Assisted Decision-Making (Capacity) Act 2015: Advance Healthcare Directives

The Assisted Decision-Making (Capacity) Act 2015 introduces statutory recognition of Advance Healthcare Directives (AHD).  An AHD is a written instruction from a person regarding their medical treatment. Up to the commencement of the Assisted Decision-Making (Capacity) Act 2015, there has been uncertainty as to the exact legal status of AHDs.  However, once the Act is commenced, which is expected to be later in 2016, these will be recognised formally.

The legislation is set up to enable people to be treated according to their own will and preferences and to provide medical professionals with information about the person’s treatment choices.

In order for an AHD to be effective, it must be in writing and it must be witnessed by two people.  Notice will have to be given to specific people and the Decision Support Service (which will be set up under the 2015 Act) will have to be notified also.

A person is entitled to refuse treatment for any reason and this is notwithstanding that the refusal of treatment
(a) appears to be an unwise decision;
(b) appears not to be based on sound medical principles; or
(c) may result in his or her death.

The medical team must comply with an AHD if the following three conditions are met:
(a) the person lacks capacity to give consent to the treatment;
(b) the treatment to be refused is clearly stated in the AHD; and
(c) the circumstances in which the treatment refusal is intended to apply are clearly set out in the AHD.

If a person in their AHD requests a specific type of treatment, this request is not legally binding on the medical team but must be taken into consideration.  If the AHD is not complied with, the doctor must record the reasons for not complying with the request.

The 2015 Act provides that there will be an automatic application to the High Court where a woman who lacks capacity and is pregnant is involved and her AHD sets out a refusal of treatment that is to apply and it is considered by the doctor that the refusal of treatment would have a damaging effect on her unborn child.

As well as allowing people to make an AHD in writing, a person can also appoint a Designated Healthcare Representative.  The Designated Healthcare Representative has the power to advise and interpret what the person’s will and preferences would be in relation to treatment and can also have the power to consent to or refuse treatment up to and including life-sustaining treatment.

This new legislation will be important for doctors and also for patients in clarifying what the patient wants.  It will also take the guesswork out of trying to decide what a patient may or may not want.

If you have any queries, please contact Owen Burke or 01 4180 600.