: Debates on precedent autonomy and some forms of paternalistic interventions, which are related to questions of personal identity, are analyzed. The discussion is based on the distinction between personal identity as persistence and as biographical identity. It first is shown that categorical objections to advance directives and "Ulysses contracts" are based on false assumptions about personal identity that conflate persistence and biographical identity. Therefore, advance directives and "Ulysses contracts" are ethically acceptable tools for prolonging one's autonomy. (...) The notions of personality and biographical identity are used to analyze the ethically relevant features. Thereby, it is shown that these concepts are operative in and useful for thinking in biomedical ethics. The overall conclusion is that categorical arguments against precedent autonomy or "Ulysses contracts" are based on misleading theories of personal identity and that advance directives are an ethically respectable tool for prolonging individuals' autonomy in cases of dementia and mental illness. (shrink)

Honoring a living will typically involves treating an incompetent patient in accord with preferences she once had, but whose objects she can no longer understand. How do we respect her precedent autonomy by giving her what she used to want? There is a similar problem with subsequent consent: How can we justify interfering with someone''s autonomy on the grounds that she will later consent to the interference, if she refuses now?Both problems arise on the assumption that, to (...) respect someone''s autonomy, any preferences we respect must be among that person''s current preferences. I argue that this is not always true. Just as we can celebrate an event long after it happens, so can we respect someone''s wishes long before or after she has that wish. In the contexts of precedent autonomy and subsequent consent, the wishes are often preferences about which of two other, conflicting preferences to satisfy. When someone has two conflicting preferences, and a third preference on how to resolve that conflict, to respect his autonomy we must respect that third preference. People with declining competence may have a resolution preference earlier, favoring the earlier conflicting preference (precedent autonomy), whereas those with rising competence may have it later, favoring the later conflicting preference (subsequent consent). To respect autonomy in such cases we must respect not a current, but a former or later preference. (shrink)

How aggressively should we pursue life-sustaining treatment of the demented patient? This question becomes increasingly important as our population ages and medical technology offers ever more life-prolongation. In Life'sDominion, Ronald Dworkin addresses the issue in the context of an Alzheimer patient who had previously declared the desire to avoid life-sustaining intervention. Dworkin argues for the primacy of what he calls precedent autonomy: In 1995, the HastingsCenterReport carried thoughtful rebuttals by Daniel Callahan and Rebecca Dresser. Much of Callahan's article (...) is devoted to patients who never executed an advance directive, but he states unequivocally that such directives can be overridden, basing much of his argument on the writings of Sanford Kadish. Together, Dresser, Callahan, and Kadish define a clear position opposed to precedent autonomy. (shrink)

Bioethicists are widely agreed that patients have a right of self-determination over how they are treated. Our duty to respect this is said to be based on the principle of respect for autonomy. In end-of-life care the patient may be incompetent and unable to exercise that right. One solution is to exercise it in advance. Advance directives, which include living wills and powers of attorney for health care, enable people to decide what medical treatment they will receive later, when (...) they become incompetent. Advance directives have been criticized in two general ways. First, many critics contend that advance directives fail on a practical level to effect a patient's autonomous choices because, for example, people cannot foresee their futures well enough to make informed decisions in advance. Second, many critics contend that, practical problems aside, there is no moral authority for exercising control over one's incompetent future self. (shrink)

Patients with disorders of consciousness after severe brain injury need surrogate decision makers to guide treatment decisions on their behalf. Formal guidelines for surrogate decisionmaking generally instruct decision makers to first appeal to a patient’s written advance directive, followed by making a substituted judgment of what the patient would have chosen, and lastly, to make decisions according to what seems to be in the patient’s best medical interests. Substituted judgment is preferable because it is taken to preserve patient autonomy, (...) by using a patient’s past wishes and values to reconstruct what they would have chosen for themselves. In this paper, the author argues that for a certain population of patients, the standard interpretation of substituted judgment cannot ensure the preservation of patient autonomy. Patients with “covert awareness” may continue to have values and an authentic sense of self, which may differ from their past values and wishes. Accordingly, surrogate decision makers should make decisions based on how the patient is likely to experience their condition in the present, rather than their past wishes and values. (shrink)

Volume 20, Issue 8, August 2020, Page 104-106.

