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

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services, the need for palliative care to be made available in all care settings topersons with dementia and the health and other effects of long term caring oncarers. In the specific context of this <strong>Report</strong>, the Forum is also addressing DoNot Resuscitate Orders.1.69 The consultations involved in the Forum will conclude at the end of2009. Regional consultations will begin in 2010 with a final <strong>Report</strong> scheduled tobe published in April 2010. This <strong>Report</strong> will aim to reflect the views and issuesemerging from the forum workshops and submissions. A National Coalition willthen be established to advance the work of the Forum. In view of the widescope of the Forum‘s deliberations, and its emphasis on planning at end of life,it is clear that advance care directives will form an element of the analysis forthe IHF‘s <strong>Report</strong>.1.70 The Commission recognises the importance of the wider healthcareplanning framework within which its proposals on advance care directivesshould be placed. Indeed, this wider setting formed an important part of thediscussion at the Commission‘s Annual Stakeholder Conference in 2008, inwhich the provisional recommendations in the Consultation Paper werediscussed. While the legislative framework envisaged by the Commission maybe limited to refusals of treatment (for the reasons identified below), 94 this doesnot, for example, preclude the process outlined briefly here of good health careplanning between medical professional and their patients. Thus, the proposedlegislative framework does not prevent a person from expressing their wishesconcerning future medical treatment in the wider context of his or her healthcare planning. Any legislative framework on advance care directives must,therefore, be facilitative in nature and be seen in the wider setting of overallhealth care planning and the emergence of the practice of developing individualcare plans between a medical professional and his or her patient.1.71 The Commission recommends that the proposed statutory frameworkon advance care directives should be facilitative in nature and be seen in thewider context of a process of health care planning by an individual, whether in ageneral health care setting or in the context of hospice care.DScope of the <strong>Report</strong>1.72 In this Part, the Commission discusses the scope of therecommendations in this <strong>Report</strong>. The Commission emphasises that therecommendations do not propose to change the effect of any act that iscurrently prohibited by the criminal law. The Commission then points out thatthe proposed legislative framework should apply to treatment refusals and that,94See paragraphs 1.76-1.82, below.31
for various practical reasons, it will not encompass advance requests fortreatment. The third element concerning the scope of the <strong>Report</strong> is that theCommission considers that advance care directives concerning mental healthtreatment (which has been legislated for in other States) deserve separatediscussion and consideration, and have been excluded from the Commission‘scurrent review of the law.(1) Advance care directives and the law on euthanasia and assistedsuicide1.73 In the Consultation Paper, the Commission noted that euthanasia isunlawful in Ireland and would, depending on the context, constitute eithermurder or involuntary manslaughter. 95 In the Consultation Paper theCommission also noted that there is an extremely important distinction betweenassisted suicide, which is also unlawful, and an advance care directive thatinvolves a refusal of life-sustaining treatment. 96 As noted by Lord Goff in theEnglish case Airedale NHS Trust v Bland: 97―...in cases of this kind, there is no question of the patient havingcommitted suicide, nor therefore of the doctor having aided orabetted him in doing so. It is simply that the patient has, as he isentitled to, declined to consent to treatment which might or wouldhave the effect of prolonging life, and the doctor has, in accordancewith his duty, complied with the patient‘s wishes.‖ 981.74 In In re a Ward of Court (No.2), 99 the Supreme Court alsoemphasised this important distinction, and the Commission fully supports thisview. Thus, where a person with capacity refuses treatment that might or wouldhave the effect of prolonging life and the person dies, he or she has notcommitted suicide and any health care professional who complies with theperson‘s wishes has acted lawfully and has not been involved in any criminalact. The Commission reaffirms in this respect that legislation regarding advancecare directives which is consistent with this important distinction would not alterexisting law, under which euthanasia and assisted suicide constitute forms ofhomicide. The Commission therefore emphasises that its final9596979899Consultation Paper on Bioethics: Advance Care Directives (LRC CP 51-2008), atparagraph 1.19.Ibid, at paragraph 1.20.[1993] 1 All ER 82.Ibid at 866.[1996] 2 IR 79.32
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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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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