Choosing Now for Later: Precedent Autonomy and Problem of Surrogate Decision-Making After Severe Brain Injury

Patients with disorders of consciousness after severe brain injury need surrogate decision-makers to guide treatment decisions on their behalf. Formal guidelines for surrogate decision-making generally instruct decision-makers to first appeal to a patient’s written advance directive, followed by making a substituted judgement of what the patient would have chosen, and lastly, to make decisions according to what seems to be in the patient’s best medical interests. The basic idea is that past values begin to matter when global incompetence sets in. In this paper, I challenge this rationale, using patients with ‘covert awareness’ as a case study. Patients with ‘covert awareness’ may continue to have values and an authentic sense of self, which may differ from their past values and wishes, despite lacking decision-making capacity in the present. Accordingly, surrogate decision-makers should make decisions based on how the patient is likely to experience their condition in the present, rather than their past wishes and values.