The Force Behind Advance Directives: A Response to Allen Buchanan’s “Advance Directives and the Personal Identity Problem”

Rory Ewins

This is the fourth in a series of essays I wrote as an undergraduate, honours, and then masters student in political theory. This one is from my honours year, 1990, and is presented here almost unchanged.

Ethical problems in the medical field have been of increasing concern to legislators, but one in particular, the advance directive, is political in a more direct sense. In its most familiar form, the advance directive is a set of instructions issued by a competent person as to how he is to be medically treated when he is no longer competent to so decide (Buchanan 1988:277). By extending self-determination beyond the realms of the competent individual, the advance directive prompts us to ask where the limits of autonomy lie.

Allen Buchanan has discussed similar questions in “Advance Directives and the Personal Identity Problem” (1988). He has concluded that, although they have some moral weight, the force of advance directives is limited in cases where personal identity has been severely disrupted. When advance directives are discussed purely in terms of personal identity and autonomy, Buchanan’s observations seem valid. But a discussion in only these terms overlooks the very factors that give advance directives what force they have. Advance directives may draw strength from, or be hindered by, close relationships between those who issue the directives and those who receive them.1

A consideration of personal identity may contribute to the decision on whether an advance directive should be followed, but so will other factors. No single factor can tell us how much weight we should or will give an advance directive. In addition, the various factors might be incompatible. The importance assigned to each factor will be different for each person charged with carrying out an advance directive. These problems lead to the wide and confused variety of responses towards advance directives.

In this essay I discuss some of the external factors that complicate this issue. As well as discussing some of Buchanan’s arguments, I will consider another form of advance directive: the directives left by certain artists that part or all of their work be destroyed after their death. The conclusions I draw for this form of advance directive lead to parallel conclusions in the medical field.

Buchanan’s chief concern in “Advance Directives and the Personal Identity Problem” is the form of advance directive that causes the most debate among the broader public: that life-sustaining treatment be forgone should the author become seriously injured in some way (mentally or physically). Buchanan outlines some basic objections towards this form of advance directive: firstly, “therapeutic options and hence prognosis may change [in the future],” (1988:279) leading to a more hopeful outlook than that which prompted the directive; and secondly, the protective response of family members and medical staff is likely to be less forceful when a patient draws up an advance directive dealing with a hypothetical situation than when he is actually in danger and choosing to forgo treatment (1988:279).

These initial objections are valid, but must also be weighed against the nature of the author of the advance directive. Given that people do not make advance directives lightly, the author may well have taken these possibilities into account; the reasons given above may not be adequate for ignoring an advance directive. If therapeutic options arose which would lead to a complete recovery where once there was no hope, it is unlikely that a patient would object to an out-of-date advance directive being ignored. New options may, however, only result in a marginal improvement in outlook, and these options may be just as unacceptable to the author of the advance directive. For example, where once a patient was faced with a permanent coma, he might today expect to be conscious but nonetheless suffering serious mental impairment. In the case of protective family pressure, the author may have recognised that he is, by nature, someone who is easily dissuaded, and may not wish to be talked out of a decision he feels is the correct one.

These matters, however, are not Buchanan’s main concern. Rather, he is concerned with the question of personal identity and its implications for advance directives:

The very process that renders the individual incompetent and brings the directive into play can—and indeed often does—destroy the conditions necessary for her personal identity and thereby undercut entirely the moral authority of the directive. (1988:280)

A series of logical steps underlies this concern. Firstly, psychological continuity is a necessary condition for personal identity (1988:280). Secondly, some accidents or diseases can so disrupt psychological continuity that the person who issued the advance directive no longer exists. Since one person’s advance directive cannot bind another person, then, if we consider the individual remaining after the disruption to be a different person, the advance directive has no moral authority to determine what happens to this different person (1988:281-82).

Buchanan goes on to discuss in detail many of the questions this argument raises (discussions I will not outline here). Following this, he presents a compromise which leaves room for advance directives to have some authority. This compromise rests on a further premise: that psychological continuity is a matter of degree, and that a person’s level of personal identity corresponds, on a direct scale, to his degree of psychological continuity (1988:294-95). In practice, we should consider personal identity to be fully preserved above a certain threshold of psychological continuity. From there, Buchanan proposes that we consider advance directives as follows:

So long as the degree of psychological continuity which we take to be necessary for the preservation of personal identity is present, the advance directive has full moral authority. ... As we move “downward” from this threshold, through lessening degrees of psychological continuity, the moral authority or force of the advance directive diminishes correspondingly. (1988:297)

So, even below the “threshold” which marks a break in personal identity, advance directives will carry “some weight,” although presumably, “a point is eventually reached at which the degree of psychological continuity between the author of the advance directive and the incompetent individual is so small that the advance directive ... has no authority” (1988:298). At some stage beyond this point comes the “brain-dead” individual. These individuals are not persons at all, and for this reason, says Buchanan, these cases “pose no radical challenge to the moral authority of advance directives” (1988:299). In these cases, the author has a legitimate interest in “what happens to her body after she, the particular person who she is, no longer exists” (1988:286).

