oxford handbook of bioethics

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Soft Paternalism

Understanding that precedent autonomy involves former preferences also undermines the possibility of defending the Extension View on soft paternalist grounds. Although not prominently discussed in bioethics writings on precedent autonomy, a soft paternalist strategy is worth considering. Soft paternalism consists of interfering with someone’s liberty either to ascertain whether he or she is informed and rational, or on the ground that he or she is not both informed and rational, and that we are doing what that person would want if he or she were informed and rational. One could argue that, even if a patient does not currently have the preference expressed in his or her advance directive, we should treat the patient in accord with the advance directive on the grounds that the patient really does want what he or she earlier wanted, but does not realize it because his or her mental capacity is impaired. However, a soft paternalist defense of the Extension View runs into the same problem that confronts Rhoden: An agent does not ‘truly’ want a thing if he or she no longer wants it at all. If he or she truly wants that thing, the preference is not a former one ( Just not fully understood right now).

Ronald Dworkin

Dworkin, another proponent of the Extension View, coined the phrase ‘precedent autonomy’ for cases where the patient is incompetent ‘in the general, overall sense’ and ‘lacks the necessary capacity for a fresh exercise of autonomy’ (Dworkin 1993: 226 – 7). To show why we should respect precedent autonomy, Dworkin poses another Jehovah’s Witness case. This time the Witness suffers a medical crisis which impairs his competence, and he asks to be transfused. His earlier preference not to be transfused is a former preference, and he acquired his current preference in a state of incompetence. Which preference should we respect? ‘Suppose we were confident that the deranged Witness, were he to receive the transfusion and live, would become competent again and be appalled . . . In those circumstances, I believe, we would violate his autonomy by giving him the transfusion.’ Presumably most of us agree, and, according to Dworkin, this judgment implies that we believe some former preferences should be respected, so long as no current preference, formed while competent, overrules the former preference (Dworkin 1993: 227).

However, Dworkin runs into the same problem as Rhoden and the soft paternalist approach, for, despite his disclaimer, his case involves a current preference, not a former one. He declares that ‘this is not like a case in which someone who objects to a given treatment is unconscious when he needs it’, but also stipulates that the Witness will regain competence once he is transfused (1993: 227). In fact, this is like a case where the patient is temporarily unconscious, for this patient will recover once transfused. The only difference is that, unlike an unconscious patient, Dworkin’s Witness now has a current incompetent preference to be transfused. Because Dworkin’s Witness is temporarily incompetent, he

has not lost his earlier preference against being transfused, any more than a temporarily unconscious patient would. Most advance directive cases, however, involve permanent incompetence. Dworkin’s argument works only if one makes the same judgment in an altered version of his case where the Witness is permanently ‘deranged’, and he will never be ‘appalled’ at what we have done. That is quite a different case, and exactly the kind of case where Dresser, Robertson, and many medical professionals are inclined to say we should not respect the patient’s former preferences, but should promote his or her current welfare instead.

4.3. Narrative Approaches to Precedent Autonomy

Many bioethicists reject the Extension View in favor of a narrative approach to understanding end-of-life decision making. This approach fits less easily with the two questions about precedent autonomy raised above, but we can use those questions to highlight how the narrative approach differs from other approaches.

Although proponents of the narrative approach trace it to chapter 15 of Alasdair MacIntyre’s After Virtue, Howard Brody is probably its best-known bioethics advocate.19 The basic idea is that lives can be seen as stories, with story-like structures. The metaphor of life as a narrative fits nicely with the substituted judgment principle of surrogate decision making, for, according to the narrative approach, the surrogate is to make the decision that best continues the themes of the patient’s life narrative (Brody 2003: 254; Blustein 1999: 20). If, for example, the patient was always a strong-willed, independent individual who valued a physically active life, then her life story is better concluded by a chapter in which she dies of natural causes without delay, than by a chapter in which she is kept alive for years in a state of deep incompetence on a ventilator and feeding tube.

However, proponents of this approach believe it does more than explicate substituted judgment. They believe it highlights features of end-of-life decision making that tend to be obscured by a more simplistic picture of well-informed, decisive, self-reliant agents planning their own future care. Mark G. Kuczewski (1999) cites studies that suggest that surrogates are not very good at discerning what people would want when they are incompetent, and argues that surrogates should try instead to determine what decision best fits the themes, values, and overall direction of a patient’s life (Kuczewski 1999: 34). Brody argues that people do not always want to be sole authors of their own life stories, or at least not the final chapter. Brody claims (citing other studies) that people want close relatives to make end-of-life decisions for them as seems best when the time comes, and

19 Outside the bioethics and narrative literature, David Velleman (1991) has developed a rigorous account of how the narrative structure of a life contributes to its overall value, using a series of thought-experiments to demonstrate that we tend to believe that how much value a given episode contributes to a life depends in part on when that episode occurs within that life (Velleman 1991).

