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January 2012 saw the introduction of the Advance Healthcare
Decisions Bill 2012 (the "Bill"), a welcome
development in an area of legal uncertainty in Ireland. An Advance
Decision allows a person to express their wishes regarding medical
treatment at a time when they have capacity to do so and can
include a wish that certain treatment is not to be carried out or
continued in the future. In this way, an Advance Decision benefits
those who may not be capable of giving their consent or refusal to
treatment at a later date due to an incapacitating accident or
illness.
The Bill follows on from the recent introduction of the
"Think Ahead" project launched by the National Council
Forum on End of Life in Ireland, in October 2011. This initiative
encourages people to think about and prepare for their eventual
death by providing a form that records a person's treatment
preferences, which can then be accessed by named parties or
authorised health professionals, if the person is unable to
articulate their wishes.
As it stands under Irish law, the information contained in the
"Think Ahead" forms or any other Advance Decision, is not
legally binding. The Bill, if enacted, will be the first legal
framework in Ireland providing for the legal effect of Advance
Decisions. It provides that an Advance Decision, where valid, will
have the same force and effect as the contemporaneous consent or
refusal of treatment by a patient with capacity.
The Bill includes provision for an instruction to refuse
life-sustaining treatment and for the appointment of an attorney,
who can make certain decisions on the person's behalf. It also
specifically provides that a healthcare professional would not have
any legal liability where they follow an Advance Decision that they
believe is valid and applicable to the condition being treated.
Thus, a healthcare professional would have a full defence if they
acted in good faith.
There will inevitably be instances where the implementation of
an Advance Decision will conflict with the professional judgment or
ethical beliefs of some healthcare professionals. Practitioners
should always refer to the Medical Council's current guide to
professional conduct and ethics in such situations
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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