Understanding Advance Healthcare Directives: Ensuring Medical Wishes are Respected

An Advance Healthcare Directive (AHD) is a legally recognised document that allows individuals to express their healthcare preferences for the future, to be followed if they become unable to make healthcare decisions for themselves due to illness or incapacity. This article written by Kevin Healy, Senior Associate CKT, and Elena O’Driscoll, Trainee Solicitor CKT, highlights the significance of AHDs for both individuals considering creating an AHD and healthcare professionals who may be involved in respecting these directives.

What is an Advance Healthcare Directive?

An AHD is a written document which allows a person to specify their medical treatment preferences should they become incapable of making decisions themselves. It becomes active when a person is incapacitated, and unable to communicate their wishes.

While the concept of advance healthcare planning has existed for some time, the Assisted Decision-Making (Capacity) Act 2015 provides a clear legal structure around the creation, validity, and enforceability of AHDs in Ireland. This ensures that a person’s healthcare wishes are respected, even if they are no longer in a position to communicate them directly.

What should be included in an AHD?

For an AHD to be legally valid, it must be in writing and signed by the individual, with two witnesses present. The person making the directive must be 18 years or older and have decision-making capacity at the time of signing. The AHD can specify treatments the individual wishes to refuse, such as life-sustaining measures, or clarify under which circumstances these treatments should or should not be administered. However, basic care, such as hygiene measures, food and liquids by mouth cannot be refused.

The AHD can also designate a healthcare representative, a trusted person responsible for ensuring the terms of the directive are followed. While requests for specific treatments are not legally binding, healthcare professionals who decide not to follow these requests must record their reasons in writing and give a copy of this record to the representative, within seven working days.

Importantly, so long as the individual has capacity, they can either change their AHD by variation or cancel their AHD by revocation.

Oversight and Enforcement

Under the Assisted Decision-Making (Capacity) Act, the Decision Support Service (DSS) oversees the implementation of AHDs in Ireland. Healthcare professionals are legally protected from liability if they comply with a valid AHD, particularly when it involves a refusal of treatment. However, if they fail to act in accordance with a valid AHD, or if a directive is deemed invalid, they may face legal consequences. Additionally, healthcare representatives are accountable to the DSS, which can review their decisions and investigate any concerns or complaints.

Healthcare professionals must adhere to a valid AHD, but there are exceptions. For example, if they have reasonable grounds to believe the directive is invalid, or if they are unaware of the directive at the time treatment is provided.

Conclusion

Advance Healthcare Directives are an essential tool for ensuring that individuals’ healthcare preferences are honoured, even when they cannot voice them. The legal framework provided by the Assisted Decision-Making (Capacity) Act 2015 offers clarity and protections for both individuals and healthcare professionals. Whether you are considering creating an AHD or need to understand how to implement one, consulting with a legal or healthcare professional can ensure that the individual’s wishes are accurately documented and legally valid.

For more information on Advance Healthcare Directives, please contact our Healthcare Team.