Consultation Paper on Bioethics - Law Reform Commission

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“(a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued.” 1.04 This provision “contains considerable flexibility and carries considerable power.” 2 The author of the advance decision can specify the treatments at issue, and specify any conditions for its application. It applies to the commencement and the continuation of treatment. However, section 24(1) of the English 2005 Act refers only to advance refusals of treatment. An advance decision cannot require a treatment provider to offer a specific treatment. C The origin of advance care directives 1.05 The issues of death and dying have become matters of worldwide public debate in recent years and came to the fore in Ireland in In re a Ward of Court (No 2). 3 In his dissent in the US Supreme Court decision of Cruzan v Director Missouri Department of Health, 4 Stevens J submitted that two factors were responsible for this development: first, the environment in which the process of dying occurs is no longer in the private setting of one‟s home, but has moved to the more public setting of healthcare institutions; second, advances in medical technology have made it possible to indefinitely prolong the lives of terminally ill patients, merging body and machine in a manner that “some might reasonably regard as an insult to life rather than as its continuation.” The Supreme Court of Arizona described this development in Rasmussen v Fleming: “Not long ago the realms of life and death were delineated by a bright line. Now this line is blurred by wondrous advances in medical technology – advances that until recent years were only ideas conceivable by such science-fiction visionaries as Jules Verne and HG Wells. Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some 2 Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.101. 3 [1996] 2 IR 79 4 (1990) 497 US 261 cited in In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2 IR 79 at 133-134. 8
form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity. As more individuals assert their right to refuse medical treatment, more frequently do the disciplines of medicine, law, philosophy, technology and religion collide. This interdisciplinary interplay raises many questions to which no single person or profession has all the answers.” 5 1.06 The idea of advance care treatment decision-making therefore emerged not only as a response to the fear of many that they would become prisoners “trapped by medicine‟s ever-expanding ability to sustain life indefinitely after they lose the ability to voice their wishes about treatment at the end of life” 6 , but also as an acknowledgement of patient autonomy as the paramount principle in bioethics. In this respect it is important to note that, as was discussed in the Ward of Court case, dying is a natural part of life and of living. An advance care directive may therefore be seen as an expression of a person‟s wishes about how their medical treatment impacts on the quality of this part of living. 1.07 Bioethics “asks difficult moral questions and provides decisionmakers with principles to guide them to answers” 7 and Beauchamp and Childress formulated four such principles – respect for autonomy, nonmaleficence, beneficence and justice. 8 The central tenet of the Hippocratic Oath is based on the principle of beneficence – to do good. In its earliest formulation, the Oath dealt with the fundamental idea of „benefit‟ for the patient and it required doctors to: “… keep this oath… for the benefit of my patients and abstain from whatever is deleterious and mischievous… with purity and with 5 (1987) 154 Ariz 207 cited in Re a Ward of Court (No 2) [1996] 2 IR 79 at 131 per O‟Flaherty J. 6 Capron “Advance Directives” in Kuhse and Singer (eds) A Companion to Bioethics (Blackwell Publishing 1998) at 262. 7 Rosato “Using Bioethics Discourse to Determine When Parents Should Make Health Care Decisions for Their Children: Is Deference Justified?” (2000) 73 Temple Law Review 1 at 29. 8 Beauchamp and Childress Principles of Biomedical Ethics (5 th ed Oxford University Press 2001). 9
Page 1: BIOETHICS: ADVANCE CARE DIRECTIVES
Page 4 and 5: LAW REFORM COMMISSION‟S ROLE The
Page 6 and 7: LAW REFORM RESEARCH STAFF Director
Page 8 and 9: CONTACT DETAILS Further information
Page 11 and 12: TABLE OF CONTENTS INTRODUCTION 1 A
Page 13 and 14: CHAPTER 4 FORMALITIES FOR ADVANCE C
Page 15 and 16: TABLE OF LEGISLATION Advance Medica
Page 17 and 18: TABLE OF CASES Airedale NHS Trust v
Page 19: Re B (adult: refusal of medical tre
Page 22 and 23: The Commission therefore confined i
Page 24 and 25: whether current criminal law on hom
Page 26 and 27: discussing whether an advance care
Page 30 and 31: holiness I will pass my life and pr
Page 32 and 33: 1.14 In other words, the Law Commis
Page 34 and 35: two Houses of Parliament. Many of t
Page 36 and 37: Example 4: “I do not wish to rece
Page 38 and 39: common law and under Articles 2, 3
Page 40 and 41: patient. 53 It acknowledged that pa
Page 42 and 43: Therefore, a person can state that
Page 44 and 45: the doctrine of informed consent be
Page 46 and 47: Where there is no benefit in restar
Page 48 and 49: leave the matter to be decided by t
Page 50 and 51: address the situation or may be so
Page 52 and 53: is at least in theory no routine as
Page 55 and 56: 2 CHAPTER 2 LEGAL BASIS FOR THE REC
Page 57 and 58: the principle that „the doctor kn
Page 59 and 60: treatment, such as the withdrawal o
Page 61 and 62: “the law on consent to medical tr
Page 63 and 64: C United States of America (1) Re Q
Page 65 and 66: expressed wishes” regarding medic
Page 67 and 68: D The English legal position (1) Th
Page 69 and 70: compliance. Second, legislation cou
Page 71 and 72: ecommendations of the Law Commissio
Page 73 and 74: F Hong Kong 2.37 The Law Reform Com
Page 75 and 76: nutrition and hydration would only
Page 77 and 78: e reflected in the rules or framewo
Page 79 and 80:
example, refuse a blood transfusion
Page 81 and 82:
2.54 In North Western Health Board
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to the religious convictions of par
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As one of Jehovah‟s Witnesses wit
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3 CHAPTER 3 INFORMED DECISION MAKIN
Page 89 and 90:
the context allows the patient to v
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treatment was not legally binding o
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to consult with a healthcare profes
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(3) Assessing capacity (a) England
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that a person will not be regarded
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She held that Ms K‟s clinicians h
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Capacity to Make Healthcare Decisio
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effective as it would be if he were
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competent child can consent to trea
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Manitoba, a person must be over 16.
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4.03 The decision in W Healthcare N
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a clear note of the decision, the t
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signed by the maker of the advance
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including babies, the elderly and p
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“…a health care or long-term ca
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E Prescribed form 4.34 In certain j
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4.41 The scope of section 25(2)(c)
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These provisions are also considera
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she had been sufficiently informed
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4.53 Australian statutes have dealt
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settings. The health care provider
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4.64 In early living will statutes
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condition in an advance directive p
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(3) Intention to revoke 4.76 A numb
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unjustifiable gravy train for lawye
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4.87 There are some registries for
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“If an act resulting in death is
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(a) directly or indirectly applies
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not covered under this act. 22 The
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the enormous difficulty plaintiffs
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“[a] physician who treats a patie
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law review article in 1986. Althoug
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ubella, her child was born with a d
Page 156 and 157:
cause of action in light of the ave
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that right. 92 In Educational Compa
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purposes as tort law, may still ser
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the 1987 Act contains a presumption
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The Code of Practice cites a number
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the change in circumstances is such
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(b) the recognised ethical standard
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6 CHAPTER 6 SUMMARY OF PROVISIONAL
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6.19 The Commission provisionally r
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