The Time Frame of Preferences, Dispositions, and the

Validity of Advance Directives for the Mentally Ill

Julian Savulescu and Donna Dickenson

Abstract: Advance directives have not been used extensively in mental illness. Mental health

legislation in most Anglo-American countries gives considerable power to clinicians to

override the advance directives of the mentally ill, if they choose. We offer a conceptual

analysis of preferences and show how this helps better understand the place of advance

directives in mental illness. We argue for a dispositional rather than occurrent analysis of

preferences and desires. On this analysis, preferences and desires are dispositions to act. A

person may have a desire now for a state of affairs though he is not now actively seeking to

promote that state of affairs.

In clinical practice, advance directives have been hailed as a means by which people can

express their autonomy when they are incompetent. Currently, an advance directive must

have been freely formed when a person was competent and informed of the consequences of

his choice. Particular problems face their use in mental illness because they have been seen as

an expression of a past preference. It is difficult to establish whether a mentally ill person

was competent at the time of completing an advance directive and whether the preference

was the product of mental illness. On the dispositional analysis of preferences, advance

directives are relevant to treatment insofar as they represent a person's present dispositional

preference. Although a mentally ill person in the grip of psychosis may have disordered and

irrational preferences now, he may also have dispositional preferences which should be

respected. The imperative to respect a person's present preferences in a liberal society is

great. According to the dispositional analysis, it is not necessary for clinicians to show that a

mentally ill person was competent, informed, and acting freely at the time he expressed his

preference in an advance directive, but only that the person has a present dispositional

preference similar to that expressed in the advance directive, and that he was free, competent,

and fully informed at some point during the time he has had the preference. We distinguish

this dispositional analysis of advance directives from an analysis in terms of substituted

judgment.

We distinguish three groups of patients who might form advance directives: (1) those who are

and have been well and who anticipate future illness; (2) those who are intermittently ill; (3)

those who are chronically ill. We argue that, according to the dispositional analysis, advance

directives are appropriate for groups 2 and 3 and, crucially, that it makes no difference

whether their illness is physical or mental. Failing to respect these relevant present

preferences constitutes discrimination against the mentally ill. While advance directives have

been proposed as a way to facilitate the mentally ill consenting in advance to psychiatric

treatment when they become incompetent, we believe advance directives have a much

broader role: to allow the mentally ill to make decisions about all aspects of their medical

care, including in some cases refusal of treatment for mental illness, even if this exposes that

person to a greater than necessary risk, including the risk of self-harm or suicide.

Keywords: autonomy, refusal of treatment, paternalism, suicide, advance directive/living will,

self-harm, mental illness

It is a fundamental tenet of Western liberal civilization that individuals should be allowed to

decide the direction of their own lives, provided that they do not harm others, and so far as

the constraints of a cooperative social existence allow (Mill 1910, 125). When we respect a

person's choices for how her own life is to go, we respect her personal autonomy. For this

reason, Anglo-American law requires that health care professionals obtain the consent or

agreement of an adult patient before performing procedures on that patient. As Justice

Cardozo observed in 1914, "Every human being of adult years and sound mind has a right to

determine what shall be done with his own body" (Schloendorff v. New York Hospital,

1914). 1 To be legally effective, consent must be freely given by a competent person who is

informed of the consequences of the courses of action open to him.

Respecting personal autonomy goes beyond respecting the choices of people who are now

competent to make decisions about their own lives. It has come to include respecting the

choices of people who were competent, but are now incompetent. Through advance

directives, or "living wills," competent people can express how they want to be treated when

they are ill or disabled in the future, when they are potentially incompetent to decide this for

themselves. 2

Throughout Anglo-American countries, common law establishes that informed, competent

adults have the right to refuse treatment, even life-sustaining treatment. In Anglo-American

law, a refusal made in advance has the same force as a contemporaneous refusal, if it is both

"clearly established" and "applicable in the circumstances" (Re T [Adult: Refusal of

Treatment] 1992; see also Malette v. Shulman 1990). To provide treatment to a patient who

has competently refused it constitutes battery in law.

There have been concerns about the use of advance directives in physical illness: that they are

too vague to be applied in circumstances which arise in clinical practice; that a person may

have changed her mind since writing a directive; that ascertaining how informed a person was

at the time of completing the directive and how free her choice was is difficult to determine

later; that it is impracticable for clinicians to help patients complete directives; that patients

cannot adequately anticipate the complexity of such future medical decisions; that patients do

not want to consider such decisions about the future; and that the lack of psychological

connection between the formerly competent individual and her later incompetent self is so

great that it calls into question whether the directive should govern decisions about the

incompetent patient (Wolf 1991; Special Section of the Hastings Center Report 1991; Brock

1991; Advance Directives Seminar Group 1992; King 1991; White and Fletcher 1991; Miles

1996; Emanuel 1993; Robertson 1991; Lynn 1991). 3

Though advance directives have these problems, a valid advance directive represents the

individual choice which Western liberal society is so keen to champion and should be

respected (White and Fletcher 991; Molloy and Mepham 1992; Emanuel et al. 1991).

Jehovah's Witnesses have been making advance directives for more than twenty years when

they refuse blood transfusions in advance. And such refusals carry the same force as

contemporaneous refusals (Malette v. Shulman 1990).

Preferences, Advance Directives, and Mental Illness

There have been few explicit suggestions for greater use of advance directives in mental

illness. Some writers have suggested that advance directives could be used to provide a

mechanism by which mentally ill patients could consent in advance to psychiatric treatment

when they become incompetent (Howell, Diamond and Wikler 1982; Brock 1993). (People

suffering from mental illness who refuse treatment when their illness renders them

incompetent can only be treated in their interests if they are at risk to themselves or others.)

We argue for a wider ranging role in the use of advance directives in mental illness. We will

suggest that the mentally ill should be able not only to consent to treatment in advance, but to

also refuse it, and indeed to refuse life-saving medical treatment or psychiatric treatment

when they are a risk to themselves.

Why have advance directives not been seen to be relevant to the care of the mentally ill?

Interpretation of advance directives in mental illness is even more difficult than in physical

illness. In addition to the problems facing advance directives in physical illness, general

concerns about the competence and rationality of the mentally ill who express preferences

detrimental to their health may come into play, as the Dutch case of Dr. Boudewijn Chabot

illustrates. Dr. Chabot was convicted for assisting the suicide of a physically healthy patient,

Mrs. B, who was allegedly severely depressed over the deaths of her two sons (Ogilvie and

Potts 1994). When the preference for death is arguably the product of mental illness--as it

might have been in the case of Mrs. B--it is questionable whether the patient's choice is free. 4

Perhaps because of concerns about the competence, rationality, and freedom of people

suffering from mental illness, mental health legislation in the Anglo-American world gives

considerable power to clinicians to override the choices of people judged to be mentally ill.

For example, Section 3 of the Mental Health Act 1983 in England stipulates that a person

with mental illness who is at risk of harming himself or others can be treated involuntarily.

The Act does not require that the person be incompetent. Since a mentally ill person's

competent contemporaneous desires could be overridden under the Mental Health Act, a

fortiori, his prior competent desires could equally be disregarded.

The Mental Health Act strictly only sanctions treatment for mental disorder. However, a

mentally ill person could refuse treatment for physical disorders in advance, and this refusal

would in theory have to be respected. There are, however, two important exceptions. Two

kinds of physical disorder can be treated without the person's consent under the Mental

Health Act: physical disorders which are the result of a mental disorder covered by Section 3

of the Mental Health Act; and physical disorders that are related to a mental disorder covered

by Section 3 of the Mental Health Act, and whose treatment is necessary for the treatment of

the mental disorder.

Thus, in practice, legislation like the Mental Health Act 1983 gives physicians wide powers

to treat patients against their will. A patient with major depression who refuses food and

fluids may be given them against her will under the Mental Health Act because rehydration

and feeding are judged to be "treatment for the mental disorder" (Treatment without Consent

[Suicide]: Adult [Re V. S. (Adult: Mental Disorder)] 1995; B. v. Croydon H. A., 1995). Some

anorexics have been force fed under the Mental Health Act because anorexia nervosa has

been considered to be a form of mental illness, and the force-feeding judged to be necessary

for psychiatric treatment of anorexia (Treatment Without Consent [Anorexia Nervosa]: Adult

[South West Hertfordshire Health Authority v. Brady] 1994).

The scope of the Mental Health Act has even come to include pregnancy. In Tameside and

Glossop Acute Services Trust v. CH (1996), a forty-one year old schizophrenic was detained

under Section 3 of the Mental Health Act 1983. Intrauterine growth retardation was

diagnosed, and doctors believed that CH's baby would die if not delivered shortly. CH

refused to consent. Doctors also claimed that a stillbirth would adversely affect CH's mental

state. A declaration was made authorizing doctors to perform Cesarean section, with restraint

if necessary, under the Mental Health Act to prevent deterioration in the patient's mental

health. The Act only allows treatment to be given for the mental disorder which, until this

case, was considered to include treatment of physical disorders that were the cause or

complication of the mental disorder.

