Compassion, Incompetence, and the Presumption to Favor Life:
Sketch of a reply to Sanford H. Kadish's "Letting Patients Die: Legal and Moral Reflections," 80 California Law Review 857 (1992)
(advance directives lack the full moral force of contemporary choices and should yield to the current compassionate interests of the patient, as well as to the patient's choice to live even if less than fully competent; courts have gone astray by invoking the principle of autonomy in substituted judgment situations, because autonomy cannot be at issue when the patient has made no choice; preferable would be a decision based on the best interests of the patient, taken to mean a decision in conformity with the values and commitments that guided the patient's competent life, and one regardful of the quality of the experiences of the present patient.) [available via Lawrence's Lexis-Nexis site]
Kadish writes, "in our Composer case (in contrast to Ulysses' case) such moral force as precedent autonomy has [i.e., the moral constraint to follow an advance directive drafted by the patient while he was still competent] is morally overridden by considerations of human compassion." (Kadish, page 873)
But why should our "compassion" lead us to follow a person's present, incompetent preference (as we extrapolate this from his behavior) to continue living rather than his earlier, competent preference not to live in these circumstances? Our compassion is presumably directed to the person's best welfare and benefit; but that will not automatically lead one to "favor life." Compare the divergent views expressed by some of the relatives of people killed in the intentional explosion of the Oklahoma Federal Building: of those seeking revenge, some relatives advocated capital punishment while others advocated imprisonment for life; these people differed regarding which alternative was a worse punishment for McVeigh. Similarly, one's compassion for an incompetent patient might as well lead one to follow his advance directive as to oppose it. For one's compassion or pity will motivate one to promote what one judges to be the best choice for the patient: but determining which course is best is precisely what is in question. Kadish seems to imply that a close friend or relative of the patient who insists on following the advance directive could not truly be acting "compassionately"—i.e., acting in what he supposes to be the best interests of the patient. But why should that be so? (Kadish cannot simply assume that this is so without begging the very question at issue.) Indeed, the "compassion" Kadish portrays may really be our own squeamishness at implementing a choice on behalf of someone else which we would not dream of making for ourselves (despite Kadish's rejection of such masquerading at page 877).
Kadish writes, "Why should we defer to a decision to continue living made by someone with the barest minimum of capacity for understanding and judgement [even though that goes against the express terms of his living will]? At bottom, I think the reason has to do with a general presumption favoring respect for a wish to live. At least two factors seem to be involved. First, there is the universality of the struggle to survive that we perceive in all living things, which makes it odd to justify disqualifying an expressed wish to live simply because of the person's cognitive limitations. Second, there is the seriousness and finality of what is at stake -- the ending of a person's life." (Kadish, page 875)
It is true, of course, that had he remained competent, the patient's values might have changed; in that case, our following his living will would lead to a tragedy (and a "fatal tragedy," since he would die as a result). But it is ALSO true that the patient's view might NOT have changed: in that case, our refusal to follow his living will would also be a tragedy. In protecting the patient against one sort of mistake, we make it impossible to protect him against the other sort of mistake; moreover, it is this other sort of mistake which the patient explicitly anticipated and attempted to foil in drawing up his advance directive! So, in preventing one sort of possible tragedy, we may create another; why must it be better or safer to prevent the one than the other? Shouldn't the weighing of these risks by the patient himself be honored above our own reckoning—since, after all, the consequences will be borne by the patient?
Kadish speaks of the "seriousness and finality of what is at stake." But if we choose the alternative which the patient expressly rejected in his advance directive, the error which we risk is equally ongoing and permanent; by hypothesis, the patient will not return to competency and insist that his former wish be carried out. Kadish's principles would make this other error as irredeemable and irreversible as the one he calls a "fatal error;" for once we accept Kadish's principles, there is no return to what the patient himself chose while still competent. So, doesn't Kadish really beg the question in assuming that life must always be preferred—since he has no independent reason for this preference?
Moreover, people often don't simply "struggle to survive," since they often willing risk their survival in order to further other goals—e.g. completing their novels or other projects, defending or providing for their children, standing up for their principles. (And people often risk survival not only to pursue such grand projects, but to work at dangerous jobs which they find rewarding or simply at hand, to eat well and enjoy themselves in risky activities; must we say that such choices are irrational per se? ) Most people do not, while competent, behave in the way we would expect them to behave were they to favor life at any cost; and the costs which people find acceptable vary with the persons assessing the costs and benefits. Thus, Kadish, in his attempt to eke out an independent ground for deciding such questions, is in fact loading the dice for his favored alternative.
