Consultation Paper on Bioethics - Law Reform Commission

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These provisions are also considerably broad in scope. When deciding whether an advance decision applies to the proposed treatment, the Code of Practice for the 2005 Act merely advises healthcare professionals to consider: how long ago the advance decision was made; and whether there have been changes in the patient‟s personal life (for example, the person is not pregnant, and this was not anticipated when they made the advance decision) that might affect the validity of the advance decision; and whether there have been developments in medical treatment that the person did not foresee. 65 4.44 It has been argued that whilst the broad language of section 25 allows a patient to avail of progress in medical science, it may also allow a court to exploit its provisions, if reluctant to uphold a refusal of treatment. 66 4.45 Neither the 2005 Act nor the Code of Practice for the 2005 Act clarifies what level of detail is required in order for a refusal of a „specified‟ treatment to be applicable. Guidance may be found from the case W Healthcare NHS Trust v H. 67 There, the court accepted that some of the patient‟s previous statements may have been sufficiently clear, for example, her desire not to be kept alive on “life support machines.” 68 However, the other remaining general statements refusing treatment based on quality of life considerations were insufficiently precise to amount to an applicable advance directive. 69 Therefore, the court held that she had not refused the artificial nutrition and hydration. (3) If an advance decision is not valid or applicable 4.46 If an advance decision is not valid or applicable to current circumstances: healthcare professionals must consider the advance decision as part of their assessment of the person‟s best interests if they have reasonable grounds to think it is a true expression of the person‟s wishes, and they must not assume that because an advance decision is either invalid or not applicable, they should always provide the specified 65 Mental Capacity Act 2005 - Code of Practice at paragraph 9.43. 66 Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.107. 67 [2005] 1 WLR 834. 68 Ibid at 839 per Brooke LJ. 69 Ibid at 840 per Brooke LJ. 104
treatment (including life-sustaining treatment) – they must base this decision on what is in the person‟s best interests. 70 (4) Bias in favour of preserving life 4.47 In determining the validity of an advance care directive, a healthcare professional or a court must engage in a delicate balancing exercise involving the right to self-determination and the principle of the sanctity of life. 71 A number of commentators have concluded that, in cases of doubt, a strong bias in favour of the sanctity of life has emerged. 72 For example, in England, it has been contended that both the English Mental Capacity Act 2005, as well as the common law, apply a bias against the validity or applicability of an advance decision refusing life-sustaining treatment. In Re T, Lord Donaldson MR declared that the burden of proof is on those who seek to establish an advance decision that refuses life-sustaining or life-saving treatment. If there is doubt, “that doubt falls to be resolved in favour of the preservation of life.” The evidence must be scrutinised with “especial care”. 73 Equally, as can be seen from a comparison of sections 26(2) and 26(3) of the English Mental Capacity Act 2005, the criteria for avoiding liability are much stricter than those for disregarding an advance decision. 74 4.48 By way of contrast, in the Canadian case of Malette v Shulman, 75 there was a considerable degree of doubt on the part of the treating doctor, regarding the validity of an advance refusal of treatment which was contained on a card in the patient‟s purse. For example, it was unknown whether the patient might have changed her religious beliefs before the accident, whether the card may have been signed as a result of family or peer pressure, whether 70 Mental Capacity Act 2005 - Code of Practice at paragraph 9.45. 71 Denham J acknowledged not only the right to determine one‟s own medical treatment, but also that the right to life in Article 40.3 encompasses the concept of the sanctity of life: In re a Ward of Court (No 2) [1996] 2 IR 79 at 161. 72 Munby “Rhetoric and Reality: The Limitations of Patient Self-Determination in Contemporary English Law” (1998) 14 Journal of Contemporary Health Law and Policy 315 at 328-329; Willmott, White and Howard “Refusing Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment” (2006) 30 Melbourne University Law Review 211 at 236; Michalowski “Advance Refusals of Life- Sustaining Medical Treatment: The Relativity of an Absolute Right” (2005) 68(6) Modern Law Review 958. 73 [1992] 4 All ER 649 at 661 per Lord Donaldson MR. 74 See paragraphs below on liability under the Mental Capacity Act 2005. 75 (1990) 67 DLR (4 th ) 321 at 331-332 per Robins JA 105
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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
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C United States of America (1) Re Q
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expressed wishes” regarding medic
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D The English legal position (1) Th
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compliance. Second, legislation cou
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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
Page 107: Manitoba, a person must be over 16.
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 114 and 115: signed by the maker of the advance
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 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
Page 164 and 165: The Code of Practice cites a number
Page 166 and 167: the change in circumstances is such
Page 168 and 169: (b) the recognised ethical standard
Page 171 and 172: 6 CHAPTER 6 SUMMARY OF PROVISIONAL
Page 173: 6.19 The Commission provisionally r
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