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

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As the Commission has already noted, Denham J in Re a Ward of Court (No2) 69 stated that a person can refuse medical treatment for any reason, rationalor irrational. Similarly in Re MB 70 Butler-Sloss LJ stated that a ―mentallycompetent patient has an absolute right to refuse to consent to medicaltreatment for any reason, rational or irrational, or for no reason at all, evenwhere that decision may lead to his or her own death.‖ 71 Both Denham J andButler-Sloss LJ were silent on whether this right to refuse medical treatmentmeant that informed consent was not necessary. The Commission also notesthe views of Munby J in HE v A Hospital NHS Trust 72 that where ―life is atstake, the evidence must be scrutinised with especial care.‖ 733.67 The Commission recognises the value of discussing an advance caredirective with a medical professional. Medical professionals can correctmisunderstandings, thus giving people more realistic insights into theirprognosis. 74 The Commission notes that in In re a Ward of Court (No.2) 75Denham J expressly stated that a person is entitled to make an irrationaldecision, including one that is in conflict with medical advice. Similarly theGovernment‘s Scheme of a Mental Capacity Bill 2008 states that ―a person isnot to be treated as unable to make a decision merely because he or shemakes an unwise decision.‖ 76 A person‘s refusal of medical treatment may befor personal reasons, and to require that a person must consult with a medicalprofession could be unduly burdensome as well as costly. Indeed, as theCommission noted in the Consultation Paper, requiring that a person consultwith a medical professional could ―lead to a tick the box situation and fail toreflect an individual‘s autonomy.‖ 773.68 In the Consultation Paper, the Commission provisionallyrecommended that a person must consult with a medical professional if their697071727374757677[1996] 2 IR 79.[1997] 2 Fam Law R 426.Ibid, at 432.[2003] 2 FLR 408.Ibid, at paragraph 24.La and Steinbrook ―Resuscitating Advance Directives‖ (2004) 164 Arch InternMed 1501.[1996] 2 IR 97.Head 1 of Scheme of Mental Capacity Bill 2008.Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 3.14.75
advance care directive involves a refusal of life-sustaining treatment. 78 Duringthe consultation period it was noted that this requirement may be undulyburdensome on the author of the advance care directive. It could also conflictwith the principle that many people refuse medical treatment for reasons otherthan medical, or rational, reasons. 793.69 The Commission emphasises that informed decision-making shouldbe encouraged in the context of the proposed legislative framework. 80 Havingconsidered the submissions received on this, the Commission accepts that theemphasis should be on ensuring that a person understands what treatment theyare refusing and the implications of that decision, 81 not who or where they getthe information from. The important point is that the decision is an informeddecision. Thus, the Commission has concluded that it should recommend thatauthors of advance care directives should be encouraged to consult with ahealth care professional when making the advance care directive rather thanthat this be a mandatory requirement.3.70 The Commission recommends that makers of advance caredirectives should be encouraged to consult with a health care professional. Inthe case of advance care directives refusing life-sustaining medical treatment,the Commission recommends that the decision must be an informed decision.(6) Specific requirements for the validity of an advance caredirective3.71 In the Consultation Paper the Commission provisionallyrecommended that an advance care directive will not be valid if:―The author of the advance care directive did not have the capacity atthe time of its creationThe creation of the advance care directive was not a voluntary act ofthe authorIf the author changed their mind and communicated this change ofmind78798081Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 3.15.As noted by Denham J in Re a Ward of Court (No 2) [1976] 2 IR 79 at 160.Similarly in Fitzpatrick v FK, Laffoy J noted that a person may refuse treatment onreligious grounds. However in that case, Ms K did not have the capacity to makesuch a refusal. [2008] IECH 104.See paragraph 1.92.Ibid.76
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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
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a declaration that it would be lawf
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Disabilities. 42 The draft Recommen
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(5) The development of advance care
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1.45 In the Supreme Court, Hamilton
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Page 46 and 47: services, the need for palliative c
Page 48 and 49: ecommendations in this Repo
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Page 52 and 53: consents to or refuses medical trea
Page 54 and 55: (2) Autonomy, dignity and privacy(a
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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 77 and 78: Similarly, Power argues that there
Page 79 and 80: assist either health care professio
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Page 83 and 84: Practice on Advance Care Directives
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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
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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
Page 126 and 127: Mental Health Act 2001Powers of Att
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Page 134 and 135: (b) Without prejudice to section 5(
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