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Advanced Healthcare Directives (AHD)

In the face of the coronavirus pandemic, we should all apply our minds to the end of our lives and express our wishes in a written document. The Irish Hospice Foundation has published the most comprehensive form entitled “Think Ahead”. Eventually, these forms will have legislative recognition and medical staff will be expected to abide by our wishes subject to all the legal qualifications being in place.

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At the outset it should be noted that AHDs are not yet recognised by the law. The Assisted Decision Making (Capacity) Act 2015 introduced the concept. The Act was signed by the President on 30 December 2015 but most of it has yet to be implemented and, when it is, it will be significantly altered.

In a celebrated case heard in 1995 and entitled In Re a Ward of Court the Supreme Court listened to the arguments put forward on behalf of the parents of a 45 year old woman, who was in a persistent vegetative state due to a cardiac episode, to allow her come off a life support system. The action was taken, not by the patient or her parents, but by the Office of Wards of Court. In granting the order, the court gave judicial approval of a dignified death based on the health carer’s pleadings. At the same time it lamented the absence of a statutory guideline.

Very quickly, in 1996, the Oireachtas passed into law the Powers of Attorney Act. This piece of legislation created an instrument known as an Enduring Power of Attorney (EPA). An EPA allows a competent person to decide who will make decisions on that person’s behalf when he or she becomes mentally incompetent. Until that moment, decisions could only be made in that circumstance by the High Court where the individual had been committed as a ward of court.

While the 1996 Act was helpful it did not go far enough. The concept of wardship is outdated and the 2015 Act sought to abolish it. Part 8 of that Act provided for the creation of an AHD and the appointment of designated healthcare representatives by the directive makers. The 2015 Act succeeded in setting up the Office of Decision Support Services and an officer was appointed. She has been active over the past 4 years in establishing a set of protocols involving all sorts of people who have a stake in the care and general lookout for persons who are unable to make decisions on their own account. These protocols will be put to public consultation before a further Bill is brought before the houses of the Oireachtas at some stage in the future.

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