May-17-2016 in Healthcare Law
An Advance Healthcare Directive (AHD), also known as a living will, is an advanced written expression made by a person with capacity concerning treatment decisions that may arise in the event of the person subsequently losing capacity. As matters currently stand, AHDs are regarded as persuasive but not legally binding. However, the Assisted Decision-Making (Capacity) Act 2015 provides a legal framework to facilitate the making of a living will and provide for their effect.
What is an AHD?
There are two concepts provided for in respect of an AHD.
First, it allows a person to set out preferences concerning treatment decisions that may arise in respect of him or her if he or she subsequently lacks capacity. Treatment includes any intervention that is or may be done for therapeutic, preventative, diagnostic, palliative or other purpose related to the physical and mental health of the person and includes life sustaining treatment.
Second, it allows a person to appoint a healthcare representative who can act as an agent of the person making the AHD, should they subsequently lose capacity.
Key ingredients of an AHD
An AHD must:
- Be in writing and contain specified personal details and the signatures (subject to certain exceptions) of the relevant persons.
- It must be witnessed by at least one person who is not an immediate family member and those witnesses must sign the AHD.
- Similar to a will, an AHD may be revoked or altered but any alteration must comply with the same formalities involved in making the AHD initially.
- It can be made outside of the State and be applicable if it substantially complies with requirements of Irish law.
- It must be made voluntarily.
When does an AHD become applicable?
An AHD only becomes applicable where the person does not have capacity to make his/her own decisions with regards to healthcare treatment.
An AHD will not be applicable if the treatment in question is not materially the same as any treatment specified in the AHD or where 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.
Where there’s an ambiguity in the AHD, the healthcare professional involved must consult with the designated healthcare representative (if any) or the person’s family and friends and seek a second healthcare opinion. Any residual ambiguity is to be resolved in favour of the preservation of the person’s life.
Right to Refuse Treatment
A person is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs), notwithstanding that their refusal appears to be an unwise decision, appears not to be based on sound medical principles or may result in his/her death.
The maker of the AHD can refuse life sustaining treatment but only where the AHD contains a statement to the effect that the AHD is to apply to that treatment even if his or her life is at risk. They cannot refuse basic care, which is defined as including warmth, shelter, oral nutrition, oral hydration and hygiene measures, but does not include artificial nutrition or artificial hydration.
An AHD containing a refusal of treatment must be complied with where:
- The person was 18 years of age at the time of making the AHD and at that time had capacity.
- At the time in question, the person no longer has capacity to give consent to treatment
- The treatment to be refused is clearly identified in the AHD.
- The circumstances in which the refusal is intended to apply are identified in the AHD.
The Act sets out additional considerations to be taken into account where the maker of the AHD is pregnant or undergoing inpatient treatment for a mental illness and the AHD contains a refusal of treatment.
Obligation to comply with AHD
There is a general duty to comply with a valid and applicable AHD.
No liability attaches to a healthcare professionals who acts in accordance with an AHD where he or she had reasonable grounds for believing that the AHD was valid and applicable or has not complied with refusal of treatment set out in an AHD but at the time in question had reasonable grounds to believe that the advanced healthcare directive was not valid or applicable. Furthermore, no liability will attach to a healthcare professional who does not act in accordance with the AHD where he or she had no grounds for believing an AHD existed, or they knew an AHD existed but either had no immediate access to its contents or could not by reason of the urgency of the situation delay medical treatment until they had access to its contents.
Designated Healthcare Representatives
The Act also allows a person to appoint a healthcare representative who can act as an agent of the person making the AHD, should they subsequently lose capacity.
A designated healthcare representative:
- Must be over 18 and confirm willingness to act in writing.
- Must not be at the time or during the currency of the appointment, convicted of certain offences, subject of a safety/barring order relating to the AHD maker, owner or registered provider of a designated centre or mental health facility in which the AHD maker resides (subject to certain exemptions) or provider of medical services for a reward (subject to certain exemptions).
- Must ensure that the AHD is complied with.
- May also be conferred with the power to advise and interpret the preferences of the AHD maker in the context of the relevant AHD and/or consent or refuse to treatment (including life-sustaining treatment) based on the will and preferences of the AHD maker by reference to the relevant AHD.
No liability will arise where the designated healthcare representative is acting in good faith on the basis of what he or she reasonably believed to be the will and preferences of the AHD maker.
Role of the court
Where a dispute arises as to the validity or applicability of the AHD or whether the designated healthcare representative is acting in accordance with their powers, the Circuit Court has jurisdiction to determine the issues unless the treatment involved is life-sustaining. Where the treatment involved is life-sustaining the High Court will have jurisdiction.
Healthcare professionals cannot take any steps pending the court’s decision that would prevent life-sustaining treatment from being given or cause significant deterioration to the health of the AHD maker and/or the unborn.
The Act sets out the procedure for the bringing of an application before the court and also sets out certain offences. The Act also allows for Codes of Practice to be published which can be taken into account by the court.
Conclusion
Once commenced, the provisions of the Act will provide some welcome certainty in the area of advanced healthcare planning in Ireland. At the time of writing, it is hoped that that the Act will come into law by the end of this year.
This article is intended to provide a summary on certain aspects of the Assisted Decision-Making (Capacity) Act 2015. The complete text is available on www.oireachtas.ie.
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