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

consents to or refuses medical treatment, he or she must be given all thenecessary medical information about the procedure or the implications ofrefusing the treatment. Crucially, the patient must understand the implications ofsuch a procedure. As Maclean has stated ―autonomy requires knowledge andnot information.‖ 1091.88 Traditionally, medical professionals, in particular doctors, have beenthe information givers. In recent years, the prevalence of medical information,whether in book form or on the internet, has resulted in people learning abouttreatment options from non-traditional methods. An informed decision can oftenbe made by reading such materials. What is important is that a personunderstands what they are refusing and what implications will arise. As alreadymentioned, in the Ward of Court case, a person has the right to make a decisionthat is contrary to medical advice, or to make a decision that may appearirrational.1.89 It has been argued that, if the right to refuse medical treatment isdriven by principles of self-determination and autonomy, ―the individual shouldbe allowed to chose how well informed the decision is.‖ 110 An informed decisionensures that the person understands the implications of their decision. 111Medical professionals must not, however, confuse an irrational decision with apatient who does not understand the implications of refusing treatment.1.90 In this respect, concern has been expressed that ―patients will belabelled as incompetent simply because they have not chosen the option thatsome other person (particularly their doctor) would have chosen.‖ 112 On thispoint, the Commission supports the view expressed in the Supreme Courtappended to that <strong>Report</strong>. Head 1(a) of the Scheme of the Mental Capacity Bill2008, published by the Department of Justice, Equality and Law Reform inSeptember 2008 (available at www.justice.ie), and which is based on theCommission‘s 2006 Scheme, proposes the following: ―it shall be presumed unlessthe contrary is established that a person has capacity.‖109110111112Mclean ―Autonomy, Consent and Persuasion‖ (2006) 13 European Journal ofHealth Law 321, at 326.Maclean ―Advance Directives and the Rocky Waters of Anticipatory Decision-Making‖ [2008] 16 Medical Law Review 1, at 14.Mclean has argued that this relatively minor infringement on autonomy is justifiedas it gives enhanced security to what can often be ―a fundamental life choice‖.Ibid, at 15.Morris ―Life and Death Situations: ―Die my Dear Doctor? That‘s the Last Thing IShall Do‖‖ (1996) 3 European Journal of Health Law 9, at 20.37