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

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1.08 The second major development in health care treatment in recentdecades has involved the movement towards the view that patients have theright to make informed decisions about their treatment. This involves asignificant shift from a paternalistic approach that decisions about health careoptions and treatment were primarily for health care professionals towards theview that the patient must be actively engaged in a process that leads toinformed decision making about care and treatment options. The Commissionhas previously supported this important development in its <strong>Report</strong> onVulnerable Adults and the Law, 2 and contained the Scheme of a MentalCapacity Bill that included a general presumption of capacity and a requirementthat the assessment of capacity should be based on a functional approach, thatis, whether the person understands the decision being considered, includinghealth care decisions, at the time it is being made.1.09 The Commission also recommended that the current Wards of Courtsystem, administered primarily under the Lunacy Regulation (Ireland) Act 1871should be replaced because it is based on the paternalistic approach tocapacity and involves the complete removal of decision-making capacity froman individual and the operation of an extreme substitute decision makingprocess under the control of the High Court. The Commission recommendedthat a new form of decision making process, involving an appointed PersonalGuardian to be supervised by a standard-setting Office of Public Guardian,should be put in place. The Personal Guardian would act as an assistingdecision maker in conjunction with the individual involved where this remainedpossible, and would only become a substitute decision maker where it is clearthat the individual no longer has any functional capacity. This graduatedapproach to the assessment of capacity-loss, and the involvement in decisionmaking of a third party Personal Guardian or proxy, is consistent with themaximisation of informed decision making.1.10 The Commission very much welcomes that this approach has beenincorporated into the Government‘s Scheme of a Mental Capacity Bill 2008which was published in September 2008. 3 The enactment of such legislationwould also fulfil the State‘s general international obligations under, for example,23LRC 83-2006.Available at www.justice.ie9
the 2006 UN Convention on the Rights of Persons with Disabilities 4 and relevantCouncil of Europe standards. 51.11 The Commission‘s 2006 <strong>Report</strong> on Vulnerable Adults and the Law ispredicated on the view that the presumption of capacity, and the functionalassessment of capacity, is required to support informed decision making. TheCommission also acknowledged that the specific issue of how this approachwould apply in the context of advance care directives needed furtherconsideration. The Commission noted that, at that time, the Irish Council forBioethics had begun work on this area and that it would be appropriate topostpone further analysis in that light. 6 As discussed in Part C below, theCouncil published an Opinion on this matter in 2007 and the Commission alsoreceived submissions during 2007 indicating that this was an area suitable forinclusion in the Commission‘s Third Programme of Law Reform 2008-2014. Asis apparent from the detailed discussion in Part C, below, it is important toemphasise that any proposals on advance care directives should be seen in thecontext of reform of the law on mental capacity generally, because of the closelinkage between issues such as capacity, consent to treatment, refusal oftreatment and the appointment of proxies or attorneys by a person with capacityto represent their views in the event of their incapacity.(2) Examples of advance care directives1.12 While much of the literature on advance care directives centresaround the end-of-life setting (because many of the high-profile cases haveinvolved end-of-life decisions) the Commission emphasises that advance caredirectives are not confined to this setting. Examples of advance care directivesthat have arisen in practice include:Refusal of blood transfusions 7Refusal of a leg amputation 845678See <strong>Report</strong> on Vulnerable Adults and the Law (LRC 83-2006), paragraphs 1.45-1.48.See the discussion in paragraph 1.33, below, of the Council of Europe‘s 2009Draft Recommendation on Principles Concerning Continuing Powers of Attorneyand Advance Directives for Incapacity.<strong>Report</strong> on Vulnerable Adults and the Law (LRC 83-2006), paragraph 3.36.See Fitzpatrick v FK [2006] IEHC 392, [2008] 1 ILRM 68 and Fitzpatrick v FK (No2) [2008] IEHC 104, discussed at paragraphs 1.49-1.55, below.See Re C [1994] 1 WLR 290 (in which the patient who refused the amputationsurvived), discussed at paragraph 1.29, below.10
Page 1: ReportBIOETHICS:AD
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Page 8 and 9: CONTACT DETAILSFurther information
Page 10 and 11: TABLE OF CONTENTSTable of Legislati
Page 12 and 13: CHAPTER 4CONSEQUENCES OF ESTABLISHI
Page 15: TABLE OF CASESAiredale NHS Trust v
Page 19 and 20: advance care directives in the Unit
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Page 26 and 27: Refusal of treatments by pregnant w
Page 28 and 29: we believe Karen‘s choice, if she
Page 30 and 31: 1995 English Law Commission <strong
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Page 40 and 41: when determining the capacity quest
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Page 44 and 45: e upheld. Indeed, this conclusion f
Page 46 and 47: services, the need for palliative c
Page 48 and 49: ecommendations in this Repo
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Page 52 and 53: consents to or refuses medical trea
Page 54 and 55: (2) Autonomy, dignity and privacy(a
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Page 58 and 59: 2CHAPTER 2ADVANCE CARE DIRECTIVES,
Page 60 and 61: 2.07 The Commission recommends that
Page 62 and 63: 2.12 The Council of Europe‘s 2009
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Page 66 and 67: should be referred to the High Cour
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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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