Advance directives
A Socratic walk-through of advance directives — reasoned out one step at a time, not lectured.
The question we started with
THE QUESTION #Why should a document written years ago outrank what a patient seems to want today?
A woman signed a directive at sixty-two refusing artificial feeding if she ever lost the capacity to recognise her family. She is now seventy-nine, has advanced dementia, does not know her daughter — and reaches, with apparent pleasure, for the spoon.
Something has gone wrong with the ordinary picture of respecting wishes. We usually think respecting someone means attending to what they want now. Here the rule points the other way, toward a paper signed by a woman who no longer exists in any recognisable form. On what grounds could a past preference ever beat a present one?
Reasoning it through
REASONING #Notice first that we already accept this in less dramatic cases. Someone joins a savings scheme they cannot withdraw from, or asks a friend to hold their car keys before a party. In each, a present self deliberately restricts a future self, and we do not think this is a violation — we think it is prudent. What makes it prudent?
The answer cannot be "the earlier self is wiser", which is not generally true and would license all sorts of nonsense. Look at the structure instead. In each case the person anticipates that their future self will be in a state where its judgement is predictably distorted — drunk, tempted, panicked — and arranges matters so that the distorted judgement cannot act. The binding is not aimed at a disagreement. It is aimed at an anticipated failure of judgement. That distinction will carry the whole argument.
Now apply it. When does an advance directive actually govern? Here is the thing most often misstated: never while the patient has decision-making capacity. A capacitated patient may tear up their directive, contradict it, and demand the opposite, and their present word wins outright. The directive is not a rule that past beats present. It is dormant, and it activates on exactly one condition — that capacity has been lost.
So the operative comparison is not earlier wish against later wish. It is a decision against a preference. Capacity, in the four-part test written into the Mental Capacity Act 2005 for England and Wales, means being able to understand the relevant information, retain it, use or weigh it, and communicate a choice. A woman with advanced dementia reaching for a spoon is expressing something real, but it is not the output of that process. She cannot hold the alternatives together, or connect the moment to a life. The directive is not overruling her deliberation; there is no deliberation there to overrule.
Ask the reflective question, though: is that enough? A preference is not nothing. This is where the honest disagreement lives. Ronald Dworkin argued in 1993 for what he called precedent autonomy, resting on a division between two sorts of interest — critical interests, the things that make a life as a whole go well, and experiential interests, moment-to-moment comfort and pleasure. Only a person with capacity can form and revise critical interests. So the earlier self speaks for the shape of the life, and the later self only for the texture of the afternoon, and the shape should govern.
Rebecca Dresser's counter-argument is a serious one. The person in the bed is the one who will experience whatever we do. If she is content, whose good is served by imposing values she can no longer hold or endorse? The claim that her critical interests survive her ability to have them is doing a great deal of unexamined work. This dispute has not been settled, and anyone who tells you it has is smoothing over the hardest case in the field.
Two practical points fall out. First, this reasoning is at its strongest where the anticipated incapacity is temporary and cyclical — a psychiatric advance directive, drafted in remission, authorising treatment during a future episode and asking that refusal at that time be disregarded. There the past and future selves are the same competent person, verifiably, on either side of a known illness. Second, it is weakest where the directive is vague or the circumstances are not what its author imagined.
The analogy
THE ANALOGY #Odysseus, approaching the Sirens, had himself lashed to the mast and ordered the crew to stop their ears with wax and to ignore any command he gave while the singing lasted. He wanted to hear the song and survive it. The crucial detail is not the rope: it is the instruction to disregard his own later orders. He predicted, correctly, that a version of himself would beg to be released, and he arranged in advance that this version would not be obeyed.
Odysseus at the mast understood perfectly well what he was doing — the song changed what he wanted, not his ability to reason — so if we took the analogy literally it would justify binding a fully competent future self, which is exactly what we do not permit; advance directives activate only when capacity is gone, which the Sirens never took from him.
Clarifying the model
THE MODEL #The framing in the question — a document outranking a patient — misdescribes the mechanism twice over. The document does not outrank anyone with capacity, and what it carries is not a document's authority but a person's, exercised at the last moment they were able to exercise it. It is closer to a signature on a decision than to a rule imposed from outside.
It is also worth separating two things that get bundled together. A living will records substantive choices about specific treatments. A durable power of attorney, or health-care proxy, names a person to decide. The second is generally the more robust instrument, because illness rarely presents in the form the author imagined; in the United States the Patient Self-Determination Act of 1990 pushed both into routine practice by requiring federally funded institutions to tell patients about them.
Finally, a limit on all of it. Advance directives assume a future self whose values would have remained the author's own had capacity persisted. That assumption is unverifiable, and people's stated preferences about severe disability shift markedly once they are living with it. That is not a reason to discard them — the alternative is deciding with no evidence of a person's values at all — but it is a reason to read them as strong evidence rather than as mechanical instructions.
A picture of it
THE PICTURE #How to readread down the timeline and watch where the arrows go. Nothing reaches the directive until the clinician's capacity assessment comes back negative — that single reply is the switch. Had the present self answered that she could understand and weigh the choice, the exchange would have stopped at that line and her own word would have governed.
What became clearer
WHAT CLEARED #An advance directive is not the past overruling the present. It is a commitment device armed by a condition — the loss of the very capacity that makes a wish into a decision — so its authority comes from the fact that nobody with standing to decide is present, not from the age of the paper. The genuinely hard question is not whether commitment can bind, but whether the contented person in the bed still counts as the same author.
Where to go next
ONWARD #- Whether personal identity survives severe dementia enough to make precedent autonomy coherent.
- Why binding a future refusal is more legally contested than binding a future consent.
- Why proxies predict patients' wishes only moderately well, and what follows for how directives should be written.
Key terms
TERMS #| Term | What it means |
|---|---|
| Advance directive | an instruction made with capacity about future medical care, taking effect only once capacity is lost. |
| Decision-making capacity | the functional ability to understand, retain, weigh and communicate a choice; assessed for a particular decision at a particular time. |
| Ulysses contract | a voluntary arrangement binding one's own future self, including instructions that its later objections be disregarded. |
| Precedent autonomy | Dworkin's principle that choices made with capacity continue to govern a person once capacity is lost. |
| Health-care proxy | a person appointed in advance to decide on the patient's behalf. |
Every term the collection defines is gathered in the glossary.