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

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(3) Artificial Life-sustaining treatment3.14 In the Consultation Paper, the Commission noted that many Stateshave divergent approaches as to whether an advance care directive thatrefuses artificial life-sustaining treatment should be enforceable. 15 In Englandand Wales, the Mental Capacity Act 2005 defines life-sustaining treatment as―treatment which in the view of the person providing health care for the personconcerned is necessary to sustain life.‖ 16 The British Medical Association notesthat a patient‘s refusal of artificial life-sustaining treatment must be respected. 17Life-prolonging treatment includes ―all treatment or procedures that have thepotential to postpone the patient‘s death and includes cardiopulmonaryresuscitation, artificial ventilation, specialised treatment for particular conditionssuch as chemotherapy or dialysis, antibiotics when given for potentially lifethreateninginfection and artificial nutrition and hydration.‖ 183.15 In Queensland, life-sustaining treatment is defined as ―health careintended to sustain or prolong life and that supplants or maintains the operationof vital bodily functions that are temporarily or permanently incapable ofindependent operation.‖ 19 Before a person can refuse life-sustaining treatment,however, their health must be in decline, the person must have a terminalillness, be in a persistent vegetative state, be permanently unconscious or havean illness from which there is no reasonable prospect of recovery. 20 Theadvance health directive will also only apply if the adult has no reasonableprospect of regaining capacity for health matters. 213.16 In 2006, the Law Reform Commission of Hong Kong defined lifesustainingtreatment as:―... any of the treatments which have the potential to postpone thepatient‘s death and includes, for example, cardiopulmonaryresuscitation, artificial ventilation, blood products, pacemakers,vasopressors, specialised treatment for particular conditions such as15161718192021Law Reform Commission Consultation Paper on Bioethics: Advance CareDirectives (LRC CP 51-2008), at paragraphs 4.14-4.19.Section 4(10) of the Mental Capacity Act 2005.British Medical Association Withholding and Withdrawing Life-Prolonging MedicalTreatment (3 rd ed., 2007), at 3.Ibid, at 5.Section 5A of the Powers of Attorney Act 1998 (Qld).Section 36(2)(a) of the Powers of Attorney Act 1998 (Qld).Section 36(2)(c) of the Powers of Attorney Act 1998 (Qld).59
chemotherapy or dialysis, antibiotics when given for a potentially lifethreateninginfection, and artificial nutrition and hydration.‖ 223.17 The Commission considers that, consistent with the autonomyprinciple, 23 a person has the right to refuse medical treatment even if thattreatment leads to death and, therefore, a person can refuse life-sustainingtreatment in an advance care directive. The Commission accepts that, ingeneral terms, artificial life-sustaining treatment is treatment which in the view ofthe person providing health care is necessary to sustain life. The Commission isof the opinion that to require a person to be suffering from a terminal conditionbefore they can refuse artificial life-sustaining treatment would be unduly limitingon a person‘s autonomy. The Commission recommends that artificial lifesustainingtreatment may be refused in an advance care directive. TheCommission recommends that an advance care directive can include a refusalof artificial life-sustaining treatment, that is, treatment which is intended tosustain or prolong life and that supplants or maintains the operation of vitalbodily functions that are incapable of independent operation. The Commissionaccepts, however, that what constitutes artificial life-sustaining treatment in aspecific case depends on the circumstances of a patient‘s specific illness. TheCommission therefore recommends that the Code of Practice on Advance CareDirectives should include detailed guidance on the types of treatment thatcomes within this general definition of artificial life-sustaining treatment.3.18 The Commission recommends that an advance care directive mayinclude a refusal of artificial life-sustaining treatment, that is, treatment which isintended to sustain or prolong life and that supplants or maintains the operationof vital bodily functions that are incapable of independent operation. TheCommission also recommends that the proposed Code of Practice on AdvanceCare Directives should include detailed guidance on the types of treatment thatcome within the definition of artificial life-sustaining treatment.(a)Artificial Nutrition and Hydration (ANH)3.19 The Commission is aware that there has been some debate as towhether artificial nutrition and hydration (ANH) constitutes life-sustainingmedical treatment. The British Medical Association has defined ANH as:―...techniques for providing nutrition and hydration that are used tobypass an inability to swallow. It includes the use of a nasogastric2223Law Reform Commission of Hong Kong <strong>Report</strong> on Substitute Decision-Makingand Advance Directives in Relation to Medical Treatment (2006), at paragraph8.53.See paragraphs 1.94-1.95, above.60
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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
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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 and 72: dentist 3psychologist 4social care
Page 73: should be defined to include, but i
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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