I have few disagreements with the logic behind Buchanan’s conclusions for advance directives, assuming we are discussing advance directives purely in terms of personal identity and the autonomy of their authors. The implications these conclusions have for the operation of advance directives are, however, curious.

Buchanan concludes that advance directives have full moral authority when personal identity is intact, and steadily reducing moral authority as a person moves down from a threshold and becomes more psychologically discontinuous and incompetent. Then, when he becomes a non-person, his advance directive again has, it seems, full moral authority.

An initial problem is, how do we give certain types of advance directives “some weight”? A life-support machine cannot be “partly” switched off; and when “partly” refusing life-sustaining treatment, do we treat the patient’s bronchitis but not his cancer? These are obviously not sensible options. Rather, an advance directive’s executor would tend to favour it if its proportion of full authority (its “weight”) was high, and would ignore it if its weight was low. This, however, would mean that at every point where an advance directive had a low weight, it would, in effect, have no weight, thus reducing even further the range of situations where advance directives may be carried out.

An objection might also be made to the threshold of personal identity: obviously, problems will arise when attempting to determine whether a borderline case is above or below the threshold. This would not, I think, be a major worry in practice. Even if someone fell just below the threshold, the moral authority of his advance directive would still be very strong. Greater problems occur, however, at the bottom end of the scale.

If a person’s degree of psychological continuity (and, correspondingly, his level of personal identity) is on a continuous scale, then the point at which he becomes a non-person should be at the very bottom of that scale, rather than being some completely separate phenomenon. As he moves down through the lower end of the scale, he becomes less and less a person. Finally, he will have only a tiny trace of personal identity; then, after that point, he will become a non-person. At the former point, on Buchanan’s scale, the advance directive will have next to no authority; at the latter point, it has full authority. This presents doctors and families with a dilemma: at what point precisely does their patient or relative lie? They cannot afford to be wrong, as their judgement will make a huge difference in how much weight the advance directive is given.

We might avoid the problem by saying that patients do not pass through this series of stages into non-personhood. After a serious accident, before which they were full persons, they become (without passing through the intermediate stages) non-persons. Any vegetative human is clearly a non-person; therefore, his advance directive has full moral authority. This ignores, however, the documented cases of people in deep comas who wake, and people considered brain-dead who “come back to life.” A vegetative human might have the potential for recovery. We cannot be sure that he is unequivocally a non-person unless, for example, his cerebral cortex has been physically destroyed. Of course, the chance of a miraculous recovery will be slight, but if a patient has any chance, no matter how small, then they are not non-persons: they are “potential persons.”2 In practical terms, they sit just above “non-person” on Buchanan’s scale—which would imply that their advance directives would have no authority, rather than full authority. Clearly, the jump in Buchanan’s scale from no authority to full authority makes critical the decision about the standing of a drastically damaged human being. This places doctors in an incredibly difficult situation.

That doctors and families would have to make this decision at all seems to contradict one’s expectations of the weight an advance directive would have, as does Buchanan’s scale. I suggest that most people, when drawing up an advance directive to turn off a life-support machine (or something similar), would expect the directive to have no authority when their personal identity is intact,3 and, below the “threshold” of personal identity, to gradually increase in authority. This would eliminate the problems associated with vegetative humans: at the lower end of the scale, the advance directive would have full authority, or as close to it as would make no difference.

The possibility of future psychological discontinuity or loss of personal identity is exactly what motivates many people to make advance directives. The thought of spending their final years in senility fills some people with horror, especially if they consider that a spark of their original selves may continue to exist and be aware of their state. Similarly, the possibility of being left after an accident in a completely paralysed body, with (perhaps) a fully functioning and aware mind unable to make itself heard, is equally frightening to some.4 People who feel differently, and who think that the value of life outweighs the risk of a greatly diminished quality of life, will not be the ones making advance directives to refuse life-sustaining treatment.

But if these cases of loss of personal identity are exactly those where, according to Buchanan, advance directives have the least moral authority, then why are advance directives followed in some such cases? Where does the authority for advance directives come from? Is this authority moral or otherwise? Is personal identity and autonomy all there is to moral authority? To help answer these questions, I will consider a second type of advance directive: that which calls for the posthumous destruction of part or all of an artist’s work. Two examples serve as illustration: Franz Kafka’s directive to destroy all of his writings, and Jean Sibelius’s directive to destroy the manuscript of his unpublished Eighth Symphony.