As patient autonomy expands, a highly controversial issue has emerged. Should the advance directives of refusing life-saving treatments or requesting euthanasia of persons with dementia who express changed minds or are often in a happy state be fulfilled? There are two autonomy-related positions. The mainstream position in philosophical discussions supports the priority of ADs based on precedent autonomy. Buchanan and Brock, and Dworkin represent this view. The other position supports the priority of PWDs’ current wishes based (...) on minimal autonomy represented by Jaworska. By rethinking the theoretical and practical challenges of the two positions and their arguments respectively, the paper concludes that in such a scenario, the priority of ADs is morally indefensible, and it is also challenging to establish minimal autonomy defend the moral priority of PWDs’ current wishes. For PWDs whose past values, beliefs, and preferences fade away but who retain apparent intrinsic sentience of well-being, a modified defined quality-of-life approach serves as another reasonable basis in their medical decision-making, and the ADs and the QoL should be further merged to reduce the uncertainty of the grey zone. (shrink)

Does respect for autonomy imply respect for precedent autonomy? The principle of respect for autonomy requires us to respect a competent patient’s treatment preference, but not everyone agrees that it requires us to respect preferences formed earlier by a now‐incapacitated patient, such as those expressed in an advance directive. The concept of precedent autonomy, which concerns just such preferences, is problematic because it is not clear that we can still attribute to a now‐incapacitated patient (...) a preference which that patient never disaffirmed but can no longer understand. If we cannot make that attribution, then perhaps we should not respect precedent autonomy – after all, how can you respect patient autonomy by giving patients what they no longer want, even if they never disaffirmed those wants? I argue that whether an earlier preference can still be attributed to a now‐incapacitated patient depends on the reasons behind the preference, for a preference includes (and is not merely supported by) the reasons behind it. When the considerations that served as reasons no longer exist, neither does the preference which included those reasons. In particular, if the considerations that served as reasons for the patient exist only under conditions where the patient retains full mental capacity, then once that capacity is lost, so are those reasons and the preference based upon them. I use this analysis of precedent autonomy to ascertain the merits of various approaches to advance medical decisionmaking, including Nancy Rhoden’s approach, approaches based on a Parfitian personal identity analysis, approaches based on soft paternalism, and approaches based on the stability and longevity of preferences. Despite the apparent absurdity of respecting patient autonomy by giving patients what they no longer prefer but have never disaffirmed, I conclude with some programmatic remarks on when and why respect for (precedent) autonomy nonetheless requires us to respect former preferences. (shrink)

The recent judgement in the case of Re:M in which the Court held that it would be unlawful to withdraw artificial nutrition and hydration from a woman in a minimally conscious state raises a number of ethical issues of wide application. Central to these is the extent to which precedent autonomous decisions should be respected in the absence of a legally binding advance decision. Well-being interests can survive the loss of many of the psychological faculties that support personhood. A (...) decision to respect precedent autonomy can contradict the well-being interests of the individual after capacity is lost. These decisions raise difficult questions about personal identity and about the threshold of evidence that is required of an earlier decision in order for it to be respected. (shrink)

It's not unusual to hear someone say, ‘I'd rather be dead than have Alzheimer's’. In ‘Alzheimer Disease and Preemptive Suicide’,1 Dena Davis explains why this is a reasonable position. People taking this position will welcome the discovery of biomarkers permitting very early AD diagnosis, Davis suggests, for this will enable more of them to end their lives while they remain motivated and able to do so. At the same time, Davis observes, people would have less reason to resort to the (...) drastic remedy of pre-emptive suicide if they had absolute authority over the medical treatment they received as patients with dementia; but the threat of pre-emptive suicide is not, in my view, a sufficient reason to grant competent individuals that authority.If preclinical diagnosis of AD becomes possible, some pre-emptive suicides will probably occur. There would be no ethical or practical way to ban such suicides, and it would be silly to try. Clinicians will undoubtedly try to discourage people seeking biomarker information in furtherance of a suicide plan, but savvy individuals will simply conceal their true motivation for having the tests. The real problem for people intent on self-destruction is that biomarkers are unlikely to deliver a clear suicide signal.First, as Davis notes, work on biomarkers remains in the research stage. No one yet knows whether biomarker tests will prove accurate enough to warrant clinical use. Second, even clinically accepted biomarker tests will generate imperfect information about future disease. Biomarkers may produce more accurate estimates of a person's risk of developing AD, but like all predictive tests, they will also yield false positive and negative results. The …. (shrink)

