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4 Med. L. Int'l 1 (1999-2000)

handle is hein.journals/medclint4 and id is 1 raw text is: Medical Law International, 1999, Vol. 4, pp. 1-21 0968-5332/99 $10 O 1999 A B Academic Publishers-Printed in Great Britain THE LIVING WILL: DOES AN ADVANCE REFUSAL OF TREATMENT MADE WITH CAPACITY ALWAYS SURVIVE ANY SUPERVENING INCAPACITY?* ERWIN BERNAT Department of Civil Law, University of Graz, Austria ABSTRACT There is a widespread consensus in law and medical ethics that living wills have to be obeyed by the physician if the patient was competent when the medical directive was signed and if, after the patient becomes incompetent, additional conditions occur which were considered by him. According to this viewpoint, the effectiveness of living wills is a direct consequence of the patient's right of self-determination. As the British Law Commission has recently put it: An advance refusal made with capacity simply survives any supervening incapacity. However, this opinion does not take into account the empirical fact that the formerly competent person's critical interests (at t,) do not necessarily correspond with his experiential interests after incompetency is established irreversibly (at t2). The author's goal is to answer the question of whether there can be cases which do not allow the formerly competent person's critical interests to prevail over the incompetent patient's experiential interests. I. INTRODUCTION In one of Mark Twain's Letters from the Earth, Lucifer gives an account of what death may have looked like before hell was invented. Death, Lucifer indicates, was in these times sweet, death was gentle, death was kind.' As soon as man was no longer able to bear his life, death came and set him free from the burden of living. Our mortality is also the subject of one of the best known syllogisms taught in logic: People are mortal. Socrates is a man. Therefore Socrates is mortal.2 A modern version of this syllogism could go as follows: People die in hospital. Hospitals are built to fight death. Therefore, hospitals must seek to keep people from dying. The contemporary citizen is obviously in a tricky situation. Everybody dies; very frequently in hospitals. Modern techniques and medical procedures can save lives and maintain body functions, whereas in the past death would have occurred much earlier.3 But sometimes modern medicine only prolongs the process of dying and

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