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Advance Directives: Rethinking Regulation, Autonomy & Healthcare Decision-Making pp 35–91Cite as

Legal Responses to the Challenges of Making Advance Directives

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Part of the book series: International Library of Ethics, Law, and the New Medicine ((LIME,volume 76))

Abstract

The decision-making process in ADs is a key issue that is heightened when disputes about withholding and withdrawing treatment came before the courts. The courts in United Kingdom, New Zealand, Canada and Singapore dealt with a range of applications from either the hospitals or the families of patients concerning the implementation of the patient’s ADs. The range of cases drawn from the four jurisdictions below illustrated the challenges with creating and applying ADs, with a focus on two key aspects—the validity and applicability of the ADs.

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Notes

  1. 1.

    For example, Re T [1992] EWCA Civ 18; HE v A Hospital NHS Trust & AE [2003] EWHC 1017 (Fam); NHS Trust v T (adult patient: refusal of medical treatment) [2004] EWHC 1279 (Fam); Re C (refusal of medical treatment) [1994] 1 WLR 290 (Fam).

  2. 2.

    Re C (refusal of medical treatment) [1994] 1 WLR 290 (Fam).

  3. 3.

    Mental Capacity Act 2005 (UK), ss 24-26.

  4. 4.

    NHS Trust v T (adult patient: refusal of medical treatment) [2004] EWHC 1279 (Fam).

  5. 5.

    Ibid, at [6].

  6. 6.

    Ibid, at [61].

  7. 7.

    Ibid.

  8. 8.

    Re T [1992] EWCA Civ 18.

  9. 9.

    Re T [1992] EWCA Civ 18 at [7].

  10. 10.

    Ibid, at [7].

  11. 11.

    Ibid, at [9].

  12. 12.

    Ibid.

  13. 13.

    Ibid, at [13].

  14. 14.

    Ibid, at [15].

  15. 15.

    Ibid, at [16].

  16. 16.

    Ibid, at [17].

  17. 17.

    Ibid, at [19].

  18. 18.

    Ibid, at [17].

  19. 19.

    Ibid, at [28].

  20. 20.

    See for example St George’s Healthcare NHS Trust v S [1999] Fam 26 where the pregnant patient Ms S’s mental capacity was challenged when she refused contemporaneously to give birth via Caesarean section, a refusal which risked her life and the life of her unborn child.

  21. 21.

    Re T [1992] EWCA Civ 18 at [26].

  22. 22.

    Ibid.

  23. 23.

    Ibid, at [30].

  24. 24.

    Ibid, at [22, 23].

  25. 25.

    Ibid, at [45].

  26. 26.

    Ibid, at [7].

  27. 27.

    Ibid, at [8].

  28. 28.

    Ibid, at [15, 19].

  29. 29.

    Ibid, at [19].

  30. 30.

    Re AK (Adult Patient)(Medical Treatment: Consent) [2001] 1 FLR 129; [2000] 58 BMLR 151.

  31. 31.

    Ibid.

  32. 32.

    Ibid, at 154.

  33. 33.

    Ibid.

  34. 34.

    Ibid, at 155.

  35. 35.

    Ibid.

  36. 36.

    Ibid.

  37. 37.

    A point about the family’s or relatives’ role was highlighted in Re T where the Court of Appeal pointed out that families or relatives have no legal right to consent to or refuse treatment on behalf of the patient: Re T [1992] EWCA Civ 18 at [6].

  38. 38.

    Ibid, at 156.

  39. 39.

    W Healthcare NHS Trust v H and others [2004] EWCA Civ 1324.

  40. 40.

    Ibid, at 836.

  41. 41.

    Ibid, at 839.

  42. 42.

    Ibid.

  43. 43.

    Ibid, at 838.

  44. 44.

    Ibid, at 155.

  45. 45.

    HE v A Hospital NHS Trust & AE (by her litigation friend the Official Solicitor) [2003] EWHC 1017 (Fam).

  46. 46.

    Ibid, at [2].

  47. 47.

    Ibid, at [3].

  48. 48.

    Ibid, at [5].

  49. 49.

    Ibid, at [6].

  50. 50.

    Ibid, at [12].

  51. 51.

    Ibid, at [7].

  52. 52.

    Ibid, at [26] to [32].

  53. 53.

    Ibid, at [20].

  54. 54.

    Ibid, at [23], [24].

  55. 55.

    Ibid, at [43].

  56. 56.

    Ibid, at [25].

  57. 57.

    Ibid, at [43].

  58. 58.

    Ibid, at [44].

  59. 59.

    Report under the auspices of Age Concern Institute of Gerontology and Centre of Medical Law and Ethics, King’s College, London “The Living Will: Consent to treatment at the end of life” (Age Concern England, Great Britain, 1988).

  60. 60.

    Ibid, at 48.

  61. 61.

    Who decides? Making decisions on behalf of mentally incapacitated adults: A consultation paper issued by the Lord Chancellor’s Department Presented to Parliament by the Lord High Chancellor by Command of Her Majesty December 1997 (Cm 3803).

  62. 62.

    Explanatory Note to the Mental Capacity Act.

  63. 63.

    (24 February 2004) 658 GBPD HL c16WS.

