JOHN K. DAVIS
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
Accepted 12 March 2004
ABSTRACT. Honoring a living will typically involves treating an incompetent patient in
accord with preferences she once had, but whose objects she can no longer understand. How
do we respect her “precedent autonomy” by giving her what she used to want? There is a
similar problem with “subsequent consent”: How can we justify interfering with someone’s
autonomy on the grounds that she will later consent to the interference, if she refuses
now?
Both problems arise on the assumption that, to respect someone’s autonomy, any preferences we respect must be among that person’s current preferences. I argue that this is
not always true. Just as we can celebrate an event long after it happens, so can we respect
someone’s wishes long before or after she has that wish. In the contexts of precedent autonomy and subsequent consent, the wishes are often preferences about which of two other,
conflicting preferences to satisfy. When someone has two conflicting preferences, and a
third preference on how to resolve that conflict, to respect his autonomy we must respect
that third preference. People with declining competence may have a resolution preference
earlier, favoring the earlier conflicting preference (precedent autonomy), whereas those with
rising competence may have it later, favoring the later conflicting preference (subsequent
consent). To respect autonomy in such cases we must respect not a current, but a former or
later preference.
KEY WORDS: advance directive, autonomy, hierarchical theory of the will, living will,
precedent autonomy, prospective autonomy, self-paternalism, subsequent consent
1. INTRODUCTION
Consider two claims about autonomy. First, sometimes we respect a person’s autonomy by respecting a preference she no longer has. This happens
when her preference concerns her future, and when that future arrives, we
respect that preference even though she has ceased to have it by then. This
is respecting her “precedent autonomy.” Living wills are a common example of precedent autonomy. Second, one can consent to an action after it
happened, even if one struggled against the actor at the time. This is called
“subsequent consent.” Precedent autonomy and subsequent consent seem
to lack moral authority because they conflict with a plausible claim that I
call the “Current Preference Thesis”:
To respect someone’s autonomy it is necessary to respect only those preferences that are
among her current preferences.
Ethical Theory and Moral Practice 7: 267–291, 2004.
C 2004 Kluwer Academic Publishers. Printed in the Netherlands.
268
JOHN K. DAVIS
(I reject this thesis, but explain its plausibility in Section 3.) The preferences in question concern matters over which the person has a right of
self-determination. According to the Current Preference Thesis, if a preference is not among the person’s current preferences, then, for purposes
of respecting autonomy, it is not one of her preferences at all. If this thesis is true, then the principle of respect for autonomy does not require us
to respect precedent autonomy (and living wills), nor may we act upon
anticipated subsequent consent, for both involve respecting preferences
that are not among a person’s current preferences at the time respect is
shown.
I will argue that the Current Preference Thesis is false. My discussion
assumes that people have a right of self-determination, and that the right
supports a “principle of respect for autonomy.” The expressions of autonomy we must respect include various preferences, intentions, decisions,
desires, wants, choices, selections, consents, and actions based upon such
mental states. Although it stretches the term a long way, for convenience
I will use preference to stand for all the conative states (and actions based
upon them) covered by the principle of respect for autonomy. The conative states we must respect are not just any desires or leanings, but those
the agent decides or prefers to see fulfilled. Of course, the person must also
be competent,1 sufficiently informed, and free of constraint when forming
the preference.
The gist of my argument is this. Sometimes a person has two conflicting
preferences, and a third preference to resolve that conflict in favor of one
of the conflicting preferences at the expense of the other. In such cases
we can respect that person’s autonomy only by respecting the resolution
preference. Moreover, sometimes the two conflicting preferences exist at
different times, and the third preference about how to resolve the conflict
exists at only one of these times. People with declining competence may
have a resolution preference earlier, favoring the earlier conflicting preference (precedent autonomy), whereas those with rising competence may
have it later, favoring the later conflicting preference (subsequent consent).
To respect autonomy in such cases we must respect not the current, but
the former or later preference. When these conditions are met, precedent
autonomy and subsequent consent have moral authority.
1 Strictly
speaking, such people are “mentally incapacitated.” “Incompetence” is a legal
concept courts use to express a finding that a person lacks the mental capacity to make
autonomous choices about a particular matter. Mental capacity comes in degrees, and a
person may have sufficient mental capacity to be competent for one purpose but lack
sufficient capacity to be competent for another purpose. However, because most readers
use the term ‘competence’ rather than ‘capacity,’ so will I.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
269
2. FORMER AND FUTURE PREFERENCES
Before I argue for the moral authority of precedent autonomy and subsequent consent, I want to describe precedent autonomy and subsequent
consent, and show why each of them conflicts with the Current Preference
Thesis.
2.1. Precedent Autonomy
Living wills are common ways to exercise precedent autonomy. Living
wills are executed by people who anticipate becoming incompetent and
want to decide their future treatment while they still can. Once they become
permanently demented and unable to comprehend the objects of their earlier
preferences, those preferences seem to be former preferences, and when
we follow their living wills, we are respecting their precedent autonomy
by respecting their former preferences.2
But how can we respect someone’s autonomy by respecting a preference
she no longer has? A recent case shows why many bioethicists (Lynn et al.,
1999, 274; Wolf et al., 1991, pp. 1668–1669; Dresser et al., 1989, p. 247)
share this concern:
Contented dementia. A 73-year-old woman was living a reasonably comfortable but
deeply demented life. She began to need life support, but her living will rejected life
support if she had no “reasonable expectation for recovery from extreme physical or
mental disability.” Because she lacked the competence to comprehend the issue and
revoke her living will, the living will was followed and she died. (Dresser et al., 1998).3
The objection is that she no longer had the preference expressed in the
living will, so the living will should have been ignored.4 A defender of
living wills (and precedent autonomy) might respond by claiming that the
2I
will not discuss whether deeply demented patients are, in some sense, “different
persons” than their earlier selves, and in all my cases I assume that the agent is the same
person at all times. I am not denying the possibility that personal identity could change in
some cases of declining competence, but I do insist that in many such cases, if not most, we
judge the person to be the same person over time. The problem I am concerned with is that,
even if the person exists at both times, it is not clear the preference does. Personal identity
issues pose another problem entirely.
3 Similar cases, some real and some fictional, are discussed by Allen Buchanan and Dan
Brock (Buchanan, et al., 1990, p. 108), Ronald Dworkin (Dworkin, 1993, pp. 221, 226),
and Norman Cantor (Cantor, 1993, p. 101).
4 This objection applies also to decisions by surrogate decision makers based on the
Substituted Judgment Principle, which calls for the decision the patient would make if she
were competent to decide. Such decisions are based on preferences and values the patient
had when she was competent, but no longer has.
270
JOHN K. DAVIS
preference in question is not a former preference and, therefore, respect for
precedent autonomy is not inconsistent with the Current Preference Thesis. In typical cases, a former preference is a preference a person once had
but has since renounced or would renounce if reminded of it. Suppose we
can say, with some assurance, that an incompetent person would reaffirm
a preference she expressed in the past if she were sufficiently competent to
understand what she would be reaffirming. Can we classify such hypothetically reaffirmed preferences as current preferences? If so, then respect for
precedent autonomy in such cases is compatible with the Current Preference Thesis. This would provide a way to defend precedent autonomy in at
least many (and perhaps most) of the cases where people have living wills.
