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

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we believe Karen‘s choice, if she were competent to make it, would bevindicated by the law.‖ On that basis, the Court held that her death would not becaused by the withdrawal of artificial respiration but by her illness and, on thatbasis, made the order sought.(b)Legislative developments1.18 The Quinlan case highlighted the absence of legislation on advancecare directives. Within months, the first advance care directive legislation wasenacted by the Californian legislature, 17 with other states following this lead. In1985 the US Uniform Law Commissioners 18 drafted the Uniform Rights of theTerminally Ill Act, which was amended in 1989. The purpose of the Act was toprovide means by which a person could set out their preferences with regard tolife-sustaining medical treatment. 19 It also sought to provide a consistentapproach to end-of-life decision-making. 20 The Uniform Law Commissioners,acknowledged, however, that the scope of the Act was narrow as it was limitedto patients suffering from a terminal illness. 21(c)Cruzan v Director of Missouri Department of Health1.19 Over a decade after the Quinlan case, the decision of the USSupreme Court in Cruzan v Director of Missouri Department of Health 22 led to asecond generation of legislation on this issue. In that case, the family of NancyCruzan, who was in a persistent vegetative state, applied for a court order towithdraw life-sustaining medical treatment based on an earlier conversation inwhich Ms Cruzan had stated she did not wish to live if she would face life as a‗vegetable‘. The case involved the application of the Missouri Uniform Rights ofthe Terminally Ill Act, which was based on the 1985 Uniform Rights of theTerminally Ill Act.1.20 In Cruzan the US Supreme Court held that competent persons havea ―constitutionally protected liberty interest in refusing unwanted medical171819202122Natural Death Act 1976 (Cal).The National Conference of Commissioners on Uniform State Laws (NCCUSL),established in 1892, comprises over 300 lawyers appointed by each US stategovernment to research, draft and promote the enactment of uniform state laws inareas where uniformity as between each state in the US federal system isdesirable and practical. See generally www.nccusl.orgUniform Rights of the Terminally Ill Act 1985, at 1.Ibid.Ibid.497 US 261 (1990).13
treatment.‖ 23 This has been interpreted as implicitly establishing ―the right toengage in advance planning for incapacity.‖ 24 But the Supreme Court also heldthat states could insist in their legislation on ―clear and convincing evidence‖ ofa patient‘s wishes before permitting hospitals to withdraw life support, asMissouri had done in its Uniform Rights of the Terminally Ill Act. The SupremeCourt noted that written instructions – such as those provided in a living will –are persuasive evidence of an individual‘s ―prior expressed wishes‖ regardingmedical treatment but that the ―informal, casual statements her friends andfamily remembered‖ would be insufficient. 25 On that basis, the Court in Cruzanrefused to order the withdrawal of life-sustaining medical treatment.(d)Further legislative developments1.21 In the aftermath of Cruzan, the United States Federal Congressenacted the Patient Self-Determination Act 1990, which partially addressed theproblem of educating both patients and doctors. It required health-careinstitutions receiving federal funds to inform patients of their right to refuse lifesustainingtreatments and to complete advance care directives. The 1990 Actalso states that if a person has an advance directive, it must be recorded in thatperson‘s medical records.1.22 End-of-life cases in the United States continue to provoke publicdebate and controversy. The most high-profile in recent years involved TerriSchiavo, a Florida woman who, having suffered a cardiac collapse at her homein 1990, was later diagnosed as being in a PVS condition. In 1998, her husbandMichael Schiavo applied to the Florida courts to have her feeding tube removed.The application was opposed by Terri Schiavo‘s family, and this led to extendedlitigation in the State and federal courts, as well as legislative interventions atState and federal level. Ultimately, in 2005, a Florida court made a final order toremove the feeding tube and Terri Schiavo died shortly after this. 26(2) Developments in the UK1.23 A similar pattern concerning advance care directives emerged in theUnited Kingdom, beginning with a number of cases and culminating inlegislation enacted in 2005, the Mental Capacity Act 2005, which implemented a23242526497 US 261 (1990), at 278.Gallagher ―Advance Directives for Psychiatric Care: A Theoretical and PracticalOverview for Legal Professionals‖ (1998) 4 Psychol Pub Pol‘y & L 746 at 796.Ibid, at 266-268.See generally Caplan, McCartney, Sisti (ed), The Case of Terri Schiavo: Ethics atthe End of Life (2006).14
Page 1: ReportBIOETHICS:AD
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Page 8 and 9: CONTACT DETAILSFurther information
Page 10 and 11: TABLE OF CONTENTSTable of Legislati
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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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