AIs as Substitute Decision-Makers

Ian Kerr
Vanessa Gruben
21 Yale J.L. & Tech. Special Issue 78

We are witnessing an interesting juxtaposition in medical decision-making. Increasingly, health providers are moving away from traditional substitute decision-making for patients who have lost decisional capacity, towards supported decision-making. Supported decision-making increases patient autonomy as the patient—with the support and assistance of others—remains the final decisionmaker. By contrast, doctors’ decision-making capacity is diminishing due to the increasing use of AI to diagnose and treat patients. Health providers are moving towards what one might characterize as substitute decision-making by AIs. In this article, we contemplate two questions. First, does thinking about AI as a substitute decision-maker add value to the development of AI policy within the health sector? Second, what might the comparison with traditional substitute decision-making teach us about the agency and decisional autonomy of doctors, as AI further automates medical decision-making?