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

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author had changed their mind but did not have the opportunity torevoke the advance care directive.‖ 903.78 Section 24 of the English Mental Capacity Act 2005 states that theadvance decision must related to a ―specified treatment.‖ This treatment,however, can be expressed in lay terms. 91 The Code of Practice for the MentalCapacity Act 2005 states that when deciding whether the advance caredirective applies to the proposed treatment, health care professionals mustconsider:―how long ago the advance decision was made, andwhether there have been changes in the patient‘s personal life (forexample, the person is pregnant, and this was not anticipated whenthey made the advance decision) that might affect the validity of theadvance decision, andwhether there have been developments in medical treatment that theperson did not foresee (for example, new medications, treatment ortherapies).‖ 923.79 The Commission agrees with the approach of the Mental CapacityAct 2005. Clarity is of utmost importance to ensure that medical professionalsare clear as to what treatment is being refused, thus ensuring that an advancecare directive is not determined to be inapplicable for ambiguity. Therefore, anadvance care directive which stated ―I do not want life-sustaining treatment‖would not be ―applicable‖ in this sense because the particular life-sustainingtreatment has not been specified.3.80 The Commission provisionally recommended in the ConsultationPaper that an advance care directive will be inapplicable if the author of theadvance care directive did or said anything which would put reasonable doubt inthe mind of a doctor that the author had changed his or her mind. TheCommission notes that the Council of Europe‘s Draft Recommendation onPrinciples Concerning the Legal Protection of Incapable Adults specifies thatmember states should take into consideration situations where there is asubstantial change of circumstance. The Commission accepts that a change ofcircumstance could render an advance care directive inapplicable. Havingconsidered submissions received on the limited scope of the provisionalrecommendation which referred to ―doctor‖, the Commission accepts that a909192Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 4.43.Section 24 of Mental Capacity Act 2005.Code of Practice for Mental Capacity Act 2005, at paragraph 9.43.79
close relationship that can exist between a patient and other health careprofessionals. Thus this proviso should not be limited to doctors but extend toall health care professionals, as widely defined in this <strong>Report</strong>.3.81 The Commission noted in the Consultation Paper that a similarprovision in the English Mental Capacity Act 2005 has been criticised as being―potentially remarkably expansive.‖ 93 In the Consultation Paper the Commissiondiscussed HE v A Hospital Trust. 94 Although decided before the enactment ofthe Mental Capacity Act 2005, it illustrates the potential problem of this section.In this case, a 24-year-old Jehovah‘s Witness, who had been born a Muslim,required a life-saving blood transfusion. Despite having previously written anadvance directive stating that she refused to consent to a blood transfusion ―inany circumstances,‖ her father applied to court for the blood transfusion to beadministered. Her father stated that his daughter had recently become engagedto a Muslim, had promised to convert to that faith and no longer attendedmeetings of the Jehovah‘s Witness. His daughter also had admitted herself to ahospital shortly before her collapse and had made no reference to being aJehoavh‘s Witness and to having objections to blood transfusions. However theadvance directive was only two years old and his daughter had made noattempt to rescind it.3.82 Munby J set out the predicament stating that while:―...too ready a submission to speculative or merely fanciful doubts willrob advance directives of their utility and may condemn those who intruth do not want to be treated to what they would see as indignity orworse, ...too sceptical a reaction to well-founded suggestions thatcircumstances have changed may turn an advance directive into adeath warrant for a patient who in truth wants to be treated.‖ 953.83 Munby J however held that ―the continuing validity and applicability ofthe advance directive must be clearly established by clear and convincingevidence.‖ Munby J concluded that in the circumstances the advance directive:―...cannot have survived her deliberate, implemented decision toabandon that faith and revert to being a Muslim. When the entiresubstratum has gone, and when the very assumption on which the939495Law Reform Commission Consultation Paper Bioethics: Advance Care Directives(LRC CP 51-2008), at paragraph 4.41.[2003] 2 FLR 408.Ibid at 415.80
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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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when determining the capacity quest
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(d)Current use of advance care dire
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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 83 and 84: Practice on Advance Care Directives
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Page 89 and 90: 3.64 The Commission concurs with th
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Page 93: eyond question that a court or a do
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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
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Page 124 and 125: APPENDIX DRAFT MENTAL CAPACITY (ADV
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Page 136 and 137: paragraph 3.13 (palliative care), p
Page 138 and 139: Subsection (2) implements the recom
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