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

extensive powers to act. The Commission considers that an advance caredirective comes in between these two ends of the spectrum and is thus of theview that provision for the appointment of a health care proxy under an advancecare directive remains, as indicated by the Council of Europe‘s draftRecommendation on Principles Concerning Continuing Powers of Attorney andAdvance Directives for Incapacity, 20 an important aspect of general reform ofthe law on mental capacity. In Chapter 3, the Commission discusses in detailthe arrangements for the appointment of a health care proxy in the proposedlegislative framework, including how these may affect the scope of the proxy‘spowers. The Commission completes this Chapter by outlining in general thedifferent settings in which an advance care directive may arise and how thisaffects the extent of the proxy‘s proposed role.2.28 An advance care directive may be created far in advance of thetreatment matters it deals with, or it may be created in acute circumstances,such as in an accident and emergency unit of a general hospital. Due to thesevery different circumstances an advance care directive may sometimes noteven be in writing. The Commission recognises, however, the implications forthe maker of a later refusal of medical treatment. Thus, where a health careproxy is nominated in an advance care directive a number of safeguards shouldbe in place to ensure that the wishes of the maker are followed and thatappropriate precautions are in place, especially where life-sustaining treatmentis involved.2.29 The health care proxy will, of course, be appointed by the maker ofthe advance care directive prior to him or her losing capacity, and oneprecaution that arises in this respect (and reflects the principle of individualautonomy) is that it is likely the proxy will be a close friend or relative of themaker. Due to this close relationship, the proxy can ―provide invaluableinformation about the patient‘s wishes in the event of incapacity and sosupplement the provisions of the living will.‖ 21 The use of a proxy will also be ofparticular importance in the case of unforeseen circumstances. As the maker ofan advance care directive cannot predict all possible scenarios, it has beensuggested that ―patients should focus on appointing as a proxy someone theytrust to interpret their stated preferences or extrapolate their statements ifneeded.‖ 22202122Available at www.coe.int. See paragraphs 1.35-1.38, above.Docker “Living Wills” Tolley‟s Finance and Law for the Older Client STEP ATG1.21.Lo and Steinbrrok ―Resuscitating Advance Directives‖ (2004) 164 Arch Intern Med1501 at 1504.52