Advance Healthcare Directives

Introduction

An Advance Healthcare Directive, sometimes known as a 'Living will', is a statement about the type and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. There are a number of different words and phrases used to describe advance care directives. In some countries, there is legislation which provides for the recognition and enforcement of such directives and in some cases provides for the way in which they should be made.

The Assisted Decision-Making (Capacity) Act 2015 provides laws for Advance Healthcare Directives. The Act was signed into law on 30 December 2015 but has not yet been commenced to bring it into effect. Read more about the Act (pdf). This document describes the situation before the Act comes into operation.

An Advance Healthcare Directive may be valid and enforceable because by making such a statement you may have withdrawn your consent to specific medical or surgical treatment. It is not possible to state with absolute certainty that such a directive would be enforced because this depends on exactly what it says and whether or not it addresses the precise circumstances you face.

In some countries it is possible to appoint someone else to make decisions on your behalf if you are not capable of making them yourself. In Ireland this power is granted by creating an Enduring Power of Attorney. An Enduring Power of Attorney however specifically does not allow for the making of healthcare decisions by another person. While you may suggest to your doctor or hospital that the wishes of certain people may be taken into account, you cannot give anyone else any legal right to make decisions about your healthcare. Neither can you ensure that the doctor/hospital will abide by their wishes.

What is an Advance Healthcare Directive?

In general it can be defined as a statement about the kind and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. Sometimes the terms living will, advance statement, advance decision or advance refusal are used. Remember however, there are no precise definitions of these terms but they are all advance decisions about medical or surgical treatment. People usually make such directives to limit the treatment given in order not to prolong life, for example, a Do Not Resuscitate Order. Some people however make them in order to state that they want all possible treatments to be provided. It is unlikely that such a directive would be enforceable as it does not take account of the likely success of the treatment or of the costs involved.

There is no doubt that an advance directive is not enforceable if it specifies doing something which is illegal. For example, an advance directive stating that you want to be given medication which will hasten your death would not be enforceable. Withdrawal of treatment is not the same as positive action to end life. A directive which specifies the kind of treatment you want is unlikely to be enforceable, especially if it conflicts with the doctor's clinical decision. A directive is unlikely to be considered valid under circumstances which clearly were not envisaged when it was drawn up.

Rules

Family members and Advance Healthcare Directives

If a healthcare issue arises and the patient is incapable of making a decision, it is the practice to consult with next of kin. It is not clear what legal basis there is for this, as next of kin have no general right to make decisions on behalf of adults.

Medical ethics currently in force in Ireland state that consultation with next of kin is desirable if the patient is unable to make a decision or to communicate and provides for a second opinion if there is a difference of opinion between your family and the doctor.

Next of kin are (in order) spouses, children, parents, siblings. Partners have no legal status and may experience difficulties in seeing patients if family members object.

Medical ethics

Section 69(2) of the Medical Practitioners Act 1978 provides that the Irish Medical Council is obliged to provide guidance to the medical profession in Ireland regarding medical ethics. The Council have a Guide to Professional Conduct and Ethics for Registered Medical Practitioners.

Suicide and Assisted Suicide

You are entitled to refuse medical treatment but this does not mean that you may take positive measures to end your own life or another person's life.

The Criminal Law (Suicide) Act 1993 sets out the law in relation to suicide. Suicide itself or an attempt to commit suicide is not a crime. However, it is a criminal offence to help another person to take measures to end their life.

It is a criminal offence to aid, abet, encourage or procure the suicide of another person. That crime is usually referred to as assisted suicide. The maximum penalty for assisted suicide is 14 years imprisonment. If you help someone to commit suicide you may be charged with murder, manslaughter or assisted suicide depending on the exact circumstances. Such a charge could arise if you help another person to end their life even if the other person is terminally ill or wants to end their life. This applies to medical professionals in the same way as to other people.

Pain killing drugs which may also shorten life may be administered if the intention is to deal with pain and not to end life.

Further information

Think Ahead aims to help people think about, discuss and record what their preferences are in the event of emergency, serious illness or death. You can download the Think Ahead Form that helps to guide you through this process. Think Ahead is part of an initiative by the Irish Hospice Foundation.

Page edited: 11 April 2016