Consultation paper
bioethics: advance care directives
© Copyright
Law Reform Commission
FIRST PUBLISHED
October 2008
ISSN 1393 - 3140
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paper
Kate Dineen LLM, LLM (Cantab)
Ciara Staunton BCL, LLM (NUI),
Diop sa Gh (NUI)
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ACKNOWLEDGEMENTS
The
Commission would like to thank the following people who provided valuable
assistance:
Cliona
Chistle, Partner, A
and L Goodbody Solicitors
Dr
Dolores Dooley,
Irish Council for Bioethics
Katherine
Froggatt, Senior
Lecturer, Institute for Health Research,
Lancaster
University
Paul
Ivory, Irish
Council for Bioethics
Deirdre
Madden, Lecturer,
School of Law, University College Cork
Eugene
Murray, Irish
Hospice Foundation
Dr
Siobhán O’Sullivan,
Irish Council for Bioethics
Shauna
Sugrue, A and L
Goodbody Solicitors
Meryvn
Taylor, Irish
Hospice Foundation
However,
full responsibility for this publication lies with the Commission.
B Introduction
to advance care directives
C The
absence of a legal framework
E Outline
of this Consultation Paper
CHAPTER 1
Origins and Nature of ADVANCE CARE
DIRECTIVES
C The
origin of advance care directives
E Scope
of advance care directives
(1) Homicide,
euthanasia, assisted suicide
(2) Negative advance
care directives v positive
advance care directives
(3) What forms of
treatment can be refused in an
advance care directive?
(4) What forms of
treatment cannot be refused in an advance care directive
(2) Appointing a
person to carry out advance care directives
CHAPTER 2
LEGAL BASIS FOR THE RECOGNITION OF
ADVANCE CARE DIRECTIVES
(1) Constitutional
right to refuse treatment
(3) Commission’s
Recommendations
(3) Cruzan v
Director, Missouri Department of
Health
(4) The failure of
the living will?
(1) The recognition
of advance care directives at
common law
(2) Legislative
history of the English Mental Capacity
Act 2005
(1) The European
Convention on Human Rights
(2) The European
Convention on Human Rights and Biomedicine 1997
J Advance
care directives refusing treatment on
(4) The European
Convention on Human Rights
CHAPTER 3
Informed decision making and capacity to make advance care directives
B Informed
decision making and the provision of
(3) Mandatory
requirement to receive advice
CHAPTER 4
Formalities for advance care directives
B Oral
and Written Advance Care Directives
C Advance
care directives to refuse life-sustaining
treatment
(3) Artificial
Nutrition and Hydration (ANH)
(1) Disinterested
witness requirement
F Validity
and applicability generally
(3) If an advance
decision is not valid or applicable
(4) Bias in favour of
preserving life
J Storing
an advance care directive
CHAPTER 5
FRAMEWORK FOR COMPLIANCE WITH ADVANCE CARE DIRECTIVES
(2) Concealment or
Destruction of an Advance Care Directive
C Statutory
framework for implementation of advance
care
directives
CHAPTER 6
Summary of Provisional
recommendations
|
No. 16 of 1996 |
Sing |
|
|
Age of Legal Capacity (Scotland) Act 1991 |
1991, c.50 |
Scot |
|
Age of Majority Act 1985 |
No. 2 of 1985 |
Irl |
|
Consent to Medical Treatment and Palliative Care Act 1995 (SA) |
1995 |
Aus |
|
Control of Clinical Trials Act 1987 |
No. 28 of 1987 |
Irl |
|
Criminal Justice (Theft and Fraud Offences) Act 2001 |
No.50 of 2001 |
Irl |
|
Family Law Reform Act 1969 |
1969, c.46 |
Eng |
|
Guardianship and Administration Act 2000 (Qld) |
2000 |
Aus |
|
Health Act 1953 |
No. 26 of 1953 |
Irl |
|
Health Act 2005 |
No. 546 of 2005 |
Den |
|
Health Care Consent Act SO 1996 |
1996, c. 2 |
Can |
|
Health Care Directives Act CCSM 1993 |
1993, c. H-27 |
Can |
|
Healthcare (Consent) and Care Facility (Admission) Act RSBC 1996 |
1996, c. 181 |
Can |
|
Medical Practitioners Act 2007 |
No. 25 of 2007 |
Irl |
|
Medical Treatment (Health Directions) Act 2006 |
2006 |
Aus |
|
Medical Treatment Act 1988 (Vic) |
1988 |
Aus |
|
Medical Treatment Act 1994 (ACT) |
1994 |
Aus |
|
Mental Capacity Act 2005 |
2005, c.9 |
Eng |
|
Mental Health (Care and Treatment) (Scotlaand) Act 2003 |
2003 asp 13 |
Scot |
|
Mental Health Act 2007 |
2007, c. 12 |
Eng |
|
Natural Death Act 1988 (NT) |
1988 |
Aus |
|
Non-Fatal Offences Against the Person Act 1997 |
No. 26 of 1997 |
Irl |
|
Powers of Attorney Act 1996 |
No. 12 of 1996 |
Irl |
|
Powers of Attorney Act 1998 (Qld) |
1998 |
Aus |
|
Succession Act 1965 |
No. 27 of 1965 |
Irl |
|
The Health Care Directives and Substitute Health Care Decision Makers Act, SS 1997 |
1997, c. H-.001 |
Can |
|
Theft Act 1968 |
1968, c. 60 |
Eng |
TABLE OF CASES
|
Eng |
||
|
Allore v Flower Hospital |
(1997) 699 NE 2d 560 |
US |
|
Anderson v St Francis-St George Hospital |
(1996) 671 NE 225 |
US |
|
B v An NHS Trust |
Eng |
|
|
Bowman v Davis |
(1976) 356 NE2d 496 |
US |
|
Bruni v Tatsumi |
(1976) 346 NE 2d 673 |
US |
|
Cruzan v Director Missouri Department of Health |
(1990) 497 US 261 |
US |
|
Daniels v Heskin |
[1954] IR 73 |
Irl |
|
Denmark, Norway, Sweden and the Netherlands v Greece |
(1969) 12 YB 1 |
ECtHR |
|
Dunne v National Maternity Hospital |
[1989] IR 91 |
Irl |
|
Educational Company of Ireland v Fitzpatrick (No 1) |
[1961] IR 323 |
Irl |
|
Estate of Leach v Shapiro |
(1984) 1052 NE 2d 1047 |
US |
|
Fitzpatrick v FK |
[2008] IEHC104 |
Irl |
|
Gillick v West Norfolk and Wisbech AHA |
Eng |
|
|
HE v A Hospital NHS Trust |
[2003] EWHC 1017, [2003] 2 FLR 408 |
Eng |
|
Herczegfalvy v Austria |
(1992) Series A No 244 |
ECtHR |
|
Hoffmann v Austria |
(1993) Series A No 106 |
ECtHR |
|
In re a Ward of Court (withholding medical treatment) (No 2) |
[1996] 2 IR 79 |
Irl |
|
Johnson v University Hospital of Cleveland |
(1989) 540 NE2d 1370 |
US |
|
Kearney v The Minister for Justice |
[1986] IR 116 |
Irl |
|
Kennedy v Ireland |
[1987] IR 587 |
Irl |
|
Leame v Bray |
(1803) 3 East 593 |
Eng |
|
Lochner v New York |
(1905) N 198 US 43 |
US |
|
Lovett v Gogan |
[1995] 1 ILRM 12 |
Irl |
|
Malette v Schulman |
(1987) 67 DLR (4th) 321 |
Can |
|
McHugh v Commissioner of An Garda Siochana |
[1986] IR 228 |
Irl |
|
McKay v Essex Area Health Authority |
[1982] 2 All ER 771 |
Eng |
|
Meskell v CIE |
[1973] IR 121 |
Irl |
|
Ms B v A NHS Hospital Trust |
Eng |
|
|
N v Health Service Executive |
Irl |
|
|
NHS Trust A v M; NHS Trust B v H |
[2001] 1 All ER 801 |
Eng |
|
NHS Trust v T (adult patient: refusal of medical treatment) |
Eng |
|
|
North Western Health Board v HW |
Irl |
|
|
O’Keefe v Kulcullen High Court |
High Court (O'Sullivan J) 24 June 1998 |
Irl |
|
O’Laoire v Medical Council |
High Court (Keane J) 27 January 1995 |
Irl |
|
O'Donovan v Cork County Council |
[1967] IR 173 |
Irl |
|
O'Reilly v Limerick Corporation |
[1989] ILRM 181 |
Irl |
|
Perkins v Lavin |
(1994) 648 NE 2d 840 |
US |
|
Pretty v United Kingdom |
ECtHR |
|
|
Prince v Massachusetts |
(1944) 331 US 158 |
US |
|
Procanik v Cillo |
(1984) 478 A 2d 755 |
US |
|
R (Burke) v General Medical Council |
Eng |
|
|
R v Stone and Dobinson |
[1977] QB 358 |
Eng |
|
Rasmussen v Fleming |
(1987) 154 Ariz 207 |
US |
|
Re AK (medical treatment: consent) |
[2001] 1 FLR 129 |
Eng |
|
Re B (adult: refusal of medical treatment) |
[2002] 2 All ER 449 |
Eng |
|
Re C (adult: refusal of medical treatment) |
[1994] 1 All ER 819 |
Eng |
|
Re F (Mental Patient: Sterilisation) |
[1989] 2 All ER 545 |
Eng |
|
Re Martin |
538 NW2d (Mich 1995) 229 |
US |
|
Re MB (medical treatment) |
Eng |
|
|
Re Quinlan |
(1976) 355 A2d 647 (NJ) |
US |
|
Re R (a minor) (blood transfusion) |
[1993] 2 FLR 757 |
Eng |
|
Re R (a minor) (wardship: medical treatment) |
[1991] 4 All ER 177 |
Eng |
|
Re R (adult: medical treatment) |
[1996] 2 FLR 99 |
Eng |
|
Re T (adult: refusal of medical treatment) |
Eng |
|
|
Re W (a minor) (medical treatment) |
[1992] 4 All ER 627 |
Eng |
|
Roelen v Akron Beacon Journal |
(2002) 199 F Supp 2d 685 |
US |
|
Schloendorff v Society of New York Hospital |
(1914) 105 NE 92 |
US |
|
Sinnott v Minister for Education |
[2001] 2 IR 545 |
Irl |
|
Smith v Cote |
(1986) 513 A2d 341 |
US |
|
The People (DPP) v JT |
(1988) 3 Frewen 141 |
Irl |
|
Turpin V Sortini |
(1982) 182 Cal Rptr 337 |
US |
|
W Healthcare NHS Trust v H |
[2005] 1 WLR 834 |
Eng |
|
W v Ireland (No 2) |
Irl |
|
|
Wilkinson v Downton |
[1897] 2 QB 57 |
Eng |
1.
This Consultation Paper forms part of the Commission’s Third
Programme of Law Reform 2008-2014.[1]
2.
The Commission has previously addressed the topic of advance care
directives in the following:
·
Report on Vulnerable Adults and the Law (2006);[2]
·
Consultation Paper on Vulnerable Adults and the Law: Capacity
(2005);[3]
·
Consultation Paper on Law and the Elderly (2003).[4]
In the Consultation Paper on Law and the Elderly,
the Commission acknowledged that there has been no legislation or case law in
Ireland specifically addressing the efficacy of advance care directives. It suggested
that “since it is possible to nominate another person to make personal and
property decisions, it ought to be possible to make those decisions oneself and
have them carried out by others if incapacity sets in. They could provide for
practical decisions in relation to personal care and property – broadly the
same issues as may be dealt with under an EPA.”[5]
However, the Commission was aware of the important and contentious moral,
legal and ethical questions raised by advance care directives and that such
questions would require detailed consideration.[6]
The Commission therefore confined itself to noting that the subject was one
which may “merit further consideration in the context of the establishment of a
coherent legal framework for capacity and substitute decision-making.” [7]
3.
In the 2006 Report on Vulnerable Adults and the Law, the
Commission acknowledged the public consultation conducted by the Irish Council
for Bioethics on the legal and ethical issues surrounding advance care
directives with a view to publishing an opinion on the subject. The opinion, Is
It Time for Advance Healthcare Directives? was published in February 2007.[8]
4.
This Consultation Paper
deals with the situation where a person consciously sets out their wishes about
what should happen to them in the event of an accident (such as a serious car
crash) or illness (such as stroke or the onset of Alzheimer’s disease) that
makes it impossible for them to communicate their wishes directly. The
Commission is conscious that not many people do this,[9]
just as not as many people who should make a will or take out a pension
actually do it. For those who have taken the trouble to plan what should happen
to them in the future (which the Commission would, of course, encourage) it is
possible that the person may decide to deal with a range of issues, including
their property and health care, in a single document. This document may also
include the appointment of a person – often a family member – to carry out
their wishes. The person appointed is sometimes called a proxy or attorney –
the person confers a ‘power of attorney’ on this proxy or agent to act on the
person’s behalf.
5.
Under current Irish
law, contained in the Powers of Attorney Act 1996,[10]
a person may confer such a power of attorney in connection with property only.
The Commission has recommended that the 1996 Act be extended to include the
ability to grant power of attorney in connection with minor health care
decisions[11] and the
Government intends to bring forward legislation to implement this
recommendation.[12] This
proposed change to the 1996 Act would provide one mechanism by which advance
care directives could be regulated by law.
6.
The Commission is
aware, of course, and discusses this in detail in this Consultation Paper, that
advance care directives can often also take the form of a verbal statement,
especially in reply to a series of questions when a person is suddenly admitted
to hospital and they do not have a written advance directive to hand. In that
respect, changes to the law on powers of attorney will not deal with all
circumstances in which advance care directives may arise.
7.
It is clear that, at
present, there is no formal legal structure to deal with advance care
directives in general. The Commission is conscious that this has not prevented
those who have thought about their future care from stating their wishes
verbally or in writing. In other words, it is important for the Commission to
note that there is no law prohibiting a person from setting out their wishes,
and that some have, and that the medical profession has attempted to deal with
this in the absence of a clear legal framework.
8.
The Commission’s
primary concern in this respect, therefore, is to acknowledge that this is
being done in the absence of a clear legal framework and that those directly
affected – the person stating their wishes verbally or in writing and the
medical personnel who already try to fulfil these wishes to the best of their abilities
– should be provided with a clear legal framework for the future.
9.
The Commission is
especially conscious that this Consultation Paper centres on medical treatment
that will affect the life of the person concerned. It deals with complex legal
and ethical issues which have created enormous debate nationally and
internationally.
10.
The Commission wishes
to make clear from the outset what this Consultation Paper does not deal with.
It is not concerned with the debate about whether current criminal law on
homicide or suicide should be changed. This Consultation Paper is not,
therefore, concerned with euthanasia. The Commission is of the clear view that
any steps taken to hasten death in a manner that would, under current law,
amount to murder or to assisting suicide will not in any way be affected by the
proposals being considered in this Consultation Paper.
11.
Nor does this
Consultation Paper include psychiatric advance care directives. Psychiatric
advance care directives offer individuals suffering from a mental illness a
practical means to express their treatment preferences in writing. “By engaging
the person in the process of deliberating on their illness history and the
factors, including medication, that had been effective during previous
psychiatric episodes, it is believed advance directives could improve the
therapeutic alliance between clinicians and patient and may improve the
person’s treatment adherence with its consequent benefits in terms of quality
of life and reduced need for hospitalisation.”[13]
The most controversial form of psychiatric advance directive is what is
commonly referred to as the Ulysses directive. It enables individuals to bind
themselves to psychiatric treatment and override, in advance, their refusals
during acute episodes of their illness. The name references the Odyssey, in
which Ulysses directed his crew to tie him to the ship’s mast and leave him
bound as the ship approached the Sirens, regardless of his subsequent pleas to
cut him loose.[14]
12.
The English Mental
Capacity Act 2005 and the Scottish Mental Health (Care and Treatment)
(Scotland) Act 2003 contains no provision for a person to use advance
decisions to express a positive preference for particular forms of treatment.
It has been argued that this represents a missed opportunity to allow patients
and healthcare professionals to “engage in a more constructive approach to
treatment planning.”[15] The Mental
Health (Care and Treatment) and the (Scotland) Act 2003 gives
some recognition to the concept of advance directives in psychiatry by
requiring tribunals and mental health professionals to “have regard” to their
terms. The Scottish executive was not prepared to accept that the compulsory
powers in mental health legislation could be overruled by a psychiatric advance
directive made by a competent person. It was felt that the time was not right
for such a radical approach.[16] Given the complexities involved, the Commission has
concluded that it should confine its analysis to advance care directives that
do not involve mental health. The Commission may return to this area at a
future date.
13.
In Chapter 1, the
Commission discusses the origins and nature of advance care directives. The
Commission also reiterates that this Consultation Paper does not address
euthanasia or assisted suicide. The Commission discusses the terminology, such
as ‘living wills’, associated with advance care directives. This Chapter also
notes the different forms of directives, both in terms of the difference
between negative advance care directives and positive advance care directives
and also that some can be written but can also be given verbally, especially in
a hospital admissions setting. The Commission discusses the use of Enduring
Powers of Attorney (EPAs) and, more widely, a healthcare proxy in connection
with advance care directives.
14.
In Chapter 2, the
Commission explores in some detail the legal basis for recognising advance care
directives, notably how the constitutional right to refuse treatment in Irish
law provides a framework for advance care directives. The Commission also
discusses the various types of legal frameworks that have emerged in a number
of States; this includes a consideration of whether fundamental principles and
policies concerning advance care directives should be embodied in legislation
or in non-statutory ethical guides. The Commission’s analysis includes a
consideration of advance care directives that refuse treatment on religious
grounds, an issue that was addressed recently in a High Court case.
15.
In Chapter 3, the
Commission discusses informed decision-making and the capacity to make advance
care directives. The Commission assesses the importance of ensuring that any
medical treatment decision, whether contemporaneous or anticipatory, is
sufficiently informed and whether it should be a mandatory requirement to
receive advice while drafting an advance care directive. The Commission
addresses capacity in general terms and also in the specific context of the age
at which a person should be considered competent to refuse treatment in an
advance care directive setting.
16.
In Chapter 4, the
Commission considers a number of specific formalities concerning advance care
directives. The Commission begins by discussing whether an advance care
directive should always be in writing or whether this might be limited to
certain types, such as those that refuse life-sustaining treatment. The
Commission also discusses: whether an advance care directive should be
witnessed, whether it should be in a prescribed form, what requirements should
apply to determine its validity, in what circumstances is it deemed to be
activated (the “triggering event”), what should happen when a person attempts
to revoke an advance care directive, whether an advance care directive be
subject to regular review and whether a central filing system for advance care
directives should be considered.
17.
In Chapter 5, the
Commission concludes the Consultation Paper by discussing the legal
consequences for health care professionals of not complying with the terms of
an advance care directive that meets the criteria set out by the Commission.
The Commission sets out the current law, particularly in terms of medical
treatment given without consent (and where the doctrine of medical necessity
does not apply). While the current law provides a series of defences where
liability is at issue, notably, that the medical professional acted on an
advance care directive, the Commission considers that a statutory framework
should underpin current practice and deal with difficult gaps. The Commission
outlines the possible models that might be considered in this respect.
18.
This Consultation Paper is intended to form the basis of discussion and
therefore all the recommendations made are provisional in nature. The
Commission will make its final recommendations on the subject of advance care
directives following further consideration of the issues and consultation with
interested parties. Submissions on the provisional recommendations included in
this Consultation Paper are welcome. To enable the Commission to proceed with
the preparation of its Final Report, those who wish to do so are requested to
make their submissions in writing by post to the Commission or by email to info@lawreform.ie by 31 January
2009.
1.01
In this Chapter, the
Commission discusses the origins and nature of advance care directives. In Part
B, the Commission first discusses a general definition, namely, that a person
consciously setting down their wishes about what should happen to them in the
event of an accident or illness that makes it impossible for them to
communicate their wishes directly. In Part C, the Commission discusses the
origins of advance care directives in the context of medical outcomes. In Part
D, the Commission discusses the terminology, such as ‘living wills’, associated
with advance care directives. In Part E, the Commission reiterates that the
Consultation Paper does not address either euthanasia or assisted suicide and
also turns to the different forms of directives notably in terms of the
difference between negative advance care directives and positive advance care
directives. In Part E the Commission also discusses the form of advance care
directives, some of which can be written but which can also be given verbally,
especially in a hospital admissions setting. The Commission examines, in
particular, the extent negative advance care directives are, in practice,
capable of being brought within a suitable legal framework. In Part F, the
Commission discusses Enduring Powers of Attorney (EPAs) and, more widely, the
use of a healthcare proxy in connection with advance care directives.
1.02
In general terms, an
advance care directive “involves an individual making a decision or series of
decisions on future medical treatment which is designed to take effect should
the person lack the requisite capacity to make the relevant decision at a
future date.”[17]
1.03
Section 24(1) of the
English Mental Capacity Act 2005 defines an advance decision as a
decision made by a person, after he or she has reached 18 and when he or she
has capacity to do so, that if –
“(a) at a later time and in such
circumstances as he may specify, a
specified treatment is proposed to be carried out or
continued by a person providing health care for him, and
(b) at that time he lacks capacity to
consent to the carrying out or
continuation of the treatment,
the specified treatment is not to be carried
out or continued.”
1.04
This provision
“contains considerable flexibility and carries considerable power.”[18]
The author of the advance decision can specify the treatments at issue, and
specify any conditions for its application. It applies to the commencement and
the continuation of treatment. However, section 24(1) of the English 2005 Act
refers only to advance refusals of treatment. An advance decision cannot
require a treatment provider to offer a specific treatment.
1.05
The issues of death and
dying have become matters of worldwide public debate in recent years and came
to the fore in Ireland in In re a Ward of Court (No 2).[19]
In his dissent in the US Supreme Court decision of Cruzan v Director
Missouri Department of Health,[20] Stevens J
submitted that two factors were responsible for this development: first, the
environment in which the process of dying occurs is no longer in the private
setting of one’s home, but has moved to the more public setting of healthcare
institutions; second, advances in medical technology have made it possible to
indefinitely prolong the lives of terminally ill patients, merging body and
machine in a manner that “some might reasonably regard as an insult to life
rather than as its continuation.” The Supreme Court of Arizona described this
development in Rasmussen v Fleming:
“Not long
ago the realms of life and death were delineated by a bright line. Now this
line is blurred by wondrous advances in medical technology – advances that
until recent years were only ideas conceivable by such science-fiction
visionaries as Jules Verne and HG Wells. Medical technology has effectively
created a twilight zone of suspended animation where death commences while
life, in some form, continues. Some patients, however, want no part of a life
sustained only by medical technology. Instead, they prefer a plan of medical
treatment that allows nature to take its course and permits them to die with
dignity.
As more
individuals assert their right to refuse medical treatment, more frequently do
the disciplines of medicine, law, philosophy, technology and religion collide.
This interdisciplinary interplay raises many questions to which no single
person or profession has all the answers.”[21]
1.06
The idea of advance
care treatment decision-making therefore emerged not only as a response to the
fear of many that they would become prisoners “trapped by medicine’s
ever-expanding ability to sustain life indefinitely after they lose the ability
to voice their wishes about treatment at the end of life”[22],
but also as an acknowledgement of patient autonomy as the paramount principle
in bioethics. In this respect it is important to note that, as was discussed in
the Ward of Court case, dying is a natural part of life and of living.
An advance care directive may therefore be seen as an expression of a person’s
wishes about how their medical treatment impacts on the quality of this part of
living.
1.07
Bioethics “asks
difficult moral questions and provides decision-makers with principles to guide
them to answers”[23] and
Beauchamp and Childress formulated four such principles – respect for autonomy,
non-maleficence, beneficence and justice.[24]
The central tenet of the Hippocratic Oath is based on the principle of
beneficence – to do good. In its earliest formulation, the Oath dealt with the
fundamental idea of ‘benefit’ for the patient and it required doctors to:
“… keep this
oath… for the benefit of my patients and abstain from whatever is deleterious
and mischievous… with purity and with holiness I will pass my life and practice
my Art… I will not divulge… all such should be kept secret.”[25]
1.08
Conversely, the
principle of non-maleficence is the duty not to harm and echoes the law’s duty
of care.[26] This
principle of justice has been described as the “moral obligation to act on the
basis of fair adjudication between competing claims.”[27]
1.09
The principle of
autonomy derives from the Greek autos (self) and nomos (rule or
law) and has come to refer to “personal self-governance; personal rule of the
self by adequate understanding while remaining free from controlling
interferences by others and from personal limitations that prevent choice.”[28]
The importance of autonomy as a value in medical law extends back at
least to the judgment of Cardozo J in Schloendorff v Society of New York
Hospital, where he stated that:
“Every human
being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his
patient’s consent commits an assault, for which he is liable in damages.”[29]
1.10
Historically, health
care was provided in a paternalistic environment where physicians knew what was
best for their patients. However, from the late 1950’s continuing through the early
1970’s, paternalism become popularly unacceptable, with patients demanding to
play a more active role in their medical care with the prevailing ethos that
‘doctor does not necessarily know best.’
1.11
In 1969, Luis Kutner, a
US attorney active in a right-to-die organisation, drafted the first ‘living
will’ which allowed a person to give instructions for medical care in the final
days of life. His proposal was that a competent adult should be able to execute
a document “analogous to a revocable or conditional trust, with the patient’s
body as the res (the property or asset), the patient as the beneficiary and
grantor, and the doctor and hospital as trustees.”[30]
1.12
The terms ‘living will’
and ‘advance directive’ are employed interchangeably throughout US literature
and it appears that any distinction is largely academic. The term ‘living
will’, however, was specifically denounced as “misleading” by Munby J in HE
v A Hospital NHS Trust on the basis that:
“The Wills
Act 1837 does not apply to an advance directive. An advance directive does
not need to be in writing and signed, nor need it be attested by witnesses.
Nor, unlike a will, can an advance directive be revoked only by physical
destruction or by another document in writing.”[31]
1.13
In its Consultation
Paper on Mentally Incapacitated Adults and Decision-Making,[32]
the Law Commission for England and Wales viewed the terms ‘living will’ and
‘advance directive’ as two distinct concepts, and explained the distinction as
follows:
“Advance
directives are usually discussed in the context of medical treatment and relate
mainly to the patient's right to refuse or change treatment in a disabling
chronic or terminal illness.[33]
In
contrast, a ‘living will’ is defined as:
“…
essentially a formal declaration by a competent adult expressing the wish that if
he becomes so mentally or physically ill that there is no prospect of recovery,
any procedures designed to prolong life should be withheld. The object is to
rebut any presumption that the patient has consented to treatment which may be
administered under the doctrine of necessity, and to give the patient power to
direct in advance the treatment, or lack of treatment, that he wishes to
receive at the end of his life should he lose the ability to do so at the
time."[34]
1.14
In other words, the Law
Commission for England and Wales viewed a living will as dealing only with
advance instructions prohibiting treatment to prolong the individual’s life
where there was no prospect of recovery. An advance directive, however, was
wider in scope, going to the nature of the treatment to be withheld, and the
identification of any persons authorised to make decisions on the individual’s
behalf. In its Report on Mental Incapacity, the Law Commission for
England and Wales did not make a similar distinction. It felt that the terms
‘living will’ and ‘advance directive’ focused attention on the existence and
terms of a piece of paper. Instead, it preferred to distinguish between an
‘advance expression of views and preferences’ on the one hand and an ‘advance
decision’ on the other. It recommended that only an ‘advance decision’ should
have legal effect.[35]
1.15
The Law Reform
Commission of Hong Kong refused to engage in a terminology debate, arguing
instead that the only relevant distinction to be drawn is between those
situations in which the individual has given an advance indication of his or
her wishes before the onset of incapacity (as in the case of living wills or
advance directives) and those in which he or she has not (as in the case of
comatose patients).[36]
1.16
The Irish Council for
Bioethics chose to adopt the term ‘advance healthcare directive’.[37]
Queensland legislation governing advance care directives uses the term ‘advance
health directive’.[38] Singapore’s
legislation uses the term ‘advance medical directive’.[39]
The National Medical Ethics Committee (NMEC) of Singapore added the word
‘medical’ to clearly delimit the use of the directive to instructions on
medical treatment only. It preferred the term ‘advance medical directive’ over
‘living will’ as the latter terms denotes death, whereas the former term is
“intended to allow a person to retain autonomy over his medical management when
he is terminally ill and incompetent.”[40]
1.17
While the Commission
does not wish to engage in a terminology debate, it is of the opinion that
advance care directives should not be limited and should cover all forms of
medical care. To ensure moreover, that people can retain autonomy over their
medical care in the event of incapacity, the Commission does not believe that
advance care directives should be confined, for example, to situations in which
death is imminent.
1.18
The Commission provisionally recommends that
the term “Advance Care Directive” be adopted.
1.19
Euthanasia is illegal
in Ireland and constitutes either murder or, perhaps, involuntary manslaughter.
Therefore, an advance care directive should not enable a patient to make
demands which he or she could not lawfully have made when capable.
1.20
It is important to
understand the difference between advance care directives refusing
life-sustaining treatment and assisted suicide. To quote Lord Goff in the
English case of Airedale NHS Trust v Bland:[41]
“… in cases
of this kind, there is no question of the patient having committed suicide, nor
therefore of the doctor having aided or abetted him in doing so. It is simply
that the patient has, as he is entitled to do, declined to consent to treatment
which might or would have the effect of prolonging his life, and the doctor
has, in accordance with his duty, complied with his patient’s wishes.”[42]
He added
that this is so regardless of whether the refusal is contemporaneous, or
anticipatory:
“Moreover
the same principle applies where the patient’s refusal to give his consent at
an earlier date before he became unconscious or otherwise incapable of
communicating it, though in such circumstances, special care may be necessary
to ensure that the prior refusal of consent is still properly to be regarded as
applicable in the circumstances which have subsequently occurred.”[43]
1.21
In England and Wales, a
draft Mental Incapacity Bill published in 2003 had been subjected to
pre-legislative scrutiny by a Joint Committee of the two Houses of Parliament.
Many of the submissions to the Joint Committee were concerned with advance
decisions which provided for the withdrawal of life-sustaining treatment.[44]
The Committee rejected the argument that this would “bring euthanasia a step
closer”; instead regarding an advance care directive as an “appropriate
continuation of respect for a patient’s individual autonomy.”[45]
Section 62 of the Mental Capacity Act 2005 specifically states that the
criminal laws relating to homicide, euthanasia and assisted suicide are
unchanged by the Act. Similarly the Commission is of the opinion that any
introduction of legislation regarding advance care directives in this
jurisdiction should not affect the laws on euthanasia and assisted suicide. In
that respect the Commission emphasises that this Consultation Paper and project
will not affect these aspects of current law.
1.22
As medical technology developed, patients invoked the autonomy argument
to refuse treatment that merely prolonged the dying process. In effect,
patients were informing physicians through advance care directives that,
“treatment that could not return them to an acceptable quality of life was
futile.”[46] More
recently, a logical extension (or what others have termed a “darker side”)[47]
of the autonomy argument has emerged: namely, that one should respect the
wishes of a person who has executed an advance care directive not to
stop life-sustaining treatment, even if such treatment is futile.
1.23
However, it has been
argued that the right to self-determination is a misnomer, as one does not have
a right to determine what shall be done to one’s own body; rather, there
is only a right to determine what shall not be done to one’s body.[48]
Consequently, there is an important distinction between positive advance care
directives and negative advance care directives. The Commission agrees
with the view that an individual has a constitutional right to refuse medical
treatment. By contrast, it appears that a positive right to be treated only
arises in specific medical contexts such as immunisation of children against
disease.[49] In its
ethical guidelines, the Irish Medical Council has stated that:
“Where
death is imminent, it is the responsibility of the doctor to take care that the
sick person dies with dignity, in comfort, and with as little suffering as
possible. In these circumstances a doctor is not obliged to initiate or
maintain a treatment which is futile or disproportionately burdensome.
Deliberately causing the death of a patient is professional misconduct.”[50]
1.24
As a result, advance care directives should provide that a patient can
refuse, but not request, treatment. Examples 1 to 4 below are examples of
refusals of treatment that would be recognised in an advance care directive, as
opposed to the requests for treatment as outlined in examples 5 to 7. As Pripp
and Moretti have noted, the “difference between the demands ‘don’t touch me’
and ‘you must touch me’ is dramatic.”[51]
·
Example 1:
“I do not wish to receive a blood transfusion.”
·
Example 2:
“I do not wish to receive a flu injection.”
·
Example 3:
“I do not wish to be resuscitated.”
·
Example 4:
“I do not wish to receive artificial nutrition and hydration if I fall into a
coma.”
·
Example 5
“I want morphine when I am in great pain.”
·
Example 6
“I want a liver transplant.”
·
Example 7
“I want a drug that is available in a clinical trial in the Mayo Clinic.”
1.25
The Law Commission of
England and Wales noted that a matter of great concern for medical
practitioners was that an advance care directive could force them to do
something which would conflict with their clinical judgment.[52]
Section 24 of the English Mental Capacity Act 2005 has responded to
these concerns by legislating only for refusals of treatment – the Act does not
provide that a patient can request treatment. A person may state his treatment
preferences, but such views will merely go “into the mix of factors to be
considered in a best interests determination.”[53]
1.26
Over the last fifty
years, autonomy has become the bedrock of medical law. However, some would
argue that autonomy has “gradually but inexorably extended to become a claim of
a right to health care”, ushering in a new era of patient-consumerism wherein
the doctor must deliver what the patient demands.[54]
The English High Court decision in R (Burke) v General Medical
Council[55]
contributed to this perception of the primacy of autonomy. The applicant had
cerebellar ataxia, a degenerative brain illness which had already paralysed him
from the neck down, and would eventually paralyse the rest of his body. His
condition would deteriorate to the point where he would be entirely dependent
upon others, and will need artificial nutrition and hydration (ANH) to survive.