Has the renewal of interest in the ostensible agency of living beings signaled an advance from a merely heuristic Kantian sense of purposiveness to an unequivocally, empirically grounded research program or are there as yet hidden tensions or contradictions in, for example, the organizational autonomy approach to natural agency? Can normativity be found to be immanent in nature but only beginning with the living cell or must a thoroughgoing naturalism find the seeds of normativity immanent throughout abiotic as well (...) as biotic nature? Beginning with a brief exposition of Kant´s influential treatment and recommendation for how to methodologically combine what he took to be the inevitable epistemological limit to explaining the origins of ostensible biotic purposefulness with the legitimate intentions of scientific research and explanation, this essay will critically engage with three recent essays that attempt to grapple with the preceding questions. Having putatively raised questions about the consistency and adequacy of each of the individual positions, the essay will attempt to move synthetically, drawing upon aspects of all three contributions, in the direction of a “cooperativity theoretic” approach to incipient natural normativity and agency. (shrink)

In the mid to late 1980s a debate arose over the moral and legal authority of advance medical directives. At the center of this debate were two point-counterpoint law journal articles by Rebecca Dresser and Nancy Rhoden. What appeared to have the makings of an ongoing critical dialogue ended with the untimely death of Nancy Rhoden. Rebecca Dresser, however, has continued her challenge of advance directives in numerous publications, most recently in a critique of Ronald Dworkin's Life's Dominion. Like Rhoden, (...) Dworkin has been a staunch advocate of advance directives as an exercise of what has come to be referred to as prospective or precedent autonomy. In this paper I will consider a number of the issues that Dresser has repeatedly raised about the infirmities of advance directives, and suggest that it is from an understanding of and appreciation for the narrative dimension of the life of a person that advanced directives draw one of their most powerful justifications. (shrink)

In the mid to late 1980s a debate arose over the moral and legal authority of advance medical directives. At the center of this debate were two point-counterpoint law journal articles by Rebecca Dresser and Nancy Rhoden. What appeared to have the makings of an ongoing critical dialogue ended with the untimely death of Nancy Rhoden. Rebecca Dresser, however, has continued her challenge of advance directives in numerous publications, most recently in a critique of Ronald Dworkin's Life's Dominion. Like Rhoden, (...) Dworkin has been a staunch advocate of advance directives as an exercise of what has come to be referred to as prospective or precedent autonomy. In this paper I will consider a number of the issues that Dresser has repeatedly raised about the infirmities of advance directives, and suggest that it is from an understanding of and appreciation for the narrative dimension of the life of a person that advanced directives draw one of their most powerful justifications. (shrink)

Specifying the moral demands of respect for the autonomy of people with dementia (PWD) in nursing homes (NHs) remains a challenging conceptual task. These challenges arise primarily because received notions of autonomous decision-making and informed consent do not straightforwardly apply to PWD in NHs. In this paper, I investigate whether, and to what extent, the influential account of autonomous decision-making and informed consent proposed by Beauchamp and Childress has applicability and relevance to PWD in NHs. Despite its otherwise practical (...) orientation and suitability for acute care settings, I identify three problems with this account when applied to PWD in NHs. These problems include (1) intentionality as an all-or-nothing condition of autonomous decision-making, (2) construing consent as one-off authorization, and (3) unresolved ambiguities around the primacy of precedent autonomy over best interest considerations. To address these problems, I propose and defend a number of revisions to Beauchamp and Childress’s account. First, I suggest that we consider intentionality as a non-binary criterion of autonomous decision-making. Second, I argue for a model of process consent to overcome the moral inadequacy of construing consent as one-off authorization in NHs. And, to overcome the third problem, I suggest accounting for both precedent and extant autonomy of PWD, considering mandates of precedent autonomy not as prescriptive but as informative, and drawing a less rigid distinction between autonomy considerations and best interest judgements. I conclude that this revised version of Beauchamp and Childress’s account fares better than the original version in capturing relevant autonomy considerations to care for PWD in NHs. (shrink)

Because of the emphasis on individualism and self-governance, medical interventions and medical research in Western nations are preceded by attempts to obtain informed consent from the individual patient or potential research subject. Individual autonomy expresses our belief that persons are ends in themselves and not merely instrumentalities to achieve the goals of others. By respecting the patient or potential research subject in the context of medical decisionmaking, we acknowledge that these individuals are moral agents. Thus, individual autonomy is (...) an important feature of morality as it is practiced in the West. However, there are at least two circumstances in which individual autonomy appears to be threatened. One is embodied in nonwestern societies that favor collective decisionmaking over that of the individual. The other is related to the need for family histories and family testing to determine the susceptibility of family members to some genetically based disease. In both cases, individual judgment appears to be made subordinate to collective judgment. (shrink)

