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

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easons, which are applicable equally to a written advance care directive, 49 suchan advance care directive is open to question in terms of enforceability.3.38 By contrast, where a person has to be brought suddenly to theAccident and Emergency Department of a hospital, he or she may have thoughtin advance of what they would or would not like to happen to them. Such aperson may have created an advance care directive or may not wish to undergorepeated resuscitation but not communicated this opposition to anyone. Such adiscussion regarding treatment the person may not wish to undergo can becommunicated-and indeed a person should be encouraged to discuss theirwishes-when they are being admitted to hospital. The person may or may nothave a spouse or partner with them and may also state very clearly that thespouse or partner has full authority to carry out these wishes on their behalf –the spouse or partner is to be their proxy decision-maker. In the Commission‘sview, these clearly stated wishes, with or without the presence of a partner orspouse, should be legally enforceable under the proposed legislative schemefor advance care directives. It may very well be that these unwritten wishes willbe recorded on the person‘s medical chart by the health care professionalinvolved in the admissions procedure and this written record may very wellassist to clarify the scope of the advance care directive, and the role (if any) of aspouse or partner. In some instances, with the development of suitableguidance and protocols, it may be that the written record can be regarded as awritten advance care directive. 503.39 The Commission is of the opinion that health care professionals beencouraged to discuss what a person‘s wishes are and whether a personwishes to create an advance care directive. This discussion may take placeupon admission or when a person is signing a consent form. Indeed bestpractice should dictate that hospital forms include information regardingadvance care directives. While such forms should not replace the conversationbetween a patient and health care professional, the Commission recognises thetime constraints that can occur in a medical emergency thus the informationforms can be useful. However, replacing the conversation on advance caredirectives with the forms should only be used in limited circumstances, as goodcommunication between health care professionals and patients is part of goodhealth care.3.40 Accordingly, the Commission recommends that, subject to certainexceptions discussed below (notably the situation of life-sustaining treatment),an unwritten advance care directive is enforceable under the proposed statutoryframework. The Commission also recommends that the proposed Code of4950See paragraphs 3.93 (time factors) and 3.86 (applicability rule) below.See paragraph 3.50, below.67
Practice on Advance Care Directives should include guidance on the types ofcircumstances in which an unwritten advance care directive would be likely tobe enforceable under the proposed statutory framework.3.41 The Commission recommends that, subject to the situation of lifesustainingtreatment, an unwritten advance care directive is enforceable underthe proposed statutory framework. The Commission also recommends that theproposed Code of Practice on Advance Care Directives should includeguidance on the types of circumstances in which an unwritten advance caredirective would be likely to be enforceable under the proposed statutoryframework.(b)Written advance care directives3.42 In the Consultation Paper, the Commission provisionallyrecommended that an advance care directive that refuses life-sustainingmedical treatment must be in writing. 51 The Commission reaffirms that view inthis <strong>Report</strong>, primarily because of the implications of refusing such treatment.The Commission also emphasises again that any reference to ―writing‖ includesboth manual and automated record-keeping processes.3.43 In keeping with the view that making an advance care directiveshould not place an undue burden on individuals, the Commission alsorecommends that, where an individual chooses to prepare a written advancecare directive (or is required to do so because it involves life-sustainingtreatment), it need not be in a prescribed form. The Commission recommends,however, that the written advance care directive must contain some basicinformation, such as:Name, date of birth and address of the person making the advancecare directiveName and address of the health care proxy (if any), 52 andName and address of the person‘s general practitioner or other healthcare professional3.44 As to the content of a written advance care directive, the Commissionrecommends that the proposed Code of Practice on Advance Care Directivesshould contain guidance on what should be included in such an advance caredirective. Without being prescriptive on this, the Commission recommends thatenough information should be provided to ensure that it is clear both who made5152Law Reform Commission Consultation Paper on Bioethics: Advance CareDirectives (LRC CP 51-2008), at paragraph 4.23.See also paragraph 3.112, below.68
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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
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1.08 The second major development i
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Refusal of treatments by pregnant w
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we believe Karen‘s choice, if she
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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
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Page 66 and 67: should be referred to the High Cour
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Page 73 and 74: should be defined to include, but i
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Page 77 and 78: Similarly, Power argues that there
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Page 89 and 90: 3.64 The Commission concurs with th
Page 91 and 92: advance care directive involves a r
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Page 99 and 100: care directive. 105 The Commission
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Page 105 and 106: (b) for the guidance of persons, in
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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
Page 121 and 122: Ensuring that the wishes of the mak
Page 124 and 125: APPENDIX DRAFT MENTAL CAPACITY (ADV
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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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