Advancing an advance directive debate

A challenge has recently been levelled against the legal and/or moral legitimacy of some advance directives. It has been argued that in certain cases an advance directive carries no weight in a decision on whether to withhold treatment, since the individual in the debilitating state is not the same person as the person who created the advance directive. In the first section of this paper, I examine two formulations of the argument against the moral legitimacy of the advance directives under review. The second section reviews, and criticizes, an objection to such arguments. In the penultimate section, possible models supporting the viability of the advance directives are considered. The final section makes good on an obligation incurred by the title of the paper.     

Focus: Bioethics: An Ethical Framework for Incorporating Digital Technology into Advance Directives: Promoting Informed Advance Decision Making in Healthcare

Despite the presumed value of advance directives, research to demonstrate impact has shown mixed results. For advance directives to serve their role promoting patient autonomy, it is important that patients be informed decision makers. The capacity to make decisions depends upon understanding, appreciation, reasoning, and communication. Advance directives are in part faulty because these elements are often limited. The present paper explores how the application of digital technology could be organized around a framework promoting these four elements. Given the state of digital advancements, there is great potential for advance directives to be meaningfully enhanced. The beneficial effects of incorporating digital technology would be maximized if they were organized around the aim of making advance directives not only documents for declaring preferences but also ethics-driven tools with decision aid functionality. Such advance directives would aid users in making decisions that involve complex factors with potentially far-reaching impact and would also elucidate the users’ thought processes to aid those tasked with interpreting and implementing decisions based on an advance directive. Such advance directives might have embedded interactive features for learning; access to content that furthers one’s ability to project oneself into possible, future scenarios; review of the logical consistency of stated preferences; and modes for effective electronic sharing. Important considerations include mitigating the introduction of bias depending on the presentation of information; optimizing interfacing with surrogate decision makers and treating clinicians; and prioritizing essential components to respect time constraints.     

END‐OF‐LIFE CARE IN THE 21st CENTURY: ADVANCE DIRECTIVES IN UNIVERSAL RIGHTS DISCOURSE

This article explores universal normative bases that could help to shape a workable legal construct that would facilitate a global use of advance directives. Although I believe that advance directives are of universal character, my primary aim in approaching this issue is to remain realistic. I will make three claims. First, I will argue that the principles of autonomy, dignity and informed consent, embodied in the Oviedo Convention and the UNESCO Declaration on Bioethics and Human Rights, could arguably be regarded as universal bases for the global use of advance directives. Second, I will demonstrate that, despite the apparent consensus of ethical authorities in support of their global use, it is unlikely, for the time being, that such consensus could lead to unqualified legal recognition of advance directives, because of different understandings of the nature of the international rules, meanings of autonomy and dignity which are context‐specific and culture‐specific, and existing imperfections that make advance directives either unworkable or hardly applicable in practice. The third claim suggests that the fact that the concept of the advance directive is not universally shared does not mean that it should not become so, but never as the only option in managing incompetent patients. A way to proceed is to prioritize work on developing higher standards in managing incompetent patients and on progressing towards the realization of universal human rights in the sphere of bioethics, by advocating a universal, legally binding international convention that would outlaw human rights violations in end‐of‐life decision‐making.     

A KOREAN PERSPECTIVE ON DEVELOPING A GLOBAL POLICY FOR ADVANCE DIRECTIVES

Despite the wide and daunting array of cross‐cultural obstacles that the formulation of a global policy on advance directives will clearly pose, the need is equally evident. Specifically, the expansion of medical services driven by medical tourism, just to name one important example, makes this issue urgently relevant. While ensuring consistency across national borders, a global policy will have the additional and perhaps even more important effect of increasing the use of advance directives in clinical settings and enhancing their effectiveness within each country, regardless of where that country's state of the law currently stands. One cross‐cultural issue that may represent a major obstacle in formulating, let alone applying, a global policy is whether patient autonomy as the underlying principle for the use of advance directives is a universal norm or a construct of western traditions that must be reconciled with alternative value systems that may place lesser significance on individual choice. A global policy, at a minimum, must emphasize respect for patient autonomy, provision of medical information, limits to the obligations for physicians, and portability. And though the development of a global policy will be no easy task, active engagement in close collaboration with the World Health Organization can make it possible.     

Family physicians' attitudes toward advance directives.

