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

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used, 8 and the Commission has therefore concluded that this would, in general,be a suitable expression. The Commission notes that the word ―directive‖ candenote a legally enforceable statement, though allowing some degree offlexibility as to how it is implemented. 9 The Commission accepts that the word―directive‖ may appear somewhat formal (as opposed to, for example,―statement‖) but has concluded that it has the benefit of indicating an element ofenforceability while at the same time indicating a degree of flexibility.6. The Commission has also concluded that the term ―advancedirective‖ might not fully express the health care context within which theexpression of wishes arises. For that reason, the Commission has concludedthat some reference to the health care setting should be incorporated into theterm to be used. While the term ―advance healthcare directive‖ has someattractions in this respect, the Commission considers that, having regard to thewider care setting within which the expression of wishes may arise, such as ahospice care context, the term ―advance care directive‖ appears to be the mostsuitable term to use. For these reasons, the Commission uses that terms in this<strong>Report</strong> and also recommends that it be used in the context of any legislativeframework involving the advance expression of wishes of an individual in ahealth care or wider care setting.7. The Commission recommends that the term “advance care directive”be used in any legislative framework that deals with the advance expression ofwishes of an individual in a health care or wider care setting.COutline of this <strong>Report</strong>8. The Commission now turns to outline the main elements of this<strong>Report</strong> and its recommendations for reform.1.01 In Chapter 1, the Commission describes the origins and emergenceof advance care directives, in the context of advances in health care and themove towards informed decision making. The Commission places this in thewider setting of reform of the law on mental capacity, notably through theGovernment‘s Scheme of a Mental Capacity Bill 2008. The Commission alsogives some examples of advance care directives to emphasise that they are notconfined to the end-of-life setting. The Commission discusses the emergence of89See, for example, the Council of Europe‘s 2009 Draft Recommendation onPrinciples Concerning Continuing Powers of Attorney and Advance Directives 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, upon each Member State to which it is addressed,but shall leave to the national authorities the choice of form and methods.‖3
advance care directives in the United States and the United Kingdom and thegrowing emergence of relevant international instruments, in particular from theCouncil of Europe.9. The Commission also discusses the emergence of the debate onadvance care directives in Ireland, including relevant case law and theimportant work of bodies such as the Irish Council for Bioethics and the IrishHospice Foundation. The Commission concludes by recommending theintroduction of a legislative framework for advance care directives. In thisrespect, the Commission notes that its recommendations are based on the clearview that the proposed legislative framework is intended to be facilitative, and isaimed at encouraging the use of advance care directives in the wider context ofhealth care planning.10. The Commission emphasises that its proposals do not affect anyaction that is currently prohibited by the criminal law, and that they areapplicable to refusals of medical treatment and do not extend to treatmentrequests. The Chapter also sets out the general rights and principles that formthe basis for the Commission‘s detailed proposals in this <strong>Report</strong>.11. In Chapter 2, the Commission discusses how third parties, oftencalled health care proxies, may be involved in the decision-making process onwhich a person has expressed his or her wishes in the advance care directive.The Commission also discusses the relationship between the role of the healthcare proxy and that of two other separate but related third parties: the personalguardian envisaged in the Government‘s Scheme of a Mental Capacity Bill2008; and an attorney appointed under the Powers of Attorney Act 1996.12. In Chapter 3, the Commission discusses the main elements of theCommission‘s proposed legislative framework, including how it would deal withissues such as basic care and life-sustaining treatment. The Commission alsosets out the detailed requirements to be in place for an advance care directiveto be enforceable, notably whether the advance care directive has been validlymade and is applicable to the treatment that is to be given or continued. TheCommission concludes by discussing the scope of a proposed statutory Codeof Practice on Advance Care Directives that would support the proposedlegislative framework.13. In Chapter 4, the Commission discusses the legal effect of theproposed legislative framework. The Commission refers to the general law oncivil and criminal liability that will remain unaffected by its proposals. TheCommission then discusses the protections that should be in place for thosewho follow and implement a valid advance care directive, and what should bethe legal position where an advance care directive is not followed. Theconclusions reached are predicated on the Commission‘s clear view that theproposed legislative framework is intended to facilitate and encourage the use4
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Page 10 and 11: TABLE OF CONTENTSTable of Legislati
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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
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(other than charges and directions
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3.64 The Commission concurs with th
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advance care directive involves a r
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eyond question that a court or a do
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close relationship that can exist b
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care directive. 105 The Commission
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the wishes or making their own deci
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sustaining treatment or whether the
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(b) for the guidance of persons, in
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omission.‖ 5 The Supreme Court in
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who acted in good faith could be pr
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or health professional cannot, for
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follow an advance care directive is
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the Board can erase the name of a n
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directive would be likely to be enf
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Ensuring that the wishes of the mak
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APPENDIX DRAFT MENTAL CAPACITY (ADV
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Mental Health Act 2001Powers of Att
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―basic care‖ includes, but is n
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(3) The scope of an advance care di
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(ii) the name and address of that p
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(b) Without prejudice to section 5(
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paragraph 3.13 (palliative care), p
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Subsection (2) implements the recom
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