Recent legal rulings concerning the status of advance statements have raised interest in the topic but failed to provide any definitive general guidelines for their enforcement. I examine arguments used to justify the moral authority of such statements. The fundamental ethical issue I am concerned with is how accounts of personal identity underpin our account of moral authority through the connection between personal identity and autonomy. I focus on how recent Animalist accounts of personal identity initially appear to provide (...) a sound basis for extending the moral autonomy of an individual - and hence their autonomous wishes expressed through an advance directive - past the point of severe psychological decline. I argue that neither the traditional psychological account nor the more recent Animalist account of personal identity manage to provide a sufficient basis for extending our moral autonomy past the point of incapacity or incompetence. I briefly explore how analogies to similar areas in law designed to facilitate autonomous decision, such as wills and trusts, provide at best only very limited scope for an alternative justification for granting advance statements any legal or moral authority. I conclude that whilst advance statements play a useful role in formulating what treatment is in a patient’s best interests, such statements do not ultimately have sufficient moral force to take precedence over paternalistic best interest judgements concerning an individual’s care or treatment. (shrink)

This Article discusses what a “super-precedent” is in American Constitutional Law. Additionally, it describes the current criteria used to identify super-precedents and the limitations of these criteria. It then mentions the various precedents that have been afforded this august title and suggests the need for an additional criterion to ensure the continued protection of those precedents most closely associated with the protection of human rights. Finally, the article identifies three additional precedents, beyond those usually recognized, that ought to be (...) ranked super-precedents and provides a basis for ranking all precedents, grounded in autonomy, when they either conflict with one another or encounter a compelling state interest. (shrink)

This essay is an excerpt for a larger paper exploring the concept of autonomy as it emerges in the life and work of the composer, performer, record label executive and club-owner John Zorn. Zorn’s activities over his wide-ranging career span from performing at jazz lofts in the 1970s to winning the MacArthur “genius” grant in 2008, while maintaining his status as a prolific composer and producer of avant-garde music. In interviews, documentaries, and in his music, Zorn often comments on (...) his status as an avant-garde producer, specifically within the context of the record industry and within New York City’s so-called “Downtown” scene. Economics take the forefront in determining artistic attitudes towards both production of music and the music itself, as Zorn has, seemingly, been forced by the “mainstream market” to create a parallel, vertically-integrated economic system to support the livelihood of himself and his collaborators. This excerpt, from the first third of the essay, unpacks Zorn’s relationship with Downtown scene, his conception of the avant-garde, and his attitude towards artists who have set precedents for Zorn’s version of autonomous cultural production. It also notes the idiosyncratic way that both Zorn and his critics have placed Zorn’s music both within and without two distinct traditions: Avant-Garde composition and free Jazz. (shrink)

Upon first consideration, the desire of an individual to amputate a seemingly healthy limb is a foreign, perhaps unsettling, concept. It is, however, a reality faced by those who suffer from body integrity identity disorder (BIID). In seeking treatment, these individuals request surgery that challenges both the statutory provisions that sanction surgical operations and the limits of consent as a defence in New Zealand. In doing so, questions as to the influence of public policy and the extent of personal (...) class='Hi'>autonomy become important. Beyond legal issues, BIID confronts dominant conceptions of bodily integrity, medical treatment, and ethical obligations. This paper seeks to identify the relevant public policy concerns raised by BIID in New Zealand and the limits of autonomy, before moving on to consider how BIID sufferers may legally seek the treatment they require and how a doctor might be protected from criminal proceedings for assault for performing this treatment. It will be argued that it is possible to legally consent to the amputation of a healthy limb as medical treatment and that public perception should not be allowed to take precedence over this right. (shrink)

Mill’s proscription that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ has become almost axiomatic in bioethics. 1 Bolstered by the rise of patient autonomy during the mid-20th century, Millian conceptions of freedom have become so embedded in bioethical theory, that attempts to justify paternalism have typically involved making one of two claims. Either, they have involved refuting the significance of (...) class='Hi'>autonomy as an ethical principle, and questioning whether it should always be taken to outweigh other ethical principles. Or, they have sought to cast doubt on the autonomous quality of specific decisions, challenging them as non-autonomous in some important way. Both approaches are readily apparent in discussions about the moral authority of advance directives, where people have questioned both whether precedent autonomy should always outweigh the person’s current best... (shrink)

