Consultation Paper on Bioethics - Law Reform Commission

lacking capacity. 19 As the Commission pointed out in its <strong>Consultation</strong> <strong>Paper</strong> on
Vulnerable Adults and the Law, 20 the Irish courts have not had the opportunity to
set clear boundaries to the scope of the doctrine of necessity and its application
to medical treatment of adults who lack capacity to consent but have not been
made a Ward of Court. 21 The Commission submitted that the lack of clarity on
the doctrine in Irish law has led to conflicting reactions. Some medical
professionals may err on the side of caution and carry out medical treatment on
a patient lacking capacity in a life and death situation only. Other medical
professionals may rely on the doctrine of necessity for all medical treatment of
an adult who lacks the capacity to consent.
5.10 Although a patient may have made an advance care directive, if it
has not been communicated to the healthcare professional, it would appear that
a doctor is justified in treating the patient on the basis that there is a public
interest in preserving the patient‟s life. A doctor will therefore not be liable for
assault. Conversely, if a doctor is aware that an advance care directive exists
which clearly communicates the patient‟s wishes, he or she will be unable to
rely upon the defence of necessity.
(2) Concealment or Destruction of an Advance Care Directive
5.11 There is no general offence for destroying a legal document. Section
11 of the Criminal Justice (Theft and Fraud Offences) Act 2001 states:
“a person is guilty of an offence if he or she dishonestly, with the
intention of making a gain for himself or herself or another, or of
causing loss to another, destroys, defaces or conceals any valuable
security, any will or any testamentary document or any original
document of or belonging to, or filed in, any court or any government
department or office.”
As can be seen, section 11 of the 2001 Act could not apply to the destruction or
concealment of an advance care directive as there is unlikely to be any “gain”
for the person involved.
5.12 Similarly section 20(1) of the English Theft Act 1968 states that the
destruction of valuable securities, wills and government documents, for the
purpose of gain, is an offence. The Law Commission for England and Wales
considered that the destruction or concealment of an advance care directive is
19 [1989] 2 All ER 545 at 565.
20 Law Reform Commission <strong>Consultation</strong> <strong>Paper</strong> on Vulnerable Adults and the Law:
Capacity (LRC CP 37-2005).
21 Ibid at paragraph 7.43.
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