However, he was likely to retain full cognitive faculties until the final
stages of his condition. He sought clarification of the circumstances when ANH
may lawfully be withdrawn. His fear was that the guidelines allowed doctors to
withdraw treatment, while the patient still wished to live, leading to death by
starvation or thirst. The relevant sections of the General Medical Council’s
guidance were as follows:
“If you are
the consultant or general practitioner in charge of a patient’s care, it is
your responsibility to make the decision about whether to withhold or withdraw
a life-prolonging treatment, taking account of the views of the patient or
those close to the patient...”[56]
“Where death
is not imminent, it usually will be appropriate to provide artificial nutrition
and hydration. However, circumstances may arise where you judge that a
patient’s condition is so severe, the prognosis is so poor, and that providing
artificial nutrition and hydration may cause suffering or be too burdensome in
relation to the possible benefits.”[57]
The applicant
therefore contended that where competent patients request or where incompetent
patients have, prior to becoming incompetent, made it clear that they would
wish to receive artificial nutrition and hydration, the withholding or
withdrawal of such treatment, leading to death by starvation or thirst, would
be a breach of their rights under Articles 2, 3 and 8 of the European
Convention on Human Rights.[58]
1.27
In the English High
Court, Munby J declared that the GMC guidance was unlawful, on the grounds that
it placed the emphasis throughout on the right of the competent patient to
refuse treatment rather than on his right to require treatment; failed to
acknowledge the heavy presumption in favour of life-prolonging treatment; and
was incompatible with the claimant’s rights under common law and under Articles
2, 3 and 8 of the Convention.[59] The judgment
of Munby J was “path-breaking” in recognising the ability of competent patients
to require life-prolonging treatment either contemporaneously, or by way of an
advance care directive:[60]
“… the
personal autonomy protected by Article 8 means that in principle it is for the
competent patient, and not his doctor, to decide what treatment should or
should not be given in order to achieve what the patient believes
conduces to his dignity and in order to achieve what the patient would find
distressing.”[61]
“If the
patient is competent (or, although incompetent, has made an advance directive
which is both valid and relevant to the treatment in question), his decision
to require the provision of ANH which he believes is necessary to protect
him from what he sees as acute mental and physical suffering is likewise in
principle determinative. There are, as it seems to me, two separate reasons why
this is so. The first is based on the competent patient’s rights under Article
8. The second is based on his rights, whether competent or incompetent under
Article 3.”[62]
1.28
The judgment in Burke
provoked some controversy.[63] Mason and
Laurie argued that Munby J’s suggestion that the case had no significant cost
implications was utterly unrealistic given that “the costs of providing even
basic care, over a sustained period of time, and with attendant staffing costs,
must represent a significant impact on the finite resources of a national
health service.”[64] More
importantly, however, Munby J’s failure to distinguish clearly between the
provision of artificial nutrition and hydration and the treatment of terminal
illness in general sparked fears that a general right to request treatment had
been established that was potentially “applicable across the whole spectrum of
medical care of the terminally ill.”[65]
1.29
On appeal in the Burke
case, the English Court of Appeal unanimously upheld the GMC’s appeal and
declared the guidance lawful.[66] It suggested
that, at times, Munby J might have “lost the wood for the trees”[67]
and that it would be “inappropriate to leave the judgment to be seized on and
dissected by lawyers seeking supportive material for future cases.”[68]
In the Court’s opinion, Mr Burke had not made an advance care directive and,
therefore, Munby J should not have declared that an advance care directive
requesting life-prolonging treatment should be complied with as a matter of
law. It observed that this would be incompatible with the English Mental
Capacity Act 2005 which only requires that a request for treatment in an
advance decision be taken into consideration when considering what is in the
best interests of a patient.[69] It
acknowledged that parties do have a “paramount fight to refuse treatment”, but
that “the corollary does not…follow.”[70]
1.30
In the United States,
widely diverging views are taken in relation to requests for treatment. A
number of states have enacted legislation which gives health care providers
authority to refuse requests for futile treatment. For example, Virginia’s Health
Care Decisions Act 1983 provides that health care providers are not required
to provide medical treatment which is, in their opinion, medically or ethically
inappropriate.[71] On the other
hand, a number of states permit requests for treatment in an advance care
directive. For example, Indiana recognises a legal right to receive medical
treatment which can be communicated by a “Life Prolonging Procedures
Declaration”. Indiana expressly permits requests for artificial nutrition and
hydration “even if the effort to sustain life is futile or excessively
burdensome.”[72] However,
Pripp and Moretti have questioned whether this legislative right to request
life-sustaining treatment creates a corresponding legal obligation to provide
such treatment:
“Although it
is unlikely that advance directive statutes would be interpreted as creating a
positive right to receive any and all treatment, the legislatures that enacted
these laws, as well as the individuals who rely on them, most likely believe
they are protecting the patient’s right to be kept alive.”[73]
1.31
While Article 40.3.1 of
the Constitution of Ireland contains many unenumerated rights, the courts have
never recognised a right to healthcare. While the State “has the duty of
protecting the citizens from dangers to health in a manner not incompatible or
inconsistent with the rights of citizens as human beings”[74]
in the aftermath of O'Reilly v Limerick Corporation[75]
and Sinnott v Minister for Education[76]
it is unlikely that the courts would recognise a general right to health
care. Yet, while a right to health care may not exist, “there is an absolute
right in a competent person to refuse medical treatment even if it leads to
death”.[77] In this
respect, the Commission provisionally concludes that advance care directives
framed in a negative manner should form the basis for the statutory regime it
proposes. The Commission discusses this in more detail in the succeeding
sections of this chapter.
1.32
The Commission provisionally recommends that
negative advance care directives only should be regarded as legally binding.
1.33
An advance care directive is an advance
indication of a person’s wishes that certain medical care is not to be given in
the event that the patient becomes incompetent.
1.34
As noted by
Sommerville,
“New ideas
take time to permeate society. If society is serious about acknowledging
patient rights and choices, including those expressed in advance, people need
to become accustomed to anticipatory decision-making as a means of dealing with
recurrent or familiar problems, rather than solely as a method for dealing with
the frightening and the unusual.”[78]
1.35
Section 24(1) of the
English Mental Capacity Act 2005 carries considerable power. It states
that:
(a) “if
at a later time and in such circumstances as he may specify, a specified
treatment is proposed to be carried out or continued by a person providing
health care for him, and
(b) at
that time he lacks capacity to consent to the carrying out or continuation of
the treatment,
the specified treatment is not to be carried out or continued.”
Therefore,
a person can state that a specified treatment should not be commenced or
continued in the event of incapacity.
1.36
The English Mental
Capacity Act 2005 also recognises the legality of advance decisions
refusing life-sustaining treatment, so long as they are valid and applicable,
and satisfy the conditions outlined in section 25.[79]
If there is not a valid and applicable advance decision to refuse
life-sustaining treatment, the decision whether to provide life-sustaining
treatment is to be made in the ‘best interests’ of the patient.[80]
1.37
In South Australia,[81]
the Northern Territory,[82] and
Singapore,[83] the scope of
advance medical directives is restricted to the refusal of extraordinary
life-sustaining measures in terminal cases.
1.38
Section 2 of
Singapore’s Advance Medical Directive Act 1996 defines
‘extraordinary life-sustaining treatment’ as:
“any medical
procedure or measure which, when administered to a terminally ill patient, will
only prolong the process of dying when death is imminent, but excludes
palliative care.”[84]
As the
Singapore Act requires death to be imminent, irrespective of extraordinary
measures, it would not permit the withdrawal of treatment from those in a
persistent vegetative state because such patients can live on with artificial
aids, such as being fed through nasogastric tubes.[85]
Therefore, examples of ‘extraordinary life-sustaining treatment’ would include
ventilators or cardiopulmonary resuscitation, but not dialysis, blood
transfusions or resuscitation. However, difficulties of interpretation may
arise, as ‘imminent’ is not defined by the Advance Medical Directives Act
1996. Death has been considered to be ‘imminent’ if occurring within
timeframes ranging from 24 hours, to one week, to a few months at most.[86]
1.39
While advance care
directives must deal with life-sustaining treatment, the Commission considers
that advance care directives should not be confined to end-of-life decisions.
1.40
A ‘Do Not Resuscitate'
order (DNR) is a doctor’s written order not to attempt cardiopulmonary
resuscitation (CPR) on a particular patient.[87]
CPR was developed in the 1950’s for the purpose of restoring respiratory and
cardiac functions to patients suffering a cardiac arrest. CPR was never
intended to be administered to terminally ill patients with no hope of
recovery. However, in the US, CPR quickly became a standard treatment for all
patients who arrested, although it was a “rite of passage to death for most.”[88]
However, in the 1960’s, the doctrine of informed consent became more widely
recognised, allowing for increased patient autonomy and a decline in unilateral
decision-making by physicians. This increase in autonomy resulted in the
appearance of DNR orders. By 1986, most hospitals had implemented DNR orders,
and in 1987, New York State became the first state to pass DNR legislation.[89]
1.41
In a 2003 study it was
reported that 96% of life-sustaining treatment withheld in the Mater Hospital
in Dublin involved CPR.[90] In a
separate study, also conducted in 2003, physicians were asked if they thought
any patient group was more likely to be the subject of a DNR order. In
response, the most common groups mentioned were “terminally ill”, “elderly” and
“terminally ill and elderly.”[91] Despite such
findings, there are no medical guidelines, and there is no legislation or
judicial precedent to guide medical practitioners and patients in this area of
medicine. This medico-legal vacuum has resulted in a “high level of
dissatisfaction, confusion and varying practices among Irish consultant physicians
regarding resuscitation decisions.”[92]
1.42
The legality of
withholding CPR was first discussed in England in Re R (Adult: Medical
Treatment.)[93]
R was a 23-year old patient born with serious brain damage and Cerebral
Palsy. He had developed severe epilepsy at 8 months old, had minimum cognitive
awareness, and was thought to be deaf, blind and incontinent. He had to be fed
through a syringe, and was hospitalised five times in the year leading to the
making of the DNR order. His consultant and parents agreed that if R were to
experience another life-threatening condition, it would be in his best
interests that CPR should not be given. An application was brought by way of
judicial review by members of R’s residential home to quash the DNR decision.
The Family Division of the English High Court held that it would be lawful to
withhold CPR, basing its decision on a number of factors. First, the chances of
a successful CPR on R by residential home staff, without medical staff present,
would be “almost nil.” Moreover, if CPR were attempted, R might not only suffer
further brain damage, but due to the fragility of his body, excessive pressure
might also lead to damage to his ribs or more serious complications. Therefore,
the court held that it would be lawful for the doctor to withhold CPR, given
the likely futility of attempts to resuscitate R successfully. The Court noted
that:
“…there is no
question of the court being asked to approve a course of treatment aimed at
terminating life or accelerating death. The court is concerned with
circumstances in which steps should not be taken to prolong life….The principle
of law to be applied in this case is that of the ‘best interests of the
patient’.”[94]
1.43
In 2002, the British
Medical Association and the Royal College of Nursing drafted guidelines to deal
with DNR decisions.[95] They observe
that:
“Cardiopulmonary
resuscitation can be attempted on any person whose cardiac or respiratory
functions cease. Failure of these actions is part of dying and thus CPR can
theoretically be attempted on every individual prior to death. But because for
every person there comes a time when death is inevitable, it is essential to
identify patients for whom cardiopulmonary arrest represents a terminal event
in their illness and in whom attempted CPR is inappropriate. It is also
essential to identify those patients who do not want CPR to be attempted and
who competently refuse it.”[96]
1.44
The guidelines consider
that it is appropriate to make a DNR order in the following circumstances:
·
“Where attempting CPR
will not restart the patient’s heart and breathing;
·
Where there is no
benefit in restarting the patient’s heart and breathing;
·
Where the expected
benefit is outweighed by the burdens.”[97]
1.45
It is noted that,
ideally, decisions regarding CPR should be made and discussed in advance as
part of overall care planning. They specifically state that an advance decision
refusing CPR should only be made after the appropriate consultation and
consideration of all relevant aspects of the patient’s condition, which
include:
·
“the likely clinical
outcome, including the likelihood of successfully restarting the patient’s
heart and breathing, and the overall benefit achieved from a successful
resuscitation;
·
the patient’s known or
ascertainable wishes; and
·
the patient’s human
rights, including the right to life and the right to be free from degrading
treatment.”[98]
1.46
In light of this, the
Commission has provisionally concluded that the status of DNR orders requires
clarification in Irish law and invites submissions on them
1.47
The Commission invites submissions on the status of
“Do Not Resuscitate” (DNR) orders.
1.48
The right to refuse
treatment has limitations. The Commission agrees with the Law Commission for
England and Wales that public policy demands that:
“… an
advance refusal of treatment should not preclude the provision of ‘basic care’,
namely care to maintain bodily cleanliness and to alleviate severe pain, as
well as the provision of direct oral nutrition and hydration.”[99]
1.49
This limitation is
based on a number of public policy considerations. First, if patients could
make an anticipatory decision to refuse even the most basic steps to ensure
comfort and cleanliness, there would be an adverse effect on staff and other
patients.[100] Allied to
this consideration is that it is “bad for society as a whole to tolerate the
negative effects of individuals’ choices in respect of unrelieved pain or
neglect.”[101] Third, a
doctor would have to effectively abandon his patient were he required to
refrain from treating that patient.[102]
The Law Commission for England and Wales concluded that it did not regard this
limitation as a “significant infringement of the patient’s right of
self-determination” and in any event, did not expect many people to make a
directive refusing basic care.[103]
1.50
Although the English Mental
Capacity Act 2005 does not explicitly provide for the exclusion of ‘basic
care’ in advance decisions, the Code of Practice is in line with the
English Law Commission’s recommendations:
“An advance
decision cannot refuse actions that are needed to keep a person comfortable
(sometimes called basic or essential care). Examples include warmth, shelter,
actions to keep a person clean and the offer of food and water by mouth.”[104]
1.51
The Law Reform
Commission of Hong Kong recommended that basic care and also palliative care
should always be provided. It declined to provide a definition of what might
constitute basic or palliative care, preferring to leave the matter to be
decided by the medical profession in accordance with the medical practice
prevailing at the time when a person’s advance directive is to be executed. It
suggested that the following wording should be used in the model advance
directive form:
"Save
for basic and palliative care, I do not consent to receive any life-sustaining
treatment. Non-artificial nutrition and hydration shall, for the purposes of
this form, form part of basic care.”[105]
1.52
The Commission provisionally recommends that an advance care directive cannot
refuse actions concerning basic care.
1.53
Under the English Mental
Capacity Act 2005, an advance decision will not operate to prevent
treatment where consent is not necessary,[106]
for example, where enforced treatment is provided to civilly confined patients
under Part IV of the Mental Health Act 1983 as amended by section 12 of
the Mental Health Act 2007.
1.54
A question arises where
a woman refuses life-sustaining treatment during the course of a pregnancy. The
Scottish Law Commission has argued that a terminally ill woman ought to be kept
alive for “longer than strictly necessary” if there is a reasonable chance of
thereby saving her unborn child.[107]
The Law Commission for England and Wales considered the issue in its 1995 Report
on Mental Incapacity and recommended a statutory presumption that
advance refusals of treatment would not apply if the viability of a foetus were
at risk.[108] The
English Mental Capacity Act 2005 chose not to incorporate a presumption
to this effect. However, the Code of Practice made under the 2005 Act does
advise healthcare professionals to consider whether there have been changes in
the patient’s personal life which were not anticipated when they made the
advance decision that might affect the validity of the advance decision. It
specifically cites pregnancy as an example of such a change.[109]
However the refusal of life-sustaining treatment during pregnancy is outside
the scope of this paper. This matter would be affected by Article 40.3.3° of
the Constitution of Ireland.
1.55
An instructional
directive is a document by which a person specifies his or her wishes
concerning future treatment. There are a significant number of drawbacks to
this form of advance care directive. First, an instructional directive is often
a “standard, fill-in-the-blanks form” and therefore lacks flexibility.[110]
Secondly, the information provided may not be clinically relevant. For example,
some directives use vague statements such as “take no heroic measures” or
“continue treatment only if the benefits outweigh the burdens.”[111]
Conversely, instructional directives that outline specific interventions may
fail to instruct a physician because “not all treatment situations fit neatly
into one of the specific scenarios.[112]
Third, people frequently change their minds. As Clough has noted, “when placed
in the midst of an illness, what once was unthinkable may become acceptable.”[113]
Fourth, medical science may advance considerably in the period between the
making of the advance care directive and the medical situation provided for
arising in practice.[114]
1.56
Patients may wish to
designate a person (commonly known as a proxy) who can represent them in a
situation of future incompetence and who has the authority to give or to
withhold consent to medical interventions on their behalf. The central
advantage is that the proxy can “step into the shoes of the patient and make
decisions in the light of the current medical situation and the advice of the
attending physician” whereas an instructional directive “may not address the
situation or may be so ambiguous as to create more confusion than clarity about
what the patient would want.”[115]
However there are difficulties associated with being an ‘ideal proxy’. For
proxies who are emotionally connected with the patient, such as relatives and
close friends, personal considerations can be hard to disentangle “whether the
proxy is unable to face the death of a loved one, or anxious to end the
overwhelming financial burden of caring for the patient, or in moral
disagreement with the patient’s considerations.”[116]
The difficulty for previously disinterested proxies is that decision-making
regarding life-sustaining care is inherently very burdensome which in itself
may influence how the proxy makes suitable judgments for the patient.[117]
1.57
An Enduring Power of
Attorney (EPA) is a legal mechanism established by the Powers of Attorney
Act 1996 for granting certain decision-making powers to a nominated
attorney in the event that the person loses capacity. At present, EPAs can only
give attorneys the power to make decisions about property, financial and
business affairs, and personal care decisions on behalf of the donor. As
currently defined, personal care decisions cover matters such as where the
donor is to live and day-to-day matters, but do not encompass healthcare
decisions. In the aftermath of Re a Ward of Court (No 2)[118]
calls were made for legislation that would make it possible for patients, by
means of a power of attorney, to empower relatives to make treatment decisions
on their behalf in the event of incapacity.[119]
The Commission has recommended in its 2006 Report on Vulnerable Adults and
the Law that an EPA should be capable of permitting an attorney to make
certain healthcare decisions on behalf of the donor where the donor lacks
capacity to make the decision.[120]
The Commission believes that this would serve two purposes: first, it would
ensure a congruence of approach in decision-making structures;[121]
and second, it would avoid a decision-making vacuum occurring in the important
area of healthcare. The Commission welcomes the
publication in September 2008 of the Government’s Scheme of Mental Capacity
Bill 2008[122] which is
largely based on the Commission’s 2006 Report. The Commission notes that Head
48 of the Scheme proposes to allow and attorney to make health care decisions.
The Commission very much looks forward to the publication of the Government’s
Bill based on the Scheme, which is scheduled for 2009.
1.58
The English Mental
Capacity Act 2005 provides a statutory framework for powers of attorney,
now called ‘lasting’ powers of attorney (LPAs).[123]
The welfare decisions which an attorney will be permitted to make include
decisions on the carrying out or continuation of medical treatment.[124]
However, neither an LPA nor an advance decision can require a treatment
provider to offer a specific treatment. The views of the donor will however, be
taken into account in a best interests determination.[125]
Section 11(8) of the 2005 Act provides that a donee has the power to refuse life-sustaining
treatment on the donor’s behalf, but only if the LPA says so expressly.
1.59
An LPA that covers
matters relating to medical consent can be distinguished from an advance
decision:
“The [LPA]
appoints someone to make treatment decisions, subject to the best interests
criteria and such restrictions as are contained in the instrument itself. The
advance decision makes the decision: there is at least in theory no routine
assessment of the wisdom or desirability of the decision.” [126]
1.60
Where an advance
decision is valid and applicable, the best interests principle does not apply.
This is to reflect the fact that the advance decision is an autonomous choice
made by a competent adult. The Code of Practice made under the English 2005 Act
notes that healthcare professionals must follow a valid and applicable advance
decision, even if they think it goes against a person’s best interests.[127]
A further distinction between an LPA and an advance decision can be identified:
“The
inclusion of medical decision-making in an [LPA] will be appropriate to deal
with unforeseen maladies occurring after the onset of incapacity. The advance
decision will be appropriate when [the maker] has firm and fixed views about
refusal of a definable treatment, set of treatments, or course of treatment in
definable future situations.”[128]
1.61
LPAs are subject to
advance decisions to refuse treatment. Section 25(7) of the 2005 Act states:
“the
existence of any lasting power of attorney…does not prevent the advance
decision from being regarded as valid and applicable.”
However, section
25(2)(b) states:
“an advance
decision is not valid if [a person] has, under a lasting power of attorney
created after the advance decision was made, conferred authority on the
donee…to give or refuse consent to the treatment to which the advance decision
relates.”
1.62
A combination of an
instructional directive with an Enduring Power of Attorney may be the most
effective way to ensure that an individual’s wishes are respected. The drawback
of each type of document is counterbalanced by the presence of the other.
Combination advance directives can thus serve as “tools that facilitate making
difficult decisions in uncertain times, not as static dogmatically binding
documents.”[129]
1.63
As the Commission has
previously pointed out, there is a decision-making vacuum in the area of
healthcare concerning incompetent patients.[130]
The Commission has thus recommended that the Enduring Power of Attorney Act
1996 be extended to include healthcare decisions. The Commission recognises
the person appointed to take care of financial matters may not be the same
person appointed to make healthcare decisions. There is the added problem that
there are number of formalities required to establish an Enduring Power of
Attorney. However, such formalities may not be appropriate to establish an
advance care directive.[131] The
Commission is aware, of course, and discusses this in detail in this
Consultation Paper, that advance care directives can also take the form of a
verbal statement, especially in reply to a series of questions when a person is
suddenly admitted to hospital and they do not have a written advance directive
to hand. In that respect, changes to the law on powers of attorney will not
deal with all circumstances in which advance care directives may arise.
1.64
In this respect, the Commission has concluded
that a more general legal framework is also needed in which a healthcare proxy
could be appointed in the context of advance care directives.
1.65
The Commission
provisionally recommends that a healthcare proxy may be appointed in an advance
care directive. The functions of a healthcare proxy
should include:
·
Ensuring that the
wishes as expressed by the author of the advance care directive are followed;
and
·
Consultation with
the medical professional if there is any ambiguity in the advance care
directive.
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.
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:
“…there are
very powerful arguments to suggest that the dignity and autonomy of the human
person (as constitutionally predicated) require the State to recognise that
decisions relating to life and death are, generally speaking, ones in which a
competent adult should be free to make without outside restraint, and that this
freedom should be regarded as an aspect of the right to privacy which should be
protected as a ‘personal’ right by Article 40.3…in the case of the terminally
ill, it is very difficult to see what circumstances would justify the
interference with a decision by a competent adult of the right to forego or
discontinue life-saving treatment.”[132]
2.03
In the 1996 judgment of
Re a Ward of Court (No 2),[133]
Costello J’s article was cited with approval by the Supreme Court.[134]
O’Flaherty J stated:
“there is an
absolute right in a competent person to refuse medical treatment even if it
leads to death.”[135]
He considered
that “it would be correct to describe the right in our law as founded both on
the common law as well as the constitutional rights to bodily integrity and
privacy.”[136] Denham J
agreed, adding that:
“…medical
treatment may be refused for other than medical reasons, or reasons most
citizens would regard as rational, but the person of full age and capacity may
make the decision for their own reasons.”[137]
2.04
As a result, the right
to refuse treatment “does not sit easily with the traditional ethos of the
medical profession, which was paternalistically based on the principle that
‘the doctor knows best’.”[138] Thus
refusal of consent is seen “not as an assertion of will, but rather as a
symptom of unsoundness of mind.”[139]
2.05
However, the right to
refuse medical treatment is not absolute. Costello
J first suggested, extra-judicially, that the claims of the common good might
justify restrictions on the exercise of a constitutionally protected right to
refuse medical treatment in the case of contagious diseases.[140]
Ten years later, Denham J added that the right was also not absolute in medical
emergencies where patients are unable to communicate.[141]
Furthermore, Casey has suggested that a pregnant woman’s right to refuse
medical treatment might be restricted where the consequence of such refusal
would be the death of the unborn child.[142]
2.06
In 1995, Tomkin and
Hanafin proposed that the Irish legislature adopt the recommendation of Law
Commission of England and Wales in its Report on Mental Capacity (which
formed the background to the English Mental Capacity Act 2005) that the
law in relation to advance directives be placed on a statutory footing.[143]
They argued that since the Commission’s recommendation was based on a similar
common law tradition, legislation could be easily accommodated within an Irish
statutory framework. They concluded, however, that a major obstacle could be
Ireland’s “antipathy to pioneering social legislation which aims to afford
greater protection to individual autonomy over cultural conventions.”[144]
2.07
Whilst the Oireachtas
did not respond to their calls, there is an indirect reference to advance care
directives in Re a Ward of Court (No 2).[145]
A number of Irish commentators have argued that an advance care directive would
be respected by an Irish court on the basis of Ward. First, Campbell
cites an obiter statement of O’Flaherty J, who when considering the
apposite test to apply in the case, found it:
“impossible
to adapt the idea of the ‘substituted judgment’ to the circumstances of this
case and, it may be, that it is only appropriate where the person has had the
foresight to provide for future eventualities. That must be unusual (if it ever
happens) at the present time; with increased publicity in regard to these type
of cases it may get more common.”[146]
2.08
She therefore argues
that O’Flaherty J’s dictum suggests that if an individual had the foresight to
express his wishes in an advance directive, an Irish court would uphold its
validity.[147]
Furthermore, Madden propounds that a court would uphold the validity of an
advance directive provided first, that the author was competent and informed
when drafting it, and second, that it was clear and specific to the patient’s
current situation. She contends that this is in keeping with the court’s
development of the unenumerated constitutional right to refuse medical
treatment.[148] Mills,
having proclaimed Ward as a “categorical exaltation of personal
autonomy”, notes that its only logical corollary is that an “advance statement,
properly made and containing no directives that were themselves unlawful would
be acceptable to Irish law.”[149]
2.09
In its 2006 Report
on Vulnerable Adults and the Law the Commission recommended the
establishment of a Guardianship Board to determine the capacity of the
individual.[150] The board
would have the power to appoint a personal guardian who has the power to make
day-to-day healthcare decisions.[151]
The Commission also recommended that certain major healthcare treatment, such
as the withdrawal of artificial life-sustaining healthcare treatment, should be
reserved for the High Court.[152]
2.10
Recognising that there
are many healthcare treatments that would not be described as major or minor,
the Commission recommended that the proposed mental capacity legislation
empowers the Minister for Health to appoint a Working Group on Capacity to Make
Healthcare Decisions.[153] This
Working Group would formulate a code of practice which would include guidelines
on what type of healthcare decisions would require an application to the court.[154]
2.11
The Irish Medical
Council’s most recent edition of A Guide to Ethical Conduct and Behaviour
does not contain a specific reference to advance care directives. The guide
provides however, that a competent adult patient has the right to refuse
treatment. It also advises that while the decision must be respected, the
assessment of competence and the discussion of consent should be carried out in
conjunction with a senior colleague.[155]
In 2007, the Irish Medical Council produced a discussion document on advance
directives. It states that:
“Where a
competent adult patient makes a specific and informed decision to refuse future
medical treatment in the event of his/her incapacity, this decision should be
respected.
Patients
should be encouraged to nominate a trusted person to interpret their wishes in
the event of any ambiguity. If there is uncertainty regarding the patient’s
competence at the time of making the directive, or its continued applicability
in the present circumstances, doctors should err on the side of caution and
maintain the status quo pending a judicial determination of the issue if
necessary.” [156]
2.12
The Women’s Health
Council has noted that the issue of advance care directives is a key ethical
challenge in contemporary medical practice and should be included in the next
edition of the Irish Medical Council’s ethical guidelines.[157]
2.13
In Ireland, where an
adult does not have the capacity to make a decision to consent to or refuse
treatment, it is common medical practice to require that person’s next of kin
to sign a consent form in relation to the treatment. The Irish Medical Council
advises its members that:
“For the
seriously ill patient who is unable to communicate or understand, it is
desirable that the doctor discusses management with the next of kin or the
legal guardians prior to the doctor reaching a decision particularly about the
use or non-use of treatments which will not contribute to recovery from the
primary illness.”[158]
2.14
However, one of the
reasons for the emergence of advance care directives in society is the growing
recognition that there is in fact no legal basis for this practice. Competent
patients have the right to refuse treatment. The fact that they have become incompetent
does not mean that their right to refuse treatment can be ignored. McMahon and
Binchy observe that:
“Principles
of bodily integrity and autonomy should be given due weight; paternalism,
outside the context of judicial exercise of its parens patriae
jurisdiction, should not be let to run rampant, merely because the object of
the benevolent intervention lacks the capacity to refuse it.”[159]
2.15
Indeed, the Commission
acknowledged in its Consultation Paper on Law and the Elderly in 2003
that:
“the law on
consent to medical treatment may need to be addressed because of the widespread
false belief that family members and carers may make valid decisions on behalf
of people who do not have legal capacity.”[160]
2.16
In Re a Ward of
Court (No 2)[161] both
the High Court and Supreme Court judgments referred to the importance of
doctors consulting with the families of patients in a persistent vegetative
state before deciding on the course of treatment. Importantly, however, the
family did not have the power, pursuant to its imprescriptible rights under
Article 41 of the Constitution of Ireland, to make the final decision. The case
concerned a Ward of Court, and therefore the jurisdiction to make the decision
to withdraw artificial nutrition and hydration lay with the court and not the
family. The only rights at issue were the personal rights of the ward, and not
the institutional rights of the family.[162]
Unfortunately, the court did not pronounce on the position of adults who lack
capacity, but have not been made a Ward of Court.
2.17
In its Consultation
Paper on Vulnerable Adults and the Law: Capacity, the Commission
considered whether a medical practitioner would be liable in professional
negligence for accepting the signature of a next of kin on a consent form.[163]
In Daniels v Heskin,[164] it was
held that a medical practitioner cannot be held negligent if he follows the
general and approved practice in the situation with which he is faced. Walsh J
qualified that proposition however, in O’Donovan v Cork County Council:[165]
“If there is
a common practice which has inherent defects which ought to be obvious to any
person giving the matter due consideration, the fact that it is shown to have
been widely and generally adopted over a period of time does not make the
practice any the less negligent. Neglect of duty does not cease by repetition
of neglect of duty.”[166]
The Commission
therefore concluded that it would not be a complete answer for a medical
practitioner to give evidence of the widely established nature of the practice
of next of kin signing consent forms.
2.18
However, it has been
acknowledged that there are advantages associated with allowing the next of kin
to make such decisions. For example, it has been argued that:
“what the
practice does have to recommend it is a practical, socially accepted tradition
of allowing those most concerned with the welfare of the patient to make
treatment choices for him or her during the final days and weeks of a terminal
illness, or where a hopeless, vegetative existence is involved. The practice of
allowing family and physicians to decide these questions is now so firmly
rooted in tradition and social acceptance, that only in rare instances of
reported abuse will it be challenged.”[167]
2.19
Furthermore, the
practice may “reveal the personal circumstances of the patient, the sorts of
choices which they might have made if they had been in a position to do so and
whether the patient has in fact made an anticipatory choice.”[168]
The argument has also been constructed that recourse to the courts may “increase
the likelihood that the values of medical professionals or of the court
representing some kind of social consensus or average as opposed to those of
the patient will be determinative of the case.”[169]
2.20
On the other hand,
however, as Costello warns extra-judicially, it can “no longer be assumed that
husbands and wives inevitably share an identity of interest. Moreover, it is no
longer an easy matter to define a family and to rely on the advice of visitors
at the bedside is no longer adequate.”[170]
2.21
The 1976 New Jersey
Supreme Court decision in Re Quinlan[171]
concerned the plight of a Karen Ann Quinlan, a 22 year-old woman who was in
a persistent vegetative state. Her physicians refused to turn off her
respirator, fearing that to terminate treatment would attract the imposition of
criminal liability and would be contrary to medical practice and standards. Her
father sought a court order empowering him to authorise the discontinuance of
“all extraordinary medical treatment”, arguing that that was what his daughter
would have wanted. The Supreme Court held that the constitutional right to
privacy could be extended to the patient who refuses life-sustaining treatment.
It concluded that the State’s interest in preserving life:
“…weakens
and the individual’s right to privacy grows as the degree of bodily invasion
increases and the prognosis dims. Ultimately there comes a point at which the
individual’s rights overcome the state interest. It is for that reason that we
believe Karen’s choice, if she were competent to make it, would be vindicated
by the law.”[172]
Although there
was no advance directive in Quinlan, the case highlighted the horrific
plight of Ms Quinlan and her family, and galvanised public interest in “moving
living wills from their shadowy existence as hortatory statements to officially
recognised instructions.”[173]
2.22
Within months of Re
Quinlan, the first advance care directive legislation was enacted in 1976
by the Californian legislature,[174]
with other states quickly following suit. This first generation of ‘living
will’ statutes was concerned only with the refusal of life-sustaining
procedures in the event of ‘terminal illness’ or ‘imminent death’. However,
such statutes that, for example, required that death be ‘imminent’ or occur
within a ‘short time’, were criticised as substituting a time measure for the
more appropriate question regarding the futility of medical treatment.[175]
Given the limited application of such statutes, a second generation of statutes
emerged, permitting the creation of durable powers of attorney which were specifically
concerned with health care decisions.[176]
Subsequently, a third generation of hybrid statutes developed, which combined
provisions related to living wills with the option of appointing a proxy
decision-maker. A fourth generation of advance care directive legislation has
recently emerged, which vests power in the patient’s family members where the
patient has not made an advance directive.[177]
2.23
In 1985 the Uniform
Rights of the Terminally Ill Act was drafted by the US Uniform Law
Commissioners in an attempt to make state laws uniform in purpose and form.
However, the success of this legislation appeared to have a limited effect: in
a 1989 report it was noted that only 9% of Americans had executed advance
directives.[178]
2.24
The Supreme Court decision in Cruzan v
Director, Missouri Department of Health[179] in 1990 served as a powerful catalyst for
legislative reform. There, the family of Nancy Cruzan, who was in a persistent
vegetative state, sought to withdraw life-sustaining medical treatment based on
an earlier conversation in which Ms Cruzan had stated she did not wish to live
if she would face life as a ‘vegetable’. The Supreme Court held that competent
persons have a “constitutionally protected liberty interest in refusing
unwanted medical treatment.”[180] A flurry
of legislative activity took place in the United States as a result of Cruzan.
First, existing legislation was amended, as the Supreme Court had not drawn a
distinction between the withdrawal of artificial nutrition and hydration and
other medical treatment.[181] Second,
and more importantly, the Supreme Court held that states could insist on “clear
and convincing evidence” of a patient’s wishes before permitting hospitals to
withdraw life support. The Court noted that written instructions - such as
those provided in a living will – are persuasive evidence of an individual’s
“prior expressed wishes” regarding medical treatment. However, the “informal,
casual statements her friends and family remembered” would be insufficient.[182]
This has been interpreted as implicitly establishing “the right to engage in
advance planning for incapacity.”[183] Also in 1990, the United States
Congress passed the federal Patient Self-Determination Act which
partially addresses the problem of educating both patients and doctors. It requires
health-care institutions receiving federal funds to inform patients of
their right to refuse life-sustaining treatments and to complete advance care
directives.
2.25
Fagerlin and Schneider have asserted the failure of the living will in
the United States.[184] They base
their claim on a number of grounds, including the following. First, only 18% of
Americans have living wills.[185] Moreover,
while the chronically or terminally ill are more likely to draft living wills,
a large percentage do not do so. In a study of dialysis patients, only 35% had
a living will even though all of the participants thought that living wills
were a “good idea.”[186] Such low
figures can perhaps be attributed to a lack of education. Empirical studies
have demonstrated that the Patient Self Determination Act has failed to
generate a significant increase in advance directives, due to a passive
implementation by medical staff and a lack of physician involvement.[187]
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.”[188] 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.”[189]
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.[190] 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.[191]
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).[192]
2.26
The legal force of
advance directives was first explicitly accepted in 1990 in Re T.[193]
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 non-existent.”[194]
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.[195]
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.[196]
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….”[197]
2.29
Lord Goff stated:
“…a patient
of sound mind may, if properly informed, require that life support should be
discontinued…the same principle applies where the patient’s refusal to give his
consent has been expressed at an earlier date.”[198]
2.30
Of course, as Kennedy
and Grubb state, in Re T, the Court of Appeal avoided giving effect to
the patient’s wishes, and in Bland, the patient had not expressed any
view about the treatment he should receive in the event of incompetence.[199]
Therefore, to date, advance care directives have been held to be valid and
effective in only two cases in England. In Re C,[200]
a 68-year old man with chronic paranoid schizophrenia suffered from the delusion
that he was a world famous doctor who had never lost a patient. He developed
gangrene in his leg, but refused amputation despite the hospital’s assessment
that he would die immediately if the operation was delayed. He sought an
injunction to prevent the hospital from amputating his leg in the future.
Thorpe J was prepared to find him competent and granted the injunction. In Re
AK,[201] a 19-year
old patient suffered from a progressive neuro-muscular disease causing
paralaysis. He informed his carers, by means of an eyelid movement, that he
would wish his artificial ventilation to be stopped if he could no longer
communicate. The health authority applied to the English High Court for a
declaration that it would be lawful, in accordance with AK’s wishes, to
discontinue artificial ventilation, nutrition and hydration, two weeks after AK
lost all ability to communicate. Hughes J, in granting the declaration,
confirmed the “vital nature of the principle of autonomy” and had “no doubt” of
AK’s capacity, and the validity and applicability of the directive.[202]
2.31
In 1992, Kings College
London produced a study on Advance Directives and AIDS which surveyed
the attitudes towards advance directives of a group of patients with HIV or
AIDS and of the healthcare professionals caring for them. It identified the
potential advantages and disadvantages associated with legislation.[203]
First, doctors might take an advance directive seriously if they were legally
obliged to follow it due to a fear of the legal repercussions of
non-compliance. Second, legislation could give doctors legal immunity for
withdrawing or withholding treatment in accordance with an advance directive.
Third, legislation could contain safeguards for the witnessing and storing of a
directive in order to prevent undue influence. Potential disadvantages were
also flagged, including potential rigidity in cases of life-sustaining
treatment where decisions may have to be taken with a significant degree of
flexibility to accommodate each individual case. However, doctors might feel
obliged to comply with an advance directive for fear of legal consequences. A
second disadvantage might be the creation of an air of mutual distrust between
doctor and patient. Finally, it noted that an advance directive may in fact be
illusory as it is the doctor who decides when the triggering event occurs,
namely when a patient is in a terminal condition. Interestingly, it concluded
that although a large majority of patients were in favour of advance directives
having legal force, the doctors who participated in the study were largely
opposed.
