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

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Subsection (2) implements the recommendation in paragraph 4.20 that thelegislative framework does not affect any civil liability that might otherwise arise.Subsection (3) implements the recommendation in paragraph 1.75 that thelegislative framework does not alter or affect any criminal liability that mightotherwise arise. Subsection (4) implements the recommendation in paragraph4.30 that the legislative scheme does not prevent a relevant professional bodyfrom investigating or inquiring into a health care professional for failing tocomply with an advance care directive. Subsection (5) implements therecommendation in paragraph 4.13 that it will be a full defence in anyproceedings, investigation or inquiry that the health care professional, acting ingood faith, was unaware of the existence of the advance care directive at thetime.Enduring powers of attorney and advance care directives10.— (1) Subject to subsections (2) and (3), in the event of a conflict betweenthe terms of an enduring power of attorney executed under the Powers ofAttorney Act 1996 and an advance care directive made under [this Part], 19 effectshall be given to the enduring power of attorney.(2) Where it appears that a conflict arises between the terms of anenduring power of attorney executed under the Powers of Attorney Act 1996and an advance care directive made under [this Part], the donee of the enduringpower of attorney and the relevant health care professional (and, whereapplicable, the health care proxy) shall endeavour to resolve any apparentconflict.(3) Where the parties referred to in subsection (2) are unable to resolveany such apparent conflict, the matter shall be referred to the Court, 20 whichmay make a declaration as to the whether a conflict arises and, if such conflictarises, as to whether effect shall be given to the terms of the enduring power ofattorney or to the terms of the advance care directive.(4) An enduring power of attorney executed under the Powers ofAttorney Act 1996 may confer on the donee the power to make decisionsregarding life-sustaining treatment, organ donation and non-therapeuticsterilisation.19 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 2008.20 This is a reference to the Court of Care and Protection envisaged in the Government‘sScheme of a Mental Capacity Bill 2008.123
Explanatory NoteSubsections (1) to (3) implement the recommendations in paragraph 2.24 that:(a) in general an enduring power of attorney executed under the Powers ofAttorney Act 1996 takes priority over an advance care directive; (b) anyapparent conflict should initially be resolved informally; and (c) where theconflict cannot be resolved informally, the High Court has jurisdiction to dealwith the matter. Subsection (4) implements the recommendation in paragraph2.22 that an enduring power of attorney executed under the Powers of AttorneyAct 1996 may confer on the done the power to make decisions regarding lifesustainingtreatment, organ donation and non-therapeutic sterilisation; thisrecommendation could also be implemented by an amendment to Head 48(3)(ii)of the Government‘s Scheme of a Mental Capacity Bill 2008.124
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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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3.48 The Commission recommends that
Page 87 and 88: (other than charges and directions
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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 and 118: 5.07 The Commission recommends that
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 140 and 141: www.lawreform.ie
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