An Advance Healthcare Directive (AHD) is one of the five types of decision supports contained in the new Assisted Decision-Making Act. We review this new legal provision below.

What is an Advance Healthcare Directive?

Essentially, an AHD is a legal document which captures a person’s future healthcare wishes. The AHD takes effect if the person lacks capacity to make decisions regarding their own healthcare. It has always been possible to create an advance healthcare directive, even if that exact phrase was not always used. For example, a person with a serious heart condition or undergoing an operation may have documented in their healthcare records that they do not wish to be resuscitated in the event of a medical crisis. However, with the commencement of the new Assisted Decision-Making Act, AHDs now have a statutory basis in Irish law and as a result, in guidance and rules around creation and implementation.

What will an Advance Healthcare Directive look like?

An AHD must be in writing, and signed by both the person making the AHD and two witnesses. It may be a very prescriptive healthcare plan, or it may be quite simple. It can be amended at a later stage. There is no right to a request for a specific treatment, although such requests will be taken into consideration. By contrast, there is a right to refuse specific treatments, so long as the treatment and circumstances are clearly identified. Similarly, future wishes in respect of life-sustaining treatment must be very clearly detailed in order to be valid.

An AHD may also appoint a designated healthcare representative. This is someone who has the power to make healthcare decisions on behalf of the person making the AHD, if the latter loses capacity to make such decisions.

Will there be any oversight of Advance Healthcare Directives?

The Decision Support Service (DSS) is a public body which oversees decision-making supports under the new Assisted Decision-Making Act. The DSS will maintain a register of AHDs, and further have the power to review AHDs. The register may be accessed by healthcare professionals, designated healthcare representatives and other persons who can establish a legitimate reason for doing so. Designated healthcare representatives are answerable to the DSS, who may request further information in relation to decisions taken, or who may consider complaints and allegations against the representative and take further action as appropriate.

Do I have to comply with an Advance Healthcare Directive?

A medical professional who is faced with an AHD when caring for someone who lacks capacity should be aware that the legislation protects against criminal or civil liability where:

• There is compliance with a valid AHD which directs a refusal of treatment
• There is not compliance with an AHD which directs a refusal of treatment, where there are reasonable grounds to believe the AHD is not valid
• There is failure to act in compliance with an AHD where the medical professional was either unaware of its existence or unable to access it within the required timeframe

Medical professionals should also be aware that the legislation references the possibility of criminal or civil liability where there is a failure to comply with a valid AHD.

Conclusion

The enhanced status of AHDs under Irish law is most welcome, not only from the perspective of patients, but also to assist medical professionals treating patients who may suddenly lack capacity. We expect that the new regime will give rise to practical queries at the start.

Our team is always available to advise and discuss matters related to the Advances Healthcare Directives, so whether you are seeking an informal call or urgent advices, please get in touch with a member of our Health & Prosecutions Team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.