Traditionalist and radical orthodox critiques of the Enlightenment assert that the modern discourse on moral self-government constitutes a radical break with the theocentric model of morality which preceded it. Against this view, this paper argues that the conceptions of autonomy emerged from the effort to reconcile commitments within the Christian tradition. Through an analysis of the moral thought of the Cambridge Platonist Ralph Cudworth, this paper contends that distinctively Christian theological concerns concerning moral accountability to God and the character (...) of divine-human moral relationships produced a theory of moral autonomy which anticipates that of Kant. This paper highlights the role of anti-voluntarism in the creation of this moral standpoint, and argues that the resultant moral view is an “internalization” of the voluntarist model of sovereignty. (shrink)

BackgroundThe Western-European concept of libertarian rights-based autonomy, which advocates respect for individual rights, may conflict with African cultural values and norms. African communitarian ethics focuses on the interests of the collective whole or community, rather than rugged individualism. Hence collective decision-making processes take precedence over individual autonomy or consent. This apparent conflict may impact informed consent practice during biomedical research in African communities and may hinder ethical principlism in African bioethics. This study explored African biomedical researchers' perspectives regarding (...) informed consent and potential limitations to the principle of respect for autonomy in African communities.MethodsWe conducted a qualitative study based on in-depth interviews with 12 biomedical researchers, five females and seven males aged 34 to 74 years, currently working at an African university. Interviews lasted 35–40 min each and involved semi-structured open-ended interviews, which allowed participants to offer information about their perceptions and feelings regarding respect for autonomy and informed consent as practised in Africa. Empirical data from the interviews were recorded, transcribed, and analysed using thematic content analysis, together with an interrogation of relevant scientific literature about African communitarian ethics, making evaluations and drawing inferences consistent with the empirical bioethics approach.ResultsBased on these interviews and analysis of relevant literature, we found that informed consent is difficult to apply in an African context because it derives from a Western conception of libertarian rights-based autonomy. Most respondents pointed out that it was challenging to implement informed consent in the African setting. Furthermore, communalism, customary beliefs, spirituality, and relational autonomy are predominant in most African communities, as exemplified by the African moral philosophies of Ubuntu/botho and Ukama, which emphasize communitarianism over individual rights. We also found that language, education, poverty, and cultural beliefs are barriers to obtaining proper informed consent in African communities.ConclusionsWe conclude that there are limitations to applying the principle of respect for autonomy and informed consent in African communities, especially in the context of human biomedical research. We recommend using a more relational approach, such as Ross’s prima facie duties, to implement informed consent in African communities. (shrink)

When behaviours or character traits match sociocultural expectation, heteronomy is a natural suspicion. A further natural suspicion is that the behaviours or character traits are unhealthy for the agent or for objectives of social justice and liberation. Second Wave feminism therefore includes a robust narrative of unease about female self-sexualisation. Third Wave feminism has more upbeat narratives of the latter, in terms of confidence and empowerment. The preceding tension is refracted through cases such as Ronda Rousey and ‘derby girls’, as (...) well as those of many less ostentatious women. It is argued that such self-sexualisation can be autonomous as opposed to heteronomous. It is argued, furthermore, that it is not a priori unhealthy for the agent and that autonomous female self-sexualisation admits of degrees of self-consciousness and articulacy. At the same time, such self-sexualisation takes place within gendered social structures, with consequences that legitimate the reinvocation of Second Wave motifs such as the commodification of female sexuality and the privileging of precise images of female sexuality. (shrink)

When behaviours or character traits match sociocultural expectation, heteronomy is a natural suspicion. A further natural suspicion is that the behaviours or character traits are unhealthy for the agent or for objectives of social justice and liberation. Second Wave feminism therefore includes a robust narrative of unease about female self-sexualisation. Third Wave feminism has more upbeat narratives of the latter, in terms of confidence and empowerment. The preceding tension is refracted through cases such as Ronda Rousey and ‘derby girls’, as (...) well as those of many less ostentatious women. It is argued that such self-sexualisation can be autonomous as opposed to heteronomous. It is argued, furthermore, that it is not a priori unhealthy for the agent and that autonomous female self-sexualisation admits of degrees of self-consciousness and articulacy. At the same time, such self-sexualisation takes place within gendered social structures, with consequences that legitimate the reinvocation of Second Wave motifs such as the commodification of female sexuality and the privileging of precise images of female sexuality. (shrink)