2.32
Subsequently, in its
1994 Report, the House of Lords Select Committee on Medical Ethics, whilst
commending the development of advance directives, chose to reject calls for
legislation:
“Adequate
protection for doctors exists in terms of the current law and in trends in
medical practice. We suggest that it could well be impossible to give advance
directives in general greater legal force without depriving patients of the
benefit of the doctor’s professional expertise and of new treatments and
procedures which may have become available since the advance directive was
signed.”[204]
Instead it
recommended that “the colleges and faculties of all the health-care professions
should jointly develop a code of practice to guide its members.”[205]
In 1995, the British Medical Association responded by producing a booklet
entitled Advance Statements About Medical Practice.
In Airedale
NHS Trust v Bland[206]
Lord Browne-Wilkinson stated that he was in “no doubt that it is for
Parliament, not the courts to decide the broader issues”.[207]
The Law Commission also stated that
“The
desirability of the piecemeal decision-making through case law is questionable.
Decisions of the courts, particularly in sensitive areas, tend to be confined
to the particular facts, and there is a reluctance to give pronouncements on
principles of general application. This can mean that there is no real
consistency between different decisions, and can make it difficult to elicit
guidelines with any real reliability.”[208]
2.33
In 1995 Report on
Mental Incapacity, the English Law Commission came down in favour of
legislation on advance directives, noting that its consultation had “reflected
an almost unanimous view that patients should be enabled and encouraged to
exercise genuine choice about treatments and procedures.”[209]
It acknowledged the reservations of the Select Committee and stated its
intention to address them in its recommendations on legislative reform. Green
and white papers followed in 1997 and 1999.[210]
A draft Bill in 2003 received pre-legislative scrutiny, and a further draft
Bill with explanatory notes was published in 2004. This latter Bill would
eventually become law, seeking to “codify the current common law position on
advance decisions to refuse treatment whilst at the same time increasing the
safeguards attached to them.”[211]
2.34
The English Mental
Capacity Act 2005 largely followed the Law Commission’s recommendations.
Sections 24-26 of the 2005 Act codify the right of a competent individual to
refuse medical treatment in advance. One of the five guiding principles of
interpretation set out in section 1 of the 2005 Act is that any decisions must
be made in the best interests of the person concerned. However, advance
decisions differ from the other care provisions of the Mental Capacity Act
2005, in that once an advance decision to refuse treatment is valid and
applicable, there is no place for a best interests assessment. Conversely,
advance requests for treatment are not legally binding, and therefore will be
taken into account when conducting a best interests determination. The 2005 Act
is accompanied by a Code of Practice, which is in line with the recommendations
of the Law Commission.[212] It
believed that a code of practice would be invaluable in addressing the many
points of detail and practice that primary legislation could not hope to cover.[213]
Courts are to take departures from the Code of Practice into account, when
relevant to a matter arising before them.[214]
2.35
In Australia, five of
the eight Australian States and Territories have passed legislation recognising
the right of a competent adult to make an advance care directive.[215]
The common law continues to apply in the three jurisdictions that have not
passed legislation.[216] For
example, in Queensland, the Powers of Attorney Act 1998 expressly states
that the inherent jurisdiction of the Supreme Court of Queensland is not
affected by its enactment.[217] Therefore,
if guidance or a determination is needed regarding a decision to withhold or
withdraw life-sustaining measures, a person may pursue this either through the
legislation or by relying on the inherent jurisdiction of the Supreme Court of
Queensland. However, a number of issues have been left unresolved after the
enactment of the Powers of Attorney Act 1998.[218]
For example, the common law that existed before the Act came into force was
simply that a “mentally competent patient has an absolute right to refuse to
consent to medical treatment for any reason, rational or irrational, or for no
reason at all, even where that decision may lead to his or her own death.”[219]
This right to refuse could operate even if the refusal was given in advance of
the relevant medical situation.[220]
2.36
The Powers of
Attorney Act 1998 provides that certain formalities must be met in order
for an advance health directive to be valid. The Queensland Law Reform
Commission recommended preserving the common law on the basis that it would
“maximise the opportunity for people to exercise control over their future
medical treatment.”[221] It has
also been argued that as common law is less formal, it would promote advance
care planning to a larger extent.[222]
However, in recognising common law directives, a two-tier system would be
created under which both statutory health directives and common law directives
would operate. “This might lead to unnecessary uncertainty and could undermine
any restrictions which the legislation attempted to impose.”[223]
2.37
The Law Reform
Commission of Hong Kong recommended in its 2006 Report on this issue that
advance directives should be promoted by non-legislative means, including the
wide dissemination of a model form of advance directive based on three
considerations.[224] First, it
argued that the publication and dissemination of a model form could be achieved
quickly and cost-effectively, offering “immediate assistance to patients, their
families and medical practitioners, without the delays inherent in the
legislative process.”[225] Second, it
acknowledged that although Hong Kong law recognises the validity of advance
directives, it was still unclear as to what form such a directive should take.
Finally, it noted that the community was not generally familiar with the
concept of advance directives. Therefore, it would be “premature to attempt to
formulate a statutory framework and to embark on the legislative process,
without greater public awareness of the issues involved.”[226]
2.38
In order to generate
such awareness of the concept of advance directives, the Commission recommended
that the Government should launch publicity programmes enlisting the support of
organisations such as the Medical Council, the Bar Association, the Law
Society, the Hospital Authority, all hospitals and medical clinics,
non-governmental organisations involved in care for the elderly, and religious
and community groups.
2.39
Once the community has
become familiar with the concept of advance directives, the Commission
recommended that the Government should then review the position of advance
directives and consider the appropriateness of legislation, taking three
factors into consideration, namely: “how widely the use of advance directives
had been taken up; how many disputes had arisen; and the extent to which people
had accepted the model form of advance directive.”[227]
2.40
The European
Convention on Human Rights does not contain any direct reference to an
advance refusal of medical treatment. It has been argued that the key articles
are Articles 3 and 8.[228]
2.41
Article 3 prohibits
torture and inhuman or degrading treatment or punishment. ‘Degrading treatment’
has been defined in the following terms:
“Treatment
or punishment of an individual may be said to be degrading if it grossly
humiliates him before others or drives him to act against his will or
conscience.”[229]
Two points
should be noted in this respect. First, in the Herczegfalvy case, the
European Court of Human Rights held that “a measure which is a therapeutic
necessity cannot be regarded as inhuman or degrading. The Court must
nevertheless satisfy itself that the medical necessity has been convincingly
shown to exist.”[230] Therefore,
if medical treatment is therapeutically necessary, it will not violate Article
3 even if it is imposed without consent. Second, in NHS Trust A v M; NHS
Trust B v H, the English High Court noted that Article 3 requires the
patient to be aware of the inhuman and degrading treatment which he or she is
experiencing. Therefore, as a patient who is in a permanent vegetative state
has “no feelings and no comprehension of the treatment accorded to him or her”,
he or she cannot obtain the protection of Article 3.[231]
There was a brief diversion from this point of view, in the judgment of Munby J
in the English case of R (Burke) v GMC.[232]
He held that that Article 3 could be violated even if the individual concerned
was unaware of the humiliating or degrading treatment which he is experiencing.
He felt that the definition of torture and degrading treatment should not be
viewed from the point of view of the individual concerned, but rather should be
viewed objectively, from the point of view of the reasonable bystander.[233]
The English Court of Appeal curtly dismissed this part of his judgment on the
basis that in Mr Burke’s case, artificial nutrition and hydration would only be
necessary while he was still competent, and therefore, it:
“[did]
not consider that there was any justification for embarking on speculation as
to what the position might be when Mr Burke reaches the final stages of his
life.”[234]
2.42
More specifically, a
patient’s right to refuse life-sustaining medical treatment can be founded on
his or her right to private life in Article 8(1) of the Convention. In Pretty
v United Kingdom, the European Court of Human Rights stated that:
“In the
sphere of medical treatment, the refusal to accept a particular treatment
might, inevitably, lead to a fatal outcome, yet the imposition of medical
treatment, without the consent of a mentally competent adult patient, would
interfere with a person’s physical integrity in a manner capable of engaging
the rights protected under Article 8(1) of the Convention.”[235]
However, Article
8(1) may be subject to interference if “necessary in a democratic society” by
virtue of Article 8(2). Thus, a balancing exercise between the right of the
individual in Article 8(1) and the legitimate aims specified in Article 8(2)
might require a balance to be struck on an individual case by case basis.
Conversely, under common law, that balance is always struck in favour of the
individual’s right to refuse treatment which is “paramount”.[236]
Therefore, it has been argued that English common law is probably “more robust
in its recognition of a competent patient’s right to refuse life-sustaining
medical treatment than is the ECHR.”[237]
2.43
In contrast to the European
Convention on Human Rights, the 1997 European Convention on Human Rights
and Biomedicine contains an article on “previously expressed issues”. The
Convention has at its core the protection of the dignity and integrity of human
beings in the area of biological and medical advances.[238]
While the majority of the Council of Europe members have signed and
ratified this Convention, Ireland has not done so to date. According to Article
9:
“…the
previously expressed wishes relating to a medical intervention by a patient who
is not, at the time of the intervention, in a state to express his or her
wishes shall be taken into account.”
2.44
Paragraph 62 of the
explanatory report to the 1997 Convention states that:
“…taking
previously expressed wishes into account does not mean that they should
necessarily be followed. For example, when the wishes were expressed a long
time before the intervention and science has since progressed, there may be
grounds for not heeding the patient’s opinion. The practitioner should thus, as
far as possible, be satisfied that the wishes of the patient apply to the
particular situation and are still valid, taking into account in particular of
technical progress in medicine.”
Article 9
is not limited to advance refusals, but also encompasses advance consent to
treatments. However, the right to refuse treatment in advance is only “weakly
recognised” as Article 9 merely requires the previously expressed wishes of a
patient to be taken into account. Nys has argued that the Convention adopted
this cautious approach in order to reflect the lack of consensus in many
European countries as to the validity of an advance refusal of treatment. [239]
2.45
In December 2003, the
Manitoba Law Reform Commission issued a report on Withholding or Withdrawing
Life-Sustaining Medical Treatment.[240]
The Commission considered that certain fundamental principles and policies
should be reflected in the rules or framework controlling the withholding or
withdrawal of life-sustaining medical treatment. Some of the principles and
procedures are:
·
There must be a uniform
approach and process to withholding or withdrawing life sustaining medical
treatment in all health care institutions.
·
The decision-making
process must be clear and transparent and must be communicated clearly not only
to the patient and his or her family but also to the public in order to
facilitate a broad understanding of how these decisions are made.
·
Emphasis must be placed
on the process for decision-making rather than the formulation of specific
rules which would purport to dictate the decision. The process must be designed
to facilitate an agreement between the physician and the patient or his or her
substitute decision-maker.
·
Where there is
disagreement between the physician and the patient or substitute decision-maker
on the appropriate course of action, the patient must be given an opportunity
to secure an independent second opinion from a physician who is not a member of
the patient’s health care team and/or request that his or her care be transferred
to another willing physician.
·
The Commission did not
favour a right to indefinite life-sustaining medical treatment. The appeal of
autonomous decision-making and personal control of all end-of-life medical
decision making is initially attractive, but an unfettered right to
life-sustaining treatment may result in unreasonable demands being made for
indefinite inappropriate medical treatment.
·
Final resort to the
courts will remain available where the procedures designed to achieve consensus
have irretrievably broken down.[241]
2.46
The Manitoba Law Reform
Commission did not favour a legislative implementation of these principles.
Rather:
“[i]ts
preference is to see them embodied in a statement or by-law of the College of
Physicians and Surgeons of Manitoba…We also recommend that other health care
institutions, agencies, associations and bodies involved in delivering health
care in Manitoba should adopt the policy of the College once amended to reflect
our advice. We urge them to use the Policy as a template for their own
protocols and procedures...We envisage a cohesive and integrated approach to
maximise consensus decision-making without imposing an obligation on physicians
to provide inappropriate medical care. Such an approach, coupled with an
extensive program of public education and awareness of the end-of-life
decision-making process, will serve the citizens of Manitoba well.”[242]
2.47
Irish Common Law may
recognise an advance care directive on the basis of the views expressed by the
Supreme Court in Re a Ward of Court (No 2),[243]
but in the Commission’s view, the lack of clear guidance to date illustrates
the need for legislation. Clarity is required on who can make healthcare
decisions for an incompetent patient, what form an advance care directive may
take and also whether a person’s family can make a decision on his or her
behalf. In this respect, the Commission provisionally recommends that advance
care directives be placed on a statutory footing. The Commission also
provisionally recommends that, in view of the complexity associated with the
many issues that arise in this context, a set of guidelines be drawn up to
complement the legislative framework.
2.48
The Commission provisionally recommends that
advance care directives be placed on a statutory footing. The Commission
provisionally recommends that a set of guidelines be drawn up to complement the
legislative framework.
2.49
Denham J expressly
enshrined the right of a competent adult to refuse any medical treatment
in Re a Ward of Court (No 2):
“The right
to life is the pre-eminent personal right. The State has guaranteed in its laws
to respect this right. The respect is absolute. This right refers to all lives
– all lives are respected for the benefit of the individual and for the common
good. The State’s respect for the life of the individual encompasses the right
of the individual to, for example, refuse a blood transfusion for religious
reasons. In the recognition of the individual’s autonomy, life is respected.”[244]
2.50
In Fitzpatrick v FK,[245]
the High Court ordered that a 23-year old Congolese woman (Ms K) who had
refused a blood transfusion should, be given the transfusion against her will
in order to save her life. Ms K had suffered a massive post partum haemorrhage
following the birth of her son at the Coombe Hospital. However, she refused an
urgent blood transfusion on the basis that she was a Jehovah’s Witness. Abbott
J stated that Ms K was competent to make healthcare decisions. However, he
found that the welfare of her newly-born child, with no other apparent parent,
was paramount and should override the wishes of his mother. In erring on the
side of preserving life, he made an ex parte order, directing the
hospital to do everything in its power to save the life of the woman including,
if necessary, restraining her if she physically attempted to stop doctors
administering to her the transfusion.
2.51
The order sparked a
heated debate, and was considered to be “something of a new departure in the
area of non-consensual medical treatment.”[246]
The High Court had previously ordered transfusions to be administered in cases
where there was either a doubt as to the capacity of the patient to refuse, or
where the decision to refuse treatment was made by a parent on behalf of a
child. On the basis of the evidence however, Ms K was neither a minor nor
incapacitated. The court had effectively balanced personal autonomy against the
interests of the newborn child to the extent that it could override the refusal
of treatment of a compos mentis adult.[247]
Powers has questioned whether the Court had considered section 4(2) of the Health
Act 1953 which states that:
“Any person
who avails himself of any service provided under this Act shall not be under
any obligation to submit himself…to a health examination or treatment which is
contrary to the teaching of his religion.”[248]
2.52
It was unsurprising
therefore, that when the issue was argued by both parties in Fitzpatrcik v
FK (No 2)[249] in 2008,
the judgment of Laffoy J commenced by addressing the “novelty of the core
issue”, namely, whether a court may intervene in the case of a patient, who is
an adult and is not incompetent mentally “who has refused medical treatment,
and by order authorise the hospital…to administer such treatment to the
patient.”[250] She held
that Ms K’s capacity was impaired to the extent that she did not have the
ability to make a valid refusal to accept the blood transfusion based on the
objective evidence before her.[251]
As it was not a valid refusal, the question of balancing rights of her new-born
baby under the Constitution against her constitutional rights of
self-determination and free practice of her religion did not fall to be
considered.
2.53
Although the State’s
respect for the life of the individual encompasses the right of the individual
to refuse a blood transfusion for religious reasons, it would appear that
parents do not have the right to refuse life-sustaining treatment on behalf of minor
children. Article 41.1.1° of the Constitution states:
“The State
recognises the Family as the natural primary and fundamental unit group of
Society, and as a moral institution possessing inalienable and imprescriptible
rights, antecedent and superior to all positive law.”
However,
Article 42.5 provides that:
“In
exceptional cases, where the parents for physical or moral reasons fail in
their duty towards their children, the State as guardian of the common good, by
appropriate means shall endeavour to supply the place of the parents, but
always with due regard for the natural and imprescriptible rights of the
child.”
2.54
In North Western
Health Board v HW,[252] the
plaintiff board sought an order permitting it to carry out a PKU test on an
infant against the wishes of the child’s parents. The parents’ objection was
originally based on their religious belief that nobody should be allowed to
injure anyone else,[253] but
ultimately rested on their view that their child should not be subjected to the
invasive process of puncturing a blood vessel, preferring that his hair or
urine be tested instead. The Supreme Court, by a four to one majority, upheld
the High Court decision not to grant such an order. The court held that the
infant did not have a real or significant chance of having any of the diseases
being screened in the test, therefore suggesting that State intervention was
permissible when a child faced an imminent threat to life or serious injury.
Denham J observed that any intervention by the courts in the “delicate filigree
of relationships within the family has profound effects”.[254]
She held that:
“The
State…may intervene in the family, may interfere with the rights of family as a
unit, and the rights of the child and parents pursuant to Article 41 of the
Constitution, if it is justified pursuant to Article 42.5 when parents have
failed for physical or moral reasons in their duty to their children or when
other constitutional rights of the child are breached or in danger of being
breached.”[255]
An illustration
of an “exceptional case” would be a surgical or medical procedure in relation
to an imminent threat to life or serious injury.”[256]
In the present case, the court was not satisfied that it was an “exceptional
case”. It had not been established that the parents had failed in their duty to
the child so that the child’s constitutional rights would be infringed.
2.55
In 2008 in Health
Service Executive v C and D,[257]
Laffoy J granted the HSE an order allowing doctors to administer blood
transfusions or other treatments considered “medically necessary” to twin
babies after their birth in order to avoid death or serious injury.[258]
The twins, who were unborn at the time of the order, were severely anaemic and
would require transfusions within minutes of being prematurely induced, in
order to avoid risk of death or serious injury. Their parents, as Jehovah’s
Witnesses, had objected to blood products on religious grounds but agreed to abide
by the court order.
2.56
The order made by
Laffoy J would appear to be in line with the approach taken in other
jurisdictions towards parents who refuse medical treatment on religious grounds
on behalf of their children. In Prince v Massachusetts,[259]
the Supreme Court of the United States held that:
“The
right to practice religion freely does not include liberty to expose the
community or the child to communicable diseases or the latter to ill health or
death….Parents may be free to become martyrs themselves. But it does not follow
they are free in identical circumstances, to make martyrs of their children
before they have reached the age of full and legal discretion when they can
make that choice for themselves.”[260]
Similarly,
in Re R (a minor) (blood transfusion),[261]
the English High Court made an order under section 8 of the Children Act
1989 overriding the “scriptural conscience” of Jehovah’s Witness parents
that had led them to reject life-saving blood products for their 10-month old
infant who was suffering from leukaemia. Booth J directed that blood products
should only be administered in an “imminently life-threatening” situation where
there is no reasonable alternative. In any “less than imminently
life-threatening” situation doctors should consult with the parents considering
“at every opportunity all available forms of management suggested by the
parents.”[262] However,
Bridge is highly critical of an approach that “compromises the child in all but
the last resort in order to keep faith with the parental convictions and their
perception of how welfare may best be enhanced.” She argues that by adopting
such a sympathetic approach to the religious convictions of parents, further
harm will result to the child while “clinicians dither about whether or when to
seek legal intervention.”[263]
2.57
While such criticisms
may be valid, the courts must adhere to the constitution. The courts have
recognised that the child has rights:
“Having been
born, the child has the right to be fed and to live, to be reared and educated,
to have the opportunity of working and of realising his or her full personality
and dignity as a human being. These rights of the child (and others which I
have not enumerated) must equally be protected and vindicated by the State.”[264]
Article
42.5 of the Constitution does however state that
“In
exceptional cases, where the parents for physical or moral reasons fail in
their duty towards their children, the State as guardian of the common good, by
appropriate means shall endeavour to supply the place of the parents but always
have due regard for the natural and imprescriptible rights of the child.”
Hardiman J
in N v Health Service Executive[265] (the
Baby Ann case) stated that the threshold before the state may interfere was a
high one. He felt that
“The effect
of our constitutional dispensation is that, presumptively, the right to form a
view of the child’s welfare and to act on it belongs to the parents.”[266]
Thus as the Constitution stands, unless there are exceptional
circumstances the court may not intervene. McGuinness J reached the same
outcome as she felt that the evidence before the High Court did not establish
that “there were compelling reasons that her welfare could not be achieved in
the custody and care of her natural parents”.[267]
This, coupled with the fact that the adoption could not go ahead due to the
marriage of baby Ann’s parents, led her to reach this conclusion.
2.58
The Code of Practice
for the English Mental Capacity Act 2005 makes explicit reference to
advance decisions refusing all treatment in any situation based on religious
beliefs in that they may be valid and applicable.[268]
This would seem to be in accordance with English case law.
2.59
One of the leading
cases involving an adult Jehovah’s Witness was Re T.[269]
T was injured in a car accident when she was 34 weeks pregnant. T had been
brought up by her mother, a devout Jehovah’s Witness, although T was not
herself a member of that religious sect. After a private conversation with her
mother in hospital, T informed hospital staff that she did not want a blood
transfusion. Shortly afterwards she went into labour, and due to her distressed
condition, she was advised that a Caesarian section was necessary. After another
private conversation with her mother, T repeated that she did not want a blood
transfusion and inquired as to alternative treatment. She then signed a form of
refusal of consent to blood transfusions, but it was not explained to her that
a transfusion might be necessary to save her life. Following the operation, her
condition deteriorated and a transfusion was essential to save her life. In an
emergency hearing, the judge authorised the administration of a transfusion on
the basis her medical condition had made T unfit to made a genuine decision.
Moreover, her decision had been reached under the influence of her mother to
the extent that it was not voluntary. The Court of Appeal held that on the
facts, T’s refusal of treatment was vitiated by her mother’s undue influence.
2.60
In McGovern v Royal
Devon and Exeter Healthcare NHS Trust,[270]
an unreported out of court settlement in September 2004, a 56-year old renal
patient received £8,500 for a blood transfusion that was carried out without
his consent three years previously. The patient, a Jehovah’s Witness, had been
attending the hospital for 20 years, had previously refused a blood transfusion
in life-threatening situations, and this was clearly marked on his medical
records. As a result of the transfusion, the patient had suffered psychological
injury as a result of knowing that the transfusion was contrary to his
religion.
2.61
In Malette v Shulman[271]
an emergency-room doctor gave a blood transfusion to a severely injured and
unconscious patient despite the fact that she carried a card stating:
“NO
BLOOD TRANSFUSION!
As one of
Jehovah’s Witnesses with firm religious convictions, I request that no blood or
blood products be administered to me under any circumstances. I fully realise
the implications of this position, but I have resolutely decided to obey the
Bible command: ‘Keep abstaining…from blood’ (Acts 15:28, 29). However, I have
no religious objection to use the nonblood alternatives such as Dextran,
Haemaccel, PVP, Ringer’s Lactate or saline solution.”
Donnelly J held
that the instructions on the card should have been followed even though the
card was neither witnessed nor dated. He awarded substantial damages for mental
distress which was upheld on appeal:
“However
sacred life may be, fair social comment admits that certain aspects of life are
properly held to be more important than life itself. Such proud and honourable
motivations are long entrenched in society, whether it be patriotism in war,
duty by law enforcement officers, protection of the life of a spouse, son or
daughter, death before dishonour, death before loss of liberty, or religious
martyrdom. Refusal of medical treatment on religious grounds is such a value.”[272]
2.62
Article 9 of the ECHR
states that everyone has the right to freedom of thought, conscience and
religion, including a right to manifest one’s “religion or belief, in worship,
teaching, practice and observance.” Wicks cites the case of Hoffmann v
Austria[273] in support
of her argument that refusing consent to medical treatment may be a
manifestation of religion.[274] There, the
applicant argued that she had been denied custody of her children because she
was a Jehovah’s Witness and would have refused blood transfusions for her
children. The European Court of Human Rights accepted that the applicant’s
refusal of blood transfusions was a direct consequence of her religious
beliefs, thereby apparently accepting that “Article 9(1) may prima facie
protect a refusal by Jehovah’s Witnesses to consent to blood transfusions.”[275]
2.63
In light of this
discussion, the Commission provisionally recommends that a refusal to consent
to treatment on religious grounds will in general (subject to constitutional
considerations) constitute a valid advance care directive.
2.64
The Commission provisionally recommends that a
refusal to consent to treatment on religious grounds will in general (subject
to constitutional considerations) constitute a valid advance care directive.
3.01
In this Chapter, the
Commission discusses informed decision-making and the capacity to make advance
care directives. Part B discusses the importance of ensuring that any medical
treatment decision, whether contemporaneous or anticipatory, is sufficiently
informed and whether it should be a mandatory requirement to receive advice
while drafting an advance care directive. Part C discusses the capacity to make
a healthcare decision, and the importance of Laffoy J’s recent judgment in the K
case. Part D considers the age at which a person should be considered competent
to refuse treatment in an advance care directive setting.
3.02
Any medical treatment
decision, whether contemporaneous or anticipatory, must be sufficiently
informed. Kirby J,in 1983, defined informed consent as:
“That
consent which is obtained after the patient has been adequately instructed
about the ratio of risk and benefit involved in the procedure as compared to
alternative procedures or no treatment at all.”[276]
As the
Commission noted in its Consultation Paper on Vulnerable Adults and the Law:
Capacity, if medical treatment is carried out without informed consent,
this has implications for the Constitution, human rights law, the law of torts
and criminal law.[277] Therefore,
given the importance accorded to the concept of informed consent in Irish law,
should it be a statutory requirement that individuals avail of advice and
counselling before drafting an advance care directive?
3.03
In its ethical
guidelines, the Medical Council advises that:
“Informed
consent can only be obtained by a doctor who has sufficient training and
experience to be able to explain the intervention, the risks and benefits and
the alternatives. In obtaining this consent the doctor must satisfy
himself/herself that the patient understands what is involved by explaining in
appropriate terminology. A record of this discussion should be made in the
patient’s notes.”[278]
3.04
There is no general
statutory embodiment of the common law requirement of informed consent to
medical treatment. However, section 56 of the Mental Health Act 2001
sets out a useful statutory definition of what constitutes consent in the
specific context of treatment for a ‘mental disorder’ of a patient covered by
the legislation:
“…’consent’,
in relation to a patient, means .consent obtained freely without threats or
inducement, where –
(a) The
consultant psychiatrist responsible for the care and treatment of the patient
is satisfied that the patient is capable of understanding the nature, purpose
and likely effects of the proposed treatment; and
(b) The
consultant psychiatrist has given the patient adequate information, in a form
and language that the patient can understand, on the nature, purpose and likely
effects of the proposed treatment.”
3.05
The Commission has
previously concluded that informed consent essentially requires that the
following elements be satisfied:[279]
·
prior disclosure of
sufficient relevant information by the medical practitioner to the patient to
enable an informed decision to be made about the treatment proposed;
·
the patient has the
necessary capacity at the time to decide whether or not to consent to the
proposed treatment;
·
the context allows the
patient to voluntarily make a decision as to whether to consent to or to
decline the proposed treatment.
3.06
In the English case Re
T,[280] Lord
Donaldson specifically observed in relation to advance directives that:
“What is
required is that the patient knew in broad terms the nature and effect of the
procedure to which consent (or refusal) was given. There is indeed a duty on
the part of doctors to give the patient appropriately full information as to
the nature of the information proposed, the likely risks, including any special
risks attaching to the treatment being administered by particular persons), but
a failure to perform this duty sounds in negligence and does not, as such,
vitiate a consent or refusal.” [281]
3.07
This statement has been
the source of debate. Whilst some commentators have accepted that it invokes a
common law requirement that an adult must be sufficiently informed before an
advance refusal of treatment will operate, others have argued that such a
requirement simply does not exist.[282]
They would argue that it conflicts with the fundamental proposition set out by
Butler-Sloss LJ in Re MB[283]
that “a mentally competent patient has an absolute right to refuse to consent
to medical treatment for any reason, rational or irrational, or for no reason
at all, even where that decision may lead to his or her own death.”[284]
3.08
During the passage of
what became the Mental Capacity Act 2005, it was proposed that “an
advance statement must be formulated with adequate information from a doctor
familiar with the patient’s clinical situation.”[285]
However, 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.[286]
With regard to advance decisions refusing life-sustaining 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.[287]
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.”[288] 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.”[289]
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.[290]
For example, in W Healthcare NHS Trust v H,[291]
the English Court of Appeal held that an alleged advance decision to withdraw
treatment was not legally binding on the grounds that the patient had not
discussed the ramifications of slowly starving to death over a two-to
three-week period with doctors.[292]
Where a patient refuses life-sustaining treatment in an advance directive, the
need to be fully informed of the full implications of such a decision takes on
an added importance when considering the words of Munby J in HE v A Hospital
NHS Trust[293]:
“Where, as
here, life is at stake, the evidence must be scrutinised with especial care.
The continuing validity and applicability of the advance directive must be
clearly established by convincing and inherently reliable evidence."[294]
3.11
Second, the British
Medical Association has also noted that individuals may have unrealistic
expectations with regard to what certain treatments can or cannot do for them,
which could influence the wording of their advance care directives.[295]
3.12
Third, the Irish
Council for Bioethics has noted that it is important to be specific in
outlining preferences for particular treatment scenarios, and that this level
of expected specificity could be difficult to achieve without adequate
counselling.[296] Moreover,
evidence from the U.S. demonstrates that advance directives are not always
informed decisions.[297] For
example, 10 out of 28 participants in an advance planning workshop agreed with
both of the following inconsistent statements: “I would never want to be on a
respirator” and “If a short period of extremely intensive medical care could
return me to a near-normal condition, I would want it.”[298]
Another physician described an advance directive which accepted blood
transfusions, but rejected diagnostic procedures. The physician noted, however,
that if the author of the directive developed gastrointestinal bleeding, it
would be “…absurd to dissociate the two interventions.” A patient who wanted a
swift death would refuse both interventions, whereas a patient who had a desire
to live would consent to both. The author had failed to appreciate how his specific
choices could conflict with his general treatment preferences.[299]
These examples highlight the importance of ensuring that patients are
sufficiently informed when making advance directives.
3.13
Equally, there are
dangers associated with discussing future treatment options. Although the Irish
Council for Bioethics recommended that an individual should avail of advice and
counselling before drafting an advance care directive, it ultimately advised
against making it a prerequisite for a directive to be followed.[300]
It argued that certain individuals may not wish to take counsel on the matter
or might not be able to avail of such advice for personal, financial or other
reasons. The argument is also propounded that any decision about treatment can
rarely be fully informed due to potential developments in medical science and
therefore, any advice is potentially futile. However, this argument is easily
rebutted if individuals update their advance care directives to take account of
any progress in medical science. A number of concerns were also considered in a
study conducted by King’s College London on Advance Directives and AIDS
in 1992, including a fear that patients might feel obliged to make a living
will where a form was brought out by an enthusiastic doctor without a direct
enquiry from the patient.[301]
Furthermore, concern was expressed that living wills might replace discussions instead
of stimulating them. In other words, a doctor might see a living will as a
pretext for not communicating with the patient to confirm his or her wishes,
even where the patient was in a position to do so.[302]
3.14
The Commission concurs
with the Irish Council for Bioethics that, in general, advice should be sought
prior to the drafting of an advance care directive. Discussions will enable a
person to clarify their thoughts on their refusal of treatment. Thus
consultation with a medical professional should be encouraged. For financial or
other reasons, however, a person may decide not to consult with a healthcare
professional. Indeed, to require a person to do so might lead to a tick-the-box
situation and fail to reflect individual autonomy. However, due to the serious
consequences involved in the refusal of life-sustaining medical treatment, the
Commission concludes that consultation with the medical professional is necessary
to ensure the person truly understands the consequences involved in such a
decision.
3.15
The Commission provisionally recommends that makers of advance care
directives should be encouraged to consult with a medical professional when
making an advance care directive. In the case of advance care directives
refusing life-sustaining medical treatment, the Commission provisionally
recommends that medical advice must be obtained for the advance care directive
to be valid.
3.16
In Re T,[303]
Lord Donaldson provided that “…[t]he right to decide one’s own fate presupposes
a capacity to do so.”[304] As noted
previously, at common law, the giving of informed consent is a prerequisite to
the carrying out of medical treatment. An element of the concept of informed
consent at common law is the requirement that the patient has the necessary
capacity to decide whether or not to have the proposed medical treatment.
Therefore, it must be an essential requirement of an advance care directive
that it was made at a time when the author had capacity to make it. It is the
responsibility of the relevant medical practitioner to ensure that a person had
the capacity to make the contemplated healthcare decision. This places a heavy
onus on them given the grave legal and ethical implications of treatment
without consent. Despite this, traditionally, there has been little guidance in
Ireland on how capacity in the context of consent to medical treatment should
be understood and how it should be assessed.[305]
3.17
In English law, a presumption
exists that an adult has the capacity to make his or her own healthcare
decisions. [306]
In Fitzpatrick v FK, Laffoy J held 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.”[307]
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.[308]
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?[309] This
question has never been addressed by English or Irish courts. However, the
Ontario Court of Appeal in Malette v Shulman[310]
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.[311]
3.20
An example of assessing
competence in the case of a patient’s refusal to consent to treatment and to
“project that forward to any anticipated intervention”[312]
occurred in Re C.[313] In this
case, a 68-year old man with chronic paranoid schizophrenia developed gangrene
in his leg, but refused amputation despite the hospital’s assessment that he
would die immediately if the operation was delayed. He sought an injunction to
prevent the hospital from amputating his leg in the future. Thorpe J was
prepared to find him competent and granted the injunction, even though C suffered
from the delusion that he was a world famous doctor who had never lost a
patient. In determining capacity, he devised a three-stage approach: was the
patient able to first, comprehend and retain the information; second, believe
it; and third, weigh the information so as to arrive at a choice?[314]
Although C’s general capacity to make a decision had been impaired by
schizophrenia, he had understood and retained the relevant information,
believed it and had arrived at a clear choice.
3.21
A difference in values should not in itself
lead to a finding of incapacity. In Re B,[315] a tetraplegic patient was being
kept alive by a ventilator and her physicians felt unable to comply with her
request to switch it off. Butler-Sloss P was careful to distinguish between
autonomy and mental capacity. She stated:
“If
there are difficulties in deciding whether the patient has sufficient mental
capacity, particularly if the refusal may have grave consequences for the
patient, it is most important that those considering the issue should not
confuse the question of mental capacity with the nature of the decision made by
the patient, however, grave the consequences. The view of the patient may
reflect a difference in values rather than an absence of competence and the
assessment of capacity should be approached with this firmly in mind.”[316]
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.[317]
3.22
However, in NHS
Trust v T[318] 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.
3.23
The English Mental
Capacity Act 2005 requires that an individual must have capacity at the
time of making the advance decision.[319]
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.[320]
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.[321] The
Commission recommended that a person will not be regarded as lacking capacity
simply on the basis of making a decision which appears unwise.[322]
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.[323]
3.25
In the High Court decision of Fitzpatrick v
FK[324] 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,[325]
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 constitutional rights
and conclude that his rights outweighed Ms K’s constitutional rights to
autonomy, self-determination and the free practice of her religion so as to
entitle the courts to intervene. The capacity question was to be determined
first, because the balancing of rights question would only arise in the event
that the court were to find that Ms K’s refusal of a blood transfusion was a
valid question.