Unfortunately this argument fails, for even those preferences the incompetent person would now (if competent) reaffirm are former preferences. Part of having a preference for X is having a disposition to be
in the occurrent state of manifesting that preference.5 If preferences did
not include dispositions, they would be merely momentary mental states,
and we could not say that Smith, even while asleep, wants to publish
her book. If Smith is incapable of being in the state of thinking about
and wanting to publish her book, then she cannot be disposed to be in
that state, and thus does not have a preference to publish her book this
year. Therefore, when a person is permanently incompetent, even those
preferences she would reaffirm (if she were competent) are not current
preferences.
Can we say that she is capable of being in the state of manifesting a
choice, provided it is logically possible for her circumstances to change
such that she can enter into such states? Or, if that kind of possibility is
too broad, perhaps nomologically possible, meaning that the laws of nature do not preclude her circumstances from so changing? To see why
these responses do not work, consider a paraplegic former runner. He still
desires to run, but has no disposition to run, for he cannot act on that
preference. To say he is disposed to run means he is disposed to run in
his actual circumstances, not in some logically or nomologically possible
world. The runner has lots of preferences in various possible worlds. In
some possible worlds, he is disposed not to run even when he can. We
want to know his dispositions in this world. Therefore, a person who is
permanently incompetent in the actual world no longer has the preferences he cannot reaffirm in the actual world, even if he would reaffirm
them in some other logically or nomologically possible world. Therefore,
5 Thomas Pink offers a similar account of preferences and intentions (Pink, 1996, pp.
18–20). I define “disposition” simply as a tendency to be or do something; I have no stake
in controversies over the nature of the relevant counterfactual.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
271
respect for precedent autonomy is inconsistent with the Current Preference
Thesis.6
2.2. Subsequent Consent
The objection to living wills and respect for precedent autonomy is that
the preferences we are asked to respect are not among the patient’s current
preferences. A similar objection is raised against subsequent consent. In
one typical case of subsequent consent, a small child is forced to get a
tetanus shot; when he is older he is glad he got it and endorses his parents’
decision to force him.7 If the usual elements of consent are present, his
later attitude and words are said to be consent to an action that has already
happened.
Although some philosophers argue (or come close) that anticipated subsequent consent can authorize an earlier action,8 others object that subsequent consent is impossible because it requires changing history. Joel
Feinberg poses the case of a rape victim who later falls in love with her
rapist, and says she is glad he did it. Feinberg argues that, if the victim gave
subsequent consent, then she was never raped in the first place, for rape
can happen only in the absence of consent. However, “[her] forgiveness
cannot change history, or magically recreate the past.” (Feinberg, 1986, p.
182). Donald VanDeVeer makes the same point: “It is difficult to understand how subsequent consent is supposed to ‘reach back in time,’ perhaps
a considerable segment of time, and legitimize the past act.” (VanDeVeer,
1986, p. 69; cf. Kasachkoff, 1994, p. 15).
Of course we cannot change the past, but why would subsequent consent require doing so? Presumably because consent must be in effect at
the same time that one acts on the authorization expressed in that consent.
Acting on the authorization expressed by consent is a form of respecting the other person’s autonomy; therefore, the preference one respects
(by obtaining consent) must be among that person’s current preferences.
The preference expressed in subsequent consent arrives too late; at best,
6 For
reasons I will not go into here, I reserve the term “precedent autonomy” for cases
where the agent is permanently incapable of comprehending one of his past preferences,
and thus that preference can no longer be attributed to him. Cases of precedent autonomy
always involve such incapacity, and do not include ordinary changes of mind. I discuss
precedent autonomy further in Davis (2002) and Davis (2006).
7 Donald VanDeVeer discusses this and other examples (VanDeVeer, 1986, pp. 67–69).
8 Rosemary Carter defends it (Carter, 1977, pp. 139–142), and Gerald Dworkin seems
to flirt with defending it: “There is an emphasis on what could be called future-oriented
consent–on what children will come to welcome, rather than on what they do welcome”
(Dworkin, 1983, p. 28).
272
JOHN K. DAVIS
one can act on anticipated subsequent consent. Therefore, if the Current
Preference Thesis is true, there is no such thing as morally valid subsequent
consent.
3. JUSTIFIED PATERNALISM
It is tempting to argue that what appears to be respect for precedent autonomy, or authorization by virtue of subsequent consent, is really paternalism
justified by the agent’s incompetence: We treat incompetent people in accord with former or later preferences, because the preferences they have
when competent usually reflect their best interests. Justified paternalism,
of course, does not conflict with the Current Preference Thesis. On this
account we explain the apparent moral authority of precedent autonomy
and subsequent consent in the more plausible cases, and leave the Current
Preference Thesis unscathed.
However, justified paternalism cannot be the moral basis for respecting precedent autonomy or acting upon anticipated subsequent consent.
Justified paternalism is based on promoting the incompetent agent’s best
interest, yet the treatment required by respect for precedent autonomy, or
the authorization provided by anticipated subsequent consent, do not always coincide with the person’s best interest. For example, if the agent
used to be competent and preferred to receive only naturopathic remedies, yet we justifiably believe he needs conventional medication, respect
for his precedent autonomy dictates giving him only naturopathic treatment, while his best interest calls for conventional medication. Because
respecting precedent autonomy does not necessarily promote the agent’s
best interest, respect for precedent autonomy cannot be reduced to a form
of justified paternalism.
The same point applies to subsequent consent:
The baby Jehovah’s Witness. Near a hospital there is a tightly-knit community of Jehovah’s Witnesses, whose religion prohibits blood transfusions. One day a family of
Witnesses suffers an auto collision. Both parents die, but their baby survives. The baby
needs emergency surgery, and there is not enough time to identify a relative to serve
as surrogate decision maker. The surgery can be done without a blood transfusion, but
it would be safer to transfuse. The emergency room team believes (with good reason),
that the baby will be adopted by someone in his community and raised as a Jehovah’s
Witness. Believing that he will later prefer that he not have received a transfusion on this
day, and endorse a decision not to transfuse now, the surgical team decides to operate
without a transfusion, albeit at heightened risk to the baby.
The baby’s best interests require a blood transfusion, yet he will subsequently consent to having been operated upon without a transfusion.
In this case, justified paternalism and subsequent consent call for different
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
273
actions.9 Because acting upon anticipated subsequent consent does not necessarily promote the consentor’s best interests, acting upon such anticipated
consent cannot be reduced to paternalism justified by best interests.
Of course, treating a person in accord with his or her precedent autonomy
or subsequent consent will often (perhaps usually) promote his or her best
interest as well, but in such cases there are two different moral standards
which happen to require the same action. To collapse precedent autonomy
and subsequent consent into justified paternalism, one would have to show
that every case of precedent autonomy or subsequent consent is also a case
of justified paternalism. This cannot be done.
