Law Column: Remaining in control of your medical treatment

Law Column: Remaining in control of your medical treatment

Q; I have a chronic illness that is debilitating and often I have to spend time in hospital. I am not going to improve. A friend of mine suggested to me that I should make an Advance Healthcare Directive. Can you let me know what it is and should I consider making one?

A: I am very sorry to hear of your health troubles. 

An Advance Healthcare Directive (AHD) is a legal statement in writing, that can be made by any competent adult over 18 years of age. It can set out what you want and your preferences concerning healthcare treatment decisions, if in the future you should subsequently lack the capacity to make those healthcare decisions for yourself, or lack the capacity to give consent for treatments that you might require. 

It would cover healthcare treatment decisions such as the type and extent of medical treatments you would or would not want to undergo in the future that might arise in respect of you.

The AHD can include both treatment refusals and requests. A treatment refusal will be legally binding, notwithstanding the fact that the refusal appears to be an unwise decision, not based on sound medical principles or may even result in your death. 

It would not apply to the refusal of basic care, for example, warmth, shelter, oral nutrition, oral hydration and hygiene measures but it would apply, for example, to a refusal to take artificial nutrition or artificial hydration. On the other hand then, it is important to note that a treatment request will not be legally binding and will simply be taken into consideration by your doctor and other healthcare professionals.

There is no obligation on a person to make one. But in short, they are a decision-making tool that allow a patient to remain in control as they can give them a voice and can prevent unwanted medical interventions in the future. 

They provide certainty and clarity for the doctor treating the patient, as they are made aware in advance, of the patient’s specific wishes and preferences. They can also provide guidance and support to family members who will be alleviated from the burden of making difficult decisions on behalf of the patient regarding their health and medical treatment. They can help bring peace of mind, as a patient can rely on them aware that his or her wishes and choices will be respected regarding treatment if at a future time they are incompetent.

The Assisted Decision-Making (Capacity) Act 2015 provides the statutory framework for making AHD’s. While it was enacted in December 2015, only some parts of the Act have been commenced which include, the setting up of the Decision Support Service and a working group to establish the codes of practice for Advance Healthcare Directives. 

I advise that you contact your Solicitor for further advice on the matter.

*Aisling O’ Leary is a Partner in Cantillons Solicitors of 38/39 South Mall, Cork an award-winning law firm practising in all areas of litigation. Since the firm was founded in 1980, they have been involved in precedent making cases, amongst them Best V. Wellcome, Louise O’ Keeffe v. Ireland and most recently Costello V. HSE, a medical negligence claim in which they achieved damages of €17.8 million, the highest ever award in Irish personal injury litigation to date. Cantillons Solicitors received the award of Munster Law Firm of the Year (Over 5 Solicitors) at the AIB Irish Law Awards 2016.

*This weekly column is a readers’ service and is not intended to replace professional advice.

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