Posted in New Legal Developments on 03 August 2016

In 2015, Ireland welcomed the long-awaited enactment of the Assisted Decision-Making (Capacity) Act 2015 which replaced the Lunacy Regulation Act 1871.  The landmark piece of legislation was signed into law on the 30th December 2015 and it is anticipated that it will be commenced by Ministerial Order later in 2016. The Act provides a statutory framework for individuals to make legally binding agreements such as an advance healthcare directive. 

An advance healthcare directive can be defined as:

  • an express statement
  • made by a competent adult
  • over 18 years of age
  • relating to the type and extent of medical treatments he or she would or would not want to undergo in the future
  • should he or she be unable to express consent at that time.

It is a useful tool for a person to enact (if they so wish) in the event that they may lose mental capacity to make their own decisions in the future.  It will allow an individual to make advance refusals or requests for treatment based on their own will and preferences.  A loss of capacity may occur for a number of reasons for example, development of dementia, mild cognitive impairment, or through an acquired a brain injury through a tragic accident.

Advance healthcare directives can include both treatment refusals and requests. A treatment refusal will be legally binding. However it is important to note that, a treatment request will not be legally binding and will simply be taken into consideration by the doctor and other healthcare professionals.

An individual can make any treatment refusal notwithstanding the fact that the refusal appears to be an unwise decision, not based on sound medical principles or may even result in the patient’s death. Therefore, having the power to refuse a treatment is a significant advantage of creating an advance healthcare directive. An advance healthcare directive can also include the appointment of a designated healthcare representative who makes healthcare decisions for the person at a time in the future when he or she is unable to make them for him or herself.

Advance healthcare directives are not applicable to life sustaining treatment unless there is a specific statement to this effect in the document along with an acknowledgement that the person understands that this refusal may lead to death.   It also is not applicable to the refusal of basic care which includes ‘warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration’. Patients involuntary detained under the Mental Health Acts will not be in a position to make an Advance Healthcare Directive. Despite these limitations, the Assisted Decision-Making Capacity Act 2015 strengthens the rights of individuals who experience loss of capacity.

Why should a person make an advance healthcare directive?

Advance healthcare directives are positive documents that preserve a patient’s right of autonomy and self-determination. They help maintain the voice of the patient and can prevent unwanted medical interventions in the future. They provide certainty and clarity for the doctor treating the patient, as they are made aware in advance of the patient’s specific wishes and preferences.

Besides the practical advantages of advance healthcare directives, they offer many therapeutic benefits. A patient is likely to feel relieved and comforted knowing his or her wishes and choices will be respected regarding treatment when they are incompetent. It also provides guidance and support to family members who will be alleviated from the burden of making difficult decisions on behalf of the patient regarding their health and medical treatment. Most important, it allows the patient to remain in control in an otherwise frightening time in their life.

Advance healthcare directives are available in countries such as the US, UK, Denmark, Finland and the Netherlands and are now considered powerful tools for medical decision-making. It is anticipated that their use is likely to become increasingly common in the future and their introduction will be welcomed into Irish law.

Once the law is commenced later this year, any applicable adult with capacity will be in a position to draft an advance healthcare directive.  Cantillons Solicitors will be happy to assist with advice and drafting the directive once the law comes into force.

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

 


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