In two other cases of weak paternalism, both involving women with previous Cesarean

sections, Cesarean was authorized in the interests of the mother because the women were

judged incompetent. In Norfolk and Norwich Health Care Trust v. W, the woman had a

history of receiving psychiatric treatment but was not currently suffering from a mental

disorder. In Rochdale Healthcare Trust v. C, the patient's obstetrician regarded the patient,

Mrs. C, as fully competent. She refused to have a Cesarean because she had suffered

backache and pain around the scar after a previous section. The judge held that Mrs. C was

incompetent because she could not weigh up the information she was given because of the

pain and stress involved in labor. Mrs. C's hearing lasted two minutes and she was not present

during it. 5 Table 1 summarizes the conditions under which an advance refusal of treatment

made by a person suffering from mental illness is likely to be respected in England.

Part of the reason for why so little weight is given to the preferences of the mentally ill is that

clinicians have concerns about the freedom, rationality, and competence of mentally ill

people at a single point in time to form valid preferences about their care. Our contention is

that a temporal and dispositional analysis of preferences provides a better grounding for

understanding why and when the preferences of the mentally ill should be respected.

The Metaphysics of Preferences and the Treatment of Incompetent People

In this section, we will provide a taxonomy of preferences, and then argue that the standard

interpretation that advance directives represent past preferences is problematic. We will then

offer a dispositional account of preferences and suggest how advance directives might be

interpreted as present dispositional preferences. We will then distinguish between this view

and the interpretation of advance directives as counterfactual preferences. The dispositional

and temporal analysis of preferences which follows is based on previous work and is

expanded there (Savulescu 1994; Savulescu 1998).

At least three different kinds of preferences may direct treatment of incompetent patients.

Advance directives can be understood as providing evidence for determining the content of

these three preferences:

1. Valid Past Preferences. Advance directives in Anglo-American medical ethics are

understood to be past preferences and determinative of treatment as such. But to direct

treatment, a preference must be valid (freely formed by a competent person informed of the

relevant facts.) According to the standard view, advance directives provide evidence of what

a person's valid past preferences were.

2. Counterfactual Preferences. In North America, treatment of incompetent patients is

determined by appeal to a counterfactual preference (or substituted judgment): what the

patient would prefer, if she were competent (President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Behavioral Research 1983; Buchanan and Brock

1986; 1989). Advance directives could be interpreted in those countries as providing grounds

for arriving at this counterfactual preference.

3. Present Preferences. We will say more on how advance directives can be interpreted as

providing evidence of a person's relevant present preferences at times of incompetence.

Advance Directives as Past Preferences

Advance directives are normally seen as past preferences and determinative of treatment as

such. For example, in England, Lord Donaldson stated that a past refusal of treatment was

legally binding on doctors if it was "clearly established and applicable in the circumstances"

(Re T [Adult: Refusal of Treatment] 1992, 664). He went on to say that when a patient is

incompetent, doctors must "consider whether at the time the decision was made it was

intended to apply in the changed [current] situation." In the case of Tony Bland, Lord Goff

stated, "Moreover, the same principle [that a competent patient's refusal must be respected]

applies when the patient's refusal to give consent has been expressed at an earlier date, before

he became unconscious or otherwise incapable of communicating it" (Airedale

NHS v. Bland 1993, 866). There are, however, problems with interpreting advance directives

as past preferences.

Temporal Neutrality and the Problem of Future Preferences

Should we respect past preferences? There has been ample discussion over whether past

preferences provide a reason for action (see Parfit 1984 for a detailed discussion). Let us

assume that we should respect a person's past preferences for how his own life should go. If

we should respect past preferences, we should also respect future preferences. According to

the widely accepted principle of temporal neutrality, there is no reason to favor one time

frame of preferences. According to the principle, the mere location in time does not accord

special significance to any good, and we should show equal concern for goods at all times of

our lives (Sidgwick 1963, 111; Nagel 1970, 60, 72; Rawls 1972, 293).

Past preferences may diverge from future preferences as the following example illustrates.

Imagine that a person, call him Bill, undergoes surgery. Bill is thought to have bowel cancer

that has not spread beyond the bowel wall. During the operation, surgeons find that the

cancer has spread more extensively. They are faced with a choice of extensive resection,

including resection of half of the liver, which has an 80 percent chance of increasing his life

span by three months, and a more limited resection, which will increase the quality of his life,

although that life will be shorter. A decision must be made immediately as there will be no

more operating theater time available for another three weeks. In the past, Bill has preferred

life-prolonging treatment in these circumstances, but in the future he will much more strongly

prefer quality-enhancing treatment in these circumstances, even if he has the life-prolonging

treatment and it is effective. Bill has a past preference for life-prolonging treatment and a

future preference for life-enhancing treatment.

According to the current practice of appealing to past preferences, Bill would be given the

life-prolonging surgery. However, it is not clear that this is the treatment which he should be

given only because he preferred it in the past especially if the future preference is much

stronger or better informed.

While in practice clinicians may give weight to predicted future preferences, current ethico-

legal recommendations give no weight to future preferences. The most obvious reason is

because while we often know people's past preferences, we do not know what their future

preferences will be. This answer is unsatisfactory. Even in the presence of an explicit advance

directive, it is often difficult to determine what a person intended in the past. And although it

can be difficult, we can predict that people will often adapt to certain kinds of disability, such

as paraplegia (Kahneman and Varey 1991; Argyle 1987; Taylor 1989; Silver and Wortman

1980, 279-340; Vaillant 1977). The future preferences of people who adapt to serious illness

are not considered at all in current ethico-legal practice if there is a valid advance refusal of

treatment in existence. This is inconsistent with temporal neutrality.

There are two possibilities. First, we could apply temporal neutrality to our consideration of

patient's preferences, in which case future as well as past preferences must be considered.

This requires that we change our practice in important ways. Or we could reject temporal

neutrality in favor of a present-oriented view of which preferences should command most

respect. We will not argue conclusively for the rejection of temporal neutrality but merely

highlight some problems with it. The present-oriented view which we favor requires that we

change our practice in other ways, which we will outline.

Temporal Neutrality v. Present-Orientation

There are problems with the philosophical principle of temporal neutrality which undergirds

respect for past preferences.

Very Distant Preferences. According to temporal neutrality, a preference in the very distant

future counts as much as a preference I have now. Imagine I want to spend my money on

expensive skiing holidays and other present pleasures now. In the distant future, I will prefer

that I saved more money for my retirement. Even if I spend up now, I would have a

reasonable existence in retirement, but I could be much more comfortable if I spent less on

skiing now. It is not clear that I should invest my money in a retirement fund rather than

spending it as I presently prefer, provided that my present concerns are in some way worth

fulfilling. In general, the content and satisfaction of very distant preferences is less certain

than that of present preferences. However, even if I could be certain that I would prefer my

money to be invested in the future, it is not clear that I must give up my present enjoyments,

if these are valuable enough.

Most Recent Past Preferences. Temporal neutrality is not able to give an account of the

weight which we accord in practice to a person's most recent past preference. If an

incompetent person strongly preferred for a long time while he was a young man to die rather

than be dependent in a nursing home, but recently as an old man preferred to be nursed in a

home rather than to die, temporal neutrality requires that we allow this man to die, if he has

had that preference longer. Yet in practice, we think we should abide by his most recent past

preference.

Respect for Autonomy is Respect for Present Preferences. Generally, medical ethics and law

accord great weight to respecting personal autonomy. Respecting autonomy requires

respecting a person's present preferences. Frustrating a person's present preferences even for

the sake of his future preferences is still a failure to respect his autonomy in the same way

that frustrating his present preferences in his own interests would be. The weight given to

respect for autonomy is not captured by temporal neutrality.

Christensen-Szalanski has studied the preferences for anesthesia of pregnant women during

childbirth. Pregnant women preferred to avoid using anesthesia over avoiding pain one month

before labor and during early labor. During active labor, their preference changed: they

preferred more to avoid pain than to avoid anesthesia. Three months postpartum, their

preferences again reversed: they preferred to avoid the use of anesthesia over avoiding pain

(Christensen-Szalanski 1984). These pregnant women have a past and future preference not

to have analgesics and a present preference to have analgesia.

If we are to count all preferences, then at the time when they ask for analgesia, it ought to be

withheld. If we give greater weight to present preferences, the analgesia ought to be given,

regardless of the strength or duration of the other preferences. The present-weighted view

seems to give the most plausible account of what ought to be done in these cases (assuming

that the preferences during childbirth are equally rational or in other ways on a par with past

and future preferences.)

We are not suggesting that the arguments sketched here against temporal neutrality are

decisive. Indeed, temporal neutrality is best able to explain intuitive beliefs holding that

people who will adapt to serious illness should be treated if they will adapt, even in the

presence of a valid past refusal of treatment. However, they do make trouble for that view.

And not all philosophers have supported strict temporal neutrality. Parfit famously supports a

present-weighted view, the Present-aim Theory (1984). Hare argues that we have most reason

to satisfy our present preferences, but that these must be tempered with a "requirement of

prudence," "that we should always have a dominant or overriding preference now that the

satisfaction of our [present] and [future] preferences should be maximized" (Hare 1981, 105).

Bernard Williams supports a much more radical present-oriented view. He argues that it

is present projects which make life worth living now:

[M]y present projects are the condition of my existence, in the sense that unless I am

propelled forward by the conatus of desire, project and interest, it is unclear why I should go

on at all . . . (208).