Franz Kafka published very little of his work during his lifetime. After he died of tuberculosis in 1924, his close friend, Max Brod, found among his papers a note which read, in part, as follows:

Dearest Max, my last request: Everything I leave behind me ... in the way of diaries, manuscripts, letters ... sketches and so on, to be burnt unread; also all writings and sketches which you or others possess. (Quoted by Brod 1983:195)

Brod refused to carry out these instructions. He had Kafka’s three novels (The Trial, The Castle, and America) published, along with other works. Brod gave a variety of reasons as justification for his action. Firstly, he had told Kafka, when Kafka had said that he would ask Brod to destroy his work upon his death, that he would not do so:

Convinced as he was that I meant what I said, Franz should have appointed another executor if he had been absolutely and finally determined that his instructions should stand. (Brod 1983:196)

He also thought that Kafka had set his standards too high:

Both sets of instructions to me were the product of a period when Kafka’s self-critical tendency was at its height. (1983:197)

But most of all, he thought the work had artistic value far in excess of any value inherent in following the directive:

My decision does not rest on any of the reasons given above but simply and solely on the fact that Kafka’s unpublished work contains the most wonderful treasures, and, measured against his own work, the best things he has written. (1983:197)

Jean Sibelius was also strongly self-critical of his work, although to a lesser degree than Kafka. He composed virtually nothing during the last 28 years of his long life (Diether n.d.). His Eighth Symphony was promised to various conductors in that time, but it never appeared. He was, apparently, never satisfied with it. One biographer (Harold E. Johnson, quoted by Diether n.d.) has speculated that, in effect, Sibelius’s “excessively ardent champions destroyed it,” and that Sibelius was not prepared to take the risk that his final efforts would be unfavourably compared with his earlier triumphs.

When Sibelius died in 1957, no manuscript for an Eighth Symphony was found. It is possible that Sibelius destroyed it himself before his death; for my present purposes, I will assume that, as an American musician was reportedly told, one of Sibelius’s daughters “burned the score upon his death according to his personal instruction” (Diether n.d.).

It is important to note that I am not questioning the right of a living artist to destroy any of his unpublished work.5 To do so would be to bring into question the whole creative and artistic process. We may feel sad that a great composer burned the unpublished score of a major work (we may even feel that he was far too self-critical, and may have destroyed a masterpiece), but we cannot say that he had no right to do so. This topic leaves, of course, much room for debate, but I will not expand on it here.

Once an artist is dead, however, the situation is quite different. There may be positive proof (in the form of an advance directive, for example) that the artist intended to destroy, or have another destroy for him, a major work. But once he has died, do those who survive him say, “Let’s do as he intended, even though we think this work is worth saving,” or do they say, “How fortunate that he died before he could destroy this work which we think is wonderful”? There are other factors involved than merely following a dead person’s wishes. He is dead, but others are still alive; the things that were once his are now theirs to deal with.

The dead’s last wishes do carry weight in our society, and are usually carried out. But even so, limits are set. Their instructions will not be followed if they fall outside bounds the living think are reasonable. Families can and do successfully challenge legal wills that leave thousands of dollars to a pet cat. How much more important it is, then, to protect works of art. A body of unpublished artistic work is more than an object or possession. It is the product of a unique creative person, and as such, is itself unique: once gone, it cannot be replaced. Moreover, if that person was unusually talented, then his work carries a high value not only for his heirs but for society. The greater the value of the work, the less reasonable will seem any advance directives to destroy it.

Similar logic obviously underpinned Max Brod’s decision to disobey Kafka’s advance directive. Even if the advance directive carried some moral authority, the artistic value of the work far outweighed it. Brod’s actions seem, to me at least, reasonable. But such logic would also have justified the preservation of Sibelius’s Eighth Symphony. Sibelius was a major composer, at the peak of his popularity in the ’30s and ’40s, and his Eighth Symphony had been eagerly awaited (Diether n.d.). Even if it was not the equal of some of his earlier symphonies, it would have had much artistic merit. Why then did his daughter feel compelled to carry out his instructions?

A possible explanation is as follows. For some time after a person’s death, others who have been close to that person find it difficult to fully come to terms with the fact that their friend or relative is gone. It may take them weeks, months, or even years, to adjust their behaviour accordingly. During this period of adjustment, the dead person is to them, in a sense, not completely dead. That person still has a presence in the memories of others. During this period, then, a close friend or relative of the dead person will not treat his advance directives as coming from somebody who is dead. The advance directives will have at least some of the force and authority of requests made by a living friend or relative.

