David Shoemaker has an interesting post on PEASoup about the epistemology of advance directives. Starting from a fairly standard thought-experiment about an older, dementing person who wants to accept treatment that her younger, pre-demented person had refused, he adds to the standard metaphysical arguments a claim that
the real puzzle for ADs isn’t metaphysical, it’s epistemic. And barring physicians’ having the requisite degree of knowledge, a “better safe than sorry” mentality rules the day.
His exposition of the thought leads him to make a “modest proposal”:
advance directives should be restricted only to patients and physicians who are expected to have a continuing relationship through the time of the circumstances specified in the AD. […] Thus, there could be an implicit (or explicit) “out” clause in the contract: if the patient finds herself in the specified circumstances with another physician at the helm, the contract may be overridden at the judgment of the physician. This will restrict the range of viable AD’s rather severely, but it seems that it’s the only way to ease the epistemic burden produced by the current system.
It’s a provokative thought, and I recommend the post. But it also reminded me of another post on the same site, ostensibly on a different topic. Here, Ralph Wedgwood considered “Scheffler’s Paradox”, which relates to the manner in which deontologists are more likely to flinch at the thought of killing one innocent person to save five other persons than they are at the thought of killing one bear to save five other bears. His way out of the problem is intriguing.
When no persons are involved, if you take the “interventionist” option of killing one bear to save five, you both actively do and intend harm to one bear; but you also both actively do and intend good to the five other bears. So it seems that in the case involving bears, the reason for the interventionist option and the reason against it are in the end fairly evenly balanced.
What is different in the case involving persons? The pattern of doing vs. allowing and intending vs. foreseeing is just the same as in the case involving bears. So I propose that the relevant difference is that when persons are involved, the values of the relevant consequences are different, on the grounds that these consequences involve relationships between persons.
That is, there is a “special range of values and disvalues exemplified by relationships between persons” that makes the difference. Now, I’m not wholly sold on the idea that this’d satisfy all deontologists – at least some would protest that the nature of the relationships between agents is neither here nor there, and we should take a grim pride in having done the right thing and treat rightness as its own reward. On the other hand, I’m not sure that those dour deontologists are correct, so their point might be moot.
What’s interesting, though, is the manner in which, in both these blog posts, it’s an appeal to the nature of the relationships between agents that carries a lot of the weight. There’s something attractive about this view, and it’s a theme that’s been made by various Aristotelians, Humeans, virtue theorists and care ethicists for a long time. But if there is something to this, it’s a threat to universalism – and, as Shoemaker all but points out, it might mean that there will be some people who satisfy all the metaphysical and moral requirements for their AD to be considered valid, but whose directive would still not be enforceable because of some prima facie contingent fact about the physician: if, for example, the doctor at time t retired due to a sudden and unforeseen illness and had been replaced by time t+1, those eventualities might drive a coach and horses through the AD. And, while that’d be consistent with the precautionary approach that does seem to obtain in respect of at least some ADs, it’s also problematic from the point of view of justice: if a person is entitled to refuse treatment, that entitlement doesn’t seem to have anything to do with the identity of those who would or would not be treating.
But, then again, ditching an “ethic of justice” is precisely what at least some care ethicists want; they don’t see that as a problem for their approach, but as a virtue.