Taking Advance Directives Seriously

by Olick, Robert S.

• ISBN13: 9780878408689
• ISBN10: 0878408681
• Format: Hardcover
• Copyright: 2001-08-01
• Publisher: Georgetown Univ Pr

Summary

In the quarter century since the landmark Karen Ann Quinlan case, an ethical, legal, and societal consensus supporting patients' rights to refuse life-sustaining treatment has become a cornerstone of bioethics. Patients now legally can write advance directives to govern their treatment decisions at a time of future incapacity, yet in clinical practice their wishes often are ignored. Examining the tension between incompetent patients' prior wishes and their current best interests as well as other challenges to advance directives, Robert S. Olick offers a comprehensive argument for favoring advance instructions during the dying process. He clarifies widespread confusion about the moral and legal weight of advance directives, and he prescribes changes in law, policy, and practice that would not only ensure that directives count in the care of the dying but also would define narrow instances when directives should not be followed. Olick also presents and develops an original theory of prospective autonomy that recasts and strengthens patient and family control. While focusing largely on philosophical issues the book devotes substantial attention to legal and policy questions and includes case studies throughout. An important resource for medical ethicists, lawyers, physicians, nurses, health care professionals, and patients' rights advocates, it champions the practical, ethical, and humane duty of taking advance directives seriously where it matters most-at the bedside of dying patients.

Author Biography

Robert S. Olick is associate professor in the Program in Biomedical Ethics and Medical Humanities and the Department of Family Medicine at the University of lowa College of Medicine and the University of Iowa College of Law. He formerly served as executive director of the New Jersey Bioethics Commission, where he was a principle author and legislative architect of that state's advance directives law

Table of Contents

Preface	ix
Acknowledgments	xi
Introduction	xiii
The Place of Prospective Autonomy in Deciding for Incompetent Patients	1	(44)
Introduction	1	(1)
The Quinlan Legacy	2	(7)
The Trial Court	3	(1)
The New Jersey Supreme Court's Decision	4	(1)
The Right to Refuse Treatment	4	(1)
The Substituted Judgment Standard	5	(2)
Guidelines for Decision Making	7	(2)
Emergence of a Judicial Consensus	9	(12)
The Right to Refuse Treatment	9	(4)
Equating the Rights of Competent and Incompetent Patients	13	(1)
Substituted Judgment and the Evidentiary Standard	14	(4)
Process and Review	18	(1)
Cruzan Case	18	(2)
The Assisted Suicide Cases	20	(1)
Legislatures Respond: The Proliferation of Advance Directive Laws	21	(5)
An Overview of State Statutes	21	(4)
The Patient Self-Determination Act	25	(1)
Should Advance Directives Always Be Followed?	26	(3)
Conclusion	29	(2)
Notes	31	(14)
The Ethical Foundations of Prospective Autonomy	45	(32)
Introduction	45	(2)
Autonomy, Integrity, and Our Critical Interests	47	(6)
The Autonomous Pursuit of Interests	47	(3)
Critical Interests, Character, and Integrity	50	(3)
The Pursuit of Death with Dignity and Respect for Autonomy	53	(4)
The Pursuit of Death with Dignity	53	(2)
Respect for Autonomy	55	(2)
Experiential and Surviving Interests	57	(11)
The Current Interests Alternative	57	(2)
Surviving Interests and Harm	59	(3)
Respect for Persons	62	(1)
Posthumous Harm and Interests that Survive Death	63	(2)
Testamentary Wills	65	(2)
Death Rituals (Funerals and Burial)	67	(1)
Conclusion	68	(1)
Notes	68	(9)
Prospective Decisional Autonomy	77	(50)
Introduction	77	(4)
Autonomy as Intentionality: Action Willed in Accordance with a Plan	81	(4)
Autonomy as Integrity: The Idea of Reflective Acceptance	85	(3)
Intentionality, Integrity, and Respect for Autonomy	88	(5)
The Problem of Infinite Regress	88	(2)
Respecting the Treatment Choices of Ordinary Persons	90	(1)
Opening the Gates to Physician Paternalism	91	(2)
Case Scenario: A Recent Conversion	93	(4)
What Makes an Advance Directive Effective?	97	(14)
Instructions for Future Care (The Living Will)	98	(1)
An Outcome-Oriented Understanding (The Common Sense View)	99	(4)
Putting a Premium on Specificity (The Reactionary View)	103	(4)
Appointing a Proxy	107	(3)
Summary: Effective Advance Directives	110	(1)
Conclusion	111	(1)
Notes	112	(15)
The Problem of Personal Identity	127	(34)
Introduction	127	(3)
The Argument from Personal Identity	130	(6)
Statement of the Argument	130	(1)
Psychological Continuity and Personal Identity	131	(2)
How Strong Must Psychological Connectedness/Continuity Be?	133	(3)
Moral Objections to the Discontinuity Thesis	136	(15)
A Paradigm Scenario	136	(3)
On the Unity of a Life	139	(3)
The Newly Dead	142	(3)
Treatment of New Persons: Surviving Interests and Obligations	145	(2)
Treating New Persons as Persons	147	(2)
Permanently Unconscious Nonpersons	149	(2)
Conclusion	151	(1)
Notes	151	(10)
Respecting Advance Directives: Putting Theory into Practice	161	(50)
Introduction	161	(2)
Toward an Ethic of Judgment	163	(4)
Challenging an Advance Directive: Process and Procedure	167	(18)
Changing Incentives, Changing Behavior	167	(3)
Substantive Grounds for Overriding an Advance Directive	170	(1)
Hopeless Ambiguity	170	(2)
Radical Change in Circumstances	172	(2)
The Rebel Proxy	174	(2)
Process and Review	176	(1)
The Burden of Persuasion: Who Should Take the Next Step?	176	(2)
Mandating Accountability: Ethics Committees and Courts	178	(3)
Some Objections and Responses	181	(4)
Case Scenarios at the Edges	185	(12)
Scenario One: An Ambiguous Instruction Directive?	185	(3)
Scenario Two: Apparent Inconsistency in the Patient's Wishes	188	(1)
Specificity of Prior Statements	189	(1)
The Ethics Committee's Role	189	(1)
Handling Family Discord	190	(1)
Contemporaneous Expressions in Favor of Life	190	(4)
Scenario Three: The Proxy Who Can't Let Go	194	(3)
Conclusion	197	(1)
Notes	198	(13)
Conclusion	211	(6)
Index	217