The public consultation recently announced by the Minister for Health, Dr James Reilly TD, on the draft General Scheme of legislative provisions for advance healthcare directives to be incorporated into the Assisted Decision-Making (Capacity) Bill 2013, should be of interest to all of us.

Making the announcement, Minister Reilly said that AHD’s “represent an important means by which people can exercise their autonomy, which is an integral component of a patient-focused model of healthcare”. He added that “given that there is currently no specific legislation pertaining to advance healthcare directives in Ireland, incorporating provisions for advance healthcare directives into the Assisted Decision-Making (Capacity) Bill 2013 represents an efficient and practical method of consolidating the law in this Advanced area”.

What are AHD’s?

AHDs also known as “living wills” are a set of written instructions that a person gives that specify what actions should be taken for their health, if they are no longer able to make decisions due to illness or incapacity. An example of a statement that could potentially appear in a living will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending doctor determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”

History

The “living will” is not a new phenomenon globally. It was first proposed in 1969 by an Illinois attorney. The attorney drew from existing US probate law, by which an individual can control property affairs after death (i.e., when no longer available to speak for themselves) and devised a way for an individual to express his or her health care desires when no longer able to express current health care wishes. As the individual was still alive but lacking capacity it was dubbed the “living will”.

Why the need in Ireland? And why now?

It is clear that there are many discrepancies in the medical care of the dying in Ireland. The results of which can make the whole experience unnecessarily prolonged and emotionally burdensome to both patients and their families. It is hoped that the new regulatory regime will ease this process.

The UK experience

England and Wales legislated for living wills under the Mental Capacity Act 2005. The area covered is only for an advance refusal of treatment for when the person lacks mental capacity and must be considered to be valid and applicable by the medical staff concerned. Research has shown demand for Living Wills in the UK has trebled in the two years previous to 2010, indicating the rising level of people concerned about the way in which their terminal illness will be managed.

Niall Colgan is a Cork based general pratice Solicitor with over 10 years experience in private practice.

Feb 9, 14