An Advance Directive (AD) is an instrument supporting patient autonomy. A patient, P, based on past experiences of illness and recognizing the possibility of a relapse where P will likely express particular preferences that P considers damaging to P’s deeply held values, may create an AD requesting those preferences be overridden.  

The UNCRPD Committee in General Comment 1 interprets the Convention as prohibiting ‘substitute-decision making’ because it represents a loss of ‘legal capacity’ due to an imputed impairment of ‘mental capacity’.  At the same time, the Committee endorses advance planning whereby P can state P’s ‘will and preferences’ which should be followed when P ‘may not be in a position to communicate their wishes to others’.  It recommends P should define when the AD should be triggered.  

It thus appears that overriding a contemporaneous preference – one previously predicted by  P as likely to be expressed in circumstances specified in the AD, and which P has clearly requested in the AD should not be respected – would presumably not constitute a violation of the Convention.  

What if there is no written AD, but it is clear through P’s past statements and actions, evidenced by people who know P well, that a contemporaneous preference of P is radically inconsistent with P’s deeply held beliefs and values (or ‘will’)?  It is left unclear whether the Committee would hold it could be overidden or not.