Fermín Jesús González-melado, maría luisa di Pietro The TherapeuTic proporTionaliTy sTandard: a new conTenT for The besT inTeresTs sTandard
Cuadernos de BioétiCa. 2020; 31(101): 19-42
The inclusion of the concept of patient autonomy
at the heart of medical ethics was the most striking
innovation in bioethics ﬁeld1. From this moment, the
development of bioethics had as its nuclear objective to
defend individual autonomy through the informed con-
sent of the patient to treatment2. The informed consent
determined the bioethical frame of reﬂection for the
bioethical principles, established for a bioethics of adults
and competent patients3. At that time it was thought
that this framework could be extended to children and
other incompetent patients4.
The doctrine of informed consent requires three
elements: 1) that the decision is free, 2) informed and
3) that the person is competent5. The key concept of
competence divided patients into competent individuals
who can make autonomous decisions about a medical
treatment, and incompetent individuals who can`t make
decisions for themselves6.
Problems arise when patients are not competent:
who should decide for them? Buchanan and Brock rai-
sed the need for a theory of surrogate decision making
that could extend respect for the autonomy of the
competent autonomous patient to the incompetent pa-
tient7. Beauchamp and Childress proposed the applica-
tion of certain standards that, from the judicial context,
could be applied to the surrogated decision-making in
the medical ﬁeld8. The bioethics of principles pointed to
four standards when making medical decisions9: 1) The
1 Cfr. Jonsen, A.R., A short history of medical ethics, Oxford
University Press, New York 2000.
2 Cfr. President’s Commission for the Study of Ethical Prob-
lems in Medicine and Behavioral Research, Making health care
decisions, Washington DC, U.S. Government Printing Ofﬁce, 1982,
3 Cfr. Beauchamp, T.L., Childress, J.F., Principles of biomedical
ethics, New York, Oxford University Press, 20086, 136.
4 Cfr. Buchanan, A.E., Brock, D.W., Deciding for others: The
ethics of surrogate decision-making, New York, Cambridge Univer-
sity Press, 1989, 113.
5 Cfr. President’s Commission for the Study of Ethical Prob-
lems in Medicine and Behavioral Research, Making health care…,
op. cit., 55.
6 Cfr. Buchanan, A.E., Brock, D.W., Deciding for others…, op.
7 Idem, 87.
8 Cfr. Beauchamp, T.L., Childress, J.F., Principles of biomedical
ethics…, op. cit., 136.
9 Cfr. Kopelman, L.M., “Children: health care and research
issues”, in Post, S.G. (ed.), Encyclopedia of Bioethics, New York,
respect for the patient´s autonomy applies to the volun-
tary decisions of legally competent and informed adult
subjects who make their own choices about their well-
being as long as it does not harm or violate the rights
of others; 2) Advance directives or vital wills. Competent
persons can draft advance directives on their treatments
or verbally express what they would prefer in the case
that they become incapacitated. This standard is also
known as pure autonomy or precedent autonomy10; 3)
The third standard is that of the substituted or surroga-
ted judgment standard, which applies to an incompe-
tent patient but who was once able to express preferen-
ces; the person making this substitute decision chooses
the option that he/she believes the person would have
chosen if he or she was able to do so; 4) The standard of
the patient’s best interest is to identify the highest net
beneﬁt among the various options available. This stan-
dard applies to pediatric neonatal patients, unqualiﬁed
minors, and incompetent adult patients11. Often, adults
have provided in advance their decisions regarding their
preferences in the form of an advanced directive or a
living will. Even in situations where they have not done
so, they often will have told the family what they would
prefer then to do if they were to become incapacitated.
In such cases, surrogate decision makers must apply the
principle of substituted judgement. The best interest
standard is the only guiding principle for medical deci-
sions in pediatrics.
2. The standard of the patient’s best interests
The patient’s best interest standard is to identify the
greatest net beneﬁt among the different options avai-
lable, assigning different weight to the interests that
the patient has in each option and subtracting the risks
or costs inherent in each of the options. Already in the
ﬁrst deﬁnition of the standard of the best interests ap-
Macmillan, 19953, 387-399, 389-390; Beauchamp, T.L., Childress, J.F.,
Principles of biomedical ethics…, op. cit.135-140; Buchanan, A.E.,
Brock, D.W., Deciding for others…, op. cit., 87-151.
10 Cfr. Davies, J.K., “The concept of precedent autonomy”,
Bioethics, 16 (2002)114-133.
11 Cfr. Kopelman, L.M., “Children: health care and research…”,
op. cit., 390. Usually adults may have enumerated how they want
decisions made by completing