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

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2.12 The Council of Europe‘s 2009 Draft Recommendation on PrinciplesConcerning Continuing Powers of Attorney and Advance Directives forIncapacity 5 notes that, in some member states an EPA is a preferred alternativeto the need for formal court decisions appointing third party representatives toact with or on behalf of individuals with limited or no capacity. Such an exampleis the appointment of a personal guardian envisaged in the Government‘sScheme of a Mental Capacity Bill 2008. The draft Recommendation also notesthat legislation concerning vulnerable adults with incapacity (such as thePowers of Attorney Act 1996 or the Government‘s Scheme of a Mental CapacityBill 2008) promotes self-determination and autonomy for vulnerable adults withlimited or no capacity. The draft Recommendation recommends that memberstates introduce or amend legislation on continuing powers of attorney andadvance directives to ensure conformity with the principles contained in thedraft Recommendation. The Commission concurs with this view and notes thatthe Government‘s Scheme of a Mental Capacity Bill 2008 already conformssubstantially to the principles in the draft Recommendation.(1) Powers under an EPA2.13 Under the Powers of Attorney Act 1996, an attorney has the power tomake decisions relating to the property, financial and business affairs of thedonor 6 or decisions regarding the personal care of the donor. 7 The donor maylimit the power of the attorney under the EPA to cover one aspect only or maymake a more general power. For example, the power may specify that theattorney has authority to make decisions about property and business affairsonly or general authority to make decisions about property, affairs and personalcare. The Scheme of a Mental Capacity Bill 2008, which will replace the 1996Act, retains this distinction.2.14 Under the 1996 Act, an EPA may give the attorney the power ―tomake any specified personal care decision or decisions on the donor‘s behalf.‖A personal care decision is limited to the following decisions:where the donor should live;with whom the donor should live;whom the donor should see and not see;what training or rehabilitation the donor should get;the donor‘s diet and dress;567Available at www.coe.int. See paragraphs 1.35-1.38, above.Section 6 of Powers of Attorney Act 1996.Section 6(6) of Powers of Attorney Act 1996.47
inspection of the donor‘s personal papers;housing, social welfare and other benefits for the donor. 82.15 In its 2006 <strong>Report</strong> on Vulnerable Adults and the Law, theCommission recommended that an EPA should be capable of permitting anattorney to make certain healthcare decisions. 9 Similarly, Principle 3 of theCouncil of Europe‘s Draft Recommendation on Principles ConcerningContinuing Powers of Attorney and Advance Directives for Incapacity 10 notesthat member states should consider enabling an EPA to cover economic andfinancial matters, as well as health, welfare and other personal matters. In linewith this approach, Head 48 of the Scheme of a Mental Capacity Bill 2008envisages extending the power of an attorney to personal welfare decisions,which would include a decision on health care which ―giving or refusing consentto the carrying out or continuation of treatment by a person providing healthcare for the donor.‖ 11 The Scheme provides, however, that an attorney could notbe empowered to refuse to consent to artificial life-sustaining medical treatment,consent to organ donation or consent to non-therapeutic sterilisation; thesewould be exclusively matters for the High Court. 12(2) Life-sustaining treatment2.16 The Commission notes that the Council of Europe‘s draftRecommendation states that EPAs are considered to be ―a preferred alternativeto court decisions on representation.‖ The Commission agrees with thisapproach, that decisions relating to healthcare should be made outside a courtsetting where a suitable alternative decision-making process is in place. TheCommission notes that as a person must have full capacity when executing anEPA, he or she should have the power to appoint an attorney concerning allaspects of his or her healthcare in the event of his or her incapacity, should theywish to appoint an attorney regarding such decisions.2.17 The Commission notes the safeguards to protect the donor of theEPA contained in the 1996 Act (and in the Scheme of the 2008 Bill, which willreplace the 1996 Act). First a person must have capacity when executing anEPA and the adjudication of capacity is made at the time of execution of theEPA. 13 Second, a solicitor must interview the donor and be satisfied that the8910111213Section 4(1) of Powers of Attorney Act 1996.LRC 83-2006 at 4.32.Available at www.coe.int. See paragraphs 1.35-1.38, above.Head 48(3)(iii) of Scheme of Mental Capacity Bill 2008.Head 48(3)(ii) of Scheme of Mental Capacity Bill 2008, referring to Head 21.Section 5(2)(d)(iii) of Powers of Attorney Act 1996.48
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ReportBIOETHICS:AD
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LAW REFORM COMMISSION‘S ROLEThe L
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LAW REFORM RESEARCH STAFFDirector o
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CONTACT DETAILSFurther information
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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
Page 24 and 25: 1.08 The second major development i
Page 26 and 27: Refusal of treatments by pregnant w
Page 28 and 29: we believe Karen‘s choice, if she
Page 30 and 31: 1995 English Law Commission <strong
Page 32 and 33: a declaration that it would be lawf
Page 34 and 35: Disabilities. 42 The draft Recommen
Page 36 and 37: (5) The development of advance care
Page 38 and 39: 1.45 In the Supreme Court, Hamilton
Page 40 and 41: when determining the capacity quest
Page 42 and 43: (d)Current use of advance care dire
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
Page 50 and 51: efusal of medical treatment, subjec
Page 52 and 53: consents to or refuses medical trea
Page 54 and 55: (2) Autonomy, dignity and privacy(a
Page 56 and 57: (3) Presumption in favour of preser
Page 58 and 59: 2CHAPTER 2ADVANCE CARE DIRECTIVES,
Page 60 and 61: 2.07 The Commission recommends that
Page 64 and 65: donor understands the effect of mak
Page 66 and 67: should be referred to the High Cour
Page 68: 2.30 Another protection of importan
Page 71 and 72: dentist 3psychologist 4social care
Page 73 and 74: should be defined to include, but i
Page 75 and 76: chemotherapy or dialysis, antibioti
Page 77 and 78: Similarly, Power argues that there
Page 79 and 80: assist either health care professio
Page 81 and 82: approach met with broad approval an
Page 83 and 84: Practice on Advance Care Directives
Page 87 and 88: (other than charges and directions
Page 89 and 90: 3.64 The Commission concurs with th
Page 91 and 92: advance care directive involves a r
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Page 95 and 96: close relationship that can exist b
Page 99 and 100: care directive. 105 The Commission
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Page 103 and 104: sustaining treatment or whether the
Page 105 and 106: (b) for the guidance of persons, in
Page 107 and 108: omission.‖ 5 The Supreme Court in
Page 109 and 110: who acted in good faith could be pr
Page 111 and 112: 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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