes are ambiguous, vague, or inconsistent, or they fail to anticipate the patient’s current condition.

In this paper, we apply insights from theory of mind to argue that in situations where the patient’s wishes are not clear, surrogates would have to utilize interpretative principles in order to reach a decision regarding treatment. We distinguish among three such principles, the value-substitution, the value-coherence, and the volitional principles. We argue that the volitional interpretative principle is the most reliable way of capturing what the patient would have wanted even after they no longer have the ability to make choices. This approach prioritizes the patient’s exclusive right to make a decision within the medical domain and tasks the surrogate with identifying a medical choice as close to what the patient would have agreed to based primarily on their previously expressed wishes. We also show how the volitional approach vindicates a relatively conservative approach toward withdrawal of care

Nada Gligorov – Professor, Alden March Bioethics Institute, Albany Medical College