In December 2006, the Law Reform Commission published a very valuable report on Vulnerable Adults and the Law (83-2006) (pdf). In May of this year, Carol Coulter reported in the Irish Times that the Department of Justice, Equality and Law Reform intended to act on that Report by means of a Mental Incapacity Bill which would replace the existing wardship jurisdiction with an alternative system for dealing with the affairs of vulnerable people, which will offer them assistance in making decisions and protect them from exploitation. Today’s print version of the Irish Times (but not, so far as I can see, the online version; update: though it did get a mention in the paper’s online Breaking News section) has further developments: Read the rest of this entry »

The 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.

According to media reports this morning (Irish Times | RTE), the Irish Council for Bioethics will today publish a report on the ethical and legal issues surrounding the structure, content and practicality of implementing advance directives or living wills. This is a very important development, much to be welcomed.

Advance directives or living wills are a statement of someone’s wishes and views regarding matters such as the forms of medical treatment to be administered or not, in circumstances where the person concerned is not in the future in a position to decide or communicate about such matters. They are prepared when the persons concerned are mentally capable to be used when they have lost the capacity to participate in the decision-making process.

The ICB’s call is a timely one. At present, in Irish law, the status of such advance directives or living wills is unclear (see Older People in Modern Ireland, pp 89, 130, 141, 151, 162). They are certainly one factor which decision-makers (such as a next-of-kin, medical personnel, and the courts) take into account, but there is in Ireland no equivalent of the UK’s Mental Capacity Act 2005, which from April 2007 will provide for the enforceability of advance directives. Such a development in Ireland would be an excellent complement to the pending Mental Capacity and Guardianship Bill, 2007, and may even find a ready and speedy home in an amendment to that Bill.