Consultation Paper on Bioethics - Law Reform Commission

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signed by the maker of the advance decision or by another person in the maker‟s presence and by the maker‟s direction, and that signature is made or acknowledged in the presence of a witness who signs or acknowledges his/her signature in the presence of the maker of the decision; verified by a statement by the maker to the effect that it is to apply to that treatment even if his/her life is at risk. 4.15 The common law had no such formalities in these circumstances. Unlike the provisions relating to validly executed enduring powers of attorney, there are no transitional provisions for advance refusals of life-sustaining treatment. If an individual made an advance refusal of life-sustaining treatment prior to the enactment of the Mental Capacity Act 2005, they must execute a new decision that complies with section 25 of the Act. 4.16 Where there are doubts as to the validity and applicability of an advance decision, section 26(5) of the English 2005 Act provides that lifesustaining treatment may be given to the maker and any other act may be done to prevent a serious deterioration of the maker‟s condition, while a decision is sought from the court. A potential danger associated with section 26(5) however, is that a treatment provider may seek a court declaration, not because of any genuine reservations regarding the validity and applicability of an advance decision, but rather to avail of life-sustaining treatment pending the court decision. However, according to section 26(2), a treatment provider does not incur liability for carrying out treatment, unless at the time, he is “satisfied” that an advance decision exists which is valid and applicable to the treatment. Therefore, potential liability could ensue. 22 (2) Queensland 4.17 In Queensland, significantly greater restrictions are imposed where a direction in an advance health directive relates to the withholding or withdrawal of a life-sustaining measure. The definition of a “life-sustaining measure” is defined in a more specific manner than in the English Mental Capacity Act 2005. Section 5A of the Queensland Powers of Attorney Act 1988 states that: (1) “A „life-sustaining measure‟ is health care intended to sustain or prolong life and that supplants or maintains the operation of vital bodily functions that are temporarily or permanently incapable of independent operation. 22 Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 3.26. 94
(2) Without limiting subsection (1), each of the following is a „lifesustaining measure‟ – (a) cardiopulmonary resuscitation; (b) assisted ventilation; (c) artificial nutrition and hydration. (3) A blood transfusion is not a “life-sustaining measure”. 4.18 The Queensland 1998 Act also states that two or three conditions must be met (depending on the circumstances). First, the adult‟s health must be in decline and the adult must: have a terminal illness, or a condition that is incurable or irreversible, from which the adult may reasonably be expected to die within one year; or be in a persistent vegetative state; be permanently unconscious; or have an illness or injury of such severity that there is no reasonable prospect that the adult will recover to an extent that life-sustaining measures will not be needed. 23 4.19 Second, the advance health directive can only apply if the adult has no reasonable prospect of regaining capacity for health matters. 24 The third condition will only apply if the advance health directive directs that artificial nutrition and hydration is to be withheld or withdrawn. The commencement or continuation of artificial nutrition and hydration must be inconsistent with good medical practice in order for the directive to be valid. 25 (3) Artificial Nutrition and Hydration (ANH) 4.20 Withdrawal of artificial nutrition and hydration (ANH) will usually lead to death, but can it be described as life-sustaining medical treatment? While it can be argued that the removal of ANH simply allows nature to take its course, Power points out that many people require assistance in their feeding, 26 23 Section 36(2)(a) of the Powers of Attorney Act 1998 (Qld). 24 Section 36(2)(c) of the Powers of Attorney Act 1998 (Qld). 25 Section 36(2)(b) of the Powers of Attorney Act 1998 (Qld). 26 Power, “Bioethics and the End of Life” (2008) Bar Review 19 at 21. 95
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BIOETHICS: ADVANCE CARE DIRECTIVES
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LAW REFORM COMMISSION‟S ROLE The
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LAW REFORM RESEARCH STAFF Director
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CONTACT DETAILS Further information
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TABLE OF CONTENTS INTRODUCTION 1 A
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CHAPTER 4 FORMALITIES FOR ADVANCE C
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TABLE OF LEGISLATION Advance Medica
