Advance Healthcare Directives Solicitors
What is an Advanced Healthcare Directive?
When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable, on a temporary
or permanent basis, to make your own decisions about your treatment or communicate your wishes. This may happen, for example, if you have a car accident or a stroke or develop dementia. In this situation you would be considered to ‘lack mental capacity’ to make an informed decision and/or communicate your wishes. In such situations, doctors have a legal and ethical obligation to act as you would wish if you could communicate your wishes.
If you cannot understand the situation you are in, e.g. if you are suffering from dementia, or cannot communicate, e.g. if you are in a coma, doctors will rely on the insight of your family to determine your likely wishes for treatment OR on your personally expressed wishes in an ‘Advance healthcare directive’.
An ‘advance healthcare directive’ 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. The term ‘treatment’ means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person and includes life-sustaining treatment.
The Assisted Decision-Making (Capacity) Act 2015 provides laws for advance healthcare directives. The act was signed into law on 30 December 2015 but has not yet been commenced to bring it into effect. An advance healthcare directive may be valid and enforceable, however, because by making such a statement you may have withdrawn your consent to specific medical or surgical treatment.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 but it is a very powerful indication of a what a person’s wishes would be in these situations.
While there are different tasks to complete throughout the process you will be guided step by step by your solicitor. Your convenience is important to us and we aim to minimise the amount of time you have to spend on the process. We offer video calls to save you from travelling to meet us and you can meet us at times convenient to you. When documents need to be signed we can come to meet you at your home.
The Assisted Decision-Making (Capacity) Act 2015 provides a legislative basis for advance healthcare directives. An advance healthcare directive is an advance expression made by a person with capacity which contains their will and preferences concerning medical treatment decisions which may arise if the person were to subsequently lack capacity or be unable to express their preference, for example, while in a coma. The directive may be a stand-alone document, or the person may also appoint a designated healthcare representative to exercise such powers as are conferred by the directive-maker under the directive.
Refusal of treatment
A specific refusal of treatment contained in an advance healthcare directive is as effective as if made at the time by the person with capacity. A person who has capacity and is aged over 18 may refuse treatment for any reason, even if it may result in their death. A refusal of treatment contained within an advance healthcare directive will be valid provided:
1. the person lacks capacity at the time of the treatment
2. the treatment is clearly identified in the advance healthcare directive
3. the circumstances in which the refusal is to apply are clearly identified in the directive
An advance healthcare directive may also contain a request for specific treatment in specific circumstances, but this is not legally binding. Where such treatment is not provided, the medical professional must record the reasons for the non-compliance and give this to any designated healthcare representative appointed.
An advance healthcare directive must be in writing, signed by both parties to it (if a designated healthcare representative is being appointed) and witnessed by two people. A person who has capacity may alter or revoke their advance healthcare directive at any time, in writing which must also be witnessed. An advance healthcare directive will be invalid if the person:
1. did not have capacity at the time they made the directive
2. did not make the advance healthcare directive voluntarily
3. has acted – with capacity – inconsistently with their advance healthcare directive
The advance healthcare directive will not be applicable where:
1. the person still has capacity
2. the treatment in question is different from that specified in the advance healthcare directive
3. the circumstances in question are different from those specified in the advance healthcare directive
Where a healthcare professional is unsure as to the applicability of an advance healthcare directive, they should discuss the patient’s presumed wishes with the designated healthcare representative, or if no designated healthcare representative has been appointed, with the person’s family. They should also get the advice of relevant medical, ethical or legal experts as appropriate.
If a person is pregnant but without capacity and her advance healthcare directive specifies the refusal of certain treatment which, if not administered, will adversely affect the unborn child, the healthcare professional may apply to the High Court to determine if the treatment can be administered or not.
Designated healthcare representative
A designated healthcare representative can be given one or both of the following powers by the directive-maker:
1. to advise and interpret the person’s will and preferences regarding treatment
2. to consent to or refuse treatment, including life-sustaining treatment based on the known will and preferences of the person as set out in their advance healthcare directive
The designated healthcare representative must keep a written record of all decisions made and cannot delegate their powers to someone else. A directive-maker may also designate a named individual to be the directive-maker’s alternate designated healthcare representative if the original designated healthcare representative dies, or is unable, for whatever reason, to exercise the relevant powers, provided that the named individual is eligible to act as such at the time concerned.
