Should the law allow capable patients to make decisions with regards to refusal of future medical treatments? This is one of the most crucial question that the Italian Parliament is currently trying to answer in its legislative proposal concerning the so called “biological-will” or “advance directives”. In this reflection, I will point out some of the possible pitfalls of the legalization of an “advance directives” as an enhancement of patients’ autonomy. Stressing the fallacy of it, I will then advocate against a legalization in this field.
A biological-will or advance directive means the chance for patients, who are mentally competent, to make a decision concerning future medical treatment that they wish to refuse. This legal tool allows patients to dispose in advance of their future medical treatments in cases in which they will lack the capacity to express their point of view. A similar legal recognition is generally regarded as an expression of respect towards patients’ autonomy, owed by physicians and society in general.
Nevertheless, there is room for a critical approach. If being autonomous means to be self-ruled i.e. to reach personal and not externally influenced decisions, is an “advance directive” a truly autonomous one? Couldn’t a similar future-oriented decision be influenced by external factors?
As critics have pointed out, a supposed “personal” and “autonomous” decision might be the result of fears (as that of being a “burden” for the family, or the desire to avoid them sufferings); or, worse, it could be the result of an undue-influence by a third party (e.g. physicians’ perspective), which are often difficult to detect (Hiscox, 2007)[1] .
Even assuming the advance directive embraces patients’ autonomous perspective, the issue remains problematic. A crucial problem may be the assessment of future circumstances and the possibility of a substantial and unpredicted change. The identification of similar cases, although vital, is not always straightforward. An example is the case of a patient who signs an advance refusal indicating that he/she does not want to receive a blood transfusion even if he/she would die without it. What if he/she is a Jehovah’s witness at the time of the decision, but he/she is no more practicing that faith at the time of the treatment? Should the physician consider the current situation as a relevant change, allowing a blood transfusion, or should he stick with the advance directive?
A further example might be related with the request of refusal of treatment for medical condition that are untreatable and/or extremely burdensome for the patient at the time of the decision. What if a substantial change in the scientific knowledge allows the chance either to easily cure or to decisively alleviate the suffering of these patients?
Opponents might solve these problems suggesting the possibility to modify the advance directive, at fixed or flexible times, as long as the patient is capable to do so. Nevertheless, although a revision might be a reasonable attempt to keep the decision up to date, it does not fully solve the problem. As Levy (2014)[2]points out, there are psychological reasons why a patient might not choose to change his decision. Referring to the limits of our human judgments, Levy says: “as a consequence of making a decision, our attitude to consider possible alternative changes and we come to think the option we have chosen is far superior to the options we have rejected”. A similar phenomenon, known as “cognitive dissonance”, shows how human reasoning is generally averse to change.
When it comes to the legalization of such “biological-wills” or “advance directives”, legislators should take all these facts into account.While their intention might be the enhancement of patients’ autonomy, reality may lead in the opposite direction.
[1] Hiscox,W., 2007. Physician assisted suicide in Oregon. Medical Law International, 8(3), pp. 197-220.
[2] Levy, N., 2014. Forced to be free? Increasing patient autonomy by constraining it. J Med Ethics, 40, pp. 293- 300.
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