4. PRECEDENT AUTONOMY
Respect for precedent autonomy and for subsequent consent are incompatible with the Current Preference Thesis. Moreover, we cannot reduce the
moral authority (if any) of precedent autonomy or subsequent consent to
justified paternalism. In this Section I will argue for the moral authority
of precedent autonomy,10 and show why the Current Preference Thesis is
false with regard to precedent autonomy. In Section 5, I will revise the
argument to do the same for subsequent consent.
Sometimes a person has conflicting preferences. When that happens,
what she prefers, all things considered, is the preference she prefers to
satisfy above others which conflict with it. I will call the preferences which
9 There is a wrinkle to this case: if the baby is not transfused, he might die during surgery
and never give the consent we expect him to give. For example, if we know for certain
that he will die now without a transfusion, there is no possibility of a subsequent consent
to justify not transfusing him. We might decide to let the baby die on the grounds that, if
we transfused him, he would later wish we had done so, but that is a purely hypothetical
subsequent preference than can never become actual in such circumstances. Therefore,
such a decision not to transfuse, if justified at all, cannot be justified on the grounds that he
will give subsequent consent. It may be that the baby Witness case works only if survival
without a transfusion is a real possibility, in which case we have agent-relative justification
(as discussed below) for believing we will later have justification in fact for not transfusing
him. If the baby dies anyway, then we were wrong not only about whether he could survive
without a transfusion, but also about whether subsequent consent would be given. However,
that would not mean that we did not have agent-relative justification at the time we withheld
a transfusion. I discuss agent-relative justification and justification-in-fact at greater length
toward the end of Section 4.
10 On the usual way of understanding precedent autonomy, a full account of its moral
authority also includes an account of what are usually called “surviving interests,” such
as an interest in death with dignity which survives one’s permanent incompetence, or an
interest in one’s family welfare which survives one’s death. Such interests are said to survive
the loss of one’s capacity to consciously take an interest in their objects. I present an outline
of such an account in Davis (2006).
274
JOHN K. DAVIS
cannot be jointly satisfied “conflicting preferences,” and the preference for
resolving the conflict by satisfying one of them at the expense of the other
a “resolution preference.” Those who favor a hierarchical theory of the will
can think of the resolution preference as higher order and the conflicting
preferences as lower order, but as I will explain shortly, my account can
also be expressed within a nonhierarchical view.
To respect the autonomy of someone with conflicting preferences, we
must respect her resolution preference concerning which conflicting preference to satisfy. Usually conflicting preferences exist at the same time, but
not always. When the conflicting preferences exist at different times, typically a resolution preference exists at the same time as the later conflicting
preference (how else would one know about both conflicting preferences?),
and favors the later one over the earlier one. This is why the Current Preference Thesis seems plausible: We tend to assume that respecting autonomy
requires respecting current preferences, not former preferences, for that is
the typical case.
However, in some cases where the conflicting preferences exist at different times, the resolution preference is not a current preference. Instead (in
such cases) the resolution preference is another former preference, usually
contemporary with the former conflicting preference. These are the cases of
precedent autonomy. In other cases, where the conflicting preferences exist
at different times, the resolution preference is a second later preference,
usually contemporary with the later conflicting preference. These are cases
of subsequent consent. My alternative to the Current Preference Thesis is
that, when preferences conflict, we should respect resolution preferences,
for they are what the person wants, all things considered. Sometimes,
resolution preferences exist only at a time earlier or later than one of the
conflicting preferences. When a resolution preference exists does not matter, for it can have a preference existing at another time as one of its objects.
For example, the case of the contented demented patient involves three
preferences. First, she used to prefer death with dignity. Second, she now
desires simple sensory pleasures, and nothing more complex. Third, she anticipated desiring only simple sensory pleasures during later incompetence,
and preferred the satisfaction of her earlier preference for death with dignity
at the expense of her anticipated later preference for sensory pleasures. That
third preference is one of her two former preferences. It is also a resolution
preference. As discussed in Section 4, subsequent consent has a similar
structure, except that in subsequent consent cases the resolution preference
is a later preference, contemporaneous with the later conflicting preference.
Precedent autonomy cases concern people with declining competence—
their decreased competence prevents them from having a later resolution preference to conflict with their former resolution preference. What
they prefer, all things considered, is satisfaction of the former conflicting
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
275
preference. Subsequent consent cases concern people with rising competence, such as children or temporarily incompetent adults. They could not
form a resolution preference earlier because they lacked the competence
to comprehend one of the conflicting preferences. However, they can form
a resolution preference later, when they are competent enough to comprehend the objects of both conflicting preferences and choose between them.
As I mentioned, my account of conflicting and resolution preferences
easily fits within a hierarchical theory of the will. (cf. Frankfurt, 1971).
There is some controversy over whether such models of the will can explain
free will or personhood. However, I am not trying to explain free will or
personhood; for my purposes any model will do, provided it allows us to
say that, when an agent has two or more conflicting preferences, and she
autonomously prefers to resolve that conflict in a particular way, we respect
her autonomy by not interfering with (or assisting, if duty-bound to do so)
her efforts to resolve that conflict as she sees fit. My account can also be
expressed in nonhierarchical terms; the work done in Harry Frankfurt’s
model by a second-order desire or volition is done in Gary Watson’s model
by the agent’s judgment about whether a desire should be satisfied: “...it is
one thing to value (think good) a state of affairs and another to desire that it
obtain.” (Watson, 1975, p. 217). In Watson’s terms, a resolution preference
would be a kind of “evaluative judgment.”
My arguments for the moral authority of precedent autonomy and
subsequent consent are limited to cases where the agent’s competence
declines or rises substantially over time. These are cases where the agent
at one time lacks the competence to comprehend both conflicting preferences, and at that time cannot form a resolution preference concerning
their conflict. At a time of greater competence, however, the agent can
comprehend both conflicting preferences, and choose between them. If
the agent were capable of comprehending both conflicting preferences at
all times, he might have different resolution preferences at different times,
preferring at T1 to resolve the conflict this way, and at T2 to resolve it
the other way. Such an agent has no single resolution preference—his
resolution preferences are themselves in conflict. When someone has
conflicting preferences and has not chosen between them, it is impossible
to respect his autonomy—but that is his problem, not ours. The cases
where precedent autonomy is invoked involve people whose competence
has significantly declined, as with demented or permanently unconscious
patients who earlier executed living wills. Subsequent consent is commonly invoked in connection with children or adults who are expected
to become much more competent with time. I will argue that precedent
autonomy and subsequent consent have moral authority only when the
agent at the time of lesser competence cannot comprehend both conflicting
preferences.
276
JOHN K. DAVIS
Let us start with the argument for respecting precedent autonomy:
Argument for the moral authority of precedent autonomy
(1) When a person has conflicting preferences on an issue, and a third, resolution preference favoring one conflicting preference over the other,
respect for autonomy requires respecting the resolution preference.
