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

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(3) Conclusion4.19 The Commission notes that the current law contains provisions whichmay cover advance care directives and the failure of a health care professionalto follow an advance care directive. As the Commission has outlined above,applying the current law to advance care directives is problematic. However theCommission is of the opinion that the proposed statutory framework should notaffect any criminal or civil liability that may arise as a result of any currentcommon law or statutory duty arising from carrying out or continuing thetreatment specified in the advance care directive or from a failure to comply withthe terms of the advance care directive.4.20 The Commission recommends that the proposed statutory frameworkshould not affect any criminal or civil liability that may arise as a result of anycurrent common law or statutory duty arising from carrying out or continuing thetreatment specified in the advance care directive or from a failure to comply withthe terms of the advance care directive.DConsequences for failing to follow an advance care directive4.21 In the Consultation Paper the Commission noted that the purpose ofan advance care directive is to ensure that a person retains autonomy overfuture medical treatments. Thus, if a healthcare professional refuses to followan advance care directive, the autonomy of the person is infringed. 28 As theIrish Council for Bioethics noted:―If the wishes of an individual as outlined in an advance care directiveare not respected, this would enable others to superimpose their owntreatment decisions on an individual, at a time when it would bedifficult for a now incompetent adult to effectively oppose suchdecisions. The rights to bodily integrity and privacy lend support to amoral emphasis on an individual‘s autonomy in medical decisionmaking.Treating patients without their consent would breach theserights, thus, violating their dignity and displaying a lack of respect forthe wishes of the individual.‖ 294.22 Submissions received by the Commission during the consultationprocess on possible consequences were mixed. Particular apprehension wasexpressed at any consequences which mightr be perceived as punishing themedical profession for keeping a patient alive. Others felt that the failure to2829Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 5.61.Irish Council for Bioethics Is it Time for Advanced Healthcare Directives? (2007),at 14.97
follow an advance care directive is an infringement of a person‘s constitutionalrights, and that consequences must, therefore, follow. The Commissionacknowledges that consequences for failing to follow an advance care directiveare necessary to ensure that a patient‘s wishes are followed. The Commissionhowever notes that any such consequences should not violate the duty of carea healthcare professional owes towards a patient and the oath that a doctormust take.(1) Health Act 20044.23 Section 46(1) of the Health Act 2004 states that―Any person who is being or was provided with a health or personalsocial service by the [Health Service] Executive or by a serviceprovider or who is seeking or has sought provision of such servicemay complain, in accordance with the procedures established underthis Part, about any action of the Executive or a service provider that-(a) it is claimed, does not accord with fair and soundadministrative practice, and(b) adversely affects or affected that person.‖It is notable that section 48(1)(b) of the 2004 Act states that a person may notcomplain about ―a matter relating solely to the exercise of clinical judgement bya person acting on or behalf of the Executive or a service provider.‖ Thus itwould appear that a complaint could not be made under the Health Act 2004 ifan advance care directive was not followed.(2) Professional Misconduct4.24 The Irish Medical Council guidance states that professionalmisconduct is―(a) conduct which doctors of good experience, competence andgood repute consider disgraceful or dishonourable; and/or(b) Conduct connected with his or her profession in which the doctorconcerned has seriously fallen short by omission or commission ofthe standards of conduct expected among doctors.‖ 304.25 Section 57 of the Medical Practitioners Act 2007 states that anyperson (including the Council) may make a complaint to the PreliminaryProceedings Committee (PPC) on the grounds of professional misconduct.Upon receiving a report from the Fitness to Practice Committee (FCC), the30Medical Council A Guide to Ethical Behaviour and Conduct, 6 th edition, 2004, atparagraph 1.5.98
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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
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(2) Autonomy, dignity and privacy(a
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(3) Presumption in favour of preser
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2CHAPTER 2ADVANCE CARE DIRECTIVES,
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2.07 The Commission recommends that
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Page 99 and 100: care directive. 105 The Commission
Page 101 and 102: the wishes or making their own deci
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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 124 and 125: APPENDIX DRAFT MENTAL CAPACITY (ADV
Page 126 and 127: Mental Health Act 2001Powers of Att
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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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