The correct perspective on one's life is from now . . . a man's ground projects provid[e] the

motive force which propels him into the future, and gives him (in a sense) a reason for living.

(209)

A present-oriented view gives greater weight to present preferences over preferences at other

times; a present-only view gives weight only to present preferences. For the purposes of our

argument, we require only that the weaker present-oriented view is correct. What matters

most (on both these views) is the satisfaction of a person's present preferences. When a

patient's present preference conflicts with a past preference, we should respect the present

preference. But it is precisely a relevant present preference that incompetent patients lack. Or

do they?

The view that the mentally ill lack relevant present preferences is based on one metaphysical

account of preferences. We will now argue that the mentally ill do have

relevant present preferences even during periods of acute mental illness and that these

preferences have a strong claim to respect.

Preferences as Dispositions

Historically, there are two different analyses of what preferences are: occurrent and

dispositional analyses. According to the occurrent view of preferences, preferences are

occurrent states. When A prefers tea to coffee, something is true of A now in terms of his

mental and/or physical states. He is "going for" tea rather than coffee at this point in time, in

some way. According the dispositional view, preferences and desires are dispositions (Ryle

1963, 43; 113-20). A person has a disposition to act in a certain way if he has a tendency to

act in that way. That is, he is prone or liable to act in that way, given certain conditions (Ryle

1963, 115). However, that does not mean that he is always acting that way. Consider Ryle's

example of a dispositional statement: he is a cigarette smoker. To be a cigarette smoker

means that one has the habit of smoking cigarettes, and that from time to time one will be

smoking. It does not mean that one is smoking now (Ryle 1963, 113). Ryle notes that the

habit of cigarette-smoking could not exist unless there were such "episodes" as smoking a

cigarette.

"He is smoking a cigarette now" does not say the same sort of thing as "he is a cigarette-

smoker," but unless statements like the first were sometimes true, statements like the second

could not be true. The phrase "smoke a cigarette" has both episodic uses and, derivative from

them, tendency-stating uses. (1963, 113)

Ryle's analysis of dispositions can be summarized in terms of a hypothetical proposition. In

general, P has some dispositional property, D, if and only if P would behave in some episodic

way(s), R, if certain conditions, C, obtained. Dispositional words or phrases may have more

than one direct parallel episodic word or phrase. The disposition "is elastic" corresponds to

"would expand if stretched," or "would bounce if thrown on the ground," and so on (Ryle

1963, 113). Thus, for a given disposition, D, there is a range of responses, R1, R2, R3, which

result when a corresponding range of conditions obtain, C1, C2, C3, respectively.

When Alison prefers tea to coffee, various counterfactuals are true of Alison. She would

make and drink a cup of tea if she were thirsty, or first thing in the morning, or during the

break at a conference, and so on. However, preferring tea to coffee does not imply that she is

always making a cup of tea rather than coffee.

Let us return to the temporally neutral and present-oriented accounts of which preferences

count. What are the implications of a dispositional analysis in terms of each of these? On the

dispositional analysis, the incompetent patient may have relevant present preferences which,

in the temporally neutral view, should be weighed against past and future preferences. We

will not explore this alternative further here. We will now examine the implications of the

dispositional analysis for the present-oriented view which we favor. These two theses--

present-oriented view of which preferences ought to be respected and the dispositional

analysis of preferences--require quite radical changes to the way the mentally ill are treated.

A Present-Oriented Dispositional Analysis of a Classic Advance Directive: Ulysses and

the Sirens

A classic example of an advance directive is that of Ulysses and the Sirens. Ulysses was to

pass "the Island of the Sirens, whose beautiful voices enchanted all who sailed near. [They] . .

. had girls' faces but birds' feet and feathers . . . [and] sat and sang in a meadows among the

heaped bones of sailors they had drawn to their death," so irresistible was their song. Ulysses

desired to hear this unusual song, but at the same time wanted to avoid the usual fate of

sailors who succumbed to this desire. So he plugged his men's ears with beeswax and

instructed them to bind him to the mast of his ship. He told them, "If I beg you to release me,

you must tighten and add to my bonds." As he passed the island, "the Sirens sang . . . sweetly,

promising him foreknowledge of all future happenings on earth." Ulysses shouted to his men

to release him. However, they obeyed his previous orders and only lashed him tighter. They

passed safely (Graves 1960, 361).

Before sailing to the Island of the Sirens, Ulysses made a considered evaluation of what was

best for him. Thinking clearly, with all the facts before him, he formed a plan which would

enable him to both hear the song of the Sirens and live. His order that he should remain

shackled was an expression of his autonomy. Yet when he passed the island, he desired to be

released. We see in this case how it is necessary to frustrate some of a person's desires if we

are to respect his autonomy (Young 1986, 9, 14, 50, 56; Frankfurt 1989; Watson 1975).

There are three relevant desires in the case of Ulysses:

D1. Ulysses desires to live.

D2. Ulysses desires to hear the song from afar.

D3. Ulysses desires to hear the song very closely.

At the time of instructing his men, Ulysses had D1 and D2. Passing by the island, D2

changed to D3. The satisfaction of D3 entails Ulysses' death. Did D1 persist at that time?

According to one view of Ulysses' psychology, his desire to live at the time of the song of the

Sirens has disappeared altogether. On another view, his desire to live persists, but is

dominated by D3. D3 determines his actions. We believe that the latter view is more

plausible. The latter is more consistent with the fact that desires conflict. The former implies

that desires appear and disappear rapidly, and that our behavior is determined by single

momentary desires. But that is a narrow and barren view of psychology. Consider the man

who wants to be a good father, but under the influence of friends, goes with them to the pub

after work and gets drunk. Phenomenologically, this man feels the pull of two desires: to see

his children and to be with his friends. The Ulysses case is best interpreted as a limiting case

of this common phenomenon.

Thus, D1 persists, and exists in some real psychological sense, but Ulysses' behavior is

dominated by the much stronger D3. According to this analysis, it is not merely because

Ulysses did desire to live, or because he will desire to live, but because he now desires to live

that we restrain him. Although we will not argue for this point here, one of us (JS) believes

that we respect Ulysses' present desire more than his desire to hear the song close up because

the desire to live is more rational. Insofar as the satisfaction of this desire can be achieved by

not frustrating Ulysses' other desires, this should be done. The best way to achieve this is by

restraining him.

The present-oriented view can provide a plausible account of why we appeal to the most

recent past preference: the most recent preferences are most likely to reflect present

dispositional preferences. If past preferences mattered per se, there would be as much reason

to appeal to a preference I had ten years ago and no longer have as one which I had just prior

to my operation.

The present-oriented dispositional analysis also provides some account of the attractiveness

in appealing to preferences in the near future (that if people will thank us for treating them,

then this is a reason to treat them). On the dispositional account, preferences are not

momentary states, but persist through time. Preferences in the near future are relevant insofar

as they reflect an enduring present preference. If a person like Ulysses will thank us in the

near future, this may be evidence that he now has a preference at some level for that course of

action. (However, only the temporally neutral analysis can give weight to distant future

preferences.)

Dispositional Present Preferences and Counterfactual Preferences

According to the dispositional interpretation of advance directives, advance directives

provide evidence for what a person now dispositionally prefers. According to the

counterfactual approach (or substituted judgment approach), they provide evidence for what

this person would prefer, if she were now competent. These views are similar but there are

important differences.

A Stronger Moral Imperative. There is a stronger moral imperative to respect actual rather

than hypothetical preferences. The moral status of a purely hypothetical preference is

questionable. What would Lenin think if his body were moved to a different site? He might

have very strong preferences if he were alive today. But those do not seem of great

importance in determining where his body should now be kept, nearly one hundred years

after his death.

The Scope Is Narrower. The scope of the present dispositional approach is narrower in

several ways. To take a recent example from the English press, a man who was unconscious

with meningitis had sperm removed from him before he died. His wife, Diane Blood, now

wants to use that sperm to have a child by him. Did he prefer at the time that the sperm was

collected that he "donate" sperm and that it be used for that purpose? It may be that he had

considered this question, and indeed preferred that his sperm be used in this way (his wife

believes something like this). However, if he had never considered the question, it may still

be true that, in these circumstances, he would prefer that his sperm be used for that purpose

if, magically, he could regain competence. His preference would then be purely hypothetical.

There may be intermediate cases in which a person actually desired some end, like having

children, but did not actually desire the means, such as using his sperm for artificial

insemination.

In the present-oriented dispositional account, patients who have never been competent cannot

have preferences which would direct treatment. According to the counterfactual approach,

however, there is a truth value to the relevant counterfactual: what this person would want if

she were now competent. Moreover, it is possible to determine this truth value for a range of

close possible worlds. Thus, it would be reasonable to predict that a person who has never

been competent would desire to be without pain if she were competent, to have adequate

food, shelter, sleep, and so on. Many commentators deny that substituted judgment can be

used in patients who have never been competent, but this conceptual muddle may indicate

that they are really attracted to a present-oriented dispositional rather than counterfactual

account, suggesting that what most commentators are attracted to is really a dispositional

account, and not a counterfactual account.

