Advance directives, future selves and decision-making

The Liberal ideal of self-determination is a well-established principle of Anglo-American law. 1 For competent patients, the law 2 protects their right to decide irrespective of how irrational or harmful to themselves their decisions may be. 3 This works passably well for much of the competent person's life as the torts of battery and negligence make the lawfulness of medical treatment subject to the patient's consent. The problem is, as a moment's reflection will reveal, that there are likely to be times when we lack the requisite capacity. If being in control of one's own life is important, this loss of decisional-competence, whether temporary or permanent, will raise concerns as to how best to retain that control despite the envisaged period of incompetence. The desire to retain this control may be amplified by the current state of medical science, which is often capable of prolonging our survival in severely damaged and compromised states. Although incompetent patients are not abandoned to the vagaries of their own decisions, reliance on unchosen surrogate decision-makers, whether using the best interests or substituted judgment standards, may not be sufficient safeguard of the values and interests that provide the skeleton of the autonomous person's life. The alternative is to try and predict the most critical decisions and to set out prior instruction to determine what happens should one be unable to make a contemporaneous choice. This attempt to control, what happens to us during periods of incapacity, is mediated through what is commonly called an advance directive. 4 Although it has sometimes been doubted, there is little question that competent and applicable advance directives carry the same legal force as a contemporaneous decision. 5 In England and Wales, the status of an advance directive has been put beyond any doubt by the Mental Capacity Act 2005. … In this article, I examine this challenge to advance directives and consider some of the responses that have been put forward in defence of them. Drawing on those responses, I argue that even if the reductionist approach is accepted, advance directives may still have a legitimate and important role to play.