OBJECTIVE: To examine the attitudes toward, the experience with and the knowledge of advance directives of family physicians in Ontario. DESIGN: Cross-sectional survey. PARTICIPANTS: A questionnaire was mailed to 1000 family physicians, representing a random sample of one-third of the active members of the Ontario College of Family Physicians; 643 (64%) responded. RESULTS: In all, 86% of the physicians favoured the use of advance directives, but only 19% had ever discussed them with more than 10 patients. Most of the physicians agreed with statements supporting the use of advance directives and disagreed with statements opposing their use. Of the respondents 80% reported that they had never used a directive in managing an incompetent patient. Of the physicians who responded that they had such experience, over half said that they had not always followed the directions contained in the directive. The proportions of physicians who responded that certain patient groups should be offered the opportunity to complete an advance directive were 96% for terminally ill patients, 95% for chronically ill patients, 85% for people with human immunodeficiency virus infection, 77% for people over 65 years of age, 43% for all adults, 40% for people admitted to hospital on an elective basis and 33% for people admitted on an emergency basis. The proportions of physicians who felt that the following strategies would encourage them to offer advance directives to their patients were 92% for public education, 90% for professional education, 89% for legislation protecting physicians against liability when following a directive, 80% for legislation supporting the use of directives, 79% for hospital policy supporting the use of directives, 73% for reimbursement for time spent discussing directives with patients and 64% for hospital policy requiring that all patients be routinely offered the opportunity to complete a directive at the time of admission. CONCLUSIONS: Family physicians favour advance directives but use them infrequently. Most physicians support offering them to terminally or chronically ill patients but not to all patients at the time of admission to hospital. Although governments emphasize legislation, most physicians believe that public and professional education programs would be at least as likely as legislation to encourage them to offer advance directives to their patients.     

Advanced directives. Legal and practical aspects of negative instructions concerning medical treatment

The right of a competent patient to stipulate in advance of possible non-competence, medical treatment he does not want, is based on the fundamental legal principle that a person cannot be medically treated without his informed consent. It is in Dutch law a strong and almost unqualified right. There are indications in the international literature, however, that advance directives in many cases may not have much influence on medical treatment at the end of life. Very little is known about the social practice of advance directives in the Netherlands.     

Advance directives: the views of health care professionals.

OBJECTIVES: This study examined the views and experiences of 20 physicians and 20 nurses at a major Canadian teaching hospital regarding the use of advance directives in clinical care. DESIGN: The participants were purposively drawn from four clinical specialties: family and community medicine, oncology, intensive care and geriatrics. Detailed interviews were conducted in person. Content analysis was used to code the data, which were further analysed with both quantitative and qualitative techniques. MAIN RESULTS: Thirty-nine of the 40 participants favoured the use of advance directives in clinical care; physicians had somewhat less positive attitudes than nurses toward such directives. Advance directives were thought by participants to be helpful in resolving disagreements between patients and their families about treatment options; in making patients more comfortable, both physically and psychologically, during the process of dying; and in opening up communication and trust among patients, their families and health care professionals. Concerns about the use of advance directives focused on the lack of clarity in some patients'' instructions, the absence of legal status for directives, the possible interference with a practitioner''s clinical judgement, the adequacy and appropriateness of patients'' information about their circumstances, and the type of intervention (passive or active) requested by patients. CONCLUSIONS: New regulations and legislation are making the use of advance directives more widespread. Health care professionals should participate in the development and implementation of these directives. Continuing professional education is essential in this regard.     

Advance directives, dementia, and 'the someone else problem'

Advance directives permit competent adult patients to provide guidance regarding their care in the event that they lose the capacity to make medical decisions. One concern about the use of advance directives is the possibility that, in certain cases in which a patient undergoes massive psychological change, the individual who exists after such change is literally a (numerically) distinct individual from the person who completed the directive. If this is true, there is good reason to question the authority of the directive ‐ which is supposed to apply to the individual who completed it, not to someone else. This is 'the someone else problem'.
After briefly introducing advance directives as a basis for medical decision-making, this paper elaborates 'the someone else problem' in the context of severe dementia. The paper then reconstructs the reasoning that leads to this putative problem and exposes the important underlying assumption that we are essentially persons. An alternative view of what we are, one that regards personhood as inessential, is then considered, before several arguments are advanced in favor of that alternative view. The paper next explores implications for advance directives: 'The someone else problem' is effectively dissolved, while it is noted that a related problem (one beyond the paper's scope) may persist. A few implications beyond advance directives are also identified.     

