Consultation Paper on Bioethics - Law Reform Commission

not covered under this act. 22 The Law Commission thus recommended the
creation of a new offence. But the English Mental Capacity Act 2005 which was
largely influenced by the Law Commissions recommendations does not include
such an offence.
5.13 If an advance care directive is concealed or destroyed by a member
of the medical profession, it could constitute professional misconduct.
Currently, however, no liability would attach to a person, other than a medical
professional, who concealed or destroyed an advance care directive.
(3) Civil law
(a) Contract
5.14 The doctor-patient relationship is governed in part by principles of
contract law. Actions in contract are thought to be more advantageous to
patients than those in negligence, as they give rise to more onerous obligations
upon the doctor. Moreover, they are actionable without the need to prove
negligence. Nonetheless, claims are rarely taken in contract as tort actions tend
to attract higher damages. 23
(b) Tort
(i) Professional negligence
5.15 The key elements of the tort of negligence are: first, that the doctor
owed the patient a duty of care; second, that the doctor breached that duty,
which will occur if “he has been proved to be guilty of such failure as no medical
practitioner of equal specialist or general status and skill would be guilty of if
acting with ordinary care”; 24 and finally, that the breach of duty caused harm to
the patient. Harm in wrongful living actions, as discussed below, is centred on
the prolongation of life whereas harm in both negligence and battery actions is
that caused by the administration of undesired medical treatment. However, it
would appear that courts in the United States have decided that any injury
22 Law Commission of England and Wales Report on Mental Capacity (No 231
1995) at paragraph 5.38.
23 See Kennedy and Grubb Medical Law (3 rd ed Butterworths 2000) at 272-277;
Mills Clinical Practice and the Law (2 nd ed Tottel Publishing 2007) at paragraphs
3.42-3.61; Tomkin and Hanafin Irish Medical Law (Round Hall Press Dublin 1995)
at 64-66.
24 Dunne v National Maternity Hospital [1989] IR 91 AT 108-110.
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