“Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate”. (Denham J. In re a Ward of Court 1996)
What is an Advance Healthcare Directive?
An Advance Healthcare Directive – sometimes known as a ‘Living Will’ – is a statement about the type and extent of medical or surgical treatment a person may want in the future. It is an advance written expression of the will and preferences of a person and it is made when the person has capacity. It relates to the treatment decisions that may arise in the event that the person was to subsequently lose their capacity and it would only come into effect when the person lacks capacity in the future. The law in relation to Advance Healthcare Directive does not affect the existing law on euthanasia or assisted suicide.
Treatment means an intervention that is and may be done for a therapeutic, preventative, diagnostic, palliative or other purpose relating to the physical or mental health of the person and it includes life-sustaining treatment (including artificial nutrition and artificial hydration). However, basic care is not treatment and therefore, an Advance Healthcare Directive is not applicable for such.
The purpose of the Advance Healthcare Directive legislation is to enable persons to be treated according to their will and preferences and to provide healthcare professionals with information about persons in relation to their treatment choices.
A Relevant Person (over 18 years) and who has capacity is entitled to refuse treatment for any reason including reasons based on his or her religious beliefs, notwithstanding that the refusal appears to be unwise or not to be based on sound medical principles or that it may result in his or her death.
The Assisted Decision-Making Capacity Act lays down a number of formalities that must be complied with in order that an Advance Healthcare Directive is valid. A directive maker who has capacity may alter or revoke his or her Advance Healthcare Directive in writing.
Refusal of Treatment
A Treatment Refusal set out in an Advance Healthcare Directive shall be complied with if the following 3 conditions are met:-
- At the time in question the directive maker lacks capacity to give consent to the treatment.
- The treatment to be refused is clearly identified in the directive; and
- The circumstances in which such refusal is intended to apply are clearly identified by the directive.
A specific treatment refusal set out in an Advance Healthcare Directive is as effective as if it were made contemporaneously by the directive maker when he or she had capacity to make the decision.
Refusal of Life Sustaining Treatment
Refusal of life sustaining treatment must be substantiated by a statement in the Advance Healthcare Directive by the directive maker to the effect that the Advance Healthcare Directive is to apply to that treatment if his or her life is at risk.
Refusal of life sustaining treatment cannot be provided for within the scope of decisions in an Enduring Power of Attorney. Therefore, if somebody wishes to provide for the refusal of life sustaining treatment, it must be done in the Advance Healthcare Directive. General healthcare decisions in an AHD take precedence over health care decisions in an Enduring Power of Attorney.
A request for specific treatment in an Advance Healthcare Directive is not legally binding but it shall be taken into account during any decision-making process that relates to treatment if that specific treatment is relevant to medical conditions for which the maker of the Advance Healthcare Directive requires treatment.
The legislation sets out a number of safeguards in relation to Advance Healthcare Directive’s, providing criteria for validity and applicability. An Advance Healthcare Directive is not valid if it is not made voluntarily, which is an important protection, in order to prevent fraud or undue influence. Also, if while the person had capacity, he or she had done anything that is clearly inconsistent with the relevant decision outlined in the Advance Healthcare Directive this will make the Advance Healthcare Directive invalid.
An Advance Healthcare Directive is not applicable if the person still has capacity to consent to or refuse treatment and therefore will not take effect if the person is not incapacitated. The treatment in question must also be materially the same as the specific treatment set out in the AHD that is requested or refused. At the time in question the circumstances set out in the Advance Healthcare Directive as to when such specific treatment is to be requested or refused must be materially the same.
Where any ambiguity arises as to the validity or applicability of Advance Healthcare Directive, a healthcare professional will, in an effort to resolve the ambiguity: –
- Consult with the directive maker’s designated healthcare representative, if any, or if there is no designated healthcare representative, with the directive maker’s family and friends; and
- Seek the opinion of a second healthcare professional. If ambiguity still is not resolved, the healthcare professional shall resolve the ambiguity in favor of the preservation of the directive maker’s life.
Where a directive maker lacks capacity, and is pregnant but the Advance Healthcare Directive does not specifically state whether or not she intended specific refusal or treatment in the Advance Healthcare Directive to apply if she were pregnant, and it is considered by the healthcare professional concerned that complying with the refusal of treatment would have a deleterious effect on the unborn, there shall be a presumption that treatment shall be provided and continued.
Where a directive maker lacks capacity, and is pregnant and her Advance Healthcare Directive sets out specific refusal or treatment that is to apply even if she were pregnant and it is considered by the healthcare professional concerned that the refusal of treatment would have a deleterious effect on the unborn, an application shall be made to the High Court to determine whether or not the refusal of treatment should apply.
In determining the application, the High Court shall have regard to: –
- The potential impact of the refusal of treatment on the unborn;
- If the treatment that is refused were given to the directive maker, the invasiveness and duration of the treatment and the risk of harm to the directive maker;
- Any other matter which the High Court considers relevant to the application.
Advance Healthcare Directive, apply to physical and mental health generally. However, if a person is suffering from a mental disorder and is being treated under the provisions of the Mental Health Act 2001 or the Criminal Law (Insanity) Act 2006, the legislation provides that the Advance Healthcare Directive does not have to be complied with. This raises obvious concerns about the equality of the legislation and compliance with the UNCRPD.
A treatment refusal in an Advance Healthcare Directive that relates to the treatment of physical illness not related to the amelioration of a mental disorder, the refusal shall be complied with.
Nothing in the Act shall be construed as imposing a civil or criminal liability on a healthcare professional who has complied or purportedly complied with a refusal of treatment set out in an Advance Healthcare Directive and who at the time in question had reasonable grounds to believe and did believe that the Advance Healthcare Directive was valid and applicable.
Nothing in the Act shall be construed as imposing a civil or criminal liability on a healthcare professional who has not complied with a refusal of treatment set out in an Advance Healthcare Directive and who, at the time in question, had reasonable grounds to believe and did believe that the directive was not valid or applicable or both.
An Advance Healthcare Directive made outside the State but that substantially complies with the requirements of the Irish legislation applicable to an Advance Healthcare Directive shall have the same force and effect in the State as if it were made in the State.