In Defence of Advance Directives in Dementia

It has often been claimed that orthodox thinking about personal identity undermines the moral authority of advance directives in dementia by implying that the signer of the directive is numerically different from the severely demented patient. This is the ‘identity problem'. I introduce the problem, outline some well-known solutions, and explain why they might be deemed unattractive. I then propose an alternative solution. It promises to be compatible with orthodox thinking about personal identity. I discuss three ways in which it might be challenged and find that none is convincing. Personal identity is no bar to the moral authority of advance directives.     

Personal Identity, Autonomy and Advance Statements

abstract    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 statement — 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 interests judgements concerning an individual's care or treatment.     

Stability of older adults' preferences for life-sustaining medical treatment.

The use of instructional advance directives assumes that preferences for life-sustaining medical treatment remain stable over time and across changes in life condition. A sample of 332 older adults recorded their preferences for 4 life-sustaining treatments in 9 illness scenarios. These preferences were elicited again 1 and 2 years after the original interview. Overall, preferences for life-sustaining treatment were moderately stable over time, but stability varied significantly across judgments. Preferences were most stable for illness scenarios that were most and least serious and for decisions to refuse treatment. Age, gender, education, and prior completion of an advance directive were all related to preference stability, and evidence indicated that declines in physical or psychological functioning resulted in decreased interest in life-sustaining treatment.     

Respect for other selves

Philosophers have mostly advocated that advance directives should bear the same authority, with regard to refusal of life-extending treatment, as a patient's contemporaneous consent or refusal. Such authors typically support this position through a theory of persistent personal identity. I agree that the loss of mental competence does not render someone a moral stranger to their prior goal but argue that equating advance direction with consent is to ignore the capacity of nonpersons to attribute and withhold moral value. A distinction should be drawn between advance directives that seek to pursue deeply held goals and those that express contempt for the mentally incompetent.     

Exemplary cases in clinical ethics: commentary on the case of Mr. A

A commentary on a case of a man who is left a "high quad" (ventilator dependant as well as quadriplegic) after an accident discusses the following: The right of patients who sustain catastrophic injuries to choose to discontinue life-sustaining treatment, The role of capacity assessment in treatment decisions and in ethics consultations, The role of advance directives (ADs) for such patients if they lack capacity, Whether a do-not-resuscitate or do-not-attempt-resuscitation order should be seen as "a medical order" or an advance directive, Some hints about what might be intended when a patient refers to the criterion of having a "meaningful life."     

Precedent autonomy and personal identity

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.     

Legal procedures in Wanglie: a two-step, not a sidestep

Hospital policies...have a very limited role in addressing the substantive issue of authority with regard to nonbeneficial therapies. First, they could not be limited, as Mishkin suggests, to persons in a persistent vegetative state. Nonbeneficial therapies encompass many other scenarios including ineffective cancer chemotherapy or open-heart surgery on profoundly demented persons. Second, I am not convinced that families or patients could be meaningfully informed of the specific relevance of such policies to their care in advance of a dispute. Most importantly, the view that such policies are required as a foundation to withhold nonbeneficial therapy implies that patients otherwise have a new right to command the provision of nonbeneficial therapies....It may well be judicially preferable to ask directly for declarative relief from a duty to provide a treatment, as Mishkin suggests. I am not convinced that such an approach would be "ethically" superior....Third, the novel, declarative approach directly risks a precedent that would affirm the family's right to demand futile therapy....Ultimately, when public policy on this kind of dispute is clearer, a declarative strategy may well be preferable. For now, the Wanglie case has outlined the fundamental issues of this novel legal question and has generated a fruitful discussion of a complex issue in patient care and public policy.     

Cue utilization following different forms of encoding in mildly, moderately, and severely demented patients with Alzheimer's disease

The ability of patients with Alzheimer's disease (AD) to utilize semantic category cues in order to improve memory performance was examined. Categorizable lists of words or objects were presented under five different encoding conditions: (a) nouns, (b) objects, (c) objects with a semantic orienting question, (d) objects with self-generated motoric acts, and (e) objects with experimenter-instructed motoric acts. Subjects were asked to memorize the items for a free recall test, and were subsequently provided with the category names in a cued recall test. Mildly, moderately, and severely demented AD patients, and a group of normal older adults participated in the study. Results showed that normal older adults and mildly demented AD subjects were able to utilize cues to improve memory performance in all conditions. Moderately demented patients utilized cues in all conditions except in the verbal condition (condition [a]), whereas severely demented patients utilized cues only in the motoric condition (condition [e]). These results suggest that the ability to utilize category cues following a motoric encoding is preserved later in AD than the ability to utilize cues after a semantic encoding.     

