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

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used, 8 and the Commissi<strong>on</strong> has therefore c<strong>on</strong>cluded that this would, in general,be a suitable expressi<strong>on</strong>. The Commissi<strong>on</strong> notes that the word ―directive‖ candenote a legally enforceable statement, though allowing some degree offlexibility as to how it is implemented. 9 The Commissi<strong>on</strong> accepts that the word―directive‖ may appear somewhat formal (as opposed to, for example,―statement‖) but has c<strong>on</strong>cluded that it has the benefit of indicating an element ofenforceability while at the same time indicating a degree of flexibility.6. The Commissi<strong>on</strong> has also c<strong>on</strong>cluded that the term ―advancedirective‖ might not fully express the health care c<strong>on</strong>text within which theexpressi<strong>on</strong> of wishes arises. For that reas<strong>on</strong>, the Commissi<strong>on</strong> has c<strong>on</strong>cludedthat some reference to the health care setting should be incorporated into theterm to be used. While the term ―advance healthcare directive‖ has someattracti<strong>on</strong>s in this respect, the Commissi<strong>on</strong> c<strong>on</strong>siders that, having regard to thewider care setting within which the expressi<strong>on</strong> of wishes may arise, such as ahospice care c<strong>on</strong>text, the term ―advance care directive‖ appears to be the mostsuitable term to use. For these reas<strong>on</strong>s, the Commissi<strong>on</strong> uses that terms in this<str<strong>on</strong>g>Report</str<strong>on</strong>g> and also recommends that it be used in the c<strong>on</strong>text of any legislativeframework involving the advance expressi<strong>on</strong> of wishes of an individual in ahealth care or wider care setting.7. The Commissi<strong>on</strong> recommends that the term “advance care directive”be used in any legislative framework that deals with the advance expressi<strong>on</strong> ofwishes of an individual in a health care or wider care setting.COutline of this <str<strong>on</strong>g>Report</str<strong>on</strong>g>8. The Commissi<strong>on</strong> now turns to outline the main elements of this<str<strong>on</strong>g>Report</str<strong>on</strong>g> and its recommendati<strong>on</strong>s for reform.1.01 In Chapter 1, the Commissi<strong>on</strong> describes the origins and emergenceof advance care directives, in the c<strong>on</strong>text of advances in health care and themove towards informed decisi<strong>on</strong> making. The Commissi<strong>on</strong> places this in thewider setting of reform of the law <strong>on</strong> mental capacity, notably through theGovernment‘s Scheme of a Mental Capacity Bill 2008. The Commissi<strong>on</strong> alsogives some examples of advance care directives to emphasise that they are notc<strong>on</strong>fined to the end-of-life setting. The Commissi<strong>on</strong> discusses the emergence of89See, for example, the Council of Europe‘s 2009 Draft Recommendati<strong>on</strong> <strong>on</strong>Principles C<strong>on</strong>cerning C<strong>on</strong>tinuing Powers of Attorney and <strong>Advance</strong> <strong>Directives</strong> forIncapacity, discussed in Chapter 1, below.Thus, Article 249 of the EC Treaty states that an EU Directive ―shall be binding,as to the result to be achieved, up<strong>on</strong> each Member State to which it is addressed,but shall leave to the nati<strong>on</strong>al authorities the choice of form and methods.‖3

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