Having undertaken a review of case law from
other jurisdictions on capacity, Laffoy J held that the following principles
are applicable when determining the capacity question. First, there is a
rebuttable presumption that an adult patient has the capacity to make a
decision to refuse medical treatment. Second, in determining whether a patient
is deprived of capacity to make a decision to refuse medical treatment, the
test is:
“whether
the patient’s cognitive ability has been impaired to the extent that he or she does
not sufficiently understand the nature, purpose and effect of the proffered
treatment and the consequences of accepting or rejecting it in the context of
the choices available (including any alternative treatment) at the time the
decision is made.”[326]
3.27
Third, the three-stage
approach to the patient’s decision-making process adopted in the English case Re
C is a “helpful tool” in applying that test. Laffoy J specifically noted
that the Law Reform Commission’s proposed statutory functional test of capacity
was consistent with the C case test. In applying Re C to the
facts of the case Laffoy J held, first, that Ms K did not sufficiently
understand and retain the information given to her by the Hospital personnel as
to the necessity of a blood transfusion to preserve her life; second, that she
did not believe that information and, in particular, that she did not believe
that she was likely to die without a blood transfusion being administered; and
finally, that in making her decision to refuse a blood transfusion, Ms K had
not properly weighed that information in the balance, balancing the risk of
death inherent in that decision and its consequences, including its
consequences for her new-born baby, against the availability of a blood
transfusion that would preserve her life.
3.28
Fourth, with regard to
the treatment information by reference to which the patient’s capacity is to be
assessed, she held that a clinician is under a duty to impart information as to
what is the appropriate treatment, that is:
“what
treatment is medically indicated, at the time of the decision and the risks and
consequences likely to flow from the choices available to the patient in making
the decision.”
She held
that Ms K’s clinicians had given her the information necessary to enable her to
make an informed decision as to
whether to
accept or refuse a blood transfusion. That information was conveyed in
layman’s terms from which a competent adult whose capacity was not impaired
should have understood the gravity of the situation. Fifth, a distinction was
drawn between a misunderstanding of the treatment information in the
decision-making process, which may be evidence of lack of capacity, and an
irrational decision, which is irrelevant to the assessment.
3.29
Sixth, the assessment of capacity must have
regard to “the gravity of the decision, in terms of the consequences which are
likely to ensue from the acceptance or rejection of the proffered treatment.”
Laffoy J rejected the suggestion of Ms K’s counsel that the patient’s capacity
should be measured against the nature of the decision, rather than its
consequences, citing the decision of the Supreme Court in Re a Ward of Court
(No 2)[327] in support.
When refusing a blood transfusion, Ms K had suggested to the Master of the
Hospital that Coca-Cola and tomatoes might be an alternative solution to a
blood transfusion. Laffoy J held that this suggestion could “only ring alarm
bells” as to Ms K’s appreciation of the gravity of the situation when viewed
objectively.
Laffoy J
concluded that Ms K’s capacity was impaired to the extent that she did not have
the ability to make a valid refusal to accept a blood transfusion. Therefore,
the administration of the transfusion was not an unlawful act, and did not
constitute a breach of her rights either under the Constitution or the
Convention.
3.30
The Medical Council’s
ethical guidelines contain some very general guidance on capacity issues. The
guidelines simply require an assessment of competence to be carried out in
conjunction with a senior colleague.[328]
3.31
In the concluding
section of her judgment, entitled ‘Guidance for the Future’, Laffoy J noted the
“inordinate amount of court time” that the issue had raised, and the amount of
time that clinicians and medical personnel had spent in court that would have
been “more usefully deployed elsewhere.” Therefore, she observed that it would
be helpful if:
“[T]he
Medical Council Guidelines specifically addressed how capacity to give a valid
refusal to medical treatment is to be assessed and, given the inevitability
that it will arise in the future, the issues which may arise relating to the
giving effect to advance directives to refuse medical treatment.”
3.32
In Queensland, a rather
confusing statutory situation exists, whereby two provisions appear to govern
the situation relating to capacity. First, Schedule 3 of the Queensland Powers
of Attorney Act 1998 states that a person is regarded as having capacity if
he or she is capable of understanding the nature and effects of
decisions, can freely and voluntarily make decisions and can communicate the
decision in some way. Under 42 of the 1998 Act, an adult can only make an
advance directive if he or she understands the following matters:
i)
“the nature and likely effects of each direction in the advance health
directive;
ii)
a direction operates only while the principal has impaired capacity for
the matter covered by the direction;
iii)
the principal may revoke a direction at any time the principal has
capacity for the matter covered by the direction;
iv)
at any time the principal is not capable of revoking a direction, the
principal is unable to effectively oversee the implementation of the
direction.”
The Queensland
1998 Act does not clarify how the two provisions interrelate. Willmott submits
that a possible interpretation is that section 42 sets out a non-exhaustive
list of matters that an adult must be able to understand in order to satisfy
the Schedule 3 test of ‘capacity’.[329]
In order to be enforceable, an advance health directive must also include a
certificate that is signed and dated by a doctor attesting to the fact that the
maker had the necessary capacity to complete the document at the time of making
it.[330]
3.33
In the wake of Laffoy’s
J comments in Fitzpatrick v FK, it is clear that guidance
on the issue of capacity is required for healthcare decisions. Such guidance could come from the
Commission’s proposed Working Group on Capacity to Make Healthcare Decisions.[331]
The Commission reiterates its position that there is a rebuttable presumption
of capacity whereby an adult is deemed capable of making a decision affecting
them.[332] The
Commission recommends that this presumption includes advance refusals of
treatment.
3.34
The Commission provisionally recommends that
there is a rebuttable presumption of capacity in favour of the maker of an
advance care directive.
3.35
The Commission provisionally recommends that
the capacity to refuse medical treatment should be assessed on the functional
test of capacity. The Commission also provisionally recommends that statutory
codes of practice be formulated to guide healthcare professionals when assessing
the capacity of an individual.
3.36
At what age should a
child be considered competent to refuse consent to treatment? Whilst an adult’s
right to refuse medical treatment is constitutionally recognised in Ireland,
the right of mature minors to refuse medical treatment has never been
judicially considered.
3.37
In Ireland, the general
statutory position is that a person aged 18 or over, having reached the age of
majority, may consent to or refuse all forms of healthcare. Age of Majority
Act 1985[333]
However, section 23(1) of the Non-Fatal Offences Against the Person Act 1997
more specifically states that:
“The consent
of a minor who has obtained the age of 16 years to any surgical, medical or
dental treatment, which, in the absence of consent, would constitute a trespass
to his or her person, shall be as effective as it would be if he or she were of
full age; and where a minor has by virtue of this section given an effective
consent to any treatment it shall not be necessary to obtain any consent for it
from his or her parent or guardian.”
3.38
The interpretation of
section 23(1) is problematic. Donnelly has identified a number of problems:
first, section 23(1) is unclear with regard to the legal standing of a refusal
of treatment by an individual aged over 16 years, but under 18 years of age;
second, there is no reference to refusal of treatment and it is unclear whether
this is implied;[334]
third, section 23(1) does not specifically prohibit individuals under 16 years
of age from giving a legal consent to treatment. McMahon and Binchy argue that
if section 23(1) were viewed in isolation, the inclusio unius est exclusio
alterius rule of construction might denote a legislative intent that 16
should be the minimum age for a lawful consent by a minor. [335] However, section 23(3) states:
“Nothing in
this section shall be construed as making ineffective any consent which would
have been effective if this section had not been enacted.”
3.39
Therefore, McMahon and
Binchy submit that that it appears that the Oireachtas decided to leave open
the question whether a minor under 16 has the capacity in any circumstances to
consent, without reference to the minor’s parents or guardians. In any event,
clarity is required. As Donnelly notes:
“While each
doctor’s decision will depend on his view of the circumstances at hand, he is
hampered in reaching this decision by the absence of clarity in relation to the
legal framework that binds him.”[336]
3.40
In England and Wales,
an almost identical provision to section 23 of the 1997 Act applies. Section 8
of the Family Law Reform Act 1969 provides that:
“The consent
of a minor who has attained the age of sixteen years to any surgical, medical
or dental treatment, which in the absence of consent, would constitute a
trespass to his person, shall be as effective as it would be if he were of full
age; and where a minor has by virtue of this section given an effective consent
to any treatment it shall not be necessary to obtain any consent for it from
his parent or guardian.”
3.41
Similarly, there is no
explicit prohibition regarding individuals under the age of 16. Section 8 of
the Family Law Reform Act 1969 was interpreted in the watershed decision
of Gillick v West Norfolk and Wisbech AHA.[337]
There, a circular had been issued by the Department of Health and
Social Security. The circular stated that if a girl under 16 years of age
requested contraceptives, a doctor would not be acting unlawfully in providing
them in order to protect the girl against the harmful effects of sexual
intercourse. It also stated that although the doctor should seek the
involvement of the girl’s parents, contraceptives could be provided in
exceptional circumstances without parental consent. The plaintiff, who had five
daughters under the age of 16, sought an assurance from her local Area Health
Authority that her daughters would not be given contraceptive advice or
treatment without her prior consent. The defendant Health Authority refused to
give such an assurance, and the plaintiff sought a declaration from the court
that the advice contained in the circular was unlawful and in breach of her
parental rights. In finding for the defendants, the House of Lords recognised
that:
“… as a
matter of law the parental right to determine whether or not their minor child
below the age of 16 will have medical treatment terminates if and when the
child achieves a sufficient understanding and intelligence to enable him or her
to understand fully what is proposed. It will be a question of fact whether a
child seeking advice has sufficient understanding of what is involved to give a
consent valid in law.”[338]
3.42
Therefore, an
individual assessment of the maturity of the patient must be carried out in
each case, evaluating whether the patient understands the nature of the advice
being given and whether the patient has sufficient maturity to understand what
is involved. The term Gillick-competent is now part of “medico-legal
lore”.[339]
3.43
The Scottish
legislature appears to have taken Gillick into consideration when
drafting the Age of Legal Capacity (Scotland) Act 1991.[340] Section
2(4) specifically makes provision for medical treatment for those under the age
of 16:
“A person
under the age of 16 years shall have legal capacity to consent on his own
behalf to any surgical, medical or dental procedure or treatment where, in the
opinion of a qualified medical practitioner attending him, he is capable of
understanding the nature and possible consequences of the procedure or
treatment.”
3.44
The Age of Legal
Capacity (Scotland) Act 1991 also suffers from the same deficiency as
section 8 of the English Family Law Reform Act 1969 and section 23(1) of
the Non-Fatal Offences Against the Person Act 1997 in that there is no
express provision for refusal of treatment. Nor was the issue specifically addressed
by the House of Lords in the Gillick decision.
3.45
The problematic
question of whether a mature minor could refuse as well as consent to treatment
was addressed in the English case of Re R (a minor) (wardship: medical
treatment).[341] A local
authority began wardship proceedings seeking permission from the court to give
a 15 year old girl anti-psychotic drugs without her permission. The English
Court of Appeal concluded that Gillick had no application in the present
case, as it was a wardship case which had to be determined in accordance with
the best interests of the ward. Although R was incompetent to make the relevant
medical decision because of her fluctuating medical condition, the Court did
engage in a discussion of the power of a competent mature minor to refuse
treatment. All three judges accepted that the court has the power to override
the refusal of a competent child.[342]
However, only Lord Donaldson MR commented (albeit obiter) on the issue
of conflicting wishes of parents and child. He observed that a Gillick
competent child can consent to treatment, but if the child refuses treatment,
consent can be given by someone who has parental rights or responsibilities.[343]
3.46
A number of issues were left unresolved by Re
R which were at issue before the Court of Appeal in 1992 in Re W (a
minor) (medical treatment).[344] W was sixteen years old. Therefore, the Family Law Reform Act 1969 applied
in this case, whereas it did not apply in either Gillick or Re R.
Thus, the following question had to be addressed: does a minor who has attained
the age of 16, but who is still under the age of majority have an absolute
right to refuse medical treatment, such that section 8 of the 1969 Act does not
apply?[345] In Re
W, the Court of Appeal granted an application by a local authority for
permission to treat a 16 year old girl suffering from anorexia against her
wishes. Balcombe LJ observed that:
“Undoubtedly,
the philosophy behind section 8 of the 1969 Act, as well as behind the decision
of the House of Lords in Gillick’s case is that, as children approach
the age of majority, they are increasingly able to taken their own decisions
concerning their medical treatment and an ability to refuse medical treatment…”[346]
However,
the court noted that although section 8 of the Family Law Reform Act 1969
explicitly referred to the right of a minor who has attained the age of 16 to
consent to treatment, it was silent as to whether a right to refuse medical
treatment existed. It accepted that a child over the age of 16, as well as a
Gillick competent child, has a right to refuse as well as consent to treatment.
However, neither section 8 of the 1969 Act nor the common law, as interpreted
by Gillick’s case, conferred an absolute right to refuse
treatment on either category of minor. If the court’s powers were to be
meaningful:
“…there
must come a point at which the court, while not disregarding the child’s
wishes, can override them in the child’s own best interests, objectively
considered. Clearly, such a point will have come if the child is seeking to
refuse treatment in circumstances which will in any probability lead to the
death of the child or to severe permanent injury.”[347]
3.47
Elliston has argued
that it is illogical to draw a distinction between the ability to consent to
treatment and the ability to refuse treatment. Rather, “the right to say yes
must carry with it the right to say no.”[348]
Whilst conceding that consent “involves the acceptance of an experienced view,
refusal rejects that experience – and does so from a position of limited
understanding”,[349] she
maintains that the same argument applies to adults, as most patients will know
less about the treatment of their disease than their doctor. Mason, however,
takes the opposite view:
“…a refusal
of medical treatment may close down the options – and this may be regretted
later in that the chance to consent has now passed. The implications of refusal
may, therefore, be more serious and, on those grounds refusal of treatment may
require greater understanding than does acceptance. A level of comprehension
sufficient to justify refusal of certain treatment includes one to accept treatment
but the reverse does not hold; the two conditions cannot be regarded as being
on a par.”[350]
3.48
Section 24 of the
English Mental Capacity Act 2005 incorporates the recommendation of the
Law Commission of England and Wales that a person may make an advance decision
“after he has reached 18”.[351]
Similarly, in Denmark, the Health Act 2005 states that any person over
the age of 18 and not under guardianship may make a living will.[352]
3.49
Canadian states vary in
the minimum age required to make a valid directive. In Alberta, a person must
be over 18.[353] In
Saskatchewan and Manitoba, a person must be over 16.[354]
Newfoundland and Labrador does not have a minimum age requirement.
3.50
In Singapore, a person
must have attained the age of 21 in order to make an advance medical directive.[355]
3.51
While the age for
consenting to medical treatment is 16, the Commission notes there is a
difference between refusing and consenting to medical treatment. A refusal of
life-sustaining medical treatment has very serious consequences. Has a person
as young as 16 the maturity and capability to make such a decision? In view of
the complex issues that arise in this respect, the Commission wishes to invite
submissions on this issue.
3.52
The Commission invites submissions on the age a
person must be before they can make a valid advance care directive.
4.01
In this Chapter, a
number of formalities concerning advance care directives are considered by the
Commission. Part B discusses whether an advance care directive should be in
writing. Part C discusses safeguards regarding advance care directives that
refuse life-sustaining treatment. Part D considers whether advance care
directives should be witnessed, and if so, whether certain parties should be
excluded from acting as witnesses. Part E examines whether advance care
directives should be in a prescribed form. Part F discusses “valid” and
“applicable” safeguards that the English Mental Capacity Act 2005 has
imposed. Part G discusses when an advance care directive should be activated, otherwise
known as the ‘triggering event’. Part H discusses the potential problems
that arise first, when a patient attempts to revoke an advance care directive
when incompetent and second, when a patient has changed his or her mind, but
has failed to actually revoke the directive. Part I debates whether advance
care directives should be subject to regular review, and whether they should
lapse after a specified number of years unless reviewed. Part J considers
methods for storing advance care directives.
4.02
The English Court of
Appeal judgment in Re T[356]
noted that an anticipatory decision may take a number of forms, including “a
hospital’s standard form of refusal, a ‘no blood’ card carried by a Jehovah’s
Witness, or a spoken refusal repeated to the patient’s doctor, nurse and
midwife, in the presence of family members.”[357]
Mills also stated that an advance care directive could be written, could be
recorded in a patient’s notes or could be made orally.[358]
4.03
The decision in W
Healthcare NHS Trust v H[359]
indicates, however, that it may be difficult to clearly establish an
oral advance decision. The English Court of Appeal was asked to consider
whether conversations conducted some ten years earlier were sufficient to
constitute an advance directive refusing the reinsertion of a percutaneous
gastrostomy tube (Peg tube). The patient was a 59-year old woman suffering from
multiple sclerosis requiring 24-hour care to enable her to survive. She was
“conscious but not more than that” and she was unable to recognise even those
who were closest to her in her family.[360]
Evidence was put forward that she had previously said to her daughter, “I don’t
want to be kept alive by machines”, and to a close friend that she did not want
to be a burden to her daughters or kept alive if she could no longer recognise
them. Despite this, Brooke LJ stated:
“I am of the
clear view that…there was not an advance directive which was sufficiently clear
to amount to a direction that she preferred to be deprived of food and drink
for a period of time which would lead to her death in all circumstances. There
is no evidence that she was aware of the nature of this choice, or the
unpleasantness or otherwise of death by starvation and it would be departing
from established principles of English law if one was to hold that there was an
advance directive which was established and relevant in the circumstances in
the present case, despite the very strong expression of her wishes which came
through in the evidence.”[361]
It is
clear, therefore, that while it should be permissible for persons to express
themselves in verbal form, this may give rise to difficulties of scope and
application.
4.04
In 1994, one writter
noted that although there was no reason in principle to disregard oral advance
care directives, “it is common to assume that advance declarations should be
required to be made in writing”.[362]
The writer added: “This has significant practical advantages. It provides
concrete evidence of the patient’s wishes which would reduce the likelihood of
disputes. It will also overcome the weaknesses of memory of those in whom the
patient confided. This leaves less scope for the existence of directions to be
forgotten or for mistakes as to their terms.”[363]
4.05
In his 1969 proposal
for advance care directives, Kutner proposed that the living will should be
notarised and attested to by at least two witnesses who would affirm that the
maker was of sound mind and acted of his own free will.[364]
There are a number of advantages associated with imposing formal requirements.
First, formalities of execution can provide reliable and permanent evidence of
the maker’s intentions. Second, they can minimise the effect of undue influence
and fraud. Third, they can ensure that the maker of the advance care directive
has capacity and is well informed as to the significant consequences of a
decision. On the other hand, formal requirements may discourage the public from
drafting advance care directives due to inconvenience and cost.
4.06
In 1993, the Law
Commission for England and Wales noted that it would be reluctant to deprive an
advance decision of validity merely because it was not made in a particular
form.[365]
4.07
The English Mental
Capacity Act 2005 appears to have adopted this approach by providing that
an advance decision may be either written or oral. There is no set format for
oral advance decisions. The Code of Practice for the 2005 Act notes that this
is because “they will vary depending on a person’s wishes and situation.”[366]
However, it recommends that, in order to prevent future confusion, “where
possible, healthcare professionals should record a verbal advance decision to
refuse treatment in a person’s healthcare record.”[367]
This record should include:
·
“a note that the
decision should apply if the person lacks capacity to make treatment decisions
in the future;
·
a clear note of the
decision, the treatment to be refused and the circumstances in which the
decision will apply;
·
details of someone who
was present when the oral advance decision was recorded and the role in which
they were present (for example, healthcare professional or family member); and
·
whether they heard the
decision, took part in it or are just aware that it exists.”[368]
4.08
The English 2005 Act
does not set out formal requirements if the advance care directive is in
writing. However, the Code of Practice for the English notes that it is
“helpful” to include the following information in a written advance directive:
·
“full details of the
person making the advance decision, including date of birth, home address and
any distinguishing features (in case healthcare professionals need to identify
an unconscious person, for example);
·
the name and address of
the person’s GP and whether they have a copy of the document;
·
a statement that the
document should be used if the person ever lacks capacity to make treatment
decisions;
·
a clear statement of
the decision, the treatment to be refused and the circumstances in which the
decision will apply;
·
the date the document
was written (or reviewed);
·
the person’s signature
(or the signature of someone the person has asked to sign on their behalf and
in their presence);
·
the signature of the
person witnessing the signature, if there is one (or a statement directing
somebody to sign on the person’s behalf).”[369]
4.09
While the Mental
Capacity Act 2005 provides for both oral and written advance care
directive, it has been suggested that “this apparent flexibility is somewhat
illusory”.[370]
Bartlett argues that regardless of what the 2005 Act may say “a practitioner or
a court will be hesitant to rely on a refusal without clear evidence that it
was meant to be taken seriously”.[371]
Bartlett argues that while a record of the oral advance care directive on a
patient’s records will help, a written advance care directive is the only way
to ensure that it will be followed.
4.10
A small minority of
states in the United States allow oral advance directives. This involves a
declaration of a patient’s treatment to his doctor, who then makes an official
addition to the patient’s medical record.[372]
4.11
In the Australian
Capital Territory, oral directives are permitted.[373] It
must, however, be witnessed by two health professionals, one of whom must be a
doctor.[374]
4.12
The Commission notes
the value of written advance care directives in promoting clarity. However the
Commission also notes that it may not always be possible to prepare a written
advance care directive. An oral advance care directive allows for flexibility.
The Commission concludes that, subject to its views on advance care directives
concerning life-sustaining treatment, discussed in Part C below, it should be
permissible to recognise the validity of oral advance care directives. The
Commission recognises that this will involve issues of interpretation in
practice and will explore these issues in the context of the consultation
process leading to its final recommendations in this area.
4.13
The Commission provisionally recommends that both oral and written advance care
directives are valid.
4.14
Section 25 of the
English Mental Capacity Act 2005 imposes specific conditions regarding
advance decisions refusing life sustaining treatment. Life-sustaining treatment
is defined rather broadly as “treatment which in the view of a person providing
health care for the person concerned is necessary to sustain life.”[375]
In addition to being valid and applicable,[376]
the advance decision must be:
·
in writing;
·
signed by the maker of
the advance decision or by another person in the maker’s presence and by the
maker’s direction, and that signature is made or acknowledged in the presence
of a witness who signs or acknowledges his/her signature in the presence of the
maker of the decision;
·
verified by a statement
by the maker to the effect that it is to apply to that treatment even if his/her
life is at risk.
4.15
The common law had no
such formalities in these circumstances. Unlike the provisions relating to
validly executed enduring powers of attorney, there are no transitional
provisions for advance refusals of life-sustaining treatment. If an individual
made an advance refusal of life-sustaining treatment prior to the enactment of
the Mental Capacity Act 2005, they must execute a new decision that
complies with section 25 of the Act.
4.16
Where there are doubts
as to the validity and applicability of an advance decision, section 26(5) of
the English 2005 Act provides that life-sustaining treatment may be given to
the maker and any other act may be done to prevent a serious deterioration of
the maker’s condition, while a decision is sought from the court. A potential
danger associated with section 26(5) however, is that a treatment provider may
seek a court declaration, not because of any genuine reservations regarding the
validity and applicability of an advance decision, but rather to avail of
life-sustaining treatment pending the court decision. However, according to
section 26(2), a treatment provider does not incur liability for carrying out
treatment, unless at the time, he is “satisfied” that an advance decision
exists which is valid and applicable to the treatment. Therefore, potential
liability could ensue.[377]
4.17
In Queensland,
significantly greater restrictions are imposed where a direction in an advance
health directive relates to the withholding or withdrawal of a life-sustaining
measure. The definition of a “life-sustaining measure” is defined in a more
specific manner than in the English Mental Capacity Act 2005. Section 5A
of the Queensland Powers of Attorney Act 1988 states that:
(1)
“A ‘life-sustaining
measure’ is health care intended to sustain or prolong life and that supplants
or maintains the operation of vital bodily functions that are temporarily or
permanently incapable of independent operation.
(2)
Without limiting
subsection (1), each of the following is a ‘life-sustaining measure’ –
(a)
cardiopulmonary
resuscitation;
(b)
assisted ventilation;
(c)
artificial nutrition
and hydration.
(3)
A blood transfusion is
not a “life-sustaining measure”.
4.18
The Queensland 1998 Act
also states that two or three conditions must be met (depending on the
circumstances). First, the adult’s health must be in decline and the adult
must:
·
have a terminal
illness, or a condition that is incurable or irreversible, from which the adult
may reasonably be expected to die within one year; or
·
be in a persistent
vegetative state;
·
be permanently
unconscious; or
·
have an illness or
injury of such severity that there is no reasonable prospect that the adult
will recover to an extent that life-sustaining measures will not be needed.[378]
4.19
Second, the advance
health directive can only apply if the adult has no reasonable prospect of
regaining capacity for health matters.[379]
The third condition will only apply if the advance health directive directs
that artificial nutrition and hydration is to be withheld or withdrawn. The
commencement or continuation of artificial nutrition and hydration must be
inconsistent with good medical practice in order for the directive to be valid.[380]
4.20
Withdrawal of
artificial nutrition and hydration (ANH) will usually lead to death, but can it
be described as life-sustaining medical treatment? While it can be argued that
the removal of ANH simply allows nature to take its course, Power points out
that many people require assistance in their feeding,[381]
including babies, the elderly and people with spinal cord injuries. If the
carer for these people fails to feed this person, criminal liability could
arise.[382]
4.21
This issue arose in Re
a Ward of Court (No 2).[383]
Blayney J stated that “normal food and drink could never be categorised
as medical treatment”.[384] Hamilton
CJ did find that artificial feeding was “medical treatment”.[385] However he went onto state that the withdrawal of artificial
nutrition would not be the cause of death, it would be the injuries originally
sustained which had caused the coma.[386]
While the practical implications of the withdrawal of ANH was death, Hamilton
CJ appears to suggest that ANH is not life-sustaining treatment.
4.22
The Commission
recognises the serious implications involved in refusing life-sustaining
medical treatment. The Commission appreciates, however, that the scope of this
area requires further consideration. In light of the discussion of how this
area has been treated in other jurisdictions, in the case of life sustaining
treatment, the Commission provisionally recommends that only written advance
care directives are valid. The Commission welcomes submissions on the
definition of life-sustaining medical treatment and on whether artificial
nutrition and hydration is life-sustaining medical treatment.
4.23
In the case of life-sustaining treatment, the
Commission provisionally recommends that only written advance care directives
are valid. The Commission welcomes submissions on the
definition of life-sustaining medical treatment and
on whether artificial nutrition and hydration is life-sustaining medical
treatment.
4.24
Although the Law
Commission of England and Wales recommended that patients should express any
advance refusals of treatment in writing, to sign the document and to have
their signature witnessed,[387] the
English Mental Capacity Act 2005 does not incorporate such formalities.
It is only when an advance decision refuses life-sustaining treatment that it
must be signed by the maker of the advance decision or by another person in the
maker’s presence and by the maker’s direction, and that signature is made or
acknowledged in the presence of a witness who signs or acknowledges his or her
signature in the presence of the maker of the decision.[388]
4.25
Witnessing requirements
exist in all Australian jurisdictions.[389]
However, the requirements vary across jurisdictions. For example, in the
Australian Capital Territory and the Northern Territory, witnesses need only
attest to the fact that the adult signed the directive.[390]
However, in Queensland, South Australia and Victoria, a witness must attest to
the fact that the adult had the requisite capacity to make the directive.[391]
4.26
In 1988, the English
Age Concern Report raised the question as to whether certain persons, such as
creditors or potential beneficiaries, should be excluded from witnessing an
advance directive. It proposed that at least one witness must be “neither a
relative nor a person who would take any part of the estate by will or otherwise
on the death of the person involved.”[392]
Whilst the English Mental Capacity Act 2005 did not adopt this
suggestion, it has been adopted in other jurisdictions.
4.27
For example, in North
Dakota an advance care directive must either be notarised or signed by two
witnesses, at least one of which may not be:
“…a health
care or long-term care provider providing direct care to the principal or an
employee of a health care or long-term care provider providing direct care to
the principal on the date of execution… the agent, the principal’s spouse or
heir, a person related to the principal by blood, marriage, or adoption, a
person entitled to any part of the estate of the principal upon the death of
the principal under a will or deed in existence or by operation of law, any
other person who has, at the time of execution, any claims against the estate
of the principal, a person directly financially responsible for the principal’s
medical care, or the attending physician of the principal.”[393]
4.28
In other words, at
least one of the witnesses listed above must be a ‘disinterested witness’. The
rationale behind such a requirement is that it avoids any potential conflict of
interest or duress by those who have an interest in the executor’s death. It
has been argued, however, that this is a “most pernicious technicality” which
has the potential to “wreak havoc on the emerging field of advance directive
law.”[394]
4.29
Proponents of
disqualifying healthcare professionals as witnesses would argue that it ensures
that vulnerable patients are protected by eliminating any possible conflict of
interest. However, not only does this justification fly in the face of the
Hippocractic oath to “do no harm”, but it also disregards the common complaint
that doctors disregard the plain instructions of a patient’s advance care
directive in their “zeal to cure.”[395]
The United States Uniform Health Care Decisions Act 1997 chose not to
require witnesses for advance directives. In doing so, it was cited for relying
“on recordkeeping – entering the advance directive in the patient’s health care
records – and conformance with medical ethics as affirmative rules to determine
and effectuate genuine intent.”[396]
4.30
Conversely, the Hong
Kong Law Reform Commission recommended that advance care directives be
witnessed by two witnesses, one of whom must be a medical practitioner,
neither witness having an interest in the estate of the person making the
advance care directive.[397] It argued
that requiring a medical practitioner to act as a witness would serve a number
of purposes. The medical practitioner would be able to assess whether the
individual was competent at the time of making the advance care directive and explain
the nature and implications of making the advance care directive to the maker.
It argued that consistency of practice by witnessing doctors could best be
achieved by the Medical Council issuing guidelines.
4.31
The rationale for
disqualifying heirs and relatives is to guard against duress and coercion, and
appears to be borrowed from the law of wills.[398]
An individual who takes under the will cannot be regarded as an impartial
witness to attest to the circumstances surrounding the execution of the will.
However, the difficulty with excluding heirs and relatives from acting as
witnesses is that they are likely to be the individuals most familiar with the
maker’s wishes and values and “most likely to advocate honestly on his behalf.”[399]
4.32
While reluctant to
impose a list of requirements to satisfy before a written advance care
directive is valid, the Commission provisionally recommends that a written
advance care directive which refuses life-sustaining medical treatment must be
witnessed by at least one person. At first glance a medical professional would be
suited for this role as they are in a position to explain the implications of
an advance care directive. To impose such a duty, however, would be an undue
burden upon the doctor.
4.33
The Commission provisionally recommends that
only a written advance care directive which refuses life-sustaining medical
treatment must be witnessed by at least one person.
4.34
In certain
jurisdictions, such as the Australian Northern Territory, an advance care
directive must be in a prescribed form.[400]
There are a number of advantages associated with this formality. First, it
provides a guide for patients who might otherwise make “medically unsound or
legally untenable” requests in which case “the doctor responsible for
implementing the living will may be exposed to ethical and legal insecurity.”[401]
Second, if a range of different documents were employed, doctors might find it
difficult to adopt a workable practice and simply choose not to pay attention
to them.[402]
4.35
The Alberta Law Reform Commission recommended, however, that patients
should be free to adopt any form of advance directive:
“To include a recommended form in the legislation might well
give the misleading impression that it is the only form (or the preferred form)
of healthcare directive, and thus might be adopted regardless of the particular
individual’s needs and circumstances. A healthcare directive should be tailored
to fit the wishes and needs of the individual, and we would not wish the
legislation to imply that there is a ‘boilerplate’ version which can be used in
all cases.”[403]
4.36
An advance care directive will differ according to the treatment refused
and the circumstances in which it was drafted. Due to the individuality of each
advance care directive, one form will not suit all. The Commission recognises,
however, that there is a basic amount of information which should be contained
in any advance care directive. The information should include, but not be
limited to, the name, address, date of birth and GP of the advance care
directive author, the treatment to which the author does not wish to consent to
and the name and address of the proxy. Because of the scope of circumstances
noted, the Commission does not wish to be prescriptive in this respect but
notes that the Irish Council for Bioethics has published some examples of the
different forms that an advance care directive might take.[404]
4.37
The Commission provisionally recommends that it is not necessary for
an advance care directive to be in a prescribed form.
4.38
In the English case Re T, Lord Donaldson
MR observed that the binding nature of an advance directive is dependent upon
“two major ‘ifs’”: if the choice is clearly established and if it is applicable
in the circumstances.[405] Section 25 of the English Mental
Capacity Act 2005 echoes the common law position, containing two important
safeguards, namely, that an advance decision must be both valid and applicable
to the proposed treatment.
4.39
It is ultimately the
responsibility of the healthcare professional who is in charge of the patient’s
care to decide whether there is an advance decision which is valid and
applicable in the circumstances.[406]
In the event of doubt, the Court of Protection can rule on whether an advance
decision exists, is valid and is applicable to the treatment proposed.[407]
If the court rules that it is, the decision must be respected. There is no
mechanism for the court to overrule a valid and applicable advance decision to
refuse treatment.
4.40
Section 25(2) of the
English Mental Capacity Act 2005 states that an advance decision is not
valid if the maker of an advance decision has:
(a) “withdrawn
the decision at a time when he had capacity to do so;
(b) under
a lasting power of attorney created after the advance decision was made,
conferred authority on the donee (or, if more than one, any of them) to give or
refuse consent to the treatment to which the advance decision relates; or
(c) done
anything else clearly inconsistent with the advance decision remaining his
fixed decision.”[408]
4.41
The scope of section 25(2)(c) is “potentially
remarkably expansive.”[409] An illustration of its potential
scope can be seen in HE v A Hospital Trust,[410]
a case decided before the enactment of the Mental Capacity Act 2005.
There, a 24-year-old Jehovah’s Witness, who had been born a Muslim, required a
life-saving blood transfusion. She had, however, previously written an advance
care directive refusing consent to such treatment “in any circumstances.” Her
father applied for a court declaration that the administration of a blood
transfusion to his daughter was lawful despite the advance care directive. In
support of his application, her father stated that his daughter had become
engaged to a Muslim and promised him to convert to that faith and no longer
attend meetings of the Jehovah’s Witnesses. Furthermore, his daughter had
admitted herself to a hospital shortly before her collapse and made no
reference to being a Jehovah’s Witness and to having objections to blood
transfusions. On the other hand, the advance care directive was only two years
old and his daughter had made no attempt to rescind it. Munby J summarised the
predicament by stating that while:
“…too ready
a submission to speculative or merely fanciful doubts will rob advance
directives of their utility and may condemn those who in truth do not want to
be treated to what they would see as indignity or worse, …too sceptical a
reaction to well-founded suggestions that circumstances have changed may turn
an advance directive into a death warrant for a patient who in truth wants to
be treated.”[411]
He held that
“the continuing validity and applicability of the advance directive must be
clearly established by clear and convincing evidence,” and concluded that the
father’s evidence raised “considerable doubt”. In these circumstances, the
directive:
“cannot have
survived her deliberate, implemented decision to abandon that faith and revert
to being a Muslim. When the entire substratum has gone, when the very
assumption on which the advance directive was based has been destroyed by
subsequent events then…the refusal ceases to be effective.”[412]
4.42
The case has been
criticised on the basis that although there was some evidence that there had
been a change in circumstances, the advance care directive remained the most
authoritative indication of her wishes.[413]
However, it has also been argued that it is doubtful whether the case would
have been decided differently under section 25(2)(c) of the English Mental
Capacity Act 2005. The woman in the case had merely promised her fiancée
that she would convert to the Muslim faith. It is uncertain whether her
engagement to a Muslim man in itself can be regarded as “clearly inconsistent”
with the patient’s refusal to have blood transfusions administered. Had she
converted, the situation might be different.[414]
Nevertheless, it appears that advance refusals of life-sustaining treatment
will be upheld only in cases of manifest and unambiguous validity and
therefore, authors will have to be vigilant for their views to be respected.[415]
4.43
Section 25 of the
English Mental Capacity Act 2005 states that an advance decision is not
applicable to the treatment in question if:
·
at the material time
the maker of the advance decision has capacity to give or refuse consent to it;[416]
·
that treatment is not
the treatment specified in the advance decision;[417]
or
·
any circumstances
specified in the advance decision are absent;[418]
or
·
there are reasonable
grounds for believing that circumstances exist which the maker of the advance
decision did not anticipate at the time of the advance decision and which would
have affected his decision had he or she anticipated them.[419]
These provisions
are also considerably broad in scope. When deciding whether an advance decision
applies to the proposed treatment, the Code of Practice for the 2005 Act merely
advises healthcare professionals to consider:
·
how long ago the
advance decision was made; and
·
whether there have been
changes in the patient’s personal life (for example, the person is not
pregnant, and this was not anticipated when they made the advance decision)
that might affect the validity of the advance decision; and
·
whether there have been
developments in medical treatment that the person did not foresee.[420]
4.44
It has been argued that
whilst the broad language of section 25 allows a patient to avail of progress
in medical science, it may also allow a court to exploit its provisions, if
reluctant to uphold a refusal of treatment.[421]
4.45
Neither the 2005 Act
nor the Code of Practice for the 2005 Act clarifies what level of detail is
required in order for a refusal of a ‘specified’ treatment to be applicable.
