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

approach met with broad approval and it forms the basis of the followingdiscussion of detailed requirements and associated recommendations.3.34 The Commission discusses the following detailed issues: (1)unwritten and written advance care directives; (2) witnesses; (3) age (4)capacity; (5) informed decision-making; (6) specific tests for validity; (7)applicability to the relevant treatment; (8) revocation; (9) review; and (10) aregister for advance care directives.(1) Unwritten and written advance care directives3.35 In the Consultation Paper the Commission provisionallyrecommended that both unwritten and written advance care directives shouldbe enforceable. 48 The Council of Europe‘s Draft Recommendation on PrinciplesConcerning the Legal Protection of Incapable Adults notes that states shouldconsider whether advance directives should be recorded or made written if theyare intended to have legal status. The Commission will now consider the statusof unwritten advance care directives(a)Unwritten advance care directives3.36 The Commission reiterates that the proposed legislative frameworkfor advance care directives should be facilitative and, in this respect, it isimportant that, subject to exceptions discussed below (notably the situation oflife-sustaining treatment), an unwritten advance care directive can beenforceable. This is consistent with the Commission‘s view that making anadvance care directive should not place an undue burden on individuals.3.37 The Commission acknowledges that some difficulties exist withestablishing the existence of an unwritten advance care directive - and perhapseven more so how it might be interpreted. These difficulties may, in someinstances, prove to be intractable. At one extreme, if a spouse or partner of apatient were to say ―he told me last year he would not want to be resuscitated athird time if this happened,‖ it would be difficult to suggest that such an assertedadvance care directive should be enforceable under the Commission‘sproposed legislative framework. The Commission notes, however, that this isnot necessarily because the asserted advance care directive is a reported,unwritten, statement of wishes. Such an advance care directive would also beprone to difficulty because it was removed in time from the actual health caredecision making to which it might apply and it would not be entirely clearwhether it is applicable to that health care decision. For at least these two48Law Reform Commission Consultation Paper on Bioethics: Advance CareDirectives (LRC CP 51-2008), at paragraph 4.13.66