  64. 64.

    For related commentaries to the Mental Capacity Act, see Paul Bowen Blackstone’s Guide to the Mental Health Act 2007 (OUP, 2007) at 144; Penny Letts (General Editor) Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (3rd ed, BMA and the Law Society, 2010).

  65. 65.

    MCA Explanatory Note at [84], [85], [86], [87], [88], [89], [91].

  66. 66.

    See for example Anne Wilkinson “Living wills revived?” (1997) 147(6820) New Law Journal 1823, commenting on the UK Law Commission’s decision against prescribing any formalities for advance refusals for fear of invalidating an otherwise valid advance refusal. The author is of the view that formalities would actually encourage clarity in drafting advance directive; also see S Walton “Correspondence in response to Hegde R, Bell D, Cole P ‘The Jehovah’s Witness and dementia: who or what defines ‘best interests’? (2006) 61 Anaesthesia 802” (2007) 62 Anaesthesia 412–423. The author cautioned against viewing the Mental Capacity Act and advance directive as simple solutions to a complex problem.

  67. 67.

    Report on Select Committee on Medical Ethics, vol. 1 Report, London, HMSO, HL Paper 21-1, Session 1993–1994 at 54.

  68. 68.

    Mental Capacity Act 2005 (UK), s 24.

  69. 69.

    The Law Commission noted that under 18-year-olds were excluded from making ADs pursuant to the “inherent jurisdiction of the court and a person exercising parental responsibility can overrule this choice”—see Who decides? Making decisions on behalf of mentally incapacitated adults: A consultation paper issued by the Lord Chancellor's Department Presented to Parliament by the Lord High Chancellor by Command of Her Majesty December 1997 (Cm 3803) at [4.2.1].

  70. 70.

    Section 25(5) MCA.

  71. 71.

    See for example Ash Samanta and Jo Samanta “Advance directives, best interests and clinical judgement: shifting sands at the end of life” (2006) 6 Clin Med 274; Ruth Horn “‘I don’t need my patients’ opinion to withdraw treatment’: patient preferences at the end-of-life and physician attitudes towards advance directives in England and France” (2014) 17 Med Health Care and Philos 425; Darren Shickle “The Mental Capacity Act 2005” (2006) 6 Clin Med 169; Timothy R J Nicholson and others “Assessing mental capacity: the Mental Capacity Act” (2008) 336 BMJ 322; Geraldine Boyle “The Mental Capacity Act 2005: promoting the citizenship of people with dementia?” (2008) 16 (5) Health and Social Care in the Community 529; Jill Manthorpe, Kritika Samsi and Joan Rapaport “Capacity Is Key’: Investigating New Legal Provisions in England and Wales for Adult Safeguarding” (2013) 25(4) Journal of Elder Abuse & Neglect 355; Rowena Jones “Review of the Mental Capacity Act 2005” (2005) 29 Psychiatric Bulletin 423; J Foster and M Turner “Implications of the Mental Capacity Act 2005 on Advance Care Planning at the End of Life” (2007) 22 Nursing Standard 35.

  72. 72.

    See for example Rebekah Schiff and others “Living wills and the Mental Capacity Act: a postal questionnaire survey of UK geriatricians” (2006) 35 Age and Ageing 116; Andrew Alonzi and Mike Pringle “Mental Capacity Act 2005: Should guide doctors to help protect vulnerable people” (2007) 335 BMJ 898; Jill Manthorpe, Joan Rapaport and Nicky Stanley “Expertise and Experience: People with Experiences of Using Services and Carers’ Views of the Mental Capacity Act 2005” (2009) 39 British Journal of Social Work 884; Jill Manthorpe and others “‘Early days’: Knowledge and use of the Mental Capacity Act 2005 by Care Home Managers and Staff” (2011) 10(3) Dementia 283; Claud Regnard and Stephen Louw “Embedding the Mental Capacity Act into Clinical Practice in England and Wales” (2011) 40 Age and Ageing 416; Nick Nicholas and Sotiris Nicholas “Understanding the Mental Capacity Act 2005: A Guide for Clinicians” (2010) 12 The Obstetrician & Gynaecologist 29; S M White and T J Baldwin “The Mental Capacity Act 2005—Implications for Anaesthesia and Critical Care” (2006) 61 Anaesthesia 381; C Schofield “Mental Capacity Act 2005—What Do Doctors Know?” (2008) 48 Med Sci Law 113.

  73. 73.

    Carolyn Johnston “Advance decision making—rhetoric or reality?” (2014) 34 Legal Studies 497; Carolyn Johnston and Jane Liddle “The Mental Capacity Act 2005: A New Framework for Healthcare Decision Making” (2007) 33 J Med Ethics 94; Carolyn Johnston “Does the Statutory Regulation of Advance Decision-Making Provide Adequate Respect for Patient Autonomy?” (2005) 26 Liverpool Law Review 189; Peter Herissone-Kelly “Capacity and Consent in England and Wales: The Mental Capacity Act under Scrutiny” (2010) 19 Cambridge Quarterly of Healthcare Ethics 344; Carolyn Johnston “The Mental Capacity Act 2005 and Advance Decisions” (2007) 2 Clinical Ethics 80.

  74. 74.

