Consultation Paper on Bioethics - Law Reform Commission

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settings. The health care provider must not provide treatment if there are “reasonable grounds” to believe that a person expressed an “instruction or wish” to refuse specific treatment. It has been argued that the use of the word “wish” indicates that an oral statement may be sufficient. 98 The only express limitation is that the instruction or wish must be made after the person is 19 years old in British Columbia, or 16 years old in Ontario. (8) Conclusion 4.59 In the Commission‟s view, in order to be valid, the advance care directive must have been created while the author had the capacity to do so. The author of an advance care directive can consent to the treatment which they have refused in the advance care directive, provided they had the capacity to do so. It may not be possible to make the revocation of an advance care directive known. Thus if the patient has done or said anything which puts reasonable doubt in the doctors mind, the doctor should proceed with the treatment. After all, the bias must always be in favour of preserving life. When considering whether the advance care directive is valid under such circumstances, the Commission considers that, the doctor should take into consideration the length of time that has elapsed between the drawing up or revision of the advance care directive and the time it came into effect. However while time may have altered a person‟s perspective, it may not necessarily have changed a person‟s opinion. A doctor may take into consideration any actions or statements made while the author of the advance care directive was competent. 4.60 In addition, the Commission considers a doctor should make all attempts to decipher what a patient intended in their advance care directive. However, time may make a once clear advance care directive ambiguous. If a doctor is unsure about the advance care directive they should not second guess the wishes of the patient. Bearing these considerations in mind, the Commission turns to set out its provisional recommendations on this: 4.61 The Commission provisionally recommends that an advance care directive will not be valid if The author of the advance care directive did not have capacity at the time of its creation The creation of the advance care directive was not a voluntary act of the author 98 Clough “A Critique of Advance Directives and Advance Directives Legislation” (2006) 11 Appeal: Review of Current Law and Law Reform 16 at 26. 110
The author changed their mind and communicated this change of mind A written advance care directive refusing life-sustaining medical treatment was not witnessed and if the person did not consult with a medical professional 4.62 The Commission provisionally recommends that an advance care directive is not applicable if G Triggering event It is ambiguous in relation to the proposed treatment If all the circumstances outlined in the advance care directive are present If, while competent, the author of the advance care directive said or did anything which puts reasonable doubt in the mind of the doctor that the author had changed their mind but did not have the opportunity to revoke the advance care directive. 4.63 The 1998 King‟s College Working Party Report raised the vital question of specifying at what point an advance directive should be activated: “In respect of the triggering event three alternatives are possible. The trigger can be incompetence alone, or incompetence with the addition of a particular condition or disability, or incompetence with the addition of terminal illness. Each of these definitions give rise to particular difficulties. Incompetence alone may cause a living will to be implemented in circumstances which some people would consider inappropriate, for example, a moderate degree of dementia without some other disability. Incompetence plus specified conditions or disabilities may lead to problems because of the impossibility of itemising every conceivable event triggering clinical circumstances, and the uncertainty in interpreting those which are specified. Incompetence plus terminal illness does not capture all the circumstances under which many people would wish a living will to be instituted. It may also cause problems if clinicians interpret terminal illness restrictively, as occurred in the operation of the California Natural Death Act 1976.” 99 99 Kings‟ College London The Living Will: Consent to Treatment at the End of Life (Working Party Report, Age Concern and Centre of Medical Law and Ethics (1988). 111
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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
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F Hong Kong 2.37 The Law Reform Com
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nutrition and hydration would only
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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 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 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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