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

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(2) Autonomy, dignity and privacy(a)Autonomy1.94 The concept of autonomy recognises that a person has a generalright to decide how to live their life. In the context of medical treatment, theconcept of autonomy is consistent with the gradual move from a paternalisticmodel in which ―doctor knows best‖ to a more patient-centred approach. 118 Apatient‘s right to decide on their medical treatment thus gives a patient morecontrol over their own life. In the English case Re T 119 Lord Donaldson MRnoted that:―The patient‘s interest consists of his right to self-determination - hisright to live his own life as he wishes even if it would damage hishealth or lead to his premature death.‖ 1201.95 It has been argued that the emergence of the concept of autonomyhas eroded the principle of the sanctity of life. 121 While the State has an interestin preserving life, this interest must be balanced against the right of a person todecide how they live their life. Indeed, the Commission agrees with the view thatthe sanctity of life is not necessarily consistent with keeping a person alive at allcosts. Treatment which is excessively burdensome, which is of no medicalbenefit, or treatment which is against the clearly stated wishes of the patient,but which does keep a patient alive, is not consistent with the principle of thesanctity of life. As Hamilton CJ noted In re a Ward of Court (No 2) 122 , the right tolife ―includes the right to have nature take its course and to die a natural death.‖A person can choose to decline treatment which has ―no curative effect andwhich is intended merely to prolong life.‖ 123(b)Rights to privacy and dignity1.96 The rights to privacy and dignity have been accepted asconstitutional rights under Article 40.3 of the Constitution of Ireland. The courts118119120121122123Bagheri ―Regulating Medical Futility: Neither Excessive Patient‘s Autonomy NorPhysician‘s Paternalism‖ (2008) 15 European Journal of Medical Ethics 45 at 48.[1992] 4 All ER 649.Ibid at 661.Keown ―The Legal Revolution: From ―Sanctity of Life‖ to ―Quality of Life‖ and―Autonomy‖‖ (1998) 14 Journal of Contemporary Health Law and Policy 253, at253.[1996] 2 IR 79.Ibid, at 124.39
have recognised that both rights are interlinked as the ―nature of the right toprivacy must be seen as to ensure the dignity and freedom of an individual.‖ 1241.97 In In re a Ward of Court (No 2) 125 Denham J noted that the 44 yearold woman in that case, who had been in a persistent vegetative state (PVS) forover 20 years, had a constitutional right to be treated with dignity and that thisright does not disappear when a person becomes incapacitated. The SupremeCourt in that case decided that the insertion of a tube to feed the woman wasintrusive and constituted an interference with the integrity of her body. 126Denham J also noted that ―merely because medical treatment becomesnecessary to sustain life does not mean that the right to privacy is lost.‖ 127 Theright to privacy and dignity remains while a person is alive and is not dependenton capacity.1.98 The Commission agrees with the views expressed in the Ward ofCourt case that respect for a person‘s treatment preferences is consistent withtheir right to privacy and, in the context of decisions at the end of life, isconsistent with the right to a dignified death. This should be reflected in theCommission‘s proposed statutory framework for advance care directives.1.99 In its 2006 <strong>Report</strong> on Vulnerable Adults and the Law the Commissionrecommended that the proposed mental capacity legislation should include aguiding principle that due regard be given to a person‘s dignity, privacy andautonomy; 128 and the Commission very much welcomes that this has beenincorporated into the Government‘s Scheme of a Mental Capacity Bill 2008. TheCommission is equally of the opinion that the principles of autonomy, dignityand privacy of the individual should form part of the legislative framework foradvance care directives, in the wider context of the Government‘s proposedmental capacity legislation.1.100 The Commission recommends that the principles of autonomy,dignity and privacy of the individual should form part of the legislative frameworkfor advance care directives.124125126127128Kennedy v Ireland [1987] IR 587, at 592 (Hamilton P).[1996] 2 IR 79, at 163.[1996] 2 IR 79, at 124-125 per Hamilton CJ.Ibid, at 163.<strong>Report</strong> on Vulnerable Adults and the Law (LRC 83-2006), paragraph 2.106; andsection 4(e) of the draft Scheme of a Mental Capacity Bill (Appendix to <strong>Report</strong>,p.171).40
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ReportBIOETHICS:AD
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Page 8 and 9: CONTACT DETAILSFurther information
Page 10 and 11: TABLE OF CONTENTSTable of Legislati
Page 12 and 13: CHAPTER 4CONSEQUENCES OF ESTABLISHI
Page 15: TABLE OF CASESAiredale NHS Trust v
Page 19 and 20: advance care directives in the Unit
Page 22 and 23: CHAPTER 1ORIGINS OF ADVANCE CARE DI
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Page 28 and 29: we believe Karen‘s choice, if she
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Page 38 and 39: 1.45 In the Supreme Court, Hamilton
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Page 44 and 45: e upheld. Indeed, this conclusion f
Page 46 and 47: services, the need for palliative c
Page 48 and 49: ecommendations in this Repo
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Page 60 and 61: 2.07 The Commission recommends that
Page 62 and 63: 2.12 The Council of Europe‘s 2009
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Page 66 and 67: should be referred to the High Cour
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Page 83 and 84: Practice on Advance Care Directives
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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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