Consultation Paper on Bioethics - Law Reform Commission

that in Irish law there is a rebuttable presumption, “that an adult patient has the
capacity, that is to say the cognitive ability, to make a decision to refuse medical
treatment.” 32 The Commission recommended in its Report on Vulnerable Adults
and the Law that its proposed capacity legislation should set out a rebuttable
presumption of capacity to the effect that, unless the contrary is demonstrated,
every adult is presumed to be capable of making a decision affecting them. 33
3.18 However, the question is raised whether the presumption in favour of
capacity also applies to advance treatment refusals or whether a higher
standard of capacity is required where a patient refuses life-sustaining
treatment or makes a complex treatment decision? 34 This question has never
been addressed by English or Irish courts. However, the Ontario Court of
Appeal in Malette v Shulman 35 applied a presumption in favour of competence
rather than a presumption in favour of preserving the patient‟s life. There, an
emergency-room doctor gave a life-saving blood transfusion to an unconscious
accident victim who carried a card stating that, as a Jehovah‟s Witness, she
refused blood transfusions under any circumstances. The physician argued that
it was lawful to administer the transfusion because he had no way of knowing
whether the patient was competent at the time of signing the card. However, it
was held that “there was nothing to give credence to or provide support for the
speculative inferences implicit in questions as to…her state of mind” at the time
of signing the card.
3.19 The Code of Practice for the English Mental Capacity Act 2005 notes
that healthcare professionals should always start from the assumption that a
person who has made an advance decision had capacity to make it, unless they
are aware of reasonable grounds to doubt the person had the capacity to make
the advance decision at the time they made it. If a healthcare professional is not
satisfied that the person had capacity at the time they made the advance
decision, they can treat the person without fear of liability. 36
per Butler-Sloss LJ. See also section 1(2) of the English Mental Capacity Act
2005.
32 [2008] IEHC 104 High Court (Laffoy J) 25 April 2008.
33 Law Reform Commission Report on Vulnerable Adults and the Law (LRC 83-
2006) at paragraph 2.39.
34 Michalowski “Advance Refusals of Life-Sustaining Medical Treatment: The
Relativity of an Absolute Right” (2005) 68(6) Modern Law Review 958 at 964.
35 (1990) 67 DLR (4 th ) 321.
36 Mental Capacity Act 2005 - Code of Practice at paragraph 9.8.
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