Preferences and Other Moral Sources

Abstract

Of the many avenues opened for investigation by the push to facilitate advance care planning, two run along together like the lanes of a Los Angeles freeway. These are the empirical and ethical investigations regarding preference, and the traffic has recently been pretty heavy along both. Riding along the empirical avenue, we ask what people actually prefer, the discrepancies among their stated preferences, and whether proxy decisionmaking is in fact a reliable route to arriving at patient preferences. On the ethical avenue we examine the standards that surrogates ought to set for themselves as they try to honor patient preferences, whether investigators are looking at the morally most relevant preferences, and, indeed, whether advance care planning ought to be seen primarily as a means of honoring patient preferences at all. In what follows, we want to suggest that in addition to preference, advance directives ought to rest on other sources of moral goodness as well, and that the inferences that have been drawn from data concerning patterns of preferences about surrogate decisionmakers in particular could stand a little reexamination. Dallas High suggests that depending on what results reward our searching, advocates, policymakers, and scholars will have to learn that the current advance directive process may be the inverse of what it should be and that restructuring the process on the model of probate law may not be so bad after all.[1] In other words, appeal to the family (in some sense of the term) should be seen as the most favored way of making decisions for those who can't decide on their own; treatment directives or durable powers of attorney for health care should be employed only when there is no family or the patient has reasons for not wanting the family to make these decisions. The idea that we should stand the current approach to advance directives on its head is all the more intriguing in that High, along with other workers in this field, acknowledges that patient preferences regarding treatment are not particularly well reproduced by family members. And of course the conventional basis of the family's authority to decide treatment on the patient's behalf has rested largely upon its putative ability to predict what the patient would want.[2] Now that the predictive basis has been repeatedly undermined, one would think that, if anything, families should be disenfranchised from their place at the bedside. Instead, High's suggestion that proxy decisionmaking be restructured on the model of probate law points to a belief that we should trust families even more than the conventional view calls for. Like Pearlman and colleagues,[3] High points out that whether family members are sharp or obtuse when it comes to guessing preferences in un@ usual settings does not exhaust their claim to the role of proxy decisionmakers. Much of his discussion focuses particularly on Pearlman et al.'s favorite candidate for an alternate source of family authority: the (supposed) fact that, as best we can tell right now, people seem strongly to favor their intimates in the role of decisionmakers if the time ever comes when they can no longer decide matters on their own behalf. The moral seems to be that we shouldn't worry so much about accurately duplicating actual treatment preferences; the truly important preference seems to have to do with die person who makes the decision. We could confirm this by carefully researching what High calls meta-preferences: between one's preferences regarding treatment decisions, and one's preferences regarding who makes treatment decisions, which preferences do most people prefer to have honored? If studies indicate that we metaprefer who decides to what is decided, then the probate law model should win the day. The direction of this research program suggests that all the normative weight still rests within the preferences of the individual patient; the conventional view was right about that. …