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

(3) The scope of an advance care directive shall extend to theexpression of instructions or wishes by the person that if—(a) at a later time and in such circumstances as he or she may specify,a specified treatment is proposed to be carried out or continued by aperson providing health care for him or her, and(b) at that time he or she lacks capacity to consent to the carrying out orcontinuation of the treatment,the specified treatment is not to be carried out or continued.(4) The person may withdraw or alter an advance care directive,whether in whole or in part, at any time when he or she has capacity to do sowithin the meaning of this Act. 10(5) The provisions in this section are subject to the relevant conditionsand requirements in section 5.Explanatory NoteSubsection (1) implements the recommendations in paragraphs 1.63, 3.61 and3.65 that the legislative framework for advance care directives forms part of thegeneral reform of mental capacity law in the Government‘s Scheme of a MentalCapacity Bill 2008; (including a presumption of capacity); and that it be limited,for the time being, to persons who are at least 18 years of age. Subsection (2)implements the recommendation in paragraph 3.41 that an advance caredirective need not be made in writing. This is consistent with the Council ofEurope‘s 2009 Draft Recommendation on Principles Concerning ContinuingPowers of Attorney and Advance Directives for Incapacity. Subsection (3)implements the recommendation in paragraph 1.82 that the legislativeframework applies to refusals of treatment. Subsection (4) implements therecommendation in paragraph 3.89 on the withdrawal or alteration of anadvance care directive.Conditions and requirements for advance care directives5.— (1) For the purposes of [this Part] 11 an advance care directive is valid if—10 The reference to ―capacity as defined in this Act‖ is to the definition of ―capacity‖ inHead 2 of the Government‘s Scheme of a Mental Capacity Bill 2008.11 The use of the words ―this Part‖ would be correct if this draft Bill is incorporated intothe Government‘s Scheme of a Mental Capacity Bill 2008.115