Advance Care Directives

Introduction

An advance care directive, sometimes known as a 'Living will', is a statement about the type and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. There are a number of different words and phrases used to describe advance care directives. In some countries, there is legislation which provides for the recognition and enforcement of such directives and in some cases provides for the way in which they should be made. There is no such legislation in Ireland.

This does not necessarily mean that these advance care directives are not valid but it does mean that information and guidance from other jurisdictions may not apply and you should not rely on such information or guidance. In some countries there have been court cases where the validity of advance directives has been considered but again, there has been no such case in Ireland.

An advance care directive may be valid and enforceable because by making such a statement, you may have withdrawn your consent to specific medical or surgical treatment. It is not possible to state with absolute certainty that such a directive would be enforced because this depends on exactly what it says and whether or not it addresses the precise circumstances you face.

In some countries it is possible to appoint someone else to make decisions on your behalf if you are not capable of making them yourself. In Ireland this power is granted by creating an Enduring Power of Attorney. An Enduring Power of Attorney however specifically does not allow for the making of health care decisions by another person. While you may suggest to your doctor or hospital that the wishes of certain people may be taken into account, you cannot give anyone else any legal right to make decisions about your health care. Neither can you ensure that the doctor/hospital will abide by their wishes.

What is an advance care directive?

There is no legislation on advance care directive in Ireland. In general it can be defined as a statement about the kind and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. Sometimes the terms living will, advance statement, advance decision or advance refusal are used. Remember however, there are no precise definitions of these terms but they are all advance decisions about medical or surgical treatment. People usually make such directives in order to limit the treatment given in order not to prolong life. Some people however make them in order to state that they want all possible treatments to be provided. It is unlikely that such a directive would be enforceable as it does not take account of the likely success of the treatment or of the costs involved.

Given the fact there is no legislation addressing directives in Ireland, this doesn't necessarily mean that they are not valid in Ireland but their status is unclear. There has been a court case in which it was suggested that properly made advance directives would be valid and enforceable but this was not the issue in the case and so there was no ruling. It does seem that an advance directive which is clear and specific may be regarded as giving or withholding consent to specific treatment when you were in a position to make an informed choice.

There is no doubt that an advance directive is not enforceable if it specifies doing something which is illegal. For example, an advance directive stating that you want to be given medication which will hasten your death would not be enforceable. Withdrawal of treatment is not the same as positive action to end life. A directive which specifies the kind of treatment you want is unlikely to be enforceable especially if it conflicts with the doctor's clinical decision. A directive is unlikely to be considered valid if it relates to circumstances which clearly were not envisaged when it was drawn up.

Legislation was recently passed in the UK dealing with advance directives. The UK Mental Capacity Act 2005 uses the term advance decision. It provides that advance decisions made by mentally competent adults to refuse specified treatments may be valid if specific conditions are met. More stringent conditions are required for advance decisions to refuse life sustaining treatments.

In the UK, an attorney appointed under a Lasting Power of Attorney (similar to an Enduring Power of Attorney in Ireland) does have the power to make health care decisions on behalf of the person granting the power).