    Carolyn Johnston “The Mental Capacity Act 2005 and Advance Decisions” (2007) 2 Clinical Ethics 80 at 82, 84.

  75. 75.

    Carolyn Johnston “Advance decision making—rhetoric or reality?” (2014) 34 Legal Studies 497 at 514.

  76. 76.

    Carolyn Johnston “Advance decision making—rhetoric or reality?” (2014) 34 Legal Studies 497 at 508, 510. An empirical study demonstrated the need for further improvement and training in terms of knowledge about assessing capacity under the MCA among doctors. See C Schofield “Mental Capacity Act 2005—What Do Doctors Know?” (2008) 48 Med Sci Law 113.

  77. 77.

    A Local Authority v E (by her Litigation Friend the Official Solicitor), A Health Authority & E’s Parents [2012] EWHC 1639 (COP).

  78. 78.

    Re D [2012] EWHC 885 (COP).

  79. 79.

    The X Primary Care Trust v XB and Anor [2012] EWHC 1390 (Fam).

  80. 80.

    MCA 2005 (UK), s 1(2).

  81. 81.

    Ibid, s 24(1).

  82. 82.

    Ibid, s 2(2).

  83. 83.

    Ibid, s 2(1).

  84. 84.

    Ibid, s 2(4); Mental Capacity Code of Practice at [4.10].

  85. 85.

    Ibid, s 2(3)(a)(b).

  86. 86.

    Ibid, s 3(1)(a)(b)(c)(d).

  87. 87.

    Re C [1994] 1 WLR 290 (Fam).

  88. 88.

    For example, in Re AK, AK conveyed his intentions through eye movements and communication boards.

  89. 89.

    MCA 2005 (UK), s 1(3). The MCA Explanatory Note at [20] provides an example: “making sure that the person is in an environment in which he is comfortable or involving an expert in helping him express his views.”.

  90. 90.

    A Local Authority v E (by her Litigation Friend of the Official Solicitor), A Health Authority and E’s Parents, above.

  91. 91.

    Ibid, at [17].

  92. 92.

    Ibid, at [19].

  93. 93.

    Ibid, at [20].

  94. 94.

    Ibid, at [1].

  95. 95.

    Ibid, at [40].

  96. 96.

    Ibid, at [3].

  97. 97.

    Ibid, at [64], [65].

  98. 98.

    Ibid, at [9].

  99. 99.

    Ibid, at [46].

  100. 100.

    Ibid, at [47], [48].

  101. 101.

    Ibid, at [49].

  102. 102.

    Ibid, at [50].

  103. 103.

    Ibid, at [64], [65].

  104. 104.

    Ibid.

  105. 105.

    Re T above.

  106. 106.

    Mental Capacity Code of Practice at [4.22].

  107. 107.

    A Local Authority v E (by her Litigation Friend of the Official Solicitor), A Health Authority and E’s Parents, above, at [23], [52], [87].

  108. 108.

    Ibid, at [52].

  109. 109.

    Ibid, at [52].

  110. 110.

    John Coggon “Commentary: Anorexia Nervosa, Best Interests, and the Patient’s Human Right to ‘A Wholesale Overwhelming of Her Autonomy’” (2013) 22(1) Medical Law Review 119 at 127. See also Carolyn Johnston “Advance decision making—rhetoric or reality?” (2014) 34 Legal Studies 497 at 502, 503 critiquing the court’s approach towards the presumption of capacity and the danger with patients such as Miss E who suffered from a medical history of mental disorder seeking to make an AD.

  111. 111.

    Ibid, at [64].

  112. 112.

    Ibid.

  113. 113.

    Mental Capacity Code of Practice at [9.37] and ch 13.

  114. 114.

    Ibid, at [140] where the Court found in favour of preserving E’s life despite very “weighty factors” concerning treatment risks and benefits for E.

  115. 115.

    Ibid, at [117], [125], [131], [135].

  116. 116.

    The Court justified the finding for force feeding E as being “proportionate to a legitimate aim, namely the preservation of life.” Ibid, at [122], [125], [132], [137], [138].

  117. 117.

    Ibid, at [127], [132].

  118. 118.

    The X Primary Care Trust v XB and Anor [2012] EWHC 1390 (Fam).

  119. 119.

    Ibid, at [17], [18].

  120. 120.

    MCA 2005 (UK), s 3(2).

  121. 121.

    Ibid, s 3(3).

  122. 122.

    Ibid, s 3(4)(a)(b).

  123. 123.

    Mental Capacity Act 2005 (UK), s 25(1), (2), (3).

  124. 124.

    Ibid, s 25(4).

  125. 125.

    Ibid, s 25(4).

  126. 126.

    Mental Capacity Act 2005 (UK), s 24(2).

  127. 127.

    Ibid, at [21].

  128. 128.

    ADs refusing treatment that are legally binding are known as advance decision refusing treatment or simply, advance decision under the MCA.

  129. 129.

    The X Primary Care Trust v XB and Anor, above, n 191 at [12], [13], [25], [26].

  130. 130.

    Ibid, at [22].

  131. 131.

    Ibid, at [23].

  132. 132.

    Ibid, at [25].

  133. 133.

    Ibid, at [27], [28], [29].

