Advance Refusals and the Personal Identity Objection

Abstract

Some individuals make advance refusals of medical treatment to take effect when they anticipate having lost the ability to make contemporaneous decisions. Attempts to give effect to advance refusals present two challenges. The first challenge is ensuring that an advance refusal sufficiently represents the patient’s will on what should happen in the situation in which she later finds herself. The second challenge builds on Parfit’s musings on personal identity, which this paper refers to as the personal identity objection. This paper evaluates the response of English law to these two challenges by reference to the ethical rationalism of Gewirth, with focus on the second challenge. Support is offered for the implicit rejection of the personal identity objection by English law. It is argued that the plausibility of the personal identity objection derives from the principle that life-sustaining treatment should not be removed at the whim of a third party, but (contrary to appearances) the objection does not fully engage this principle. It is also argued that while at first sight it appears that the approach of English law to the first challenge suggests some normative inconsistency with its response to the second, in practice, this normative inconsistency is more apparent than real.