(2) In cases where the agent’s competence declines over time, sometimes
the resolution preference is a former preference, existing at the same
time as the conflicting former preference.
(3) It is possible to respect a person’s autonomy by respecting her former
preferences.
(4) Therefore, when there is a former resolution preference favoring an earlier conflicting preference over a later conflicting preference, respecting
autonomy requires respecting the former resolution preference and the
conflicting former preference it favors.
(5) Therefore, the Current Preference Thesis is false with respect to former
preferences and precedent autonomy, and we should respect precedent
autonomy.
With this overview in mind, we can better understand the arguments for
each premise and conclusion above.
4.1. Premise 1
Consider two cases where someone has conflicting preferences:
The Physical Therapy Patient. An injured patient prefers not to do physical therapy
because it is very painful. His doctor says that, without therapy, he will never walk
properly again. In light of this, he concludes that walking properly is more important
than avoiding pain, and resolves to undertake therapy even at the expense of suffering
pain.
The Late Sleeper. A woman goes to bed wanting to get up early so she can attend an
important meeting. She knows that when she awakes she will be too groggy to remember
the meeting, and that her anticipated preference to sleep late will be formed without any
awareness of her preference to get up early. She asks you to make sure she gets up at
6:00 a.m.
Most readers probably agree that respecting autonomy in these cases
requires respecting the preferences to undergo physical therapy and to
wake up. Why those preferences, and not their opposites?
In both cases the person, when aware of both conflicting preferences,
prefers the satisfaction of one conflicting preference over the other. Conflicting preferences can include current preferences that will survive over
time, current preferences that will later be former preferences, or preferences one does not have now but anticipates having later on. One then either
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
277
explicitly or implicitly prefers to satisfy one of these preferences over its
rivals. That preference is a resolution preference. For example, the patient
prefers to walk properly and to avoid pain. Those preferences conflict.
His doctor prompts him to reflect on which preference is more important,
and he decides that the preference to walk properly should be satisfied at
the expense of his preference to avoid pain. That decision expresses his
resolution preference.
There are two arguments for the claim that we must respect resolution
preferences. The first argument is that, in both cases above, most readers
probably judge that we should respect the preferences for physical therapy
and waking up early. Those preferences are favored by resolution preferences. Respect for autonomy is a moral principle, and to the extent that we
can ascertain the range of a moral principle by reviewing considered moral
judgments about cases, such judgments suggest that respect for autonomy
requires us to respect resolution preferences in cases where they exist. Of
course a wider range of cases would support that conclusion more strongly,
but in any event, this is not the main argument for respecting resolution
preferences.
The second (and stronger) argument for respecting resolution preferences starts from the premise that, to respect someone’s autonomy, we
must respect what he wants (with the usual qualifications). If the agent has
two conflicting preferences, and the agent has a third preference to satisfy
one of the conflicting preferences at the expense of the other one, we must
respect the agent’s choice between the conflicting preferences. There is no
other way we can respect his autonomy in that situation. The formation of
his resolution preference included consideration of his other preferences
on the issue in question. Therefore, the agent’s resolution preference is
his choice among conflicting preferences, and we must respect the agent’s
resolution preference.
One may object that the agent’s resolution preference may be based on
consideration of some of the agent’s conflicting preferences, but unless the
agent was aware of all his conflicting preferences (past, present, or future),
he has not chosen among them all. Therefore, respecting an agent’s resolution preference does not necessarily ensure that we are respecting what
the agent wants all things considered, for the agent has not considered all
things. In cases like this, we may be unable to respect the agent’s autonomy,
for the agent may not have made a choice among his preferences.
The answer to this objection is that respect for autonomy does not require
the presence of a resolution preference. It requires only that we respect such
preferences if they exist. My argument is limited to cases where the agent
does have a resolution preference selecting between two or more conflicting
preferences. We must respect what the agent wants, all things considered,
when the agent has considered the things at issue:
278
JOHN K. DAVIS
(1) When a person has conflicting preferences on an issue, and a third, resolution preference favoring one conflicting preference over the other,
respect for autonomy requires respecting the resolution preference.
4.2. Premise 2
If resolution preferences were always current preferences, the Current
Preference Thesis would be unchallenged. One can argue that resolution
preferences are always current preferences. After all, to form a resolution preference, one must be aware of two conflicting preferences. For
one to be aware of both conflicting preferences, those preferences must
exist before or at the same time one is aware of them, and thus a resolution preference must exist simultaneously with or later than the conflicting preferences it adjudicates among. Therefore, it seems that resolution preferences must always be among one’s current preferences, and can
never be former preferences. This is why the Current Preference Thesis is
plausible.
This argument fails because it overlooks the possibility of having a resolution preference concerning a future preference one anticipates having
when one becomes incompetent. When that time arrives, the resolution
preference has become a former preference. This is common with people
who decide their medical treatment in advance, anticipating that their competence will decline over time. For example, a competent person may be
aware that she will later prefer simple sensory pleasures, and that she will
not then remember her earlier, more sophisticated preferences. Her two
earlier preferences were a preference for death with dignity, and a preference that her preference for death with dignity be respected at the expense
of later preferences for simple sensory pleasures. The earlier preference
about how to resolve conflicts between the later preference and the other
earlier preference is a resolution preference, for it was formed in the awareness of the two conflicting preferences (one actual, one anticipated), and it
favors satisfying one of them over the other. It is also not a current or latest
preference. We now have the second premise:
(2) In cases where the agent’s competence declines over time, sometimes
the resolution preference is a former preference, existing at the same
time as the conflicting former preference.
4.3. Premise 3
On the usual understanding, we respect autonomy by refraining from interfering with preferences formed by agents who are sufficiently competent and informed, and whose preference formation is free of constraint
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
279
(Beauchamp et al., 1994, pp. 125–126), or by helping to fulfill the preference when we have a positive duty to do so. I claim that we respect
precedent autonomy by respecting former preferences of this kind. My
claim is supported by two reasons: (a) former preferences can qualify as
the kind of preferences that command respect under the principle of respect for autonomy and (b) it is possible to respect former preferences in
the same way we respect current preferences. To reject my claim one must
show that there is some feature a preference must have and that only current
preferences can have.
A former preference can have the features of being possible to respect
and of being the kind of preference that commands respect under the usual
articulation of the principle of respect for autonomy. Consider the following
case:
Death by stroke. A man’s will provides that his entire estate goes to medical research on
strokes. He then dies of a stroke.
Assuming the man was competent, sufficiently informed, and free of
constraints when he formed the preference to have his estate go to research
on strokes, his preference counts as the kind of preference that commands
respect under the principle of respect for autonomy. Moreover, we can
respect an agent’s former preference, for we can respect or have other relations with things that exist only in the past—every February we celebrate
Abraham Lincoln’s birthday. To respect a former preference we simply
stay out of the way when it is being fulfilled, or help to fulfill it if we have
a duty to do so. The fulfillment or assistance occurs after that preference
has become a former preference.