Guidance may be found from the case W Healthcare NHS Trust v H.[422]
There, the court accepted that some of the patient’s previous
statements may have been sufficiently clear, for example, her desire not to be
kept alive on “life support machines.”[423]
However, the other remaining general statements refusing treatment based on
quality of life considerations were insufficiently precise to amount to an
applicable advance directive.[424]
Therefore, the court held that she had not refused the artificial nutrition and
hydration.
4.46
If an advance decision
is not valid or applicable to current circumstances:
·
healthcare professionals
must consider the advance decision as part of their assessment of the person’s
best interests if they have reasonable grounds to think it is a true expression
of the person’s wishes, and
·
they must not assume
that because an advance decision is either invalid or not applicable, they
should always provide the specified treatment (including life-sustaining
treatment) – they must base this decision on what is in the person’s best
interests.[425]
4.47
In determining the
validity of an advance care directive, a healthcare professional or a court
must engage in a delicate balancing exercise involving the right to
self-determination and the principle of the sanctity of life.[426]
A number of commentators have concluded that, in cases of doubt, a strong bias
in favour of the sanctity of life has emerged.[427]
For example, in England, it has been contended that both the English Mental
Capacity Act 2005, as well as the common law, apply a bias against the
validity or applicability of an advance decision refusing life-sustaining treatment.
In Re T, Lord Donaldson MR declared that the burden of proof is on those
who seek to establish an advance decision that refuses life-sustaining or
life-saving treatment. If there is doubt, “that doubt falls to be resolved in
favour of the preservation of life.” The evidence must be scrutinised with
“especial care”.[428]
Equally, as can be seen from a comparison of sections 26(2) and 26(3) of the
English Mental Capacity Act 2005, the criteria for avoiding liability are
much stricter than those for disregarding an advance decision.[429]
4.48
By way of contrast, in
the Canadian case of Malette v Shulman,[430]
there was a considerable degree of doubt on the part of the treating doctor,
regarding the validity of an advance refusal of treatment which was contained
on a card in the patient’s purse. For example, it was unknown whether the
patient might have changed her religious beliefs before the accident, whether
the card may have been signed as a result of family or peer pressure, whether
she had been sufficiently informed of the nature and effect of her decision,
whether she still knew the card was in her purse, or whether, if conscious, she
might have changed her mind in the face of medical advice. The Ontario Court of
Appeal acknowledged the possibility of these events, but concluded that the
doctor’s doubts as to these matters were “not rationally founded on the
evidence before him”.[431] This
approach has been embraced by commentators as “robust”, and preferable to that
taken in England.[432]
4.49
In deciding whether a
directive is applicable to the particular circumstances facing the patient and
the doctors, a values history has been propounded as an invaluable aid of
interpretation. A values history is a statement of the individual’s general
values, providing “the information necessary to make a reasonable and
thoughtful decision; it does not purport to be the decision itself.”[433]
It offers a number of significant benefits. First, it is not limited to
specific questions about preferred forms of medical intervention in the event
of incompetence. Indeed, the more specific an advance directive is, the more
likely it is to vary from the circumstances that actually arise. Second, it
“naturally facilitates the recognition and exercise of patient autonomy in the
health-care decision-making process.”[434]
Third, if a values history is carefully documented in a medical record and
updated at regular intervals it can potentially provide the “clearest and most
convincing evidence” of the patient’s views following a loss of competence.
4.50
In the United States,
the “Five Wishes” document, a simple advance directive that is (arguably)
legally effective under the laws of 40 different states, is increasing in
popularity.[435] The Five
Wishes document “lets your family and doctors know:
1.
Which person you want to make health care decisions for you when you
can’t make them;
2.
The kind of medical treatment you want or don’t want;
3.
How comfortable you want to be;
4.
How you want people to treat you;
5.
What you want your loved ones to know.”
4.51
A values history would
be insufficient on its own to guide physicians. As Holmes J stated, “[g]eneral
propositions do not decide concrete cases.”[436] Therefore,
perhaps the most appropriate approach would be to combine an advance directive
with a values history:
“Value-based
directives may be easier for patients to complete, because they do not require
a knowledge of health problems or medical treatments. However, preference-based
directives may be easier for health care professionals to interpret and
implement, because they provide more explicit directives regarding treatment.
It is difficult to know how to balance these conflicting goals. Since values
and preferences represent fundamentally different, but complementary,
approaches, instruction directives should contain both these components.”[437]
This approach would be in line with the suggestion of one English
commentator, who has argued that an attempt should be made to interpret the
directive by inferring from documentary or extrinsic evidence what the
patient’s wishes were.[438]
4.52
At English common law,
an advance care directive must have been given free from undue influence. In Re
T,[439] the
English Court of Appeal held that a patient who was 34 weeks pregnant and who
had refused a blood transfusion, had been subject to the undue of influence of
her mother, a Jehovah’s Witness. The court held that physicians had been
justified in ignoring the patient’s refusal and administering the transfusion.
However, Staughton LJ warned that in order for an advance directive to be
invalid, there must be “such a degree of external influence as to persuade the
patient to depart from her own wishes.”[440]
4.53
Australian statutes
have dealt extensively with the condition that an advance directive must have
been made in a voluntary fashion.[441]
In Queensland, the issue of voluntariness is subsumed within the definition of
‘capacity’. An adult does not have capacity unless he or she can “freely and
voluntarily” make a decision about a matter.[442]
In the Australian Capital Territory, a directive is void if it is obtained
through the use of “violence, threats, intimidation or [if a person] otherwise
hinders or interferes with [the maker]…for the purpose of…obtaining” a
directive.[443] Finally,
in Victoria, witnesses who sign a refusal of treatment certificate must attest
to the fact that they are satisfied that the adult’s “decision is made
voluntarily and without inducement or compulsion.”
4.54
One of the greatest
problems facing healthcare professionals who must interpret advance care
directives is that they are frequently unclear and ambiguous even when they
least appear to be. As a result, it has been argued that “signing a living will
is imprudent, because at the very least, you risk putting yourself at the mercy
of the people who do not know what it means…Philosophical questions aside-why
die stupidly?”[444] The
environment in which advance directives are commonly interpreted in will not
make the task of interpretation any easier:
“Whereas a
complex will can be interpreted at leisure by a probate lawyer trained for the
task, a detailed advance directive may fall for more urgent interpretation by a
harried and over-worked clinician in a casualty department with no such
training in the interpretation of legal documents. Is it prudent to entrust
one’s life to what may be a rushed interpretation by a busy hospital doctor?”[445]
4.55
In the absence of
legislation on advance directives, the dictum of Denham J in Re a Ward of
Court (No 2) is instructive when considering the position of advance care
directives in an emergency:
“Whilst an
unconscious patient in an emergency should receive all reasonable treatment
pending a determination of their best interests, invasive therapy should not be
continued in a casual or ill-considered way.”[446]
4.56
In 1994, the UK House
of Lords Select Committee on Medical Ethics resolved that “…there should be no
expectation that treatment in an emergency should be delayed while enquiry is
made about a possible advance directive.”[447]
And, rather interestingly, the Committee referred to the protections
traditionally reserved for the bona fide purchaser without notice:
“A doctor
who treats a patient in genuine ignorance of the provisions of an advance
directive should not be considered culpable if the treatment proves to have been
contrary to the wishes therein expressed.”[448]
4.57
The Code of Practice
made under the English Mental Capacity Act 2005 states that a health
care professional must provide treatment in the patient’s best interests,
unless they are satisfied that there is an advance decision that is valid and
applicable in the circumstances.[449]
However, it also advises that:
“Healthcare
professionals should not delay emergency treatment to look for an advance
decision if there is no clear indication that one exists. But if it is clear
that a person has made an advance decision that is likely to be relevant,
healthcare professionals should assess its validity and applicability as soon
as possible. Sometimes the urgency of treatment decisions will make this
difficult.”[450]
4.58
A rather more complex
situation arises when oral statements are issued in emergency care settings.
Statutes in British Columbia[451]
and Ontario[452]
require a health care provider to respect advance directives in emergency care
settings. The health care provider must
not provide treatment if
there are “reasonable grounds” to believe that a person expressed an
“instruction or wish” to refuse specific treatment. It has been argued that the
use of the word “wish” indicates that an oral statement may be sufficient.[453]
The only express limitation is that the instruction or wish must be made after
the person is 19 years old in British Columbia, or 16 years old in Ontario.
4.59
In the Commission’s
view, in order to be valid, the advance care directive must have been created
while the author had the capacity to do so. The author of an advance care
directive can consent to the treatment which they have refused in the advance
care directive, provided they had the capacity to do so. It may not be possible
to make the revocation of an advance care directive known. Thus if the patient
has done or said anything which puts reasonable doubt in the doctors mind, the
doctor should proceed with the treatment. After all, the bias must always be in
favour of preserving life. When considering whether the advance care directive
is valid under such circumstances, the Commission considers that, the doctor
should take into consideration the length of time that has elapsed between the
drawing up or revision of the advance care directive and the time it came into
effect. However while time may have altered a person’s perspective, it may not
necessarily have changed a person’s opinion. A doctor may take into
consideration any actions or statements made while the author of the advance
care directive was competent.
4.60
In addition, the
Commission considers a doctor should make all attempts to decipher what a
patient intended in their advance care directive. However, time may make a once
clear advance care directive ambiguous. If a doctor is unsure about the advance
care directive they should not second guess the wishes of the patient. Bearing
these considerations in mind, the Commission turns to set out its provisional
recommendations on this:
4.61
The Commission provisionally recommends that an
advance care directive will not be valid if
· The author of the advance care
directive did not have capacity at the time of its creation
· The creation of the advance care
directive was not a voluntary act of the author
· The author changed their mind and
communicated this change of mind
· A written advance care directive
refusing life-sustaining medical treatment was not witnessed and if the person
did not consult with a medical professional
4.62
The Commission provisionally recommends
that an advance care directive is not applicable if
· It is ambiguous in relation to the
proposed treatment
· If all the circumstances outlined in
the advance care directive are present
· If, while competent, the author of
the advance care directive said or did anything which puts reasonable doubt in
the mind of the doctor that the author had changed their mind but did not have
the opportunity to revoke the advance care directive.
4.63
The 1998 King’s College
Working Party Report raised the vital question of specifying at what point an
advance directive should be activated:
“In respect
of the triggering event three alternatives are possible. The trigger can be
incompetence alone, or incompetence with the addition of a particular condition
or disability, or incompetence with the addition of terminal illness. Each of
these definitions give rise to particular difficulties. Incompetence alone may
cause a living will to be implemented in circumstances which some people would
consider inappropriate, for example, a moderate degree of dementia without some
other disability. Incompetence plus specified conditions or disabilities may
lead to problems because of the impossibility of itemising every conceivable
event triggering clinical circumstances, and the uncertainty in interpreting
those which are specified. Incompetence plus terminal illness does not capture
all the circumstances under which many people would wish a living will to be
instituted. It may also cause problems if clinicians interpret terminal illness
restrictively, as occurred in the operation of the California Natural Death
Act 1976.”[454]
4.64
In early living will
statutes in the United States, it was common to stipulate that advance
decisions could only apply when a patient was in a ‘terminal condition’, or
that ‘death be imminent.’ This limitation was criticised on the basis that “if
the intent of living will statutes was to permit the ‘natural death’ of persons
who would otherwise linger for years maintained by modern machinery in a
vegetative but ‘alive’ state,” then a requirement that ‘death be imminent’
regardless of whether treatment is withdrawn or not would defeat the purpose of
such statutes.[455]
4.65
The Law Commission of
England and Wales concluded, however, that such a stipulation would be “wrong
and out of place in a scheme which seeks to build and clarify the fundamental
legal principle that patients with capacity can refuse any treatment.”[456]
Moreover, the phrase ‘terminal condition’ has no uniformly accepted meaning
within the medical profession.[457]
The English Mental Capacity Act 2005 does not contain any such ‘terminal
conditions’, but rather, section 26(1) states that the advance decision will
take effect only if the person lacks capacity at the time treatment is to be
provided or continued.
4.66
In Victoria, unlike
other Australian states, there is a ‘current condition’ requirement that must
be met before a valid statutory advance directive can be completed.[458]
An adult can only complete a directive in relation to a particular condition or
conditions from which the adult is suffering at the time of completion.
4.67
The purpose of an
advance care directive is to ensure that a person can retain autonomy over any
future treatments which may be both foreseen and unforeseen. Thus it would be
limiting to require that the maker of an advance care directive be suffering
from a terminal illness for it to apply. A person may lose capacity but the
treatment described in the advance care directive may never be proposed. Thus
the triggering event for activating an advance care directive would not be the
loss of capacity alone.
4.68
The Commission provisionally recommends that
before an advance care directive is activated, the author of the advance care
directive must lack capacity and the treatment proposed must be the treatment
outlined in the advance care directive.
4.69
The English Mental Capacity Act 2005 allows informal revocations
and alterations. Section 24(3) of the 2005 Act enables the maker of an advance
decision to withdraw or alter an advance decision at any time when he has
capacity to do so.[459]
Importantly, the 2005 Act states that a withdrawal (including a partial
withdrawal) or an alteration need not be in writing.[460] Therefore, the maker of an advance
decision may simply withdraw or alter their decision verbally. The Code of
Practice for the 2005 Act notes that this can be done at any time, even if the
maker is on “the way to the operating theatre or immediately before being given
an anaesthetic.”[461]
However, it does recommend that healthcare professionals should record a verbal
cancellation or alteration in healthcare records, which then forms a written
record.[462]
4.70
The importance of adopting a flexible approach
to revocation was highlighted by Munby J in HE v A Hospital NHS Trust:[463]
“…it is
fundamental that an advance directive is, of its very essence and nature,
inherently revocable. An irrevocable advance directive is a contradiction in
terms and is, in my judgment, a legal impossibility. An advance directive is,
after all, nothing more or less than the embodiment of the patient's autonomy
and right of self-determination. A free man can no more sign away his life by
executing an irrevocable advance directive refusing life-saving treatment than
he can sign away his liberty by subjecting himself to slavery. Any condition in
an advance directive purporting to make it irrevocable is contrary to public
policy and void.”[464]
4.71
A difficult question
arises when a patient attempts revocation when incompetent. In other words, can
the incompetent patient change his or her mind?
4.72
In principle, the onset
of incapacity should be a triggering event that makes the advance care
directive irrevocable. Cantor argues that to hold otherwise would give
“dominion to the deranged expressions of [seriously demented] persons” and
“would make a mockery of self-determination when the expressions override a carefully
considered advance directive.”[465]
To implement the advance directive without the patient’s co-operation would
however, not only infringe whatever remnants of autonomy that the patient
retains, but would also be of concern to a caring and beneficent profession.[466]
Moreover, Kadish propounds that continuing treatment is justified on the sole
basis that it shows “compassion for the human being before us.”[467]
In response, Olick warns that appealing to “human compassion alone as an
ethical norm smuggles a current experiential best interests standard in the
back door” and is “susceptible to ready abuse.”[468]
He proposes a non-categorical approach that an advance care directive “should
be treated as if suspended as long as the patient continues to manifest
a desire for continued life.”[469]
4.73
Munby J raised, this
question in HE v A Hospital NHS Trust. He observed that the patient was
essentially in the “twilight position” of having made an advance decision
refusing treatment while competent, but appeared compliant with treatment
following a loss of capacity.[470]
The English Mental Capacity Act 2005 does little to clarify the
situation. On the basis of section 24(3) of the 2005 Act, the passive
compliance of a patient would not be enough to revoke an advance decision as it
refers specifically to capacity:
“P may
withdraw or alter an advance decision at any time when he has the capacity to
do so.”
Section 25(2)(c)
could be interpreted to include decisions made when a patient has lost capacity
as there is no explicit reference to capacity. It states that an advance
decision will be invalid if:
“P has done
anything else clearly inconsistent with the advance decision remaining his
fixed decision.”
It may also be
argued that section 25(2)(c) should be interpreted in light of section 24(3).
However, had the UK Parliament wanted section 25(2)(c) to be limited to adults
with capacity, then it could have made this explicit in the section as they did
in section 24(3).[471]
4.74
More controversial
issues arise if the treatment requested is life-sustaining, as such treatment
raises questions regarding the right to life in Article 40.3 of the
Constitution of Ireland and Article 2 of the European Court of Human Rights
(ECHR). The right to life under Article 40.3 is enjoyed by everyone, including
those lacking capacity.[472] There is
no Irish or ECHR jurisprudence that addresses how a competent, advance refusal
of a life-sustaining treatment should affect the current and incompetent views
of an individual apparently now wishing to have that treatment.
4.75
In Re Martin[473] demonstrates
the danger of disregarding an advance directive based on the incompetent
patient’s wishes. In that case, the patient suffered a traumatic brain injury
and as a result was unable to walk and talk.
4.76
A number of Australian
statutes have addressed the rather difficult situation in which an adult may
have changed his mind, but has failed to actually revoke the directive. In the
Northern Territory[474] and South
Australia,[475] a health
professional must not comply with an advance directive if he believes that the
adult intended to revoke that directive. Similarly, in the Australian Capital
Territory,[476] a health
professional must not comply with an advance directive if he believes on
reasonable grounds that the adult has changed his mind since making the
directive.
4.77
While a patient has the
right to refuse medical treatment, a patient can also change their mind and
consent to the treatment. The same applies for an advance care directive. While
a person has the capacity, they may revoke their advance care directive.
Certain formalities are required before a refusal of life-sustaining treatment
is valid. The Commission recommends that such formalities are not necessary to
revoke an advance care directive which refuses life-sustaining medical
treatment. Where a person revokes a refusal to life-sustaining treatment, in
the Commission’s view, they are exercising their right to life. The preference
must always be in favour of preserving life and a person must not be inhibited
in the exercise of their right to life by virtue of failing to comply with
certain formalities. Thus the Commission has concluded that the revocation of
an advance care directive can be written or formal regardless of the form in
which it was created, but it recognises that this is a complex matter and
invites submissions on this part.
4.78
The Commission provisionally recommends that a
competent person can verbally revoke their advance care directive regardless of
whether there is a verbal or written advance care directive and also welcomes submissions on
this point.
4.79
Should advance care
directives be subject to regular review? As Lord Goff noted in Airedale NHS
Trust v Bland,[477]
special care may be necessary to ensure that a prior refusal of consent is
still properly to be regarded as applicable in the circumstances which have
subsequently occurred. US studies have measured the stability of advance care
directive preferences over periods of up to two years. One such study examined
the treatment preferences of 51 older people two years after they completed
their directives. Most treatment preferences remained moderately stable.
However, investigators also found that when the preferences of some
participants had changed, they were often unaware of it. Therefore, they were
unlikely to alter their directives, and were left with directives that did not
accurately state their treatment preferences.[478]
4.80
The English Mental
Capacity Act 2005 does not require individuals to review an advance
decision. However, the Code of Practice for the 2005 Act suggests that
“[a]nyone who has made an advance decision is advised to regularly review and
update it as necessary.”[479] The
Scottish Executive’s Guide to Advance Statements states that an
individual does not have to review an advance statement, but that it is a “good
idea” to do so every six months.[480]
The Irish Council for Bioethics recommended that individuals review and update
their advance care directive on a relatively regular basis to reflect changes
in medical science and also any changes in the individual’s values and beliefs.[481]
4.81
Should an advance care
directive lapse after a specified number of years unless reviewed? On the one
hand, it “might be undesirable if the person’s fate should be determined by
means of an instrument executed decades ago and now forgotten”.[482]
This was one of the reasons which led the British Medical Association to reject
the idea of legally enforceable advance directives outright.[483]
On the other hand, there is a great likelihood of people forgetting to renew
their advance directive and if documents had to be re-executed periodically to
ensure their ongoing validity, it would “create an unjustifiable gravy train
for lawyers.”[484] It was on
this basis that the working party set up in England in 1988 by Age Concern
recommended that the provisions of an advance directive should be reviewed on a
regular basis every five to ten years, but concluded that no obligatory review
or time limit should be imposed.[485]
4.82
In a similar vein, the
Code of Practice for the English 2005 Act specifies that if decisions are made
a long time in advance, they are not automatically valid or applicable.[486]
However, it does warn that such decisions “may raise doubts” and
healthcare professionals should take “special care”.[487]
4.83
Changes in medical
science can bring about changes in a person’s attitudes expressed in an advance
care directive. For various reasons, however, a person may not amend their
advance care directive. Thus people must be encouraged to review their advance
care directive regularly. However, a change in medical science or a lapse of
time will not of course necessarily change a persons mind about their future
treatment plans. To assume so would place an unnecessary burden and possibly
unnecessary expense on authors of advance care directives. The Commission
recommends that while advance care directives should be reviewed regularly,
this should not be a statutory requirement. The Commission recommends, however,
that any set of guidelines to complement the legislation should state that a
medical practitioner can take into consideration the length of time which has
elapsed between the making or reviewing of the advance care directive and the
activation of the advance care directive.
4.84
The Commission provisionally recommends that,
while advance care directives should be reviewed regularly, there should be no
time limit put on their validity.
4.85
Perhaps the most
practical issue regarding the implementation of advance care directives is how
to guarantee that they will get to the appropriate physician at the appropriate
time. As Fagerlin and Schneider have wryly noted, “long can be the road from
the drafter’s chair to the ICU bed.”[488]
This can be for a number for reasons.[489]
First, advance care directives may be made years in advance of any health
care treatment. Second, the existence, let alone location of an instructional
directive may be unknown to the attending physicians and family members. Third,
if admitted to hospital in an emergency situation, a patient may be too
overwhelmed by the circumstances to mention or even remember their advance care
directive. One US study found that only 26% of patients who had previously
executed advance care directives had their directives accurately recorded in
their hospital charts.[490] In another
US study, only 35% of nursing home patients who were transferred to hospital
had their advance directives with them.[491]
It has been argued that this is a reason why proxy-type directives usually work
better since it is likely that a copy will have been given to the proxy.[492]
4.86
The English Mental
Capacity Act 2005 does not refer to any particular method of storing
advance decisions. The Code of Practice for the 2005 Act notes that it is the
responsibility of the maker of the advance decision to ensure that their
decision will be drawn to the attention of healthcare professionals when it is
needed.[493] It
suggests that makers should inform family and friends as to the existence of an
advance decision, or that makers should carry a card or wear a bracelet.[494]
Kutner proposed that the maker of a living would carry the document “on his
person at all times, while his wife, his personal physician, a lawyer or
confidant would have the original copy.”[495]
4.87
There are some
registries for the storage of advance care directives. The US Living Will
Registry stores the advance care directives of any individual who has
registered through a member healthcare provider.[496]
Denmark’s Ministry of Health has set up a national Living Will Data Bank
(Livstestamenteregistret). Notably, if a physician is considering initiating
life-prolonging treatment of an irreversibly dying patient, he is obligated to
check with the Living Will Data Bank whether or not the patient has filed a
living will.[497] In
Singapore, a register of advance medical directives has been established by
statute, and a person who makes an advance medical directive must register it
with the Registrar.[498] A health
provider is prohibited from acting on an unregistered directive.[499]
The Commission sees the obvious benefit of a Register but also recognises that
this creates the potential for complexity and costs, which may not be
justified. For this reason, the Commission invites submissions on this matter.
4.88
The Commission invites submissions on whether
it is necessary to have a central filing system for advance care directives.
5.01
In this Chapter the
Commission discusses the legal consequences for health care professionals of
not complying with the terms of an advance care directive that meets the
criteria set out by the Commission in the previous Chapters of this
Consultation Paper. In Part B, the Commission sets out the current law,
particularly in terms of medical treatment given without consent (and where the
doctrine of medical necessity does not apply). In summary, the current law
provides for a range of potential criminal and civil liability as well as
possible scope for professional disciplinary action. The current law also
provides a series of defences to such issues of liability, notably, that the
medical professional acted on an advance care directive, but the Commission
considers that a statutory framework should underpin current practice and deal
with difficult gaps. In Part C, the Commission sets out the scope of a
statutory scheme which would deal with the potential range of liability. In
this respect, the Commission refers to the existing statutory framework for
clinical trials by way of a statutory analogue for a proposed scheme.
5.02
If a doctor follows a
lawful advance care directive that refuses life-sustaining treatment, he or she
is not guilty of gross negligence manslaughter. Gross negligence manslaughter
involves a high risk that substantial personal injury will follow the accused’s
negligent act or omission. The accused must intend to do the act that causes
death or, where there is a special duty to act, an omission to do something
which would prevent death from occurring.[500]
As Lord Mustill observed in the English case of Airedale NHS Trust v Bland:[501]
“If an act
resulting in death is done without lawful excuse and intent to kill it is
murder. But an omission to act with the same result and the same intent is in
general no offence at all.”[502]
The main common
law exception to this is that a person may be criminally liable for an omission
if there is a relationship with the victim that places him or her under a duty
to act.[503]
In 1986, Costello J, writing extra-judicially, first discussed whether a
physician who turns off life-support measures would be guilty of homicide under
Irish law. He concluded that although switching off the system would be a
positive act, such an act would not result in harm. Rather, the cause of death
would be the failure to switch on the system again, “a failure which can
properly be regarded as an omission.”[504]
5.03
In 1993, the UK House
of Lords held in the Bland case, that it was lawful to discontinue the
nasogastric tube feeding of a patient who was in a persistent vegetative state
on the basis that the withdrawal of such treatment was properly classified as
an omission. Lord Goff observed and agreed with the suggestion of Professor
Glanville Williams that when a doctor switches off a life-support machine, his
conduct “is in substance not an act but an omission to struggle’ and that ‘the
omission is not a breach of duty by the doctor, because he is not obliged to
continue in a hopeless case’.”[505]
5.04
In Ireland McAuley and
McCutcheon observe that the Supreme Court provided a cursory analysis of the
act/omission distinction in In re a Ward of Court (No 2).[506]
Hamilton CJ cited Bingham MR in Bland where he highlighted that the
case “is not about euthanasia, if by that is meant the taking of positive
action to cause death”[507] whilst
O’Flaherty J considered that the case was not about euthanasia, as “euthanasia
in the strict and proper sense relates to the termination of life by a positive
act,”[508] but rather
letting nature take its course. It is interesting to note the dissent of Egan J
who argued that the removal of treatment would be the cause of death:
“It matters
not how euphemistically it is worded. The inevitable result of removal would be
to kill a human being.”[509]
Feenan concurs
with the conclusion of Egan J, arguing that it is irrelevant whether the
withdrawal of feeding is treated as an act or omission as it does not affect
the basic actus reus of homicide – to cause death. Instead, he argues
that the Supreme Court could have clarified any remaining doubt by holding
that:
“the killing
was not, pursuant to section 4(1) of the Criminal Justice Act 1964, an
unlawful killing in so far as the doctor was not legally required – in the view
of the ward’s prolonged and irreversibly vegetative condition, the
intrusiveness and probable painfulness of treatment, and her rights to a
natural death, privacy and bodily integrity – to provide treatment which had no
curative effect and was intended merely to prolong life.”[510]
5.05
However, it is
important to stress, as indeed Lord Goff did in Bland, that the law
draws a “crucial distinction” between cases in which a doctor withdraws
life-sustaining treatment as discussed above, and those in which a doctor
actively administers a legal drug to bring a patient’s life to an end.[511]
The latter activity constitutes euthanasia and is illegal.
5.06
Medical treatments are
assaults, to which consent provides a defence. Section 2(1) of the Non-Fatal
Offences Against the Person Act 1997 provides that:
“A person
shall be guilty of the offence of assault who, without lawful excuse,
intentionally or recklessly:
(a) directly
or indirectly applies force to or causes an impact to the body of another, or
(b) causes
another to believe on reasonable grounds that he or she is likely immediately
to be subjected to such force or impact
without the
consent of the other.”
5.07
Madden has considered
the possibility that a doctor could be prosecuted for assault for inflicting
treatment on the patient without consent if he disregards an advance directive.
However, she concludes that as a doctor will presumably “have acted in good
faith, and possibly in emergency circumstances when the imperative was to ‘act
now and think later’, it is unlikely that such a prosecution would be brought.”[512]
5.08
The defence of
necessity may be used to relieve a healthcare professional of criminal
liability where he or she does not follow the patient’s wishes as previously
expressed in an advance care directive.[513]
However, the circumstances surrounding the medical intervention will be crucial
when considering the availability of such a defence.[514]
In Re a Ward of Court (No 2),[515]
Denham J acknowledged that one of the rare exceptions to the requirement of
consent to medical treatment by adults with capacity is in a medical emergency
where the patient is unable to communicate.[516]
5.09
Lord Goff in Re F
(Mental Patient: Sterilisation)[517] felt that
the doctrine applied to more than emergency situations. He felt that “[t]he
principle is one of necessity, not of emergency” and could extend to routine
treatment of persons lacking capacity.[518]
As the Commission pointed out in its Consultation Paper on Vulnerable Adults
and the Law,[519]
the Irish courts have not had the opportunity to set clear boundaries to the
scope of the doctrine of necessity and its application to medical treatment of
adults who lack capacity to consent but have not been made a Ward of Court.[520]
The Commission submitted that the lack of clarity on the doctrine in Irish law
has led to conflicting reactions. Some medical professionals may err on the
side of caution and carry out medical treatment on a patient lacking capacity
in a life and death situation only. Other medical professionals may rely on the
doctrine of necessity for all medical treatment of an adult who lacks the
capacity to consent.
5.10
Although a
patient may have made an advance care directive, if it has not been
communicated to the healthcare professional, it would appear that a doctor is
justified in treating the patient on the basis that there is a public interest
in preserving the patient’s life. A doctor will therefore not be liable for
assault. Conversely, if a doctor is aware that an advance care directive exists
which clearly communicates the patient’s wishes, he or she will be unable to
rely upon the defence of necessity.
5.11
There is no general
offence for destroying a legal document. Section 11 of the Criminal Justice
(Theft and Fraud Offences) Act 2001 states:
“a person is
guilty of an offence if he or she dishonestly, with the intention of making a
gain for himself or herself or another, or of causing loss to another,
destroys, defaces or conceals any valuable security, any will or any
testamentary document or any original document of or belonging to, or filed in,
any court or any government department or office.”
As can be
seen, section 11 of the 2001 Act could not apply to the destruction or
concealment of an advance care directive as there is unlikely to be any “gain”
for the person involved.
5.12
Similarly section 20(1)
of the English Theft Act 1968 states that the
destruction of valuable securities, wills and government documents, for the
purpose of gain, is an offence. The Law Commission for England and Wales
considered that the destruction or concealment of an advance care directive is
not covered under this act.[521] The Law
Commission thus recommended the creation of a new offence. But the English Mental
Capacity Act 2005 which was largely influenced by the Law
Commissions recommendations does not include such an offence.
5.13
If an advance care directive is concealed or destroyed by a member of
the medical profession, it could constitute professional misconduct.
Currently, however, no liability would attach to a person, other than a medical
professional, who concealed or destroyed an advance care directive.
5.14
The doctor-patient
relationship is governed in part by principles of contract law. Actions in
contract are thought to be more advantageous to patients than those in
negligence, as they give rise to more onerous obligations upon the doctor.
Moreover, they are actionable without the need to prove negligence.
Nonetheless, claims are rarely taken in contract as tort actions tend to
attract higher damages.[522]
5.15
The key elements of the tort of negligence are:
first, that the doctor owed the patient a duty of care; second, that the doctor
breached that duty, which will occur if “he has been proved to be guilty of
such failure as no medical practitioner of equal specialist or general status
and skill would be guilty of if acting with ordinary care”;[523] and finally, that the breach of duty caused harm to the patient. Harm
in wrongful living actions, as discussed below, is centred on the prolongation
of life whereas harm in both negligence and battery actions is that caused by
the administration of undesired medical treatment. However, it would
appear that courts in the United States have decided that any injury associated
with unwanted lifesaving medical treatment is inextricably bound to the injury
of prolonging life, and is therefore not a recognisable harm.[524]
5.16
Although in theory the
civil claim for professional negligence is available to plaintiffs whose
advance care directives have been disregarded, it would appear that the reality
is quite different. Demonstrating that a doctor owes a patient a duty of care
is generally unproblematic. However, the patient must then prove that the
doctor breached that duty. In the US decision Allore v Flower Hospital,[525]
the plaintiff’s husband had been resuscitated by the defendant hospital, even
though he had previously asked not to be resuscitated in his living will. In
Ohio, the relevant standard of care is “that of a reasonable specialist
practising medicine…in the light of present day scientific knowledge in that
speciality field.”[526]
In the Allore case, it was held that resuscitating the plaintiff’s
husband did not constitute a breach of this standard. In Cruzan v Director
Missouri Department of Health,[527]
the United States Supreme Court had recognised a constitutionally protected
liberty interest under the due process clause in a person’s refusal of
life-sustaining medical treatment. However, it would appear from the Allore
case that the focus had shifted “away from the patient’s right to refuse
medical treatment to determining the acceptable standard within the medical
community.”[528]
5.17
A patient must also
prove that the breach of duty caused harm. Another US case of Anderson v St
Francis-St George Hospital[530]
demonstrates the enormous difficulty plaintiffs may face when recovering
damages for infringement of their right to refuse life-sustaining treatment,
whether they bring a civil claim based upon the traditional torts of
negligence, battery[531] or the
tort of wrongful living[532] - namely,
the courts’ reluctance to recognise life as a compensable harm entitling the
plaintiff to damages. In Anderson, the defendant hospital violated an 82
year old patient’s Do Not Resuscitate (DNR) order. The patient, Mr Winter, when
admitted to hospital for chest pain, informed his doctor that, if his heart
failed, he did not wish to be resuscitated. The doctor entered a DNR order on
his chart. Three days later he suffered a heart attack. A nurse, who was
unaware of the DNR order, resuscitated him with defibrillation. Two days later,
he suffered a stroke which left his right side paralysed until his death two
years later. His estate brought a civil claim against the hospital based on two
grounds. The first claim sought damages for medical treatment to which Mr
Winter did not consent under the traditional torts of negligence and battery.
The second claim was that Mr Winter had suffered a wrongful living, as a result
of the unwanted treatment.
5.18
In relation to the
negligence and battery claims, the Ohio Court of Appeals held that “[i]f an
injury occurs in a natural, continuous and unbroken sequence”, it is reasonably
foreseeable, and the tortfeasor is responsible for it. The court stated that
the plaintiff could therefore recover all damages related to the infringement
on the right to refuse life-sustaining treatment. Such damages included medical
expenses, extraordinary expenses related to pain, care, suffering and emotional
distress.
