Clayton Cramer has an interesting post about the legal doctrine of "substituted judgment" which was invoked to determine that an incompetent leukemia victim had the right to refuse treatment for leukemia -- apparently because he would have had the right to refuse treatment had he been healthy!

...this guy can't clearly state what he wants or doesn't want, has never done so, has no legal guardian, until this question came up, and most people would choose to live--so the Massachusetts Supreme Judicial Court ordered him to not be treated. He died three months later of pneumonia, as a result of leukemia.

If Saikewicz had been able to express an opinion as to whether he wanted to live or die, that would be one thing. If he had been competent to make that decision at an earlier time, and had told someone (even just casually), "I would rather die than go through chemotherapy," I could live with that. If the Court believed that most people facing a similar situation would be inclined to die a relatively quick and painless death rather than suffer the consequences of chemotherapy, I suppose that I would only be griping about them making a decision based on what "most people" wanted. But they had absolutely nothing but their own decision of what an incompetent person would have wanted if he had been competent but he was taking into account that he was incompetent.

Cramer calls this "Marxian" as in "Groucho Marxian." I think if the courts really want to play Groucho with these cases, the best way to invoke "substituted judgment" would be to ask what the incompetent victim would do if he were healthy!

Of course any competent healthy patient would refuse treatment for disease if he were in good health, wouldn't he?

What's being overlooked here is the right to be incompetent.

I guess that's reserved for the government.