The standard arguments for a duty to respect a person’s autonomy—that
people are the best judges of their own interests, and that self-determination
has moral value—apply as readily to former preferences as they do to
current preferences. The stroke victim knew more than anyone else about
his interest in medical research, his relation to posterity, his attitude toward
money, his medical situation, and other interests he may have had. He was
clearly exercising self-determination over his own interests. The arguments
for a duty to respect a person’s autonomy appear to apply as easily to
preferences destined to become former preferences as they do to other
preferences.
Now extend this reasoning from death to permanent unconsciousness:
Permanent unconsciousness by stroke. A man has had a stroke and anticipates having
another. He puts all his money in trust and tells his trustee to spend the money on medical
research on strokes, with nothing to his family. He then suffers a stroke which leaves
him permanently unconscious.
280
JOHN K. DAVIS
There is no relevant distinction between the death by stroke case and this
case. If we respect the deceased’s precedent autonomy by respecting his
former preference, then we respect the permanently unconscious patient’s
precedent autonomy in the same way. The fact that the former preference is
no longer attributable to him does not mean that respecting that preference
does not constitute respecting his autonomy.
Now extend this reasoning to a case where a conflict of former and
current preferences is possible:
Dementia by stroke. A man has had a stroke and anticipates having another. He puts all
his money in trust and tells his trustee to spend the money for medical research on strokes,
with nothing to his family. He then suffers a stroke which leaves him permanently and
deeply demented. To be physically comfortable he needs extra nursing care which his
health insurance will not pay for, but his trustee may not spend the trust income on
anything but medical research on strokes.
The difference between this case and the previous case is that the demented patient has a current preference (for comfort) which can conflict
with his former preference to have his money spent on stroke research,
while the permanently unconscious patient has no current preferences at
all. If we are reluctant to respect his former preference in this case but not
in the two previous cases, then the grounds for that reluctance must concern
the conflict between his former and current preferences, for that feature is
unique to this case. If such reluctance correlates with conflicts of preferences, then the reluctance cannot be based on the fact that his preference
for promoting his interest in stroke research is a former preference, or on
the claim that respecting former preferences cannot constitute respect for
autonomy, for we are respecting former preferences in the other cases.
The reason why it seems that we do not respect an agent’s autonomy by
respecting his or her former preference is that, in most cases involving a
former preference, the agent also has a current preference that conflicts with
the former one, and a tacit resolution preference favoring satisfaction of the
current preference over any conflicting former preferences. If we respect
the former preference, we thereby disrespect the current preference and
violate the agent’s right of autonomy. However, what violates the agent’s
autonomy is not that we respected a former preference, but that we failed to
respect a current preference. The reason why failing to respect the current
preference violates the agent’s right of autonomy is that a current preference
is usually coupled with awareness of the former preference, and is therefore
accompanied by a tacit resolution preference favoring satisfaction of the
current preference over the former preference. The problem, then, is that
honoring a former preference frequently involves disregarding the agent’s
current preference and resolution preference on the issue in question. Former preferences tend not to be favored by the agent’s resolution preference
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
281
on the issue in question, and that is why they usually do not command our
respect. When they are favored by the resolution preference, however, they
do command respect.
Therefore, the fact that the preference is former does not mean we cannot
now respect the agent’s autonomy by respecting that preference:
(3) It is possible to respect a person’s autonomy by respecting her former
preferences(s).11
4.4. Conclusions
I can now complete my argument for the moral authority of precedent
autonomy:
(4) Therefore, when there is a former resolution preference favoring an earlier conflicting preference over a later conflicting preference, respecting
autonomy requires respecting the former resolution preference and the
conflicting former preference it favors.
(5) Therefore, the Current Preference Thesis is false with respect to former
preferences and precedent autonomy, and we should respect precedent
autonomy.
In short, respect for autonomy requires respecting a person’s resolution
preference, a former preference can be (and be favored by) a resolution
preference, and it is possible to respect a former preference. It follows that
respecting autonomy sometimes requires respecting former preferences.
5. THE MORAL AUTHORITY OF SUBSEQUENT CONSENT
The previous argument can be revised for subsequent consent:
Argument for the moral authority of subsequent consent
11 This
provides a way to respond to Derek Parfit’s objection to the part of “temporal
neutrality” which, he says, requires us to give the satisfaction of past desires equal weight
with the satisfaction of present desires. Parfit argues that this is absurd: “When I was young,
I most wanted to be a poet.... Now that I am older, I have lost this desire.... [The proponent
of temporal neutrality] must... claim that I have a strong reason to try to write poems now,
because this was what I most wanted for so many years.... Most of us would find this claim
hard to believe” (Parfit, 1984, p. 157). My answer to Parfit is that it is absurd only if there
is a current desire (or preference) which conflicts with the past desire (or preference) and
there is no resolution preference to select between them. That is the usual case, but not
always.
282
JOHN K. DAVIS
(1) When a person has conflicting preferences on an issue, and a third,
resolution preference favoring one conflicting preference over the
other, respect for autonomy requires respecting the resolution preference.
(2) In cases where the agent’s competence rises over time, sometimes the
resolution preference is a later preference, existing at the same time as
the conflicting later preference.
(3) It is possible to respect a person’s autonomy by respecting a preference
that has not formed yet.
(4) Therefore, when there will be a later resolution preference favoring
a later conflicting preference over an earlier conflicting preference,
respecting autonomy requires respecting the later resolution preference
and the conflicting later preference it favors.
(5) A later resolution preference can qualify as a form of consent known
as “subsequent consent.”
(6) Therefore, the Current Preference Thesis is false with respect to later
preferences and subsequent consent, and subsequent consent can have
moral authority.
Premise 1 is unchanged from the argument for precedent autonomy.
According to premise 2 , the resolution preference can be a later preference.
I will give an example of such cases shortly. According to premise 3 , it
is possible to respect a person’s autonomy by respecting a preference that
has not formed yet. The arguments for premise 3 of the argument for
precedent autonomy work here as well: The later preference is formed by
an agent who is sufficiently competent, informed, and free of constraints,
and it is possible to respect it by either refraining from interfering with its
satisfaction, or acting to satisfy it when one has a duty to do so. (Subsequent
consent cases typically involve actors who have a moral duty to care for
the agent, as parents do toward children.) Premise 5 concerns what mental
states qualify as instances of consent. I take no position on that issue, except
to say that subsequent consent involves an agent who has such a mental state
concerning someone’s action after the actor has acted, and that I assume
such a mental state has an associated preference of some kind. Steps 4 and
6 are straightforward.
