The Living Will: Does an Advance Refusal of Treatment Made with Capacity Always Survive any Supervening Incapacity? *

Abstract

There is a widespread consensus in law and medical ethics that living wills have to be obeyed by the physician if the patient was competent when the medical directive was signed and if, after the patient becomes incompetent, additional conditions occur which were considered by him. According to this viewpoint, the effectiveness of living wills is a direct consequence of the patient's right of self-determination. As the British Law Commission has recently put it: “An advance refusal made with capacity simply survives any supervening incapacity.” However, this opinion does not take into account the empirical fact that the formerly competent person's critical interests (at t₁) do not necessarily correspond with his experiential interests after incompetency is established irreversibly (at t₂). The author's goal is to answer the question of whether there can be cases which do not allow the formerly competent person's critical interests to prevail over the incompetent patient's experiential interests.