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Further Reflections: Surrogate Decisionmaking When Significant Mental Capacities are Retained

A Response to: Precedent Autonomy and Surrogate Decision-Making After Severe Brain Injury by MacKenzie Graham, Cambridge Quarterly of Healthcare Ethics (CQ 29 (4))

Published online by Cambridge University Press:  29 December 2020

JENNIFER HAWKINS
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Abstract

Mackenzie Graham has made an important contribution to the literature on decisionmaking for patients with disorders of consciousness. He argues, and I agree, that decisions for unresponsive patients who are known to retain some degree of covert awareness ought to focus on current interests, since such patients likely retain the kinds of mental capacities that in ordinary life command our current respect and attention. If he is right, then it is not appropriate to make decisions for such patients by appealing to the values they had in the past, either the values expressed in an advance directive or the values recalled by a surrogate. There are two things I wish to add to the discussion. My first point is somewhat critical, for although I agree with his general conclusion about how, ideally, such decisions should be approached, I remain skeptical about whether his conclusion offers decisionmakers real practical help. The problem with these cases is that the evidence we have about the nature of the patient’s current interests is minimal or nonexistent. However—and this is important—Graham’s conclusion will be extremely relevant if in the future, our ability to communicate with such patients improves, as I hope it will. This leads to my second point. Graham’s conclusion illustrates a more general problem with our standard framework for decisionmaking for previously competent patients, a problem that has not been adequately recognized. So, in what follows, I explain the problem I see and offer some brief thoughts about solutions.

Type
Responses and Dialogue
Information
Cambridge Quarterly of Healthcare Ethics , Volume 30 , Issue 1 , January 2021 , pp. 192 - 198
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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References

Notes

1. Graham, M. Precedent autonomy and surrogate decision-making after severe brain injury. Cambridge Quarterly of Healthcare Ethics 2020; 29(4):511–526.CrossRefGoogle ScholarPubMed

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8. See note 4, Kondziella et al. 2016, at 485–92.

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19. It is important to distinguish between local and global incompetence/incapacity. Most ethicists accept now that decisionmaking capacity should be assessed on a decision-by-decision basis, such that a patient might in principle be deemed incompetent to make one decision but found competent to make others. A patient like this has local incompetence. However, some patients are so seriously impaired that they are really unable to make any medical decisions for themselves. These patients are said to be globally incompetent. Although Dworkin is not nearly as clear about this as he should be, most of the time advance directives are assumed to come into play once a patient is globally incompetent. See Note 17, Hawkins, Charland 2020.

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21. Interestingly, Dworkin also defended a view of best interests according to which current interests of an incompetent patient are determined by past wishes. If one holds this view then, even if one grants that interests should guide us here (as opposed to respect for past competent decisions), this will not make a difference to how one proceeds. Past values of the patient will still be most important. I have argued against this view in Hawkins, J. Well-being, time and dementia. Ethics 2014;124:507–42.CrossRefGoogle Scholar

22. See note 20, Dworkin 1994, at 230.

23. See note 20, Dworkin 1994, at 230–1.

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25. See note 24, Jaworska 1999, at 135.

26. See note 24, Jaworska 1999, at 117–8.

27. See note 24, Jaworska 1999, at 130.

28. See note 20, Dworkin 1994, at 222.

29. See note 20, Dworkin 1994, at 223.

30. See note 20, Dworkin 1994, at 224.