5.19
The Supreme Court of
Ohio overturned the holding and dismissed the claim on the basis that neither
causation nor damage had been established. First, although the patient was
defibrillated, there was no evidence that the defibrillation itself caused the
patient’s stroke or subsequent suffering in any way other than simply
prolonging his ailing life. The court reasoned that when an ailing, 82 year old
man’s life is prolonged, subsequent difficulties could foreseeably follow
resuscitation without having been caused by the defibrillation. The only harm
caused by the defibrillation was the prolonging of Mr Winter’s life. To award
compensation for such harm was unacceptable to the court: “[t]here are some
mistakes, indeed even breaches of duty…that people make in this life that
affect the lives of others for which there simply should be no monetary
compensation.”[533] The
Court’s approach to causation prevented the patient’s estate from claiming
general damages for pain and suffering associated with the stroke. Instead,
potential damages were limited to those suffered directly from the negligent
conduct or battery resulting from refused medical treatment. These damages were
limited to nominal damages because the defibrillation in itself was physically
harmless.[534]
5.20
Does a healthcare professional commit a battery if he or she carries out
medical treatment despite the existence of an advance care directive? A battery
is the direct application of physical contact on the person of another without
his or her consent, express or implied.[535]
It is not an essential ingredient in the tort that there is a hostile
intention, but the contact must have directly resulted from the defendant’s
act.[536]
5.21
In their discussion of battery, McMahon and Binchy cite Re a
Ward of Court (No 2)[537]
in maintaining that an autonomous person has the legal right to refuse physical
contact “however benevolent the motives of the other party and however
necessary that contact may be for the health or even life of the person who
refuses it.”[538] In Re a
Ward of Court (No 2),[539] Denham J argued that if a patient does not consent to
medical treatment it may be a battery in criminal law.[540]
5.22
If Irish courts choose to adopt the approach of the Court of Appeals of
Ohio in Estate of Leech v Shapiro,[541]
there may well be a basis for a civil claim in tort for the infringement of the
right to refuse such contact. There, a patient who had been maintained on life
support against her express wishes recovered all extraordinary and unnecessary
medical expenses resulting from the non-consensual treatment, as well as for
her pain and suffering. The Court held that “[a] physician who treats a patient
without consent commits a battery, even though the procedure is harmless or
beneficial”.[542] If Irish
courts, however, adopt the same limited approach to causation and harm as the
Supreme Court of Ohio in the Anderson case, it is unlikely that a
plaintiff will succeed in an action in tort (although it should be noted that
the Supreme Court of Ohio did suggest that health care providers would be
liable in battery for any damages “directly” caused by unwanted treatment, such
as tissue burns or broken bones).[543]
5.23
It appears that the English courts are also reluctant to find physicians
liable in the tort of battery. In Re B[544]
a 43-year old tetraplegic patient had repeatedly requested the removal of
ventilation for a number of months. Although she was competent, her physicians
felt unable to comply with her request, suggesting instead that she consider a
one-way weaning process, whereby support would be gradually reduced.
Butler-Sloss P held that this was a solution “designed to help the treating
clinicians and the other carers and not in any way designed to help Ms B.”[545]
Nevertheless, although the physicians had knowingly committed an ongoing
battery, Butler-Sloss P declined to impose liability, holding that Ms B had
been cared for:
“to the highest standards of medical competence and with
devotion…Ironically this excellent care has to some extent contributed to the
difficulties for the Hospital. Ms B has been treated throughout in the ICU in
which the medical and nursing team are dedicated to saving and preserving life,
sometimes in adverse medical situations. As Dr C said, they are trained to save
life.”[546]
It has been
argued that this judicial hesitance to find physicians liable in clear-cut
cases may serve to foster an attitude of non-compliance with advance care
directives on the part of the medical profession.[547]
5.24
In contrast, the Canadian courts appear to take
a more stringent view. In Malette v Shulman,[548] the patient was seriously injured in a car accident and was taken to
hospital. She was found to be in need of life-saving transfusions, but a nurse
found a signed card in her purse which stated that, as a Jehovah’s Witness, she
requested that no blood transfusions be administered to her. The treating
physician was advised of the card but administered the life-saving blood
transfusion. The Ontario Court of Appeal upheld Mrs Malette’s claim for battery
and awarded $20,000 damages. The Court stated:
“A doctor is
not free to disregard a patient’s advance instructions any more than he would
be free to disregard instructions given at the time of the emergency. The law
does not prohibit a patient from withholding consent to emergency medical treatment,
nor does the law prohibit a doctor from following his patient’s instructions.
While the law may disregard the absence of consent in limited emergency
circumstances, it otherwise supports the right of competent adults to make
decisions concerning their own health care by imposing civil liability on those
who perform medical treatment without consent.”[549]
5.25
The Canadian approach
appears to lean in the direction of stating that a competent person’s wishes
must be followed, and that if they are not, some civil law consequences will
follow.
5.26
The reluctance of the US judiciary to recognise
damages under traditional tort claims, such as negligence and battery, prompted
the development of the “wrongful living” cause of action.[550] A wrongful living cause of action involves a claim for damages for the
harm of prolonged life resulting from the administration of life-sustaining
treatment in violation of the patient’s express wishes.[551]
Oddi first proposed the wrongful living cause of action in a law review article
in 1986. Although he discussed possible actions based on traditional tort
concepts, he ultimately identified a new tort:
“Whether the
interfering treatment is conducted with or without due care is irrelevant,
except insofar as such treatment prolongs the life of the individual contrary
to the right to die. If the interfering treatment is made and the patient
lives, then interference with the right to die involves compensation for
living. This is a ‘wrongful living’ cause of action’.”[552]
Donohue argues,
however, that wrongful living is not in fact a separate cause of action, but a
damages concept. Like a claim for ‘wrongful whiplash’ or a ‘wrongful broken
arm’, it is an action involving an underlying claim of negligence or battery.[553]
5.27
Despite the recognition
of a constitutional right to refuse life-sustaining medical treatment in Cruzan
v Director, Missouri Department of Health,[554]
a wrongful living cause of action for violating this right has not gained
widespread acceptance in the United States as courts are reluctant to recognise
the prolongation of life as an injury entitling the plaintiff to damages.
Courts and legal theorists have rejected the wrongful living cause of action
for a number of reasons. In Anderson v St Francis-St George’s Hospital,[555]
the Supreme Court of Ohio expressly held that no cause of action exists for
wrongful living in the state of Ohio,[556]
quoting from prior wrongful living opinions in which it had both “recognised
‘the impossibility of a jury placing a price tag’ on the benefit of life”,[557]
and also “disapproved of awarding damages on the relative merits of ‘being
versus non-being’.”[558] In Smith
v Cote,[559] the New
Hampshire Supreme Court held that to legally recognise that a disabled life is
an injury would harm the interests of disabled persons who must face the
attitudes and behaviours of society, the law and their families who may view
them as “burdensome misfits.” The Court noted that recent legislation
concerning employment, education and building access reflects the slow change
in these attitudes. The Court went on to note that this change evidences a
growing public awareness that the disabled “can be valuable and productive
members of society.” The Court concluded that to “characterise the life of a
disabled person as an injury would denigrate both this new awareness” and the
person themselves.[560]
5.28
It has also been
contended that there are adequate remedies available under tort law without
having to establish a new cause of action. For example, Pedrick has maintained
that “when health care givers subject a competent patient to life sustaining
procedures against his or her will, the settled law of torts provides a remedy
by way of an action for battery, with resultant liability on the part of health
care givers for substantial damages, both general and punitive.”[561]
However, while the interference with the right to refuse medical treatment
gives rise to a claim in damages in theory under negligence and battery,
plaintiffs have encountered judicial resistance in practice.[562]
5.29
A wrongful life cause
of action involves a claim by a child that they would not be living but for
someone else’s fault. Life itself is said to be the injury.[563]
The issue arose in England in McKay v Essex Area Health Authority[564]
.
During her pregnancy Mrs McKay contracted rubella but it was not diagnosed.
Had she been aware, Mrs McKay would have had an abortion. As a result of the rubella,
her child was born with a disability. It was claimed that the defendants were
negligent in allowing the child to be born. During the English Court of Appeal
decision, Stephenson LJ felt that to determine that the unborn child had a
right to die would lead to the conclusion that the life of a child with a
disability was of such lesser value than any other child that it was not worth
preserving.[565]
5.30
Stephenson LJ indicated
that there is no difference between the quality and quantity of life. It was
felt that the court was ill equipped to compare “the injured child’s life in
this world and determine that the child has lost anything, without knowing
what, if anything the child has gained”.[566]
Stephenson LJ went on to state that “[i]f a court had to decide whether it were
better to enter into life maimed or halt than not to enter at all, it would, I
think, be bound to say it was better in all cases of mental and physical
disability”.[567]
5.31
The Law Commission for
England and Wales recommended that there should not be an action for wrongful
life.[568] The
Commission reasoned that it would be impossible to “argue that the child would
have been better off had it never existed.”[569]
5.32
While not widely
accepted, the cause of action for wrongful life has received some recognition
in the United States. In Turpin v Sortini[570] the
parents in question had a second child when the defendants wrongfully told them
that their first child did not suffer from hereditary deafness. The child, who
was also deaf, brought a wrongful life action. While the court did allow the
plaintiffs claim for extraordinary expenses, general expenses were denied as
the court could not determine whether an injury was suffered at all.[571]
However the court did note that while the sanctity of life is important, it
could not be assumed “that impaired life is preferable to non-life”.[572]
5.33
A person may be guilty
of a tort where he or she intentionally or recklessly inflicts emotional
suffering on another.[573] In Wilkinson
v Downton[574],
the defendant, as a practical joke, told the plaintiff that her husband had
been injured and that she was to go to him immediately. Although the action did
not fit easily into any established categories, liability was imposed on the
basis that the defendant had:
“wilfully
done an act calculated to cause physical harm to the plaintiff, that is to say,
to infringe her legal right to personal safety, and has in fact thereby caused
physical harm to her. That proposition without more appears to me to state a
good cause of action, there being no justification alleged for the act. The
wilful injuria is in law malicious, although no malicious purpose to
cause the harm which was caused, nor any motive of spite is imputed to the
defendant.”[575]
5.34
In the United States,
the tort is considerably more developed. It is committed where the defendant by
extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another.[576]
In Perkins v Lavin,[577]
a Jehovah’s Witness had executed an advance care directive in the form of a
written release, specifically stating that she did not wish to receive any
blood products or transfusions during a surgical procedure and absolving both
her doctor and hospital from liability in such an event. However, her doctor
administered a blood transfusion as a life-saving measure due to surgical
complications. The plaintiff sued intentional infliction of emotional distress.
In order to recover on the latter basis in Ohio, a plaintiff must establish the
provider’s intent to cause serious emotional distress, extreme and outrageous
conduct that exceeds “all possible bounds of decency” and causation.[578]
The Ohio Court of Appeals chose, however, to examine the doctor’s conduct in
light of the “average member of the community” and held it to be reasonable. It
has been argued that to view the conduct element of this cause of action in
light of the average member of the community “deemphasizes the very personal
right to refuse medical treatment.”[579]
5.35
Nominal damages may be
awarded where the plaintiff’s legal right has been infringed, but he or she has
suffered no actual damage.[580]
The plaintiff’s purpose in bringing the action may have been to vindicate a
right rather than to seek substantial compensation as was the case in B v An
NHS Trust.[581] There,
Butler-Sloss P awarded £100 to be paid by the NHS Trust to Ms B who had repeatedly
requested the removal of ventilation for a number of months. However, as
Michalowski notes, her physicians escaped all liability despite having
blatantly disregarded her wishes and having knowingly committed an ongoing
battery. She argues that the nominal sum of £100 neither provides adequate
compensation for the patient nor acts as a convincing deterrent for future
violations of the law.[582]
5.36
In Malette v Shulman,
the Ontario Court of Appeal awarded general damages of €20,000.[583]
Although Robins JA stressed that the treatment was competent, that the results
were favourable, that the doctor’s overall conduct was exemplary and that he
acted in good faith, he concluded that Mrs Malette had suffered mentally and
emotionally by reason of the battery and that such injuries were compensable.
In Re T,[584] although
Butler-Sloss LJ cited Malette with approval, she did not consider that
an English court would award damages in similar circumstances.[585]
Staughton LJ observed that he doubted that an English court would have awarded
such a high sum, but confirmed that some liability would exist.[586]
5.37
A possible solution to
mitigate judicial reluctance to award general damages for the violation of the
right to refuse medical treatment is to allow only special damages for the
medical expenses and extraordinary costs incidental to the plaintiff’s
continued living.[587] Special
damages have been awarded in wrongful life claims. In Procanik v Cillo,[588]
the New Jersey Supreme Court limited recovery to special damages in the case of
a physician who negligently failed to diagnose measles during the first
trimester of pregnancy. In so doing, the
court avoided having to recognise life as a legally recognisable harm, which
would be required in a finding for general damages for a child’s pain and
suffering. The court observed that “the interests of fairness and justice are
better served through more predictably measured damages – the costs of the
extraordinary medical expenses necessitated by the infant child’s handicaps.”[589]
It is argued that special damages for wrongful living would be easier to assess
than those for wrongful life, as the former involves a very precise time frame
commencing with the refused treatment, and concluding with the patient’s death
whereas the latter involves the lifetime of a child.[590]
5.38
There is a
constitutional right to refuse medical treatment under Irish law. The Irish
courts have held that a constitutional right in one person implies a
corresponding duty in, not only the State, but also in other persons to respect
that right.[591] In Educational
Company of Ireland Ltd v Fitzpatrick (No 1),[592]
Ó Dálaigh CJ stated:
“Liberty to
exercise a right, it seems to me, prima facie implies a correlative right on
others to abstain from interfering with the exercise of such right.”[593]
Therefore, if a
person wrongfully interferes with the exercise of another’s constitutional
right, it amounts to a civil wrong for which the courts will provide a remedy.[594]
In Meskell v CIE,[595] Walsh J
stated:
“[I]f a
person has suffered damage by virtue of a breach of a constitutional right or
the infringement of a constitutional right, that person is entitled to seek
redress against the person or persons who have infringed that right.” [596]
More
recently, and more importantly for the purposes of this Consultation Paper,
Denham J acknowledged in Re a Ward of Court (No 2),[597]
that the right to bodily integrity must be recognised by private individuals as
well as by the State.
5.39
In W v Ireland (No
2),[598] Costello P
conducted a detailed analysis on the issue of compensation for infringement of
constitutional rights. He stated that constitutionally guaranteed rights may be
divided into two distinct classes –constitutionally guaranteed rights which are
regulated and protected by law (common law or statute), independently of the
Constitution, and those that are not so regulated and protected. In the first
class of rights are all those fundamental rights which the Constitution
recognised that a person has by virtue of his or her rational being antecedent
to positive law and were rights regulated and protected by law in every State
which values human rights. In Ireland, there existed a large and complex body
of laws which regulated the exercise and enjoyment of these basic rights,
protected them against attack and provided compensation for their wrongful
infringement.[599]
For example, in the present case, which was a case concerning a claim for
physical and sexual abuse, the right of bodily integrity was protected by
extensive provisions in the law of tort, and therefore the Constitution did not
confer a discrete cause of action for damages for its breach.[600]
5.40
With regard to the
second class of rights, Costello P noted that it was well established that the
Constitution was to be interpreted as providing a separate cause of action for
damages for breach of a constitutional right: in Meskell v CIE,[601] Kearney
v Minister for Justice,[602]
McHugh v Commissioner of An Garda Síochána[603]
and Kennedy v Ireland,[604]
damages were awarded for breaches of guaranteed constitutional rights where no
remedies for damages existed by common law or by statute. Similarly in the case
of Lovett v Gogan, [605]
the Supreme Court granted an injunction to protect the plaintiff from the
threatened invasion of his constitutional right to earn a living by lawful
means. Given judicial reluctance not only to accept the prolongation of life as
a harm in the traditional torts of battery and negligence, but also to
acknowledge the tort of wrongful living, a plaintiff might be able to claim
damages for a breach of his or her constitutional right to refuse treatment.
5.41
Although no damages were granted to Mr Winter’s estate in Anderson v
St Francis-St George’s Hospital,[606]
the Supreme Court of Ohio did warn that “unwanted life-saving treatment does
not go undeterred” and that appropriate licensing sanctions against the medical
professionals responsible were appropriate.[607]
Disciplinary sanctions, while not serving the same purposes as tort law, may
still serve as a useful tool to prevent violations of patient autonomy.[608]
5.42
In Ireland, section 57 of the Medical Practitioners Act 2007
states that any person (including the Council) can make a complaint to the
Preliminary Proceedings Committee (PPC) concerning a registered medical
practitioner on the ground, inter alia, of professional misconduct.[609]
No statutory definition is given in the 2007 Act of ‘professional misconduct’.
Nevertheless, guidance can be gleaned from cases such as O’Laoire v Medical
Council,[610]
in which Keane J set out four tests for establishing professional misconduct,
the last of which may be the most appropriate for a patient wishing to complain
against a physician who has disregarded their advance care directive:
“Conduct which could not properly be characterised as
‘infamous’ or ‘disgraceful’ and which does not involve any degree of moral
turpitude, fraud or dishonesty may still constitute ‘professional misconduct’
if it is conduct connected with his profession in which the medical
practitioner concerned has seriously fallen short, by omission or commission,
of the standards of conduct expected among medical practitioners.”[611]
Section 71 of the 2007 Act states that the Medical Council has
the power, on receiving a report from the Fitness to Practice Committee (FCC),
to impose one or more of the following sanctions on a medical practitioner:
(a) “an
advice or admonishment, or a censure in writing;
(b) a
censure in writing and a fine not exceeding €5,000;
(c) the
attachment of conditions to the practitioner’s registration, including
restrictions on the practice of medicine that may be engaged in by the
practitioner;
(d) the
transfer of the practitioner’s registration for a specified period;
(e) the
suspension of the practitioner’s registration for a specified period;
(f)
the cancellation of the practitioner’s registration;
(g) a
prohibition from applying for a specified period for the restoration of the
practitioner’s registration.”
5.43
If the Medical Council imposes a sanction more punitive than an advice,
admonishment or censure, it must apply to the High Court to make that decision
final.[612]
5.44
As the Commission has
already noted, there is no current statutory framework in Ireland for advance
care directives. In this Part, the Commission discusses below the extent to
which liability concerning advance care directives has arisen in statutory
schemes in other States. Before turning to those models, the Commission draws
attention to a statutory model in a medical setting that contains some elements
of note. The Control of Clinical Trials Act 1987, as
amended by the Control of Clinical Trials and Drugs Act 1990, provides
a statutory framework under which clinical trials are regulated in the State.
For the purposes of this Consultation Paper, the essential feature of the 1987
Act is that, where a clinical trial conforms to the statutory model it sets
out, no criminal liability can arise for health care professionals. In
addition, a number of features of the 1987 Act are worthy of note in the
context of a criminal prosecution against a health care professional:
·
it is a defence for the
health care professional to assert that he or she acted with due
diligence;[613]
·
it is a defence for the
health care professional to show that any substances or preparation were
administered for the purpose of providing emergency medical or dental
treatment;[614] and
·
the 1987 Act contains a
presumption concerning the harmful effect of any substances or
preparation administered.[615]
5.45
It is clear that
some of these features of the 1987 Act are specific to the context of clinical
trials, but they provide some useful elements which might be included in a
statutory scheme for advance care directives.
5.46
In its 1995 Report, the
Law Commission of England and Wales made two recommendations with regard to the
liability of health care providers. [616] First, it recommended that no person should incur liability
for the consequences of withholding any treatment or procedure if he or she has
reasonable grounds for believing that an advance refusal of treatment applies.
It noted that although this was the present law, the importance of the rule was
such that it should be set out in the proposed statute. Second, it recommended
that no person should incur liability for carrying out any treatment or
procedure to which an advance refusal applies unless he or she has reasonable
grounds for believing that an advance refusal applies.
5.47
At first glance,
section 26 of the English Mental Capacity Act 2005 appears to
incorporate both recommendations of the Law Commission. Section 26(3) states
that:
“ a person
does not incur liability for the consequences of withholding or withdrawing a
treatment from [the maker of the decision] if, at the time, he reasonably
believes that an advance decision exists which is valid and applicable to
the treatment.”[617]
In a similar
vein, section 26(2) of the 2005 Act states that:
“a person does not incur liability for carrying out or continuing
the treatment unless, at the time, he is satisfied that an advance
decision exists which is valid and applicable to the treatment.”[618]
The most obvious
difference between the sections is that section 26(3) refers to negative action
(the withdrawing or withholding of treatment) while section 26(2) refers to
positive action (carrying out or continuing the treatment). On closer
inspection, section 26(3) requires that a healthcare professional’s belief as
to the existence, validity and applicability of an advance decision must be
“reasonable”, whereas section 26(2) merely requires that a healthcare
professional must be “satisfied.” Given the explicit reference to “reasonable”
in section 26(3), it has been argued that it is unlikely that the courts will
interpret section 26(2) as implicitly requiring the professional’s satisfaction
to be reasonable.[619] The
omission of reasonableness from section 26(2) has led to criticism that it
gives professionals “considerable discretion” and makes any advance decision
“inherently more vulnerable.”[620]
5.48
The Code of Practice
for the 2005 Act notes that healthcare professionals have a number of
responsibilities.[621] First,
they should be aware that a patient may have refused treatment in advance, and
that valid and applicable advance decisions to refuse treatment have the same
legal status as contemporaneous medical decisions. Second, where appropriate,
healthcare professionals should ask patients with capacity if there are any
specific types of treatment they do not wish to receive if they ever lack
capacity to consent in the future. Third, if a healthcare professional is told
that an advance decision exists, they should make reasonable efforts to find
out what the decision is.[622]
5.49
The most important (and
perhaps onerous) responsibility facing health care professionals is that they
must determine whether an advance decision is valid and applicable once they
are aware that it exists. Healthcare professionals must follow an advance
directive if they are satisfied that it exists, is valid and is applicable to
their circumstances. Otherwise, they may be liable in battery or assault. [623] When establishing whether an advance decision applies to current
circumstances, healthcare professionals should take care if the decision does
not seem to have been reviewed or updated for some time. The Code of Practice
cites a number of situations that might be enough in themselves to raise
concern about the existence, validity or applicability of an advance decision
to refuse treatment:
·
“A disagreement between
relatives and healthcare professionals about whether verbal comments were
really an advance decision;
·
Evidence about the person’s state of mind raises questions about their
capacity at the time they made the decision;
·
Evidence of important
changes in the person’s behaviour before they lost capacity that might suggest
a change of mind.”[624]
5.50
In any event it is
notable that the English 2005 Act does not provide for any explicit sanction
for failure to comply with an advance care directive. In this respect, the Code
of Practice for the 2005 Act draws attention to potential liability at common
law for assault and battery. In this respect, the Commission notes that Head 16
of the Government’s Scheme of Mental Capacity Bill 2008, published in
September 2008, states that where a compliance with its terms, this does not
exclude possible civil or criminal liability.
5.51
The Commission provisionally recommends that a
healthcare professional will not be liable if they follow an advance care
directive which they believe to be valid and applicable.
5.52
By contrast with the
approach in the English 2005 Act, the Australian jurisdictions of Victoria and
Queensland[625] have
created separate criminal offences for failure to follow an advance care
directive. For example, section 6 of the Medical Treatment Act 1988
(Vic) states that an offence of medical trespass is committed when a registered
medical practitioner, knowing that a refusal of treatment certificate applies
to a person, undertakes or continues to undertake any medical treatment to
which the certificate applies.
5.53
In Queensland, section 102 of the Powers of Attorney Act 1998
(Qld) states that:
“A health provider is not affected by an adult’s advance
health directive to the extent the health provider does not know the adult has
an advance health directive.”
There is a lack of clarity regarding the meaning of the word
‘know’. It is unclear whether the term is restricted to actual knowledge or
whether it should be extended to imputed knowledge or even wilful blindness.[626]
5.54
Section 100 of the Powers
of Attorney Act 1998 (Qld) provides that a health provider who relies on an
invalid advance health directive will be protected, if he or she does not know
of the invalidity at the time he or she acts in reliance on the directive.
Neither the terms ‘invalidity’ nor ‘knowing’ are defined in the legislation.
5.55
Section 103(1) of the Powers
of Attorney Act 1998 (Qld) provides that a health care professional does
not incur any liability for failing to follow a directive if he or she has:
“reasonable
grounds to believe that…circumstances, including advances in medical science,
have changed to the extent that the terms of the direction are inappropriate.”
This
provision has considerable flexibility, as it has the power to embrace changes
in an adult’s religious beliefs (as was the case in HE v A Hospital NHS
Trust),[627] advances
in medical science, and the situation in which an adult has changed his or her
mind about an advance directive, but fails to revoke it.[628]
Some commentators have argued that this statutory excuse is too broad and that
the focus of the enquiry is wrongly shifted towards the health care
professional.[629] For
example, the test that is applied at common law is whether the change in
circumstances is such that the adult would not have intended his or her
refusal to apply to the circumstances that have arisen.[630]
Section 103(1) of the 1998 Queensland Act asks, however, whether a health
care professional has reasonable grounds to believe that there is a change
in circumstances that renders the advance directive inappropriate. In the
Commission’s view, the common law position is to be preferred, as its approach
strikes a “more sensible balance between principles of autonomy and the
sanctity of life.”[631]
5.56
Victoria’s legislation
is more limited, in that it focuses on a change in circumstances relating to an
adult’s medical condition. Section 7(3) of the Medical Treatment Act 1988 (Vic)
states that a directive will no longer apply:
“if the
medical condition of the person has changed to such an extent that the
condition in relation to which the [advance directive] was given is no longer
current.”
5.57
Difficulties with
advance care directives can often arise when language is vague or imprecise.
For example, the case of W Healthcare NHS Trust v H[632]
involved statements that referred to a “reasonable quality of life.” In
Queensland, section 103(1) of the Powers of Attorney Act 1998 (Qld)
excuses a health care professional if he or she has “reasonable ground to
believe that a direction in an [advance directive] is uncertain.” Although
“uncertainty” is not defined, section 103(3) of the 1998 Act states:
“if an
attorney is appointed under the [advance care directive], the [health
professional] has reasonable grounds to believe that a direction in the
[advance care directive] is uncertain only, if, among other things, the [health
professional] has consulted the attorney about the direction.”
Section
103(3) merely requires a health care professional to consult an attorney in
order to clarify or explain the advance directive. It does not require the
health care professional to accept that clarification or explanation. There is
also the danger that the more uncertain a directive is, the more likely it is
that an attorney will make their own decision, albeit based on what he or she
thinks the maker of the advance directive would have wanted.[633]
5.58
The English Mental
Capacity Act 2005 states that a medical professional does not have to do
something against their beliefs.[634]
A medical professional can therefore disagree with a patient’s decision to
refuse life-sustaining medical treatment.
5.59
Similarly, the Irish
Medical Council’s ethical guidelines also state that “if a doctor has a
conscientious objection to a course of action this should be explained and the
names of other doctors made available to the patient”.[635]
Fennan argues that
“One option
would be to include in any legislation (or code of practice) a provision which,
while allowing a doctor to exercise a conscientious objection to personally
withdrawing treatment, would state that this would not eclipse the doctor’s
duty to refer the patient, if practicable, to another doctor or facility
willing to carry out this lawful action”.[636]
5.60
Queensland is the only
Australian jurisdiction in which a health professional is excused from
following a valid advance care directive for reasons grounded in good medical
practice. Section 103(1) of the Powers of Attorney Act 1998 (Qld)
provides that a health professional does not incur any liability for failing to
follow a directive if he or she has “reasonable grounds to believe that a
direction in an [advance care directive] is…inconsistent with good medical
practice.” ‘Good medical practice’ is defined as:
“…good
medical practice for the medical profession in Australia having regard to –
(a)
the recognised medical standards, practices and procedures of the medical
profession in Australia; and
(b)
the recognised ethical standards of the medical profession in Australia.”[637]
This statutory
excuse permits a health professional some discretion. A health professional is
not prohibited from following an advance care directive that is inconsistent
with good medical practice; rather, it simply excuses a health professional who
chooses to ignore it.[638] This
excuse has been heavily criticised and its repeal has been called for on the
basis that it “seriously weakens the essence of advance directives: the ability
of an adult to choose the treatment that he or she wishes to refuse, even if
others may disagree.”[639]
5.61
If a medical
professional refuses to follow the advance care directive, the autonomy of the
patient is affected. The purpose of an advance care directive is to ensure that
a patient retains autonomy over the future medical treatments and that their
wishes are followed.
5.62
Should consequences
flow from a medical professional’s intentional or negligent refusal to follow
an advance care directive? Veatch submits that:
“It
competent patients have a valid moral and legal right to refuse medical treatment,
it stands to reason that they should have some recourse if they are treated
against their consent. Real harms are incurred…Patients suffer physical
pain…Hospital bills will have to be paid.”[640]
Indeed one
could go as far as to say that without a legal remedy, there is no actual right
to refuse medical treatment.[641]
5.63
Can a medical
professional be liable, however, for keeping a patient alive? The Medical
Council’s Ethical Guidelines state that a competent patient’s refusal of
treatment must be respected,[642] so that a
refusal to follow a valid advance care directive could constitute professional
misconduct.
5.64
Due to the ethical
issues involved in following an advance care directive, the Commission invites
submissions on whether consequences and sanctions should follow if a medical
professional fails to follow a valid and applicable advance care directive.
5.65
The Commission invites submissions on whether
consequences and sanctions should follow if a medical professional fails to
follow a valid and applicable advance care directive.
6
6.01
The Commission’s
provisional recommendations in this Consultation Paper may be summarised as
follows:
6.02
The Commission
provisionally recommends that the term “Advance Care Directive” be adopted.
[Paragraph 1.18]
6.03
The Commission
provisionally recommends that negative advance care directives only should be
regarded as legally binding. [Paragraph 1.32]
6.04
An advance care
directive is an advance indication of a person’s wishes that certain medical
care is not to be given in the event that the patient becomes incompetent.
[Paragraph 1.33]
6.05
The Commission invites
submissions on the status of “Do Not Resituate” (DNR) orders. [Paragraph 1.47]
6.06
The Commission
provisionally recommends that an advance care directive cannot refuse actions
concerning basic care. [Paragraph.1.52]
6.07
The Commission
provisionally recommends that a healthcare proxy may be appointed in an advance
care directive. The functions of the healthcare proxy should include:
·
Ensuring that the
wishes as expressed by the author of the advance care directive are followed.
·
Consultation with the
medical professional if there is any ambiguity in the advance care directive.
[Paragraph 1.65]
6.08
The Commission
provisionally recommends that advance care directives be placed on a statutory
footing. The Commission provisionally recommends that a set of guidelines be
drawn up to complement the legislative framework. [Paragraph 2.48]
6.09
The Commission
provisionally recommends that a refusal to consent to treatment on religious
grounds will in general (subject to constitutional considerations) constitute a
valid advance care directive. [Paragraph 2.64]
6.10
The Commission
provisionally recommends that makers of advance care directives should be
encouraged to consult with a medical professional when making an advance care
directive. In the case of advance care directives refusing life-sustaining
medical treatment, the Commission provisionally recommends that medical advice
must be obtained for the advance care directive to be valid. [Paragraph
3.15]
6.11
The Commission
provisionally recommends that there is a rebuttable presumption of capacity in
favour of the maker of an advance care directive. [Paragraph 3.34]
6.12
The Commission
provisionally recommends that the capacity to refuse healthcare decisions
should be assessed on the functional test of capacity. The Commission also
provisionally recommends that the statutory codes of practice be formulated to
guide healthcare professionals when assessing the capacity of an individual.
[Paragraph 3.35]
6.13
The Commission invites
submissions on the age a person must be before they can make a valid advance
care directive. [Paragraph 3.52]
6.14
The Commission
provisionally recommends that both oral and written advance care directives are
valid. [Paragraph 4.13]
6.15
In the case of
life-sustaining treatment, the Commission provisionally recommends that only
written advance care directives are valid. The Commission invites submissions
on the definition of life-sustaining medical treatment and on whether
artificial nutrition and hydration is life-sustaining medical treatment.
[Paragraph 4.23]
6.16
The Commission
provisionally recommends that only a written advance care directive which
refuses life-sustaining medical treatment must be witnessed by at least one person.
[Paragraph 4.33]
6.17
The Commission provisionally recommends that it is not necessary for an
advance care directive to be in a prescribed form. [Paragraph 4.37]
6.18
The Commission
provisionally recommends that an advance care directive will not be valid if
· The author of the advance care
directive did not have capacity at the time of its creation
· The creation of the advance care
directive was not a voluntary act of the author
· If the author changed their mind and
communicated this change of mind
· If a written advance care directive
refusing life-sustaining medical treatment was not witnessed and if the person
did not consult with a medical professional [Paragraph 4.61]
6.19
The Commission
provisionally recommends that an advance care directive is not applicable
if
· It is ambiguous in relation to the
proposed treatment
· If all the circumstances outlined in
the advance care directive are present
· If, while competent, the author of
the advance care directive said or did anything which puts reasonable doubt in
the mind of the doctor that the author had changed their mind but did not have
the opportunity to revoke the advance care directive. [Paragraph 4.62]
6.20
The Commission
provisionally recommends that before an advance care directive is activated,
the author of the advance care directive must lack capacity and the treatment
proposed must be the treatment outlined in the advance care directive.
[Paragraph 4.68]]
6.21
The Commission
provisionally recommends that a competent person can verbally revoke their
advance care directive regardless of whether there is a verbal or written
advance care directive and also welcomes submissions on this point. [Paragraph
4.78]
6.22
The Commission
provisionally recommends that, while advance care directives should be reviewed
regularly, there should be no time limit put on their validity. [Paragraph
4.84]
6.23
The Commission invites
submissions on whether it is necessary to have a central filing system for
advance care directives. [Paragraph 4.88]
6.24
The Commission
provisionally recommends that a healthcare professional will not be liable if
they follow an advance care directive which they believe to be valid and
applicable. [Paragraph 5.51]
6.25
The Commission invites
submissions on whether consequences and sanctions should follow if a medical
professional fails to follow a valid and applicable advance care directive.
[Paragraph 5.65]
[1]
See Report on the
Third Programme of Law Reform 2008-2014 (LRC 86-2007). Project 30 in the
Third Programme commits the Commission to examine “Legal Aspects of Bioethics”.
[2]
Law Reform Commission Report
on Vulnerable Adults and the Law (LRC 82-2006) at paragraph 3.36.
[3]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) at
paragraphs 7.63-7.64.
[4]
Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraphs 3.48-3.51.
[5]
Ibid at paragraph
3.48.
[6]
Ibid at paragraph
3.51.
[7]
Consultation Paper on Vulnerable
Adults and the Law: Capacity (LRC CP 37-2005) at paragraph 7.64.
[8]
Available at
www.bioethics.ie.
[9]
In a study conducted in
2003, 27% of physicians had experienced advance directives for Irish patients:
Fennell Butler Saaidin Sheikh “Dissatisfaction with Do Not Attempt
Resuscitation Orders: A Nationwide Study of Irish Consultant Physician
Practices” (2006) 99(7) Irish Medical Journal 208.
[10]
The 1996 Act implemented the
Commission’s Report on Land Law and Conveyancing Law (2): Enduring Powers of
Attorney (LRC 31-1989).
[11]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006) at paragraph 4.32.
[12]
In September 2008, the Government
published a Scheme of Mental Capacity Bill 2008, Head 48 of which
proposes to allow an attorney to make health care decisions: available at
www.justice.ie.
[13]
Exworthy “Psychiatric Advance
Decisions – An Opportunity Missed” (2004) Journal of Mental Health Law 129.
See also Sheetz “The Choice to Limit Choice: Using Psychiatric Advance
Directives to Manage the Effects of Mental Illness and Support
Self-Responsibility” (2006) 40 U Mich J L Reform 401; Gevers “Advance
Directives in Psychiatry” (2002) 9 European Journal of Health Law 19;
Dunlap “Mental Health Advance Directives: Having One’s Say?” (2001) Kentucky
Law Journal 327.
[14]
Homer The Odyssey Book XII,
lines 177-83.
[15]
Ibid at 134.
[16]
Patrick “Scottish Parliament acts on
Mental Health Law Reform” (2003) Journal of Mental Health Law 71, at 74.
[17]
Law Reform Commission Report
on Vulnerable Adults and the Law (LRC 82-2006) at paragraph 3.36.
[18]
Bartlett Blackstone’s
Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at
paragraph 2.101.
[19]
[1996] 2 IR 79
[20]
(1990) 497 US 261 cited
in In re a Ward of Court (withholding medical treatment) (No 2) [1996] 2
IR 79 at 133-134.
[21]
(1987) 154 Ariz 207
cited in Re a Ward of Court (No 2) [1996] 2 IR 79 at 131 per O’Flaherty
J.
[22]
Capron “Advance
Directives” in Kuhse and Singer (eds) A Companion to Bioethics (Blackwell
Publishing 1998) at 262.
[23]
Rosato “Using Bioethics
Discourse to Determine When Parents Should Make Health Care Decisions for Their
Children: Is Deference Justified?” (2000) 73 Temple Law Review 1 at 29.
[24]
Beauchamp and Childress Principles of Biomedical Ethics (5th
ed Oxford University Press 2001).
[25]
Chalmers “International
Medical Research Regulation: From Ethics to Law” in McLean (ed) First Do No Harm
(Ashgate 2006) 81 at 83.
[26]
Brazier “Do No Harm – Do Patients
Have Responsibilities Too?” (2006) 65(2) Cambridge Law Journal 397 at
399.
