ADVANCE DIRECTIVES AND THE ROCKY WATERS OF ANTICIPATORY DECISION-MAKING

Abstract

It is now trite to note that competent adults have the legal right to give or withhold consent to medical treatment.1 But, when the individual lacks the capacity to make a contemporaneous decision, an alternative justification for treatment is required. This might be found in a proxy consent or through the doctrine of necessity. However, given the primacy of autonomy in both bioethics and the law, an obvious move—triggered by medical advances that meant patients could be kept alive for prolonged periods in minimally cognitive states—was to look for ways in which an individual can retain decisional authority. The answer, first suggested by the American lawyer, Luis Kutner, in 1967, was the living will or advance directive.2 This device allows individuals to refuse consent to treatments in anticipation of a period of incompetence when they would lack the ability to make a contemporaneous decision.3 Since all decisions...