Consultation Paper on Bioethics - Law Reform Commission

the 1987 Act contains a presumption concerning the harmful effect of
any substances or preparation administered. 116
5.45 It is clear that some of these features of the 1987 Act are specific to
the context of clinical trials, but they provide some useful elements which might
be included in a statutory scheme for advance care directives.
(2) England and Wales
(a) Mental Capacity Act 2005
5.46 In its 1995 Report, the Law Commission of England and Wales made
two recommendations with regard to the liability of health care providers. 117
First, it recommended that no person should incur liability for the consequences
of withholding any treatment or procedure if he or she has reasonable grounds
for believing that an advance refusal of treatment applies. It noted that although
this was the present law, the importance of the rule was such that it should be
set out in the proposed statute. Second, it recommended that no person should
incur liability for carrying out any treatment or procedure to which an advance
refusal applies unless he or she has reasonable grounds for believing that an
advance refusal applies.
5.47 At first glance, section 26 of the English Mental Capacity Act 2005
appears to incorporate both recommendations of the Law Commission. Section
26(3) states that:
“ a person does not incur liability for the consequences of withholding
or withdrawing a treatment from [the maker of the decision] if, at the
time, he reasonably believes that an advance decision exists which is
valid and applicable to the treatment.” 118
In a similar vein, section 26(2) of the 2005 Act states that:
“a person does not incur liability for carrying out or continuing the
treatment unless, at the time, he is satisfied that an advance decision
exists which is valid and applicable to the treatment.” 119
115 Section 13(1)(b) of the Control of Clinical Trials Act 1987.
116 Section 14 of the Control of Clinical Trials Act 1987.
117 The Law Commission for England and Wales Report on Mental Incapacity (No
231 1995) at paragraph 5.27.
118 Emphasis added. See also Mental Capacity Act 2005 – Code of Practice at
paragraph 9.59.
119 Emphasis added.
142