A new legal provision for living wills

While Advance Decisions (more commonly known as Advance Care Directives or Living Wills) are legally persuasive, they are not legally binding in Ireland, but a new Bill – The Advance Healthcare Decisions Bill 2012 – will provide the first legal framework to facilitate their making and to provide for their effect, write Rebecca Ryan and Paul Clifford.

An Advance Decision allows a person to express their wishes regarding medical treatment at a time when they have capacity to do so and can include a wish that certain specified treatment is not to be carried out or continued in the future.  In this way, an Advance Decision benefits those who may not be capable of giving their consent or refusal to treatment at a later date due to an incapacitating accident or illness.

Rebecca Ryan and Paul Clifford
Rebecca Ryan and Paul Clifford

January 2012 saw the introduction of the Advance Healthcare Decisions Bill 2012 (the “Bill”), a welcome development in this area of legal uncertainty in Ireland.  As it stands under Irish law, while Advance Decisions (more commonly known as Advance Care Directives or Living Wills) are legally persuasive, they are not legally binding.  The Bill, if enacted, will provide the first legal framework to facilitate their making and to provide for their effect.  The basis for the Bill is found in the 2009 Report of the Law Reform Commission on Bioethics: Advance Care Directives.  It is hoped that it will assist healthcare professionals by providing clarity in circumstances where they currently must make decisions without legislative guidance.

The Bill also follows on from the recent introduction of the “Think Ahead” project launched by the National Council of the Forum on End of Life in Ireland in October 2011.

Under the Bill, an Advance Decision, where valid, will have the same force and effect as the contemporaneous consent or refusal of treatment by a patient with capacity.

This project was developed to encourage people to think about and prepare for their eventual death by providing a guide to the recording and registering of preferences for future treatment and care in the case of an emergency or serious illness.  The initiative introduced a Form that records these preferences, which can be accessed by named parties or authorised health professionals if the person is unable to articulate their wishes.  The Form also includes the contact details of a health proxy who would be able to play a role in the treatment of that person.

At present, the information contained in “Think Ahead” Forms or any other Advance Decisions are only persuasive, with the final decision regarding treatment and care ultimately resting with the practitioner concerned.

Under the Bill, an Advance Decision, where valid, will have the same force and effect as the contemporaneous consent or refusal of treatment by a patient with capacity.  The Bill also provides for an instruction to refuse life-sustaining treatment (with several accompanying safeguards) and for the appointment of an attorney, who can make certain decisions on the person’s behalf.  However, a person will not be permitted to refuse basic care in an Advance Decision.

In order to be valid, the Bill provides that an Advance Decision must be:

  1. made in writing;
  2. dated;
  3. signed and witnessed; and
  4. signed and attested by a registered medical practitioner.

It further provides that a record of an Advance Decision in a patient’s medical notes is also capable of being considered valid. The maker of the Advance Decision may withdraw it at any time as long as they have capacity to do so and this withdrawal does not have to be in writing.

The Bill specifically provides that a healthcare professional would not have any legal liability where they follow an Advance Decision that they believe is valid and applicable to the condition being treated.  Thus, a healthcare professional would have a full defence if they acted in good faith.

There will inevitably be instances where the implementation of an Advance Decision will conflict with the professional judgment or ethical beliefs of some healthcare professionals.

The Bill also provides for an instruction to refuse life-sustaining treatment (with several accompanying safeguards) and for the appointment of an attorney, who can make certain decisions on the person’s behalf.

The Medical Council’s current guide to professional conduct and ethics explicitly recognises the role that Advance Decisions can play in the treatment of patients and provides useful general guidance.  It sets out that they should be adhered to where they are based on an informed choice, they cover the situation that has specifically arisen and there is no evidence that the patient has changed their mind.  Where there is any doubt regarding any of these conditions, the healthcare provider should make their decisions based on the patient’s best interests.  In determining the best interests of the patient, family members and persons authorised to make decisions on the patient’s behalf should be consulted.

Rebecca Ryan and Paul Clifford are from Matheson Ormsby Prentice’s Healthcare Group. For information, contact rebecca.ryan@mop.ie  or paul.clifford@mop.ie