Consultation Paper on Bioethics - Law Reform Commission

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passive implementation by medical staff and a lack of physician involvement. 56 Moreover, it has been estimated that the 1990 Act imposed a start-up cost of $101,596,922 (omitting administration costs) on all hospitals. Fagerlin and Schneider argue that the 1990 Act should therefore be repealed as it was “passed with arrant and arrogant indifference to its effectiveness and its costs.” 57 Second, it has been submitted that people do not know what they actually want, analysing “their choices only superficially before placing them in a time capsule.” 58 A meta-analysis of eleven studies found that almost one-third of preferences for life-sustaining medical treatment changed over periods as short as two years. 59 Third, people cannot articulate their choices accurately. Most advance directive forms do not solve this problem as they have fail to ask all the right questions, and they ask those questions in a manner that fails to elicit a clear response. 60 Fourth, living wills had failed to stimulate conversation between doctor and patient about terminal treatment. In one study, doctors commonly “did not explore the reasons for patient‟s preferences and merely determined whether they wanted specific interventions” with the average discussion lasting 5.6 minutes (physicians speaking for an average of 3.9 minutes and patients speaking for the remaining 1.7 minutes). 61 56 Yates and Glick “The Failed Patient Self-Determination Act and Policy Alternatives for the Right to Die” (1997) Journal of Aging and Social Policy 29 at 31 cited in Fagerlin and Schneider “The Failure of the Living Will” (2004) Hastings Centre Report 30 fn 33 at 32. 57 Fagerlin and Schneider, “The Failure of the Living Will” (2004) Hastings Centre Report 30 fn 33 at 39. 58 Ibid at 33. 59 Coppola et al “Are Life-Sustaining Treatment Preferences Stable over Time? An Analysis of the Literature” unpublished manuscript cited in Fagerlin and Schneider op cit fn 33 at 34. 60 Pope “The Maladaptation of Miranda to Advance Directives” (1999) 9(1) Journal of Law-Medicine 139 at 165-166 cited in Fagerlin and Schneider op cit fn 33 at 34. 61 Tulsky et al “Opening the Black Box: How Do Physicians Communicate about Advance Directives?” (1998) 129 Annals of Internal Medicine 441 at 444 cited in Fagerlin and Schneider “The Failure of the Living Will” (2004) Hastings Centre Report 30 fn 33 at 37. 46
D The English legal position (1) The recognition of advance care directives at common law 2.26 The legal force of advance directives was first explicitly accepted in 1990 in Re T. 62 Lord Donaldson MR delivered a significant judgment that highlighted the value of autonomy: “An adult patient…who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered…This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even nonexistent.” 63 2.27 Although the English Court of Appeal held that T‟s refusal of treatment was vitiated by her mother‟s undue influence, Lord Donaldson MR proceeded to consider the validity of a patient‟s anticipatory refusal of treatment. He suggested that, in principle, advance decisions would be binding if three requirements were satisfied: first, the patient must be competent at the time the advance decision is made; second, the patient must have anticipated the circumstances when the advance decision would have effect and intend his decision to apply to those circumstances; finally, the patient must have reached his decision without undue influence. 64 However Re T has been described as something of a “false start” in terms of practical enforceability, in that Butler- Sloss and Staughton LJJ held that a failure to act in accordance with an advance directive would give rise to only nominal damages. 65 2.28 Subsequently, in Airedale NHS Trust v Bland, the legal effect of anticipatory treatment decisions. Lord Keith stated: “…a person is completely at liberty to decline to undergo treatment, even if the result of his doing so is that he will die. This extends to the situation where the person, in anticipation…gives clear instructions….” 66 2.29 Lord Goff stated: 62 [1992] 4 All ER 649. 63 [1992] All ER 649 at 652-653. 64 Ibid at 664. 65 Bartlett Blackstone‟s Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 1.25 citing Re T [1992] 4 All ER 649 at 665, 669. 66 [1993] 1 All ER 821 at 860 per Lord Keith. 47
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BIOETHICS: ADVANCE CARE DIRECTIVES
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LAW REFORM COMMISSION‟S ROLE The
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LAW REFORM RESEARCH STAFF Director
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CONTACT DETAILS Further information
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TABLE OF CONTENTS INTRODUCTION 1 A
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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 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: expressed wishes” regarding medic
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
Page 112 and 113: a clear note of the decision, the t
Page 114 and 115: 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
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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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