Not every later appreciation counts as subsequent consent. Subsequent
consent requires roughly this sequence of events: an agent of limited competence has a preference. An actor interferes with the satisfaction of that
agent’s preference on the strength of a reasonable belief that the agent will
later endorse the actor’s interference. Later, the agent gains sufficient competence to both form a preference that conflicts with the earlier preference,
and also to form a resolution preference that, from the vantage point of
greater competence, favors satisfaction of the later conflicting preference.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
283
Both the later conflicting preference and the resolution preference require
greater competence to form than did the earlier conflicting preference;
when he was less competent, the agent literally could not have imagined
having the later preference, nor imagined favoring satisfaction of the later
preference over the earlier one. The earlier and later preferences are the
conflicting preferences, and the resolution preference consists of favoring
satisfaction of the later preference over the earlier one.
Thus, subsequent consent is limited to cases where the consenting party
enjoyed a substantial increase in mental competence after the interference
and before giving subsequent consent. Earlier, he has sufficient mental
capacity to form the earlier conflicting preference, but lacks the mental
capacity even to comprehend, let alone form, the conflicting later preference
(as well as the resolution preference). Therefore, even if others can see
what his later preference is likely to be, he cannot anticipate the later
conflicting preference, and therefore cannot choose between the earlier
and later conflicting preferences. Later, his competence rises to a level
sufficient for forming the more sophisticated later conflicting preference.
Because he now has sufficient competence to comprehend both earlier and
later conflicting preferences, he can also choose between them. In other
words, he can now form a resolution preference concerning which of the
conflicting preferences should be satisfied. Here is a case of subsequent
consent:
The Disney Tattoo. A 4-year-old child wants a cartoon character tattooed on his arm,
and an indulgent uncle is willing to pay for it. His heavily tattooed biker parents would
allow it if they believed he would always be glad he had it, but they have good reason
to believe he will later dislike having a Disney character tattooed on his arm, so they
forbid it. At age 4 he cannot imagine not wanting a tattoo of Simba the Lion King, and
does not understand that he might later be glad not to have one. Five years later he tells
his parents he agrees with their earlier decision.
Because at age 4 he cannot understand not wanting a Disney tattoo later
on, he cannot, at age 4, choose between satisfying his current desire to have
it, and a possible later desire not to have it. In other words, he cannot now
form a resolution preference disfavoring such later preferences. However,
at age 9 he comprehends both preferences, and not only does not want one,
but is glad his parents prevented it. Because he can, at age 9 understand both
conflicting preferences, he can also form a resolution preference disfavoring
his earlier preference to get a Disney tattoo. Not wanting a cartoon tattoo
is his conflicting later preference, while being glad he was prevented from
getting one is his resolution preference disfavoring the former preference.
A final point: Is subsequent consent possible even if the agent struggled
and fought against the interference at the time? Consider a patient who
consented to have a tooth removed, knowing it would be very painful,
284
JOHN K. DAVIS
and that he would not be able to stop himself from struggling against the
dentist trying to extract it. The struggle itself, and the dentist’s physical
coercion of him, are part of what he consented to. Subsequent consent is
like that: One later consents both to the act and to having been physically
coerced.
I will close by considering three objections to my argument for the
moral authority of subsequent consent. The first objection is that although
consent is necessary for actions that would otherwise violate someone’s
autonomy, it is not necessary for interfering with agents who are not sufficiently competent for their autonomy to command respect. In the tattoo
case, interfering with the child’s liberty is not a violation of his autonomy,
so why did his parents need his (anticipated) subsequent consent to justify
preventing him from getting the Disney tattoo? Why can’t they justify their
interference on paternalistic grounds?
The answer is that they need a justification beyond the simple fact that
he is too young for his autonomy to command respect. His youth, after all,
does not entitle his parents to do as they please; his youth simply means
that he is not sufficiently autonomous for his autonomy to pose an obstacle
to their interference now. The absence of that obstacle is not sufficient
justification; their decision must be positively justified in some other way.
In other cases the justification may, for example, be to prevent harm to
another person, or to improve the quality of his life, or to fulfill some other
duty to an outside party. In this case, however, the Disney tattoo will do him
no great harm at age 9 (it can always be removed by laser), but his parents
know he will later be glad they prevented him. Most important, there is
no identifiable harm beyond his future preference not to have that tattoo.
Because there is no other identifiable harm, preventing future harm does
not justify preventing him from getting the Disney tattoo. The only positive
justification for interfering with him is his future resolution preference—
his subsequent consent, in other words. Therefore, the justification for
their interference is better described as resting on their expectation of his
subsequent consent, rather than his best interests. In this case, therefore, the
positive justification for interfering with his liberty is their justified belief
that he will later give subsequent consent.12
The second objection is Feinberg and VanDeVeer’s argument that subsequent consent requires changing the past. If the consent is not in effect at the
time of acting, and the absence of consent makes the action an interference,
then the action was an interference when it happened. If consent makes an
12 In
some cases it may be possible to justify such an interference on grounds of subsequent consent and preventing future harm to the agent. Those cases exemplify the possibility
of subsequent consent too, but for clarity’s sake, let us deal in cases that involve subsequent
consent alone.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
285
action a noninterference, then subsequent consent requires changing the
past. How is that possible? 13
The answer is that calling an action an “interference with someone’s
liberty” is not merely a physical and psychological characterization but
it is also a moral characterization. Changing the moral characterization
of a past event does not require changing the physical and psychological
history of that event. It requires changing the moral relationship between
the consenting person, the actor, and the actor’s past action.
This is not as odd as it sounds. Relationships can exist between persons
and events at different times, and establishing such a relationship later
in time can change the character of the earlier event. For example, the
birth of the girl next door can, if things go right, later become the birth
of your future wife; a characterization that event did not have until years
later.14 Ratification is another example: in corporation law, to ratify an act
is authorize it retroactively. Similarly, subsequent consent can change the
character of an earlier action from unauthorized to authorized.15
The Feinberg–VanDeVeer objection can be revised to acknowledge the
possibility of subsequent consent, yet deny that anyone can use it to morally
justify his or her actions when justification is needed. Moral justification is
necessary when one acts. If an act was an interference when it happened, it
could not have been morally justified at the time. How, then, could the actor
justify his action at the time? If the action was not morally justified at the
time, it does not matter that it becomes justified later on—we still cannot
13 As I mentioned in Section 2, Feinberg uses a rape case to make this point, arguing that
subsequent consent means the rape never happened, yet subsequent consent cannot change
the historical fact that the rape did happen–therefore subsequent consent is impossible.
Feinberg’s rape example is distracting, for what is disturbing about that case is not the
possibility that one could later consent to something one earlier protested, but rather the fact
that it is hard to imagine a mentally and emotionally healthy person, free of manipulation,
giving morally valid consent to something as unhealthy as rape. Timing of consent aside,
Feinberg’s case seems most plausible as a case of addled cognition brought on by prolonged
intimacy with a manipulator, not a case of morally valid consent.
14 I am borrowing George Pitcher’s insight that, “If the world should be blasted to
smithereens during the next presidency after Ronald Reagan’s, this would make it true
(be responsible for the fact) that even now, during Reagan’s term, he is the penultimate
president of the United States” (Pitcher, 1984, pp. 183–88). It is not clear to me whether
Pitcher means that the past is changed when the world is destroyed, or that Reagan would
have been the penultimate president all along, or that the relationship between Reagan and
the rest of history is somehow located across time, and not at a given moment in time.
