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

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TABLE OF CONTENTSTable of LegislationxiTable of CasesINTRODUCTION 1CHAPTER 1A Background to the <strong>Report</strong> 1B Terminology 2C Outline of this <strong>Report</strong> 3ORIGINS OF ADVANCE CARE DIRECTIVES,SCOPE OF REPORT AND GENERAL PRINCIPLES 7A Introduction 7B Emergence of advance care directives 7(1) Advances in health care, informed decisionmaking and reform of the law on mental capacity 8(2) Examples of advance care directives 10C The development of the law on advance caredirectives 11(1) Developments in the United States 12(2) Developments in the UK 14(3) Developments in the Council of Europe 17(4) Legislation in Council of Europe Member States 20(5) The development of advance care directives inIreland 21(6) Conclusions on the need for a legislativeframework 28(7) The legislative framework in a wider health caresetting 29D Scope of the <strong>Report</strong> 31(1) Advance care directives and the law oneuthanasia and assisted suicide 32(2) Treatment requests and treatment refusals 33(3) Advance care directives and mental health care 35E Underlying Rights and Principles 36(1) The right to consent to, and to refuse, medicaltreatment 36(2) Autonomy, dignity and privacy 39(3) Presumption in favour of preserving life in theinterpretation of advance care directives 41xiiiviii
CHAPTER 2CHAPTER 3ADVANCE CARE DIRECTIVES, HEALTH CAREPROXIES AND OTHER THIRD PARTIES 43A Introduction 43B Personal Guardians and Third Party InformalDecision Making 43(1) The role of personal guardians 44(2) The role of third parties in informaldecision-making 45C Enduring Powers of Attorney 46(1) Powers under an EPA 47(2) Life-sustaining treatment 48(3) Conflict between EPAs and advance caredirectives 50D Advance care directives and a health care proxy 51THE DETAILED LEGISLATIVE FRAMEWORKFOR ADVANCE CARE DIRECTIVES 55A Introduction 55B Healthcare professional 55C Various health care situations and advance caredirectives 56(1) Basic Care 57(2) Palliative Care 58(3) Artificial Life-sustaining treatment 59D Detailed requirements for an advance caredirective to be enforceable 65(1) Unwritten and written advance care directives 66(2) Witnesses 70(3) Age 72(4) Capacity 73(5) Informed decision making 74(6) Specific requirements for the validity of anadvance care directive 76(7) The applicability of an advance care directive tospecific treatment 78(8) Revocation 82(9) Review 82(10)A register of advance care directives 83E Detailed issues concerning the healthcare proxy 85(2) Unwritten and written advance care directives 87(3) Discussion between maker and proxy 88(4) Relationship 88F Code of Practice 89ix
Page 1: ReportBIOETHICS:AD
Page 4 and 5: LAW REFORM COMMISSION‘S ROLEThe L
Page 6 and 7: LAW REFORM RESEARCH STAFFDirector o
Page 8 and 9: CONTACT DETAILSFurther information
Page 12 and 13: CHAPTER 4CONSEQUENCES OF ESTABLISHI
Page 15: TABLE OF CASESAiredale NHS Trust v
Page 19 and 20: advance care directives in the Unit
Page 22 and 23: CHAPTER 1ORIGINS OF ADVANCE CARE DI
Page 24 and 25: 1.08 The second major development i
Page 26 and 27: Refusal of treatments by pregnant w
Page 28 and 29: we believe Karen‘s choice, if she
Page 30 and 31: 1995 English Law Commission <strong
Page 32 and 33: a declaration that it would be lawf
Page 34 and 35: Disabilities. 42 The draft Recommen
Page 36 and 37: (5) The development of advance care
Page 38 and 39: 1.45 In the Supreme Court, Hamilton
Page 40 and 41: when determining the capacity quest
Page 42 and 43: (d)Current use of advance care dire
Page 44 and 45: e upheld. Indeed, this conclusion f
Page 46 and 47: services, the need for palliative c
Page 48 and 49: ecommendations in this Repo
Page 50 and 51: efusal of medical treatment, subjec
Page 52 and 53: 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,
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2.07 The Commission recommends that
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2.12 The Council of Europe‘s 2009
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donor understands the effect of mak
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should be referred to the High Cour
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2.30 Another protection of importan
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dentist 3psychologist 4social care
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should be defined to include, but i
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chemotherapy or dialysis, antibioti
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Similarly, Power argues that there
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assist either health care professio
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approach met with broad approval an
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Practice on Advance Care Directives
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(other than charges and directions
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3.64 The Commission concurs with th
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advance care directive involves a r
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eyond question that a court or a do
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close relationship that can exist b
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care directive. 105 The Commission
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the wishes or making their own deci
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sustaining treatment or whether the
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(b) for the guidance of persons, in
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omission.‖ 5 The Supreme Court in
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who acted in good faith could be pr
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or health professional cannot, for
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follow an advance care directive is
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the Board can erase the name of a n
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directive would be likely to be enf
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Ensuring that the wishes of the mak
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APPENDIX DRAFT MENTAL CAPACITY (ADV
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Mental Health Act 2001Powers of Att
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―basic care‖ includes, but is n
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(3) The scope of an advance care di
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(ii) the name and address of that p
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(b) Without prejudice to section 5(
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paragraph 3.13 (palliative care), p
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Subsection (2) implements the recom
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