This editorial appears in the November 2025 Issue of the American Journal of Bioethics
“What would they say, if we could talk to them right now?” is a question that most—if not all—clinical ethicists have found themselves asking at some point in their practice. In his article, “Substituted Judgment and The Paradigm Case Mistake,” Brudney refers to this as the Hypothetical Question: which treatment option would the patient choose in this situation? He discusses the substituted judgment standard’s enduring place in medical decision-making, and demonstrates how—in many common situations where surrogates must make a decision—substituted judgment via the Hypothetical Question may not get us the morally correct answer. He writes, “My central claim is that the moral relevance of substituted judgment is sensitive to where a patient scores on the four axes”. Brudney’s account of the “four axes of authenticity” (diachronic unity, synchronic unity, degree of reflective affirmation, and the commitment the patient had to the relevant values, life plans, ground projects) adds much needed nuance to what is often a very blunt and problematic application of substituted judgment.
Brudney asks us to imagine a patient who scores highly on all four axes (a long-time, devout Jehovah’s Witness–the paradigm case) and one who does not (a newly converted Jehovah’s Witness who is not particularly devout and has belonged to several different faith traditions throughout his life). In a traditional application of the substituted judgment standard, the answer to the Hypothetical Question would carry the same moral weight in both cases. Neither patient would want the transfusion, so neither should receive it. But Brudney argues that the authoritativeness of a substituted judgment is determined by the patient’s positioning on the axes of authenticity. While the answer to the Hypothetical Question will be close to dispositive for some patients, it may carry relatively little weight for others.
Brudney poses a question that most of us will find unsettling: is the belief that we can, in some morally meaningful way, premise current and future medical decisions for an incapacitated patient on their previously expressed values and preferences, the great fiction of clinical ethics? Moreover: even if we can do so, should we? With his characteristic discernment, Brudney writes, “It might not always be proper to insist on moving on moral rails from the meaning of the patient’s past to the meaning of the patient’s future”.
Over the years, critiques of the substituted judgment standard have steadily amassed. Yet the commentaries in this issue responding to Brudney’s article reflect a deep ambivalence within the field of clinical ethics toward the idea of substituted judgment. These thoughtful commentaries betray the field’s deep commitment to the idea that living our lives in accordance with our individually held values and preferences is a fundamental good—one that should shape medical decision-making standards. Even the authors of commentaries that share Brudney’s skepticism about substituted judgment’s moral value are reluctant to fully relinquish their grip on these concepts. The authors of some of the commentaries double-down on the importance of determining—with what Sulmasy and Snyder call out as false accuracy and false certainty—what the patient would have wanted and complying with that fact. Only Lantos seems to fully contend with Brudney’s central point about the “irreducible uncertainty” of many situations and decisions that arise at the bedside, regardless of whether people are helped to “better communicate their own values and preferences.”
Perhaps Brudney’s most important insight is a more subtle one that takes something of a backseat to his claims about substituted judgment and authenticity. Reflecting on the enduring place of substituted judgment in medical decision-making standards and clinical practice, Brudney writes, “Giving substituted judgment lexical priority might be easier, but clinical convenience should yield to what makes the most moral sense…The take-home is that we should not assume that the answer to The Hypothetical Question is the end to the moral question at the bedside”. Appeals to the substituted judgment standard are often framed as having the express purpose of ensuring value-concordant care. Brudney says the quiet part out loud: sometimes, eliciting an answer to the Hypothetical Question is really about making things easier for clinicians and ethicists, or even families. We—clinical ethicists—badly want to be able to provide family members and clinicians with some measure of moral or ethical certainty in these challenging situations. Like Brudney, we worry that the substituted judgment standard—intended to be used in some situations to explore the patient’s identity and values—has instead come to be used as a blunt instrument that grants lexical priority to authenticity-based considerations in a non-discerning way. Sulmasy and Snyder’s comments in their response to Brudney direct our attention to how the constraints and pressures of clinical practice have perverted substituted judgments’ intended value.
In a summary that cuts to the heart of this issue, Weiss Goitiandia and Batten write, “clinicians and surrogates struggle not only to ascertain patients’ values but also to render them action-guiding”. This collection of essays left us with one, lingering question: if we can abandon the fiction of accuracy, might there still be some value in exploring the Hypothetical Question, agonizing over it, even? What if we were never really doing it to ensure value-concordant care in the first place, but because there is something morally significant in wrestling with these questions in some shared way?
The substituted judgment standard has never been perfect. It is difficult for surrogates to know what a patient would choose in a given clinical scenario. Indeed, it is difficult for many of us to know what we would choose for ourselves. As Brudney so compellingly argues, however, epistemic limitations are only one part of a broader challenge for substituted judgment. He pushes us to ask why we care about the Hypothetical Question in the first place, since the patients of whom it is asked are, by definition, incapable of exercising agency. If he is right to suggest that what is really at stake is authenticity, and its constitutive contribution to a person’s good (i.e., their “interests” or “best interests”), then we need to do more than ask what the patient would choose. The prospect of “doing more” may be unwelcome to those who find the substituted judgment standard to be just fine as it is. It may also be unwelcome to those who find the substituted judgment standard already challenging. We can’t help but agree that “clinical convenience should yield to what makes the most moral sense.”