Consultation Paper on Bioethics - Law Reform Commission

“long can be the road from the drafter‟s chair to the ICU bed.” 133 This can be for
a number for reasons. 134 First, advance care directives may be made years in
advance of any health care treatment. Second, the existence, let alone location
of an instructional directive may be unknown to the attending physicians and
family members. Third, if admitted to hospital in an emergency situation, a
patient may be too overwhelmed by the circumstances to mention or even
remember their advance care directive. One US study found that only 26% of
patients who had previously executed advance care directives had their
directives accurately recorded in their hospital charts. 135 In another US study,
only 35% of nursing home patients who were transferred to hospital had their
advance directives with them. 136 It has been argued that this is a reason why
proxy-type directives usually work better since it is likely that a copy will have
been given to the proxy. 137
4.86 The English Mental Capacity Act 2005 does not refer to any
particular method of storing advance decisions. The Code of Practice for the
2005 Act notes that it is the responsibility of the maker of the advance decision
to ensure that their decision will be drawn to the attention of healthcare
professionals when it is needed. 138 It suggests that makers should inform family
and friends as to the existence of an advance decision, or that makers should
carry a card or wear a bracelet. 139 Kutner proposed that the maker of a living
would carry the document “on his person at all times, while his wife, his
personal physician, a lawyer or confidant would have the original copy.” 140
133 Fagerlin and Schneider “Enough: the Failure of the Living Will” (2004) 34(2)
Hastings Centre Report 30 at 35.
134 Clough “A Critique of Advance Directives and Advance Directives Legislation”
(2006) 11 Appeal: Review of Current Law and Law Reform 16 at 31.
135 Morrison et al “The Inaccessibility of Advance Directives on Transfer from
Ambulatory to Acute Care Settings” (1995) 274(6) JAMA 478.
136 Danis et al “A Prospective Study of the Impact of Patient Preferences on Life-
Sustaining Treatment and Hospital Cost” (1996) 24(11) Critical Care Medicine
1811-17.
137 Capron “Advance Directives” in Kuhse & Sieger (ed) A Companion to Bioethics
(Blackwell Publishing 1998) at 270.
138 Mental Capacity Act 2005 - Code of Practice at paragraph 9.38.
139 Ibid at paragraph 9.38.
140 Kutner “Due Process of Euthanasia: The Living Will, A Proposal” (1969) 44
Indiana Law Journal 539 at 551.
119