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that the narrative approach better accommodates this (Brody 2003: 257). Jeffrey Blustein believes that the narrative approach shows how to respect the autonomy of someone who never worked out a clear plan for his future: continue the story, even if that person never expressly decided how this should be done (Blustein 1999: 24).

The narrative approach is an important reminder that not everyone exercises precedent autonomy over his or her future. For the many who do not — who prefer instead that close family members make the decision for them, or that the surrogate simply decide in accord with the spirit of their life, or who have not considered end-of-life issues at all — the narrative approach provides a more sophisticated model for surrogate decision making than simply asking what the patient would now want if he or she could tell us.

However, for patients who do try to control their own future medical treatment, the narrative approach seems less of a fit. Such agents are their own authors, and when they succeed in clearly stating preferences that are relevant to their later circumstances, they leave little discretion to end-of-life editors. For this reason, the narrative approach simply does not address whether an earlier preference is still attributable to a now-incompetent patient, or whether former preferences command our respect just as current preferences do. As discussed earlier, Kuczewski has argued, on narrative grounds, that a permanently incompetent patient is the same person as his earlier self, but again, personal identity is not the real issue here: the real issue is the persistence of preferences.

Nor is it clear what moral reason we have to treat an incompetent patient so as to best continue and finish the themes of his or her life story. If the reason is to respect the patient’s autonomous wishes that his or her life story be continued in that manner, then we are back to respect for precedent autonomy and the questions it raises: Is the patient’s preference to live according to those themes and patterns still attributable to him or her, and if not, why should we respect it? If the moral reason for continuing (or ending) that life story so as to achieve good narrative fit has nothing to do with respecting the patient’s autonomy, what is the moral reason for doing so?

One could argue that the narrative approach is a way of promoting the patient’s best interest. If so, then the narrative approach might be paired with the Moral Authority Objection, and offered as a sophisticated best interests alternative to the Extension View. This requires the claim that what continues the narrative themes and patterns of a life coincides with what is best for a patient. However, that may not always be true. Some people live self-destructive or careless lives, or live to promote causes other than their own welfare.

One could also argue that narratively well-structured lives have a kind of aesthetic or moral value in their own right (as any good narrative does), and that that value gives us reason to be careful how we finish those narratives. However, if that is the moral reason to make end-of-life decisions in a narratively inspired way, then more needs to be said about the moral value of such life narratives — especially lives that

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choose between them. Precedent autonomy cases concern people with declining competence — their decreased competence prevents them from having a later resolution preference to conflict with their former resolution preference; what they prefer, all things considered, is satisfaction of the former conflicting preference. This account of conflicting and resolution preferences fits a hierarchical theory of the will (Frankfurt 1971),21 as well as nonhierarchical theories of the will, such as Gary Watson’s discussion of an agent’s judgment about whether a desire should be satisfied (Watson 1975: 217).

One might object that we cannot respect a former preference any more than we can vote in an election after the polls have closed. However, it is easy to respect an agent’s former preference; we do it the same way we respect or have relations with other things that exist only in the past. Every February we celebrate Abraham Lincoln’s birthday. To respect a former preference we simply stay out of the way when it is being fulfilled, or help to fulfill it if we have a duty to do so. The fulfillment or assistance occurs after that preference has become a former preference. The fact that the former preference is no longer attributable to someone does not mean that respecting that preference does not constitute respecting his or her autonomy.

The reason why it seems that we do not respect an agent’s autonomy by respecting his or her former preference is that, in most cases involving a former preference, the agent also has a current preference that conflicts with the former one, and a tacit resolution preference favoring satisfaction of the current preference over any conflicting former preferences. If we respect the former preference, we thereby disrespect the current preference and violate the agent’s right of autonomy. However, what violates the agent’s autonomy is not that we respected a former preference, but that we failed to respect a current preference. The reason why failing to respect the current preference violates the agent’s right of autonomy is that a current preference is usually coupled with awareness of the former preference, and is therefore accompanied by a tacit resolution preference favoring satisfaction of the current preference over the former preference. However, this is not true in cases of a permanent, substantial decline in competence.

