Commission backs legal rights on ‘living wills’

ADULTS should be legally entitled to refuse medical treatment, including life-sustaining treatment, according to the Law Reform Commission.

It believes the legislative change is necessary so people can specify the medical interventions they do not want in an advanced care directive, sometimes called “a living will” in the US.

The move, however, would not alter or affect the existing criminal law under which euthanasia or assisted suicide is prohibited.

The commission believes the legislation will also help doctors faced with making decisions without a legal framework.

About one in five doctors are dealing with patients who have made advanced care directives, according to a 2003 survey. The commission recommends that a doctor should not have any legal liability in cases where a valid advance care directive is carried out.

The legislative proposal is contained in the commission’s latest report – Bioethics: Advance Care Directives to be launched later today by High Court Judge, Ms Justice Mary Laffoy.

The report makes 42 specific recommendations and includes a draft Mental Capacity (advance Care Directives) Bill 2009 to implement them.

While an advanced care directive could be verbal or written, the commission believes an instruction to refuse life-sustaining treatment should be in writing and witnessed.

The commission’s director of research, Ray Byrne, said the refusal of life-sustaining treatment was very different from somebody asking for treatment that would shorten their life.

“You are perfectly entitled to refuse something that would prolong your life for no particular benefit, whereas to actually request treatment that would shorten your life is prohibited and the commission is saying that is not altered or affected in any way by the proposals on advanced care directives,” he said.

The commission recommends that the proposed legislation be incorporated in the Government’s proposed overhaul of the law on mental capacity contained in the Scheme of a Mental Capacity Bill 2008.

A person could refuse treatment on religious grounds and, under the proposed legislation, a person could nominate a health care proxy to carry out their wishes.

The commission points out that a person could not refuse basic care, such as warmth, shelter, palliative care, oral nutrition and hydration and hygiene measures. It proposes that a statutory Code of Practice on Advance Care Directives should contain detailed guidance for doctors, including the circumstances in which artificial nutrition and hydration may be considered to be basic care or, as the case may be, artificial life sustaining treatment.

The commission also recommends that a person should be encouraged to seek medical advice when making an advance care directive, but it should not be mandatory.


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