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

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advance directive was based has been destroyed by subsequentevents then...the refusal ceases to be effective.‖ 963.84 Questions arose in submissions made to the Commission during theconsultation process as to what is meant by ―reasonable doubt‖ and by whomthis is determined. The Commission considers that if reasonable doubt exists,this should be discussed with all individuals involved in the care of the person.This would include, but not be limited to, doctors, nurses and a proxy (if one hasbeen appointed). The Commission is concerned that this provision should notbe abused and a high threshold of doubt must be satisfied before the advancecare directive is not followed, as it must be seen as the most authoritativeindication of a person‘s wishes. 97 Thus there must be a radical change incircumstances to render the advance care directive inapplicable. TheCommission accordingly recommends that the Code of Practice provideguidance to medical profession regarding the circumstances in whichreasonable doubt would render the advance care directive inapplicable. 983.85 Section 26(4) of the English Mental Capacity Act 2005 provides thatthe Court of Protection has the power to make a declaration as to whether anadvance decision exists, is valid and is applicable to a treatment. TheCommission is of the opinion that if there is uncertainty regarding an advancecare directive, ultimate authority to interpret the advance care directive mustreside with a court. In this respect the Commission also notes that theGovernment‘s Scheme of a Mental Capacity Bill 2008 proposes to conferdecision-making authority on the High Court, using the proposed title ―the Courtof Care and Protection.‖ While the Scheme of the 2008 Bill also proposes toconfer some jurisdiction on the Circuit Court, the Scheme proposes to reservecertain decisions to the High Court, including those concerning end of life. TheCommission considers that, in order to ensure that there is consistency in thecontext of recommending that the legislative framework on advance caredirectives be placed within the Scheme of the 2008 Bill, the High Court wouldalso be the appropriate court to deal with issues concerning advance caredirectives. The Commission accordingly recommends that the High Court bepowered to determine whether an advance care directive exists, whether it isvalid and whether it is applicable to the relevant treatment under consideration.969798[2003] 2 FLR 408, at 422.See Maclean ―Advance Directives and the Rocky Waters of Anticipatory Decision-Making‖ (2008) 16 (1) Medical Law Review 1 for analysis of this point and HE vAn Hospital Trust.See also paragraphs 1.101-1.106.81
3.86 The Commission recommends that an advance care directive will beapplicable ifThe treatment is the treatment specified in the advance care directiveAll the circumstances outlined are presentWhile competent, the author of the advance care directive said or didnothing which puts reasonable doubt in the mind of the health careprofessional that the author had changed their mind but did not havethe opportunity to revoke the advance care directive.If the advance care directive is ambiguous, there will be a presumptionin favour of the preservation of life.3.87 The Commission recommends that the High Court be empowered todetermine whether an advance care directive exists, whether it is valid andwhether it is applicable to the relevant treatment under consideration.(8) Revocation3.88 In the Consultation Paper, while the Commission provisionallyrecommended that certain formalities in the creation of an advance caredirective should apply, the Commission also provisionally recommended that aninformal revocation should be sufficient to revoke the advance care directive. 99The Commission agrees with the view that to require a formal revocation maymean that ―a person is unable to effect change for procedural reasons‖ thusdepriving a person of their autonomy. 100 The Commission would favour theapproach taken in Singapore that an advance care directive may be revoked inwriting, orally or ―in any other way in which the patient can communicate.‖ 101The Commission emphasises that the person must, of course, have thecapacity to revoke the advance care directive at the time of revocation.3.89 The Commission recommends that a competent person can verballyrevoke their advance care directive regardless of whether there is a verbal orwritten advance care directive.(9) Review3.90 In the Consultation Paper, the Commission provisionallyrecommended that, while an advance care directive should be reviewed99100101See Law Reform Commission Consultation Paper Bioethics: Advance CareDirectives (LRC CP 51-2008), at paragraphs 4.69-4.76.Maclean ―Advance Decisions and the Rocky Waters of Anticipatory Decision-Making‖ [2007] Medical Law Review 1, at 12.Section 7(1) of the Advance Medical Directive Act 1996 (Singapore).82
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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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e upheld. Indeed, this conclusion f
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 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
Page 64 and 65: donor understands the effect of mak
Page 66 and 67: should be referred to the High Cour
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Page 71 and 72: dentist 3psychologist 4social care
Page 73 and 74: should be defined to include, but i
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Page 77 and 78: Similarly, Power argues that there
Page 79 and 80: assist either health care professio
Page 81 and 82: approach met with broad approval an
Page 83 and 84: Practice on Advance Care Directives
Page 87 and 88: (other than charges and directions
Page 89 and 90: 3.64 The Commission concurs with th
Page 91 and 92: advance care directive involves a r
Page 93 and 94: eyond question that a court or a do
Page 95: close relationship that can exist b
Page 99 and 100: care directive. 105 The Commission
Page 101 and 102: the wishes or making their own deci
Page 103 and 104: sustaining treatment or whether the
Page 105 and 106: (b) for the guidance of persons, in
Page 107 and 108: omission.‖ 5 The Supreme Court in
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
Page 126 and 127: Mental Health Act 2001Powers of Att
Page 128 and 129: ―basic care‖ includes, but is n
Page 130 and 131: (3) The scope of an advance care di
Page 132 and 133: (ii) the name and address of that p
Page 134 and 135: (b) Without prejudice to section 5(
Page 136 and 137: paragraph 3.13 (palliative care), p
Page 138 and 139: Subsection (2) implements the recom
Page 140 and 141: www.lawreform.ie
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