Consultation Paper on Bioethics - Law Reform Commission

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condition in an advance directive purporting to make it irrevocable is contrary to public policy and void.” 109 (2) Incapacity and revocation 4.71 A difficult question arises when a patient attempts revocation when incompetent. In other words, can the incompetent patient change his or her mind? 4.72 In principle, the onset of incapacity should be a triggering event that makes the advance care directive irrevocable. Cantor argues that to hold otherwise would give “dominion to the deranged expressions of [seriously demented] persons” and “would make a mockery of self-determination when the expressions override a carefully considered advance directive.” 110 To implement the advance directive without the patient‟s co-operation would however, not only infringe whatever remnants of autonomy that the patient retains, but would also be of concern to a caring and beneficent profession. 111 Moreover, Kadish propounds that continuing treatment is justified on the sole basis that it shows “compassion for the human being before us.” 112 In response, Olick warns that appealing to “human compassion alone as an ethical norm smuggles a current experiential best interests standard in the back door” and is “susceptible to ready abuse.” 113 He proposes a non-categorical approach that an advance care directive “should be treated as if suspended as long as the patient continues to manifest a desire for continued life.” 114 4.73 Munby J raised, this question in HE v A Hospital NHS Trust. He observed that the patient was essentially in the “twilight position” of having made an advance decision refusing treatment while competent, but appeared compliant with treatment following a loss of capacity. 115 The English Mental 109 EWHC 1017; [2003] 2 FLR 408 at paragraph 37. 110 Cantor Advance Directives and the Pursuit of Death with Dignity (Bloomington: Indiana University Press 1993) at 85. 111 McLean “Advance Directives and the Rocky Waters of Anticipatory Decision- Making” (2008) 16(1) Medical Law Review 1 at 19. 112 Kadish “Letting Patients Die: Legal and Moral Reflections” (1992) 80 California Law Review 857 at 876. 113 Olick Taking Advance Directives Seriously: Prospective Autonomy and Decisions Near the End of Life (Georgetown University Press Washington DC 2001) at 192. 114 Ibid at 193. 115 Olick Taking Advance Directives Seriously: Prospective Autonomy and Decisions Near the End of Life (Georgetown University Press Washington DC 2001) at fn 2. 114
Capacity Act 2005 does little to clarify the situation. On the basis of section 24(3) of the 2005 Act, the passive compliance of a patient would not be enough to revoke an advance decision as it refers specifically to capacity: “P may withdraw or alter an advance decision at any time when he has the capacity to do so.” Section 25(2)(c) could be interpreted to include decisions made when a patient has lost capacity as there is no explicit reference to capacity. It states that an advance decision will be invalid if: “P has done anything else clearly inconsistent with the advance decision remaining his fixed decision.” It may also be argued that section 25(2)(c) should be interpreted in light of section 24(3). However, had the UK Parliament wanted section 25(2)(c) to be limited to adults with capacity, then it could have made this explicit in the section as they did in section 24(3). 116 4.74 More controversial issues arise if the treatment requested is lifesustaining, as such treatment raises questions regarding the right to life in Article 40.3 of the Constitution of Ireland and Article 2 of the European Court of Human Rights (ECHR). The right to life under Article 40.3 is enjoyed by everyone, including those lacking capacity. 117 There is no Irish or ECHR jurisprudence that addresses how a competent, advance refusal of a lifesustaining treatment should affect the current and incompetent views of an individual apparently now wishing to have that treatment. 4.75 In Re Martin 118 demonstrates the danger of disregarding an advance directive based on the incompetent patient‟s wishes. In that case, the patient suffered a traumatic brain injury and as a result was unable to walk and talk. 116 Olick Taking Advance Directives Seriously: Prospective Autonomy and Decisions Near the End of Life (Georgetown University Press Washington DC 2001) at 20. Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.115. 117 In re a Ward of Court (No 2) [1996] 2 IR 79 at 169 per Denham J: “Respect is given to the life of the ward. Her life is no less protected or guarded than any other person‟s. Her rights as a citizen stand.” 118 538 NW2d (Mich 1995) 229 cited in Michalowski “Advance Refusal of Life- Sustaining Medical Treatment: The Relativity of an Absolute Right” (2005) 68(6) Modern Law Review 958 at 980. 115
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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
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example, refuse a blood transfusion
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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 130 and 131: settings. The health care provider
Page 132 and 133: 4.64 In early living will statutes
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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