Advance Healthcare Directives
The Act, among other things, provides a legislative framework for advance healthcare directives ("AHD"). The relevant provisions of the Act in relation to AHDs have not yet commenced however, it is possible to create legally binding AHDs under Irish law and the Courts have indicated support for AHDs if capacity is lost and if certain requirements are met. In light of the global health pandemic, the DSS is therefore urging members of the public to articulate their wishes regarding their future medical treatment. The commencement of the relevant provisions of the Act will put AHDs on a statutory footing for the first time in Ireland.
Choosing to Refuse Future Treatment
An AHD is an expression made by a person who has reached the age of 18 years who has capacity in writing (to include voice, video recording and speech recognition technologies) of their will and preferences concerning specific treatment decisions that may arise if he or she subsequently lacks capacity. Even in advance of commencement of the relevant provisions of the Act, an AHD is legally binding when a person sets out in writing what treatments they would like to refuse in the future and the circumstances in which the refusal is intended to apply (e.g. a Do Not Resuscitate Order). Obviously, certain formalities must be followed for the AHD to be legally binding.
The Irish Hospice Foundation’s Think Ahead Form contains a template for an AHD and can be accessed here.
Choosing to Request Future Treatment
By contrast, under the Act, once the relevant provisions have been commenced, a request for specific treatment is not legally binding but should be followed if relevant to the medical condition for which treatment is required. Further, if healthcare professionals do not follow the individual's preferences, they are obliged to explain the reasons for not doing so. These principles are widely recognised but will have legislative support once the relevant provisions of the Act commence.
Role of Next of Kin
In a recent press release published on the Mental Health Commission's website , Ms Áine Flynn, Director of the DSS pointed out that there is a well-established misapprehension that a person’s ‘next of kin’ has some status as a substitute decision-maker and can legally give or refuse consent on behalf of someone who lacks capacity. This, as Ms Flynn made clear in the press release, is incorrect.
Stressing the importance of creating an AHD, Ms Flynn said that "The challenges we are experiencing in healthcare are unprecedented. Advanced healthcare planning can help to reduce the challenge and ensure that we retain control at all stages of our lives over the treatment decision that affect us."
Ms Flynn added, "Due to Covid-19, there has been some renewed attention on the making of wills. It is always important to plan for the disposal of our property after we are gone but we should be just as concerned about treatment decisions which arise when we are still in this world,”
Codes of Practice
The Advance Healthcare Directives Multi-Disciplinary Working Group commissioned by the Minister for Health submitted three draft codes of practice to Ms Flynn, as the DSS Director, in December 2018 (a draft code of practice for health and social care professionals, a draft code in relation to making an Advance Healthcare Directive and a draft code for Designated Healthcare Representatives). A public consultation then took place and the DSS is now at the final stages of implementing its code of practice, subject to Ministerial approval.
The introduction of the codes of practice and the commencement of the relevant provisions of the Act will be a welcome development in the context of the public health emergency. The press release published on the Mental Health Commission's website titled ' Covid-19: public urged to consider advance healthcare planning' can be accessed here.
In response to the current public health crisis, the DSS team have been equipped to work remotely and the establishment DSS project is continuing at pace.
“We can reassure all our stakeholders and all those who will use the DSS that the team is continuing to work and plan for the commencement of the legislation and the implementation of the service, despite the current challenges,” said Ms Flynn.
Among other things, the DSS is currently working on the detailed design and development of a new website which they are aiming to launch very shortly. Information on the legislation and ongoing progress updates on the implementation of the service will be available on the website.
Following recent positive engagement with the Department of Justice and Equality, the DSS is looking forward to agreeing a comprehensive time-bound costed plan for the commencement of the Act with a go-live date to which all stakeholders can commit.
 An AHD is valid if written on any piece of paper and it is signed, dated and witnessed by two people. Both witnesses need to be over 18 and at least one of them must not be a member of the individual's family and preferably should not be their attorney or their designated healthcare representative. If it is not possible to write the AHD, sound recording is also acceptable. The Irish Hospice Foundation’s Think Ahead Form contains a template for a legally binding Advance healthcare Directive and can be accessed here
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