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

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paragraph 3.13 (palliative care), paragraph 3.18 (life-sustaining treatment),paragraph 3.27 (circumstances in which ANH may be considered basic careand, as the case may be, life-sustaining treatment), paragraph 3.32 (DNRprocedure), paragraph 3.41 (unwritten advance care directives), paragraph 3.49(information to be included in a written advance care directive), paragraph 3.65(assessment of capacity), paragraph 3.93 (suggested review periods foradvance care directives), paragraph 3.96 (register of advance care directives)and paragraph 3.107 (disputes between a healthcare proxy and a health careprofessional).Powers of Court8.— On an application by any interested party under [this Part], 16 the Court 17may make a declaration as to whether an advance care directive —(a) exists,(b) is valid, or(c) is applicable to a specific treatment.Explanatory NoteThis section implements the recommendations in paragraph 3.87 concerningthe powers of the Court of Care and Protection envisaged by the Government‘sScheme of a Mental Capacity Bill 2008.1617The 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 is a reference to the Court of Care and Protection envisaged in theGovernment‘s Scheme of a Mental Capacity Bill 2008.121
Civil and criminal liability9.— (1) Nothing in [this Part] 18 shall be construed as imposing any criminalliability or civil liability arising from —(a) carrying out or continuing the treatment specified in an advancecare directive, or(b) failure to comply with the terms of an advance care directive.(2) Nothing in this Act shall be construed as affecting any civil liabilitythat may otherwise arise as a result of any common law duty or statutory duty(excluding the provisions of this Act) arising from —(a) carrying out or continuing the treatment specified in an advancecare directive, or(b) failure to comply with the terms of an advance care directive.(3) Nothing in this Act shall be construed as altering or affecting anycriminal liability that may otherwise arise, whether at common law or by virtue ofstatute law (excluding the provisions of this Act), arising from —(a) carrying out or continuing the treatment specified in an advancecare directive, or(b) failure to comply with the terms of an advance care directive.(4) Nothing in this Act shall be construed as preventing a relevantprofessional body from carrying out an investigation or inquiry into the conductof a health care professional who fails to comply with an advance care directive.(5) In any proceedings, whether civil or criminal, or in any investigationor inquiry, it is a full defence that the health care professional, acting in goodfaith, was unaware of the existence of the advance care directive at the time thespecified treatment was carried out or continued.Explanatory NoteSubsection (1) implements the recommendation in paragraph 4.05 that thelegislative framework does not give rise to any civil liability or criminal liability.18The use of the words ―this Part‖ would be correct if this draft Bill is incorporatedinto the Government‘s Scheme of a Mental Capacity Bill 2008.122
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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
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Similarly, Power argues that there
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assist either health care professio
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approach met with broad approval an
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Practice on Advance Care Directives
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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 113 and 114: follow an advance care directive is
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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
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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 138 and 139: Subsection (2) implements the recom
Page 140 and 141: www.lawreform.ie
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