Consultation Paper on Bioethics - Law Reform Commission

two Houses of Parliament. Many of the submissions to the Joint Committee
were concerned with advance decisions which provided for the withdrawal of
life-sustaining treatment. 28 The Committee rejected the argument that this would
“bring euthanasia a step closer”; instead regarding an advance care directive as
an “appropriate continuation of respect for a patient‟s individual autonomy.” 29
Section 62 of the Mental Capacity Act 2005 specifically states that the criminal
laws relating to homicide, euthanasia and assisted suicide are unchanged by
the Act. Similarly the Commission is of the opinion that any introduction of
legislation regarding advance care directives in this jurisdiction should not affect
the laws on euthanasia and assisted suicide. In that respect the Commission
emphasises that this <strong>Consultation</strong> <strong>Paper</strong> and project will not affect these
aspects of current law.
(2) Negative advance care directives v positive advance care
directives
1.22 As medical technology developed, patients invoked the autonomy
argument to refuse treatment that merely prolonged the dying process. In effect,
patients were informing physicians through advance care directives that,
“treatment that could not return them to an acceptable quality of life was futile.” 30
More recently, a logical extension (or what others have termed a “darker side”) 31
of the autonomy argument has emerged: namely, that one should respect the
wishes of a person who has executed an advance care directive not to stop lifesustaining
treatment, even if such treatment is futile.
1.23 However, it has been argued that the right to self-determination is a
misnomer, as one does not have a right to determine what shall be done to
one‟s own body; rather, there is only a right to determine what shall not be done
28 Exworthy “Psychiatric advance decisions – an opportunity missed” (2004) Mental
Health Law 129 at 138.
29 House of Lords, House of Commons Joint Committee on the Draft Mental
Incapacity Bill (2003) Session 2002 03. Volume I. HL <strong>Paper</strong> 189-1, HC 1083-1.
London: The Stationery Office at paragraph 199.
30 Pripp and Moretti, “Medical Futility: A legal perspective” in Zucker and Zucker
(eds) Medical Futility and the Evaluation of Life-Sustaining Interventions
(Cambridge University Press, 1997) 136 at 137.
31 Jecker “Being a Burden on Others” in Capron (ed) “Medical Decision Making and
„The Right to Die‟ after Cruzan” (1991) 19 Law Medicine and Health Care 16 at
19.
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