Advance directives in healthcare : measures that support persons in exercising their legal capacity?

Abstract

The thesis postulates that a framework of advance directives (ADs), which supports persons in exercising their legal capacity by transposing the legal effect of a decision as directed in the AD, is not easily adaptable in every legal system. Considering the disparities between Maltese healthcare law, which is based on cooperation and active relations between healthcare professionals and patients, and the individual-oriented norms that normally underpin ADs, illustrates the foreseeable limitations of introducing ADs into the domestic legal order in Malta. That being said, the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) features an obligation in Article 12 to take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. If ADs can be part of those measures of support, there is reason at law to effectuate changes in the domestic legal order. The thesis is then stipulated upon two aims that underpin its overall conclusion to reconsider the regulation of ADs. First, given the different interpretations of Article 12 of the UNCRPD, inspired by David Gauthier’s work, the thesis aims to propose a mechanism to test the coherence of some of the assertions about Article 12 against the scope and limits of that provision. The thesis suggests that, by failing to consider what falls within the scope of Article 12, academic literature sometimes conflates together the juridical norms underpinning the right to equal recognition before the law with the related, but different, norms regarding the final effect of an exercise of legal capacity. Although they do not exclude one another, the obligations of support arising from Article 12 that should be adaptable in any legal system are stipulated upon the former norms. Second, the thesis aims to draw out the questions that must be posed to establish with legal certainty when and how ADs address the obligations of support arising from Article 12 of the UNCRPD. Finding that these differ from the questions posed to determine when an AD should be applied with the equivalent authority of the decision it embodies, and inspired by ethico-legal literature that inter alia focuses on the wishes and values of the person when the AD is due to be used, the thesis concludes that ADs can be reconsidered as a form of support inasmuch as a person is exercising his/her legal capacity contemporaneously to an offer of treatment with the support of an AD. In this respect, when measures that support persons in exercising their legal capacity are considered in light of international human rights law, it cannot be assumed that ADs will be part of those measures of support only because they embody their makers’ legal agency.