Consultation Paper on Bioethics - Law Reform Commission

that the Irish Council for Bioethics has published some examples of the different
forms that an advance care directive might take. 49
4.37 The Commission provisionally recommends that it is not necessary
for an advance care directive to be in a prescribed form.
F Validity and applicability generally
4.38 In the English case Re T, Lord Donaldson MR observed that the
binding nature of an advance directive is dependent upon “two major „ifs‟”: if the
choice is clearly established and if it is applicable in the circumstances. 50
Section 25 of the English Mental Capacity Act 2005 echoes the common law
position, containing two important safeguards, namely, that an advance
decision must be both valid and applicable to the proposed treatment.
4.39 It is ultimately the responsibility of the healthcare professional who is
in charge of the patient‟s care to decide whether there is an advance decision
which is valid and applicable in the circumstances. 51 In the event of doubt, the
Court of Protection can rule on whether an advance decision exists, is valid and
is applicable to the treatment proposed. 52 If the court rules that it is, the decision
must be respected. There is no mechanism for the court to overrule a valid and
applicable advance decision to refuse treatment.
(1) Valid
4.40 Section 25(2) of the English Mental Capacity Act 2005 states that an
advance decision is not valid if the maker of an advance decision has:
(a) “withdrawn the decision at a time when he had capacity to
do so;
(b) under a lasting power of attorney created after the advance
decision was made, conferred authority on the donee (or, if
more than one, any of them) to give or refuse consent to
the treatment to which the advance decision relates; or
(c) done anything else clearly inconsistent with the advance
decision remaining his fixed decision.” 53
49 Irish Council for Bioethics Is it Time for Advance Care Directives? (2007)
Appendix 4.
50 [1992] 4 All ER 649 at 653.
51 Mental Capacity Act 2005 - Code of Practice at paragraph 9.64.
52 Section 26(4) of the Mental Capacity Act 2005.
53 Section 25(2) of the Mental Capacity Act 2005.
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