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

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Refusal of treatments by pregnant women 9Refusal of treatment or procedures which may affect a woman‘sfertility 10Do Not Resuscitate (DNR) OrdersWithdrawal of all life-sustaining treatment. 111.13 Thus, advance care directives apply in a number of settings: in thecontext of continuing care for those with chronic medical conditions which arenot life-threatening; for those who wish to refuse certain treatments in a specificsetting, such as pregnancy; and for those who wish to express their views in anend-of-life context. While end-of-life settings for advance care directives aremost likely to produce the most debate and discussion – and requirements forclose regulation – advance care directives can also arise in a continuing-lifesetting also.CThe development of the law on advance care directives1.14 In this Part, the Commission discusses the emergence of advancecare directives in other States, notably the United States and the UnitedKingdom, largely associated with a number of high-profile court cases involvingend-of-life treatment. The Commission then addresses the emergence ofinternational instruments in this area, notably the Council of Europe‘s 2009 DraftRecommendation on Principles Concerning Continuing Powers of Attorney andAdvance Directives for Incapacity, which seeks to build on the 1997 Conventionon Human Rights and Biomedicine and a 1999 Recommendation on MentalCapacity. The Commission then discusses the emergence of the debate onadvance care directives in Ireland from the 1980s, which has also developed byreference to a number of high-profile end-of-life cases.1.15 In 1967, in response to the advances in medical science alreadymentioned, Luis Kutner, a US attorney, drafted the first ―living will.‖ It wasintended to serve a number of purposes. First, it was intended to take theburden of making end of life decisions from physicians and relatives. Second, aliving will enabled a person to become part of the decision making process,even after they had lost capacity or, perhaps, merely the ability to communicate.91011Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.Code of Practice for Mental Capacity Act 2005, at paragraph 9.7.See Re AK [2001] 1 FLR 129, at paragraph 1.30.11
Third, the existence of living wills helped educate medical professionals that lifeprolongingtreatment is not always preferable. 121.16 As already noted, the Commission‘s <strong>Report</strong> on Vulnerable Adults andthe Law 13 supports a presumption of capacity and a functional approach todetermining capacity. This is based, in turn, on the view that decision-makingshould remain for as long as possible in the hands of the individual involved,that assisted decision making (through a Personal Guardian) should be the nextstep, and that substitute decision making should be postponed for as long aspossible. The Commission recognises that this approach is based on theacceptance that substituted decision-making may be flawed, 14 because thedecisions of the substitute decision-maker may not reflect the views of theindividual but rather the personal opinions of the substitute. 15 This has, in turn,also contributed to the growth in support for the advanced expression of apatient‘s views.(1) Developments in the United States(a)Quinlan case1.17 Support for advance care directives (or ―living wills‖ as they arecommonly called in the United States) grew in the aftermath of a number ofcourt decisions that involved the withdrawal of life support treatment. In 1976, inRe Quinlan 16 the father of Karen Ann Quinlan, a 22 year-old woman who was ina persistent vegetative state, applied for an order to discontinuance ―allextraordinary medical treatment‖ for her. He argued that the withdrawal oftreatment was what his daughter would have wanted had she been able toexpress her wishes. Her physicians had refused to turn off her artificialrespirator, fearing that ending treatment might involve criminal liability andwould be contrary to medical ethical practice and standards. The New JerseySupreme Court held that the State‘s undoubted interest in preserving life―weakens and the individual‘s right to privacy grows as the degree of bodilyinvasion increases and the prognosis dims. Ultimately there comes a point atwhich the individual‘s rights overcome the state interest. It is for that reason that1213141516Morgan Capron ―Advance Directives‖ in Kulise and Sige (eds) A Companion toBioethics (1998), at 263.LRC 83-2006.Vig, Taylor, Starks, Hopley, Fryer-Edwards ―Beyond Substituted Judgment: HowSurrogates Navigate End-Of-Life Decision-Making‖ (2006) 54 (11) Journal of theAmerican Geriatrics Society 1688.Ibid.355 A.2d 647 (1976).12
Page 1: ReportBIOETHICS:AD
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Page 8 and 9: CONTACT DETAILSFurther information
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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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