My Disaffection with Advance Directives, and Maybe Autonomy Too.
I just started teaching the Law of Death and Dying for the umpteenth time. I’ve always more or less been a part of the cadre of (former in my case) hospital lawyers who advocate for everyone to have an advance directive so that doctors know what they’re supposed to do when you’re incompetent and life and death decisions must be made. Innumerable studies suggest the Advance Directive experiment hasn’t worked, but we haven’t come up with anything better, and in certain populations (those for whom death in the next decade is a statistical probability due to age or diagnosis), they can help with decision-making. The war in Iraq has caused me to become much more skeptical about Advance Directives.
Rebecca Dresser of Washington University in St. Louis employs personal identity theory to oppose exclusive reliance on advance directives, arguing that the competent, functioning person who decides what health care she should receive, say, fifteen years hence is not the same person to whom these directives will apply. That is, that the person now in a nursing home with Alzheimer’s Disease who no longer recognizes his wife or children but seems basically content , is not the same “person” who executed the Advance Directive a decade or two ago with a dread of incompetence.
I have tossed my students into this debate every year. Last year, I unequivocally took the position that Dresser is right, to the consternation of most of my students. The prior semester, one of my (somewhat older) students was preparing to ship out to Iraq with his National Guard unit. That he enrolled in Death & Dying his semester before deployment was a remarkable thing to me, but I went with it, and we talked quite a bit about advance directives for soldiers. I even toyed with the idea of training law students to assist my student’s unit in preparing their own Advance Directives – this war’s soldiers are much more likely than those of prior wars to return home brain-injured – their torsos are pretty well protected by armor, but they still lose limbs, and the many soldiers who would previously have died are returning home with brain injuries.
But the more I learned about these soldiers, the more convinced I became that at least for these very young adults leaving for Iraq, Dresser must be right. There is no way an 18 year old transitioning from his high school foot ball field to boot camp, getting ready to ship out, is the same person as the injured and incompetent (otherwise the Advance Directive would be irrelevant) soldier returning to Walter Reed or a rehab institute. While my experience with war and soldiers is pretty limited, I found myself unwilling to help the young men and women, many of whom are younger than our students, pre-plan what their treatment decisions were should they got blown up by an IED.
And of course, you can imagine the outrage of most of my students, almost none of whom ever conceived of the remote possibility they’d be plopped down in Iraq or Afganistan. But by rejecting Advance Directives for soldiers, I was refusing to respect their (my students as much as these soldiers) autonomy and constitutionally protected right of self-determination (actually, the constitutional jurisprudence is not so straightforward as they would have it). To them, I was essentially arguing for a return to paternalism , upending the decades of progress by the adherence to the doctrine of informed consent and patient autonomy.
They are right. I have become disenchanted with power we accord autonomy. Sometimes other principles should prevail, and sometimes a decision is patently wrong or irrational or transient. I can’t bring myself to aid an 18 year old who should be on a date at the movies prospectively decide whether he’s willing to live a life without legs, or imagine whether she can tolerate living with the consequences of brain injury. My veteran student returned to school this semester. I look forward to testing my new perspective on him.