Pascal's Wager and the persistent vegetative state

I've argued that a version of Pascal's Wager applies to PVS so forcefully that no one who declines continued life without considering it makes a reasoned and informed decision. Thomas Mappes objects that my argument is much more limited than I realize. Of special interest is his appeal to an emerging diagnostic category, the 'minimally conscious state; to argue that there is much to lose in gambling on life. I will defend the Wager. Along the way I maintain that the chance of recovery from long-term PVS is much better than represented (as is the prospect of regaining independence if one recovers consciousness), and that the 1994 Multi-Society Task Force definitions of 'permanent' PVS are confused in ways that make crafting advance directives dangerously difficult. Valid advance directives require informed consent, I argue; the Wager needs to be part of the process. A consequence of my argument is that withdrawing medically-delivered nutrition and hydration from PVS patients is much harder to justify.     

Canadian outpatients and advance directives: poor knowledge and little experience but positive attitudes.

OBJECTIVE: To examine the knowledge of, previous experience with, attitudes toward and perceived barriers to completing advance directives among outpatients at two general medicine clinics. DESIGN: Cross-sectional questionnaire administered in face-to-face structured interviews. SETTING: General internal-medicine outpatient clinics at a university teaching hospital. PATIENTS: One hundred and five adult outpatients who could communicate in spoken English and who consented to be interviewed. RESULTS: Of 167 patients approached, 58 were excluded because they could not communicate in spoken English, and 4 refused to participate. Of the remaining 105 patients, 17 (16%) knew about living wills, 12 (11%) about durable powers of attorney for health care and 4 (4%) about advance directives. Twenty-three (22%) had thought about their preferences for life-sustaining treatment, 20 (19%) had discussed them, none had written them down, and 45 (43%) had thought about choosing a proxy. Sixty-one (58%) wanted to think about their preferences for treatment, 65 (62%) wanted to discuss them, 32 (30%) wanted to write them down, and 80 (76%) wanted to choose a proxy. The perceived barriers to completing an advance directive were inability to write, the belief that an advance directive was unnecessary, a fatalistic attitude, previous discussion of preferences, a desire to leave the decision to doctors, uncertainty about preferences, a desire to discuss preferences rather than document them, a desire to wait until the situation arose, a desire to write down preferences in the future and a desire to avoid thinking about preferences or advance directives. Respondents with more knowledge of life-sustaining treatments were more likely to want to complete an advance directive. CONCLUSIONS: Outpatients have positive attitudes toward advance directives, but their knowledge and experience are limited. These data underscore the need for patient education and for policies to eliminate the barriers to completing advance directives that patients face.     

ADVANCE DIRECTIVES IN TURKEY'S CULTURAL CONTEXT: EXAMINING THE POTENTIAL BENEFITS FOR THE IMPLEMENTATION OF PATIENT RIGHTS

Advance directives are not a part of the healthcare service in Turkey. This may be related with the fact that paternalism is common among the healthcare professionals in the country, and patients are not yet integrated in the decision‐making process adequately. However, starting from the enactment of the Regulation of Patient Rights in 1998, this situation started to change. While the paternalist tradition still appears to be strong in Turkey, the Ministry of Health has been taking concrete measures in the recent years to ensure that patient rights are implemented in healthcare practice. Therefore, Turkey now seems to be in a transitional period where a move towards a more patient‐autonomy centred approach is being supported by the regulatory authorities, as well as the academic circles and the public at large. In the light of this background, this paper aims to examine the potential benefits of advance directives, particularly with regard to their possible effect in the clinical decision‐making process of Turkey's context. It will be argued that advance directives, if correctly understood and implemented in the right settings, may be beneficial, particularly for improving communication between patients and healthcare professionals and for implementing of the right to refuse treatment.     

Advance directives, autonomy and unintended death

This Paper argues that Living wills are typically nebulous and confused documents that do not effectively enable you to determine your future treatment. Worse, signing a living will can end your life in ways you never intended, long before you are either incompetent or terminally ill. This danger is compounded by the fact that those who implement living wills are often themselves dangerously confused, so that, for example, they cannot be relied upon to distinguish living wills from DNR orders. In addition, the Paper argues that advance directives concerning resuscitation are often so confused that they end the lives of healthy, alert people who have not suffered cardiac or pulmonary arrest. Finally, the paper argues that advance directives establishing durable power of attorney for health care often preserve the chief dangers of living wills. Suggestions are offered as to how you can most effectively direct your future treatment without endangering your life.     

