Trumping Advance Directives

Abstract

When, if ever, should a patient's advance directive not be followed? Since it is widely accepted that a competent patient's treatment choice must be respected, and an advance directive can reasonably be understood as the treatment choice of a patient while still competent, some believe that informed, voluntary advance directives should always be followed. However, there are several reasons for special doubts about whether an advance directive accurately reflects what the patient would have wanted. Uncertainty as to how closely an advance directive reflects what a patient actually would want may arise from any of several sources. Advance directives typically require individuals to predict what they would want well in advance of the use of the directive in treatment decisionmaking, and so treatment choices in advance directives often inevitably are less well informed than competent patients' contemporaneous choices. For example, new, highly beneficial treatment may have been developed of which the patient was unaware; or if the directive is very old there may be evidence that the patient's wishes about treatment have changed. Also, advance directives must often be formulated without knowing what it will be like to experience the radically different conditions in which later treatment choices must be made. Further, advance directives are often formulated in somewhat vague or general terms, which inevitably leaves significant discretion in applying them to later treatment choices and, in turn, uncertainty about whether they have been correctly interpreted. Moreover, when competent patients make choices that appear to be seriously in conflict with their well-being or settled preferences and values, these choices will typically be questioned, explored, and even opposed by their physicians, family members, and others who care for them to insure that the patients fully understand the nature and implications of their choices, and that the choices are what they want. Directives executed by no longer competent patients obviously cannot be similarly clarified. Finally, advance directives are often framed with implicit assumptions about the conditions in which the directive will be applied. For example, an advance directive declining CPR may be intended by the patient to apply to circumstances where her overall condition has so deteriorated that she is virtually certain not to survive the attempt. The patient may not have meant her directive to apply, however, should a cardiac arrest be caused by a medical procedure or in reaction to a drug, and in circumstances where CPR is highly likely to succeed and to leave the patient unimpaired. In the second kind of case in which an advance directive might be trumped, what the individual executing the directive really wanted need not be in doubt. Instead, the issue is the moral authority of that individual's advance directive to determine the patient's treatment. That authority can be called into question when the directive appears to be seriously in conflict with important interests of the present patient or the patient has suffered such profound cognitive changes-for example, being now in a persistent vegetative state or severely demented-that there are doubts whether personal identity is maintained between the person who executed the advance directive and the present patient. The strongest cases of this sort for trumping advance directives will be when both these conditions obtain, with directives requesting either the forgoing of treatment or maximally aggressive treatment. …