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

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care, life-sustaining treatment, artificial nutrition and hydration (ANH) and ‗donot resuscitate‘ (DNR) orders.(1) Basic Care3.07 The Commission has already recommended that the proposedlegislative framework should include the general principle that a person has theright to refuse medical treatment, even if the refusal is based on what appear tobe irrational grounds. 7 This general principle and right is, however, notabsolute. In the Consultation Paper, the Commission provisionallyrecommended that an advance care directive that directs a refusal of basic careshould not, for reasons of public policy, be enforceable. 8 This view wassupported during the consultation period after the publication of theConsultation Paper, and the Commission reaffirms that view in this <strong>Report</strong>. Inthe Commission‘s view, basic care that is designed to make the patientcomfortable must always be provided. In this respect, the Commission alsoagrees with the Law Commission of England and Wales that this limit to thescope of advance care directives would not involve a significant infringement ona person‘s autonomy. 93.08 During the consultation process, it was suggested that theCommission set out a complete definition of basic care in this <strong>Report</strong>. Becauseof rapid developments in health care and medical science, however, such acomplete definition is not desirable in a legislative framework. The Commissionagrees with the British Medical Association that basic care includes, but is notlimited to, warmth, shelter, oral nutrition and hydration and hygiene measures. 10The Commission has therefore concluded that a broad definition of basic carecould be included that will take account of the specific needs of an individualperson. The Commission recommends that the proposed Code of Practice onAdvance Care Directives 11 should contain detailed guidance for health careprofessionals on what constitutes basic care.3.09 The Commission recommends that basic care cannot be refusedunder an advance care directive. The Commission recommends that basic care7891011See paragraphs 1.86-1.92, above.Law Reform Commission Consultation Paper on Bioethics: Advance CareDirectives (LRC CP 51-2008) at paragraph 1.48.Law Commission of England and Wales <strong>Report</strong> on Mental Incapacity (No 2311995) at paragraph 5.34.British Medical Association Withholding and Withdrawing Life Prolonging MedicalTreatment (3 rd ed, 2007), at 15.See paragraph 3.117-3.120, below.57
should be defined to include, but is not limited to, warmth, shelter, oral nutritionand hydration and hygiene measures. The Commission also recommends thatthe proposed Code of Practice on Advance Care Directives should containdetailed guidance for health care professionals on what constitutes basic care.(2) Palliative Care3.10 Palliative care is treatment that manages pain relief and that seeks tomake a patient comfortable rather than to cure an illness. The Commission isaware that there is some disagreement as to whether palliative care forms partof basic care. In 1995, the English Law Commission recommended that carewhich alleviates severe pain should come within the definition of basic care. 12The Code of Practice made under the English Mental Capacity Act 2005 (whichlargely implemented the recommendations made by the Law Commission in1995) states that care that is ―needed to keep a person comfortable‖ is basiccare. 13 However, the Code of Practice does not mention whether pain relief orpalliative care comes within this definition.3.11 In Singapore, the Advance Medical Directive Act 1996 states thatpalliative care must always be provided. 14 However, palliative care is defined as(a) ―the provision of reasonable medical procedures for therelief of pain, suffering or discomfort; and(b) the reasonable provision of food and water.‖3.12 The Commission is in agreement with the English Law Commissionthat a person should be entitled to refuse pain relief because they may prefer toremain alert. Palliative care, however, encompasses more than just pain relief.It is about ensuring that the person is comfortable when their illness becomesterminal. Due to the importance of ensuring that a person dies with dignity andin the least amount of pain possible, the Commission recommends thatpalliative care should be regarded as part of basic care. The Commission alsorecommends that the proposed Code of Practice on Advance Care Directivesshould include detailed guidance on what constitutes palliative care.3.13 The Commission recommends that palliative care should beregarded as part of basic care. The Commission also recommends that theproposed Code of Practice on Advance Care Directives should include detailedguidance on what constitutes palliative care.121314Law Commission of England and Wales <strong>Report</strong> on Mental Incapacity (No 2311995), at paragraph 5.34.Code of Practice-Mental Capacity Act 2005, at paragraph 9.28.Section 11 Advance Medical Directive Act 1996 (Sing).58
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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
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CHAPTER 4CONSEQUENCES OF ESTABLISHI
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TABLE OF CASESAiredale NHS Trust v
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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 62 and 63: 2.12 The Council of Europe‘s 2009
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: dentist 3psychologist 4social care
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
Page 93 and 94: eyond question that a court or a do
Page 95 and 96: close relationship that can exist b
Page 99 and 100: care directive. 105 The Commission
Page 101 and 102: the wishes or making their own deci
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
Page 113 and 114: follow an advance care directive is
Page 115 and 116: the Board can erase the name of a n
Page 119 and 120: directive would be likely to be enf
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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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