‘VAGUE OVIEDO’: AUTONOMY,CULTURE AND THE CASE OF PREVIOUSLY COMPETENT PATIENTS

The paper examines the ethical and legal challenges of making decisions for previously competent patients and the role of advance directives and legal representatives in light of the Oviedo Convention. The paper identifies gaps in the Convention that result in conflicting instructions in cases of a disagreement between the expressed prior wishes of a patient, and the legal representative. The authors also examine the legal and moral status of informally expressed prior wishes of patients unable to consent. The authors argue that positivist legal reasoning is insufficient for a consistent interpretation of the relevant provisions of the Convention and argue that ethical argumentation is needed to provide guidance in such cases. Based on the ethical arguments, the authors propose a way of reconciling the apparent inconsistencies in the Oviedo Convention. They advance a culturally sensitive approach to the application of the Convention at the national level. This approach understands autonomy as a broader, relational consent and emphasizes the social and cultural embeddedness of the individual. Based on their approach, the authors argue that there exists a moral obligation to respect the prior wishes of the patient even in countries without advance directives. Yet it should be left to the national legislations to determine the extent of this obligation and its concrete forms.     

In Memoriam

The Patient Self-Determination Act was implemented in December 1991. Before and after its implementation, we used a structured interview of 302 randomly selected patients to determine their awareness, understanding, and use of advance directives. Implementation of the Act did not have a major effect on these. Although more than 90% of patients were aware of the living will, only about a third selected the correct definition or the correct circumstances in which it applied, and less than 20% of patients had completed one. About a third of patients were aware of a Durable Power of Attorney for Health Care and chose the correct definition, and about half identified the correct circumstances in which it applies; less than 10% had completed such a document. Surprisingly, patients who said they had completed advance directives did not demonstrate better understanding of these documents. Our results indicate that many patients, including some who have completed advance directives, do not fully understand them. It may be unwise to regard these documents as carefully considered, compelling statements of patients'' preferences. Appropriate responses to our findings include increased public education, revising state statutes to bring them into congruence with public perception, and expanding the dialogue between physicians and patients.     

Durable power of attorney for health care. Are we ready for it?

Health care professionals need to be well informed about advance directives for medical care in the event a patient becomes incapacitated. The Patient Self-Determination Act requires that all patients be advised of their options at the time of hospital admission. Hospitals and health care professionals will need to work together to plan for implementing this law. We surveyed 215 physicians, nurses, and social workers at a Veterans Affairs Medical Center about the California advance directive, the Durable Power of Attorney for Health Care. Attitudes were generally positive. All of the social workers had heard of the durable power of attorney directive, but 36% of physicians and nurses had never heard of it and an additional 20% had no experience with one. For respondents who had heard of the directive, the mean knowledge score was 6.35 of a possible 10 (5 predicted by chance). Respondents brought up the issue of durable power of attorney with patients before a crisis only 19% of the time and determined whether one had been signed for only 16% of older patients in hospital. The most commonly cited reasons for failure to discuss this with patients were lack of proper forms, pamphlets, or a place to refer a patient. Of those who had ever seen such a document in use, 42% were aware of a problem with it at some time. Whereas attitudes toward advance directives are positive, many physicians and nurses had little knowledge of the Durable Power of Attorney for Health Care and were poorly equipped to discuss it with patients. We encourage educating hospital staff to prepare for the enactment of the Patient Self-Determination Act. We also recommend that the concerns raised by professionals about the use of a durable power of attorney be addressed.     

New laws mean MDs must keep up to date on living-will and related legislation.

Lawyer Karen Capen discusses the legal aspects of documents such as living wills, advance directives and "proxies for personal care." Most provinces are enacting legislation to govern such directives, and physicians should keep abreast of new legislation and regulations in their jurisdiction.     

Hospital policies on life-sustaining treatments and advance directives in Canada.

