Consultation Paper on Bioethics - Law Reform Commission

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address the situation or may be so ambiguous as to create more confusion than clarity about what the patient would want.” 99 However there are difficulties associated with being an „ideal proxy‟. For proxies who are emotionally connected with the patient, such as relatives and close friends, personal considerations can be hard to disentangle “whether the proxy is unable to face the death of a loved one, or anxious to end the overwhelming financial burden of caring for the patient, or in moral disagreement with the patient‟s considerations.” 100 The difficulty for previously disinterested proxies is that decision-making regarding life-sustaining care is inherently very burdensome which in itself may influence how the proxy makes suitable judgments for the patient. 101 (a) Powers of attorney (i) Commission’s Recommendations and Government Proposals 1.57 An Enduring Power of Attorney (EPA) is a legal mechanism established by the Powers of Attorney Act 1996 for granting certain decisionmaking powers to a nominated attorney in the event that the person loses capacity. At present, EPAs can only give attorneys the power to make decisions about property, financial and business affairs, and personal care decisions on behalf of the donor. As currently defined, personal care decisions cover matters such as where the donor is to live and day-to-day matters, but do not encompass healthcare decisions. In the aftermath of Re a Ward of Court (No 2) 102 calls were made for legislation that would make it possible for patients, by means of a power of attorney, to empower relatives to make treatment decisions on their behalf in the event of incapacity. 103 The Commission has recommended in its 2006 Report on Vulnerable Adults and the Law that an EPA should be capable of permitting an attorney to make certain healthcare decisions on behalf of the donor where the donor lacks capacity to make the 99 Capron “Advance Directives” in Kuhse and Singer (eds) A Companion to Bioethics (Blackwell Publishing 1998) 261, at 266. See also Woollard “The Appointment of Medical Treatment Attorneys: Some Lessons From Australia” (1998) 6 Medical Law Review 297. 100 Emanuel “Advance Directives: What Have We Learned So Far?” in Emanuel 101 Ibid. (advisory ed) Advance Directives: Expectations, Experience and Future Practice (1993) 4(1) The Journal of Clinical Ethics 8 at 10. 102 [1996] 2 IR 79, discussed in Chapter 2, below. 103 Harrington “Constitutional Law – Withdrawal of Treatment from an Incompetent Patient” (1995) 17 DULJ 120 at 135. 30
decision. 104 The Commission believes that this would serve two purposes: first, it would ensure a congruence of approach in decision-making structures; 105 and second, it would avoid a decision-making vacuum occurring in the important area of healthcare. The Commission welcomes the publication in September 2008 of the Government‟s Scheme of Mental Capacity Bill 2008 106 which is largely based on the Commission‟s 2006 Report. The Commission notes that Head 48 of the Scheme proposes to allow and attorney to make health care decisions. The Commission very much looks forward to the publication of the Government‟s Bill based on the Scheme, which is scheduled for 2009. (ii) Lasting powers of attorney 1.58 The English Mental Capacity Act 2005 provides a statutory framework for powers of attorney, now called „lasting‟ powers of attorney (LPAs). 107 The welfare decisions which an attorney will be permitted to make include decisions on the carrying out or continuation of medical treatment. 108 However, neither an LPA nor an advance decision can require a treatment provider to offer a specific treatment. The views of the donor will however, be taken into account in a best interests determination. 109 Section 11(8) of the 2005 Act provides that a donee has the power to refuse life-sustaining treatment on the donor‟s behalf, but only if the LPA says so expressly. 1.59 An LPA that covers matters relating to medical consent can be distinguished from an advance decision: “The [LPA] appoints someone to make treatment decisions, subject to the best interests criteria and such restrictions as are contained in the instrument itself. The advance decision makes the decision: there 104 Law Reform Commission Report on Vulnerable Adults and the Law (LRC 82- 2006) at paragraph 8.43. 105 This range of decisions would be on a par with those which could be made by personal guardians appointed under the proposed mental capacity and guardianship legislation. See Report on Vulnerable Adults and the Law (LRC 82- 2006) at paragraph 6.50 ff. 106 Available at www.justice.ie. 107 Sections 9-14 of the Mental Capacity Act 2005. See Martin “Powers of Attorney – Peace of Mind or Out of Control” (2008) Conveyancer and Property Lawyer 11. 108 Section 11(7)(c) of the Mental Capacity Act 2005. 109 Section 9(4) of the Mental Capacity Act 2005. 31
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 28 and 29: “(a) at a later time and in such
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 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
Page 83 and 84: to the religious convictions of par
Page 85 and 86: As one of Jehovah‟s Witnesses wit
Page 87 and 88: 3 CHAPTER 3 INFORMED DECISION MAKIN
Page 89 and 90: the context allows the patient to v
Page 91 and 92: treatment was not legally binding o
Page 93 and 94: to consult with a healthcare profes
Page 95 and 96: (3) Assessing capacity (a) England
Page 97 and 98: that a person will not be regarded
Page 99 and 100: She held that Ms K‟s clinicians h
Page 101 and 102:
Capacity to Make Healthcare Decisio
Page 103 and 104:
effective as it would be if he were
Page 105 and 106:
competent child can consent to trea
Page 107:
Manitoba, a person must be over 16.
Page 110 and 111:
4.03 The decision in W Healthcare N
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a clear note of the decision, the t
Page 114 and 115:
signed by the maker of the advance
Page 116 and 117:
including babies, the elderly and p
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“…a health care or long-term ca
Page 120 and 121:
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
Page 126 and 127:
she had been sufficiently informed
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4.53 Australian statutes have dealt
Page 130 and 131:
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
Page 136 and 137:
(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
Page 144 and 145:
(a) directly or indirectly applies
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not covered under this act. 22 The
Page 148 and 149:
the enormous difficulty plaintiffs
Page 150 and 151:
“[a] physician who treats a patie
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law review article in 1986. Althoug
Page 154 and 155:
ubella, her child was born with a d
Page 156 and 157:
cause of action in light of the ave
Page 158 and 159:
that right. 92 In Educational Compa
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purposes as tort law, may still ser
Page 162 and 163:
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
Page 173:
6.19 The Commission provisionally r
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