Surrogate decisions: substituted judgement and best interests
- Topic
When a patient cannot decide, someone else decides by what the patient would have wanted or, if unknown, by the patient's best interest.
What it is
If a patient lacks capacity for a decision, someone decides on their behalf. The order of preference is: first what the patient said beforehand (advance directive), then substituted judgement (what they would have chosen, given their values) and, if their wishes are unknown, best interests (what benefits them most). In many countries the law sets a hierarchy of surrogates: appointed agent or guardian, spouse or partner, adult children, parents, siblings. In Colombia, Law 23 of 1981 speaks of parents, guardians, relatives or close persons, and Law 1996 of 2019 created advance directives and supports for people with disabilities.
The three standards for deciding for someone else
| Standard | Question | When it is used |
|---|---|---|
| Advance directive | What did the patient put in writing? | Whenever one exists and fits the situation |
| Substituted judgement | What would they have chosen, with their values? | When their values or wishes are known |
| Best interests | What is best for them? | When their wishes are unknown or they never had capacity |
In clinical practice
- Remind the family that the question is not «what do you want» but «what would he want».
- If relatives at the same level disagree, hold a meeting and, if the conflict persists, involve the ethics committee.
- A surrogate who decides clearly against the patient's interest can be challenged through institutional or court channels.
- In children the best-interest standard applies: substituted judgement is impossible because they never had capacity.
Legal framework in Colombia
- Law 23 of 1981: art. 14 requires authorisation from parents, guardians or close persons to operate on minors, unconscious or incapable people; art. 15 refers to the patient «or those responsible». It sets no order of priority among relatives.
- Law 1996 of 2019: art. 6 presumes the legal capacity of people with disabilities; art. 21 regulates advance directives for adults (including health); art. 53 bars starting new guardianship (interdicción) proceedings.
- Official texts checked on 2026-11-05 at funcionpublica.gov.co.
Test yourself
Think of the answer, then tap the question to see it.
What is substituted judgement?
Deciding what the patient would have chosen according to their values and wishes, even if the surrogate would choose otherwise for themselves.
When is the best-interest standard used?
When the patient's wishes are unknown or the patient never had capacity, such as a young child.
In what order are the standards applied when deciding for a patient who lacks capacity?
First their advance directive, then substituted judgement and, if their wishes are unknown, best interests.
Which Colombian law regulates advance directives for adults, including in health?
Law 1996 of 2019, article 21.
Connections
Educational content on ethics and health law; not legal advice. Laws and case law change: each page links the official text and says when it was last checked. For a real case, read the text in force and ask a lawyer or the medical ethics tribunal.
Sources: Clinical Ethics and Law (University of Washington, Department of Bioethics & Humanities, 2018); Informed Consent (University of Washington, Department of Bioethics & Humanities, 2018); Ley 23 de 1981, por la cual se dictan normas en materia de ética médica (Función Pública, Gestor Normativo, 1981); Ley 1996 de 2019, régimen para el ejercicio de la capacidad legal de las personas con discapacidad mayores de edad (Función Pública, Gestor Normativo, 2019).
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Representative model, for educational purposes only.