The standard moral basis for surrogate decision-making, at least in the United States, is empirically suspect, conceptually misguided, and, at times, beset with a practical dilemma.  Philosophically, it is an amalgam of ideas deriving from Immanuel Kant, John Stuart Mill, and Aristotle; here, we need more conceptual clarity.  Moreover, in practice the medical team is sometimes confronted by the problem of the surrogate who refuses to make decisions, and so impedes proper treatment of the patient; here, we need a bit of institutional change.
Historically, the rules for surrogate decision-making were an afterthought of the transition from physician paternalism to patient autonomy.  Those rules are supposed to link the concept of autonomy to a treatment decision for a patient who cannot decide for herself.  Unfortunately, a key alleged link – asking “What would the patient choose?” – cannot, logically, do this job.  A different value – I call it authenticity – can play a role where autonomy cannot, but it brings us into a philosophically different world, one that fits not with Kant but with the Aristotelian idea of promoting the patient’s best interests.
Even this value – the patient’s best interests – is sometimes qualified by a moral value that the standard view does not acknowledge, namely, the family’s interests.  However, we cannot attempt to find criteria for properly taking the family’s interests into account until we accept the moral relevance of those interests at the bedside.  And determining how to incorporate those interests may also help with responding, in a useful way, to the surrogate who refuses to decide.

A lecture on the same topic takes place on 19 April 2016, 5.15 pm, Room 3.B52