Indeterminacy of identity and advance directives for death after dementia

Academic discussion of this issue begins with Rebecca Dresser’s criticism of Ronald Dworkin’s position in Life’s Dominion (Dworkin 1993; Dresser 1986). Subsequent debate ensued and continues today. Eva Constance Alida Asscher and Suzanne van de Vathorst (2020) and Jonathan Hughes (2020) discuss it in connection with a high-profile case going through the courts in the Netherlands, showing the relevance to this issue to matters beyond the academy.

On this court case, see (1) ECLI: NL: HR: 2020: 712; online at https://​uitspraken.​rechtspraak.​nl/​inziendocument?​id=​ECLI:​NL:​HR:​2020:​712; (2) “Dutch court approves euthanasia in cases of advanced dementia”: https://​www.​theguardian.​com/​world/​2020/​apr/​21/​dutch-court-approves-euthanasia-in-cases-of-advanced-dementia; (3) “Dutch Supreme Court Expands Euthanasia Laws for Dementia Patients”: https://​www.​nytimes.​com/​reuters/​2020/​04/​21/​world/​europe/​21reuters-health-euthanasia-netherlands.​html. For history and academic discussion, see Asscher and van de Vathorst (2020) Hughes (2020).

There are various philosophical problems of personal identity. The present concern is one of these—the question of persistence of persons through time—but others might well be implicated by it. See Olson (2017) for an overview.

This does not imply that they do not also worry about other things. Of course they do. Interpretation is needed to figure out just what concerns ordinary people have about these complex issues. Such interpretation will sometimes preserve the initial appearances, and in the present case this will mean that some ordinary people are worried about the persistence of persons through time across deep changes in psychology.

This does not imply that there are not other problems as well. For instance, hard questions arise when third party medical decisions must be made for persons whose interests have changed through time, even when the identity of the persons in question is taken for granted.

Gage’s changes seem to have been of features of his “moral personality”, so his case is particularly apt in the present context.

Andrea Ott makes a similar point in a similar way. She analyzes two hypothetical cases (one very realistic, the other much less so) from Jeff McMahan (2002) to trace a “tension within some of our basic intuitions” concerning personal identity, medical treatment, advance directives, and moral standing (2009, Sect. 1).

Some details about a few examples: Julian Hughes endorses a “situated embodied agent” view of personal identity for the purposes of understanding what’s going on when we go through the psychological change involved in dementia (2001, pp. 87–89). Paul Menzel and Bonnie Steinbock endorse a “narrative identity” view (2013, p. 489) for much the same reason, with more attention than Hughes to AD-MAID. Mark Kuczewski chooses a socially embedded narrative approach (1994, pp. 42–43). Andrea Ott endorses Lynne Rudder Baker’s “constitution without identity” position for resolving such issues (2009, Sect. 2; see Baker 2000), focusing particularly on its metaphysical aspect. David DeGrazia argues for the centrality of our nature as animals rather than persons to questions of what we are and what persists across such changes as those found in dementia (1999). There is more: McMahan 2002, DeGrazia 2005, Lizza 2005. I hope that this suffices to make the problems for legislative use clear.

Jonathan Hughes (2020) contests Asscher and van de Vathorst on this issue in his examination of the Hoge Raad decision. I’m inclined to agree with Hughes that this is too broad an issue for a single case to settle.

This goes for policy makers in Canada and Belgium as well, of course. The Dutch decision will undoubtedly be noted by participants in the on-going Belgian considerations.

Such a blanket anti-AD-MAID position is unlikely in such jurisdictions in Canada, I surmise, given that the CCA report recognizes pro-AD-MAID considerations (2018, Chap. 3).