The following people cannot act as designated healthcare representatives:
- people convicted of an offence in relation to the person or the person’s property or the person’s child or that child’s property, including offences under the act or offences involving fraud or dishonesty
- people who have been the subject of a safety or barring order in respect of the person
- an undischarged bankrupt or person the subject of a debt settlement arrangement or similar (such a person may act in welfare only arrangements)
- a restricted or disqualified company director (such a person may act in welfare only arrangements)
- the owner or provider of a nursing home, a mental health facility or a residential facility for persons with a disability, unless the person is an immediate family member
- people who have entered their own decision-making arrangement or are without capacity themselves
- people who have previously been in the role and a court found that they should no longer continue in the role for the same person
- people under the age of 18
Further, where the person appointed as designated healthcare representative is a spouse or civil partner or cohabitant of the person, that person will automatically become disqualified from acting in the role if:
- the marriage or civil partnership is annulled or dissolved
- a written separation agreement is entered by the parties
- the parties cease to cohabit for a continuous period of 12 months
- the person appointed subsequently meets any of the ineligibility criteria
One of the best things I experienced was the personal touch. It can be daunting dealing with solicitors and I never felt like a hindrance. Gary was always available on the phone and email for me and always responded very quickly. I know of an elderly person dealing with Gary who really appreciated being able to meet face to face in a place where she felt comfortable. I think both types of meetings are great as clients have various needs which were met very easily in the way SOS operates.
Everything was communicated to us very clearly and replies were very prompt. Everything was explained to us thoroughly and any queries we had were dealt with in a very professional manner
Extremely impressed with the level of service from Shanahan O’Sullivan. Gary was excellent in explaining what was required and what he could do to assist us. His communication was always clear, detailed and to the point. He made the process extremely easy and straightforward. I would have no hesitation in recommending them to others.
Why make an advance healthcare directive?
You may wish to make an advance healthcare directive if you have strong feelings about a particular situation that could arise in the future. This might relate to a situation arising where one requires artificial ventilation, for example, or having a limb amputated following an accident or having a blood transfusion.
However, people in good health find it hard to imagine the whole range of situations that might befall them or the impact on them of refusing particular treatments, so it may be more effective for a directive to be drafted in the early stages of a disease or disability, as this will allow doctors to give realistic guidance about possible future situations.
Where you have, for example, been told that you have a terminal illness or form of dementia, you may wish to prepare an advance healthcare directive indicating the type of treatment you would not want to receive in the future. Making an advance healthcare directive may give you peace of mind in knowing that your wishes should not be ignored if you are unable to take part in the decision-making process at the relevant time.
Considering making an advance healthcare directive provides an opportunity to talk to and ask questions of your medical team during the early stages of an illness rather than delaying it until it is more difficult to participate. It can also provide an opportunity to discuss what may be difficult issues with family and friends. Alternatively, if you do not wish to discuss such matters with family and friends, a directive is a good way of letting them know your wishes if you are eventually unable to communicate.
Many serious illnesses such as cancer, failure of major organs (kidney, heart, liver, or lung), and serious brain disease such as Alzheimer’s disease may be considered irreversible early on. There may be no cure but the patient may be kept alive for prolonged periods of time if the patient receives life-sustaining treatments and continues to enjoy some quality of life. You may wish to consider which burdens of treatment you would be willing to accept in an effort to achieve a particular outcome, and at what point in time and in what circumstances, you would consider further treatment effort to be futile and/or that your quality of life would be intolerably low. This is a very personal decision that you may wish to discuss with your doctor, family, or other important people in your life.
You do not have to make an advance healthcare directive. You may decide to leave it to the healthcare professionals providing your treatment to decide what is in your best interests. When deciding this, they should take into account any evidence they have of your past wishes, your beliefs and values; and they should consult your friends, family and carers where appropriate.
Reviewing an advance healthcare directive:
It is important for the people providing your treatment to feel confident that you have not changed your mind since your advance directive was made. If new or improved medical treatments are now available, or your personal circumstances have changed, its validity may be questioned if you signed it many years ago. You will also want to check it on a regular basis to be sure it continues to reflect your views.
Therefore, a regular review is advisable. The frequency with which you do this will depend on your particular circumstances and state of health. You can change your advance directive at any time while you still have capacity to do so.
Notification of an advance healthcare directive:
You should take steps to make sure that the people providing your treatment will be aware of your advance directive at the relevant time.
This could mean discussing it with your GP, or other treating doctors, while you still have capacity to do so, and making sure that a copy of your decision is kept in your medical notes. It would also be helpful to make sure that your family and friends are aware of the decision and possibly provided with a copy of it. If you change or cancel your advance directive or make a new one, you should make sure that relevant people are informed.
Gary O’Sullivan
Solicitor, Head of Department
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