OBJECTIVE: To determine the prevalence and content of hospital policies on life-sustaining treatments (cardiopulmonary resuscitation [CPR], mechanical ventilation, dialysis, artificial nutrition and hydration, and antibiotic therapy for life-threatening infections) and advance directives in Canada. DESIGN: Cross-sectional mailed survey. SETTING: Canada. PARTICIPANTS: Chief executive officers or their designates at public general hospitals. MAIN OUTCOME MEASURES: Information regarding the existence of policies on life-sustaining treatments or advance directives and the content of the policies. RESULTS: Questionnaires were completed for 697 (79.2%) of the 880 hospitals surveyed. Of the 697 respondents 362 (51.9%) sent 388 policies; 355 (50.9%) sent do-not-resuscitate (DNR) policies (i.e., policies that addressed CPR alone or in combination with other life-sustaining treatments). Of the 388 policies 327 (84.3%) addressed CPR alone, 28 (7.2%) addressed CPR plus other life-sustaining treatments, 10 (2.6%) addressed advance directives, and the remaining 23 (5.9%) addressed other life-sustaining treatments. Of the 355 DNR policies 1 (0.3%) stated that routine discussion with patients is required, 315 (88.7%) restricted their scope to terminally or hopelessly ill patients, 187 (52.7%) mentioned futility, 29 (8.2%) mentioned conflict resolution, 9 (2.5%) and 13 (3.7%) required explicit communication of the decision to the competent patient or family of the incompetent patient respectively, 110 (31.0%) authorized the family of an incompetent patient to rescind the DNR order, 224 (63.1%) authorized the nursing staff to do so, and 217 (61.1%) authorized physicians to do so. CONCLUSIONS: Although about half of the public general hospitals surveyed had DNR policies few had policies regarding other life-sustaining treatments or advance directives. Existing policies could be improved if hospitals encouraged routine advance discussions, removed the restriction to terminally or hopelessly ill patients, scrutinized the use of the futility standard, stipulated procedures for conflict resolution, explicitly required communication of the decision to competent patients or substitute decision-makers of incompetent patients and scrutinized the provision allowing families and health care professionals to rescind the wishes of now incompetent patients.     

Acculturation and end-of-life decision making: comparison of Japanese and Japanese-American focus groups

Variation in decision-making about end-of-life care among ethnic groups creates clinical conflicts. In order to understand changes in preferences for end-of-life care among Japanese who immigrate to the United States, we conducted 18 focus groups with 122 participants: 65 English-speaking Japanese Americans, 29 Japanese-speaking Japanese Americans and 28 Japanese living in Japan. Negative feelings toward living in adverse health states and receiving life-sustaining treatment in such states permeated all three groups. Fear of being meiwaku, a physical, psychological or financial caregiving burden on loved ones, was a prominent concern. They preferred to die pokkuri (popping off) before they become end stage or physically frail. All groups preferred group-oriented decision-making with family. Although advance directives were generally accepted, Japanese participants saw written directives as intrusive whereas Japanese Americans viewed them mainly as tools to reduce conflict created by dying person's wishes and a family's kazoku no jo--responsibility to sustain the dying patient. These findings suggest that in the United States Japanese cultural values concerning end-of-life care and decision-making process are largely preserved.     

THE INSIGNIFICANCE OF PERSONAL IDENTITY FOR BIOETHICS

It has long been thought that certain key bioethical views depend heavily on work in personal identity theory, regarding questions of either our essence or the conditions of our numerical identity across time. In this paper I argue to the contrary, that personal identity is actually not significant at all in this arena. Specifically, I explore three topics where considerations of identity are thought to be essential – abortion, definition of death, and advance directives – and I show in each case that the significant work is being done by a relation other than identity.     

A proposal for the use of advance directives in the treatment of incompetent mentally ill persons

[M]y question is how these patients while competent might be able to give their own informed consent to treatment, despite being both unwilling and incompetent to do so when treatment is to be begun, thereby reducing the need to relax the dangerousness criteria for involuntary commitment. It is uncontroversial that the dangerousness requirement would be too restrictive for all treatment of mental illness. When competent patients voluntarily seek and/or accept treatment for their mental illness, neither public policy nor medical practice restricts treatment to those patients judged to be dangerous. Instead, criteria should be and generally are comparable to those for the treatment of physical illness -- whether the patient is ill, in this case mentally ill, and likely to benefit from treatment. Through use of advance directives, it would be possible for mentally ill persons who are currently refusing treatment to give prior consent, while competent and with their disease in remission, to treatment at a later time when they are incompetent, have become noncompliant, and are refusing treatment. My proposal is certainly not entirely novel, since others have made similar proposals under the heading of Ulysses contracts and voluntary commitment contracts. Addressing briefly some of the criticisms of these earlier proposals will bring out one fundamental difference between them and my proposal here for a new use of advance directives -- whether the patient must then be incompetent when the contract or directive made earlier is later invoked -- a difference I shall argue strongly favors my proposal.