Also in the dispositional account, patients who have the capacity to form preferences

destroyed cannot be said to have relevant preferences which should dictate treatment. Thus, if

present dispositional preferences are the preferences relevant to the treatment of incompetent

patients, there cannot be a valid advance directive in cases of permanent unconsciousness, or

indeed a broad range of states of neurological impairment which remove capacity to form

relevant preferences. (A more complex theory may give some weight to past preferences,

though not as much weight as present dispositional preferences. On this account, past

preference might direct treatment in the absence of a relevant present preference.) Decisions

about treatment in cases of persistent vegetative state would have to be made on other

grounds, say, according to a conception of interests or justice. In the counterfactual account,

one could form a valid advance directive even if one would never recover competence.

When is the capacity to form preferences lost in states of severe neurological impairment

such as stroke, dementia, and so on? The capacity to have preferences is lost when the

relevant disposition to act is permanently lost. Thus when incompetence is permanent, it can

be said that a person no longer has the relevant dispositional preferences which have a strong

claim to respect.

Present Dispositional Preferences May Conflict with Counterfactual Preferences

The dispositional approach might conflict with the counterfactual approach on some accounts

of which dispositional preferences matter. The most developed present-oriented view of

reasons for action is that of Derek Parfit. According to Parfit, what matters is the rationality

of our desires and whether their ends are worth promoting. Parfit argues that "[i]f there are

many equally rational aims, what it is rational for me to do must depend on which, among

these many aims, are my aims. And what it is rational to do now must depend upon which,

among these aims, are my aims now." (Parfit 1986; 1984).

One of us (JS) has developed the Present-aim Theory elsewhere (Savulescu 1998). What

provides most reason for action is a rational present preference. There is not space to defend

this claim here. But let us assume that the following prioritization of preferences is correct:

(a) actual rational dispositional preferences should be given greater weight than (b) actual

irrational (but competent) preferences, and these should be given greater weight than (c)

counterfactual irrational (but competent) preferences. Imagine a case in which a young man is

seriously injured in a car accident and has lost both his legs. He is incompetent and critically

ill. His doctors wonder whether to provide life-prolonging care. In the past, he has known

wheelchair athletes and greatly respected them. In the future, he will adapt to his illness. He

has a rational disposition to prefer life in such circumstances. However, let us assume that if

you asked other people who are competent in such a situation, they prefer to die. The loss of

the moment is so great. Indeed, it may be that this man would now want to die (irrationally) if

he were competent. Using the dispositional approach, we should treat; using the

counterfactual approach we should not.

A Dispositional Account of Preferences and the Advance Directives of the

Mentally Ill

We claimed in the first section that it was unlikely that the advance directives of the mentally

ill would be respected due to worries about the freedom, rationality, and competence of a

mentally ill person at the point in time at which she completes an advance directive. In the

second section, we argued that it is a person's present preferences which it is especially

important to respect in a liberal democratic society. We also argued that preferences are

dispositions, and that a person who is now incompetent may also have relevant dispositions

which should be respected. The result for mental illness is that the mentally ill may have

relevant present dispositional preferences which should be respected. And given that

preferences are dispositions, these preferences can be determined by looking at that person's

life across time, and not merely at a single point in the past. We are not bound to an

examination of a person's present mental state or behavior to determine what he at present

prefers. We can and should also appeal to his past preferences if there is evidence that these

have persisted into the present. What matters for consent is whether a person at present

desires a medical intervention, and that she has had this preference during a period of

competence, or sanity. The present preferences of people with mental illness should carry the

same weight as those who have physical illness, if they have had these preferences during a

period of competence and they have persisted through time. Thus, the incompetence often

attending mental illness does not necessarily imply that we can ignore the preferences of

those suffering from mental illness.

The point can be put this way. Using the current analysis of preferences and the view that

advance directives express a single past preference to show that a mentally ill person's

advance directive is valid would require showing that the person was free, competent, and

informed at the point in time at which she completed the directive. According to the

dispositional preference account, the necessary evidentiary condition is much weaker: we

must only show that the person has been competent, free, and informed at some point in

time while having this preference (though not necessarily at the point at which she expressed

the preference in an advance directive). But importantly, at least in the present-oriented view,

the preference must be a present and not merely past preference. On the temporally neutral

view, we must consider also future preferences.

In the following section, we examine how the dispositional analysis is consistent with legal

reasoning in the two English cases involving law around advance directives. We then

examine its logical implications, showing how it might apply to other groups of patients, and

in particular, patients who harm themselves.

Illustrative Cases

Re T (1992). T was a twenty-year-old woman who was thirty-four weeks pregnant when she

was involved in a car accident. She developed pneumonia and went into premature labor. T's

mother was a devout Jehovah's Witness, and T had been brought up as a Jehovah's Witness.

However, her boyfriend and father claimed that she was not a practicing Witness. After a

conversation with her mother, T refused to have a blood transfusion as she said that she

believed it was a sin. She underwent an emergency Cesarean section, but the baby was

stillborn. Soon after she required surgery for a lung abscess which was thought to require

blood transfusion. T's father and boyfriend applied to the court for a declaration authorizing

the transfusion, which was granted on the basis that the transfusion was in her best interests,

and her refusal to consent was not valid. The trial court judge said that she was inadequately

informed at the time of refusal (it had not been explained to her that a blood transfusion

might be necessary to save her life and health), and hence, her decision was not valid. The

judges of the Court of Appeal also argued that her refusal was not valid because she had been

under the undue influence of her mother, in a state of reduced competence because of the

effects of severe illness and drugs.

How does the dispositional analysis apply to this case? It is clear that T had a desire to refuse

blood. However, it was not clear that she had a freely formed desire to refuse blood which

she had had when she was competent. Although it may have been that T had a distant past

preference to refuse blood if indeed she had ever been a Jehovah's Witness, there was

insufficient evidence as to her present dispositional preferences to withhold a beneficial

treatment.

Re C (1994). The landmark case that clarified the rights of patients to refuse treatment in

advance in the UK involved, significantly, a person suffering from mental illness. Mr. C was

a sixty-eight year old patient in a secure hospital who was suffering from paranoid

schizophrenia. His right leg required amputation below the knee for a gangrenous foot. Mr. C

applied for an injunction against his doctors' amputating his leg "in his interests" should he

become incompetent in the future. This constituted an advance directive. At the time he

requested this injunction, he was suffering from active delusions. He believed that he had an

international medical practice and that his doctors were torturers. Despite his active

psychosis, the judge assessed him to be competent to refuse that operation and granted the

injunction. Mr. C recovered without amputation. Although his leg is withered, it is usable (Re

C [Adult: Refusal of Treatment] 1994).

This case is important in a number of regards. It makes clear that a person with mental

illness, even if suffering from paranoid psychosis, can be competent at times to make

decisions about his own care. What matters is whether the patient can understand and retain

the information relevant to the decision in question, believe that information, and weigh the

information in balance to arrive at a choice, and whether he endorses his preferences at that

point in time (BMA and the Law Society 1995).

In this judgment, the court also took into account the similarities between Mr. C's preferences

and those of other sufferers of chronic illness such as the cardiovascular disease which had

long troubled Mr. C. The consultant psychiatrist indicated in his testimony that many elderly

patients whose chronic conditions would require repeated interventions preferred to die rather

than get on that treadmill. This raises an important point about the preferences of the mentally

ill: just because a person suffers from a mental disorder does not necessarily mean that all of

his preferences are "disordered" or insane. What was implied by the court's judgment was

that this was a freely formed preference which should be respected. This evaluation may have

been the result of the observation that other people without mental illness have the same

preference, and it was thus not the singular product of Mr. C's mental illness.

The court's reasoning also assumed a dispositional analysis of preference. The judge in this

case did not seek evidence that Mr. C was competent at the time he sought an injunction.

Rather, he sought to establish that this preference persisted across time into the present--and

Mr. C was unwavering in his resistance to amputation--together with evidence that he was

competent at some point in time.

On the basis of the case of C, we can conclude that a person with mental illness could refuse

life-prolonging treatment required for a physical illness or disorder in advance, at least if both

the future incompetence and the proposed treatment relate to the physical illness. Admittedly,

C is somewhat complex: the reason why the leg developed gangrene was related to Mr. C's

psychosis. Because he believed that his doctors were torturers, he refused medical

examinations at the stage when the infection would have been easily treatable. But this point

was not a feature of the judgment, which states clearly that the preferences of people with

mental illness may be valid if the treatment being refused is not for the mental condition.

Advance directives are most useful and relevant for people who already have an illness, when

they are thinking about their future with that illness. Indeed, their relevance for people who

are well and who are attempting to form preferences about events far in the future about

which they have had no experience, has been questioned (Hope 1996; Higgs 1987; Wolf et al.

1991). A person with mental illness is likely to have preferences regarding the treatment of

his mental illness, just as a person with respiratory failure or cancer is likely to have

preferences about the treatment of those illnesses. Indeed, to the extent that much mental

illness is chronic, the mentally ill have a high degree of relevant experience on which to base

their preferences. They are likely to have concrete knowledge of the various proposed

therapies. In contrast, competent elderly patients' preferences for treatment in different types

of illness, which they have not experienced directly, have been found to be poorly correlated

with their actual preferences when in those states. And projecting preferences for treatment of

mental illness from treatment of somatic illness is particularly risky. It is not possible to

project patients' preferences for their own treatment if they develop dementia, for example,

from their rejection of treatment if they develop terminal illness or fall into a coma (Reilly et

al. 1994).

