December-18-2015 in Healthcare Law
Living wills came one step closer to becoming law in June 2015 when the Department of Health’s statutory provisions on Advance Healthcare Directives (AHDs) were incorporated into the Assisted Decision Making (Capacity) Bill 2013. Aoife Nally provides an update.
An AHD, also known as a living will, is an advance written expression of preferences made by a person with capacity concerning treatment decisions that may arise in the event that the person subsequently loses capacity.
As matters currently stand, AHDs are regarded as persuasive but not legally binding. If implemented, the Capacity Bill will introduce the first legal framework to facilitate their making and provide for their effect.
Why make an AHD?
Commentators looking at the draft legal framework have noted that it is relevant to virtually all Irish people. As our population continues to age and medical innovation prolongs the natural course of life, advance care planning is becoming increasingly common. People living with progressive neurological disorders such as Alzheimer’s Disease may be particularly interested in making an AHD. Making an AHD will mean that such patients have greater control over the type of care they receive as their disease progresses, and their families will have the reassurance of knowing what care their loved one wanted. More generally however, AHDs are of interest to all adults given that any one of us may experience serious illness at any time rendering us incapacitated. For healthcare professionals, the existence of an AHD provides important information about their patients and their treatment preferences.
The formalities
The Capacity Bill sets out the formalities required to be followed in order for an AHD to be effective. The main prerequisites are that the maker of the AHD must have reached the age of 18, must have capacity to make an AHD and must do so voluntarily. The AHD must be in writing and must contain the signature of two witnesses, at least one of whom is not a family member.
The maker of an AHD can nominate a designated healthcare representative and can confer on that person various powers, ranging from simply interpreting the terms of the AHD to making more radical treatment decisions.
A refusal of treatment in an AHD must be complied with provided that three conditions are met:
• At the time in question, the maker of the AHD lacks capacity to consent to treatment
• The treatment to be refused is clearly identified
• The circumstances in which the refusal of treatment is intended to apply are clearly identified
An AHD can refuse life-sustaining treatment. However, this must be verified by a written statement to the effect that the directive is to apply even if the person’s life is at risk.
While it is anticipated that AHDs will normally involve the refusal of treatment, they may deal with circumstances where a person would prefer one form of treatment over another, or they may include a specific treatment request. One could envisage many circumstances where acceding to a treatment request may simply not be feasible for reasons such as medical futility or resource allocation. Consequently, a request for specific treatment in an AHD is not legally binding. Where a request for treatment is not complied with, the reason for non-compliance should be documented in the patient’s record.
The interpretation of an AHD will not always be straightforward. If there is any ambiguity, healthcare professionals should consult with the designated healthcare representative and seek the opinion of a second healthcare professional. If the ambiguity is still not resolved, healthcare professionals should address the ambiguity in favour of the preservation of life and there is a mechanism proposed in the Bill whereby an application can be made to the High Court for a direction.
An AHD can be revoked in writing at any time. We would recommend that they be reviewed regularly to ensure that they continue to accurately reflect the wishes of the maker.
Are there any restrictions?
An AHD cannot be used to refuse basic care and this reflects the reality that healthcare professionals would have serious ethical reservations about holding back such care. Basic care includes warmth, shelter, oral nutrition and oral hydration and hygiene measures.
The proposed legislation will not affect existing criminal law under which euthanasia and assisted suicide are prohibited. While a refusal of life-sustaining treatment even when it will result in an individual’s death is legitimate, this is clearly distinct from permitting euthanasia or suicide. An AHD requesting illegal intervention would not be upheld, for example a request for the giving of a lethal injection would be invalid.
Implications for Healthcare Professionals
Despite the fact that doctors are increasingly coming across AHDs in practice, they are at present only persuasive. The Bill when enacted should assist healthcare professionals in providing legislative guidance. Doctors should be aware, however, that failure to comply with a valid and applicable AHD could give rise to a claim in negligence, for assault and battery, or both. Under the Bill no liability will arise if the healthcare professional was unaware of the AHD at the time of treatment or had reasonable grounds to believe it was inapplicable.
Conclusion
The legislation when enacted will provide welcome certainty in the area of advance planning not just for those who receive healthcare in Ireland, but also those who provide it. The Bill is currently at an advanced stage and, while there is no formal timetable in place, it is hoped that it will be passed into law in mid-2016
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