Advance Directives, Living Wills – Update

webcoverad.jpgThe Opinion of the Irish Council for Bioethics, entitled “Is it Time for Advanced Healthcare Directives?” is now available here (the thumbnail, left, is of its cover). It defines “an advance healthcare directive” as a “statement made by a competent adult relating to the type and extent of medical treatments he or she would or would not want to undergo in the future should he/she be unable to express consent or dissent at that time”. It sketches their development in practice and law in the US (from the 1950s) and internationally, and it points out that, in Ireland:

there is no specific legislation in relation to advance directives. The lack of legislation makes the status of advance directives unclear and, as a result, their implementation may or may not be enforced.

The Council noted that advance directives have “been recognised as an expression of an individual’s autonomy and as a useful tool in enabling the individual to maintain some level of control over medical treatment into the future, when he or she might lack the capacity to express autonomous preferences” and for such reasons recommeded providing for their enforceability as a matter of Irish law. The Council makes several practical recommendations as to the form of such directives, storing them, and revoking them. This is all very good and important work.

However, the Opinion contains no draft Bill, and I think this is an unfortunate gap. In recent years, the Law Reform Commission has adopted the practice of embodying their recommendations in a draft Bill appended to the relevant Report, and the Council would with profit have done likewise. It would have made it far more difficult to resist calls for legislation, especially swift legislation as an amendment to the Mental Capacity and Guardianship Bill, 2007.

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