Since the second half of the twentieth century, the principle of autonomy has come to be regarded as the cornerstone of medical ethics. Older principles of medical ethics, such as beneficence and non-maleficence, both of which can be subsumed under the concept of “care”, have correspondingly decreased in importance. Drawing on hermeneutic analyses of the constitutive interrelations between autonomous will-formation on the one hand, and well-being and social embeddedness on the other hand, it will be argued that a proper (...) understanding of autonomy necessarily incorporates attention to well-being and care, and vice versa. The true ethical challenge is not to determine whether autonomy or care ought to take precedence, but to understand respecting autonomy and providing care as two aspects of one and the same ethical demand to attend to and help other individuals. (shrink)

Disagreement over the legitimacy of direct sterilization continues within Catholic moral debate, with painful and at times confusing ramifications for Catholic healthcare systems. This paper argues that the medical profession should be construed as a key moral authority in this debate, on two grounds. First, the recent revival of neo-Aristotelianism in moral philosophy as applied to medical ethics has brought out the inherently moral dimensions of the history and current practice of medicine. Second, this recognition can be linked to Catholic (...) morality through Vatican II’s affirmation of the legitimate autonomy of culture, including the sciences. A partial precedent for understanding the moral authority of medicine can be found in the recent history of Catholic medical morality, and we further argue that a full contemporary recognition of that authority would weigh against an absolute prohibition of direct sterilizations. Institutionally, we propose the allowance of direct sterilizations in cases where the clinically perceived biomedical good of the patient is at stake. (shrink)

We establish the thesis that in moral education, particularly in the first years of the child’s development, unreflexive acts or unreflexiveness in certain behaviours of adults is a condition for the development of the personality structure and virtues that enable autonomous ethical reflection and a relation to the Other. With the notion of unreflexiveness we refer to resolvedness in the response of adults when it is necessary to establish a limit, or cut, in the child’s demand for pleasure, as well (...) as to resolvedness as one of the structurally essential elements in behaviours with which the adult subordinates the child to the symbolic order or language. In philosophy, a symptomatic position in this context is represented by Kant’s theory of education. On the basis of the “traditional” concept of “negative education”, and through Freud’s and Lacan’s psychoanalytic concepts, we identify two principles that should, in contemporary times, be an essential part of the moral educational behaviours of adults: the principle of a delimited response to the child’s demand for the satisfaction of pleasure, and the principle of reasoned, reflected, but nevertheless certain, persevering, resolved unreflexiveness in the subordination of the child’s desire to the symbolic order . On the basis of the preceding analysis, we highlight certain consequences of this structure of the subject for the contexts of particular theoretical discussions and for school practice. (shrink)

Much debate concerning ‘precedent autonomy’ – that is, the authority of former, competent selves to govern the welfare of later, non-competent selves – has assumed a radical discontinuity between selves, and has overlooked the ‘bridging’ role of intimate proxy decision-makers. I consider a recent proposal by Lynn et al. (1999) that presents a provocative alternative, foregrounding an imagined dialogue between the formerly competent patient and her/his trusted others. I consider what standards must be met for such dialogues to (...) have moral force, appealing to narrative and feminist ethics. I then critique the dualistic construction of selves implicit in much of the advance directive literature, noting the continuities of dependence, character, and body, as well as the social dimension of the construction of selves. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Personal Identity and the Moral Authority of Advance DirectivesAndrea OttSection 1What is the metaphysical basis for respecting an advance directive first drawn up by an individual who is competent but who is at present rendered incapacitated?1 What are the roles of autonomy, personal values, integrity, and beneficence contained within said respect? In this section the positions of two prominent philosophers, Ronald Dworkin and Jeff McMahan, will be analyzed (...) with regard to the above questions. While the two thinkers have different scholastic orientations—with Dworkin primarily a philosopher of law and McMahan an ethicist and metaphysician—their conclusions regarding the respect of the wishes of the competent-turned-demented are remarkably similar. Namely, they both argue that the values and desires held by the previously competent agent trump any current (contrary) wishes. What this amounts to for Dworkin involves respecting the autonomy of the dominant, competent part of the life where countermanding such autonomy would be worse for the life as a whole. For McMahan this means respecting the precedent autonomy generated by the deep prudential unity relations which form the basis for egoistic concern; this concern is often the basis for drafting a directive regarding future care in the first place.I will argue in this paper that if McMahan is to be consistent with his position regarding prudential unity relations then he will, in fact, not arrive at the same conclusion as Dworkin.2 Consistency will demand that the demented patient’s directive should not be followed because the demented individual will, at best, be only weakly connected to the previously autonomous, decision-capable agent. Therefore, I will argue, the moral authority [End Page 38] of the advance directive will be similarly weakened. According to McMahan, Dworkin maintains that the precedent autonomous decision has moral authority, for he assumes that the individual in question is understood to be one “temporally extended individual,” so that what is best for her life now will, in fact, be what is best for her life as a whole (501). McMahan claims to support Dworkin’s conclusion, albeit for different reasons. McMahan supports the execution of the directive out of some sort of respect for the earlier “reasonably full and complete life with its own deep prudential unity” (502). I argue that McMahan, though ostensibly in agreement with Dworkin, will have to acknowledge that the weakened prudential unity relations which make the life as a whole matter less will also undercut the moral authority of the directive. In other words, the moral authority of an advance directive weakens as the prudential unity relations weaken.Ultimately, I believe, Lynne Baker and her metaphysics of constitution can provide the best direction when faced with dilemmas such as The Advance Directive. Baker can do this and avoid the charge of positing a “post-person” (the basis for McMahan’s criticism of other versions of psychological accounts of personal identity). I use her metaphysics of constitution and derivative properties within a novel explanation of prudential concern for the organism without positing identity. I argue, in section 2, that the organism made the decision for advance care when it was derivatively (in Baker’s sense) a person. We can thus avoid the charges of (1) new entities “popping” into existence and (2) a person binding a nonperson. Such a metaphysics of constitution may thus offer some hope of adjudication within debate concerning these matters.Now I shall turn to the thought experiment in The Ethics of Killing that forms the basis of this discussion. True to the general style of his work, Jeff McMahan asks the reader to consider a thought experiment. To avoid any misinterpretation of the facts, I reproduce The Advance Directive in full below:A woman whose life has been devoted to creative intellectual work finds herself in the very early stages of Alzheimer’s disease. Given her nature, her values, and the character of her previous life, she believes that for her to continue to live in a demented state would be horribly degrading, worse than simply ceasing to exist. She accepts, however, that her life will continue to be worth living as long as she remains competent; therefore to commit... (shrink)