Kadish writes, "The hard case is presented when a patient, plainly incompetent on traditional criteria, is still sentient. Consider this hypothetical. . . . Though disabled in the ways I have described and lacking competence as traditionally conceived, [the imagined Composer who is now incompetent] still has some awareness and has the capacity for sensations. For example, suppose [the Composer] smiles at the sight of her grandchildren, she is apparently comforted by sitting in a garden or by being attended and talked to, and she shows preferences in foods and television programs. Moreover, she gives no sign of being uncomfortable, in pain, or unhappy. Finally, when asked if she prefers to be left to die, she becomes agitated and says no, though how much she understands is unclear." (Kadish, pages 874-5)
In thinking about an incompetent person, it may be useful to imagine a very young child around the age of 2 or 3. Since such a one will have no grasp of death, he will have no understanding of our question about his preferences for life or death. Certainly with such a child we would of course normally insist upon its being in his best interest to live; but perhaps that presumption would change if we knew that he would soon be taken from his games and boiled alive or that, once competent, he would curse us thereafter for his well-intended preservation. (Indeed, Do Not Resuscitate orders are not unknown for medically compromised infants.) Kadish's observer feels that the patient "is apparently comforted by sitting in a garden;" but she might also be "apparently comforted" by means of continuous, strong doses of morphine. The difficulty in using a best interests test in such a case is that when we concede that the person is incompetent, we concede by implication that we have no way to substantiate our extrapolations from her behavior to such choices as we postulate. We, who are competent, have no better means of knowing what is in the incompetent person's interests than she did, while competent, as she reflected on such scenes in her imagination. How, then, can we suppose that we must be in a better position to know than was the person herself—as recorded in her advance directive—what will be of benefit to her? Need I recall that the life we are speaking of is hers? It seems to me that the arguments which Kadish uses to set aside the patient's autonomous, earlier choice would, if sound, argue for paternalism across the board:1 paternalism always carries the possible benefit of avoiding one sort of harm—caused by the imprudence of the person's own choice (the genuineness of the risk is what makes paternalism inititially attractive to us), but at the risk of inviting the opposing harm—caused by our arrogance in presuming superior knowledge of what will be best for another person. The controlling question should be, who should choose those risks of harm that a given individual is to bear.
There are, I concede, circumstances in which we should accept the risks of paternalism (even though those risks would be borne by the person we are trying to benefit); but we must restrict such occasions to instances in which we can be confident that the person himself would eventually endorse (or would eventually have endorsed) our interference. We might on occasion be able to pronounce with confidence that a particular advance directive was naïve and thoughtless, given our knowledge of the formerly competent person and his values; but the presumption with which we begin should be that the person knew better what was beneficial or harmful to himself than do we well-meaning observers. The fact that a person's life is at stake does not automatically alter this presumption; it would alter the presumption only in case our choice of life for him would procure the opportunity for him to reconsider his choice at a later time—but we are not considering such an instance here.
Finally, supposing that a particular advance directive does not seem to settle the matter because of its ambiguity or other flaws, there may be reasons of a practical sort which would lead us to "a general presumption favoring respect for a wish to live" (page 875) when the reasons for the contrary choice are not overwhelmingly convincing. Most of these decisions will be made by a physician affiliated with an hospital and with an Health Maintenance Organization: in such an institutional setting, choosing to withhold or withdraw life-sustaining medical treatment might be unconsciously motivated by, and might give the appearance of having been motivated by, the institution's financial self-interest. When one is concerned that some decision might be biased in one direction, he will sometimes adopt a decision procedure which is deliberately biased in the opposite direction, so as to counteract the effects of the initial bias.2 It would be enormously corrosive to an institution's typical health care relationship with its patients if it were believed that a narrow financial bias determined its decisions to withhold life-saving medical intervention. An institutional presumption for life might serve to neutralize any appearance of bias toward saving money at the expense of patients' lives.
—Boardman
FOOTNOTES:
1 See Nancy K. Rhoden, "The Limits of Legal Objectivity," reprinted in Arras and Steinbock (eds.), Ethical Issues in Modern Medicine (Mayfield Publishing Company: 1999), pages 243-50. See also John D. Arras, "The Severely Demented, Minimally Functional Patient: An Ethical Analysis," reprinted in Arras and Steinbock (eds.), Ethical Issues in Modern Medicine (Mayfield Publishing Company: 1999), pages 216-24. It should be noted that Kadish insists (at page 880) that "the values and preferences of the patient in his competent state [serve] as guide to a best-interests judgment;" so the difference in practical consequences between his position and one advocating a more faithful adherence to advance directives might be marginal. The disagreement turns on where the burden of proof ought to lie in such cases. [Return]2 See my notes on L. W. Sumner's notion of "pre-commitment." [Return]