Advanced Healthcare Directives

A national debate has commenced on Advanced Healthcare Directives ('Directives') also known as Living Wills. There had previously been a private members bill introduced to the Dail on such Directives. The Department of Health has now commenced a consultation process and has also published a draft general scheme which presumably shall be incorporated into the intended legislation entitled, Assisted Decision-Making (Capacity) Bill 2013.

Advanced Healthcare Directives have been operating in a legal vacuum. Whilst they have been generally recognised by the Courts there was no legislative framework governing them. The above Assisted Decision-Making (Capacity) Bill will hopefully remedy this situation, sooner rather than later.

Simply put the Advanced Healthcare Directive is a statement by an individual directing what medical treatment he/she would not want in the future. This direction will be legally binding once the legislation is enacted and commenced. Also the Directive can indicate what treatment you would like in the future. However this is only indicative and is not legally binding. Ultimately what treatment you should receive is a medical decision and the legislation envisages you having an input into the treatment but that ultimately it will acknowledge that you cannot force a Doctor to give you treatment if they are of the view that it is not appropriate. That being said your view will be taken into account.

The Advanced Healthcare Directive provides for you to have a say on your medical treatment in the future at a time when you no longer have the necessary capacity to make the decisions. It will allow you to ensure that your wishes are respected and it gives guidance to the Doctors regarding what treatment you would want in the circumstances.

The draft scheme published by the Department gives some indication of what needs to be done. The legislation envisages a person being entitled to appoint another person called a Patient Designated Healthcare Representative to make treatment decisions for them or to interpret and implement the terms of their Advanced Healthcare Directive. Also it recognises that a person can also appoint another person to hold an Enduring Power of Attorney. Previously the Attorneys made decisions about property and financial matters. Now they will also be able to make decisions about healthcare matters, within the framework provided by the legislation.

Anyone over the age of 18 can prepare such a Directive once they have the legal capacity to do so. It has to be in writing and be precise and also witnessed. As long as you have the necessary mental capacity you can change your mind at any time.