Substituting Authenticity for Autonomy

Choosing for incapacitated patients is a major challenge in medicine. Scholars and policy-makers have struggled for years to explain and justify various approaches to determining appropriate treatment for such patients. In this issue, Daniel Brudney makes an important contribution by clarifying a conceptual confusion in the common understanding of the substituted judgment standard. He argues that unlike decisions expressed in advance directives, decisions based on what the patient would want fail to promote self-determination. Instead, they promote authenticity. Brudney is not the first to delineate conceptual and ethical differences between treatment choices in advance directives and choices inferred from an incapacitated patient’s previous beliefs and values. The differences explain why ethical theorists and legal authorities give priority to advance directives over the substituted judgment standard. Brudney’s contribution is a novel account of why inferred treatment choices are distinct from choices expressed by patients themselves. Brudney also questions the conventional view that decisions based on substituted judgment should invariably take priority over those based on a patient’s best interests. Unlike self-determination, authenticity is a value that might be subordinated to other considerations. Brudney ties the value of authenticity to Ronald Dworkin’s notion of integrity and the wish for one’s life to have a coherent narrative. Individuals have an interest in receiving medical care that is consistent with their beliefs and values, but this is only one of several factors that determine an incapacitated patient’s best interests. On Brudney’s analysis, decision-making for patients with no advance directive may require balancing several different values, including authenticity, other elements of the patient’s best interests, and perhaps even the family’s interests. I would extend Brudney’s analysis further than he does. Though acknowledging that “even explicit statements may need interpretation,” Brudney classifies the choices expressed in advance directives as actual expressions of self-determination that should trump the other values that might influence bedside choices. But this element of his analysis conflates two types of choices that should be distinguished. In the medical setting, the paradigm case for an exercise of self-determination is the competent patient making an informed choice among different treatment options. Informed choice requires an understanding of the proposed intervention, its risks and expected benefits, and the risks and expected benefits of any reasonable alternatives. When patients lack this understanding, they cannot exercise genuine self-determination. Before losing capacity, few individuals know what treatment decisions will later emerge, much less how they would experience the relevant burdens and benefits in their incapacitated state. As a result, few advance directives are made with the understanding that underlies genuine self-determination. There are also other reasons to regard most advance directives as less than full-fledged exercises of self-determination. For one, individual beliefs and preferences change over time. It is not unusual for people in declining health to become more accepting of burdens that previously seemed unacceptable, or conversely, to reject burdens they once thought would be tolerable. Psychologists are finding that we are not very good at predicting what will be good or bad for us in the future. It is also difficult to put what are often complex ideas about quality of life and survival into simple declarations. And many advance directives are simply general statements about a person’s values and beliefs; as such, they supply no more guidance than the evidence supporting a treatment decision based on substituted judgment.