Notes
For example, the UK Mental Capacity Act (2005) section 9.1; The General Medical Council (2010); the US National Guardianship Association (2007); Nuffield Council on Bioethics (2009); CIOMS-WHO (2002) section 6. Court cases such as Re Quinlan (1976) in the US have also contributed to establishing the groundings for the legal status of the proxy, albeit in terms of who might be suitable as a proxy in cases where there was no clear appointment of them by a still competent individual.
I will here limit myself to discussion of proxy consent for adults appointed prior to the loss of competence by the person they are acting as proxy for. The issue of proxy consent for adults who have never been competent, for adults who did not appoint then proxy before losing competence, and for children, all involve a different set of ethical considerations that do not directly stem from arguments surrounding extending our autonomy and transferring our authority.
This is broadly the account given in Anscombe (1981).
There are well-recognised limitations to this, such as on subjecting others to communicable diseases, on what is legally permissible, and on the right to receive any treatment that is demanded.
This is not to say that similar conceptual problems do not arise in the case of other methods of extended decision-making, such as advance directives. Rather, the use of proxies produces clearer illustrations of the dilemma and is therefore most suited to discussion.
By ‘legitimate’ I mean ‘according to appropriate moral requirements’. I will leave legal legitimacy to one side as this paper concerns conceptual and ethical issues. Although there has been much discussion of who the legal decision-maker is, this is separable from the question of whether we have an ethical obligation to respect such decisions in the same way as we do in cases of contemporaneous autonomous decisions. One notable exception is Dworkin (1988) pp 85–99, concerning representation and the proxy.
I do not mean by this that there is a formal equivalence between the two such that the relation would be reflexive, symmetric and transitive. This is instead a claim about the requirement to respect the authority. If bequeathed authority has the equivalent requirement to be respected as that of the bequeathing autonomous individual, then we have the same requirements to follow the instructions of bequeathed authority as we do to follow the instructions of an autonomous agent.
I shall not consider this line in depth, as it is a substantive issue in its own right. I raise it in recognition that this might be a more radical response to the problem of being unable to justify an extension of our autonomy.
As expressed in Buchanan (1988). This is the dominant view in the literature on the topic and is true not only of proxy decision-making but also other major approaches to extended decision-making, such as advance statements. See also Wrigley (2007a) for a discussion of the implications of this for advance directives.
See, for example, the characterisation of proxies given in Buchanan and Brock (1990) or Wrigley (2007b). It should be noted that these arguments concern only proxies appointed by the individual on whose behalf they make decisions and not proxies who are appointed by others, in such roles as advocates or wards of court, or who take up a ‘presumptive authority’ as a proxy, such as a family member.
This is in contrast to conceptions that are concerned with the possession of certain capacities to make certain kinds of choice, for example, an account of autonomy that associates it directly with a capacity might indicate that once a person has lost that capacity, it would be impossible to extend decision-making past that point. A range of concerns about the implications of loss of capacity in relation to extended decision-making are discussed in the literature. See, for example, Wrigley (2007a). Kantian views of autonomy might also not admit of transfer, as argued by Kuflick (1984).
This does not mean that the views put forward by the proxy should not be considered or that they are not in some way important in virtue of the appointed role a proxy has, just that we are not morally obliged to respect them as we would be for a contemporaneous decision made by an autonomous agent. See Keywood (2003) for an explanation of the advocate-type role of a proxy.
See also Davis (2004) for a discussion of establishing precedent autonomy as a means of settling conflicts between known conflicting preferences of an incompetent person.
This is the basic characterisation given by Anscombe (1981) p 43. There are, of course, other conceptions of authority that we are all familiar with and which might have some bearing on how we respond to a proxy’s judgement, such as legal authority or more broadly political authority. However, my focus here only concerns whether there is any sort of ethical duty stemming from a respect for autonomy by which we should respect proxy decision-making.
One might wish to draw parallels to Kant’s account of the wrongness of slavery in this regard—that decisions as to what I may or may not do are made by others rather than myself and this undermines my very status as an autonomous agent. See, for example, Haltman (2007) p 113.
Dworkin’s arguments simply equate modes of political representation with proxy decision-making. For example, the view that there exists an ‘identity of interests’ corresponding between a patient and their proxy is taken to be a justification simpliciter for their authority (p 91). However, this does not, by itself, give a reason why the proxy and not some other person with similar interests has authority.
See Buchanan and Brock (1990) pp 98–9.
It might be the case that, once this conceptual dilemma is revealed to people, they attempt to appoint a proxy with a caveat specifying that their authority should not be treated as if it is transitive. For a discussion of this point, see (L1) in Section 4, below.
It is important to remember that the standard for appointing a proxy on the substituted judgement (SJ) basis is not that they are the person best placed to make substituted judgements but only that they are the person of whom it is desired that they should make decisions based upon that principle.
See, for example, Buchanan (1988).
This is not to say that such advance directives are unproblematic, only that they are not directly subject to transitivity concerns.
I would like to thank Angus Dawson for his very helpful comments on a draft version of this paper, Monique Jonas for her advice on the role of decision-makers in the case of children, Nicky Priaulx for useful discussion on legal-ethical aspects of proxy decision-making, audiences at the WCB and Welsh Medico-Legal Society where early versions of the paper were presented, and three anonymous referees for this journal.
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Wrigley, A. Moral Authority and Proxy Decision-Making. Ethic Theory Moral Prac 18, 631–647 (2015). https://doi.org/10.1007/s10677-014-9548-2
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DOI: https://doi.org/10.1007/s10677-014-9548-2