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

3.64 The Commission concurs with the view expressed in the Fitzpatrickcase by Laffoy J that guidelines are needed to assist medical professionalswhen dealing with the capacity of a person to refuse medical treatment. Head39 of the Scheme of a Mental Capacity Bill 2008 proposes to give the Office ofPublic Guardian the power to create codes. Such codes include, but are notlimited to, guiding health care professionals on the assessment of capacity andguiding health care professionals and those who can make informal decisions.The Commission notes that the Scheme of the 2008 Bill envisages that thePublic Guardian must consult with the Health Service Executive, the MentalHealth Commission, the Health Information and Quality Authority and withrepresentatives of professional bodies in the healthcare sector and healthcareprofessionals when drafting codes concerning health care. The Commissionconsiders that this would also be a suitable consultative process in the contextof the Commission‘s proposed Code of Practice on Advance Care Directives.3.65 The Commission recommends that the rebuttable presumption ofmental capacity in the Government‟s Scheme of a Mental Capacity Bill 2008should expressly apply to the maker of an advance care directive. TheCommission also recommends that the proposed Code of Practice on AdvanceCare Directives should include guidance on the approach to the assessment ofthe capacity of an individual in this context.(5) Informed decision making3.66 As the Commission has noted in Chapter 1, Informed consent is oneof the most important principles to have developed in medical law in recentdecades. In its 2005 Consultation Paper on Vulnerable Adults and the Law:Capacity, the Commission noted that if medical treatment is carried out withoutinformed consent this may be in breach of existing civil liability law, theConstitution and the European Convention on Human Rights. 67 In its currentGuide to Ethical Conduct and Behaviour the Irish Medical Council notes that:―Informed consent can only be obtained by a doctor who hassufficient training and experience to be able to explain theintervention, the risks and benefits and the alternatives. In obtainingthe consent the doctor must satisfy himself/herself that the patientunderstands what is involved by explaining in appropriateterminology. A record of this decision should be made in the patient‘snotes.‖ 686768Law Reform Commission Consultation Paper on Vulnerable Adults and the Law:Capacity ( LRC CP 37-2005), at paragraph 7.08.Irish Medical Council A Guide to Ethical Conduct and Behaviour (6 th ed 2004), atparagraph 17.1.74