Advance Healthcare Directive – Your Guides
What is it?
An Advance Healthcare Directive is a statement you can make now to inform your family and healthcare professionals about the type of medical or surgical treatment which you do or do not want in future. This ensures that your own preferences are clear even after you have lost capacity and can no longer clearly communicate your wishes.
Are they legally recognised?
Advance Healthcare Directives are generally recognised under Irish and international case law, but without any governing legislation. They will move to a statutory footing once the Assisted Decision Making (Capacity) Act, 2015 (the ‘Act’) comes into force later this year. The Act was expected to be brought into force in June 2022 but it may be October before this occurs.
What changes does the Act bring?
The Act will introduce a legal framework which promotes the autonomy of a person to make decisions about their future medical treatment and preferences. Using your Advance Healthcare Directive, you can appoint a person (called a ‘Designated Healthcare Representative’) to have the power to consent to or refuse specific treatment on your behalf up to and including life-sustaining treatment.
The Designated Healthcare Representative can only exercise these powers if you lack capacity, and they cannot delegate their powers to anyone else.
What can I include in one?
You can indicate what medical or healthcare treatments you do and do not want in the future. You cannot exclude treatment for basic health care such as warmth, shelter, hygiene measures as the Act does not apply to such matters.
Your Advance Healthcare Directive for any medical treatment that you do not want is legally binding, provided:
- At the time of the decision about the treatment, you are not well enough to communicate your wishes.
- Any treatment to be refused is specific and clearly identified.
- The refusal of the specific treatment is clearly expressed in the Advance Healthcare Directive.
Regardless of when you sign the Advance Healthcare Directive, a treatment refusal is as effective as the day the Advance Healthcare Directive was made. If a healthcare professional does not comply with a valid and applicable Advance Healthcare Directive, they may face civil or criminal liability for breaches of their duty under the Act.
You can also include a request for specific treatment in your Advance Healthcare Directive, and this will be taken into account during any decision-making process. However, a treatment request will not be legally binding as it is not possible to force a medical professional to give a specific treatment. Where a healthcare professional does not comply with a request for treatment, they must record their reasoning and provide a copy of their reasons to the Designated Healthcare Representative.
What if my Advance Healthcare Directive is not clear?
If there is any ambiguity, your healthcare professional(s) are obliged to address this by consulting with the Designated Healthcare Representative or your next of kin. They can seek the opinion of a second healthcare professional. If the ambiguity persists, an interpretation which is in favour of the preservation of life will be adopted. An application can be made to the Court for direction if this is deemed necessary.
How can I make one?
In order for an Advance Healthcare Directive to be legally binding, it must be:
- made by an adult over the age of 18 who has mental capacity.
- in writing; however, ‘writing’ includes voice and video recording and speech recognition technology.
- voluntarily made.
- clear in what specific treatments are being refused, what circumstances the specific treatment refusal applies in and any treatment requests.
- dated and witnessed.
The Private Client Team at Mullany Walsh Maxwells will be happy to assist you with your Advance Healthcare Directive now that the Act is finally being commenced.
What if I change my mind?
You can revoke or amend an Advance Healthcare Directive at any time provided you have capacity. The revocation or amendment must be in writing.
Does this mean changes to the law on euthanasia or assisted suicide?
No, the Assisted Decision Making (Capacity) Act, 2015 will not affect the existing law on euthanasia or assisted suicide which are still illegal in Ireland.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees as a percentage or proportion of any award or settlement.