  134. 134.

    Ibid, at [34].

  135. 135.

    Ibid.

  136. 136.

    Ibid, at [35].

  137. 137.

    Ibid, s 24(3).

  138. 138.

    Ibid, s 24(4).

  139. 139.

    Mental Capacity Code of Practice at [9.29], [9.30].

  140. 140.

    Re N [2015] EWCOP 76.

  141. 141.

    Mental Capacity Act, ss 25(5) and 25(6).

  142. 142.

    Ibid, s 24.

  143. 143.

    Ibid, s 24(3).

  144. 144.

    Ibid, ss 24-26.

  145. 145.

    Ibid, s 25(7).

  146. 146.

    Mental Capacity Code of Practice at [9.14].

  147. 147.

    Ibid.

  148. 148.

    Re D [2012] EWHC 885 (COP).

  149. 149.

    Ibid, at [15].

  150. 150.

    Ibid, at [16].

  151. 151.

    Ibid, at [17].

  152. 152.

    Who decides? Making decisions on behalf of mentally incapacitated adults: A consultation paper issued by the Lord Chancellor’s Department Presented to Parliament by the Lord High Chancellor by Command of Her Majesty December 1997 (Cm 3803) at [4.26], [4.27].

  153. 153.

    Ibid.

  154. 154.

    The GMC Consent: Patients and Doctors Making Decisions Together came into force on 2 June 2008. GMC Treatment and Care towards the End of life: Good practice in decision making was effective on July 2010. Both guidances are available at http://www.gmc-uk.org/. Accessed 10 June 2017.

  155. 155.

    GMC Treatment and Care towards the End of life: Good practice in decision making at [60], [1].

  156. 156.

    Ibid, at [68], [69].

  157. 157.

    GMC Consent: Patients and Doctors Making Decisions Together, 2008 at 25.

  158. 158.

    Ibid, at 19.

  159. 159.

    MCA 2005 (UK), ss 26(2) and 26(3).

  160. 160.

    Ibid, s 25(1)(a)(b).

  161. 161.

    Ibid, s 26(1)(a)(b).

  162. 162.

    One of the principles underpinning the MCA was best interest: MCA 2005 (UK), ss 4(4) and 4(6). See also Carolyn Johnston and Jane Liddle “The Mental Capacity Act 2005: A New Framework for Healthcare Decision Making” (2007) 33 J Med Ethics 94 at 96.

  163. 163.

    Sandra Coney (ed) Unfinished business: What happened to the Cartwright Report (Women’s Health Action, New Zealand, 1993).

  164. 164.

    Right 7(7) Code of Rights.

  165. 165.

    Right 7(5) Code of Rights.

  166. 166.

    Code of Rights, cl 4.

  167. 167.

    Smith v Auckland Hospital Board [1964] NZLR 241.

  168. 168.

    HDC Act 1994, s 6.

  169. 169.

    HDC Act 1994, ss 14(1)(da), (e), (f), (g).

  170. 170.

    HDC Act 1994, s 30.

  171. 171.

    HDC Act 1994, s 31.

  172. 172.

    Joanna Manning and Ron Paterson “New Zealand’s Code of Patients’ Rights” in Joanna Manning (ed) The Cartwright Papers: Essays on the Cervical Cancer Inquiry 1987–1988 (Bridget Williams Books Ltd, Wellington, New Zealand, 2009) at 167.

  173. 173.

    Ibid, at 165.

  174. 174.

    Code of Rights, cl 4.

  175. 175.

    Ron Paterson and PDG Skegg “The Code of Patients’ Rights” in PDG Skegg and R Paterson (eds) Medical Law in New Zealand (Brookers Ltd, Wellington, 2006) at 45.

  176. 176.

    Right 7(2) of the Code of Rights.

  177. 177.

    Right 7(3) of the Code of Rights.

  178. 178.

    Right 7(4) of the Code of Rights.

  179. 179.

    Sam McMullan “Advance Directive” (2010) NZFLJ 359; Cordelia Thomas “Refusal of medical treatment by way of advance directives” (2001) 3 NZFLJ 233; Pauline Wareham “New Zealanders making advance directives: A discourse analysis” (Master in Health Science Thesis, Auckland University of Technology, 2005); Phillipa J Malpas “Advance Directives and Older People: Ethical Challenges in the Promotion of Advance Directives in New Zealand” (2011) 37 Journal of Medical Ethics 285.

  180. 180.

    A Bill of Rights for New Zealand: A White Paper (Wellington, New Zealand, 1985) at 5.

  181. 181.

    Ibid, at [9.1].

  182. 182.

    Ibid, at 65. But with major departures from the ICCPR to suit the New Zealand context: at [10.12].

  183. 183.

    Ibid, at 53, [7.10], 57, 58.

  184. 184.

    Ibid, at 66.

  185. 185.

    (10 October) NZPD 13039; (21 August) NZPD 3760.

  186. 186.

    Ibid, at Preamble.

  187. 187.

    Ibid, ss 4, 5.

  188. 188.

    The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act. Accessed 19 June 2017.

  189. 189.

    Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Ltd, Wellington, 2005) at 268. 270; Ron Paterson construed s 11 as wide enough to include refusal of live saving treatment, see Ron Paterson “The Right of Patients to Refuse Medical Treatment” (19 August 1991) NZ Doctor at 33.

  190. 190.

    Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Ltd, Wellington, 2005) at 267.

  191. 191.

    Ibid.

  192. 192.

    Ibid, at 270.

  193. 193.

    Ibid, at 255.

  194. 194.

    Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (Wellington, LexisNexis NZ Ltd, 2005) at [11.6.5] and [11.8.1]. A Bill of Rights for New Zealand: A White Paper (Wellington, New Zealand, 1985) at [10.5]; Re G [1996] 2 NZLR 201 (HC). A recent New Zealand decision has also confirmed this interpretation: Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433.

  195. 195.

    Ibid, at 256; the cases referred to were Re S [1992] 3 NZLR 363, 374 and Re G [1997] 2 NZLR 201.

  196. 196.

    Ibid.

  197. 197.

    Paul Rishworth and others The New Zealand Bill of Rights (OUP, South Melbourne, Victoria, New York, 2002) at 206.

  198. 198.

    PPPRA 1988, Part 2: welfare guardians; Part 9: enduring power of attorney.

  199. 199.

    PPPRA 1988, s 5 Presumption of competence: “For the purposes of this Part of this Act, every person shall be presumed, until the contrary is proved, to have the capacity—(a) to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; and (b) to communicate decisions in respect of those matters.”.

  200. 200.

    PPPRA 1988, s 93B Presumption of competence: “(1) For the purposes of this Part, every person is presumed, until the contrary is shown,—(a) to be competent to manage his or her own affairs in relation to his or her property: (b) to have the capacity—(i) to understand the nature of decisions about matters relating to his or her personal care and welfare; and (ii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; and (iii) to communicate decisions about those matters.

  201. 201.

    PPPRA 1988, s 94 Interpretation: “(2) For the purposes of this Part, the donor of an enduring power of attorney is mentally incapable in relation to personal care and welfare if the donor—(a) lacks the capacity—(i) to make a decision about a matter relating to his or her personal care and welfare; or (ii) to understand the nature of decisions about matters relating to his or her personal care and welfare; or (iii) to foresee the consequences of decisions about matters relating to his or her personal care and welfare or of any failure to make such decisions; or (b) lacks the capacity to communicate decisions about matters relating to his or her personal care and welfare.”.

  202. 202.

    PPPRA 2007, s 98(3).

  203. 203.

    PPPRA 2007, s 98A on the exercise of enduring power of attorney in relation to personal care and welfare in which the overarching principle of the donor’s best interest applies.

  204. 204.

    PPPRA 2007 s 99A: Attorney’s duty to consult “(1) When acting under an enduring power of attorney, the attorney must, as far as is practicable, consult—(a) the donor and; (b) in relation to any particular matter, any person specified in the enduring power of attorney to be consulted, generally, in respect of matters of that kind, or in respect of that matter. (2) An attorney acting under an enduring power of attorney in relation to the donor's personal care and welfare may, subject to any consultation under subsection (1), have regard to any advance directive given by the donor except to the extent that the directive would require the attorney to act in a manner contrary to section 98(4).”.

  205. 205.

    Chief Executive of the Department of Corrections v All Means All [2014] NZHC 1433.

  206. 206.

    Re MP [1997] NZLFR 978; also by the New Zealand Law Society in a published pamphlet (September 2011) “Powers of Attorney: Do the Right Thing” at 7; a distinction is made between advance directives/living wills and enduring power of attorney. The enduring power of attorney is legally binding while advance directives and living wills are merely expression of wishes which may not have binding legal effect.

  207. 207.

    Re G [1996] 2 NZLR 201 (HC).

  208. 208.

    Ibid, at [2].

  209. 209.

    Ibid, at 202.

  210. 210.

    The Chief Executive of the Department of Corrections & Canterbury District Health Board v All Means All [2014] NZHC 1433.

  211. 211.

    Opinion 11HDC00647 at [147]–[152].

  212. 212.

    Ibid, at [158].

  213. 213.

    The question of informed refusal was considered by the Queensland Law Reform Commission, with special reference to the common law cases on ADs such as Re T (adult: refusal of treatment) and Malette v Shulman. See further Queensland Law Reform Commission A Review of Queensland’s Guardianship Laws Report 67 (Queensland Law Reform Commission, September 2010); other scholarly research includes Daniel M Avery “Summary of Informed Consent and Refusal” (Summer 2009) 6 American Journal of Clinical Medicine 28 at 29; Donald T Ridley “Informed Consent, Informed Refusal, Informed Choice—What Is It That Makes A Patient’s Medical Treatment Decisions Informed?” (2001) 20 Med & L 205; Howard Brody and Ruth Jepson “Clinical Case: Informed Refusal Ethics” (2006) 8 Journal of the American Medical Association 24; Thomas M O'Neil “Truman v Thomas: The Rise of Informed Refusal” (1980–1981) 8 Pepp L Rev 1067; Ellen A Kold and Nancy Ramseyer “Truman v Thomas: Informed Refusal in Simple Diagnostic Testing” (1980–1981) 14 UC Davis L Rev 1105; William C Knapp and Fred Hamilton “‘Wrongful Living’: Resuscitation As Tortious Interference With A Patient’s Right To Give Informed Refusal” (1991–1992) 19 N Ky L Rev 253; Gerard V Bradley “Does Autonomy Require Informed and Specific Refusal of Life-Sustaining Medical Treatment?” (1989–1990) 5 Issues L & Med 301; Fenella Rouse “Does Autonomy Require Informed and Specific Refusal of Life-Sustaining Medical Treatment?” (1989–1990) 5 Issues L & Med 321.

