Report on Bioethics: Advance Care Directives - Law Reform ...

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3.96 The Commission recommends the establishment of a register ofadvance care directives, especially those which must be in writing under theproposed statutory framework, and that suitable guidance on its developmentcould be given in the proposed Code of Practice on Advance Care Directives.EDetailed issues concerning the healthcare proxy3.97 In Chapter 2, the Commission recommended that a person who hasvalidly made an advance care directive may appoint a health care proxy, a thirdparty who will make decisions for the maker of the advance care directive. Thehealthcare proxy is likely to be a close friend or relative of the advance caredirective. Due to this close relationship, the proxy can ―provide invaluableinformation about the patient‘s wishes in the event of incapacity and sosupplement the provisions of the living will.‖ 110 A proxy is also of particular usein the case of unforeseen circumstances. The maker of an advance caredirective cannot predict all possible scenarios. Thus it has been suggested that―patients should focus on appointing as a proxy someone they trust to interprettheir stated preferences or extrapolate their statements if needed.‖ 111 In thisPart, therefore, the Commission turns to discuss some detailed elementsconcerning the appointment and powers of a health care proxy.(a)Powers of the proxy3.98 It has been argued that the proxy is ―not the legally empowereddecision-maker.‖ 112 While the proxy may provide clarity to an advance caredirective, this will depend upon the quality of discussion between the maker ofthe advance care directive and the proxy. If the proxy has the power to decideon medical treatment which is not contained in the advance care directive, themaker of the advance care directive may not have covered this particularmedical treatment. Thus the proxy will be making a decision based on what theythink the maker of the advance care directive would want rather than what theyactually do want.3.99 In Queensland, questions were raised about the value of an enduringpower of attorney appointed under a health directive. It was queried how muchclarity an attorney can provide. In other words, is the attorney merely clarifying110111112Docker “Living Wills” Tolley‟s Finance and Law for the Older Client STEP atG1.21.Lo and Steinbrrok ―Resuscitating Advance Directives‖ (2004) 164 Arch Intern Med1501 at 1504.Docker “Living Wills” Tolley‟s Finance and Law for the Older Client STEP, atG1.21.85
the wishes or making their own decision. 113 When discussing powers ofattorney, the Scottish Law Commission stated:―We tend to think that a better approach is that doctors should beobliged to discuss proposed treatment with the patient‘s attorney.While they should give due weight to the views expressed theyshould not be bound by them. The overall interests of patients wouldbe better served by a flexible system in which the professionaljudgment of doctors continues to have a major role.‖ 1143.100 Under the Code of Practice for the English Mental Capacity Act 2005¸a person appointed under a lasting (enduring) power of attorney can onlyconsent to or refuse life-sustaining treatment on behalf of the donor where thedonor has specifically stated that they want the donor to have this authority. 115The Commission considers, however, that due to the importance of promotingpatient autonomy, the proxy must have the power to refuse life-sustainingmedical treatment.3.101 The Commission is of the opinion that as the proxy is likely to be aclose friend or relative with whom the maker of the advance care directive hasdiscussed the advance care directive with, they can decide on how muchdecision making power the proxy should have. The Commission also notes thatthe quality of discussion between the maker of the advance care directive and aproxy will depend on the relationship between them and also the time availableto have such a discussion.3.102 The Commission emphasises the important distinction to be drawnbetween general or limited powers for a proxy. An advance care directive thatappoints a proxy may confine their decision-making power to certain limitedsituations. This may be to ensure that the proxy will provide clarity to theadvance care directive in the case of ambiguities. On the other hand, the proxymay be given general power to refuse medical treatment, including treatmentwhich is not stated in the advance care directive. The Commission, however,notes that due to the serious consequences involved in refusing artificial lifesustainingmedical treatment, 116 the advance care directive must explicitlyconfer the power to refuse artificial life-sustaining treatment on the proxy.113114115116Willmott, White and Howard ―Refusing Advance Refusals: Advance Directivesand Life-Sustaining Medical Treatment (2006) 30 Melb. U. L. Rev. 211 at 232.Scottish Law Commission Mentally Disabled Adults: Legal Arrangements forManaging their Welfare and Finances (Discussion Paper No. 94 1991), at 5.116.Code of Practice-Mental Capacity Act 2005, at paragraph 7.30.See paragraphs 3.14-3.32.86
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ReportBIOETHICS:AD
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LAW REFORM COMMISSION‘S ROLEThe L
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LAW REFORM RESEARCH STAFFDirector o
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CONTACT DETAILSFurther information
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TABLE OF CONTENTSTable of Legislati
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CHAPTER 4CONSEQUENCES OF ESTABLISHI
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TABLE OF CASESAiredale NHS Trust v
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advance care directives in the Unit
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CHAPTER 1ORIGINS OF ADVANCE CARE DI
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1.08 The second major development i
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Refusal of treatments by pregnant w
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we believe Karen‘s choice, if she
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1995 English Law Commission <strong
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a declaration that it would be lawf
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Disabilities. 42 The draft Recommen
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(5) The development of advance care
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1.45 In the Supreme Court, Hamilton
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when determining the capacity quest
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(d)Current use of advance care dire
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e upheld. Indeed, this conclusion f
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services, the need for palliative c
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ecommendations in this Repo
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Page 52 and 53: consents to or refuses medical trea
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Page 62 and 63: 2.12 The Council of Europe‘s 2009
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Page 89 and 90: 3.64 The Commission concurs with th
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Page 99: care directive. 105 The Commission
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Page 105 and 106: (b) for the guidance of persons, in
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Page 109 and 110: who acted in good faith could be pr
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Page 113 and 114: follow an advance care directive is
Page 115 and 116: the Board can erase the name of a n
Page 119 and 120: directive would be likely to be enf
Page 121 and 122: Ensuring that the wishes of the mak
Page 124 and 125: APPENDIX DRAFT MENTAL CAPACITY (ADV
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Page 132 and 133: (ii) the name and address of that p
Page 134 and 135: (b) Without prejudice to section 5(
Page 136 and 137: paragraph 3.13 (palliative care), p
Page 138 and 139: Subsection (2) implements the recom
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