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

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5.14 The Commission recommends that the legislative framework foradvance care directives contains a very wide definition of healthcareprofessional, which includes those involved in the medical, spiritual, emotionaland psychological care of a person. [paragraph 3.05]5.15 The Commission recommends that basic care cannot be refusedunder an advance care directive. The Commission recommends that basic careshould be defined to include, but is not limited to, warmth, shelter, oral nutritionand hydration and hygiene measures. The Commission also recommends thatthe proposed Code of Practice on Advance Care Directives should containdetailed guidance for health care professionals on what constitutes basic care.[paragraph 3.09]5.16 The Commission recommends that palliative care should beregarded as part of basic care. The Commission also recommends that theproposed Code of Practice on Advance Care Directives should include detailedguidance on what constitutes palliative care. [paragraph 3.13]5.17 The Commission recommends that an advance care directive mayinclude a refusal of life-sustaining treatment, that is, treatment which is intendedto sustain or prolong life and that supplants or maintains the operation of vitalbodily functions that are incapable of independent operation. The Commissionalso recommends that the proposed Code of Practice on Advance CareDirectives should include detailed guidance on the types of treatment that comewithin the definition of life-sustaining treatment. [paragraph 3.18]5.18 The Commission recommends that the proposed Code of Practice onAdvance Care Directives should provide guidance on the circumstances inwhich artificial nutrition and hydration (ANH) may be considered to be basiccare and, as the case may be, artificial life-sustaining treatment. In decidingwhether ANH is basic care or artificial life-sustaining treatment, the decisionshould be based on the health care professional‘s medical and professionaljudgment only. [paragraph 3.27]5.19 The Commission recommends that the Code of Practice on AdvanceCare Directives should contain guidelines on the process of putting in place aDNR order. The Commission also recommends that the guidelines shouldprovide that before a DNR order is made there is a consultative process, thatthis is documented on the patient‘s chart and that it is made by the most senioravailable member of the healthcare team. [paragraph 3.32]5.20 The Commission recommends that, subject to the situation of lifesustainingtreatment, an unwritten advance care directive is enforceable underthe proposed statutory framework. The Commission also recommends that theproposed Code of Practice on Advance Care Directives should includeguidance on the types of circumstances in which an unwritten advance care103
directive would be likely to be enforceable under the proposed statutoryframework. [paragraph 3.41]5.21 The Commission recommends that an advance care directive thatinvolves a refusal of life-sustaining medical treatment must be in writing (andthat ―writing‖ includes both manual and automated record-keeping processes).[paragraph 3.48]5.22 The Commission recommends that, where an individual chooses toprepare a written advance care directive (or is required to do so because itinvolves life-sustaining treatment), it need not be in a prescribed form but mustcontain certain core information, such as: name of person making the advancecare directive, date of birth, address, health care proxy (if any), and name andaddress of general practitioner or other health care professional. TheCommission also recommends that the proposed Code of Practice on AdvanceCare Directives should contain guidance on what should be included in theadvance care directive. [paragraph 3.49]5.23 The Commission recommends that a refusal of treatment recordedon a person‘s medical charts or notes may be deemed to be a written advancecare directive and that a clear written statement in the form of for example, a ‗noblood‘ card is deemed to be an advance care directive. [paragraph 3.50]5.24 The Commission recommends that an advance care directive whichinvolves the refusal of life-sustaining treatment must be witnessed by at leastone person. [paragraph 3.59]5.25 The Commission recommends that, for the time being, the legislativeframework should apply only to those aged 18 years or more. [paragraph 3.61]5.26 The Commission recommends that the rebuttable presumption ofmental capacity should expressly apply to the maker of an advance caredirective. The Commission also recommends that the proposed Code ofPractice on Advance Care Directives should include guidance on theassessment of the capacity of an individual in this context. [paragraph 3.65]5.27 The Commission recommends that makers of advance caredirectives should be encouraged to consult with a health care professional. Inthe case of advance care directives refusing life-sustaining medical treatment,the Commission recommends that the decision must be an informed decision.[paragraph 3.70]5.28 The Commission recommends that an advance care directive will bevalid whereThe author of the advance care directive had capacity at the time of itsmaking104
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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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donor understands the effect of mak
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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 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 97 and 98: 3.86 The Commission recommends that
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 and 114: follow an advance care directive is
Page 115 and 116: the Board can erase the name of a n
Page 117: 5.07 The Commission recommends that
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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