In relation to competent patients' choice, it has been demonstrated that physicians are most

likely to honor therapy-specific advance directives rather than general-statement ones

(Mower and Baraff 1993). As sophistication grows among physicians and service users alike

about formulating disease-specific advance directives (Singer 1994), there is likely to be

more pressure for considering mental illness-specific advance directives to be disease-

specific, too. As doctors come to accept advance directives as a tool of communication and

dialogue with patients, and not only a restrictive set of prohibitions, there seems less and less

reason to exempt the mentally ill from such dialogue (Davidson et al. 1989).

Two Hypothetical Cases

The following two cases illustrate the potential scope of the use of advance directives in

mental illness. Let us return to the taxonomy in Table 1.

Consider the following example of Category 3c. John has paranoid schizophrenia. When he is

sick, he lives in terror. He believes that all the people in his hostel are trying to kill him. He

hears the sounds of them trying to break into his heavily locked room. But even in his

fortress, they get at him. They send disguised messages through the television. Voices of hate

roll through sleepless nights. Colors appear, and inanimate objects move towards him in a

stream. Running, he tries unsuccessfully to take his life.

Gradually, drugs control his psychosis. But he remembers snatches of how things were. He

requires very high doses of medication. This causes his mouth to move involuntarily, and his

walking is very slow. He is like an old man with Parkinson's disease. John hates the

medication, but fears the next attack. He asks his doctor for help.

"I can't take any more. If I try to kill myself again, don't interfere. I've had enough."

"But with treatment, we can make you better. I know these times are bad for you, but we've

always got you out of them. We can't let you die. You don't have cancer or some other

terminal disease."

"My disease is worse. It is mental torture. My mind is taken away from me. Fear and dread

replace it. I can't escape."

"Even so, your disease is treatable. And we must treat it, if there is a hope of recovery."

"You say that you make me better. But "better" is this--where I cannot get out of a chair. And

the terror always returns. Those periods are worse than death. I cannot endure my life

anymore."

Consider the following example of Category 4 in Table 1. Ron has a ten-year history of

schizophrenia. He has had numerous involuntary and voluntary admissions to hospital,

spending long periods of time in institutions. He has insight into his slow and inexorable

deterioration. He does not want to spend his remaining useful life in hospital. He has seen

that happen to his friends. His delusions and hallucinations often do not trouble him. He asks

not to be admitted to hospital again, even if he is a risk to himself. He has never expressed a

violent attitude to others, and all past admissions have been on the basis of risk to self. While

competent, he writes a living will refusing to be admitted to a mental hospital for treatment of

any future acute psychosis associated with schizophrenia. However, he will accept

community care. He foresees that, as a result of his choice, he stands a greater risk of harming

himself.

Should the preferences of people like Ron and John be respected? We should distinguish

three different groups of people who may form an advance directive relating to a mental

illness: first, a person without a history of mental illness making a directive for a future

mental illness; next, a person who intermittently experiences mental illness interspersed with

periods of competence in between. An example of a person who experiences intermittent

mental illness might be a person with manic-depression. John is arguably another example of

such a person. Though he "has schizophrenia," this disorder may not significantly affect his

mental life all of the time; finally, a person experiencing chronic persisting mental illness, for

example, Ron.

Advance directives are generally accepted to be appropriate in dementia, group 1 in Table

1 (Singer 1994; 1995; Finucane et al. 1993; Robertson 1994). Joan may now form an

advance directive refusing nasogastric feeding if she has severe dementia and is no longer

able to recognize others or care for herself. This directive relates to the treatment of a

physical condition--a state of malnutrition or dehydration--that is the result of a mental

illness--dementia. It is an example of 3b in the taxonomy. Such a directive might be

respected. In the future, such directives may be more common as genetic testing is able to

identify those at greater risk of developing mental illness such as dementia.

In a dispositional analysis of preferences and present-oriented view of which preferences

should be respected, there are doubts about the legitimacy of respecting such directives. What

matters in that analysis is whether a person with severe dementia has a present dispositional

preferences to refuse nasogastric feeding, and not that she had a past preference to refuse

nasogastric feeding. Indeed, our contention is that advance directives are more appropriate for

those in group 2. As we have argued, those in group 2 have a relevant experience of mental

illness. This implies both that they are more likely to have relevant desires about treatment of

that illness, and that those desires will be adequately informed by actual experience. Not only

is it questionable whether those in group 1 have had the relevant present dispositional

preferences at the time they are demented, but those in group 1 may also have no relevant

experience of dementia. If we respect the advance directives of those in group 1 (especially

the type 3b directives), we should respect the advance directives of those in group 2

(especially the type 3b directives).

Advance directives have been used in group 2 patients. Epstein et al. report the use of an

advance directive in a woman who had breast cancer and suffered from debilitating pre-

operative anxiety. In the face of repeated pre-operative refusals to have the necessary surgery

which she would previously agree to, an advance directive directing surgery was constructed

so that the appropriate operation could be performed (Epstein et al. 1994). Because

preferences are dispositional states, the fact that a person becomes incompetent in virtue of

worsening mental illness does not imply that that person ceases to have preferences for his

life which are relevant to treatment of the mental disorder, just as the fact that a person

becomes unconscious or is anaesthetized does not imply he ceases to have preferences

relevant to his care.

Group 3 is more problematic. As the Chabot case illustrated, there are questions regarding

whether the preference to refuse treatment among this group, although persisting, is the

product of mental illness. One could question the concept that a preference is the "product of"

mental illness, and what it means to say that one mental state produces another mental state in

a way which is not free. However, this is a large question and for argument's sake we will

assume that some choices are produced by mental illness in the sense that they are not free.

That said, it does seem that patients in group 3 sometimes have relevant preferences which

should be respected. Mr. C is a case in point.

We believe that if some forms of physical suffering can be so bad as to make a refusal of life-

prolonging care justifiable, then some forms of mental suffering can be so bad as to make

such refusal justifiable as well. Is there a relevant difference between suffering resulting from

physical disease ("physical suffering") and suffering associated with mental disorder ("mental

suffering")?

One paradigm example of suffering is a person with painful, debilitating, terminal cancer

who has days to live. Such a person is suffering in several ways. First, there is the suffering

she experiences as a result of her physical pain. But her suffering goes beyond the experience

of pain. It is also constituted by her feelings of debilitation, by her loss of control over her

life, and by many other aspects of her dying. This suffering is not the direct result of physical

pathology, but the result of the impact of her disease on her mental life. Mental disorder can

affect life in many of the same ways. Like cancer or another physical illness, mental illness

can prevent a person from experiencing rich relationships with her family in the way she

wants, achieving the good things which were important to her, seeing the beautiful things in

the world, growing and carrying on the projects she values.

John's life is dominated by terror and fear. Ron's life has been one of frequent and prolonged

incarceration in mental institutions. This loss of liberty and control makes his life go

worse. 6 One area in which advance directives have been encouraged and thought to be

appropriate is applied to stroke (Singer 1994; 1995; Emanuel and Emanuel 1989). But the

disabilities which result from stroke may be like those associated with mental illness.

If we are right, then those suffering from, or who will suffer, from mental illness have the

right to have their present dispositional preferences for treatment of that mental illness

respected to the same degree as those suffering from physical illness. (Indeed, extending the

right to make an advance directive beyond the group labeled "the terminally ill" avoids

stigmatizing the dying as different, creating greater social cohesion [Lynn 1991].) Ron's

directive should be respected, other things being equal. And sufferers may also have the right

to direct treatment of physical disorders which result from mental illness, as in the case of

John, and, arguably, Mr. C. We are not suggesting that all advance directives should be

respected. There are limits to what patients can request. Preferences that may result in

significant harm to others should not be respected. Advance directives cannot request

treatment which could not contemporaneously be requested. And neither the sane nor insane

can direct doctors to do what is illegal, for example, perform voluntary euthanasia (Francis

1993). 7

It would be an example of discrimination against those suffering from mental illness if their

preferences were treated in a different way to those of other people, unless a relevant

difference could be cited. And, as the C case illustrates, the difference cannot be that the

preference is the result or product of mental illness.

Objections: Possible Reasons for Not Respecting the Preferences of People

with Mental Illness

Here are several possible reasons for not respecting the preferences of people with mental

illness. In each case, we present the objection to respecting the advance directives of mentally

ill in italics.

People with Mental Illness Are Not Competent to Make Advance Directives

The first reason why the advance directives of the mentally ill such as Ron and John should

not be respected is that they are never sufficiently competent to make advance directives,

even when their disease is at its nadir. This is perhaps the most common barrier to respecting

the preferences of the mentally ill. But as the case of Mr. C illustrates, the law views some

mentally ill people as competent to make decisions about their own life. And, at least in the

US, the mentally ill have the right to refuse treatment if they are competent, even if

involuntarily committed (Rogers v. Okin 1979; Rennie v. Klein 1979). What matters is not

the existence of a mental illness per se, but the impact of that mental illness on the person's

competence. In non-psychiatric medicine, there is a presumption that an adult person is

competent until proven otherwise. We see no reason why this principle should not extend to

the mentally ill.

Harm to Others

Not only is a person with mental illness a risk to himself, he is also a risk to others. And

prevention of harm to others is good reason to override an advance directive refusing

treatment. We can distinguish two kinds of harm.

