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

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―basic care‖ includes, but is not limited to, warmth, shelter, oral nutrition andhydration and hygiene measures, and palliative care;―advance care directive‖ means a valid and applicable advance expression ofinstructions or wishes, made by a person with capacity in accordance withsections 4 and 5, concerning health care issues that may arise in the event ofthe person‘s incapacity;―health care‖ excludes mental health care and mental health services within themeaning of the Mental Health Act 2001;―health care professional‖ means a person involved in the medical, spiritual,emotional or psychological care of a person;―relevant professional body‖ includes An Bord Altranais, the Dental Council, theMedical Council, the Pharmaceutical Society of Ireland, and the Health andSocial Care Professionals Council,―specified treatment‖ includes life-sustaining treatment, that is, treatment whichis intended to sustain or prolong life and that supplants or maintains theoperation of vital bodily functions that are incapable of independent operation,―valid‖ has the meaning assigned by section 5,―writing‖ includes both manual and automated record-keeping processes.Explanatory NoteThis section implements the recommendations in: paragraph 1.82 (generaldefinition of ―advance care directive‖ which draws on the Council of Europe‘s2009 Draft Recommendation on Principles Concerning Continuing Powers ofAttorney and Advance Directives for Incapacity); paragraph 1.84 (exclusion ofmental health care); paragraph 3.05 (definition of ―healthcare professional‖);paragraphs 3.09 and 3.13 (definition of ―basic care‖); paragraph 3.18 (inclusionof life-sustaining treatment as specified treatment); and paragraph 3.48(definition of ―writing‖).113
Purpose and guiding principles3. — Every person concerned in the application of [this Part] 6 shall, in additionto having regard to the general guiding principles for this Act, 7 have regard tothe following—(a) that the purpose of [this Part] 8 is to facilitate the use of advance caredirectives in the wider setting of a process of health care planning by anindividual,(b) that an advance care directive should be made on the basis ofinformed decision-making,(c) that a person is entitled to refuse medical treatment for reasons thatappear not to be rational or to be based on sound medical principles, and(d) that a person is entitled to refuse medical treatment for religiousreasons.Explanatory NoteThis section implements the recommendation in paragraph 1.71 concerning thefacilitative purpose of the legislative framework. It also implements therecommendations on guiding principles in paragraphs 1.92 and 1.100.Making an advance care directive, general scope and withdrawal4.—(1) Any person who has reached the age of 18 and who has capacity withinthe meaning of this Act 9 may make an advance care directive.(2) An advance care directive need not be made in writing and may beexpressed in plain, non-technical, language.6789The use of the words ―this Part‖ would be correct if this draft Bill is incorporatedinto the Government‘s Scheme of a Mental Capacity Bill 2008.This refers to the guiding principles in Head 1 of the Government‘s Scheme of aMental Capacity Bill 2008.The use of the words ―this Part‖ would be correct if this draft Bill is incorporatedinto the Government‘s Scheme of a Mental Capacity Bill 2008.The reference to ―capacity as defined in this Act‖ is to the definition of ―capacity‖in Head 2 of the Government‘s Scheme of a Mental Capacity Bill 2008.114
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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
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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
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 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 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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