Richard Kaplan's recent paper on Religion and Advance Directives: Formulations and Enforcement Implications discusses a topic I often wish we had more time to discuss in my health law survey course: the overlay of declared religious principles on health-care proxy document templates. Of course, the push-me-pull-you of this is that documents that are often conceived of by some as the fullest legal expression of individual autonomy at the point of end-of-life decision making can also be understood by others as the fullest expression of individual participation in a collective: religious belief and religious identity at the point of end of life decision making.
And so I was perplexed to read Richard Kaplan write: "[t]he inevitable result of such religious-doctrine-incorporation provisions is to limit the discretion of the designated proxy to make medically optimal decisions in any clinical situation" and that such directives "might further complicate the task of health-care professionals who must apply these directives in specific contexts."
Well, yes. It is probably harder to try to apply articulated guidelines of any kind rather than to focus end of life decision making priorities on choosing someone as the decision maker who has a world view, including a religious world view, consistent with the individual's. But, I don't think it is inherently more complicated because the guiding principles are explicitly religious. It is just more complicated because they are more specific and, perhaps, because such guidelines are morally freighted for some individuals.
And, I have to wonder if Richard Kaplan doesn't see this too because he then goes on in his article to discuss, in much greater detail, how the undisclosed to patient religious beliefs of providers do, in fact, shape how treatment choice options concerning end of life decision making are presented. We might call this the hidden religious screen on end of life decision making — the undisclosed religious screen of the provider.
Are we better off with non-disclosed religious perspectives helping to shape end of life decision making or with completely up front declarations of preferences by some to adhere to religiously articulated principles that guide end of life decision making?
In light of information asymmetry and power differentials, the framing of the range of available choices on end of life decision making may actually be the far more significant act than the choosing among the limited choices presented. If this is true, Richard Kaplan hasn't persuaded me that religious principles aren't already playing a significant role in end of life decision making but that, in fact, someone else's religious principles or religious affiliations are the ones that matter in many situations. Somehow, I don't find this the more comforting scenario.
I wonder if it isn't more important, then, to select a health care provider whose world view and religious sensibility is attuned to yours than it is to focus on these same characteristics when selecting the actual individual health care proxy.