Here’s the familiar hard case: At 50, younger-Meredith (YM), just diagnosed with Alzheimer’s, signs an advance directive (AD) expressing her preference that her doctors do not give her extraordinary treatment to keep her alive if she gets ill after having become demented. Meredith is an intellectual, someone who values the life of the mind, and she feels that to be kept alive when demented would make of her life a cruel joke. At 60, older-Meredith (OM) is demented but seemingly quite content with her life when she contracts pneumonia. When asked if she wants to be kept alive via extraordinary treatment, OM says yes. Whose preferences are morally authoritative, YM’s or OM’s?
Most people, I believe, share the following Intuition: YM’s preferences should be carried out, i.e., the AD is binding. How might Intuition be justified? Many philosophers believe the metaphysics of personal identity is of crucial importance here, that it matters whether or not YM and OM are the same person. But this doesn’t help to settle the issue. After all, suppose YM and OM are identical. While this may seem sufficient to ground Intuition, it’s not, for now we have to figure out why YM’s preferences are authoritative in this case, when in ordinary cases current preferences are authoritative over previous ones. Suppose, alternatively, that YM and OM are not identical. While it may seem that this verdict would render Intuition unjustified, it remains perfectly plausible to think that the original directive is instead to be thought of as delivering Substituted Judgment, an articulation from someone else (usually the closest relative) of what the demented patient would have wanted were she not demented.
There are responses offered to each of these problems, but let me just stipulate here that I don’t think any of them are sufficient to ground Intuition in considerations of personal identity (see here for my argument to this effect). Cases can easily be made for the bindingness or nonbindingness of the AD regardless of whether or not identity is established between YM and OM. Focusing on the identity of the patient is a dead end.
Perhaps, then, we might learn something from how cases like this are actually treated. As it turns out, advance directives are regularly ignored by physicians in the real world. Indeed, they often have to be enforced by court order. The most-cited reason by physicians is quite understandable (and thoroughly real world): they’re afraid of being sued by relatives of patients who might express wishes contrary to the AD.
I think there’s a much more plausible reason available for ignoring ADs in the hard case, however: how can a physician faced with YM’s directive and OM’s contrary preference really know that the directive expresses what YM would have wanted (either for herself or for OM)? In other words, the real puzzle for ADs isn’t metaphysical, it’s epistemic. And barring physicians’ having the requisite degree of knowledge, a “better safe than sorry” mentality rules the day.
Is this a good justification for ignoring ADs? I think that it is for some types, and this point can be brought out by considering two cases.
Ulysses I: Ulysses tells the sailors under his command to tie him to the mast and stop up their own ears so he can hear the Sirens’ song, but that no matter how much he begs them, they’re not to untie him, unstop their ears (until he tells them), or steer the ship to the shore. When in the throes of the song, he goes temporarily insane, and he pleads with his sailors to untie him, but they refuse. Suppose you were a sailor with Ulysses. It seems clear that you’re right not to untie him when he’s begging you to do so.
Ulysses II: Suppose you’re a sailor lost at sea near the Sirens, and you have a kind of unmusical condition such that their song is more irritating than entrancing. As Ulysses’ boat sails near you, you climb aboard, and you see Ulysses tied to the mast. In this scenario, he wrote up instructions to anyone who found him not to untie him, and he sent all his sailors off in a different boat to meet him around Scylla and Charybdis. He then begs you to untie him regardless, directing you to ignore the instructions (despite admitting they’re in his handwriting), saying that all he wants to do is listen to a little music. What do you do?
Here I think you’d be perfectly justified in untying him. Why the difference? In the second story you simply don’t know him and his history: you weren’t there when he signed the document, you didn’t know his state of mind then, his firmness of purpose, or his awareness of the threat, and so you have no way of knowing now whether or not the previous signer of the document fully appreciated what the current situation would be like and thus really knew what he himself would want when in the presence of the Sirens.
In Ulysses I, though, you were with him from the get-go: you saw his resolve, you heard his statement of purpose, his concern for your life, and then you saw the change that overtook him. You’ve experienced the change in him he had predicted, and so you can safely be said to genuinely know what he would have wanted here, namely, to have his earlier preferences respected. (And this is true, I think, regardless of whether or not we think of the temporarily insane Ulysses as the same person as the original.)
What this suggests is that ADs, in their current form, make too heavy an epistemic demand on physicians, for physicians are often presented with a patient in the ER who is expressing a preference contrary to the preferences written down on some piece of paper by someone they’ve never met several years ago. In this respect, then, as in Ulysses II, they take themselves to have reason to play better-safe-than-sorry. How could they know what the patient really would have wanted?
Contrast this scenario, though, with one in which a patient signs an AD with a physician after serious discussion of the various possible outcomes, and then they continue to see one another over the years. When the patient undergoes the psychological transformation, the physician is there, and when the patient is in the scenario specified by the AD and expresses preferences contrary to the AD, the physician is also there. Here, as in Ulysses I, I think the physician has very good reason to respect the preferences of the earlier signer of the directive. The physician is now in a much better epistemic position, knowing the original patient, her specified wishes, and having seen her undergo the psychological change they had both discussed and predicted. Here the “better safe than sorry” argument just won’t cut it.
As a result, here’s a modest proposal: advance directives should be restricted only to patients and physicians who are expected to have a continuing relationship through the time of the circumstances specified in the AD. This allows the physician to serve as the Ulysses sailor, a trusted companion who really does know the patient. Thus, there could be an implicit (or explicit) “out” clause in the contract: if the patient finds herself in the specified circumstances with another physician at the helm, the contract may be overridden at the judgment of the physician. This will restrict the range of viable AD’s rather severely, but it seems that it’s the only way to ease the epistemic burden produced by the current system.
As a final note, something interesting is revealed by the argument here. While metaphysical considerations of personal identity don’t really matter so much when it comes to AD signers, it turns out personal identity may matter when it comes to their physicians: what matters is that the same doctor is by my side as I (or whoever I become) traverse this frightening landscape. What I want when signing the directive is for my preferences now to be respected in the unknown future, but because in signing the directive I’m really passing a burden on to someone else—the respecter of those wishes—it seems to be quite important that the respecter of the wishes be the same person as the receptor of the wishes.
In other words, when I sign the directive I’m pushing the burden of making a life-or-death call onto my end-of-life physician, but for that person to be able to meet the high epistemic burden demanded by this call, that physician should really have been carrying this burden all along, so that I may be thought to be transferring the burden to that person at the time of signing. This, I suggest, is the only way to render that AD genuinely binding, for it’s now a document that’s binding on the physician, not the patient. It’s a promise, in other words, that only one and the same person can carry out.