Consultation Paper on Bioethics - Law Reform Commission

the British government chose not to include this procedural requirement in the
English Mental Capacity Act 2005. The Code of Practice made under the 2005
Act merely recommends that advance decisions are made with advice from
healthcare professionals or organisations that can provide advice on specific
conditions or situations. 11 With regard to advance decisions refusing lifesustaining
treatment, the Code of Practice recommends that it is particularly
important for the maker to discuss it fully with a healthcare professional. This is
to clarify not only what treatment is considered to be life-sustaining, but also to
be fully informed of the implications of refusing such treatment and what may
happen as a result. 12 It was felt that to impose a mandatory requirement upon
patients to be sufficiently well informed to make an advance decision would be
“inappropriate and unduly intrusive.” 13 However, commentators felt that “the
enhanced security of the advance directive regarding what is a fundamental life
choice” would justify “the relatively minor infringement of autonomy in requiring
medical advice.” 14
(3) Mandatory requirement to receive advice
3.09 In the Australian Capital Territory, section 11(1) of the Medical
Treatment Act 1994 (ACT) imposes an obligation on the health care
professional to advise the adult about his or her illness, alternative forms of
treatment, the consequences of the treatment and the consequences of
remaining untreated. There are a number of advantages associated with
obtaining professional advice and counselling whilst drafting an advance
directive.
3.10 First, advance directives that are arrived at after consultation with a
doctor, and drawn up at a time when the patient and his doctor have the
patient‟s prognosis and treatment options in mind will be more likely to be found
valid and applicable. 15 For example, in W Healthcare NHS Trust v H, 16 the
English Court of Appeal held that an alleged advance decision to withdraw
11 Mental Capacity Act 2005 - Code of Practice, at paragraph 9.14. Available at
http://www.justice.gov.uk/guidance/mca-code-of-practice.htm.
12 Mental Capacity Act 2005 – Code of Practice at paragraph 9.27.
13 Included as an appendix to The Joint Committee on Human Rights 15 th Report of
Session 2004-05 (2005). Available at
http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/97/9702.htm.
14 Maclean “Advance Directives and the Rocky Waters of Anticipatory Decision-
Making” (2008) 16(1) Medical Law Review 1 at 15.
15 Grubb “United Kingdom” [1993] 1(1) Medical Law Review 84 at 87.
16 [2005] 1 WLR 834.
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