Precommitment: a misguided strategy for securing death with dignity.

Precommitment is a seductive concept in bioethics. Many see it as a way for people to answer all sorts of biomedical questions about the future, such as whether to participate in dementia research or whether to have children posthumously. Precommitment is most popular as a strategy to resolve questions about the future use of life-sustaining treatment. The living will was an early focus of the death with dignity movement and its successor, the advance treatment directive, is central to medical ethics and law. Scholars and researchers have analyzed advance directives for more than three decades. Their work exhibits two contradictory themes. First, precommitment remains an alluring strategy for many people worried about end-of-life care. People in this group cling to the notion that advance decisionmaking will deliver them a dignified and merciful death. Many philosophers, clinicians, judges, and legislators belong to this group. At the same time, a second body of work questions the wisdom of the first position. This work describes a host of ethical and practical problems with relying on precommitment to resolve decisions about life-sustaining treatment. I am part of the second group. In my view, reliance on advance treatment choice is misguided and morally troubling. Although a person's statements about future care can be relevant, they are just one element of a complex situation. In most instances, they offer little guidance to those making decisions at the bedside. And in some cases, such statements should be given less weight than other considerations affecting patient care. In this Article, I explain why precommitment is an inferior strategy for making end-of-life decisions. Part I reviews the literature and legal rules promoting advance choice as the preferred approach to resolving treatment questions. Part II describes empirical findings that expose problems with the advance directive approach. Part III discusses ethical and policy objections to relying on precommitment to answer treatment questions. I conclude that precommitment is an impractical and inappropriate strategy for securing humane and dignified death. I. The Pro-Precommitment Position in Ethics and Policy The idea of advance treatment decisionmaking emerged as modern medicine became increasingly able to prolong the lives of seriously compromised patients. Attorney Luis Kutner published an early version of the living will in 1969.1 He said such a document was needed to allow people to avoid life "in a state of indefinite vegetated animation."2 Through the living will, an individual, "while fully in control of his faculties and his ability to express himself, [could] indicate to what extent he would consent to treatment."3 The document would protect physicians from liability for with-holding life-sustaining interventions and allow people with particular religious beliefs to specify treatments that would be acceptable and unacceptable. A few years later, a philosopher and a physician proposed their own versions of the living will.4 Like Kutner's recommended document, these proposals "represented] an effort to retain some control over what happens at the end of one's life, even if one is then no longer competent to make personal choices or to see that they are carried out."5 The concept of advance decisionmaking became part of the legal landscape in 1976. The New Jersey Supreme Court endorsed it in In re Quinlanf the first major case on end-of-life treatment. In Quinlan, the court considered whether life-sustaining treatment was required for a brain-damaged patient who had permanently lost consciousness, but could live for many years if treated. The court ruled that patients have a right to decide whether to receive life-sustaining treatment and that evidence of any previous treatment decisions should influence whether they receive treatment after becoming incapacitated.7 That same year, the California legislature passed the first Natural Death Act, which "recognize[d] the right of an adult person to make a written directive instructing his physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition. …