  214. 214.

    Malette v Shulman (1990) 72 OR (2d) 417.

  215. 215.

    Opinion 11HDC00512 at [78], [120], [122], [142].

  216. 216.

    Opinion 09HDC01641 at [176], [177].

  217. 217.

    Bioethics Research Centre University of Otago Persistent Vegetative State and the Withdrawal of Food and Fluids: A Report for the Medical Council of New Zealand (February 1993) at 29. The suggested provision reads as follows: cl 3.3 of the World Health Declaration on the Promotion of Patient’s Rights in Europe 1994: “[W]hen a patient is unable to express his or her will and a medical intervention is urgently needed, the consent of the patient may be presumed, unless it is obvious from a previous declared expression of will that consent would be refused in that situation.”.

  218. 218.

    “The Advance Care Planning Cooperative” (2014) Advance Care Planning Cooperative http://www.advancecareplanning.org.nz/aboutACP/#here. Accessed 8 October 2017.

  219. 219.

    Ibid.

  220. 220.

    National Ethics Advisory Committee “Ethical Challenges in Advance Care Planning” (Wellington, Ministry of Health, 2014) at 2. The document was framed as a guide for health professionals with a focus on ACP in the geriatric, oncology, end of life care and services for people with long term health conditions context.

  221. 221.

    Ibid, at 6.

  222. 222.

    The Code defines a consumer as “a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, includes a person entitled to give consent on behalf of that consumer.”.

  223. 223.

    Code of Ethics for the New Zealand Medical Profession www.nzma.org.nz. Accessed 4 October 2017. The Australian Medical Council adopted similar position and encouraged the involvement of doctors in participating in advance care planning with the patients; see Australian Medical Council Good Medical Practice: A Code of Conduct for Doctors in Australia (July 2009) at 13.

  224. 224.

    Code of Ethics for the New Zealand Medical Association at 3.

  225. 225.

    A Review of the Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights: Report to the Minister of Health (June 2004) at 21.

  226. 226.

    RE Wright-St Clair A History of the New Zealand Medical Association: the first 100 years (Butterworths of New Zealand (Ltd) Wellington, 1987) at 6–7.

  227. 227.

    Ibid.

  228. 228.

    Ibid, at 8.

  229. 229.

    Ibid, at 51.

  230. 230.

    Code of Ethics for the New Zealand Medical Association (2013) at 183–184 referred to a doctor’s accountability to patients, and that patients have the legal right to services under the Code that comply with ethical standards such as the Code of Ethics. The Australia Medical Association shared similar view: Australian Medical Association: The Role of the Medical Practitioner in Advance Care Planning—2006 at [3.4].

  231. 231.

    Code of Ethics for the New Zealand Medical Association (2013) at 2.

  232. 232.

    Ibid, at 4.

  233. 233.

    Ibid, at 7.

  234. 234.

    Australian Medical Association: The Role of the Medical Practitioner in Advance Care Planning (2006).

  235. 235.

    NZMA Position Statement on Advance Directives at [5].

  236. 236.

    See for example the NZMA Position Statement on Advance Directives at [10]: “Recognises that advance directives may play an important role in the health care process and can enhance patient self-determination, however, the direct application of an advance directive under certain circumstances may pose the following serious ethical and clinical challenges to the health care team: (a) The circumstances that existed at the time the advance directive was made may have changed. It may then be impossible to determine the extent to which the advance directive may still apply. Health care decisions arising from an advance directive are based on the information relevant to the medical condition (if any) and treatment options available, as well as the patient’s attitude and values around health care, at the time the advance directive was made.”.

  237. 237.

    NZMA Position Statement on Advance Directives.

  238. 238.

    Ibid, at [4].

  239. 239.

    Ibid, at [10].

  240. 240.

    Ibid, at [11].

  241. 241.

    Ibid, at [8]. The Australian Medical Association echoed similar position: Australian Medical Association: The Role of the Medical Practitioner in Advance Care Planning (2006).

  242. 242.

    Ibid, at [12].

  243. 243.

    Danielle Blondeau and others “Comparison of patients’ and health care professionals’ attitudes towards advance directives” 1998 (24) Journal of Medical Ethics 328.

  244. 244.

    Udo Schüklenk and others “The Royal Society of Canada Report: End-of-Life Decision-Making in Canada: The Report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making” (2011) 25 (S1) Bioethics 1.

  245. 245.

    Ibid, at 15.

  246. 246.

    Kelner M, Bourgeault IL, Hébert PC, Dunn EV “Advance directives: the views of health care professionals” 1993 148 (8) Canadian Medical Association Journal 1331.

  247. 247.

    Ibid.

  248. 248.

