Advance Healthcare Directives

Nature of Directive

Part 8 of the Assisted Decision-Making (Capacity) Act 2015 provides for Advance Healthcare Directives. An advance healthcare directive is given by a person with capacity and is an advance expression of his will or preferences concerning treatment decisions that may arise in respect of him if he or she subsequently lacks capacity.

In relation to a designated healthcare representative, an advance healthcare directive means the advance expression below under which the representative was designated as such.  A designated healthcare representative in this context means a named individual designated by the directive-maker, in his advance healthcare directive, to exercise the relevant powers.

Treatment in this context means an intervention done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, concerned. It includes life-sustaining treatment.

The purpose of the legislation is to enable persons to be treated according to their wills and preferences and to provide healthcare professionals with information about persons in relation to their treatment choices.

Directive Giver

A person who has attained 18 years of age and has legal capacity, is entitled to refuse treatment for any reason, including a reason based on his religious beliefs, notwithstanding that the refusal appears to be an unwise decision, appears not to be sound, based on sound medical principles, or may result in his death.

A person over 18 years who has the capacity may make an advance healthcare directive. A refusal of treatment set out in an advance healthcare directive shall be complied with provided the following conditions are met:

• at the time in question the directive-maker lacks the capacity to give consent;
• the treatment to be refused is clearly identified in the directive;
• the circumstances in which the refusal of treatment is intended to apply are clearly identified in the directive.

Effect of Directive

A request for a specific treatment set out in an advance healthcare directive is not legally binding but shall be taken into consideration during any decision-making process relating to the treatment of the person concerned if that specific treatment is relevant to the medical condition for which the directive-maker may require treatment.

Where a request for a specific treatment set out in an advance healthcare directive is not complied with in a decision-making process above, the healthcare professional concerned, shall record the reasons for not complying with the request in the person’s healthcare record, and shall give a copy of those reasons to the person’s designated healthcare representative, if any, as soon as practicable after they have been recorded but, in any event not later than seven days after they have been recorded but in any event, not later than seven days after they have been recorded.

Format

An advance healthcare directive shall be in writing. It shall contain particulars of the directive maker’s name, birth, contact details and shall be signed. It shall designate the name, date of birth and contact details of the designated healthcare representative, if any, and their signature. There should be two witnesses to their signatures.

An advance healthcare directive may be signed on behalf of the person making it, who has attained 18, who is unable to sign, where the directive is signed in his presence and at his direction by another and the signature is duly witnessed.

The advance healthcare directive is to be signed by the decision maker, in the presence of two witnesses, each over 18, and each of whom is not an immediate family maker. They shall apply their own signature to attest their witnessing of the making of the directive.

A decision maker who has the capacity may revoke the advance healthcare directive in writing. It may be altered by a person who has the capacity, in writing. An alteration must be signed and witnessed in the same manner. A revocation or alteration must be witnessed in the same manner as the making of the advance healthcare directive.

An advance healthcare directive made outside the State which substantially complies with the requirements of the legislation shall have force and effect in the State as if made in the State.

Form and Notice

The Minister may, for the guidance of persons wishing to make advance healthcare directives, specify forms of such directives, not inconsistent with the legislation, that may be used or adapted. The Minister may publish forms of advance healthcare directive that he has specified in such manner that he or she thinks appropriate, including by use of a website on the internet.

The Minister may make regulations in relation to advance healthcare directives, including regulations requiring the directive-maker to give notice of the making of the directive to the Director, and to other specified persons, and whether or not by reference, to those who are required to be notified of an application under the Act.

Regulations may require the Director to maintain a register of advance healthcare directives notified.

An immediate family member is a spouse, civil partner, cohabitant, child, son-in-law, daughter-in-law, a parent, stepparent, mother-in-law or father-in-law, grandchild, grandparent, uncle, aunt, niece or nephew.

An advance healthcare directive is not valid if the decision-maker did not make it voluntarily. It is not valid if while he had the capacity to do so, he has done anything clearly inconsistent with the decisions outlined in the directive.

Application of Directive

An advance healthcare directive is not applicable if at the time in question the decision-maker

• still has the capacity to give or refuse consent to the treatment in question,
• the treatment in question is not materially the same as the specific treatment set out in the directive that is requested or refused, or
• at the time in question the circumstances set out in the directive as to when the specific treatment is to be requested or refused, are absent or not materially the same.

An advance healthcare directive is not applicable to life-sustaining treatment unless this is substantiated by a statement in the directive to the effect that the directive is to apply to that treatment even if the person making the directive maker’s life is at risk.

An advance healthcare directive is not applicable to the administration of basic care. Basic care includes but is not limited to warmth, shelter, oral nutrition, oral hydration and hygiene measures. It does not include artificial nutrition or artificial hydration.

Where there is ambiguity as to the validity or applicability of the advance healthcare directive, the healthcare professional concerned shall, in an effort to resolve the ambiguity, consult with the decision maker’s designated healthcare representative, if any, or if there is none such, his family and friends and also seek an opinion of second healthcare professional. If, after he has complied with these requirements, the ambiguity has not been resolved, the healthcare professional shall resolve the ambiguity in favour of the preservation of the directive-maker’s life.

Pregnancy

Where a directive-maker lacks capacity and is pregnant, but her advance directive does not specifically state whether or not she intended a specific refusal of treatment set out to apply if she were pregnant, and it is considered by the healthcare professional concerned that complying with the refusal would have a deleterious effect on the unborn, there shall be a presumption that treatment shall be continued or provided.

Where the directive-maker lacks capacity and is pregnant and her healthcare directive sets out a specific refusal of treatment that is to apply even if pregnant, and it is considered that the healthcare professional concerned that the 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 shall apply.

In determining the matter, the High Court shall have regard to the potential impact of the refusal of treatment on the unborn; and if the treatment is refused were given, the invasiveness and duration of the treatment and the risk of harm to the directive-maker, and any other matter which it considers relevant.

Subject to the above requirements, an advance healthcare directive shall be complied with unless, at the time it is proposed to treat the directive-maker, his treatment is regulated by the Mental Health Act or he is subject to conditional discharge under the Criminal Insanity legislation.

Notwithstanding the above, where a refusal of treatment in an advance healthcare directive relates to a physical illness not related to the amelioration of the mental disorder, the refusal shall be complied with.

A specific refusal of treatment set out in an advance healthcare directive is as effective as if made contemporaneously by a person when he had the capacity to do so.

Healthcare Professional Position

Nothing in the legislation is to impose civil or criminal liability on a healthcare professional who has complied with or purported to comply with the refusal of treatment set out in a healthcare directive and who, at the time in question, had reasonable grounds to believe, and did believe, that the directive was valid and applicable.

Nothing in the legislation is to be interpreted as imposing 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 advance healthcare directive was not valid or applicable, or both.

Nothing is to be interpreted as imposing civil or criminal liability on a healthcare professional who at the time in question, has not acted in compliance with the refusal of treatment set out in the advance healthcare directive if he or she had no reason to believe that the directive existed, or if he had, reason to believe it existed but had no immediate access to its contents, and the urgency of the medical condition was such that the healthcare professional could not reasonably delay taking appropriate medical access until he or she had such access.

Nothing is to be interpreted as affecting any civil or criminal legislation arising at common law or legislation as a result of a failure to comply with a valid and applicable advance healthcare directive. Nothing is to affect the law relating to murder or manslaughter or assisted or suicide.