Advance directives are critically important for capable individuals who wish to avoid the burdens of life-prolonging interventions in the advanced stages of dementia. However, this paper will argue that advance directives should have less application to questions about feeding patients during the clinical course of dementia than often has been presumed. The argument will be framed within the debate between Ronald Dworkin and Rebecca Dresser regarding the moral authority of precedent autonomy to determine an individual’s future end-of-life care (...) plan. We will use a brief analysis of the positions taken in two important papers that come out of the Dworkin/Dresser debate and a hypothetical patient, John, who will be followed from diagnosis of dementia to death, to show how advance directives should apply to key points in the progression of his disease, particularly in relation to food and nutrition. (shrink)

The authority of the intact self over the future severely demented self is based on notions of integrity and precedent autonomy. Despite criticism of this authority, the principle of precedent autonomy in the care of people with Alzheimer disease or other progressive and irreversible dementias retains its moral significance.

Advance directives (ADs), which are also sometimes referred to as ‘living wills’, are statements made by a person that indicate what treatment she should not be given in the event that she is not competent to consent or refuse at the future moment in question. As such, ADs provide a way for patients to make decisions in advance about what treatments they do not want to receive, without doctors having to find proxy decision-makers or having recourse to the doctrine of (...) necessity. While patients can request particular treatments in an AD, only refusals are binding. This paper will examine whether ADs safeguard the autonomy and best interests of the incompetent patient, and whether legislating for the use of ADs is justified, using the specific context of the legal situation in the United Kingdom to illustrate the debate. The issue of whether the law should permit ADs is itself dependent on the issue of whether ADs are ethically justified; thus we must answer a normative question in order to answer the legislative one. It emerges that ADs suffer from two major problems, one related to autonomy and one to consent. First, ADs’ emphasis on precedent autonomy effectively sentences some people who want to live to death. Second, many ADs might not meet the standard criteria for informed refusal of treatment, because they fail on the crucial criterion of sufficient information. Ultimately, it transpires that ADs are typically only appropriate for patients who temporarily lose physical or mental capacity. (shrink)

The Australian state of Victoria introduced new legislation regulating medical treatment and associated decision-making in March 2018. In this article we provide an overview of the new Medical Treatment Planning and Decisions Act 2016 and compare it to the former Medical Treatment Act 1988. Most substantially, the new Act provides for persons with relevant decision-making capacity to make decisions in advance regarding their potential future medical care, to take effect in the event they themselves do not have decision-making capacity. Prima (...) facie, the new Act enshrines autonomy as the pre-eminent value underlying the state’s approach to medical treatment decision-making and associated surrogate decision-making. However, we contend that the intention of the Act may not accord with implementation of the Act to date if members of the community are not aware of the Act’s provisions or are not engaged in advance care planning. There is a need for further research, robust community advocacy, and wider engagement for the intention of the Act—the promotion of “precedent autonomy” in respect to surrogate medical treatment decision-making—to be fully realized. (shrink)

