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22 May 2022

'Making health care decisions known in advance' by Lynch Solicitors

'Making health care decisions known in advance' by Lynch Solicitors

'Making health care decisions known in advance' by Lynch Solicitors

We discussed Will and Enduring Powers of Attorney in our previous edition articles. The next part of the set is an Advance Healthcare Directive.

We recommend that if you are considering giving your Attorney the power to make personal care decisions, you make what is called an 'Advanced Healthcare Directive'.

This document sets out in advance your preferences for treatment decisions.

Treatment means an intervention that may be made for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person. This includes life-sustaining treatment.

The Directive's objective is to enable people to be treated according to their wishes. It provides healthcare professionals with information about persons on their treatment choices.

The Directive can include a refusal of treatment, even if the refusal:

  • Appears to be an unwise decision
  • Seems not to be based on sound medical principle OR
  • May result in the person's death

This is a document that should be done in consultation with your doctors. You should make your Attorneys aware of it and ensure that they understand it.

The legal position is that a request for specific treatment set out in an AHD is not legally binding (a person cannot demand unnecessary treatment).

Still, it must be considered if it relates to treatment relevant to the medical condition of the maker of the Advance Healthcare
Directive.

Where a request for treatment is not complied with, there has to be a record of the reasons for non-compliance given to the persons designated health care representative.

However, a refusal of treatment in an AHD has to be complied with if 3 conditions are met :

1. If at the time in question you cannot give consent to treatment ;
2. The treatment to be refused is clearly identified in your AHD;
3. The circumstances in which the refusal of treatment is intended are clearly identified in your AHD.

An AHD can be revoked or altered in writing, provided the person can do so. Any alteration of an AHD must be signed and witnessed in the same manner as the original AHD.

An AHD also allows you to nominate a Designated Healthcare Representative. You will authorise this individual to interpret your AHD or make healthcare decisions on your behalf.

They can have such authority as you decide to give them, up to and including the power to consent to/refuse life-sustaining treatment.

There is no obligation to make an Advance Healthcare Directive. It is entirely your decision.

Notably, an Advance Healthcare Directive will come into effect only if you lose capacity* and cannot communicate your healthcare decisions.

We would recommend that you speak to your GP or primary medical professional before completing this or to inform them that you have completed this and what your wishes are.

Designated Healthcare Representative

If you wish, you can appoint a Designated Healthcare Representative. This person may be a trusted family member, close friend or independent advocate who will act on your authority. Therefore, it is essential to speak to them regarding the care you would like or not wish to have.

You do not have to appoint a representative. You can merely set out your wishes in an Advance Healthcare Directive provided the formalities are followed, signed and witnessed by two persons.

If you decide to nominate a representative, they must be over 18 years of age, not caring for you in return for payment, and not someone who owns or works in a residential or healthcare facility where you are living. This person must sign the Directive and confirm their willingness to act on your behalf.

Your Designated Healthcare Representative may be empowered to :

  • Advise and interpret my wishes regarding treatment which I have set out in this Advanced Healthcare Directive.
  • Ensure that the wishes I have expressed in this Advance
  • Healthcare Directive are carried out based on my will and preferences according to my Advanced Healthcare Directive.
  • Consent to or refuse medical treatment on my behalf, up to and including life-sustaining treatment based on my will and
    preferences according to my Advance Healthcare Directive.

It would help if you considered setting your directives on life-sustaining treatment and cardiopulmonary resuscitation* (CPR).

These wishes will impact if you become unable to participate effectively in decisions regarding your medical treatment.

Life-Sustaining Treatments

Life-sustaining treatment replaces or supports a bodily function that is not operating correctly or is failing. Life-sustaining therapies can be used temporarily if someone has a treatable condition until the body can resume its normal function. However, sometimes the body will never regain that function.

If there is no prospect for my recovery, you may direct :

  • That you wish to have whatever life-sustaining treatments that the healthcare professionals may consider necessary and
    appropriate.
    OR
  • That you wish to have whatever life-sustaining treatments that your healthcare professionals may consider necessary unless this will require the treatments, which you do not wish to receive, even if this refusal will result in your death:
    - Being placed on a mechanical ventilator/breathing machine
    - Dialysis
    - Artificial feeding intravenously
    - Artificial feeding through a tube in the nose (nasogastric tube)
    - Artificial feeding through a tube in the abdomen (PEG tube)

There may be some life-sustaining treatments you would not want to receive in any situation. These may include dialysis, being placed on a ventilator or artificial feeding.

If you develop an infection, you may decide not to have intravenous antibiotics. You may also choose not to have oral antibiotics.

If there are particular life-sustaining treatments that you do not wish to receive, please mention these below. If you want
to refuse life-sustaining treatment, you need to expressly state this and state that the Directive is to take effect even if your life is at risk.

In addition to setting out the specific treatment, it is also necessary to specify the particular circumstances regarding the
refusal of such treatment, e.g. If you have terminal cancer, you do not wish to receive chemotherapy; If you are in a severe
accident, you do want to be placed on a ventilator.

Cardiopulmonary Resuscitation (CPR)

It is essential to discuss your health with your doctor to make resuscitation preferences as some conditions will not benefit from CPR.

You can direct your preference, some examples of your directive:

  • It has been explained to me by Dr ….that I would not benefit from CPR, and I understand this. Therefore, I do NOT want CPR
    OR
  • I would only like CPR attempted if my doctor believes it may be medically beneficial.

Other Preferences

There may be other situations you would find unacceptable about your health. You can give details of these in the AHD.
It is essential to specify specific treatments you do not want and the circumstances in which your refusal of treatment is to apply.

Afterthought

It is essential to keep in mind that an Advance Healthcare Directive can be changed at any time and needs to be reviewed regularly.

It should be readily accessible and known to anyone who cares for you or may have to take on the role of caring for you.

We recommend that you give thought to the directives you include and consult the required professionals.

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052 61 24344.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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