Philosophy, Psychiatry, & Psychology

Savulescu and Dickenson present a novel conceptual account of the relevance of advance directives to treatment decision making. Their account, which departs from the conventional understanding of advance directives, supports revisions in the clinical application of advance directives. If advance directives are morally authoritative because they represent a person’s present dispositional preferences, then the directives of persons with mental illness should have a broader role in determining such patients’ treatment. Conversely, the present dispositional analysis weakens the conceptual support for allowing advance directives to influence the care of persons who have permanently lost the ability to form preferences about their treatment.

According to Savulescu and Dickenson, an advance directive should affect a patient’s treatment to the degree that the directive represents the patient’s present dispositional preferences. The authors believe that the present dispositional account of advance directives is philosophically and practically superior to the standard account, which holds that directives are expressions of a patient’s past preferences. Savulescu and Dickenson argue that a person’s past preferences are less entitled to respect than a person’s present preferences, and that many patients have relevant present preferences that persist through episodes of incapacity.

Savulescu and Dickenson emphasize one implication of this analysis. They contend that if the present dispositional account were incorporated into policy, advance directives would be more frequently applied in cases involving persons with intermittent and chronic mental illness. Yet their account also has important implications for the use of advance directives in other patient populations.

According to the conventional understanding, advance directives are most appropriate in the context of end-of-life care. Courts, clinicians, and medical ethicists have generally discussed advance directives in the context of patients whose terminal [End Page 247] or serious illness has rendered them permanently incompetent. Thus, advance directives have been promoted as a means for healthy or recently diagnosed competent persons to ensure that their current preferences will govern treatment decisions after they irrevocably lose the ability to control their medical care.

As Savulescu and Dickenson note, however, the present dispositional account cannot be applied to patients who have lost the capacity to form preferences relevant to their treatment. According to the authors, “when incompetence is permanent, it can be said that a person no longer has the relevant dispositional preferences which have a strong claim to respect.” Their account undermines the conceptual support for applying advance directives to cases involving patients with moderate or severe dementia, stroke, and other conditions accompanied by serious and permanent cognitive impairment. Moreover, in their account, such patients’ past preferences have questionable relevance to their care. Treatment preferences formed before an individual experienced and understood the later condition lack the moral authority of present dispositional preferences.

In short, Savulescu’s and Dickenson’s analysis weakens the conceptual justification for relying on directives in many end-of-life treatment situations. Instead, as they point out, decisions in these situations must be supported by alternative ethical principles and concepts, such as protecting the patient’s best interests or promoting a just allocation of health care resources.

Though the present dispositional account supports a significantly different application of advance directives than the standard account, the dispositional account is subject to similar practical limits. First, the dispositional account fails to dispense with the problem of uncertainty about an individual’s genuine preferences. In this account, an advance directive may be implemented if there is persuasive evidence that the incompetent patient expressed a clear, free, and informed treatment preference during some prior period of competency, and that this preference is likely to remain once the patient’s capacity is restored. Disputes and errors regarding the nature and authenticity of such preferences seem inevitable. In my view, the authors fail to supply convincing reasons to support their claim that the dispositional account is less vulnerable to evidentiary problems than the standard account of advance directives.

Moreover, replacing the standard account with the present dispositional account is unlikely to alter objective restrictions on the choices expressed in directives. In practice, legal and clinical decision makers are substantially affected...