[27]
Madden Medicine, Ethics & the
Law (Tottel Publishing 2002) at paragraph 1.81.
[28]
Faden and Beauchamp A History and
Theory of Informed Consent (Oxford University Press 1986) at 8.
[29]
(1914) 105 NE 92.
[30]
Kutner “Due Process of Euthanasia:
The Living Will, A Proposal” (1969) 44 Indiana Law Journal 539 at 552.
[31]
[2003] EWHC 1017; [2003] 2 FLR 408 at
paragraph 35.
[32]
Law Commission for England and Wales
Consultation Paper on Mentally Incapacitated Adults and
Decision-Making: An Overview (No 119 1991).
[33]
Ibid at paragraph 6.2.
[34]
Ibid at paragraph 6.5.
[35]
Law Commission for England and Wales
Report on Mental Incapacity (No 231 1995) at paragraph 5.1.
[36]
Law Reform Commission of Hong Kong Consultation
Paper on Substitute Decision-Making and Advance Directives in Relation to
Medical Treatment (2004) at 137.
[37]
Is it Time for Advance Healthcare
Directives? (Irish Council for Bioethics 2007).
[38]
Powers of Attorney Act 1998
(Qld).
[39]
Advance Medical Directive Act
1996 (Singapore).
[40]
Leng and Sy “Medical Directives in
Singapore (1997) 5 Medical Law Review 63 at 75.
[41]
[1993] 1 All ER 82.
[42]
Ibid at 866.
[43]
Ibid.
[44]
Exworthy “Psychiatric advance decisions – an opportunity missed” (2004) Mental
Health Law 129 at 138.
[45]
House of Lords, House of Commons
Joint Committee on the Draft Mental Incapacity Bill (2003) Session 2002 03.
Volume I. HL Paper 189-1, HC 1083-1. London: The Stationery Office at paragraph
199.
[46]
Pripp and Moretti, “Medical
Futility: A legal perspective” in Zucker and Zucker (eds) Medical Futility
and the Evaluation of Life-Sustaining Interventions (Cambridge University
Press, 1997) 136 at 137.
[47]
Jecker “Being a Burden on Others” in
Capron (ed) “Medical Decision Making and ‘The Right to Die’ after Cruzan”
(1991) 19 Law Medicine and Health Care 16 at 19.
[48]
Munby “Rhetoric and Reality: The Limitations of Patient Self-Determination in
Contemporary English Law” (1998) 14 Journal of Contemporary Health Law and Policy
315 at 322.
[49]
Madden Medicine, Ethics & the
Law (Tottel Publishing 2002) at paragraph 11.29.
[50]
Irish Medical Council A Guide to
Ethical Conduct and Behaviour (6th ed 2004) at paragraph 23.1.
[51]
Pripp and Moretti, “Medical
Futility: A legal perspective” in Zucker and Zucker (eds) Medical Futility
and the Evaluation of Life-Sustaining Interventions (1997) 136 at 139. See
also Bagheri “Regulating Medical Futility: Neither Excessive Patient’s Autonomy
Nor Physician’s Paternalism” (2008) 15 European Journal of Health Law 45.
[52]
Law Commission for England and Wales
Report on Mental Incapacity (No 231 1995) at paragraph 5.28.
[53]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005 (2nd ed Oxford University Press,
2008) at paragraph 2.104.
[54]
Brazier “Do No Harm – Do Patients
Have Responsibilities Too?” (2006) 65(2) Cambridge Law Journal 397 at
400.
[55]
[2004] EWHC 1879 (Admin) at paragraph 166.
[56]
General Medical Council Withholding
and Withdrawing Life-Prolonging Treatments: Good Practice in Decision-Making
(GMC 2002) at paragraph 32.
[57]
Ibid at paragraph 81.
[58]
Article 2 (the right to life);
Article 3 (protection against degrading treatment); Article 8 (respect for
private and family life).
[59]
R (Burke) v General Medical
Council [2004] EWHC 1879 (Admin) at paragraph 166.
See Gurnham “Losing the Wood for the Trees: Burke and the Court of Appeal”
(2006) 14 Medical Law Review 253 at 255.
[60]
Fennell “United Kingdom: The Right
to Require Life-Prolonging Treatment” (2004) 12(3) Medical Law Review
306 at 315.
[61]
R (on the application of Burke) v
General Medical Council [2004] EWHC 1879 (Admin) at paragraph 166.
[62]
Ibid at paragraph 169.
[63]
Mason and Laurie “Personal Autonomy
and the Right to Treatment: A Note on R (on the application of Burke) v
General Medical Council” (2004-2005) 9 Edinburgh Law Review 123; Fennell
“The Right to Require Life-Prolonging Treatment” (2004) 12 Medical Law
Review 306; Merchant “The Right to Treatment” (2004) New Law Journal
1316; Gillon “Why the GMC is Right to Appeal Over Life-Prolonging Treatment”
(2004) 329 British Medical Journal 810.
[64]
Mason and Laurie “Personal Autonomy
and the Right to Treatment: A Note on R (on the application of Burke) v
General Medical Council” (2004-2005) 9 Edinburgh Law Review 123 at
131.
[65]
Mason and Laurie “Personal Autonomy
and the Right to Treatment: A Note on R (on the application of Burke) v
General Medical Council” (2004-2005) 9 Edinburgh Law Review 123 at
123. See also Gillon “Why the GMC is Right to Appeal Over Life-Prolonging
Treatment” (2004) 329 British Medical Journal 810.
[66]
R (Burke) v General Medical
Council [2005] EWCA Civ; [2005] 2 FLR 1223. See Biggs “’Taking
Account of the Views of the Patient’, but only If the Clinician (and the Court)
Agrees – R(Burke) v GMC” (2007) 19(2) Child and Family Law Quarterly
225; de Cruz “The Burke Case: The Terminally Ill Patient and the Right to Life”
(2007) 70(2) Modern Law Review 294; Gurnham “Losing the Wood for the
Trees: Burke and the Court of Appeal” (2006) 14 Medical Law Review 253;
McIvor “The Positive Medical Duty to Provide Life-Prolonging Treatment” (2006) Professional
Negligence 59.
[67]
R (Burke) v General Medical
Council [2005] EWCA Civ 1003; [2005] 2 FLR 1223 at
paragraph 38.
[68]
Ibid at paragraph 24.
[69]
Ibid at paragraph 57.
[70]
Ibid at paragraph 31. Note
that the European Court of Human Rights unanimously rejected Mr Burke’s
application, Burke v United Kingdom 19807/06
[71]
Health Care Decisions Act 1983,
Virginia Code § 54-1-2990.
[72]
Living Wills and Life-Prolonging
Procedure Act 1985, Indiana Code §16-36-4.
[73]
Pripp and Moretti “Medical Futility:
A Legal Perspective” in Zucker and Zucker (eds) Medical Futility and the
Evaluation of Life-Sustaining Interventions (1997) 136 at 143.
[74]
Per Ó Dalaigh J in Ryan v
Attorney General [1965] IR 294 at 348.
[75]
[1989] ILRM 181.
[77]
Re A Ward of Court [1996] 2
IR 79 at 129.
[78]
Sommerville “Are Advance Directives
Really the Answer?” in McLean (ed) Death, Dying and the Law (Dartmouth
Publishing Company 1996) 29 at 35-36.
[79]
See paragraphs 4.07 – 4.10 below.
[80]
Airedale NHS Trust v Bland [1993] 1 All ER 821.
[81]
Consent to Medical Treatment and
Palliative Care Act 1995 (SA).
[82]
Natural Death Act 1988 (NT).
[83]
Advance Medical Directives Act
1996 (Singapore). See Leng and Sy “Advance Medical Directives in Singapore”
(1997) 5 Medical Law Review 63.
[84]
‘Terminal illness’ is defined
in section 2 of the Medical Directives Act 1996 as:
“an incurable condition caused by injury or disease from which there is
no reasonable prospect of a temporary or permanent recovery where –
(a) death would within reasonable medical judgment be imminent regardless of
the application of extraordinary life-sustaining treatment; and
(b) the application of extraordinary life-sustaining treatment would only
serve to postpone the moment of death of the patient.”
[85]
Leng and Sy “Advance Medical
Directives in Singapore” (1997) 5 Medical Law Review 63 at 72.
[86]
Ibid at 73.
[87]
See generally Madden Medicine,
Ethics & the Law (Tottel Publishing 2002) at paragraphs 11.70-11.83;
Mills Clinical Practice and the Law (2nd ed Tottel Publishing
2007) at paragraphs 12.29-12.30; Robinson and O’Neill “Communication and
Documentation of Do-Not-Resuscitate Orders in an Irish Teaching Hospital”
(2005) 11(2) Medico-Legal Journal of Ireland 60; Sheikh “Older People:
Consent, Do Not Resuscitate Orders and Medical Research” in O’Dell (ed) Older
People in Modern Ireland: Essays on Law and Policy (First Law 2001)
213. It has been proposed that the term “DNR” should be replaced with the term
“AND” (allow natural death), as it positively describes the contents of care,
rather than focusing on the negative “do-not” directives. It is argued that DNR
are “threatening” words which evoke a perception of coldness and cruelty:
Venneman, Narnor-Harris and Hamilton “’Allow Natural Death’ Versus ‘Do Not
Resuscitate’: Three Words that Can Change a Life” (2008) 34 Journal of
Medical Ethics 2.
[88]
Sorum “Limiting Cardiopulmonary
Resuscitation” (1994) 57 Alberta Law Review 617 at 617-618.
[89]
American Hospital Association Effective
DNR Policies: Development, Revision and Implementation (1990).
[90]
Collins “End of Life in ICU – Care
of the Dying or ‘Pulling the Plug’?” (2006) 99(4) Irish Medical Journal
112.
[91]
Fennell, Butler, Saaidin and Sheikh
“Dissatisfaction with Do Not Attempt Resuscitation Orders: A Nationwide Study
of Irish Consultant Physician Practices” (2006) 99(7) Irish Medical Journal
208. Although the study was conducted in 2003, the results were not published
until 2006.
[92]
Fennell, Butler, Saaidin and Sheikh
“Dissatisfaction with Do Not Attempt Resuscitation Orders: A Nationwide Study
of Irish Consultant Physician Practices” (2006) 99(7) Irish Medical Journal
208 at 210.
[93]
[1996] 2 FLR 99.
[94]
[1996] 2 FLR 99 at 107.
[95]
British Medical Association and
Royal College of Nursing Decisions Relating to Cardiopulmonary Resuscitation:
A Joint Statement from the British Medical Association, the Resuscitation
Council (UK) and the Royal College of Nursing (2002).
[96]
Ibid at 5.
[97]
British Medical Association and
Royal College of Nursing Decisions Relating to Cardiopulmonary
Resuscitation: A Joint Statement from the British Medical Association, the
Resuscitation Council (UK) and the Royal College of Nursing (2002) at
11-12.
[98]
British Medical Association and
Royal College of Nursing Decisions Relating to Cardiopulmonary
Resuscitation: A Joint Statement from the British Medical Association, the
Resuscitation Council (UK) and the Royal College of Nursing (2002) at 7-8.
[99]
The Law Commission of England and
Wales Report on Mental Incapacity (No 231 1995) at paragraph 5.34. The
Commission replaced reference to “spoon-feeding” with reference to direct oral
feeding, to cater for the administration of nutrition and hydration by syringe
or cup.
[100]
Ibid at paragraph 5.34. See
Mills Clinical Practice and the Law 2nd ed., (Tottel. 2007)
at paragraph 12.33.
[101]
English, Mussell, Sheather and
Sommerville “Autonomy and Its Limits: What Place for the Public Good?” in
McLean (ed) First Do No Harm (Ashgate 2006) 117 at 118.
[102]
Grubb “United Kingdom” [1993] 1(1) Medical
Law Review 84 at 85.
[103]
The Law Commission of England and
Wales Report on Mental Incapacity (No 231 1995) at paragraph 5.34.
[104]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.28. Section 5 of the Mental Capacity Act 2005
allows healthcare professionals to carry out these actions in the best
interests of a person who lacks capacity to consent.
[105]
Law Reform Commission of Hong Kong Report
on Substitute Decision-Making and Advance Directives in Relation to Medical
Treatment (2006) at 169.
[106]
Section 28 of the Mental Capacity Act 2005.
[107]
Scottish Law Commission Discussion
Paper on Mentally Disabled Adults – Legal Arrangements for Managing
their Welfare and Finances (No 94 1991) at paragraph 5.111.
[108]
The Law Commission for England and
Wales Report on Mental Incapacity (No 231 1995) at paragraph 5.26
[109]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.43.
[110]
Dunlap “Mental Health Advance
Directives: Having One’s Say?” (2000-2001) 89 Kentucky Law Journal 327
at 347.
[111]
In a study by Teno et al, only 22 of
688 advance care directives written by terminally ill patients contained
instructions explicit enough to guide medical care: Teno et al “Do Advance
Directives Provide Instructions that Direct Care?” (1997) 45 Journal of the
American Geriatric Society 508.
[112]
Clough “A Critique of Advance
Directives and Advance Directives Legislation” (2006) 11 Appeal: Review of
Current Law and Law Reform 16 at 29.
[113]
Ibid at 30.
[114]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) at
paragraph 7.64.
[115]
Capron “Advance Directives” in Kuhse
and Singer (eds) A Companion to Bioethics (Blackwell Publishing 1998)
261, at 266. See also Woollard “The Appointment of Medical Treatment Attorneys:
Some Lessons From Australia” (1998) 6 Medical Law Review 297.
[116]
Emanuel “Advance Directives: What Have We
Learned So Far?” in Emanuel (advisory ed) Advance Directives: Expectations,
Experience and Future Practice (1993) 4(1) The Journal of Clinical Ethics
8 at 10.
[117]
Ibid.
[118]
[1996] 2 IR 79, discussed in Chapter 2,
below.
[119]
Harrington “Constitutional Law –
Withdrawal of Treatment from an Incompetent Patient” (1995) 17 DULJ 120 at 135.
[120]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 82-2006) at paragraph 8.43.
[121]
This range of decisions would be on a par
with those which could be made by personal guardians appointed under the
proposed mental capacity and guardianship legislation. See Report on
Vulnerable Adults and the Law (LRC 82-2006) at paragraph 6.50 ff.
[122]
Available at www.justice.ie.
[123]
Sections 9-14 of the Mental Capacity
Act 2005. See Martin “Powers of Attorney – Peace of Mind or Out of Control”
(2008) Conveyancer and Property Lawyer 11.
[124]
Section 11(7)(c) of the Mental Capacity
Act 2005.
[125]
Section 9(4) of the Mental Capacity Act
2005.
[126]
Bartlett Blackstone’s Guide to the
Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.113.
[127]
Mental Capacity Act 2005 – Code of
Practice at paragraph 9.36.
[128]
Bartlett Blackstone’s Guide to the
Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.113.
[129]
Kirscher “When Written Advance Directives
Are Not Enough” (2005) 21(1) Clinics in Geriatric Medicine 193 at 195.
[130]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 82-2006) at paragraph 4.31.
[131]
See Chapter 4 generally.
[132]
Costello “The Terminally
Ill – The Law’s Concerns” (1986) 21 Irish Jurist 35 at 42.
[133]
[1996] 2 IR 79
[134]
Ibid at 125 per
Hamilton CJ.
[135]
Ibid at129.
[136]
Ibid.
[137]
Ibid at 156. It
is interesting to note that the following italicised text in the unreported
approved judgment of Denham J in Re a Ward of Court (No 2) 27 July 1994
at p. 24 of the judgment does not appear in either In re a Ward of Court
(withholding medical treatment) (No 2) [1996] 2 IR 79 at 156 or In re a
Ward of Court (withholding medical treatment) (No 2) [1995] 2 ILRM 401 at 454:
“…medical treatment may be refused for other than medical reasons. Such
reasons may not be viewed as good medical reasons, or reasons most citizens
would regard as rational, but the person of full age and capacity may take the
decision for their own reasons.”
[138]
Madden Medicine,
Ethics & the Law (Tottel Publishing 2002) at paragraph 9.134.
[139]
Kennedy Treat Me
Right: Essays in Medical Law and Ethics (1991) at 337 cited in Madden ibid
at paragraph 9.136.
[140]
Costello “The Terminally
Ill – The Law’s Concerns” (1986) 21 Irish Jurist 35 at 42.
[141]
In re a Ward of Court (withholding
medical treatment) (No 2) [1996] 2 IR 79 at 156. The dictum of
Denham J in this regard was cited by Hardiman J in North Western Health
Board v HW [2001] 3 IR 622 at 750-151.
[142]
Casey Constitutional Law in
Ireland (3rd ed Round Hall Sweet & Maxwell 2000) at 400.
[143]
Tomkin and Hanafin “Medical
Treatment at Life’s End: The Need for Legislation” (1995) Medico-Legal
Journal of Ireland 3 at 9.
[144]
Ibid.
[145]
[1996] 2 IR 79 at 133.
[146]
[1996] 2 IR 79 at 133.
[147]
Campbell “The Case for Living Wills
in Ireland” (2006) 12(1) Medico-Legal Journal of Ireland 2 at 6.
[148]
Madden Medicine, Ethics & the
Law (Tottel Publishing 2002) at paragraph 11.57.
[149]
Mills Clinical Practice
and the Law (2nd ed Tottel Publishing 2007) at paragraph 329.
[150]
Report on Vulnerable
Adults and the Law (LRC 83-2006) at paragraph 6.40. The Commission notes
that the Government’s Scheme of Mental Capacity Bill 2008, published in
September 2008, proposes that the Circuit Court would perform the functions
envisaged by the Commission for the Guardianship Board.
[151]
Report on Vulnerable Adults and
the Law (LRC 83-2006) at paragraph 6.51.
[152]
Report on Vulnerable Adults and
the Law (LRC 83-2006) at paragraph 6.72. The Government’s Scheme of
Mental Capacity Bill 2008 proposes to implement this recommendation.
[153]
Report on Vulnerable Adults and
the Law (LRC 83-2006) at paragraph 3.34.
[154]
Ibid at paragraph
3.35. The Government’s Scheme of Mental Capacity Bill 2008 proposes that
the Office of Public Guardian, which the Commission recommended in its 2006
Report should be established, will formulate this Code of Practice.
[155]
Irish Medical Council A Guide to
Ethical Conduct and Behaviour (6th ed 2004) at paragraph 17.1.
[156]
Irish Medical Council Advance
Directives (2007) at 3. Available at www.medicalcouncil.ie/news/discussionarticle.asp?NID=158&T=N.
[157]
The Women’s Health Council Submission
to the Medical Council on ‘A Guide to Ethical Conduct and Behaviour’ (September
2007) at 7. Available at www.whc.ie/documents/26_Submission_Ethical.pdf.
[158]
Irish Medical Council A Guide to
Ethical Conduct and Behaviour at paragraph 22.1.
[159]
McMahon and Binchy Law of Torts
(3rd ed Butterworths 2000) at paragraph 22.73.
[160]
Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraph 1.23.
[161]
[1996] 2 IR 79.
[162]
Ibid at 163-164 per Denham J.
[163]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) at
paragraph 7.37.
[164]
[1954] IR 73.
[165]
[1967] IR 173
[166]
Ibid at 193.
[167]
Meyers “Letting Doctor and Patient
Decide: The Wisdom of Scots Law” in Comparative and Historical Essays in
Scots Law (Butterworths 1992) at 101.
[168]
Morgan “Odysseus and the Binding
Directive: Only a Cautionary Tale?” (1994) 14 Legal Studies 411 at 428.
[169]
Harrington “Withdrawal of Treatment
from an Incompetent Patient” (1995) 17 Dublin University Law Journal 120
at 125.
[170]
Costello “The Terminally Ill – The
Law’s Concerns” (1986) 21 Irish Jurist 35 at 46.
[171]
(1976) 355 A.2d 647.
[172]
(1976) 355 A.2d 647.
[173]
Capron “Advance Directives” in Kuhse
and Singer (ed) A Companion to Bioethics (Blackwell Publishing
1998) at 264.
[174]
Natural Death Act 1976.
[175]
Gelfand “Living Will Statutes: The
First Decade” (1987) Wisconsin Law Review 737, at 744.
[176]
The first and best-known example was
again in California: the Durable Power of Attorney Health Care Act 1983.
[177]
Indiana is an example of a
state which has enacted such legislation.
[178]
Emanuel and Emanuel “The Medical
Care Directive: A New Comprehensive Care Document” (1989) 261 Journal of
American Medical Association 3288 cited by Brennan J (dissenting) in Cruzan
v Missouri Department of Health (1990) 110 S Ct 2841 at 2875 n.21.
[179]
(1990) 497 US 261.
[180]
Ibid at 278.
[181]
Kennedy and Grubb Medical Law
(3rd ed Butterworths 2000) at 2047.
[182]
Cruzan v Director, Missouri
Department of Health (1990) 497 US 261 at 266-268.
[183]
Gallagher “Advance Directives for
Psychiatric Care: A Theoretical and Practical Overview for Legal Professionals”
(1998) 4 Psychol Pub Pol’y & L 746 at 796.
[184]
Fagerlin and Schneider “The Failure
of the Living Will” (2004) Hastings Centre Report 30.
[185]
Emanuel “Advance Directives for
Medical Care; Reply” (1991) 321 NEJM 1256 cited ibid. In fact, the exact
figure for Americans who have advance directives is uncertain. The Irish
Council for Bioethics report that the US figures vary from approximately 20% to
25%, citing the following literature in support: Hecht and Shiel Advance
Medical Directives (Living Will, Power of Attorney and Heath Care Proxy). Available
at http://www.medicinenet.com/advance_medical_directives/article.htm;
Crane Wittink and Doukas “Respecting End-of-Life Treatment Preferences 72(7) American
Family Physician 1263; and The President’s Council on Bioethics Taking
Care – Ethical Caregiving in Our Aging Society (Washington DC 2005) at 71.
[186]
Holley et al “Factors Influencing
Dialysis Patients’ Completion of Advance Directives” (1997) 30(3) American
Journal of Kidney Diseases 356-360 cited in Fagerlin and Schneider “The
Failure of the Living Will” (2004) Hastings Centre Report 30 fn 33 at
32.
[187]
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.
[188]
Fagerlin and Schneider, “The Failure
of the Living Will” (2004) Hastings Centre Report 30 fn 33 at 39.
[189]
Ibid at 33.
[190]
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.
[191]
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.
[192]
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.
[194]
[1992] All ER 649 at 652-653.
[195]
Ibid at 664.
[196]
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.
[197]
[1993] 1 All ER 821 at 860 per Lord Keith.
[198]
[1993] 1 All ER 821 at 866b-e per Lord Goff.
[199]
Kennedy and Grubb Medical Law
(3rd ed Butterworths 2000) at 2036.
[200]
[1994] 1 WLR 290.
[201]
[2001] 1 FLR 129.
[202]
Ibid at 136.
[203]
Schlyter Advance Directives and
AIDS (Centre of Medical Law and Ethics, Kings College London 1992) at
66-67.
[204]
House of Lords Select Committee on
Medical Ethics (HL Paper 21-I 1994) at paragraph 264.
[205]
Ibid at paragraph 265.
[207]
Ibid at 878.
[208]
The Law Commission for England and
Wales Mentally Incapacitated Adults and Decision-Making: An Overview
Consultation Paper (No 119 1991) at paragraph 3.37.
[209]
The Law Commission for England and
Wales Report on Mental Incapacity (No 231 1995) at paragraph 5.3.
[210]
Lord Chancellor’s Department Who
Decides? Making Decisions on Behalf of Mentally Incapacitated Adults Cm
3808 (1997); Lord Chancellor’s Department Making Decisions: The Government’s
Proposals for Making Decisions on Behalf of Mentally Incapacitated Adults
Cm 4465 (1999).
[211]
Overview of the Mental Incapacity
Bill (Department for Constitutional Affairs 2003). Available at http://www.lcd.gov.uk/menincap/overview.htm
at 3-7.
[212]
Mental Capacity Act 2005
– Code of Practice. Available at www.justice.gov.uk/guidance/mca-code-of-practice.htm.
See chapter 9 in relation to advance decisions.
[213]
Law Commission of England and Wales Report
on Mental Incapacity (No 231 1995) at paragraph 5.39. Section 42(1)(g) of the Mental Capacity Act
2005 states that a code of practice must be prepared and issued with respect
to advance decisions.
[214]
Section 42(5) of the Mental
Capacity Act 2005.
[215]
Medical Treatment Act 1988
(Vic); Powers of Attorney Act 1988 (Qld); Consent to Medical
Treatment and Palliative Care Act 1995 (SA); Medical Treatment Act 1994 (ACT);
Natural Death Act 1988 (NT).
[216]
In New South Wales, legislation
governing the completion of advance directives does not exist. However, the New
South Wales Department of Health developed a document entitled ‘Using Advance
Care Directives’ in 2004, which is designed to provide advice to health
professionals. Available at http://www.health.nsw.gov.au/pubs/2004/adcaredirectives.html.
In Tasmania, a private member’s Bill, Directions for Medical Treatment Bill,
was introduced into the Tasmanian Parliament in 2005. However, the Bill was not
passed at the second reading speech stage on 21 June 2005 and therefore lapsed.
In Western Australia, the Acts Amendment (Advance Health Care Planning) Bill
2006 (WA) has been read for the second time in the Legislative Council on 6
December 2006. See Willmott “Advance Directives to Withhold Life-Sustaining
Medical Treatment: Eroding Autonomy Through Statutory Reform” (2007) 10(2) Flinders
Journal of Law Reform 287 at fn 8.
[217]
Section 109 of the Powers of
Attorney Act 1998 (Qld).
[218]
White and Willmott “Rethinking
Life-Sustaining Measures: Questions for Queensland” (February 2005). Available
at www.eprints.qut.edu.au/archive/00007093/
[219]
Re MB (medical treatment) [1997] 2 FLR 426 at 432 per Butler-Sloss LJ.
[220]
Re C (adult: refusal of medical
treatment) [1994] 1 All ER 819.
[221]
Queensland Law Reform Commission Assisted
and Substituted Decisions: Decision-Making By and For People with a
Decision-Making Disability (Report No 49 1996 Vol 1). The Powers
of Attorney Act 1998 is largely based on recommendations made by the
Queensland Law Reform Commission.
[222]
White and Willmott “Rethinking Life-Sustaining Measures: Questions for
Queensland” (February 2005) at 26. Available at
www.eprints.qut.edu.au/archive/00007093/
[223]
Queensland Law Reform Commission Assisted
and Substituted Decisions: Decision-Making By and For People with a
Decision-Making Disability (Report No 49 1996 Vol 1).
[224]
The Law Reform Commission of Hong
Kong Report on Substitute Decision-Making and Advance Directives in Relation
to Medical Treatment August 2006 at http://www.hkreform.gov.hk
[225]
Ibid at paragraph 8.36.
[226]
The Law Reform Commission of Hong
Kong Report on Substitute Decision-Making and Advance Directives in Relation
to Medical Treatment August 2006 at http://www.hkreform.gov.hk.
[227]
Ibid, recommendation 1 at
paragraph 8.40
[228]
Wicks “Refusal of Medical Treatment
and ECHR” (2001) 9 Medical Law Review 17.
[229]
Denmark, Norway, Sweden and the
Netherlands v Greece (1969) 12 YB 1 at 186.
[230]
Herczegfalvy v Austria
(1992) Series A No 244 at paragraph 82.
[231]
NHS Trust A v M; NHS Trust B v H
[2001] 1 All ER 801 at 814 per Butler-Sloss P.
[232]
R (on the application of Burke) v
General Medical Council [2004] EWHC 1879 (Admin).
[233]
Ibid at paragraph 149-150.
[234]
R (Burke) v GMC [2005] EWCA Civ 1003; [2005] 2 FLR 1223 at
paragraph 37.
[235]
Pretty v United Kingdom (2002) 35 EHRR 1 at paragraph 63.
[236]
Re T (adult: refusal of medical
treatment) [1992] 4 All ER 649 at 661 per Lord
Donaldson MR.
[237]
Grubb “Competent Adult Patient: Right to
Refuse Life-Sustaining Treatment” (2002) 10 Medical Law Review 201 at
203.
[238]
The Council of Europe agreed the Convention
on Human Rights and Biomedicine, also known as the Oviedo Convention, on
April 4 1997, and it entered into force on December 1, 1999. See Nys et al
“Patient Rights in EU Member States After the Ratification of the Convention on
Human Rights and Biomedicine” (2007) 83 Health Policy 223.
[239]
Nys “Physician Involvement in a Patient’s
Death: A Continental European Perspective” (1999) 7(2) Medical Law Review 208.
[240]
Manitoba Law Reform Commission Report
on Withholding or Withdrawing Life-Sustaining Medical Treatment (No 109
2003).
[241]
Manitoba Law Reform Commission Report
on Withholding or Withdrawing Life-Sustaining Medical Treatment (No 109
2003) at 108.
[242]
Manitoba Law Reform Commission Report
on Withholding or Withdrawing Life-Sustaining Medical Treatment (No 109
2003) at 108.
[243]
[1996] IR 79
[244]
[1996] 2 IR 79 at 160.
[245]
[2006] I.E.H.C. 392; [2008] ILRM 68.
[246]
Power “Bioethics and the Middle of Life”
(2007) 12(6) Bar Review 212 at 214.
[247]
Sheikh “Medico-Legal Issues and Patient
Autonomy – Here Yesterday Gone Tomorrow?” (2006) 12(2) Medico-Legal Journal
of Ireland 54. See also Hayes “Religious Objections to Blood Transfusions”
(2008) Jan/Feb Law Society of Ireland Gazette 20. For an interesting
perspective on the compatibility of advance care directives with Islamic
teachings see Khan “Religious Teachings and Reflections on Advance Directives –
Religious Values and Legal Dilemmas in Bioethics: An Islamic Perspective”
(2002) 30 Fordham Urban Law Journal 267.
[248]
Power “Bioethics and the Middle of Life”
(2007) Bar Review 212 at 214.
[250]
Fitzpatrick v FK [2008] IEHC 104 High Court (Laffoy J) 25
April 2008.
[251]
See paragraphs 3.25-3.29 below.
[252]
[2001] 3 IR 622. See Arthur “North
Western Health Board v HW and CW – Reformulating Irish Family Law” (2002) 3
ILT 39 who recommends that parents should not enjoy absolute power over
children, but rather have a ‘parental responsibility’ of raising the child to
moral, physical and emotional health; Martin “Parental Rights to Withhold
Consent to Medical Treatment for Their Child: A Conflict of Rights?” (2001) 7
ILT 114 who discusses the High Court judgment of McCracken J; and Mills
“Constitutional Law – PKU: Please Keep Unclear” (2001) 8(1) DULJ 180 who notes
that the position of the mature minor still needs to be addressed.
[253]
A view with which Murphy J declared
himself “impatient”: [2001] 3 IR 622 at 731.
[254]
[2001] 3 IR 622 at 724.
[255]
Ibid at 727.
[256]
Ibid.
[257]
The Irish Times 25 April 2008.
[258]
Ibid
[259]
(1944) 321 US 158.
[260]
Ibid at 170. See Diaz “Refusal of
Medical Treatment Based on Religious Beliefs: Jehovah’s Witness Parents” (2007)
16 Journal of Contemporary Legal Issues 85.
[261]
[1993] 2 FLR 757.
[262]
Ibid at 761.
[263]
Bridge “Religion Culture and Conviction –
The Medical Treatment of Young Children” (1999) Child and Family Law
Quarterly 1.
[264]
Per O’Higgins CJ in G v An Bord
Uchtála [1980] 1 IR 32 at 55-56
[266]
Ibid at 504
[267]
Ibid at 498.
[268]
Mental Capacity Act 2005 – Code of
Practice at paragraph 9.13.
[270]
(2004) unreported. See Burns “Bad Blood”
(2007) New Law Journal 1722 at 1723.
[271]
(1990) 67 DLR (4th) 321.
[272]
(1990) 67 DLR (4th) 321 at 47.
[273]
(1993) Series A, No 106, paragraph 50.
[274]
Wicks “The right to refuse medical
treatment under the European Convention on Human Rights” (2001) 9 Medical
Law Review 17 at 30.
[275]
Ibid at 31.
[276]
Kirby “Informed Consent:
what does it mean?” (1983) 9(2) Journal of Medical Ethics 69.
[277]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) at
paragraph 7.08.
[278]
Irish Medical Council A
Guide to Ethical Conduct and Behaviour (6th ed 2004) at
paragraph 17.1.
[279]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005) at
paragraph 7.05.
[281]
Ibid at 663.
[282]
Willmott, White and
Howard “Refusing Advance Refusals: Advance Directives and Life-Sustaining
Treatment” (2006) 30 Melbourne University Law Review 211, at 221.
[283]
[1997] 2 Fam Law R 426.
[284]
Ibid at 432.
[285]
Standing Committee A ‘Mental
Capacity Bill: Advance Decisions to Refuse Treatment: General’ Hansard 28
October 2004 Column No 199 at column 202.
[286]
Mental Capacity Act 2005 - Code
of Practice, at paragraph 9.14. Available at
http://www.justice.gov.uk/guidance/mca-code-of-practice.htm.
[287]
Mental Capacity Act 2005 – Code of Practice at paragraph 9.27.
[288]
Included as an appendix to The Joint
Committee on Human Rights 15th Report of Session 2004-05
(2005). Available at http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/97/9702.htm.
[289]
Maclean “Advance Directives and the
Rocky Waters of Anticipatory Decision-Making” (2008) 16(1) Medical Law Review
1 at 15.
[290]
Grubb “United Kingdom” [1993] 1(1) Medical
Law Review 84 at 87.
[291]
[2005] 1 WLR 834.
[292]
[2005] 1 WLR 834 at 839-840.
[293]
[2003] 2 FLR 408.
[294]
Ibid at paragraph 24.
[295]
British Medical Association “Advance
Statements about Medical Treatment – Code of Practice” (2000) at 6. Available
at http://www.bma.org.uk/ap.nsf/content/codeofpractice.
[296]
Is it Time for Advance Healthcare
Directives? (The Irish Council for Bioethics 2007) at 23.
[297]
Dresser “Precommitment: A Misguided
Strategy for Securing Death With Dignity” (2003) 81 Texas Law Review
1823.
[298]
Forrow et al “Advance Directives for
Medical Care” (1991) 325 New England Journal of Medicine 1255 1255 cited
in Dresser ibid at 1834.
[299]
Brett “Limitations of Listing
Specific Medical Interventions in Advance Directives” (1991) 266 JAMA 825, 827
cited in Dresser “Precommitment: A Misguided Strategy for Securing Death With
Dignity” (2003) 81 Texas Law Review 1823 at 1834.
[300]
Ibid.
[301]
Schlyter Advance Directives and
AIDS (Centre of Medical Law and Ethics King’s College London 1992) at 55.
[302]
Ibid.
[304]
Ibid at 661.
[305]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 82-2006) at paragraph 3.32.
[306]
Re C (adult: refusal of medical
treatment) [1994] 1 All ER 819 (Fam Div) at 824 per Thorpe J; Re MB (an
adult) (medical treatment) [1997] 2 FLR 426 (CA) at 437 per
Butler-Sloss LJ. See also section 1(2) of the English Mental Capacity Act
2005.
[307]
[2008] IEHC 104 High Court (Laffoy J) 25
April 2008.
[308]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006) at paragraph 2.39.
[309]
Michalowski “Advance Refusals of
Life-Sustaining Medical Treatment: The Relativity of an Absolute Right” (2005)
68(6) Modern Law Review 958 at 964.
[310]
(1990) 67 DLR (4th) 321.
[311]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.8.
[312]
Morgan “Odysseus and the Binding
Directive: Only a Cautionary Tale?” (1994) 14 Legal Studies 411 at 427.
[313]
[1994] 1 All ER 819.
[314]
Ibid at 824.
[315]
[2002] 2 All ER 449. See also Morgan
and Veitch “Being Ms B: B, Autonomy and the Nature of Legal Regulation” (2004)
26 Sydney Law Review 107 who argue that there are a number of problems
associated with this legal attempt to distinguish between mental capacity and
autonomy.
[316]
[2002] 2 All ER 449 at 474.
[317]
Ibid at 472.
[319]
Section 24(1) of the Mental
Capacity Act 2005.
