Advance directives and the rocky waters of anticipatory decision-making

It is now trite to note that competent adults have the legal right to give or withhold consent to medical treatment. 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. 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. Since all decisions necessarily project into the future it might be thought that the authority of an advance directive should present few theoretical difficulties, even if some practical issues could be identified. After all, the difference between a contemporaneous and an anticipatory decision is purely one of degree rather than type: namely, the time interval between the decision and the intervention. *Med. L. Rev. 2 However, the authority of advance directives has been questioned on both philosophical and practical grounds. There are three basic types of criticism levied at advance directives. The first is an attack on the moral authority of the directive. The gist of the criticism is that the person making the directive lacks the authority to bind the incompetent individual because they lack the necessary psychological relationship. The second type of attack is directed at the weighting given to autonomy and the third is focused on the pragmatic difficulties of implementing and relying on advance directives. For example, in a recent critique of the US approach to living wills, Fagerlin and Schneider claimed that: ‘the rewards of the campaign to promote living wills do not justify its costs. Nor can any degree of tinkering ever make the living will an effective instrument of social policy’. Because I have already considered the first problem, and the law has in theory accepted autonomy as the dominant guiding principle, I will here focus on how advance directives are implemented. I will argue that, rather than protecting precedent autonomy, the legal implementation of advance directives serves to facilitate the provision of healthcare, to protect the patient's welfare and to protect the healthcare professionals from liability. Any protection of autonomy is secondary to those primary goals.