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

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Medical Council has the power to impose one or more of the following sanctionson a medical practitioner:(a) ―an advice or admonishment, or a censure in writing;(b) a censure in writing and a fine not exceeding €5,000(c) the attachment of conditions to the practitioner‘sregistration, including restrictions on the practice ofmedicine that may be engage in by the practitioner;(d) the transfer of the practitioner‘s registration for a specifiedperiod;(e) the suspension of the practitioner‘s registration for aspecified period;(f) the cancellation of the practitioner‘s registration;(g) a prohibition from applying for a specified period for therestoration of the practitioner‘s registration.‖ 314.26 If the Medical Council imposes a sanction more punitive than anadvice, admonishment or censure, it must apply to the High Court to make thatdecision final. 324.27 The Medical Practitioners Act 2007 does not define ―professionalmisconduct.‖ Nevertheless guidance may be sought from O‟Laoire v MedicalCouncil. 33 Keane J set out four tests for establishing professional misconduct,the last of which may be appropriate for a patient wishing to complain against aphysician who has disregarded their advance care directive:―Conduct which could not properly be characterised as ‗infamous‘ or‗disgraceful‘ and which does not involve any degree of moralturpitude, fraud or dishonesty may still constitute ‗professionalmisconduct‘ if it is conduct connected with his profession in which themedical practitioner concerned has seriously fallen short, by omissionor commission, of the standards of conduct expected among medicalpractitioners.‖This test is included in the most recent edition of the Medical Council‘s Guide toEthical Conduct and Behaviour (2004).4.28 Under the Nurses Act 1985, the Fitness to Practice Committeecomposed of members of An Bord Altranais will determine whether a nurse isguilty of professional misconduct. 34 Upon the finding of professional misconduct,31323334Section 71 of the Medical Practitioners Act 2007.Section 74 of the Medical Practitioners Act 2007.High Court (Keane J) 27 January 1995 109.Section 38(1) of the Nurses Act 1985.99
the Board can erase the name of a nurse from the register permanently or for aspecific period of time. 35 The Board may also opt to advise, admonish orcensure a person in relation to their professional misconduct. 36 The Act,however, does provide a definition on professional misconduct. Similar powersare conferred on the Dental Council (under the Dentists Act 1985), thePharmaceutical Society of Ireland (under the Pharmacy Act 2007) and theHealth and Social Care Professionals Council (under the Health and SocialCare Professionals Act 2005).4.29 The Commission notes the conflict between ethical guidance andimposing sanctions on health care professionals for failing to follow an advancecare directive. The Commission, however, considers that this must be balancedagainst the risk that an advance care directive could become a hollowdocument, repeatedly ignored if there are no consequences for failing to followa valid and applicable advance care directive. The Commission thus is of theopinion that, while refusing to follow an advance care directive ought not to be amatter for criminal sanction, nevertheless the Commission is anxious that anadvance care directive should be followed provided it is valid and applicable. Inthis respect, the Commission has concluded that the relevant statutoryprofessional bodies, such as the Medical Council, An Bord Altranais, the DentalCouncil, the Pharmaceutical Society of Ireland and the Health and Social CareProfessionals Council, are best suited to deal with the relevant healthcareprofessional using relevant statutory powers of investigation and inquiry intoprofessional misconduct. The professional bodies will, the Commissionconsiders, be best suited to consider whether disregarding an advance caredirective in particular circumstances could amount to professional misconduct.4.30 The Commission recommends that the legislative framework foradvance care directives should not preclude a relevant statutory health careprofessional body from inquiring into or investigating whether the failure of ahealth care professional to comply with an advance care directive constitutesprofessional misconduct.53536Section 39(1) off the Nurses Act 1985.Section 41(1) of the Nurses Act 1985.100
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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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2.12 The Council of Europe‘s 2009
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Page 66 and 67: should be referred to the High Cour
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Page 73 and 74: should be defined to include, but i
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Page 77 and 78: Similarly, Power argues that there
Page 79 and 80: assist either health care professio
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Page 83 and 84: Practice on Advance Care Directives
Page 85 and 86: 3.48 The Commission recommends that
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 and 104: sustaining treatment or whether the
Page 105 and 106: (b) for the guidance of persons, in
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: follow an advance care directive is
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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