[320]
Mental Capacity Act 2005 – Code
of Practice at paragraph 9.7.
[321]
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 2008, published in September
2008l proposes to implement these recommendations.
[322]
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.
[323]
Ibid at paragraph 3.35.
[324]
[2008] IEHC 104 High Court (Laffoy J) 25
April 2008.
[325]
Laffoy J concluded that no issue as
to the voluntariness of Ms K’s blood transfusion had arisen.
[326]
Citing Lord Donaldson in Re
T (refusal of medical treatment) [1992] 4 All ER 649.
[327]
[1996] 2 IR 79.
[328]
Irish Medical Council A Guide to
Ethical Conduct and Behaviour (6th ed 2004) at paragraph 17.1.
[329]
Willmott “Advance Directives to
Withhold Life-Sustaining Medical Treatment: Eroding Autonomy Through Statutory
Reform” (2007) 10(2) Flinders Journal of Law Reform 287 at 291.
[330]
Section 44(6) of the Powers of
Attorney Act 1998 (Qld).
[331]
Law Reform Commission Report on
Vulnerable Adults and the Law (LRC 83-2006) at paragraph 3.35. 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.
[332]
Ibid at 2.39.
[333]
Section 2(1) of the Age of
Majority Act 1985. See also Tomkin and Hanafin Irish Medical Law (Round
Hall Press 1995) at 37-44.
[334]
Donnelly Consent: Bridging the
Gap between Doctor and Patient (Cork University Press 2002) at 48.
[335]
Mc Mahon and Binchy Law of Torts
(3rd ed Butterworths 2000) at paragraph 22.81.
[336]
Donnelly Consent: Bridging the
Gap between Doctor and Patient (Cork University Press 2002) at 50.
[337]
[1986] AC 112. See Donnelly “Capacity of
Minors to Consent to Medical and Contraceptive Treatment” (1995) 1 Medico-Legal
Journal of Ireland 18; Laurie “The Autonomy of Others: Reflections on the
Rise and Rise and Rise of Patient Choice in Contemporary Medical Law” in McLean
(ed) First Do No Harm (Ashgate 2006) 131 at 137-142. For a
thorough discussion on the age of maturity in general, see Madden Medicine,
Ethics & the Law (Tottel Publishing 2002) at paragraphs 10.114-10.176.
[338]
[1986] AC 112 at 188 per Lord Scarman.
[339]
Mason and Laurie Mason and McCall
Smith’s Law and Medical Ethics (7th ed Oxford University Press
2006) at paragraph 10.27.
[340]
See Elliston “If You Know What’s Good for
You: Refusal of Consent to Medical Treatment by Children” in McLean (ed) Contemporary
Issues in Law, Medicine and Ethics (Dartmouth 1996) 29 at 49-51.
[341]
[1991] 4 All ER 177.
[342]
Lord Donaldson MR, Staughton LJ,
Farquharson LJ.
[343]
Re R (a minor) (wardship: medical
treatment) [1991] 4 All ER 177 at 186.
[344]
[1992] 4 All ER 627.
[345]
Kennedy and Grubb Medical Law
(3rd ed Butterworths 2000) at 975.
[346]
Re W (a minor) (medical treatment) [1992] 4 All ER 627at 643 per
Balcombe LJ.
[347]
Ibid.
[348]
Elliston “If You Know What’s Good
for You: Refusal of Consent to Medical Treatment by Children” in McLean (ed) Contemporary
Issues in Law, Medicine and Ethics (Dartmouth 1996) 29 at 34 citing Norrie
“”The Age of Legal Capacity (Scotland) Act 1991” (1991) 36 Journal of the
Law Society of Scotland 111. See also Derish and Vanden Heuvel “Mature
Minors Should Have the Right to Refuse Life-Sustaining Medical Treatment”
(2000) 28 Journal of Law, Medicine and Ethics 109.
[349]
Elliston “If You Know What’s Good
for You: Refusal of Consent to Medical Treatment by Children” in McLean (ed) Contemporary
Issues in Law, Medicine and Ethics (Dartmouth 1996) 29 at 34 citing Mason
and McCall Smith Law and Medical Ethics (4th ed London: Butterworths
1994) at 229.
[350]
Mason and Laurie Mason and McCall
Smith’s Law and Medical Ethics (7th ed Oxford University Press
2006) at paragraph 10.52.
[351]
Section 24(1) of the Mental
Capacity Act 2005.
[352]
Section 1 of §26 of the Health
Act 2005.
[353]
Section 5(1) of the Personal
Directives Act, S.A. 1996 c. P-4.03.
[354]
Section 2(1)(c) of The Health
Care Directives and Substitute Health Care Decision Makers Act, S.S. 1997,
c. H-.001; section 5 of the Health Care Directives Act, C.C.S.M. 1993,
c. H-27.
[355]
Section 3 of the Advance Medical
Directive Act 1996 (Singapore).
[357]
Ibid.
[358]
Mills Clinical
Practice and the Law (2nd ed Tottel Publishing, 2007) at
paragraph 12.35
[359]
[2005] 1 WLR 834.
[360]
Ibid at 834.
[361]
Ibid at 840.
[362]
Montgomery “Power Over
Death: The Final Sting” in Lee and Morgan (eds) Death Rites: Law and
Ethics and the End of Life (Routledge 1994) 37 at 43.
[363]
Montgomery “Power Over
Death: The Final Sting” in Lee and Morgan (eds) Death Rites: Law and
Ethics and the End of Life (Routledge 1994) 37 at 43.
[364]
Kutner “Due Process of
Euthanasia: The Living Will, A Proposal” (1969) 44 Indiana Law Journal
539 at 551.
[365]
The Law Commission for England and
Wales Consultation Paper on Mentally Incapacitated Adults and
Decision-Making, Medical Treatment and Research (No 129 1993) at paragraph
5.29.
[366]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.22
[367]
Ibid at paragraph 9.23
[368]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.23.
[369]
Mental Capacity Act 2005 – Code
of Practice at paragraph 9.19.
[370]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005, 2nd ed. (Oxford, 2008) at
paragraph 3.116.
[371]
Ibid.
[372]
For example, Maryland: MD Code Ann
Health-Gen § 5-602d (West 2004).
[373]
Section 7 (2) Medical Treatment
(Health Directions) Act 2006 (ACT).
[374]
Ibid at Section 9 (1).
[375]
Section 4(1) of the Mental
Capacity Act 2005.
[376]
See paragraphs 4.38-4.62 below.
[377]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph
3.26.
[378]
Section 36(2)(a) of the
Powers of Attorney Act 1998 (Qld).
[379]
Section 36(2)(c) of the Powers of
Attorney Act 1998 (Qld).
[380]
Section 36(2)(b) of the Powers of
Attorney Act 1998 (Qld).
[381]
Power, “Bioethics and the End of
Life” (2008) Bar Review 19 at 21.
[382]
Power, “Bioethics and the End of
Life” (2008) Bar Review 19 at 22.
[383]
[1996] IR 79.
[384]
Ibid at 144.
[385]
Ibid at 126.
[386]
Ibid at 128.
[387]
Law Commission of England and Wales
Report on Mental Incapacity (No 231 1995) at paragraph 5.30.
[388]
Section 25(5) of the Mental
Capacity Act 2005.
[389]
Section 7(b) of the Medical
Treatment Act 1994 (ACT); section 4(1) of the Natural Death Act 1988
(NT); regulation 2 of the Natural Death Regulations 1989 (NT); section
44(3)(a)(i) of the Powers of Attorney Act 1998 (Qld); section 7(2) of
the Consent to Medical Treatment and Palliative Care Act 1995 (SA);
schedule 1 of the Consent to Medical Treatment and Palliative Care
Regulations 2004 (SA); section 5(2) schedule 1 of the Medical Treatment
Act 1988 (Vic).
[390]
Section 7(2)(c)-(d) schedule 1 form
1 of the Medical Treatment Act 1994 (ACT); section 4(2) of the Natural
Death Act 1988 (NT); regulation 2 of the Natural Death Regulations 1989 (NT).
[391]
Section 44(4)(b) of the Powers of
Attorney Act 1998 (Qld); section 7(2) of the Consent to Medical
Treatment and Palliative Care Act 1995 (SA); schedule 1 of the Consent
to Medical Treatment and Palliative Care Regulations 2004 (SA); section
5(1) of the Medical Treatment Act 1988 (Vic).
[392]
Kings’ College London The Living
Will: Consent to Treatment at the End of Life (Working Party Report, Age
Concern and Centre of Medical Law and Ethics 1988).
[393]
ND Cent Code § 23-06.5-05 (2005)
[394]
Kusmin “Swing Low, Sweet Chariot: Abandoning the Disinterested Witness
Requirement for Advance Directives” (2006) 32 American Journal of Law,
Medicine & Ethics 93 at 94.
[395]
Ibid at 108.
[396]
Cited in Kusmin at 109.
[397]
Hong Kong Law Reform Commission Report
on Substitute Decision-Making and Advance Directives in Relation to Medical
Treatment at 170-172.
[398]
For example, in Ireland, under
section 82(1) of the Succession Act 1965, if a witness attests the
execution of a will and any devise, bequest, estate, interest, gift or
appointment of or affecting any property is given or made by the will to that
person or his spouse, that gift, so far as it concerns the witness or his
spouse, shall be null and void.
[399]
Kusmin “Swing Low, Sweet Chariot:
Abandoning the Disinterested Witness Requirement for Advance Directives” (2006)
32 American Journal of Law, Medicine & Ethics 93 at 107.
[400]
Section 18(1) of the Natural
Death Act 1988 (NT).
[401]
Kings’ College London The
Living Will: Consent to Treatment at the End of Life (Working Party Report,
Age Concern and Centre of Medical Law and Ethics (1988).
[402]
Schlyter Advance Directives and
AIDS (Centre of Medical Law and Ethics Kings College London 1992) at 70.
[403]
Alberta Law Reform Commission Report
on Advance Directives and Substitute Decision Making in Personal Health
Care: A Joint Report of the Alberta Law Reform Institute and the Health Law
Institute (No 64 1993) at 17.
[404]
Irish Council for Bioethics Is it
Time for Advance Care Directives? (2007) Appendix 4.
[405]
[1992] 4 All ER 649 at 653.
[406]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.64.
[407]
Section 26(4) of the Mental
Capacity Act 2005.
[408]
Section 25(2) of the Mental
Capacity Act 2005.
[409]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph
2.106.
[410]
HE v A Hospital Trust [2003] EWHC 1017; [2003] 2 FLR 408.
[411]
Ibid at 415.
[412]
HE v A Hospital Trust [2003] EWHC 1017; [2003] 2 FLR 408 at
422.
[413]
Mc Lean “Advance Directives and the
Rocky Waters of Anticipatory Decision-Making” (2008) 16(1) Medical Law
Review 1.
[414]
Michalowski “Advance Refusal of
Life-Sustaining Medical Treatment: The Relativity of an Absolute Right” (2005)
68(6) Modern Law Review 958 at 971-972.
[415]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph
2.106.
[416]
Section 25(3) of the Mental
Capacity Act 2005.
[417]
Section 25(4) of the Mental
Capacity Act 2005.
[418]
Section 25(4) of the Mental
Capacity Act 2005.
[419]
Section 25(4) of the Mental
Capacity Act 2005.
[420]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.43.
[421]
Bartlett Blackstone’s Guide to
the Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph
2.107.
[422]
[2005] 1 WLR 834.
[423]
Ibid at 839 per Brooke
LJ.
[424]
Ibid at 840 per Brooke
LJ.
[425]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.45.
[426]
Denham J acknowledged not only the right to determine one’s own medical
treatment, but also that the right to life in Article 40.3 encompasses the
concept of the sanctity of life: In re a Ward of Court (No 2)
[1996] 2 IR 79 at 161.
[427]
Munby “Rhetoric and Reality: The
Limitations of Patient Self-Determination in Contemporary English Law” (1998)
14 Journal of Contemporary Health Law and Policy 315 at 328-329;
Willmott, White and Howard “Refusing Advance Refusals: Advance Directives and
Life-Sustaining Medical Treatment” (2006) 30 Melbourne University Law Review
211 at 236; Michalowski “Advance Refusals of Life-Sustaining Medical Treatment:
The Relativity of an Absolute Right” (2005) 68(6) Modern Law Review 958.
[428]
[1992] 4 All ER 649 at 661 per Lord
Donaldson MR.
[429]
See paragraphs below on
liability under the Mental Capacity Act 2005.
[430]
(1990) 67 DLR (4th) 321
at 331-332 per Robins JA
[431]
(1990) 67 DLR (4th) 321
at 326- 337 per Robins JA
[432]
Willmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 237.
[433]
Furrow et al Health Law (vol
2) (1995) at §17-27.
[434]
Rich “The Values History: A New
Standard of Care” (1991) 40 Emory Law Journal 1109 at 1142-3.
[435]
Developed by Aging with Dignity. The
form is available at www.agingwithdignity.org
(accessed June 27, 2008).
[436]
Lochner v New York (1905) 198
US 43.
[437]
Advance Directives Seminar Group
“Advance Directives: Are They an Advance?” Canadian Medical Association
Journal (1992) 146(2) 129.
[438]
Michalowski “Advance Refusals of
Life-Sustaining Medical Treatment: The Relativity of an Absolute Right” (2005)
68(6) Modern Law Review 958 at 967.
[440]
[1992] 4 All ER 649 at 669.
[441]
Willmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 218.
[442]
Schedule 3 of the Powers of
Attorney Act 1988 (Qld).
[443]
Section 19(1)(b) of the Medical
Treatment Act 1994 (ACT).
[444]
Stone “Advance Directives,
Autonomy and Unintended Death” [1994] 8 Bioethics 191.
[445]
Power “Bioethics and the End of
Life” (2008) 13(1) Bar Review 19 at 24.
[446]
[1996] 2 IR 79 at 158.
[447]
House of Lords Select Committee Report
on Medical Ethics (London HMSO 1994) HL Paper 21-I at 265.
[448]
Ibid. Cited in Morgan
“Odysseus and the Binding Directive: Only a Cautionary Tale?” (1994) 14 Legal
Studies 411 at 423.
[449]
Code of Practice – Mental
Capacity Act 2005 at paragraph 9.55.
[450]
Code of Practice – Mental
Capacity Act 2005 at paragraph 9.56.
[451]
Section 121 of the Health Care
(Consent) and Care Facility (Admission) Act RSBC 1996.
[452]
Section 5 of the Health Care
Consent Act SO 1996.
[453]
Clough “A Critique of Advance
Directives and Advance Directives Legislation” (2006) 11 Appeal: Review of
Current Law and Law Reform 16 at 26.
[454]
Kings’ College London The Living
Will: Consent to Treatment at the End of Life (Working Party Report, Age
Concern and Centre of Medical Law and Ethics (1988).
[455]
Gelfand “Living Will Statutes: The First
Decade” (1987) Wisconsin Law Review 737 at 742.
[456]
Law Commission for England and Wales Consultation
Paper on Mentally Incapacitated Adults and Decision-Making: An Overview (No
119 1991) at paragraph 6.9.
[457]
Rich “The Values History: A New Standard
of Care” (1991) 40 Emory Law Journal 1109 at 1114.
[458]
Section 5(1) of the Medical Treatment
Act 1988 (Vic). See Willmott, White and Howard “Refusing Advance Refusals:
Advance Directives and Life-Sustaining Medical Treatment” (2006) Melbourne
University Law Review 7.
[459]
Section 24(3) of the Mental
Capacity Act 2005.
[460]
Section 24(4) and (5) of the Mental
Capacity Act 2005 (unless the decision relates to the refusal of life-sustaining
treatment, in which case section 25(5) applies).
[461]
Mental Capacity Act 2005 - Code
of Practice at paragraph 9.31.
[462]
Ibid.
[463]
Discussed in paragraph 4.41 above.
[464]
EWHC 1017; [2003] 2 FLR 408 at paragraph
37.
[465]
Cantor Advance Directives and the Pursuit
of Death with Dignity (Bloomington: Indiana University Press 1993) at 85.
[466]
McLean “Advance Directives and the Rocky
Waters of Anticipatory Decision-Making” (2008) 16(1) Medical Law Review
1 at 19.
[467]
Kadish “Letting Patients Die: Legal and
Moral Reflections” (1992) 80 California Law Review 857 at 876.
[468]
Olick Taking Advance Directives
Seriously: Prospective Autonomy and Decisions Near the End of Life
(Georgetown University Press Washington DC 2001) at 192.
[469]
Ibid at 193.
[470]
Olick Taking Advance Directives
Seriously: Prospective Autonomy and Decisions Near the End of Life
(Georgetown University Press Washington DC 2001) at fn 2.
[471]
Olick Taking Advance Directives
Seriously: Prospective Autonomy and Decisions Near the End of Life
(Georgetown University Press Washington DC 2001) at 20. Bartlett Blackstone’s
Guide to the Mental Capacity Act 2005 (Oxford University Press 2005) at
paragraph 2.115.
[472]
In re a Ward of Court (No 2) [1996]
2 IR 79 at 169 per Denham J: “Respect is given to the life of the ward. Her
life is no less protected or guarded than any other person’s. Her rights as a
citizen stand.”
[473]
538 NW2d (Mich 1995) 229 cited in
Michalowski “Advance Refusal of Life-Sustaining Medical Treatment: The
Relativity of an Absolute Right” (2005) 68(6) Modern Law Review 958 at
980.
[474]
Section 4(3)(a) of the Natural Death
Act 1988 (NT).
[475]
Section 7(3)(b) of the Consent to
Medical Treatment and Palliative Care Act 1995 (SA).
[476]
Section 12(b) of the Medical Treatment
Act 1994 (ACT).
[477]
[1993] 1 All ER 821 at 866.
[478]
Dresser “Precommitment: A Misguided
Strategy for Securing Death With Dignity” (2003) 81 Texas Law Review
1823 at 1835.
[479]
Mental Capacity Act 2005 - Code of
Practice at paragraph 9.29.
[480]
The New Mental Health Act: A Guide to
Advance Statements (Scottish Executive 2005) at 11.
[481]
Is it Time for Advance Healthcare
Directives? (The Irish Council for Bioethics 2007) at 35.
[482]
Kings’ College London The Living Will: Consent to Treatment at the End of
Life (Working Party Report, Age Concern and Centre of Medical Law and
Ethics (1988) at 59.
[483]
British Medical Association “Advance
Declarations” in Euthanasia (London BMA 1988) chapter 12 at paragraph
234.
[484]
Bartlett Blackstone’s Guide to the
Mental Capacity Act 2005 (Oxford University Press 2005) at paragraph 2.107.
[485]
Kings’ College London The Living Will:
Consent to Treatment at the End of Life (Working Party Report, Age Concern
and Centre of Medical Law and Ethics (1988) at page 59.
[486]
Mental Capacity Act 2005 - Code of
Practice at paragraph 9.29.
[487]
Ibid at paragraphs 9.29 and
9.51.
[488]
Fagerlin and Schneider “Enough: the
Failure of the Living Will” (2004) 34(2) Hastings Centre Report 30 at
35.
[489]
Clough “A Critique of Advance Directives
and Advance Directives Legislation” (2006) 11 Appeal: Review of Current Law
and Law Reform 16 at 31.
[490]
Morrison et al “The Inaccessibility of
Advance Directives on Transfer from Ambulatory to Acute Care Settings” (1995)
274(6) JAMA 478.
[491]
Danis et al “A Prospective Study of the
Impact of Patient Preferences on Life-Sustaining Treatment and Hospital Cost”
(1996) 24(11) Critical Care Medicine 1811-17.
[492]
Capron “Advance Directives” in Kuhse &
Sieger (ed) A Companion to Bioethics (Blackwell Publishing 1998)
at 270.
[493]
Mental Capacity Act 2005 - Code of
Practice at paragraph 9.38.
[494]
Ibid at paragraph 9.38.
[495]
Kutner “Due Process of Euthanasia: The
Living Will, A Proposal” (1969) 44 Indiana Law Journal 539 at 551.
[497]
Section 4 of §26 of the Health Act
2005. The registration procedure currently costs about €7. See Nys et al
“Patients Rights in the EU: Denmark” European Ethical – Legal Papers N° 2
(2007). Available at www. http://www.orpha.net/actor/EuropaNews/2007/doc/denmarkbk.pdf.
[498]
Section 5(1) of the Advance Medical
Directive Act 1996 (Singapore).
[499]
Section 5(3) of the Advance Medical Directive
Act 1996 (Singapore).
[500]
Law Reform Commission Report
on Homicide: Murder and Involuntary Manslaughter (LRC 87-2008) at
paragraphs 4.30-4.59 and paragraph 6.12.
[502]
[1993] 1 All ER 821 at 890 per Lord
Mustill.
[503]
R v Stone and
Dobinson [1977] QB 358.
[504]
Costello “The Terminally
Ill – The Law’s Concerns” (1986) Irish Jurist 35 at 44.
[505]
Airedale NHS Trust v
Bland [1993] 1 All ER 821 at 867, Lord Goff citing
Williams Textbook of Criminal Law (2nd ed 1983) at 282. He
continued at 867-868: “It is
true that it may be difficult to describe what the doctor actually does as an
omission, for example where he takes some positive steps to bring the life
support to an end. But discontinuance of life support is, for present purposes,
no different from initiating life support in the first place. In each case, the
doctor is simply allowing his patient to die in the sense that he is desisting
from taking a step which might, in certain circumstances, prevent his patient
from dying as a result of his pre-existing condition; and as a matter of
general principle an omission such as this will not be unlawful unless it
constitutes a breach of duty to the patient.”
[506]
McAuley and McCutcheon Criminal
Liability (Round Hall Sweet & Maxwell 2000) at 183 fn 27.
[507]
[1996] 2 IR 79 at 120.
[508]
Ibid at 130
(emphasis added).
[509]
Ibid at 136.
[510]
Feenan “Death, Dying and the Law”
(1996) 14 ILT 90 at 93.
[511]
Airedale NHS Trust v Bland [1993] 1 All ER 821 at 867 Lord Goff.
[512]
Madden Medicine Ethics
& the Law (Tottel Publishing 2002) at 510 fn 75.
[513]
See Charleton, McDermott and Bolger Criminal
Law (Butterworths 1999) at paragraph 15.29. The Commission has previously observed that the
law is not settled in Ireland in relation to the ambit of the doctrine of
necessity, in particular, the circumstances which will create the requisite
‘necessity to act’, and what such necessity to act entails: see Law Reform Commission
Consultation Paper on Vulnerable Adults and the Law: Capacity
(LRC CP 37-2005) at paragraphs 7.38-7.51.
[514]
Charleton, McDermott and Bolger Criminal
Law (Butterworths 1999) at paragraph 15.27.
[515]
[1996] 2 IR 79.
[516]
Ibid at 156.
[517]
[1989] 2 All ER 545.
[518]
[1989] 2 All ER 545 at 565.
[519]
Law Reform Commission Consultation
Paper on Vulnerable Adults and the Law: Capacity (LRC CP 37-2005).
[520]
Ibid at paragraph 7.43.
[521]
Law Commission of England and Wales Report
on Mental Capacity (No 231 1995) at paragraph 5.38.
[522]
See Kennedy and Grubb Medical Law
(3rd ed Butterworths 2000) at 272-277; Mills Clinical
Practice and the Law (2nd ed Tottel Publishing 2007) at
paragraphs 3.42-3.61; Tomkin and Hanafin Irish Medical Law (Round Hall
Press Dublin 1995) at 64-66.
[523]
Dunne v National Maternity
Hospital [1989] IR 91 AT 108-110.
[524]
Donohue “’Wrongful Living’: Recovery
for a Physician’s Infringement on an Individual’s Right to Die” (1997-1998) 14 Journal
of Contemporary Health Law and Policy 391 at 394.
[525]
(1997) 699 NE 2d 560.
[526]
Bruni v Tatsumi (1997) 346 NE
2d 673.
[527]
(1990) 497 US 261 as discussed in
paragraph 2.24, above.
[528]
Tyminski “The Current State of
Advance Directive Law in Ohio: More Protective of Provider Liability than
Patient Rights” (2004-2005) 19 Journal of Law and Health 411 at 431.
[529]
Donohue “’Wrongful Living’: Recovery for a Physician’s Infringement on an
Individual’s Right to Die” (1997-1998) 14 Journal of Contemporary Health Law
and Policy 391 at 403.
[530]
(1996) 671 NE 225.
[531]
See paragraph 5.20.
[532]
See paragraph 5.26.
[533]
(1996) 671 NE 225 at 228.
[534]
Donohue “’Wrongful Living’: Recovery
for a Physician’s Infringement on an Individual’s Right to Die” (1997-1998) 14 Journal
of Contemporary Health Law and Policy 391 at 410-411.
[535]
See Mc Mahon and Binchy Law of
Torts (3rd ed Butterworths 2000) at paragraphs 22.11 – 22.19.
Battery has been described colloquially as “assault” in a number of judgments.
For example, see Walsh v Family Planning Services [1992] 1 IR 496 per O’Flaherty J.
[536]
Leame v Bray (1803) 3 East
593 at 603.
[537]
[1996] IR 79.
[538]
McMahon and Binchy Law of Torts
(3rd ed Butterworths 2000) at paragraph 22.13.
[539]
[1996] 2 IR 79.
[540]
Ibid at 156.
[541]
(1984) 469, 1052 NE2d.
[542]
(1984) 469, 1052 NE2d at 1047.
[543]
(1996) 671 NE 225, 229.
[544]
[2002] EWHC 429. See paragraph 3.21.
[545]
Ibid at 473.
[546]
Ibid at 473.
[547]
Michalowski “Trial and Error at the
End of Life – No Harm Done?” (2007) 27(2) Oxford Journal of Legal Studies
257 at 265.
[548]
(1990) 67 DLR (4th) 321.
[549]
(1990) 67 DLR (4th) 321
at 330.
[550]
Meisel The Right to Die (2nd
ed New York: Wiley Law Publications 1995) at 401 cited in Donohue “’Wrongful
Living’: Recovery for a Physician’s Infringement on an Individual’s Right to
Die” (1997-1998) 14 Journal of Contemporary Health Law and Policy 391 at
394. See also Strasser “A Jurisprudence in Disarray: On Battery, Wrongful
Living and the Right to Bodily Integrity” 36 (1999) San Diego Law Review
997; Peters “The Illusion of Autonomy at the End of Life: Unconsented Life
Support and the Wrongful Life Analogy” (1998) 45 UCLA Law Review 673;
Milani “Better off Dead than Disabled? Should Courts Recognise a ‘Wrongful
Living’ Cause of Action When Doctors Fail to Honour Patients’ Advance
Directives?” 54 (1997) Washington and Lee Law Review 149; Oddi “The Tort
of Interference with the Right to Die: The Wrongful Living Cause of Action”
(1986) 75 Georgetown Law Journal 625.
[551]
A wrongful living cause of action
should be distinguished from a wrongful life cause of action. The latter
involves a claim by a child that they would not be living but for someone
else’s fault. See Morris and Santier “To Be or Not To Be: Is That The
Question? Wrongful Life and Misconceptions” (2003) 11 Medical Law Review
167.
[552]
Oddi “The Tort of Interference with
the Right to Die: The Wrongful Living Cause of Action” (1986) 75 Georgetown
Law Journal 625 at 661.
[553]
Donohue “’Wrongful Living’:
Recovery for a Physician’s Infringement on an Individual’s Right to Die”
(1997-1998) 14 Journal of Contemporary Health Law and Policy 391 at 399.
[554]
(1990) 497 US261.
[555]
(1996) 971 NE 225.
[556]
Ibid at 228.
[557]
(1996) 671 NE 225 at, 228 quoting Johnson
v University Hospital of Cleveland (1989) 540 NE2d 1370 at 1378.
[558]
(1996) 671 NE 225, 228
quoting Bowman v Davis (1976) 356 NE 2d 496 at 499 n3.
[559]
513 A2d 341 (NH 1986).
[560]
513 A2d 341, 353 (NH 1986) cited in
Milani “Better off Dead than Disabled? Should Courts Recognise a ‘Wrongful
Living’ Cause of Action When Doctors Fail to Honour Patients’ Advance
Directives?” (1997) 54 Washington and Lee Law Review 149 at 219.
[561]
Pedrick “Dignified Death and the Law
of Torts” (1991) 28 San Diego Law Review 387 at 396.
[562]
See paragraphs 5.15 and 5.20 on
negligence and battery above.
[563]
Morris and Saintier, “To Be or Not
to Be: Is That The Question? Wrongful Life and Misconceptions” (2003) 11 Medical
Law Review 167 at 167.
[564]
[1982] 2 All ER 771.
[565]
Ibid at 781.
[566]
Ibid at 782.
[567]
Ibid.
[568]
Law Commission Report on Injuries
to Unborn Children No 60 HMSO 1974 cmnd 5709 at 34.
[569]
Ibid.
[570]
(1982) 182 Cal Rptr 337.
[571]
Ibid.
[572]
Ibid.
[573]
See Mc Mahon and Binchy at
paragraphs 22.28-22.34.
[574]
[1897] 2 QB 57.
[575]
Ibid at 58-59 per Wright J.
[576]
Restatement, Second, On Torts
(American Law Insitute,1964) at 846.
[577]
Perkins v Lavin (1994) 648 NE
2d 840.
[578]
Tyminski “The Current State of
Advance Directive Law” (2004-2005)19 Journal of Law and Health 411 at
439 citing Anderson v St Francis Hospital (1996) 671 NE 2d 225 at 229
and Roelen v Akron Beacon Journal (2002) 199 F Supp 2d 685.
[579]
Tyminski “The Current State of
Advance Directive Law” (2004-2005)19 Journal of Law and Health 411 at
441.
[580]
McMahon and Binchy Law of Torts
(3rd ed Butterworths 2000) at paragraph 44.03 citing O’Keefe v
Kulcullen High Court (O’Sullivan J) 24 June 1998: “Nominal damages means a
sum of money that may be spoken of but has no existence in point of quantity,
the purposes of such damages being twofold, namely, either to assert a right or
as a ‘peg’ on which to hang an order for costs.”
[582]
Michalowski “Trial and Error
at the End of Life – No Harm Done?” (2007) 27(2) Oxford Journal of Legal
Studies 257 at 265.
[583]
(1990) 67 DLR (4th) 321.
See the discussion at paragraph 5.24 above. See Michalowski “Trial and Error at
the End of Life – No Harm Done?” (2007) 27(2) Oxford Journal of Legal
Studies 257 at 266.
[585]
[1992] 4 All ER 649at 665 per Butler-Sloss
LJ.
[586]
Ibid at 669 per Staughton LJ.
[587]
Donohue “’Wrongful Living’: Recovery
for a Physician’s Infringement on an Individual’s Right to Die” (1997-1998) 14 Journal
of Contemporary Health Law and Policy 391 at 413.
[588]
478 A 2d 755 (NJ 1984).
[589]
Ibid at 763.
[590]
Donohue “’Wrongful Living’:
Recovery for a Physician’s Infringement on an Individual’s Right to Die”
(1997-1998) 14 Journal of Contemporary Health Law and Policy 391 at
415-416.
[591]
See Hogan and Whyte JM Kelly: The
Irish Constitution (4th ed LexisNexis Butterworths 2003) at
paragraphs 7.1.101-7.1.108; McMahon and Binchy Law of Torts (3rd
ed Butterworths 2000) at paragraphs 1.09-1.83.
[592]
[1961] IR 323.
[593]
Ibid at 343.
[594]
Sometimes referred to as a
‘constitutional tort’.
[595]
[1973] IR 121.
[596]
Ibid at 133.
[597]
[1996] 2 IR 79 citing The People
(DPP) v JT (1988) 3 Frewen 141 in support.
[599]
[1997] 2 IR 141 at 164.
[600]
Ibid at 165. Costello P did accept,
obiter, that where the existing law did not adequately protect the
guaranteed right, then the law would be applied without the provision, which would
be rendered invalid by the Constitution.
[601]
[1973] IR 121.
[602]
[1986] IR 116.
[603]
[1986] IR 228.
[604]
[1987] IR 587.
[605]
[1995] 1 ILRM 12.
[606]
(1996) 671 NE 225.
[607]
(1996) 671 NE 225 at 227.
[608]
Michalowski “Trial and Error at the End of
Life – No Harm Done?” (2007) 27(2) Oxford Journal of Legal Studies 257
at 280.
[609]
For the position under the Medical
Practitioners Act 1978 which the 2007 Act repealed see Kennedy “How the
Medical Council Sanctions Doctors – Part V of the Medical Practitioners Act
1978” 11(2) Medico-Legal Journal of Ireland 63 at 68. See also Mills Clinical
Practice and the Law (2nd ed Tottel Publishing 2007) at
paragraphs 2.37-2.65; Kelly and O’Shea “The Medical Practitioner’s Act 2007 –
An Overview” (2007) 13(2) Medico-Legal Journal of Ireland 63.
[610]
High Court (Keane J) 27 January 1995
109. See also Mills Clinical Practice and the Law, 2nd
ed (Tottel, 2007) at paragraph 2.57.
[611]
This test was included in the definition
of professional misconduct in the most recent edition of the Medical Council’s A
Guide to Ethical Conduct and Behaviour (6th ed 2004) at
paragraph 1.5.
[612]
Section 74 of the Medical Practitioners
Act 2007.
[613]
Section 13(2)(b) of the Control of
Clinical Trials Act 1987.
[614]
Section 13(1)(b) of the Control of
Clinical Trials Act 1987.
[615]
Section 14 of the Control of Clinical
Trials Act 1987.
[616]
The Law Commission for England and Wales Report
on Mental Incapacity (No 231 1995) at paragraph 5.27.
[617]
Emphasis added. See also Mental
Capacity Act 2005 – Code of Practice at paragraph 9.59.
[618]
Emphasis added.
[619]
McLean “Advance Directives and the Rocky
Waters of Anticipatory Decision-Making” (2008) 16(1) Medical Law Review
1 at 21.
[620]
Ibid.
[621]
Mental Capacity Act 2005 – Code of
Practice at paragraphs 9.47-9.54.
[622]
Mental Capacity Act 2005 – Code of
Practice at paragraph 9.49. Reasonable efforts include having discussions
with relatives of the patient, looking in the patient’s clinical notes held in
the hospital or contacting the patient’s GP.
[623]
Mental Capacity Act 2005 – Code of
Practice at paragraph 9.57.
[624]
Mental Capacity Act 2005 – Code of Practice
at paragraph 9.60.
[625]
Section 79 of the Guardianship and
Administration Act 2000 (Qld).
[626]
White and Willmott Rethinking
Life-Sustaining Measures: Questions for Queensland: An Issues Paper Reviewing
the Legislation Governing Withholding and Withdrawing Life-Sustaining Measures
(QUT 2005) at 42-44.
[627]
Discussed in paragraph 4.70 above.
[628]
However, this situation is dealt with
specifically in certain Australian statutes. See paragraph on intention to
revoke.
[629]
Wilmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 230.
[630]
Wilmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 230 citing Michalowski
“Advance Refusals of Life-Sustaining Medical Treatment: The Relativity of an
Absolute Right” (2005) 68(6) Modern Law Review 958 at 979.
[631]
Wilmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 230.
[632]
[2005] 1 WLR 834. See paragraph 3.46
above.
[633]
Wilmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 232.
[634]
Bartlett Blackstone’s Guide to the
Mental Capacity Act 2005, 2nd edition (Oxford University Press,
2008) at 9.62.
[635]
Ibid at paragraph 2.6.
[636]
Medical Council A Guide to Ethical
Behaviour and Conduct, 6th edition, 2004.
[637]
Schedule 2 of the Powers of Attorney
Act 1998 (Qld).
[638]
Wilmott, White and Howard “Refusing
Advance Refusals: Advance Directives and Life-Sustaining Medical Treatment”
(2006) 30 Melbourne University Law Review 211 at 235.
[639]
Ibid.
[640]
Veatch “Foregoing Life-Sustaining
Treatment: Limits to the Consensus”, (1993) 3 Kennedy Inst Ethics Journal
1 at 6.
[641]
Robb, “Living Wills: The Right to Refuse
Life-Sustaining Medical Treatment - A Right Without a Remedy?” (1997) 23 Dayton
Law Review 169.
[642]
Medical Council A Guide to Ethical
Behaviour and Conduct, 6th edition, 2004.