Consultation Paper on Bioethics - Law Reform Commission

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CHAPTER 2 LEGAL BASIS FOR THE RECOGNITION OF
ADVANCE CARE DIRECTIVES
A Introduction
2.01 This Chapter explores the legal basis for recognising advance care
directives. In Part B, the Commission discusses how the constitutional right to
refuse treatment in Irish law provides a framework for advance care directives.
In Part C, the Commission examines US judicial and legislative developments
and whether the „living will‟ has gained widespread acceptance. In Part D, the
Commission discusses the recognition of advance care directives at common
law in England and Wales, and the road to legislative reform, culminating in the
English Mental Capacity Act 2005. In Part E, the Commission explores
Australian laws on advance care directives, and considers whether the
recognition of both common law and statutory advance care directives, resulting
in a two-tier system, would result in unnecessary uncertainty. In Part F, the
Commission discusses the 2006 Hong Kong report on Advance Care
Directives. In Part G, the Commission notes that the right to refuse treatment
can be located in a number of articles contained in the European Convention on
Human Rights, and that the European Convention on Human Rights and
Biomedicine contains a specific article on “previously expressed wishes”. In Part
H, the Commission notes the recommendation of the Manitoba Law Reform
Commission that fundamental principles and policies concerning advance care
directives should be embodied in a statement of the College of Physicians and
Surgeons of Manitoba, as opposed to legislation. In Part I, the Commission sets
out its view that there is a need for a general legal framework for advance care
directives. In Part J, the Commission discusses advance care directives that
refuse treatment on religious grounds, and the recent judgment of Laffoy J in
April 2008 in the K case.
B The Irish legal position
(1) Constitutional right to refuse treatment
2.02 In 1986, Costello J, writing extra-judicially, suggested that the right of
the terminally ill patient to forego life-sustaining treatment is compatible with the
provisions of the Constitution:
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