My last posting concerned the background of how Massachusetts law deals with medical decision-making for incapacitated persons who need potentially invasive treatment that can have profound and permanent consequences. I noted that unlike many states, where the decisions may be left to a guardian to decide what is in a person's best interest, Massachusetts law requires a judge to step into the shoes of the incapacitated person and determine as best as possible what the incapacitated person would want if he were competent and able to voice an opinion. The law says an incapacitated person may be competent to make some decisions but not others. By law, the court is supposed to consider such variables as the likely outcomes with or without treatment, risk and benefit of the proposed treatment, whether the person has a supportive family and the impact on the person's family which may be caused by the proposed treatment if the person were competent, the person's religious beliefs and whether those beliefs would influence the person's decision-making if competent. The judge does not have to agree with the person's likely decision in order to make the substituted judgment — after all, even persons of great intelligence and competency can make bad decisions about their health care — but if the evidence points to a conclusion that the person would take a certain action if competent, then that's what the judge is supposed to order.

There is a long, sad history of forced sterilization being imposed in all fifty states on people without a hearing or any evidence presented other than the assumptions and prejudices of people with power. (A good example of this situation occurred in North Carolina, which is only now being settled.) While I am not aware of any statistics concerning the number of cases heard in the Probate Court concerning requests for sterilization and abortions for persons who are legally incapacitated, my sense based on discussions with colleagues who have a substantial guardianship practice suggests that these proceedings are now quite rare. (In 16 years of guardianship practice, I have only had one such case — and the guardian decided not to go forward.)

In 1982, the Supreme Judicial Court extended the substituted judgment doctrine to reproduction, noting that “the personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent.” The person potentially subject to such an order must be given adequate notice of the proceedings, an opportunity to be heard concerning whether whether she has the ability to give informed consent, a determination of substituted judgment if there is no such ability, and the right to appeal. The person is appointed specially-trained legal counsel to be sure that their constitutional rights are fully protected, and may receive funds from the court to hire an expert to advise on the necessity of the proposed procedure and provide testimony about the medical benefits and risks. A Guardian ad Litem is usually appointed to conduct an independent investigation of the facts and submit a written report. The judge is hold a hearing, weigh the evidence and make a detailed decision describing all the relevant facts, the substituted judgment criteria, and apply the facts to the law to determine if the person would want to be sterilized or have an abortion if they could make an informed decision.

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