There are two contrasting views on the decision-making for life-sustaining treatment in advanced stages of dementia when the patient is deemed incompetent. One is to respect the patient's precedent autonomy by adhering to advance directives or using the substituted judgement standard. The other is to use the best-interests standard, particularly if the current judgement on what is best for the incapacitated patient contradicts the instructions from the patient's precedent autonomy. In this paper, I argue that the (...) protracted clinical course of dementia over many years requires the extended perspective of a progressive decision-making process—extended in both social space and time. The ongoing debate between these two competing views has missed this perspective by focussing on an exclusive disjunction between the competent former self and the incompetent current self. Drawing on theories of situated cognition in cognitive science, I will show that the cognition of a demented patient can be viewed as extended and embodied by her supportive social environment. As the disease progresses, the content of the mind of a demented person becomes partially constituted by such external resources along with her diminishing intrinsic mind. With this understanding, medical decision-making for a demented patient can be construed as a temporally and socially extended practice. A collective decision-making body consisting of the patient, her family and surrogates, and the clinician, should make progressive decisions as a whole over years of the disease course. Finally, I will provide a practical example of how this proposal can be applied in clinical practice. (shrink)

The recent ruling from England on the case of M is one of very few worldwide to consider whether life-sustaining treatment, in the form of clinically assisted nutrition and hydration, should continue to be provided to a patient in a minimally conscious state. Formally concerned with the English law pertaining to precedent autonomy (specifically advance decision-making) and the best interests of the incapacitated patient, the judgment issued in M's case implicitly engages with three different accounts of the value (...) of human life, which respectively emphasise its self-determined, intrinsic and instrumental value. The judge appeared to be most persuaded by the intrinsic value of life and he concluded that treatment ought to continue. Assessing whether his approach or conclusion were ethically appropriate involves significant substantive and evidential questions regarding where the burden of proof should lie and what standard of proof should be required when decisions are to be made about the fates of patients inhabiting ‘twilight worlds’. (shrink)

As the prevalence of dementia increases across the Western world, there is a growing interest in advance care planning, by which patients may make decisions on behalf of their future selves. Under which ethical principles is this practice justified? I assess the justification for advance care planning put forward by the philosopher Ronald Dworkin, which he rationalises through an integrity-based conception of autonomy. I suggest his judgement is misguided by arguing in favour of two claims. First, that patients with (...) dementia qualify for some right to contemporary autonomy conceptualised under the ‘sense of liberty’ it provides. Second, that respecting precedent autonomy, such as an advance care plan, is not essential to Dworkin’s integrity-based account of autonomy. Together, my claims problematise the practice of using advance decisions in the context of dementia. (shrink)

In this article author considers the rights, not of someone who was born and always been demented but of someone who has been competent in the past. He asks if a competent person´s right to autonomy includes the power to dictate hat life prolonging treatment be denied him later, even if he, when demented, pleads for it. To answer this question he considers the extension of contemporary and precedent autonomy and the consecuences holding and evidentiary view or (...) the integrity perspective of autonomy implies. (shrink)

The moral authority of advance directives as a vehicle of precedent autonomy is highly problematic in cases of severe dementia of the Alzheimer’s type. It is unclear how personal values and interests can be enforced by means of such an advance directive; at the stage of severe dementia the distal binding powers of precedent autonomy have expired; and the moral costs of removing another human being from life are very high. It transpires that in fine drawing (...) up an advance directive in the face of Alzheimer is an inappropriate method of orchestrating one’s future care and death. This leaves persons diagnosed with Alzheimer’s disease with two morally preferable alternatives. One is that they accept that, when severe dementia is setting in, autonomy is not an issue; others decide. The second is that they commit pre-emptive suicide after Alzheimer’s disease is diagnosed. (shrink)

IntroductionExtended decision -making through the use of proxy decision -makers has been enshrined in a range of International Codes, Professional Guidance and Statute,For example, the UK Mental Capacity Act section 9.1; The General Medical Council ; the US National Guardianship Association ; Nuffield Council on Bioethics ; CIOMS-WHO section 6. Court cases such as Re Quinlan 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. and is now widely seen as a useful means through which we can exercise control over decisions that affect our lives when we have lost capacity to make these decisions for ourselves.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 p. (shrink)