Direct Harm. According to Mill's harm principle, the sole justification for the exercise of

power over an individual against his will is to prevent harm to others. "His own good, either

physical or moral, is not a sufficient warrant" (Mill 1910, 73). There are other precedents for

this: those suspected of suffering from highly communicable serious diseases, such as Lassa

fever, are isolated. However, Mill's harm principle states that risk of harm to self is not a

sufficient warrant for interference in an individual's life. A person who is a risk to himself is

not necessarily a significant risk to others. Those people who can be identified as not

representing a risk to others should be allowed to form advance directives which entail risk to

themselves. This was the case in C. John's preference does not entail harm to others, only

harm to self.

Indirect Harm. An indirect form of harm to others results when one consumes more than

one's fair share of resources. It might be argued that it would be an unfair and inefficient use

of resources to allow patients with mental illness to harm themselves and then receive

expensive medical care. The most efficient way of preventing this harm is involuntary

treatment of their mental disorder, and the physical treatment of those disorders which stem

from it. There are problems with this argument, however. First, it is based on an empirical

claim. The motivation for allowing people with mental illness to live in the community at

greater risk to themselves is often because residential care is perceived to be cheaper than

hospital care. Second, other groups are allowed to run up high health costs by acting

according to their own preferences. For example, by their refusal of blood, Jehovah's

Witnesses may require more expensive treatment, including intensive care (Savulescu,

forthcoming [b]). And smokers allegedly run up higher health care bills (Menzel 1990).

Third, there are conflicting views on whether advance directives would save money

(Chambers et al. 1994; Weeks et al. 1994; Teno et al. 1994; Schneiderman et al. 1992).

Regardless, we do not judge whether the advance directives of other competent people should

be respected by performing a cost-benefit analysis.

Can a previously competent person be compelled to accept treatment to save the State

money? It might be thought that there are other examples of the involuntary treatment of

incompetent patients, e.g., the sterilization of people with learning difficulties (Re

F [Sterilisation: Mental Patient] 1990, 1989; Re H [Mental Patient: Diagnosis] 1993).

However, the justification for these treatments is the doctrine of necessity, that is, the

treatment is in the incompetent person's interests and the person cannot consent. And these

cases involve non-voluntary treatment. If the dispositional analysis of preferences is correct,

then to treat the mentally ill against their wishes may be a case ofinvoluntary treatment.

Personal Identity

Reductionists about identity believe that what matters is not "identity" as it is commonly

understood, but rather "psychological connectedness and/or psychological continuity, with

the right kind of cause" (Parfit 1984, 262). If we accept that what matters is not identity but

psychological connectedness, what defines "me" is contained in my present mental states.

What is important are the relationships of other mental states to these present mental states. In

this view, a person's future self may be more like another person than it is like the present

person.

If we accept a reductionist account of identity, the change from being mentally competent to

being non-competent necessarily involves quite significant changes in mental life. In many

cases, the change is so radical that the future individual appears to share so little in common

(in terms of mental life--memories, goals and values) with the present individual that they

appear more like two different individuals. Any interest or right we have in limiting treatment

of other individuals is much weaker than our own interest in or right to limit our own

treatment.

On the dispositional analysis we have offered, an advance directive should only be respected

if it represents an enduring present preference. If a person has ceased to have the preference

expressed in an advance directive, it should not be respected. Perhaps we should treat future

incompetent individuals as if they were individuals in their own right, according to what is in

their interests at that time. Thus, if I form an advance directive stating that I do not want to be

resuscitated if I am demented in the future, perhaps this should not necessarily be respected.

Whether I should be resuscitated will turn on whether resuscitation is in my interests then.

The Preference Is Irrational

We have claimed that there is a difference between which preferences provide reasons

for action and which preferences the State is obliged to respect. We have been concerned

with the latter question. And the law in England makes clear that a person can refuse

treatment for no reason or for an irrational reason (Re C, 1994; Gibb 1997). But perhaps in

practice, one reason why physicians do not respect the preferences of people like John and

Ron is that they believe that such patients are irrational in desiring to die.

Are such preferences irrational? In philosophy and economics, a dominant school maintains

that there is only one form of rationality: instrumental rationality. 8 According to this school,

we are only irrational if we choose means which are inappropriate to our ends. Neither John

nor Ron is irrational in this sense. Is John's choice intrinsically irrational? John claims that

severe mental illness makes his life not worth living. Schizophrenia has been described as

cancer of the mind. John's life may be devastated to the same degree as a person suffering a

terminal illness. Mental illness can provide as much reason to die as physical illness.

Indeed, it is hard to see why John's preference for his own fate should not be respected when

the preferences of Jehovah's Witnesses are respected, even when these result in death.

Jehovah's Witnesses prefer to die rather than receive a blood transfusion because they believe

that if they receive blood, they will turn to dust, but if they refuse blood they will enjoy

eternal paradise. John's and Ron's preferences are surely no less rational or delusional than

that.

The Special Value of Mental Competence

There are limits to freedom. Mill, in his defense of liberty, argued that people should not be

free to sell themselves into slavery. In Kantian terms, to sell oneself into slavery is to treat

oneself as a means and not as an end in oneself. There is special value in returning a person

to a state of mental competence and restoring her autonomy Komrad 1983). People should

not be free to reject such treatment.

However, the reason why we attach value to restoring a person to competence is so that she

can decide for herself which course of action to take. A fortiori, if her refusal of treatment is

the expression of a settled competent dispositional preference, expressed previously when she

was competent, then this is no reason to override it. Respecting that person's present

dispositional preference is respecting her autonomy.

There is also an important difference between selling oneself into the servitude of another,

and being in the servitude of others and requesting what one judges as freedom. Choosing to

refuse further institutional medical care may be more like dying for one's country than living

under an oppressive foreign regime.

Suicide

In some cases, a preference for a course of action, including rejection of medical treatment,

may entail a risk of intentionally harming oneself, as the case of John illustrates. To

encourage the use of advance directives in mental illness would be to encourage suicide. It is

often said that we should not allow people who attempt suicide to die because suicidal acts

are really an impulsive cry for help, and those who attempt suicide will later be glad that

their life was saved. At any rate, there is never sufficient opportunity to determine whether a

choice for suicide was made by a competent person, free from coercion, and informed of all

the facts (Savulescu 1997; Pabst-Battin 1982).

Many advance directives, such as Ron's living will, merely involve a greater risk of death.

They do not express an intention to die. Ron merely foresees an increased risk of harm to

himself in pursuit of what he believes is overall best. His request is no more a request for

suicide than the request of a mountain climber to be allowed to climb a dangerous mountain.

However, in those cases when a person forms an advance directive about future medical

intervention for intentional self-harm, that directive is not different in principle from other

advance directives refusing certain kinds of interventions. We should respect the suicidal

advance directives of those suffering from mental illness, if they are valid, clearly

established, and applicable in the circumstances which result.

However, by expressing a suicidal preference in advance, many of the objections given for

not allowing those who attempt suicide to die could be addressed. In cases of suicidal

advance refusals of treatment, there is time to address all these concerns. Advance proposals

of suicide are thus less problematic than contemporaneous proposals or attempts.

While it remains a separate question whether people like Mrs. B who are suffering greatly are

entitled to assistance in dying (either through assisted suicide or euthanasia), Dr. Chabot's

actions would have been less objectionable if he had followed an advance directive laid down

by Mrs. B before her sons' deaths and her ensuing depression.

Conclusion

We have argued for three essential conceptual claims:

1. Preferences are dispositions to act. A person may have a preference now for a state of

affairs though he is not now actively seeking to promote that state of affairs.

2. A person's present dispositional preferences command the most respect of his temporally

located preferences.

3. To command the respect of the state, a person's present preference for his own life must

have been freely endorsed at some point in time when he was competent and fully informed.

But this does not imply that he must be competent now to have that dispositional preference.

This present-oriented dispositional analysis has the following implications for the use of

advance directives in mental illness:

1. Advance directives are relevant to treatment insofar as they represent a

person's present dispositional preference.

2. Although a mentally ill person in the grip of psychosis may have disordered and irrational

preferences now, he may also have present dispositional preferences which he has had when

not acutely ill and when he was competent and fully informed. It is morally incumbent on us

to respect such present preferences.

3. The mentally ill may have valid present dispositional preferences regarding their treatment

even during a period of mental illness, as the case of Mr. C illustrated.

4. These preferences should command the same respect as the preferences of those with

physical illness. To treat these preferences differently constitutes discrimination.

5. A dispositional analysis makes it easier in one way to respect the preferences of the

mentally ill. While the view that advance directives represent occurrent past preferences

requires that we show both that the expressed preference was freely formed when the person

was competent and informed at time it was expressed, the dispositional analysis requires only

that we show that this person has a present disposition to act in the way suggested by the

advance directive, and that this disposition has existed at some time when the person was

competent and informed.

6. Valid preferences should command respect even if they expose a person to a greater than

necessary risk, including the risk of self-harm or suicide.

7. There is no relevant difference between preferences for treatment of mental illness and for

treatment of physical illness. The mentally ill should be able form advance directives refusing

treatment for mental illness in advance in the same way as they and others should be able to

form advance directives refusing treatment of physical illness.

