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Trumping advance directives.

When, if ever, should a patient's advance directive not be followed? Since it is widely accepted that a competent patient's treatment choice must be respected, and an advance directive can reasonably be understood as the treatment choice of a patient while still competent, some believe that informed, voluntary advance directives should always be followed. However, there are several reasons for special doubts about whether an advance directive accurately reflects what the patient would have wanted.

Uncertainty as to how closely an advance directive reflects what a patient actually would want may arise from any of several sources. Advance directives typically require individuals to predict what they would want well in advance of the use of the directive in treatment decisionmaking, and so treatment choices in advance directives often inevitably are less well informed than competent patients' contemporaneous choices. For example, new, highly beneficial treatment may have been developed of which the patient was unaware; or if the directive is very old there may be evidence that the patient's wishes about treatment have changed. Also, advance directives must often be formulated without knowing what it will be like to experience the radically different conditions in which later treatment choices must be made. Further, advance directives are often formulated in somewhat vague or general terms, which inevitably leaves significant discretion in applying them to later treatment choices and, in turn, uncertainty about whether they have been correctly interpreted.

Moreover, when competent patients make choices that appear to be seriously in conflict with their well-being or settled preferences and values, these choices will typically be questioned, explored, and even opposed by their physicians, family members, and others who care for them to insure that the patients fully understand the nature and implications of their choices, and that the choices are what they "really" want. Directives executed by no longer competent patients obviously cannot be similarly clarified. Finally, advance directives are often framed with implicit assumptions about the conditions in which the directive will be applied. For example, an advance directive declining CPR may be intended by the patient to apply to circumstances where her overall condition has so deteriorated that she is virtually certain not to survive the attempt. The patient may not have meant her directive to apply, however, should a cardiac arrest be caused by a medical procedure or in reaction to a drug, and in circumstances where CPR is highly likely to succeed and to leave the patient unimpaired.

In the second kind of case in which an advance directive might be trumped, what the individual executing the directive really wanted need not be in doubt. Instead, the issue is the moral authority of that individual's advance directive to determine the patient's treatment. That authority can be called into question when the directive appears to be seriously in conflict with important interests of the present patient or the patient has suffered such profound cognitive changes-for example, being now in a persistent vegetative state or severely demented-that there are doubts whether personal identity is maintained between the person who executed the advance directive and the present patient. The strongest cases of this sort for trumping advance directives will be when both these conditions obtain, with directives requesting either the forgoing of treatment or maximally aggressive treatment. For example, a person with some cognitive impairment from a stroke may have issued an advance directive that all life-sustaining treatments be forgone if he becomes significantly cognitively impaired. Though mentally handicapped, he is now otherwise healthy and with support leads a pleasant life. If he develops pneumonia that would be easily treatable with antibiotics, forgoing treatment appears contrary to his current interest,,,.

The third general kind of case in which an advance directive might be trumped is when the interests of others warrant not honoring it, just as they can limit the decisionmaking authority of a competent patient. In the more common scenario of a directive refusing certain forms of care, only in a very few cases should the interests of others override the patient's advance directive. For example, in treating patients very near death physicians sometimes say that they are principally treating the family, not the patient. What is often meant is that the treatment being provided will have little effect one way or the other on the interests of the patient, who will die very soon whatever is done, but may have a great effect on the surviving family and how they are able to deal with the patient's dying and death. Stopping treatment might then be very briefly delayed to help the family accept the patient's death. In the case of an advance directive asking for particular treatments, limits on the authority of advance directives can apply: when the treatment requested will be funded by the resources of others and exceeds the just level of health care that should be provided from those sources, public procedures might justly deny that care. So too it may be ethical not to honor the patient's directive asking for treatment if doing so would seriously violate the moral or professional integrity of the treating physician; for example, if the patient's directive requests treatment that would now be certainly and completely futile. However, in many such conflicts transfer of the patient's care to others who can honor the advance directive is appropriate.

The issue for public policy, then, is what procedures should be required before an advance directive is set aside or overridden. Because of reasonable fears about abuse by physicians or family members of any authority not to honor advance directives, some believe they should always be binding. A better alternative, I think, is to develop institutional and judicial procedures and safeguards to reduce the risk of abuse to tolerable levels. These procedures might require going to court for some, or even nearly all cases, and consultation with ethics committees or other intra-institutional bodies in others. Though advance directives may not be ethically binding in all cases, they should be honored in the vast majority, and should only be set aside after careful consideration and by following procedures adequate to limit abuse. Dan W Brock is Professor of philosophy, Brown University, Providence, R.I. This draws on work done with Allen Buchanan.

To ensure compliance with requirements of

State law . . .respecting advance directives

at facilities of the provider or organization; and

to provide (individually or with others) for

education for staff and community on issues

concerning advance directives.
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Title Annotation:Practicing the PSDA; Patient Self-Determination Act
Author:Brock, Dan W.
Publication:The Hastings Center Report
Date:Sep 1, 1991
Words:1073
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