Memory,Quasi-memory,and Pseudo-quasi-memory

Bishop Butler objected to Locke's theory of personal identity on the grounds that memory presupposes personal identity. Most of those sympathetic with Locke's account have accepted Butler's criticism, and have sought to devise a theory of personal identity in the spirit of Locke's that avoids Butler's circularity objection. John McDowell has argued that even the more recent accounts of personal identity are vulnerable to the kind of objection Butler raised against Locke's own account. I criticize McDowell's stance, drawing on a distinction introduced by Annalisa Coliva between two types of immunity to error through misidentification.     

The self-fulfilling prophecy in intensive care

Predictions of poor prognosis for critically ill patients may become self-fulfilling if life-sustaining treatment or resuscitation is subsequently withheld on the basis of that prediction. This paper outlines the epistemic and normative problems raised by self-fulfilling prophecies (SFPs) in intensive care. Where predictions affect outcome, it can be extremely difficult to ascertain the mortality rate for patients if all treatment were provided. SFPs may lead to an increase in mortality for cohorts of patients predicted to have poor prognosis, they may lead doctors to feel causally responsible for the deaths of their patients, and they may compromise honest communication with patients and families about prognosis. However, I argue that the self-fulfilling prophecy is inevitable when life-sustaining treatment is withheld or withdrawn in the face of uncertainty. SFPs do not necessarily make treatment limitation decisions problematic. To minimize the effects of SFPs, it is essential to carefully collect and appraise evidence about prognosis. Doctors need to be honest with themselves and with patients and their families about uncertainty and the limits of knowledge.     

Right of active duty military personnel to refuse psychiatric treatment

Under Federal Court precedents, mentally ill patients have a qualified right to refuse treatment. The amount of due process that may be required to override treatment refusals by active duty military patients is discussed. Due process for these individuals need not be judicial, since medical review satisfies federal requirements. Involuntary administration of medication to active duty military personnel is justified in some circumstances. Specific criteria for overriding treatment refusals are suggested. A sample protocol for overriding the treatment refusals of active duty personnel is offered.     

Fission May Kill You (But Not for the Reasons You Thought)

If a person, A, branches into B and C, then it is widely held that B and C are not identical to one another. Many think that this is because B and C have contradictory properties at the same time. In this paper, I show why this explanation cannot be right. I argue that contradictory properties at times are not necessary for non‐identity between descendants, and that contradictory properties at times are not sufficient for non‐identity. I also argue that the standard explanation cannot be salvaged by a shift to personal time. Appeals to a lack of continuity, or to the absence of unity of consciousness likewise fail. Rather, B and C are non‐identical simply because A branched into B and C. Why branching should be problematic for personal identity remains a deep puzzle though I offer some tentative suggestions.     

Narrative,Expression and Mental Substance

This paper starts from the debate between proponents of a neo‐Lockean psychological continuity view of personal identity, and defenders of the idea that we are simple mental substances. Each party has valid criticisms of the other; the impasse in the debate is traced to the Lockean assumption that substance is only externally related to its attributes. This suggests the possibility that we could develop a better account of mental substance if we thought of it as having an internal relation to its states. I suggest that we may be able to do this by relying on the notion of expression. In developing this idea I draw heavily on aspects of Wittgenstein's philosophical psychology, while also developing and criticizing Strawson's account of persons and recent work by Lynne Baker. I conclude by arguing that mental substance, understood in this way, can only be grasped in narrative terms; substantialist and narrative accounts of personal identity, far from being opposed, are mutually supporting and require one another to be coherent.     

A dilemma for the soul theory of personal identity

The problem of diachronic personal identity is this: what explains why a person P₁ at time T₁ is numerically identical with a person P₂ at a later time T₂, even if they are not at those times qualitatively identical? One traditional explanation is the soul theory, according to which persons persist in virtue of their nonphysical souls. I argue here that this view faces a new and arguably insuperable dilemma: either (a) souls, like physical bodies, change over time, in which case the soul theory faces an analogue problem of diachronic soul identity, or (b) souls, unlike physical bodies, do not change over time, in which case the soul theory cannot explain why souls relate to particular bodies over time and so at best only partially explains personal identity. I conclude that the soul theory fares no better than physicalist-friendly accounts of personal identity such as bodily- or psychological-continuity-based views.     