    Hughes DL, Singer PA. “Family physicians’ attitudes towards advance directives” 1992 146 (11) Can Med Assoc J 1937.

  249. 249.

    Ibid.

  250. 250.

    Canadian Medical Association Code of Ethics 2004 at [28].

  251. 251.

    Canadian Medical Association Policy Summary “Advance Directives for Resuscitation and other Life saving or Sustaining Measures” (1992) 146 (6) Can Med Assoc J 1072A at [1].

  252. 252.

    Ibid, at [2].

  253. 253.

    Ibid, at [1], [3] and [4].

  254. 254.

    s 32(1) of the Charter of Rights.

  255. 255.

    Fleming v Reid (1991) 4 OR (3d) 74 (Ont CA).

  256. 256.

    Starson v Swayze [2003] 1 SCR 727 (SCC).

  257. 257.

    See Martha Jackman “The Implications of Section 7 of the Charter for Health Care Spending in Canada” (Commission on the Future of Health Care in Canada, October 2002) at 4.

  258. 258.

    Health Care (Consent) and Care Facility (Admission) ActRSBC 1996 c 181, Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2005 SNWT c 16, Personal Directives Act 2008SNS c 8, Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec), the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27.

  259. 259.

    Ibid.

  260. 260.

    Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181, Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2005 SNWT c 16, Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec), the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27; Health Care Consent Act 1996 SO c2.

  261. 261.

    For example, Quebec established specific requirements before the AD can legally bind doctors: Explanatory note and An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec) s 1.

  262. 262.

    An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec), s 62.

  263. 263.

    Ibid, s 61.

  264. 264.

    Advance Health Care Directives Act 1995 (NL), s7.

  265. 265.

    Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181, Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2005 SNWT c 16, Personal Directives Act 2008SNSc 8, Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27.

  266. 266.

    Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181, Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2005 SNWT c 16, Personal Directives Act 2008SNSc 8, Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27; Health Care Consent Act 1996 SO c2; An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec)—the law goes further in presuming that at the time the AD is made the person is presumed to be already in possession of information).

  267. 267.

    Health Care (Consent) and Care Facility (Admission) Act 1996 s 19.8(1).

  268. 268.

    Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2008SNSc 8, the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27; (for BC, if medical advancements occur and the AD expressly provides that the AD still applies regardless of the changes, then the AD is not inapplicable on this basis: s 19.8(2) Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181.

  269. 269.

    Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181; Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2008SNSc 8, the Health Care Directives and Substitute Health Care Decision Makers Act 1997 S c H-0.001, the Health Care Directives Act 1992 CCSM c H27; Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, An Act respecting end-of-life care Bill 2014 (52) c 2 (Quebec), Personal Directives Act 2005 SNWT c 16.

  270. 270.

    Malette v Shulman (1990) 72 OR (2d) 417.

  271. 271.

    Ibid, at [7].

  272. 272.

    Ibid, at [13].

  273. 273.

    Ibid.

  274. 274.

    Ibid, at [14].

  275. 275.

    Ibid.

  276. 276.

    Ibid, at [25].

  277. 277.

    Ibid, at [25], [41].

  278. 278.

    Ibid, at [32].

  279. 279.

    Ibid, at [35], [37].

  280. 280.

    Ibid, at [46].

  281. 281.

    Except for Nunavut, Yukon where the common law is still applicable in the absence of statutory regime.

  282. 282.

    Saskatchewan and the Northwest Territories however explicitly invalid ADs that are not written, dated and signed.

  283. 283.

    Except for PE law where if compliance with the AD is contrary to the doctor’s ethical standard, the doctors are permitted to disregard the AD: s 30(1)(b) Consent to Treatment and Health Care Directives Act 1988, the Saskatchewan law similarly permits doctors not to comply with the ADs if it is contrary to the doctor’s ethical standards.

  284. 284.

    Consent to Treatment and Health Care Directives Act 1988 PEI c C-17.2, s 30(1).

  285. 285.

    Ibid, s 30(1)(b).

  286. 286.

    Health Care Directives Act 1992 CCSM c H27; Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181; Personal Directives Act 2000 RSA c P-6, Advance Health Care Directives Act 1995SNL c A-4.1, Personal Directives Act 2008 SNSc 8, Health Care Consent Act 1996 SO c2.

  287. 287.

    Health Care Consent Act 1996 SO c2; Personal Directives Act 2000 RSA c P-6.

  288. 288.

    For example, Manitoba Law Reform Commission, Report in Self Determination in Health Care (Living Wills and Health Care Proxies), June 1991, Report #74; in respect of Newfoundland and Labrador debating An Act Respecting Advance Health Care Directives And The Appointment Of Substitute Health Care Decision Makers.” (Bill No. 1), where the Minister of Justice Mr. Robertsstated that: “The main principle for the enactment of the law is: protection of liberty under the Canadian Charter, self determination, protection of liability of the healthcare professionals, the need for educating the public.” Similarly in Alberta (Personal Directives Act Bill 35, April 22, 1996) at 1272–1273; (May 9, 1996) at 1762–1763; (May 22, 1996) at 2061; Northwest Territories Personal Directives Bill 7 (Legislative Assembly 4th Session Day 1, 15th Assembly, May 25, 2005) at 90–91; (May 30, 2005); Saskatchewan Health Care Directives and Substitute Health Care Decision Makers Bill 66 (May 16, 1997) at 1757–1758; PEI Consent to Treatment and Health Care Directives Act, Bill 40 (Legislative Assembly 20 Apr 1996) at 944.

