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

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such a suggestion, the Commission considers that such an exclusion is notdesirable. A proxy who is a close friend or relative of the maker of the advancecare directive is more likely to be comfortable discussing the issues surroundingan advance care directive with the maker of the advance care directive. TheCommission believes that this discussion is very important in the ensuring thatthe proxy understands the advance care directive. Thus the Commission doesnot make any recommendation limiting the categories of persons who can andcannot be a proxy.FCode of Practice3.117 In the Consultation Paper the Commission recommended drafting aCode of Practice to complement the statutory framework. 118 The Commission isof the opinion that due to the complex issues involved, such a Code of Practiceis necessary for guidance. The Commission notes that the Code of Practice forthe English Mental Capacity Act 2005 has greatly facilitated the development ofdetailed guidance on the general principles in the 2005 Act. The Commissionnotes that such a code can respond more quickly than primary legislation todevelopments in health care practice. Under the Mental Capacity Act 2005,failure to follow the Code may be taken into account in any criminal or civilproceedings. 1193.118 In the 2006 <strong>Report</strong> on Vulnerable Adults and the Law theCommission recommended the establishment of an Office of Public Guardian.One of the functions of the Office would be the preparation of codes of practicein matters of capacity. 120 The Commission recommended that the Office ofPublic Guardian consult with other professional bodies in the development ofsuch codes of practice. 121 The Government‘s Scheme of a Mental Capacity Bill2008 proposes to implement this recommendation and provides that the Officeof Public Guardian would be empowered to issue codes of practice(a) ―for the guidance of persons, including healthcareprofessionals, assessing whether a person has capacity inrelation to any matter118119120121Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 2.48.Section 42(5) of Mental Capacity Act 2005.Law Reform Commission <strong>Report</strong> on Vulnerable Adults and the Law (LRC 83-2006), at paragraph 2.60Ibid.89
(b) for the guidance of persons, including health careprofessionals, assessing whether a person has capacity inrelation to any matter(c) for the guidance of the enduring powers of attorney(d) for the guidance of personal guardians appointed by thecourt(e) for the guidance of health care personnel as respect thecircumstances in which urgent treatment may be carriedout without the consent of an adult patient who lacks thecapacity and what type of treatment may be provided if it islikely that the person will imminently recover capacity(f) with respect to other such matters concerned with thisScheme as it thinks fit.‖3.119 The Commission is of the opinion that a multi-disciplinary approachbest suits the formulation of the proposed Code of Practice on Advance CareDirectives. The Commission accordingly recommends that a Code of Practiceon Advance Care Directives should be prepared under the proposed statutoryframework to provide guidance on the creation and execution of advance caredirectives. The Commission also recommends that the Code of Practice shouldbe prepared by the proposed Office of Public Guardian and should be based onthe recommendations of a multi-disciplinary Working Group established for thispurpose by the Office of Public Guardian with input from the Health ServiceExecutive, the Mental Health Commission and the Health Information andQuality Authority (HIQA) as envisaged under Head 39 of the Scheme of aMental Capacity Bill 2008. The Commission considers that input could also besought from, for example, the Medical Council, An Bord Altranais, patients‘groups, the Irish Hospice Foundation and HIQA.3.120 The Commission recommends that a Code of Practice on AdvanceCare Directives should be prepared under the proposed statutory framework toprovide guidance on the creation and execution of advance care directives. TheCommission also recommends that the Code of Practice should be prepared bythe proposed Office of Public Guardian and should be based on therecommendations of a multi-disciplinary Working Group established for thispurpose by the Office of Public Guardian with input sought from, for example,the Health Service Executive, the Medical Council, An Bord Altranais, patients‟groups, the Irish Hospice Foundation and HIQA.90
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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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efusal of medical treatment, subjec
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consents to or refuses medical trea
Page 54 and 55: (2) Autonomy, dignity and privacy(a
Page 56 and 57: (3) Presumption in favour of preser
Page 58 and 59: 2CHAPTER 2ADVANCE CARE DIRECTIVES,
Page 60 and 61: 2.07 The Commission recommends that
Page 62 and 63: 2.12 The Council of Europe‘s 2009
Page 64 and 65: donor understands the effect of mak
Page 66 and 67: should be referred to the High Cour
Page 68: 2.30 Another protection of importan
Page 71 and 72: dentist 3psychologist 4social care
Page 73 and 74: should be defined to include, but i
Page 75 and 76: chemotherapy or dialysis, antibioti
Page 77 and 78: Similarly, Power argues that there
Page 79 and 80: assist either health care professio
Page 81 and 82: approach met with broad approval an
Page 83 and 84: Practice on Advance Care Directives
Page 87 and 88: (other than charges and directions
Page 89 and 90: 3.64 The Commission concurs with th
Page 91 and 92: advance care directive involves a r
Page 93 and 94: eyond question that a court or a do
Page 95 and 96: close relationship that can exist b
Page 99 and 100: care directive. 105 The Commission
Page 101 and 102: the wishes or making their own deci
Page 103: sustaining treatment or whether the
Page 107 and 108: omission.‖ 5 The Supreme Court in
Page 109 and 110: who acted in good faith could be pr
Page 111 and 112: or health professional cannot, for
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
Page 126 and 127: Mental Health Act 2001Powers of Att
Page 128 and 129: ―basic care‖ includes, but is n
Page 130 and 131: (3) The scope of an advance care di
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
Page 140 and 141: www.lawreform.ie
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