Lynn E. Lebit


In many cases, courts have incorrectly applied the doctrine of "substituted judgment" to violate the bodily integrity of a minor (who is usually physically or mentally disabled), or an adult incompetent, to bring about a result which on its face seems beneficial to all involved. What courts have failed to do, however, is protect the best interests of these incompetent persons and to recognize their right to be protected, especially when they cannot consent, from non-therapeutic bodily invasions. In this context, "best interests" are determined by weighing the risks, needs and benefits to the affected person. The type of "non-therapeutic" procedures to which courts typically apply substituted judgment are those which are of no physical benefit to the incompetent person, but which may benefit another person or the guardians of the incompetent individual.