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

when determining the capacity question. The first principle states that there is arebuttable presumption that an adult patient has the capacity to make a decisionto refuse medical treatment. The Commission notes that this is consistent withthe Commission‘s recommendation in its 2006 <strong>Report</strong> on Vulnerable Adults andthe Law 65 that mental capacity legislation contain a rebuttable presumption ofcapacity, 66 and this is included in the Government‘s Scheme of a MentalCapacity Bill 2008 which was published in September 2008. 671.51 Second, in determining whether a patient is deprived of capacity tomake a decision to refuse medical treatment, Laffoy J stated that the test is:―whether the patient‘s cognitive ability has been impaired to theextent that he or she does not sufficiently understand the nature,purpose and effect of the proffered treatment and the consequencesof accepting or rejecting it in the context of the choices available(including any alternative treatment) at the time the decision ismade.‖ 681.52 The Commission notes that this decision-specific cognitive test ofmental capacity is also consistent with the Commission‘s recommendation in its2006 <strong>Report</strong> on Vulnerable Adults and the Law and this is also included in theGovernment‘s Scheme of a Mental Capacity Bill 2008.1.53 The third principle set out by Laffoy J was that the three-stageapproach to the patient‘s decision-making process adopted in the English caseRe C, 69 which involved the refusal of an amputation, 70 is a ―helpful tool‖ inapplying that test. Laffoy J specifically noted that the Commission‘s proposedstatutory functional test of capacity (in the 2006 <strong>Report</strong> on Vulnerable Adultsand the Law 71 ) was consistent with the test in Re C. In applying Re C to thefacts of the case Laffoy J held, first, that Ms K did not sufficiently understandand retain the information given to her by the Hospital personnel as to thenecessity of a blood transfusion to preserve her life; second, that she did notbelieve that information and, in particular, that she did not believe that she waslikely to die without a blood transfusion being administered; and finally, that in65666768697071LRC 83-2006.See paragraph 1.08, above.Available at www.justice.ieCiting Lord Donaldson in Re T (refusal of medical treatment) [1992] 4 All ER 649.Re C (adult: refusal of treatment) [1994] 1 WLR 290.See the discussion in paragraph 1.28, above.See paragraph 1.08, above.25