That third interpretation is how I see subsequent consent. Joel Feinberg interprets Pitcher’s
example in the second way (Feinberg, 1984, p. 91).
15 Graham Nerlich discusses cases where, at T1, X was “going to happen” at T3, but
events at T2 made it the case that it was not true at T1 that X was “going to happen” at T3
(Nerlich, 1979).
286
JOHN K. DAVIS
act on the authorization of a subsequent consent, so subsequent consent is
useless on a practical level.
To answer this, we need to distinguish between agent-relative justification and justification in fact.16 Agent-relative justification consists of an
agent’s having reason to believe her action is morally proper. There is justification in fact if the circumstances she believes justify her action are
really the case, and that such circumstances really do justify such actions.
An action interfering with one’s liberty is interference when it happens,
but the agent who interferes can have agent-relative justification at the time
of acting, provided she has an epistemically justified belief that one would
later consent; this is why it makes sense to speak of being authorized by
anticipated subsequent consent. When one does later consent, there is evidence that her belief was true, and that the interference was justified in fact
at the time she acted.
Of course, an epistemically justified belief that consent will later be
given can prove false. If the belief later proves false, does that mean the
interference was not morally justified at the time? If it was justified at the
time, does the fact that consent is never given mean that the act changes
from justified to unjustified?
No more so than any other epistemically justified belief that consent
has been given when it has not. If consent is not later given, the action
never changes its status from interference to authorized action. However,
that does not mean the actor did not have agent-relative moral justification,
for the actor had an epistemically justified belief that authorization would
occur, even though that belief later proved false. This is much like having a
false but epistemically justified belief that consent has already been given.
Having agent-relative moral justification and having moral justification in
fact are two different things.
The third objection is that subsequent consent is better understood in
terms of such attitudes as forgiveness, appreciation, and gratitude.17 Joel
Feinberg and Donald VanDeVeer, for example, understand subsequent consent as a kind of forgiveness or later appreciation (Feinberg, 1986, pp.
182–3; VanDeVeer 1986, p. 69). Given that forgiveness, appreciation, and
gratitude are unproblematic notions, why borrow trouble with a concept as
exotic as subsequent consent?
If subsequent consent is really forgiveness, gratitude, or appreciation,
then it is questionable whether subsequent consent can authorize actions
in the way ordinary consent does. If someone consents to an action you
otherwise may not do, that action becomes permissible. It is not clear
that forgiveness, gratitude, or appreciation can transform an otherwise
16 I thank C.D.C. Reeve for articulating this distinction, and for this way of deploying it.
17 I
am indebted to an anonymous reviewer for pointing out this objection.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
287
impermissible violation of someone’s liberty into a permissible action in
this way. Thus, the third objection is not merely that subsequent consent
is wrongly characterized, but that it lacks the moral authority of ordinary
consent.
What is the argument behind this objection? One possible argument is
that consent is necessarily about future events, and therefore an agent who
has a positive, endorsing attitude toward someone else’s past incursions
upon that agent’s life must have one of the attitudes that concern past events,
such as appreciation, forgiveness, and gratitude. However, this argument
assumes the very point at issue. I have argued at length that consent is
not necessarily forward-looking, and proponents of this objection cannot
simply assume that these arguments fail.
Another argument is that cases of supposed subsequent consent do not,
as a matter of fact, involve the attitude of consent. That is an empirical claim
which may well be true in some cases of apparent subsequent consent, but
that possibility gives us no reason to believe that subsequent consent never
happens—only that we must scrutinize cases carefully to see which qualify
as subsequent consent and which are cases of forgiveness and the like.
A better argument for the third objection rests on the claim that subsequent consent is completely reducible to (fully analyzable in terms of) such
attitudes as forgiveness, but that ordinary consent cannot be so reduced.
The first problem with this argument is that the fact that two attitudes are
both backward-looking does not imply that either is reducible to the other;
forgiveness and gratitude, after all, are both backward-looking, yet they
are two different attitudes. It takes more to argue that subsequent consent
is reducible to other attitudes than merely showing that the other attitudes
are backward-looking as well.
However, there is a second, deeper problem with this argument. If both
ordinary consent and subsequent consent can be reduced to such attitudes as
forgiveness, gratitude, and appreciation, then analyzing subsequent consent
in terms of those attitudes does not imply that cases of subsequent consent
do not truly involve consent. The argument might be renewed by contending
that ordinary consent cannot be reduced to backward-looking attitudes,
for ordinary consent looks to the future, while forgiveness, gratitude, and
appreciation undeniably look to the past. This renewed argument does not
amount to claiming that consent is necessarily forward-looking, only that
ordinary cases of consent involve looking to the future (as they clearly do),
therefore the possibility that ordinary consent and subsequent consent are
both reducible to forgiveness and the like simply does not arise.
However, while ordinary cases of consent are forward-looking, it is not
clear that the mental state we call “consent” is different in such cases from
the same mental state in cases of subsequent consent. In other words, no
reason has yet been offered to suppose that the mental states involved in
288
JOHN K. DAVIS
cases of ordinary consent and cases of subsequent consent differ in any
respect other than whether the attitude is forward- or backward-looking. If
ordinary consent cannot be reduced to such attitudes as appreciation and the
like, then consent simpliciter is not reducible to such attitudes, regardless
of whether the consent concerns future events or past events—if one truly
consents, one has an attitude that is not reducible to forgiveness and the like.
To see this, consider why ordinary consent seems not to be so reducible. If
it is because “ordinary consent” is defined as a forward-looking attitude,
then we are back to the earlier question-begging argument about whether
consent simpliciter is necessarily forward-looking. If, however, it is because consent is simply a different attitude than forgiveness, gratitude, or
appreciation—for some reason other than whether it is forward- or
backward-looking—then consent is not so reducible regardless of whether
it occurs before or after the action it sanctions. If consent in general cannot
be reduced to attitudes such as forgiveness, then neither can subsequent
consent in particular.
Objections aside, I want to emphasize that my argument for the moral
authority of subsequent consent is narrow. I am not defending subsequent
consent against all objections, nor arguing that every case where someone later appreciates an earlier interference counts as a case of subsequent
consent. Most such cases, I think, do not. Cases of genuine subsequent
consent require a significant increase in competence over time, and are
therefore probably rare, perhaps confined to occasional situations involving very young children, or adults suffering serious but temporary mental
impairment.
6. ULYSSES CONTRACTS
I will close with a few comments about a possible example of both precedent autonomy and subsequent consent—the psychiatric Ulysses contract.