This argument also provides a way to respond to Derek Parfit’s objection that it is absurd to give the satisfaction of past desires equal weight with the satisfaction of present desires: ‘When I was young, I most wanted to be a poet . . . Now that I am older, I have lost this desire . . . [The proponent of temporal neutrality] must . . . claim that I have a strong reason to try to write poems now, because this was what I most wanted for so many years . . . Most of us would find this claim

21 There is some controversy over whether hierarchical models of the will can explain free will or personhood, as they are meant to. However, the moral authority of advance directives does not require an explanation of these topics; for our purposes any model of conflicting desires will do, provided it allows us to say that, when someone has two or more conflicting preferences, and that person autonomously prefers to resolve that conflict in a particular way, we respect his or her autonomy by not interfering with (or assisting, if duty-bound to do so) his or her efforts to resolve that conflict.

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never discovered a cure for her disease. The best explanation of why it was wrong to transfuse her is that her interest in avoiding transfusions survived her sleeping disease, for again, saying that someone has an investment interest in something is simply a way of summarizing the moral judgment that it would be wrong to treat that thing in a way that would bother that person if he or she knew we did it.

The sleeping disease case reveals something important about the conditions for investment interest survival: It is possible, in a certain sense of possibility, for permanent conditions to change, no matter how unlikely that may be. The kind of possibility involved in suggesting that a permanent condition might not be permanent after all is very loose; ‘medical’ possibility will not do. There are two suitable kinds of possibility in this case. First, it is ‘logically’ possible for her to recover from permanent unconsciousness, for regaining competence would not violate the constraints of formal logic or other metaphysical limits on how the universe can be. Second, it is ‘nomologically’ possible, for regaining competence would not violate the laws of the natural world or the constraints science tells us govern the universe. Because both kinds of possibility are present in cases of permanent incompetence, and because logical possibility is broader than needed for an argument that interests can survive, let us say that an interest can survive provided it is nomologically possible for the person who holds that interest to recover the mental capacity necessary to care about the object of that interest. Moreover, it does survive if, were he or she to recover the necessary capacity, he or she would care about it. Thus, it would be wrong to transfuse (or slander, etc.) this person even if medical science never discovers a cure for her sleeping disease. I call this the Argument from Sleep.

This case differs from Dworkin’s case in two ways. First, our Witness is permanently incompetent, or as permanently as anyone can be without massive brain damage (more of this later). Second, this case has a different argumentative purpose. Dworkin’s case was meant to show that we should respect former preferences — a conclusion I have argued for on very different grounds. This case is used, instead, to show that we believe that investment interests survive so long as it is still nomologically possible for the interest holder to regain competence.

Both interests and preferences are dispositional in nature. However, whether one has a given preference in one’s actual circumstances depends on one’s disposition in one’s actual circumstances, not in some other possible world; this is why permanent incompetence creates former preferences. Interests, by contrast, depend on one’s dispositions in the nomologically possible world where regaining the capacity to care is possible. The argument for interest survival is not that people retain their dispositions to care in their actual circumstances, but that it is nomologically possible for their circumstances to change such that they could be so disposed.

(Defining the relevant counterfactual is a task beyond this chapter, but, roughly speaking, it will be the closest possible world in which competence can be regained.) It is not surprising that preferences and interests differ on these points, for preferences are psychological entities, while investment interests are moral entities whose survival turns on moral judgments.

How the Argument from Sleep Relates to Loss of Concern and Interests that Survive Death

The Argument from Interests that Survive Death requires the premise that interests survive death while my argument does not. As for the Argument from Loss of Concern, my argument enables us to draw a convincing distinction between loss of concern and loss of capacity for concern. My argument shows that interests survive if, assuming it is nomologically possible, the holder would affirm the interest if he or she regained the capacity to do so. This is how to distinguish between loss of concern and loss of capacity: When the holder loses concern, the holder will not affirm the former interest even though he or she has the capacity to do so, whereas when the holder loses capacity, the holder may or may not affirm the former interest if he or she regains capacity. That is why an interest can survive a loss of capacity even though it cannot survive a loss of concern.

6 . CONCLUSION

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Like ordinary personal autonomy, the autonomy expressed in advance directives is grounded in suitable preferences and interests. Most defenders of the moral authority of advance directives have claimed or assumed that the preferences expressed in advance directives are still attributable to the now-incompetent patient, or that the patient is still the same person (and therefore, presumably, has the same preferences). This defense fails, however, for even if the patient is the same person, a sufficient loss of mental capacity transforms the patient’s earlier preferences into former preferences. After reviewing arguments that overlook this fact, and assessing Dworkin’s argument that we should respect former preferences, I have offered a different argument that sometimes we have a moral duty to respect former preferences. As for interests, critics of advance directives have often viewed investment interests the same way they view preferences. After reviewing arguments for and against surviving interests, I have offered an argument that some investment interests, unlike preferences, can survive a loss of mental capacity.