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

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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 legislati<strong>on</strong> <strong>on</strong> ―clear and c<strong>on</strong>vincing evidence‖ ofa patient‘s wishes before permitting hospitals to withdraw life support, asMissouri had d<strong>on</strong>e in its Uniform Rights of the Terminally Ill Act. The SupremeCourt noted that written instructi<strong>on</strong>s – 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 C<strong>on</strong>gressenacted the Patient Self-Determinati<strong>on</strong> Act 1990, which partially addressed theproblem of educating both patients and doctors. It required health-careinstituti<strong>on</strong>s 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 pers<strong>on</strong> has an advance directive, it must be recorded in thatpers<strong>on</strong>‘s medical records.1.22 End-of-life cases in the United States c<strong>on</strong>tinue to provoke publicdebate and c<strong>on</strong>troversy. 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 c<strong>on</strong>diti<strong>on</strong>. In 1998, her husbandMichael Schiavo applied to the Florida courts to have her feeding tube removed.The applicati<strong>on</strong> was opposed by Terri Schiavo‘s family, and this led to extendedlitigati<strong>on</strong> in the State and federal courts, as well as legislative interventi<strong>on</strong>s 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 c<strong>on</strong>cerning advance care directives emerged in theUnited Kingdom, beginning with a number of cases and culminating inlegislati<strong>on</strong> enacted in 2005, the Mental Capacity Act 2005, which implemented a23242526497 US 261 (1990), at 278.Gallagher ―<strong>Advance</strong> <strong>Directives</strong> for Psychiatric <strong>Care</strong>: A Theoretical and PracticalOverview for Legal Professi<strong>on</strong>als‖ (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

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