Ulysses contracts are named after the promise Ulysses extracted from his
sailors not to untie him from the mast until the sirens were safely out of
earshot. Many American states have recently passed laws enabling people with episodic mental disorders to commit themselves in advance to
psychiatric treatment in the event of their next psychotic episode. Once
the document is executed and a psychotic episode is underway, the patient
cannot refuse the temporary psychiatric treatment which makes him lucid
once again. For example, a man suffering from Bipolar I Disorder, and who
anticipates another severe manic episode sometime in the future, might execute a psychiatric Ulysses contract which empowers his psychiatrist to
have him involuntarily committed and given psychoactive medications the
next time he becomes manic. When his next manic episode hits, he is treated
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
289
against his will and the mania subsides, leaving him lucid once again—and
glad he executed the Ulysses contract. During his earlier lucid phase, he
consented in advance to be forced into psychiatric care, and during his later
lucid phase, he was glad he had done so, and decided not to rescind the
contract.
The moral authority of Ulysses contracts is controversial. If the patient’s
decision in the earlier lucid phase was an instance of precedent autonomy,
and his relief and decision not to rescind in the later lucid phase was
an instance of subsequent consent, then the arguments of this paper might
support the moral authority of some Ulysses contracts. However, precedent
autonomy occurs only when the agent is earlier able to comprehend a choice
he latter cannot comprehend, whereas subsequent consent requires the same
pattern in reverse—that the agent later comprehend a choice he could not
comprehend earlier.
Whether my arguments for precedent autonomy and subsequent consent
apply to psychiatric Ulysses contracts depends on how we characterize the
patient’s cognitive capacity during a psychotic phase. The kind of severe
mania involved in Bipolar I Disorder may include hallucinations, delusions,
and paranoia, but it is not clear that it temporarily lowers the patient’s
intelligence, or shuts down his memory, or otherwise makes him unable to
comprehend his choices at an intellectual level. Bipolar I Disorder, Major
Depressive Disorder, Schizophrenia, and other episodic mental disorders
generally diminish a patient’s ability to appreciate his or her circumstances,
and to think clearly and rationally, but whether they render patients unable
to understand the very concepts and questions involved in deciding whether
to undergo psychiatric treatment is another question.
For those who believe such psychoses are not instances of an inability to
understand, my arguments will not extend to psychiatric Ulysses contracts.
For those who believe that radical failures of the cognitive capacity to
appreciate can constitute an inability to comprehend the very choices to
be made (and not merely an inability to choose rationally between them),
my arguments can be so extended. I have no view on this question, nor
any expertise in psychiatry, so I leave this issue—and the possibility of
extending my arguments to psychiatric Ulysses contracts—open for now.
Further work on this question may open the door to a new argument for the
moral authority of some Ulysses contracts.
7. CONCLUSION
We tend to assume that respecting one’s autonomy requires respecting
what one wants now. This Current Preference Thesis fuels a widespread
skepticism concerning precedent autonomy and subsequent consent, and
290
JOHN K. DAVIS
accounts for much unease over the moral authority of living wills and other
ways to decide one’s medical treatment in advance.
The Current Preference Thesis is false. When a person has two or more
conflicting preferences, we must respect any third preference he or she has
about how to resolve the conflict. These preferences need not exist at the
same time, nor does respect for a preference have to be shown at the same
time the preference exists. From all this it follows that our duty to respect a
preference formed by a competent, uncoerced, sufficiently-informed agent
is not undermined by the fact that the preference exists before or after the
time it is respected.
ACKNOWLEDGEMENTS
I thank C.D.C. Reeve, Geoffrey Sayre-McCord, and the members of the
Research Triangle Ethics Circle for their helpful comments and criticisms,
and Laurence BonJour and Albert R. Jonsen for useful objections and suggestions concerning a previous version of the precedent autonomy section
of this paper. My thanks also to an anonymous reviewer of this journal
for the third objection in Section 5, and for encouraging me to extend my
discussion to Ulysses contracts.
REFERENCES
Beauchamp, T., and Childress, J., Principles of Biomedical Ethics, 4th. Ed. New York:
Oxford University Press, 1994, pp. 125–126.
Buchanan, A., and Brock, D., Deciding for Others: The Ethics of Surrogate Decision Making. Cambridge: Cambridge University Press, 1990, p. 108.
Cantor, N., Advance Directives and the Pursuit of Death with Dignity. Indianapolis: Indiana
University Press, 1993, p. 101.
Carter, R., Justifying Paternalism, Canadian Journal of Philosophy 7(1) (1977), pp. 139–
142.
Davis, J., The Concept of Precedent Autonomy, Bioethics 16(2) (2002), pp. 114–133.
Davis, J., Precedent Autonomy, Advance Directives, and End-of-Life Care, in B. Steinbock
(ed.), Oxford Handbook of Bioethics. Oxford University Press, anticipated publication
date: 2006, pagination to be determined.
Dresser, R., and Astrow, A., Commentaries to An Alert and Incompetent Self: The Irrelevance of Advance Directives, The Hastings Center Report 28 (January 1998), pp. 28–30.
Dresser, R., and Robertson, J., Quality of Life and Non-Treatment Decisions for Incompetent
Patients: A Critique of the Orthodox Approach, Law, Medicine & Health Care 17 (1989),
p. 247.
Dworkin, G., Paternalism, in R. Sartorius (ed.), Paternalism. Minneapolis: University of
Minnesota Press, 1983, p. 28.
Dworkin, R., Life’s Dominion. New York: Alfred A. Knopf, 1993, pp. 221, 226.
Feinberg, J., Harm to Others. New York: Oxford University Press, 1984, p. 91.
Feinberg, J., Harm to Self. Oxford: Oxford University Press, 1986, p. 182–183.
PRECEDENT AUTONOMY AND SUBSEQUENT CONSENT
291
Frankfurt, H., Freedom of the Will and the Concept of a Person, Journal of Philosophy
68 (1971), pp. 5–20.
Kasachkoff, T., Does Gratitude Make it Okay? Social Theory and Practice 20(1) (1994), p.
15.
Lynn, J., et al., Dementia and Advance-Care Planning: Perspectives from Three Countries
on Ethics and Epidemiology, The Journal of Clinical Ethics 10 (Winter 1999), p. 274.
Nerlich, G., How to Make Things Have Happened, Canadian Journal of Philosophy 9(1)
(1979), pp. 1–21.
Parfit, D., Reasons and Persons. New York: Oxford University Press, 1984, p. 157.
Pink, T., The Psychology of Freedom. Cambridge: Cambridge University Press, 1996, pp.
18–20.
Pitcher, G., The Misfortunes of the Dead, American Philosophical Quarterly 21(2) (1984),
pp. 183–88.
VanDeVeer, D., Paternalistic Intervention: The Moral Bounds on Benevolence. Princeton:
Princeton University Press, 1986, pp. 67–69.
Watson, G., Free Agency, The Journal of Philosophy 72(8) (1975), p. 217.
Wolf, S., et al., Sources of Concern About the Patient Self-Determination Act, The New
England Journal of Medicine 325 (1991), pp. 1668–1669.
Department of Philosophy
University of Tennessee
816 McClung Tower
Knoxville, TN 37996-0480, USA
E-mail: [email protected]