Consultation Paper on Bioethics - Law Reform Commission

More documents

Recommendations

Info

and the assessment of capacity should be approached with this firmly in mind.” 41 The Court held that Ms B possessed the requisite degree of capacity to make the decision to refuse artificial ventilation. To hold otherwise would be to create a “serious danger…of a benevolent paternalism which does not embrace recognition of the personal autonomy” of the patient. 42 3.22 However, in NHS Trust v T 43 the English High Court held that a patient lacked the capacity to refuse a blood transfusion. She had completed an advance directive refusing blood transfusions on the basis that her blood was “carrying evil.” Her assertion was held to be a misconception of reality stemming from a borderline personality disorder. Applying Thorpe J‟s test in Re C, the court held that Ms T was unable to use and weigh the relevant information and thus the competing factors in the process of arriving at her decision to refuse a blood transfusion. (ii) Mental Capacity Act 2005 3.23 The English Mental Capacity Act 2005 requires that an individual must have capacity at the time of making the advance decision. 44 However, there is no provision in the Act that requires a formal assessment of competency for an advance directive to be valid. The Code of Practice made under the 2005 Act recommends that it may be “helpful” to get evidence of a person‟s capacity to make the advance decision, especially if there is a possibility that the advance decision may be challenged in the future. 45 (b) Ireland (i) Law Reform Commission recommendations 3.24 In its 2006 Report on Vulnerable Adults and the Law, the Commission recommended that capacity to make healthcare decisions should be assessed on the basis of the proposed statutory functional test of capacity, whereby an adult‟s legal capacity is assessed in relation to the particular decision made, at the time it is to be made. 46 The Commission recommended 41 [2002] 2 All ER 449 at 474. 42 Ibid at 472. 43 [2005] 1 All ER 387. 44 Section 24(1) of the Mental Capacity Act 2005. 45 Mental Capacity Act 2005 – Code of Practice at paragraph 9.7. 46 Law Reform Commission Report on Vulnerable Adults and the Law (LRC 83- 2006) at paragraph 3.23. The Government‟s Scheme of Mental Capacity Bill 76
that a person will not be regarded as lacking capacity simply on the basis of making a decision which appears unwise. 47 It also recommended that the proposed mental capacity legislation make provision for the Minister of Health to appoint a Working Group on Capacity to Make Healthcare Decisions comprising representatives of professional bodies in the healthcare sector, healthcare professionals and lay persons. The role of the Working Group would be to formulate codes of practice for healthcare professionals in relation to capacity and decision-making in the healthcare arena. The subject matter of such codes would include (but not be limited to) the assessment of capacity and the circumstances in which urgent treatment can be carried out without the consent of the adult concerned. 48 (ii) Fitzpatrick v FK 3.25 In the High Court decision of Fitzpatrick v FK 49 Laffoy J noted that an Irish court had never had to consider how capacity to refuse consent to medical treatment on the part of an adult who is mentally competent should be assessed. The case involved a pregnant woman who was a member of the Jehovah‟s Witness Church. Immediately after giving birth, she was informed that she required a blood transfusion. She refused the transfusion but, on foot of an application by the hospital, the High Court granted an interim injunction authorising a transfusion. The case returned to the High Court before Laffoy J where she considered whether the transfusion was lawfully given. 3.26 This issue gave rise to two questions. The first was whether Ms K had given a legally valid refusal of treatment. In order for a refusal of treatment to be valid, it must be based on the appropriate treatment information, be voluntary, 50 and made by a person with the necessary capacity. The answer in Ms K‟s case turned on the capacity question. The second question was if Ms K had capacity, was the court entitled to have regard to her baby son‟s 2008, published in September 2008l proposes to implement these recommendations. 47 Law Reform Commission Report on Vulnerable Adults and the Law (LRC 83- 2006) at paragraph 3.23 at paragraph 2.47. The Government‟s Scheme of Mental Capacity Bill 2008 proposes that the Office of the Public Guardian, which the commission recommended in its 2006 Report should be established, will formulate this Code of Practice. 48 Ibid at paragraph 3.35. 49 [2008] IEHC 104 High Court (Laffoy J) 25 April 2008. 50 Laffoy J concluded that no issue as to the voluntariness of Ms K‟s blood transfusion had arisen. 77
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 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 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: (3) Assessing capacity (a) England
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
Page 116 and 117: including babies, the elderly and p
Page 118 and 119: “…a health care or long-term ca
Page 120 and 121: E Prescribed form 4.34 In certain j
Page 122 and 123: 4.41 The scope of section 25(2)(c)
Page 124 and 125: These provisions are also considera
Page 126 and 127: she had been sufficiently informed
Page 128 and 129: 4.53 Australian statutes have dealt
Page 130 and 131: settings. The health care provider
Page 132 and 133: 4.64 In early living will statutes
Page 134 and 135: condition in an advance directive p
Page 136 and 137: (3) Intention to revoke 4.76 A numb
Page 138 and 139: unjustifiable gravy train for lawye
Page 140 and 141: 4.87 There are some registries for
Page 142 and 143: “If an act resulting in death is
Page 144 and 145: (a) directly or indirectly applies
Page 146 and 147:
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
Page 152 and 153:
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
Page 160 and 161:
purposes as tort law, may still ser
Page 162 and 163:
the 1987 Act contains a presumption
Page 164 and 165:
The Code of Practice cites a number
Page 166 and 167:
the change in circumstances is such
Page 168 and 169:
(b) the recognised ethical standard
Page 171 and 172:
6 CHAPTER 6 SUMMARY OF PROVISIONAL
Page 173:
6.19 The Commission provisionally r
show all

Consultation Paper on Bioethics - Law Reform Commission

Create successful ePaper yourself

Delete template?

Save as template?