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

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(d)Current use of advance care directives in Ireland and calls for alegislative framework1.57 As O‘Flaherty J noted in the Ward of Court case the corollary to theright to consent is the right to refuse medical treatment. Although there iscurrently no legislative framework for advance care planning in Ireland, manypeople have prepared written advance care directives, sometimes with thebenefit of medical and legal advice, and general hospitals deal on a regularbasis with patients who verbally express treatment preferences, includingrefusals of treatment and ―do not resuscitate‖ requests. 73 In a study conductedin 2003, 27% of physicians had experience of advance care directives made byIrish patients. 74 The Commission is also aware that a number of hospitals inIreland have developed guidelines and protocols to deal with advance caredirectives, based on best practice models from other States, notably the UK. 751.58 In 2007, the Irish Council for Bioethics, having engaged in extensivepublic consultation and having conducted an opinion poll which supported theintroduction of a legal framework in this area, published its Opinion Is It Time forAdvance Healthcare Directives? 76 In this Opinion, the Council stated that the―lack of legislation makes the status of advance directives unclear‖ and that, inturn, the lack of clarity was a result of the limited number of cases that haddiscussed the issues of a patient‘s previous wishes regarding treatment. 77 TheCouncil therefore concluded that ―there is both a need and an opportunity todevelop a legal framework for advance directives to facilitate their use andimplementation.‖ 78 The Commission also notes that the Council‘s Opinioncontains some sample advance care directives, drawn from a number ofdifferent States. 7973747576777879Irish Council for Bioethics, Opinion, Is It Time for Advance Healthcare Directives?(2007), pp.6-9.Fennell, Butler, Saaidin and Sheikh, ―Dissatisfaction with Do Not AttemptResuscitation Orders: A Nationwide Study of Irish Consultant PhysicianPractices‖ (2006) 99(7) Irish Medical Journal 208.Information supplied to the Commission during the consultation process.Available at www.bioethics.ieIrish Council for Bioethics, Opinion, Is It Time for Advance Healthcare Directives?(2007), at 6.Ibid at 15.Ibid, pp.70-84 (Appendix 4).27
(6) Conclusions on the need for a legislative framework1.59 The Commission has already noted that the State‘s internationalobligations, in particular under the 2006 UN Convention on the Rights ofPersons with Disabilities and the Council of Europe‘s 2009 DraftRecommendation on Principles Concerning Continuing Powers of Attorney andAdvance Directives for Incapacity, 80 reinforce the arguments in favour oflegislation in this area.1.60 It is also clear that legislation on advance care directives should beplaced in the wider setting of the general law on mental capacity. In its 2006<strong>Report</strong> on Vulnerable Adults and the Law 81 the Commission indicated that itwould deal with advance care directives separately from its general proposalsfor reform made in that <strong>Report</strong>. Nonetheless, the Commission also included inthe <strong>Report</strong> and its Draft Scheme of a Mental Capacity Bill a general principlethat ―account must be taken of the person‘s past and present wishes where theyare ascertainable.‖ 82 This is consistent with Article 9 of the Council of Europe1997 Convention on Human Rights and Biomedicine and the 2009 DraftRecommendation on Principles Concerning Continuing Powers of Attorney andAdvance Directives for Incapacity. 83 The Commission very much welcomes thatHead 1 of the Government‘s Scheme of a Mental Capacity Bill 2008, whichproposes to implement the Commission‘s 2006 <strong>Report</strong>, also contains thislegislative guiding principle.1.61 On the basis of the review of relevant case law and developments atinternational level, including the Council of Europe‘s 2009 DraftRecommendation on Principles Concerning Continuing Powers of Attorney andAdvance Directives for Incapacity, 84 the Commission has concluded that thereis a growing momentum favouring the introduction of a legislative framework foradvance care directives. To the extent that case law in Ireland, notably In re aWard of Court (No.2) 85 and Fitzpatrick v FK, 86 has addressed this matter, it isclear that an advance care directive made by a person with full capacity would80818283848586See paragraphs 1.30-1.36, above.LRC 83-2006.LRC 83-2006, at paragraph 2.106; and Head 4 of the Draft Scheme of a MentalCapacity Bill (<strong>Report</strong> Appendix, p.171).See paragraphs 1.32-1.36, above.See paragraphs 1.32-1.36, above.[1996] 2 IR 79.Fitzpatrick v FK [2006] IEHC 392, [2008] 1 ILRM 68 and Fitzpatrick v FK (No 2)[2008] IEHC 104.28
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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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3.86 The Commission recommends that
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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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5.07 The Commission recommends that
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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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