For family members, at least, this boost to an advance directive’s authority will go a great deal towards counteracting concerns such as artistic merit, especially as they would have considered the artist as father or husband foremost, and talented artist secondmost. This could explain Sibelius’s daughter’s behaviour. Max Brod, however, although a great friend of Franz Kafka’s, was also a great fan and champion of Kafka’s work; hence, for Brod, the work’s merit was not so easily discounted.

Moreover, if an artist discusses his planned advance directive with its intended executors before his death, and if they have some form of close relationship with him, then that directive will increase in authority as a result. The executors will remember their discussions with, and the commitment they made to, a living person. They will feel some obligation to obey the wishes of this living person, even though he now is dead. (By the same token, they may, as did Max Brod, feel relieved of any obligation if they had told the artist that they would not obey any such directive.)

These effects of close relationships seem to me to be the very things that give advance directives of this kind what authority they have (authority which, as Brod demonstrated, will not always be sufficient to ensure the directive is obeyed). It is possible that a general respect for the wishes of the dead gives advance directives some authority, but its contribution would be minimal: on its own, it might be enough to justify the destruction of a talentless and worthless work of art,6 but little more. Imagine, for example, if Sibelius had left an open letter asking for the destruction of his Eighth Symphony. I cannot believe that a complete stranger (or even a casual acquaintance) would feel any overriding obligation to follow this directive and destroy a major work of art.

With this in mind, consider again the medical advance directive to withhold treatment if its author is badly mentally or physically damaged. What factors would give any weight to a directive which would cause the death of a human being, especially if they are not actually vegetative or comatose? I think that those factors are exactly the same as those that give artistic advance directives what force they have.

The family of the patient will remember the vital and normal person their relative once was, especially when a living body still exists to remind them of him. In the same way as a dead relative would to them be in a sense alive, so too would be the normal person they once knew, a person now gone. They would remember discussions with, and commitments made to, that normal person. Thus, in the same way as previously outlined, the advance directive would carry, for them, authority. Is this authority “moral”? I believe it is; if authority deriving from an exercise of autonomy and self-determination is moral, then so, too, is authority deriving from commitments made in, and because of, close relationships. But even if it is not, an advance directive gains a force and a weight in the minds of its executors that makes them much more likely to carry it out.

This factor will be in direct conflict with, and to some extent counteracted by, Buchanan’s sliding scale of personal identity, which forbids one person’s advance directive from binding another person. But it is probable that the weight a family will give to Buchanan’s factor will be less than the weight they give to their relative’s wishes. The new person in their relative’s body has far less importance to them than their relative did. The family may see this new incompetent person as a painful caricature of someone they loved. They might still find it difficult to take a life, because of their natural objection to killing. But they may feel less commitment to a damaged person who was once normal than they would to someone who had been born in that state: a person born in that state has no past normal life which can be held up in comparison.

All of these by-products of a family’s close relationship with their relative might diminish their concern for the new identity inhabiting their relative’s body, and thereby increase the likelihood that they will obey his advance directive. But close relationships can, in this medical situation, have another effect. Rather than feeling that they should obey their relative’s wishes, they may, on the contrary, feel that they cannot bear to part with them. Even if the person who was their relative is gone, the identity inhabiting his body may bear enough of a resemblance to him (especially in physical appearance) to be an acceptable substitute. They may feel that half a relative is better than none. Even a comatose or vegetative relative might be more reassuring than a dead one.

This factor, then, will tend to diminish the authority of an advance directive in the minds of those executors who had a close relationship with its author. The immediate-memory factor will increase its authority for those same executors. Buchanan’s sliding scale will have a varying effect. All three factors will be weighed up by an executor. If he was not in a close relationship with the advance directive’s author, the one factor which tends to increase a directive’s authority will not be present; hence, he will find it difficult to automatically obey the directive. Even if he was in a close relationship with its author, he may still find it difficult to obey, for he may feel that the immediate-memory factor is outweighed by the other two.

Obviously, the task of weighing up these three factors in order to decide upon the advance directive’s degree of authority is no easy one. The importance of each factor will be different for each executor; there is no way to calculate an exact figure for “percentage of full authority” for an advance directive. At the same time, an executor will be weighing up the authority of the advance directive against other things (his views about euthanasia, for example) which will also be of differing importance to different people. Hence, some people will be inclined to obey an advance directive where others would not contemplate doing so.