8. Advance directives have been advocated for well people considering the limits of treatment

if they develop dementia. We have argued that advance directives are most appropriate for

people with experience of illness. In this respect, advance directives are most appropriate for

patients with intermittent mental illness, though, as the case of Mr. C illustrates, they may

also be appropriate for some patients with chronic unrelenting mental illness.

We have argued that the preference which matters most in directing the treatment of people is

their present dispositional preference. Advance directives are only relevant in that they

provide some evidence for what a person's present dispositional preference might be. Thus,

on our analysis, advance directives carry less weight in determining treatment than on the

past preference approach. However, they have a very important evidentiary role and, in the

case of mental illness, they play a relatively greater role in providing evidence as to what the

content of these preferences might be. And although there is the possibility that clinicians

will use the dispositional analysis to override the explicit preferences of patients, this is

already possible: it is possible to make a bad faith evaluation that a person's advance directive

was formed when the person was incompetent, inadequately informed, or under undue

influence. The power of clinicians to override patient preferences is and probably always will

be great. Education of clinicians, not regulation, is the most promising avenue for promoting

respect for patients' autonomy.

There have been few other explicit proposals for the use of advance directives in mental

illness. These have centered around the use of directives to provide a mechanism for the

mentally ill to consent to psychiatric treatment in advance, so that such treatment can be

administered when they are psychiatrically ill and incompetent, but when they are not at a

risk to themselves and others, and so involuntary treatment could not be administered

(Howell, Diamond, and Wikler 1982; Brock 1993). We have made the more radical

suggestion that advance directives may be used by the mentally ill to refuse treatment in

advance. In the dispositional analysis of preferences we have offered, there is a strong moral

imperative facing clinicians to determine what a mentally ill person's dispositional

preferences are now. Advance directives may be important guides to these. But a

dispositional analysis requires clinicians to go beyond a single preference in the past to an

examination of recent past and predicted future behavior. It requires that clinicians look at the

lives of people with mental illness across time, rather than at a single point in time.

We have argued that those experiencing mental illness can be competent, and they may form

intelligible, even rational preferences for their own life and medical treatment. People like

Ron and John who are mentally ill can form valid directives refusing treatment for their

mental disorder in the future when they are a risk to themselves. When the mentally ill form

advance directives refusing (a) life-sustaining treatment which is required for a physical

disorder caused by mental illness or (b) treatment for mental illness, when they are at risk of

harming themselves, intentionally or unintentionally, it is unlikely that these directives will

be respected in practice. This treatment is anomalous. Liberal societies are based on the

principle that the State should not interfere in a person's life for his or her own good. We see

no reason to treat these preferences differently from the preferences of other people in

society. Mental health legislation gives considerable power to clinicians to override the

choices of the mentally ill. However, the law need not be invoked. Clinicians can choose to

respect the choices of the mentally ill.

Julian Savulescu, Director, Ethics Unit, Murdoch Institute for Research into Birth Defects,

Centre for the Study of Health and Society, University of Melbourne; Dr Donna Dickenson,

Leverhulme Senior Lecturer, Imperial College, London, Project Director, European

Biomedical Ethics Practitioner Education, BIOMED-2, EC, Ethics Unit, Murdoch Institute,

Royal Children's Hospital, Parkville 3052 Victoria, Australia

Notes

1. An exception could be a pregnant woman who has refused procedures judged to be in the

interest of her fetus (Re S [Adult Refusal of Medical Treatment] 1993; Re AC,

1990; Jefferson v. Griffin Spalding County Hospital Authority 1981]).

2. There are three kinds of advance directives: (a) an instruction directive, a statement

expressing a request for or a refusal of treatment in certain future circumstances; (b) a general

values/preferences statement, a statement of a person's general values or preferences relevant

o medical treatment; and (c) a proxy directive, a person authorizes another specific person to

make decisions for him or her when incompetent. In England and Wales, proxy directives

have no legal force. No one can consent or refuse to consent on behalf of another adult in

those countries.

3. When confronted by an unconscious patient with an advance directive, it is important to

evaluate the directive's validity: Is there evidence that the directive was completed by this

particular person? Was the person competent at the time of completing it? Was the person

fully informed of the consequences of his or her choice? Was he or she aware of the risks and

benefits? Does the directive apply to this particular set of circumstances? What was the

patient's intention at the time of completing the directive? Is there evidence that the person

has changed his or her mind? Is there evidence that the person has revoked or updated the

directive? Was the person's choice free from coercion?

Chief among these is determining that a person was adequately informed at the time of

completing a directive and determining whether the directive actually applies to the

circumstance that arises. For example, one of us (JS) received a directive from a patient

which stated "I do not wish to slow down my "Life" (by which I mean the ability to look after

myself as I have done since my Wife died); therefore I do not wish to be resuscitated if my

heart should fail completely or if I should suffer a stroke from which I could not recover

sufficiently to carry on as I am now doing." It is not clear from this directive whether this

person would want to be resuscitated if he had had a stroke which would leave him or her

with a clumsy hand, or if there was a 90 percent chance of full recovery. In response to

problems such as these, there have been attempts to construct forms which make decisions

more explicit (Terence Higgins Trust and the Centre of Medical Law and Ethics at King's

College 1994; Voluntary Euthanasia Society; Singer 1995; 1994; The Patients' Association

1996; Emanuel and Emanuel 1989). However, even such very detailed directives can never

cover the whole range of circumstances which might arise.

4. Feinberg divides constraints on freedom or autonomy as external positive constraints

(physical barriers, coercive threats), external negative constraints (inadequate resources),

internal positive constraints (headaches, obsessions, compulsive habits, neuroses) and internal

negative constraints (ignorance) (Feinberg 1973, 13). Mental illness often represents an

internal positive constraint. The case of Chabot is complex. One psychiatrist specializing in

depression stated to the Dutch Medical Council that Mrs. B was not depressed.

5. In the UK, there may be a shift to giving greater legal recognition of the importance of the

autonomy of pregnant women. In the latest ruling, the Court of Appeal upheld a decision to

force a woman, Mrs. C, with a needle phobia to have a Cesarean section on the grounds that

her needle phobia made her incompetent. However, it took the opportunity to clarify the

English law with respect to forced Cesarean sections. Lady Justice Butler-Ross stated: "The

law is, in our judgment, clear that a competent woman who has the capacity to decide may,

for religious reasons, other reasons or no reasons at all, choose not to have medical

intervention even though the consequence may be the death or serious handicap of the child

or her own death." (Gibb 1997)

6. As clinical ethicist, one of us (JS) was involved in a the case of a man, Mr. R, who was

allowed to die. Mr. R was a man in his middle sixties who had had renal failure for many

years, and had been treated with dialysis. He had received a renal transplant several years

ago. He presented with a perforated colon. As a result of his immunosuppression, he was very

ill post-operatively and admitted to intensive care. Having been in intensive care only a short

time, he refused further treatment. He was alert and competent, and his desire was ultimately

respected after much consultation, despite his good prognosis. His only reason was that he

had "had enough of hospitals."

7. Even where euthanasia is (unofficially) permitted, it will not always be right to satisfy

preferences for it. The Dutch Medical Council reprimanded Dr. Chabot because there were

doubts about the extent to which Mrs. B's choice was voluntary, and the nature of his role. If

she was not clinically depressed--and at least one psychiatrist specializing in depression

stated that she was not--then Dr. Chabot was acting as a friend rather than as her doctor. But

if he was not her doctor, then he should not have assisted her suicide.

8. There has been an extensive feminist critique of this model of rationality. See, for example,

Green (1995) and Lloyd (1993). There is also a growing reevaluation of instrumental

rationality in mainstream economics (Collard 1978; Dasgupta 1993).

References

Advance Directives Seminar Group. 1992. Advance directives: Are they an

advance? Canadian Medical Association Journal 146:127-34.

Airedale NHS Trust v. Bland. 1993. 1 All England Law Reports 821.

Argyle, M. 1987. The psychology of happiness. London: Methuen.

B. v. Croydon H. A. 1995. 1 All England Law Reports 683.

BMA and the Law Society. 1995. Assessment of mental capacity. London: BMA.

Brock, D. 1991. Trumping advance directives. Hastings Center Report 21(5):S55-6.

------. 1993. A proposal for the use of advance directives in the treatment of incompetent

mentally ill persons. Bioethics 7:247-56.

Buchanan, A., and D. Brock. 1986. Deciding for others. Milbank Quarterly 64:17-94.

------. 1989. Deciding for others: The ethics of surrogate decision making. Cambridge:

Cambridge University Press.

Chambers, C. V., J. J. Diamond, R. L. Perkel, L. A. Lasch. 1994. Relationship of advance

directives to hospital charges in a medicare population. Archives of Internal

Medicine 154:541-47.

Christensen-Szalanski, J. J. J. 1984. Discount functions and the measurement of patients'

values. Journal of Medical Decision Making 4(1):47-58.

Christman, J., ed. 1989. The inner citadel: Essays on individual autonomy. New York:

Oxford University Press.

Collard, D. 1978. Altruism and economy: A study in non-selfish economics. Oxford: Martin

Robertson.

Dasgupta, P. 1993. An enquiry into well-being and destitution. Oxford: Clarendon Press.

Davidson, K. W. et al. 1989. Physicians' attitudes on advance directives. Journal of the

American Medical Association 262:2415-19.

