A Critique of Advance Directives and Advance Directives Legislation

AuthorEmily Clough
16 APPEAL VOLUME 11 2006
Emily Clough
The goal [of an advance directive] is to have open, serious, and
intensive conversation between seriously ill people and their families,
friends and physicians about the prospects of death and the way
that everyone expects to behave as death comes closer. The
underlying protection here is not in the specifics or what is said, but
in the fact that people are talking.
I. Preface
When I began this paper, I intended to write about the benefits of
instructional directives. I believed that instructional directives could
help stop the imposition of unwanted life support on patients who
would prefer to die. Perhaps instructional directives could also help
avoid family conflicts like the battle that happened over the death of
Terry Schiavo.
I had even counselled people on the value of
instructional directives while teaching a course on chronic disease
R.A. Burt, D eath Is That Man Taking Names: Intersections of American
Medicine, Law, and Culture (Berkeley, CA: University of California Press,
2002) at 171.
For more discussion about the Schiavo case, see infra note 94.
APPEAL VOLUME 11 2006 17
Without a doubt, I was a supporter of instructional
So when I found some medical research that noted problems with
instructional directives, I was skeptical. However, the evidence soon
became overwhelming. There were numerous medical studies, all
from credible journals, noting major practical problems in the actual
use of instructional directives in health care settings. Several legal
scholars also pointed out theoretical problems with the concept of
autonomy and the ability to pre-determine good health care decisions.
It quickly became clea r to me that instructional directives were not all
that I had thought them to be.
Advance directives affect the lives of dying patients and health care
practitioners on a daily basis. Although the move towards greater
patient autonomy may be worthy in theory, it appears to be falling
short in the practice of instructional directives. There is room for
more discussion and thought on this subject, in particular regarding
better ways to help people make good health care decisions based on
their personal values and wishes.
II. Introduction
An advance directive is a planning tool that is intended to give
patients the ability to make life and death choices based on their
personal values, goals and life plan. Advance directives can contain
two parts: an instructional directive (or “living will”) and a proxy
directive. Both directives come into force when a patient loses the
ability to make his or her own decisions (or is deemed m entally
incompetent). An instructional directive allows a patient to decide
ahead of time what medical treatments she does and does not want to
receive in the future.
A proxy directive allows a patient to select
The six-week course is entitled “Chronic Disease Self-Management
Program.” In BC, it is coordinated by the Centre on Aging at the
University of Victoria. Online: The Centre on Aging
There is some uncer tainty as to whether an instructional directive can be
used only to refuse treatment or whether it can also be used to positively
demand treatment. For example, the rejection of resuscitation is a
common use of an instructional directive, a do-not-resuscitate (DNR)

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