In this complex mix of elements, those factors that would favour the enactment of an advance directive might be overwhelmed. The end result might well be that its executors will act as they independently judge best. Someone who cannot face the thought of killing a human being is unlikely to be persuaded to do so by an advance directive, while someone who believes it would be merciful to turn off a vegetative patient’s life-support might do so even without an advance directive’s prompting. An advance directive, in some cases, might have value in comforting surviving relatives: they might feel reassured that they are doing what their relative had wanted. Conversely, it could cause them anguish: they might feel guilty that they are not doing what he had wanted.

Altruistic advance directives are usually followed quite readily. Few people object when a person asks that his wealth be distributed equally among his children after his death, or that his organs be donated to others should he be in an accident. But it would seem that advance directives are not a very reliable way of ensuring that a controversial action, such as refusing medical assistance to a patient after severe mental damage, will be carried out. They do, however, have some chance of being followed; and to some people, that chance will be high enough to be worth taking. At the very least, they place their views on what should happen to their bodies (to take one example) beyond doubt.7 Their views on euthanasia would not necessarily be obvious: a variety of views may be seen as logical and reasonable. An advance directive eliminates any doubt in the minds of family and friends—doubt which may otherwise have acted as a barrier to drastic action.

When someone makes an advance directive of a controversial nature, he does not do so in an open letter to humanity asking that his autonomy and right to self-determination be respected. He usually makes it to a close friend or relative, asking that this personal sacrifice be made for his sake. He is, in effect, using the strength of that close relationship to give his wishes the best possible chance of being fulfilled.

Any discussion, therefore, of the source of an advance directive’s moral authority or force should not be limited to or focussed on the question of personal identity or autonomy. Of course, we can ask, “How can self-determination extend beyond death or the loss of personal identity?” But advance directives, by definition, involve other people, and hence are strongly affected by human interaction and close relationships. People cannot be expected to carry out another’s wishes in a robot-like fashion; they will want to decide how to act for themselves, even if they ultimately agree with the other’s wishes. Hence, an advance directive involves more than personal identity, self-determination, and one person’s will. Allen Buchanan’s emphasis on the effect these factors have on advance directives is an example of the reductionism towards autonomy and the self that underestimates the influence other human beings have on everyone’s life.

June 1990, posted March 2007

Notes

1. In this essay I refer to the person who makes an advance directive as its “author” and the person charged with putting it into effect as its “executor.”

2. This concept is similar to the scientific problem of Schrödinger’s Cat. A cat is locked in a room; while it is in there, a trap has a 50% chance of being set off and flooding the room with poisonous gas, which would kill it. Until we open the door and look in the room, we cannot tell if the trap has been set off. If we ask “how many live cats are in the room?” before we open the door, the only answer we can give is “half a cat.” In the case of a vegetative human, we cannot read his mind to see if he will or will not recover. There may, however, be a statistical probability of 0.1% that he will make a full recovery, in which case we must consider him to be one one-thousandth of a person, not a non-person.

3. An exception, however, would be a member of a religious group, such as the Jehovah’s Witnesses, who believed that blood-transfusions were wrong and made a directive that he be given none. If he were to fall unconscious after an accident, he would expect this directive to carry full authority, even if, were he to recover, he would be perfectly normal, with his personal identity intact.

4. This scenario shows that one need not be psychologically discontinuous to be incompetent. Such a person would be unable to make any of his decisions known to others, although he would be exactly the same “person” inside. Outsiders, who would not know if there was a functioning brain inside his body or not, would have to consider him to be a potential or part person, following the Schrödinger’s Cat principle outlined previously. In this case, the person’s advance directive would carry a fractional weight.

5. One might, however, be able to do so if an artist experienced a loss of personal identity—if he went mad, for example—and wanted to destroy work done before that loss of identity. That work would effectively be that of a different person, and not his to destroy.

6. And who will make this judgement? Worth in art is highly subjective, and changes from generation to generation.

7. With the qualification of changing medical technology, and so on.

References

Brod, Max. Postscript to The Trial, by Franz Kafka. In The Trial and Metamorphosis. Landmark Edition. London: William Heinemann and Martin Secker & Warburg, 1983.

Buchanan, Allen. “Advance Directives and the Personal Identity Problem.” Philosophy and Public Affairs 17 (Fall 1988): 277-302.

Diether, Jack. “Sibelius and his Symphonies.” Liner notes for The Seven Symphonies, Finlandia, The Swan of Tuonela, Tapiola, by Jean Sibelius. Boston Symphony Orchestra. Philips cassette set 7699 143.

Malcolm, Judith. Moral Rights and the Arts: A Discussion Paper. North Sydney: Australia Council, 1984.