Response to the Commentaries

Our aim was to raise the profile of advance directives in mental illness. It seems we have achieved that end. We thank all the commentators for their positive and constructive comments, which have advanced our thinking in many ways.

There is at least one major weakness in our argument. Both Brock and Dresser claim that an important counterintuitive implication of our analysis is that it gives no weight at all to past preferences. Thus, in our view, the advance directives of the severely demented should be respected not on the basis that they represent valid past preferences but on some other grounds. Indeed, we stated explicitly that “there cannot be a valid advance directive in cases of permanent unconsciousness.”

We did, however, go on to say that “a more complex theory may give some weight to past preferences.” Indeed, earlier in the argument we distinguished between the present-oriented view (which “gives greater weight to present preferences over preferences at other times”) and the present-only view (which “gives weight only to present preferences”). Brock and Dresser’s criticism applies solely to the present-only view, not the present-oriented view that we supported at other points in the paper, which is probably more plausible.

In a present-oriented view, present preferences matter most, but past and future preferences still matter to some lesser degree. Thus, in the absence of some relevant present preference, the satisfaction of the patient’s past and/or future preferences could determine her treatment. Advance directives would thus be important as a possible indicator of a person’s present dispositional preference, and if there is none, at least her past preferences. This view would not weaken the conceptual support for allowing advance directives to influence the care of persons who have permanently lost mental competence (thus avoiding Dresser’s objection). It might also provide a stronger justification for respecting the advance directives of those with chronic progressive mental illness, as well those with intermittent mental illness (thus avoiding Eastman’s objection that advance directives are more appropriate for Johns than for Rons because of deteriorating competence in the latter). These modifications all accord more with our original purpose, which was not to cancel out past preferences altogether, but to stop their all-pervasive dominance, which worries many clinicians and may deter people from making advance directives.

The present-oriented view is more plausible that the present-only view in at least one way. Other things being equal, it is better if a person’s preferences for what should happen to her body and property after her death are respected. When she is dead, there is only a past preference, and any reason to respect her wishes is derived from that preference.

Although the present-oriented view is much closer to a counterfactual account of advance directives than a present-only view, it still diverges from temporal neutrality: when present dispositional preferences conflict with past or future preferences, greater weight should be given to present preferences. Part of the reluctance of clinicians to respect the advance directives of the mentally ill is that clinicians believe that a patient’s future preferences (with treatment) may later justify their current overriding of the patient’s past preferences (as Burgess suggests in the case of Robin). However, if the mentally ill have relevant present dispositional preferences, this moral justification for overriding advance directives is much weaker.

Brock is right to state that advance directives are performative utterances. However, his observation is not as threatening to our account as he concludes. Advance directives, at least in the sense of advance refusals, are different from property contracts. There is no other party to the so-called contract in the case of an advance directive, and therefore advance directives are not contracts in any relevant sense. In Hegelian terms, contracts are but one stage (the lowest) in the mutual recognition of other people. Performative statements (though not mentioned in Hegel) would represent other sorts of engagement with the world. In short, although all contracts are performative statements, not all performative statements are contracts.

Advance directives are different from the performative...