This book is the most comprehensive treatment available of one of the most urgent - and yet in some respects most neglected - problems in bioethics: decision-making for incompetents. Part I develops a general theory for making treatment and care decisions for patients who are not competent to decide for themselves. It provides an in-depth analysis of competence, articulates and defends a coherent set of principles to specify suitable surrogate decisionmakers and to guide their choices, examines the value of advance (...) directives, and investigates the role that considerations of cost ought to play in decisions concerning incompetents. Part II applies this theoretical framework to the distinctive problems of three important classes of individuals, many of whom are incompetent: minors, the elderly and psychiatric patients. The authors' approach combines a probing analysis of fundamental issues in ethical theory with a sensitive awareness of the concrete realities of health care institutions and the highly personal and individual character of difficult practical problems. Its broad scope will appeal to health professionals, moral philosophers and lawyers alike. (shrink)

Over a 20-year period, the United States has developed a consensus of legal opinion concerning living wills and other advance directives. At the heart of this consensus are two interconnected principles. First, the state should minimally interfere with the wishes of patients and surrogates and the decisions of physicians about foregoing life-sustaining treatments. Second, state interference is permissible for the sake of protecting a compelling state interest. The overwhelming majority of states with advance directive laws have attained this balance of (...) minimal interference and compelling state interest in developing their laws. (shrink)

Most patients suffering from progressive dementia have thoughts, emotions, perspectives, and perceptions of a world of experience. Decisions about life‐sustaining treatment should incorporate a principled approach to evaluating what life is like for these patients.

Philosophically, the most interesting objection to the reliance on advance directives to guide treatment decisions for formerly competent patients is the argument from the loss of personal identity. Starting with a psychological continuity theory of personal identity, the argument concludes that the very conditions that bring an advance directive into play may destroy the conditions necessary for personal identity, and so undercut the authority of the directive. In this article, I concede that if the purpose of a theory of personal (...) identity is to provide an answer to the question What is it for a person to persist over time?, then reflection on personal identity poses a potentially serious threat to the moral authority of advance directives. However, as Marya Schechtman observes, questions about how a single person persists through change are not what most of us are interested in when we think about who a person is. Rather, we are interested in what it means to say that a particular set of actions, experiences, and characteristics is that of a given person rather than someone else. (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)

Consensus is growing among ethicists and lawyers that medical decision making for incompetent patients who were previously competent should be made in accordance with that person's prior wishes and desires. Moreover, this legal and ethical preference for the substituted judgment standard has found its way into the daily practice of medicine. However, what appears on the surface to be an agreement between jurists, bioethicists, and clinicians obscures the very real differences between disciplines regarding the actual implementation of the sub stituted (...) judgment standard. Ethicists and judges have carefully outlined how substituted judgments ought to be made and evaluated. Although differences arise, especially at the state court level, regarding the scope of the substituted judgment standard and its relation to other standards of surrogate decision making, agreement is fairly widespread on the priority of substituted judgment and on the necessity of sufficient evidence being available in order to support a particular substituted judgment. (shrink)

ABSTRACTI consider objections to the use of living wills based upon the discontinuity of personal identity between the time of the execution of the directive anbd the time the person becomes incompetent. Recent authors, following Derek Parfit's “Complex View” of personal identity, have argued that there is often not sufficient identity interests between the competent person who executes the living will and the incompetent patient to warrant the use of the advance directive. I argue that such critics err by seeking (...) personal identity in a purely descriptive manner. By exploring Buchanan and Brock's concept of “surviving interests”, an argument is developed that certain future‐oriented acts have a normative force that contributes to the narrative unity which is constitutive of personal ideality. This narrative concept of the self is entailed by many of the our ordinary practices and challenges the philosophical consensus to view the self in a more dynamic and communitarian manner. (shrink)

Both communitarianism and casuistry have sought to restore ethics as a practical science—the former by incorporating various traditions into a shared definition of the common good, the latter by considering the circumstances of each situation through critical reasoning. Mark G. Kuczewski analyzes the origins and methods of these two approaches and forges from them a new unified approach. This approach takes the communitarian notion of the person as its starting point but also relies upon the narrative and analogical tools of (...) case-based reasoning. He separates out the rhetoric that is incongruent with the Aristotelian aspirations of each method to show that the two are complementary, and that consensus can emerge from fragmentation. He then applies his resulting method to three major problems in bioethics: the difficulties that the issue of personal identity poses for advance directives, the role of the family in medical decision making, and the refusal of treatment because of religious beliefs. He analyzes the need to assume a communitarian notion of the person as a starting point for the application of casuistic insights. Combining theoretical, practical, and scholarly insights, this book will be of interest to philosophers, political and social scientists, and bioethicists. (shrink)

The legal consensus that has evolved through adjudication and legislation since the Karen Quinlan case in 1976 is founded on the premise that there is a bright line between passive euthanasia and active euthanasia. Indeed, the term passive euthanasia is often eschewed in favor of less emotionally-laden terminology such as "forgoing life-sustaining treatment" or "terminating life support" so as to further sever any possible connection with active euthanasia. Legal approval has been bestowed upon passive euthanasia under certain circumstances while active (...) euthanasia is routinely condemned. This consensus was put to a test in 1990 when the United States Supreme Court ruled on the Cruzan case. However, the Court's narrow decision did not upset the consensus, and in the most significant appellate decisions handed down by state courts since Cruzan, there has been a reaffirmation-and possibly even an extension-of the consensus. Two other threats to the legal consensus about forgoing life-sustaining treatment have begun to manifest themselves: the increasing pressure for mercy killing and "futility" cases. Both of these challenge the fundamental premises on which the consensus is grounded. (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)

Philosophically, the most interesting objection to the reliance on advance directives to guide treatment decisions for formerly competent patients is the argument from the loss of personal identity. Starting with a psychological continuity theory of personal identity, the argument concludes that the very conditions that bring an advance directive into play may destroy the conditions necessary for personal identity, and so undercut the authority of the directive. In this article, I concede that if the purpose of a theory of personal (...) identity is to provide an answer to the question What is it for a person to persist over time?, then reflection on personal identity poses a potentially serious threat to the moral authority of advance directives. However, as Marya Schechtman observes, questions about how a single person persists through change are not what most of us are interested in when we think about who a person is. Rather, we are interested in what it means to say that a particular set of actions, experiences, and characteristics is that of a given person rather than someone else. (shrink)