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

(3) Presumption in favour of preserving life in the interpretation ofadvance care directives1.101 Advance care directives ensure that a person may retain control andautonomy over future treatment decisions but, as already noted, the right toautonomy is not absolute. The Commission turns now to discuss whether, if adoubt exists about the validity or meaning of an advance care directive, thisdoubt should be resolved in favour of preserving life. This is, of course, relevantonly in the context of end of life settings.1.102 In the English case Re T, 129 Lord Donaldson MR suggested that,where there was such a doubt, this should be resolved by a presumption infavour of life. 130 The Commission sees general merit in this approach but alsoaccepts that it is not free of difficulties. There is the understandable fear that thisapproach could be widely used simply to ignore an advance care directive. 131 Ithas been argued that an alternative way to deal with doubts about the validity ormeaning of an advance care directive is to begin without any presumption oneway or the other but to take into account the fact that the patient has made anadvance care directive. This would take into account that the patient hasengaged with the thought of dying and if he or she wants to die and is anindication that the patient felt strongly about having his or her wishes and valuesrespected at the end of life, and that the patient does not in every situationregard life as preferable to death. The law should then uphold these wishes if atall possible. 1321.103 The Commission accepts that this might address the potentialproblem of using a presumption to ignore an advance care directive, but thereality is that it does not address the key questions of: what type of doubt is tobe taken into account (and whose doubt) and should the imminence of the endof life be given some weight?1.104 The Commission considers that any presumption should not be usedto render inoperative the clear decision of an autonomous person. A bias in129130131132[1992] 4 All ER 649.[1992] 4 All ER 649, at 661 (Lord Donaldson MR).Michalowski ―Advance Refusals of Life-Sustaining Medical Treatment: TheRefusal of an Absolute Right‖ (2005) 68 (6) Modern Law Review 958, at 962.Michalowski ―Advance Refusals of Life-Sustaining Medical Treatment: TheRefusal of an Absolute Right‖ (2005) 68 (6) Modern Law Review 958, at 962.41