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

should be referred to the High Court (the Court of Care and Protectionenvisaged in the Government‘s Scheme of a Mental Capacity Bill 2008).2.24 The Commission recommends that, in general, in the event of aconflict between the terms of an enduring power of attorney (EPA) executedunder the Powers of Attorney Act 1996 and an advance care directive, the EPAshould take priority over an advance care directive. The Commission alsorecommends that, where it appears that a conflict arises between the terms ofan EPA and an advance care directive, there should initially be an attempt toresolve any apparent conflict informally, involving the donee of the enduringpower of attorney and the relevant health care professional, and, whereapplicable, the health care proxy. The Commission also recommends that, inthe absence of agreement between the parties, the matter should be referred tothe High Court for resolution.DAdvance care directives and a health care proxy2.25 As the Commission has noted, an advance care directive is astatement or expression of wishes by a person with capacity setting out his orher wishes regarding refusal of treatment. 18 This can constitute a fullycompleted advance care directive (―I do not wish to have CPR continued afteranother stroke‖) and, as already mentioned, it marks an important differencebetween an advance care directive and an EPA; with an EPA, a third party isalways nominated by the donor to take future decisions. In some instances, ofcourse, the maker of the advance care directive may choose to appoint a thirdparty, often known as a health care proxy, who can make the relevant healthcare decisions when they actually arise2.26 The Commission has already noted that the Government‘s Schemeof a Mental Capacity Bill 2008 proposes to introduce the concept of a generalauthority for third parties to engage in informal decision-making in respect ofpersonal care, health care or treatment of a person whose decision-makingcapacity is in doubt. 19 This would be a welcome development but would belimited, in effect, to day-to-day health care matters and would not extend to therange of treatment decisions envisaged by advance care directives.2.27 Thus, at the day-to-day end of the health care decision-makingspectrum, the provisions on ―general authority to act‖ in the Scheme of the 2008Bill would provide third parties with an important level of authority to actlegitimately within the law. At the other end of the spectrum, the proposals foran EPA would allow a person with capacity to appoint a third party with1819See paragraph 1.82.Head 16(1) of Scheme of Mental Capacity Bill 2008, discussed above in Part C.51