  289. 289.

    For example, the Alberta Parliamentary debates when debating the Personal Directives Act 2000, Manitoba Law Reform Commission, Report in Self Determination in Health Care (Living Wills and Health Care Proxies) (June 1991) Report #74.

  290. 290.

    Health Care (Consent) and Care Facility (Admission) Act RSBC 1996 c 181; Personal Directives Act 2000 RSA c P-6, Personal Directives Act 2008 SNSc 8.

  291. 291.

    For example, Anderson v St Francis-St George Hosp Inc 671 NE 2d 225, 227 (Ohio 1996); Bartling v Glendale Adventist Medical Center 194 Cal App 3d 961 (1986); Grace Plaza of Great Neck Inc v Elbaum 183 AD 2d 10 (NY Sup Ct App Div 1992).

  292. 292.

    Ibid, at 156, 157.

  293. 293.

    Ibid; Chan TE, Peart NS and Chin J “Evolving legal responses to dependence on families in New Zealand and Singapore healthcare” (2014) 40 J Med Ethics 861 at 863.

  294. 294.

    Ibid, at 59.

  295. 295.

    David Chan and Lee Gan Goh “The Doctor-Patient Relationship: A Survey of Attitudes and Practices of Doctors in Singapore” (2000) 14(1) Bioethics 58.

  296. 296.

    KH Tee, LT Seet, WC Tan, HW Choo “Advance Directives: A Study on the Knowledge and Attitudes among General Practitioners in Singapore” (1997) 38(4) Singapore Med J 145 at 145.

  297. 297.

    Ibid.

  298. 298.

    Ibid, at 147, 148.

  299. 299.

    Wei Ting Foo and others “Factors Considered in End-of-Life Care Decision Making by Health Care Professionals” (2013) 30 Am J Hosp Palliat Care 354.

  300. 300.

    Ibid, at 357.

  301. 301.

    Jacinta OA Tan and Jacqueline JL Chin with contributions from Terry SH Kaan and Tracey E Chan “What doctors say about care of the dying” (The Lien Foundation, Singapore, 2011).

  302. 302.

    Ibid, at 6.

  303. 303.

    Ibid, at 9.

  304. 304.

    Ibid, at 37.

  305. 305.

    Ibid, at 42.

  306. 306.

    Ibid.

  307. 307.

    Chan TE, Peart NS and Chin J “Evolving legal responses to dependence on families in New Zealand and Singapore healthcare” (2014) 40 J Med Ethics 861 at 863.

  308. 308.

    Revised 1997.

  309. 309.

    Select Committee on the AMD Bill Report of the Select Committee on the Advance Medical Directive Bill (Bill no. 40/95) (Singapore Parliament, Govt Printers, 1996).

  310. 310.

    Mental Capacity Act 2008 (SG), s 4.

  311. 311.

    AMDA 1996 (SG), s 4.

  312. 312.

    AMDA 1996 (SG), s 3(1).

  313. 313.

    Preamble to the AMDA 1996.

  314. 314.

    Ibid, s 2.

  315. 315.

    Re LP (adult patient: medical treatment) [2006] 2 SLR 13; [2006] SGHC 13.

  316. 316.

    Ibid, at [1].

  317. 317.

    Ibid, at [2].

  318. 318.

    Ibid.

  319. 319.

    Ibid, at [3].

  320. 320.

    Ibid, at [3].

  321. 321.

    Ibid, at [9].

  322. 322.

    Ibid, at [11].

  323. 323.

    Ibid.

  324. 324.

    Ibid, at [8].

  325. 325.

    Ibid.

  326. 326.

    James A Low and others “Reducing Collusion between Family Members and Clinicians of Patients Referred to the Palliative Care Team” (2009) 13(4) The Permanente Journal 11.

  327. 327.

    Section 7 AMDA.

  328. 328.

    AMDA 1996 (SG), ss 3, 4.

  329. 329.

    Ibid, s 5(3).

  330. 330.

    Ibid, s 6.

  331. 331.

    Ibid, s 10(3).

  332. 332.

    This is provided for in ss 15(1) and (2) AMDA.

  333. 333.

    Section 9 AMDA.

  334. 334.

    Ibid.

  335. 335.

    Ibid.

  336. 336.

    Ter Kah Leng and Susanna Leong Huey Sy “Advance Medical Directives In Singapore” 1997 (5) Med L Rev 63 at 66, 67.

  337. 337.

    Select Committee on the AMD Bill Report of the Select Committee on the Advance Medical Directive Bill (Bill no. 40/95) (Singapore Parliament, Govt Printers, 1996).

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    Hui Yun Chan

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Chan, H.Y. (2018). Legal Responses to the Challenges of Making Advance Directives. In: Advance Directives: Rethinking Regulation, Autonomy & Healthcare Decision-Making. International Library of Ethics, Law, and the New Medicine, vol 76. Springer, Cham. https://doi.org/10.1007/978-3-030-00976-2_3

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