Medical Treatment of Dementia Patients at the End of Life: Can the Law Accommodate the Personal Identity and Welfare Problems?

Abstract

Legal approaches to decision-making in the area of the medical care of incompetent persons are generally based on respect for the patient’s autonomy, or protection of her welfare, or some combination of the two. Advance decision-making and the substituted judgment test are the two examples of autonomy-based legal approaches to incompetent individuals. If the incompetent individual was previously competent, her earlier autonomous decisions regarding medical treatment can be projected into the future once she becomes incompetent. Even if the incompetent individual failed to make such advance decisions, her autonomy can be respected by taking the decision that she would have taken, based on evidence of her previously competent wishes, preferences and values. The best interests test is the key example of decision-making based on the protection of the incompetent’s welfare interests, and can be used regardless of whether the incompetent was previously competent.

This article considers whether two significant philosophical objections to autonomy-based legal approaches to decision-making for incompetent individuals could be accommodated by the law. These philosophical objections are known as the personal identity and welfare problems. The article first sets out the autonomy-based approaches and their objections. Next, the present legal position is briefly canvassed in a comparative vein. Finally, the article suggests how the personal identity and welfare problems might be accommodated were legislators minded to do so, by proposing specific statutory amendments to the recent English legislation on advance decisions and evaluating their viability, particularly in light of the European Convention on Human Rights.

Keywords: dementia, capacity, welfare, identity, law, medical law, health law, human rights, right to private and family life, best interests, autonomy, advance directives, advance decisions, advance refusals, living wills