The woman, identified in court records by the pseudonym Mary Moe, has a long history of mental illness. She denies she is pregnant and has refused obstetric testing and care. When discussing a previous abortion, she becomes “agitated and emotional,’’ the appeals ruling stated.
Citing “substantial delusional beliefs,’’ Harms ruled that the woman was not competent to make a decision about an abortion, but if she were, she would choose to terminate her pregnancy.
That line of reasoning, known as “substituted judgment,’’ is required under Massachusetts law in guardianship cases involving “extraordinary treatment,’’ such as abortion, removing life support, and administering antipsychotic medication.
It applies to people who are deemed incapacitated for reasons that include mental illness, developmental disabilities, and dementia.
The standard took hold in Massachusetts after a landmark case in the late 1970s involving a profoundly mentally retarded man who was diagnosed with leukemia. The state Supreme Court ruled that incompetent patients have the right to refuse treatment, and that the court must act as a surrogate to determine what the patient would choose.
Massachusetts remains one of a minority of states to follow the substituted judgment standard, Fleischner said. Advocates for the mentally ill say the standard is crucial to protecting their welfare and rights.
“There’s an argument to be made that we can never know what someone would decide if they were competent,’’ said Gary Zalkin, a mental health lawyer in Wellesley. “But I think that’s the most respectful way to start.’’
In practice, however, many courts wind up basing decisions on what they believe would be in the person’s best interests, lawyers said. In a common scenario, patients who resist medication are often ordered to take it.
“It’s a hard row to hoe,’’ Fleischner said. “Once the patient is found to be incompetent, it’s tough to overcome that hurdle. In most cases, there’s no real evidence to what the client would have done, so it’s assumed they would want to take medication.’’
