The Report makes 42 specific recommendations on the topic and includes a draft Mental Capacity (Advance Care Directives) Bill 2009 to implement these recommendations.
Benefits of legislation on advance care directives
The Report forms part of the Commission’s Third Programme of Law Reform 2008-2014, and recommends that there is a need for legislation to cater for people who make advance care directives concerning refusal of treatment, whether verbally or in writing. The main benefit of the proposed legislation is that it would assist those who would like to plan their medical treatment, in particular what future medical interventions they do not want. It would also assist health care professionals who are currently faced with making decisions without a legal framework. In a 2003 survey conducted of Irish physicians, about 25% said they had dealt with patients who had made advance care directives.
Advance care directives: written and verbal
An advance care directive (in the United States, the written version is sometimes called a “living will”) sets out a person’s instructions or wishes that certain specified medical treatment that might be considered in the future is not to be carried out or continued. An advance care directives allows the person to give their views now about future treatment in case they will not be able to do so because of an incapacitating 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. An advance care directive can be written or verbal and, quite often, the person will also nominate another person, called a health care proxy, to carry out their wishes.
Main recommendations in Report
The main recommendations in the Report are that:
• The proposed legislation should be facilitative in nature and be seen in the wider context of a process of health care planning by an individual, whether in a general health care setting or in the context of hospice care
• The proposed legislation would not alter or affect the existing criminal law under which euthanasia and assisted suicide is prohibited
• The proposed legislation would apply to advance care directives by adults involving refusal of treatment, for example: “I do not wish to receive a flu injection” or “I do not wish to be resuscitated”
• A person could refuse treatment on religious grounds
• An advance care directive could, in general, be verbal or written
• Under the proposed legislation, an advance care directive could include an instruction to refuse life-sustaining treatment (treatment which is intended to sustain or prolong life and that replaces or maintains the operation of vital bodily functions that are incapable of independent operation); this type would have to be in writing and witnessed
• The proposed legislation would allow for the nomination of a health care proxy to carry out the person’s wishes
• The Commission recommends that a person could not refuse basic care, (such as warmth, shelter, palliative care, oral nutrition and hydration and hygiene measures
• The Commission recommends that a statutory Code of Practice on Advance Care Directives should contain detailed guidance for health care professionals, including the circumstances in which artificial nutrition and hydration (ANH) may be considered to be basic care or, as the case may be, artificial life-sustaining treatment.
• The Commission recommends that a person should be encouraged to seek medical advice when making an advance care directive, but it would not be mandatory
• A healthcare professional would not have any legal liability where they follow an advance care directive that they believe to be valid and to be applicable to the condition being treated
• The proposed legislation would not prohibit a professional body from investigating whether the failure to carry out an advance care directive was in breach of professional standards; if that happened, a health care professional would have a full defence if they acted in good faith
• The Commission also recommends that the proposed legislation on advance care directives should be incorporated into the Government’s proposed overhaul of the law on mental capacity, contained in the Scheme of a Mental Capacity Bill 2008.
For further information / interview with Commissioner Patricia Rickard Clarke or Director of Research Raymond Byrne, contact:
Eoin Quinn, Weber Shandwick, T: 01-6760168, or M: 087 233 2191
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published 149 documents (Consultation Papers and Reports) containing reform proposals, available at www.lawreform.ie. A large majority (about 70%) of these proposals have led on to reforming legislation. The Report will be available on the Commission’s website on the afternoon of the launch, 16th September 2009.