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TABLE OF CASES Airedale NHS Trust v
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Re B (adult: refusal of medical tre
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The Commission therefore confined i
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whether current criminal law on hom
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discussing whether an advance care
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“(a) at a later time and in such
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holiness I will pass my life and pr
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1.14 In other words, the Law Commis
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two Houses of Parliament. Many of t
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Example 4: “I do not wish to rece
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common law and under Articles 2, 3
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patient. 53 It acknowledged that pa
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Therefore, a person can state that
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the doctrine of informed consent be
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Where there is no benefit in restar
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leave the matter to be decided by t
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address the situation or may be so
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is at least in theory no routine as
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2 CHAPTER 2 LEGAL BASIS FOR THE REC
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the principle that „the doctor kn
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treatment, such as the withdrawal o
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“the law on consent to medical tr
Page 63 and 64: C United States of America (1) Re Q
Page 65 and 66: expressed wishes” regarding medic
Page 67 and 68: D The English legal position (1) Th
Page 69 and 70: compliance. Second, legislation cou
Page 71 and 72: ecommendations of the Law Commissio
Page 73 and 74: F Hong Kong 2.37 The Law Reform Com
Page 75 and 76: nutrition and hydration would only
Page 77 and 78: e reflected in the rules or framewo
Page 79 and 80: example, refuse a blood transfusion
Page 81 and 82: 2.54 In North Western Health Board
Page 83 and 84: to the religious convictions of par
Page 85 and 86: As one of Jehovah‟s Witnesses wit
Page 87 and 88: 3 CHAPTER 3 INFORMED DECISION MAKIN
Page 89 and 90: the context allows the patient to v
Page 91 and 92: treatment was not legally binding o
Page 93 and 94: to consult with a healthcare profes
Page 95 and 96: (3) Assessing capacity (a) England
Page 97 and 98: that a person will not be regarded
Page 99 and 100: She held that Ms K‟s clinicians h
Page 101 and 102: Capacity to Make Healthcare Decisio
Page 103 and 104: effective as it would be if he were
Page 105 and 106: competent child can consent to trea
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Page 110 and 111: 4.03 The decision in W Healthcare N
Page 112 and 113: a clear note of the decision, the t
Page 116 and 117: including babies, the elderly and p
Page 118 and 119: “…a health care or long-term ca
Page 120 and 121: E Prescribed form 4.34 In certain j
Page 122 and 123: 4.41 The scope of section 25(2)(c)
Page 124 and 125: These provisions are also considera
Page 126 and 127: she had been sufficiently informed
Page 128 and 129: 4.53 Australian statutes have dealt
Page 130 and 131: settings. The health care provider
Page 132 and 133: 4.64 In early living will statutes
Page 134 and 135: condition in an advance directive p
Page 136 and 137: (3) Intention to revoke 4.76 A numb
Page 138 and 139: unjustifiable gravy train for lawye
Page 140 and 141: 4.87 There are some registries for
Page 142 and 143: “If an act resulting in death is
Page 144 and 145: (a) directly or indirectly applies
Page 146 and 147: not covered under this act. 22 The
Page 148 and 149: the enormous difficulty plaintiffs
Page 150 and 151: “[a] physician who treats a patie
Page 152 and 153: law review article in 1986. Althoug
Page 154 and 155: ubella, her child was born with a d
Page 156 and 157: cause of action in light of the ave
Page 158 and 159: that right. 92 In Educational Compa
Page 160 and 161: purposes as tort law, may still ser
Page 162 and 163: the 1987 Act contains a presumption
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The Code of Practice cites a number
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the change in circumstances is such
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(b) the recognised ethical standard
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6 CHAPTER 6 SUMMARY OF PROVISIONAL
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6.19 The Commission provisionally r
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Consultation Paper on Bioethics - Law Reform Commission

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