Consultation Paper on Bioethics - Law Reform Commission

applicable in the circumstances which have subsequently occurred. US studies
have measured the stability of advance care directive preferences over periods
of up to two years. One such study examined the treatment preferences of 51
older people two years after they completed their directives. Most treatment
preferences remained moderately stable. However, investigators also found that
when the preferences of some participants had changed, they were often
unaware of it. Therefore, they were unlikely to alter their directives, and were
left with directives that did not accurately state their treatment preferences. 123
4.80 The English Mental Capacity Act 2005 does not require individuals to
review an advance decision. However, the Code of Practice for the 2005 Act
suggests that “[a]nyone who has made an advance decision is advised to
regularly review and update it as necessary.” 124 The Scottish Executive‟s Guide
to Advance Statements states that an individual does not have to review an
advance statement, but that it is a “good idea” to do so every six months. 125 The
Irish Council for Bioethics recommended that individuals review and update
their advance care directive on a relatively regular basis to reflect changes in
medical science and also any changes in the individual‟s values and beliefs. 126
(1) Time limits
4.81 Should an advance care directive lapse after a specified number of
years unless reviewed? On the one hand, it “might be undesirable if the
person‟s fate should be determined by means of an instrument executed
decades ago and now forgotten”. 127 This was one of the reasons which led the
British Medical Association to reject the idea of legally enforceable advance
directives outright. 128 On the other hand, there is a great likelihood of people
forgetting to renew their advance directive and if documents had to be reexecuted
periodically to ensure their ongoing validity, it would “create an
123 Dresser “Precommitment: A Misguided Strategy for Securing Death With Dignity”
(2003) 81 Texas Law Review 1823 at 1835.
124 Mental Capacity Act 2005 - Code of Practice at paragraph 9.29.
125 The New Mental Health Act: A Guide to Advance Statements (Scottish Executive
2005) at 11.
126 Is it Time for Advance Healthcare Directives? (The Irish Council for Bioethics
2007) at 35.
127 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) at 59.
128 British Medical Association “Advance Declarations” in Euthanasia (London BMA
1988) chapter 12 at paragraph 234.
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