Penney J. Lewis
has posted an article titled "Medical Treatment of Dementia Patients at the End of Life: Can the Law Accommodate the Personal Identity and Welfare Problems?"
on SSRN. The abstract is below:
approaches to decision-making in the area of the medical care of
incompetent persons are generally based on respect for the patient's
autonomy, or protection of her welfare, or some combination of the two.
Advance decision-making and the substituted judgment test are the two
examples of autonomy-based legal approaches to incompetent individuals.
If the incompetent individual was previously competent, her earlier
autonomous decisions regarding medical treatment can be projected into
the future once she becomes incompetent. Even if the incompetent
individual failed to make such advance decisions, her autonomy can be
respected by taking the decision that she would have taken, based on
evidence of her previously competent wishes, preferences and values. The
best interests test is the key example of decision-making based on the
protection of the incompetent's welfare interests, and can be used
regardless of whether the incompetent was previously competent.
article considers whether two significant philosophical objections to
autonomy-based legal approaches to decision-making for incompetent
individuals could be accommodated by the law. These philosophical
objections are known as the personal identity and welfare problems. The
article first sets out the autonomy-based approaches and their
objections. Next, the present legal position is briefly canvassed in a
comparative vein. Finally, the article suggests how the personal
identity and welfare problems might be accommodated were legislators
minded to do so, by proposing specific statutory amendments to the
recent English legislation on advance decisions and evaluating their
viability, particularly in light of the European Convention on Human
Posted by Patrick Siegfried
, Associate Editor, Wealth