Academic journal article The Hastings Center Report

Second Thoughts on Living Wills

Academic journal article The Hastings Center Report

Second Thoughts on Living Wills

Article excerpt

Advance directives in their many variations continue to be the preferred solution to treatment decisions for incompetent patients. [1] Recommended by most medical ethicists and advisory bodies, they have achieved judicial or legislative recognition in more than forty states. The Cruzan decision came close to granting them constitutional status. And through the Patient Self-Determination Act federal law now encourages their use by requiring hospitals to inform patients of their right to make such directives.

Given the rising tide in favor of living wills it might seem surprising--and surely politically incorrect--to call their use into question. Yet living wills strike me as an initially appealing but inadequate solution to decisionmaking for incompetent patients. [2] Despite their allure and short-term benefits, they are full of contradictions that threaten the welfare of incompetent patients. Before discussing my objections, however, let me forthrightly acknowledge two benefits of living wills that explain much of their appeal.

One is that advance directives do give competent persons a sense of control over future decisions if they become incompetent. The living will thus empowers people, by extending the scope of personal autonomy to situations in which autonomy cannot be directly exercised. The individual when competent determines the course of her life when incompetent, thus gaining the assurance that she will later be viewed in light of previously expressed preferences. In addition, the certainty that excessive treatment will not be imposed at a later time reassures those fearful of a debilitated future.

The second advantage is that living wills, if specific enough, to provide a workable rule for nontreatment decisions that appears to respect autonomy without compromising respect for incompetent patients. Rather than wrestle with difficult questions about the quality or worth of an incompetent patient's life, treatment can be withheld if the prior directive so specifies. Thus living wills have played an important role in achieving the now widely accepted recognition that treatment can be withheld, in appropriate circumstances, from both competent and incompetent patients.

Yet despite these advantages, it is noteworthy that in practice advance directives have not been so warmly embraced by those they are intended to help. Polls show that only a few people actually make them out. [3] Even when they do, physicians sometimes are very reluctant to follow them. Moreover, living will laws have traditionally been limited to narrowly defined "terminal conditions," leaving other debilitating conditions outside of their purview. [4]

While federal law will increase the use of advance directives by notifying hospital patients of their availability, existing statutory restrictions and the limited use of living wills even where available suggest that ordinary people and policy makers alike distrust--or are ambivalent about--their use in many circumstances. (Indeed, they are accepted most readily only in those circumstances where they are least needed.) Interestingly, this distrust stems from the same source as their advantages. Both grow out of the conceptual confusions and contradictions that inhere in the use of an advance directive to control a future situation.

Confusions and Inconsistencies

A main problem with living wills is that the assumptions underlying their use are confused or not clearly distinguished. It is usually assumed that the justification for giving the competent person power over decisions when she is incompetent is that the competent person is best situated to identify what those future interests are. That is, the prior directive is taken to be the most accurate indicator of the person's interests once she becomes incompetent.

The problem, however, is that the patient's interests when incompetent--viewed from her current perspective--are no longer informed by the interests and values she had when competent. …

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