Primary care physician attitudes and values toward end-of-life care and physician-assisted death

This study explores how primary care physician attitudes toward physician-assisted death (PAD) are related to their personal values toward end-of-life care and PAD. A group of 810 Michigan family physicians, internists, and general practitioners, divided into 4 typology groups by their intention toward participating in PAD, rated their attitudes toward PAD, along with their values and preferences for their own end-of-life care. Respondents who most objected to PAD were less likely to have executed an advance directive and more likely to have values promoting continued life-sustaining treatment in their own terminal care. Furthermore, a significant number of physicians, who had strong values against their own withdrawal of treatment in terminal care, were opposed to the withdrawing or withholding of life-sustaining treatment in patient care. Considerations of personal physician values are relevant in the discussion of PAD and the withdrawal of treatment in terminal care.     

Memory and identity

Among the many topics covered in Sven Bernecker’s impressive study of memory is the relation between memory and personal identity. Bernecker uses his grammatical taxonomy of memory and causal account to defend the claim that memory does not logically presuppose personal identity and hence that circularity objections to memory-based accounts of personal identity are misplaced. In my comment I investigate these claims, suggesting that the relation between personal identity and memory is more complicated than Bernecker’s analysis suggests. In particular, I argue (1) that while he shows that some memories do not presuppose personal identity he fails to show that those that are appealed to in memory-based accounts of personal identity do not, and (2) that the features of his view that allow him to define memory without reference to personal identity also obscure important features of memory that must be part of a complete account.     

The Patient Self-Determination Act

The Patient Self-Determination Act was signed into law in November 1990 to take effect in December 1991. The Act marked Congress's first legislative action related to life-sustaining medical treatment. It requires every health care facility that participates in Medicare or Medicaid to inform adult patients about advance directives. McCloskey discusses the legislative process leading to passage of the Act; pro-life groups' opposition to federal support of advance directives; provider groups' skepticism toward the perceived administrative burden of federal intervention; and professor Alexander Capron's preference for existing voluntary efforts over premature legislation.     

The right to refuse treatment in Oregon: A two-year statewide experience

The right to refuse treatment seems well established for psychiatric patients. Individual states, however, have very different procedures for managing this right and for overriding the refusal. Oregon's administrative procedure for override depends on an evaluation by an independent examining psychiatrist. This article empirically examines the 432 refusals leading to override requests in three Oregon psychiatric institutions in 1983 and 1984. Treatment refusal was found to be a common occurrence in all age groups. Those who refused treatment were seriously ill, unemployed, single individuals with previous psychiatric hospitalizations. Most refused treatment because of denial of their illness or delusional thinking about medication. Most refusals were overridden following the independent psychiatrist's examination. Because of the significant cost of the override procedure to the patient and the mental health system, the authors propose a new procedure which combines parts of the current procedure with a requirement that, at the time of the civil commitment hearing, the judge makes a separate decision as to the patient's competency to make treatment decisions.     

Loss and change in primary care: Working with organisational anxiety

This paper will consider the identity of an inner voice that is experienced by everyone, but in very different ways. However, when working in the transference with psychotic patients the boundaries of personal identity and the question of choice and volition are so compromised by the illness that the phenomena are so to speak ‘writ large’. This allows the issues to be brought out with great vividness and intensity and it is the struggle with this that has led me to reconsider the identity of the inner voice in a way which I have found useful for the rest of my clinical work.

Prior to 1985, my clinical work with patients with psychotic illnesses was undertaken in the in-patient psychotherapy ward at Shenley Hospital that I was responsible for. With the movement of psychotherapy resources out of Shenley to set up the Willesden Centre, our ability to continue with this work was very compromised because the Centre is entirely an out-patient resource. However, a number of us persevered and gradually worked out ways to be able to continue to offer treatment to patients who had psychotic illnesses. This involved the establishment of a case-manager system to enable the therapist to work in the transference. This evolution has occurred in a specialist workshop that I have been running at the Willesden Centre since 1986.