Abstract
An Advance care directive entitles a person to request in advance either the refusal of or consent to certain medical treatment if that person is not competent to consent or refuse at the time such refusal or consent is required. The 2003 Law Reform Commission’s Consultation Paper on Law and the Elderly briefly mentioned advance directives. However, the Paper decided to leave the issue to a future Paper that would give a more comprehensive analysis. There is no Irish legislation on the matter and consequently the legal position is unclear. The English Mental Capacity Act 2005 has given recognition to advance directives under section 24. It is interesting to note that only refusal is covered by the Act. The 2005 Law Reform Commission Consultation Paper on Vulnerable Adults discusses the issue of advance directives in more detail. This Paper will examine the Irish position of advance directives. The British Mental Capacity Act and recent case law will provide a comparative analysis. The UN Convention on the Protection of the Rights and Dignity of Persons with Disabilities will also be examined.
Highlights
As this Report would be dealing comprehensively with advance care directives, the Law Reform Commission (LRC) decided not to propose any recommendations other than certain health care decisions being conferred using an enduring powers of attorney. This limited solution was proposed in light of the more comprehensive analysis contained in the Report of the Irish Council for Bioethics
The Act requires that the advance directive is included in the patient’s medical record; it provides that staff should receive education in relation to advance care directives; and perhaps more importantly the Act provides that the presence or absence of an advance care directive does not influence the provision of care
The case law seems to indicate that the courts will respect an individual’s right to self-determination in healthcare decision-making
Summary
In 2003 the Irish Law Reform Commission (LRC) (Note 1) published a Consultation Paper on Law and the Elderly. The Paper concentrated on the meaning of legal capacity and its discussion briefly mentioned advance care directives (Note 3). This article will examine the position of advance care directives in Ireland. Recent case law has brought the issue before the Irish Courts. The Irish Council for Bioethics released a Report in February 2007 entitled “Is it time for Advance Health Care Decisions?” The Report offered a background discussion and examined the position of advance care directives within Irish society. The Council hope that the Report will generate further discussion This Report will be examined in more detail in the course of the article. No discussion of advance care directives is complete without first looking at the issue of legal capacity under Irish law. As there has been a dearth of case law on the matter in this jurisdiction, the position in England provides some guidelines
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