Emanuel, L., and E. J. Emanuel. 1989. The medical directive: A new comprehensive advance

care document. Journal of the American Medical Association 261:3288-93.

Emanuel, L. 1993. Advance directives: What have we learned so far? Journal of Clinical

Ethics 4:8-16.

Emanuel, L., M. J. Barry, J. D. Stoeckle et al. 1991. Advance directives for medical care: A

case for greater use. New England Journal of Medicine 324:889-95.

Epstein, S. A., E. Martins, M. A. Crowley, M. F. Pennanen. 1994. The use of an advance

directive in consultation-liaison psychiatry: A case report. International Journal of

Psychiatry and Medicine 24:371-76.

Feinberg, J. 1973. Social philosophy. Englewood Cliffs: Prentice-Hall.

Finucane, T. E., B. A. Beamer, R. P. Roca, C. H. Kawa. 1993. Establishing advance medical

directives with demented patients: A pilot study. Journal of Clinical Ethics 4:51-54.

Francis L. P. 1993. Advance directives for voluntary euthanasia: A volatile

combination? Journal of Medicine and Philosophy. 18:297-322.

Frankfurt, H. 1989. Freedom of the will and the concept of a person. In The inner citadel:

Essays on individual autonomy, ed. J. Christman, 63-76. New York: Oxford University Press.

Gibb, F. 1997. Women have right to reject Cesarean, court rules. The Times 17 March: 1-2.

Graves, R. 1960. The Greek myths. Vol. 2. London: Penguin.

Green, K. 1995. The woman of reason: Feminism, humanism and political

thought. Cambridge: Polity Press.

Hare, R. M. 1981. Moral thinking: Its levels, method and point. Oxford: Clarendon Press.

Higgs, R. 1987. Editorial: Living wills and treatment refusal. British Medical

Journal 295:1221-22.

Hope, R. A. 1996. Advance directives. Journal of Medical Ethics 22:67-68.

Howell, T., R. J., Diamond, D. Wikler. 1982. Is there a case for voluntary commitment?

In Contemporary issues in bioethics, 2d ed., ed. T. Beauchamp and L. Walters. Encino:

Wadsworth Publishing.

Jefferson v. Griffin Spalding County Hospital Authority. 1981. Southeastern Reporter

274:457.

Kahneman, D., and C. Varey. 1991. Notes on the psychology of utility. In Interpersonal

comparisons of well-being, ed. J. Elster and J. E. Roemer, 127-139. Cambridge: Cambridge

University Press.

King, N. M. P. 1991. Making sense of advance directives. Dordrecht: Kluwer.

Kleinig, J. 1985. Ethical issues in psychosurgery. London: Allen and Unwin.

Komrad, M. S. 1993. A defence of medical paternalism: Maximising patients'

autonomy. Journal of Medical Ethics 9:38-44.

Lloyd, G. 1993. The man of reason: "Male" and "female" in western philosophy. London:

Routledge.

Lynn, J. 1991. Why I don't have a living will. Law, Medicine, and Health Care 19:101-14.

Malette v. Shulman. 1990. 67 Dominion Law Reports (4th) 321, [1991] 2 Medical Law

Review 162 (Ontario, Canada).

Menzel, P. T. 1990. Strong medicine. New York: Oxford University Press.

Miles, S. H., R. Koepp, E. P. Weber. 1996. Advance end-of-life planning. Archives of

Internal Medicine 156:1062-68.

Mill, J. S. 1910. Utilitarianism, liberty and representative government. New York: J. M. Dent

and Sons.

Molloy, D. W. and V. Mepham. 1992. Let me decide. London: Penguin.

Mower, W. R. and L. J. Baraff. 1993. Advance directives: Effect of type of directive on

physicians' therapeutic decisions. Archives of Internal Medicine 153:375-81.

Nagel, T. 1970. The possibility of altruism. Oxford: Clarendon Press.

Ogilvie, A. D. and S. G. Potts. 1994. Assisted suicide for depression: The slippery slope in

action? Learning from the Dutch experience. British Medical Journal 309:492-93.

Pabst-Battin, M. 1982. Ethical issues in suicide. Englewood Cliffs: Prentice-Hall.

Parfit, D. 1984. Reasons and persons. Oxford: Clarendon Press.

Parfit, D. 1986. Comments. Ethics 96:832-72.

Patients' Association. 1996. Advance statements about future medical treatment. London: The

Patients' Association.

President's Commission for the Study of Ethical Problems in Medicine and Biomedical and

Behavioral Research. 1983. Deciding to forgo life-sustaining treatment: A report on the

ethical, medical and legal issues in treatment decisions. Washington: GPO.

Rawls, J. 1972. A theory of justice. Oxford: Oxford University Press.

Re A. C. 1990. 573 Appeals Court 2d 1235 (District of Columbia)

Re C. (Adult: Refusal of Treatment). 1994. 1 Weekly Law Reports 290.

Re F. (Sterilisation: Mental Patient). 1990. 2 Appeals Court 1, 1989. 2 Family Law

Reports 376. 1989. Weekly Law Reports 1025.

Re H. (Mental Patient: Diagnosis). 1993. 1 Family Law Reports 28.

Re S. (Adult Refusal of Medical Treatment). 1993. Family Law Reports 123.

Re T. (Adult: Refusal of Treatment). 1992. 4 All England Reports 649

Reilly, R. B., T. A. Teasdale, and L. B. McCullough. 1994. Projecting patients' preferences

from living wills: An invalid strategy for management of dementia with life-threatening

illness. Journal of the American Geriatric Society42:997-1003.

Rennie v. Klein, 462 Federal Supplement 1131.

Robertson, G. S. 1994. Resuscitation and senility: A study of patients' opinions. Journal of

Medical Ethics 19:104-107.

Robertson, J. A. 1991. Second thoughts on living wills. Hastings Center Report. December 6-

9.

Rogers v. Okin, 478 Federal Supplement 1342 (D. Mass 1979); decided on appeal to the

United States Supreme Court as Mills v. Rogers, 457 U.S.291 (282).

Ryle, G. 1963. The concept of mind. Harmondsworth: Penguin.

Savulescu, J. 1994. Good reasons to die. Ph.D. diss., Monash University.

------. 1997. The trouble with do-gooders: The example of suicide. Journal of Medical

Ethics 23:108-115.

------. Forthcoming (1998). The Present-aim Theory: A Submaximizing theory of

Reasons. Australasian Journal of Philosophy.

------. Forthcoming (b). The cost of refusing treatment. Journal of Medical Ethics.

Schloendorff v. New York Hospital, 1914. 211 New York 125, 127, 129; 105 New England

92, 93.

Schneiderman, L. J., R. Kronick, R. M. Kaplan et al. 1992. Effect of offering advance

directives on medical treatment and costs. Annals of Internal Medicine 117:5599-5606.

Sidgwick, H. 1963. The methods of ethics. London: Macmillan.

Silver, R. L. and C. B. Wortman. 1980. Coping with undesirable life events. In Human

helplessness: Theory and applications, ed. J. Garberand and M. E. P. Speligman, 279-340.

New York: Academic Press.

Singer P. A. 1994. Disease-specific advance directives. Lancet 344:594-96.

Singer, P. 1995. Living will. 4th ed. Toronto: University of Toronto Center for Bioethics.

Special Section of the Hastings Center Report 1991. Vol 2.

Taylor, S. E. 1989. Positive illusions. New York: Basic Books.

Teno, J. M. et al. 1994. Do formal advance directives affect resuscitation decisions and the

use of resources for seriously ill patients? Journal of Clinical Ethics 5:23-30.

Terence Higgins Trust and the Centre of Medical Law and Ethics at King's College, London.

1994. Living will. 2nd ed. London: Terence Higgins Trust and the Centre of Medical Law and

Ethics at King's College.

Treatment Without Consent (Anorexia Nervosa): Adult (South West Hertfordshire Health

Authority v. Brady) 1994. Medical Law Review 2: 208-10 [AG]

Treatment Without Consent (Suicide): Adult (Re V.S. (Adult: Mental Disorder),

1995. Medical Law Review 3:292-4 [AG]

Vaillant, G. 1977. Adaptation to life. Boston: Little Brown.

Van De Veer, D. 1986. Paternalistic intervention: The moral bounds on

benevolence. Princeton: Princeton University Press.

Voluntary Euthanasia Society. Advance Directive. n.d. London: Voluntary Euthanasia

Society.

Watson, G. 1975. Free Agency. Journal of Philosophy 72. Reprinted in The inner citadel:

Essays on individual autonomy, ed. J. Christman, 109-22.

Weeks, W. B., L. L. Kofoed, R. S. Phillips et al. 1994. Advance directives and the cost of

terminal hospitalization. Archives of Internal Medicne 154:2077-83.

White, M. L. and J. C. Fletcher. 1991. The patient self-determination act: On balance, more

help than hindrance. Journal of the American Medical Association 266:410-12

Williams, B. 1976. Persons, character and morality. In The identities of persons, ed. A. O.

Rorty, 201-11. Berkeley: University of California Press.

Wolf, S. M. et al. 1991. Sources of concern about the patient self-determination act. New

England Journal of Medicine 325:1666-71.

Young, R. 1986. Personal autonomy: Beyond negative and positive liberty. London: Croom

Helm.