The Time Frame of Preferences, Dispositions, and the Validity of Advance Directives for the Mentally Ill

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.

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...