Advance decisions to refuse treatment: autonomy and governmentality at the end of life

Advance decisions to refuse medical treatment (“ADRTs”) have been recognised in English law through a series of cases which arose at the end of the Twentieth Century and subsequently by the Mental Capacity Act 2005. ADRTs allow adults, with the requisite mental capacity, to refuse forms of medical treatment that they anticipate being provided with at a time when they have lost mental capacity in respect of the anticipated treatment. The most frequently advanced argument for the recognition of these instruments is to respect and extend personal autonomy and/or self-determination. However, this thesis treats that particular normative ground as but one among a number of factors which have been crucial to the emergence of ADRTs. It is argued that the advancement in medical capabilities for prolonging life in its final stages is a sine qua non of ADRTs in practical terms. The demographic and financial pressures in which end-of-life care is provided add impetus to the argument for the recognition of ADRTs. However, it is suggested that the political environment in which ADRTs have emerged has also been of fundamental significance to their recognition in law. Using Michel Foucault’s theory of governmentality it will be shown ADRTs have been developed within advanced liberal programmes of government, in response to the inability of the traditional approaches of those forms of government to govern individuals who lack capacity at the end of life. The employment of this theory provides a novel perspective on the debates which have raged in this area of law and bioethics, allowing for a focus on the population, as well as the individual, and a focus on practices rather than on the outcomes