Questions and Answers about the Assisted Decision-Making (Capacity) Act 2015
Questions and Answers about the Act
What does it all mean?
Until now, Advance Healthcare Directives were recognised under common law. If a person made one, it was recognised as legal by the courts, but there was no legislation in this area. That has now changed. The Government has enacted a new law to govern Advance Healthcare Directives. It is included in the Assisted Decision-Making (Capacity) Act 2015, which was passed by the Oireachtas in December 2015.
Were Advance Healthcare Directives legal in Ireland even before this Act passed?
Yes, they were legally binding in Ireland according to Irish case law and international law to which Ireland is bound, although there was no Irish legislation on Advance Healthcare Directives before now. The decision of the Irish Supreme Court in Re a Ward of Court (No 2)  2 IR 79 says that Advance Healthcare Directives are recognised by Irish law, provided that the author was competent and that the directive was specific to the patient’s current situation.
What’s the point of this new provision?
It’s an important law because it promotes the autonomy of a person to make decisions about their treatment in line with their will and preferences. It also helps healthcare professionals by providing them with important information about a person and their preferences in relation to treatment.
What does the new provision actually do?
It does a few things:
- It outlines what needs to happen to make a Directive legally binding.
- It gives a structure when there is a dispute about the validity of an Advance Healthcare Directive.
- It provides a structure to help people in having their wishes fulfilled.
- It provides for people to be able to appoint another person called a Designated Healthcare Representative to make treatment decisions for them or to interpret the terms of their Advance Healthcare Directive. The legislation also sets out who cannot act as a Designated Healthcare Representative.
- It recognises that a person can also nominate another person by way of an enduring power of attorney to make certain specified healthcare decisions and act on his/her behalf at a time in the future when they lack capacity.
How do we know that a person was not forced to make a Directive?
The provision has safeguards against this, such as the fact that the directive must be witnessed and the legislation specifies who may not act as a witness.
Does this Provision not undermine the relationship between the doctor and patient?
This provision will enhance the relationship between the doctor and patient by supporting the concept of a partnership in healthcare, which is promoted in Irish health policy, and by providing clarity and certainty about the patient’s wishes to healthcare professionals.
Does it not undermine public trust in the medical profession to do the right thing?
Making an Advance Healthcare Directive will actually help doctors. It will guide any doctor who is treating a patient to care for them in a way that the patient would have wanted.
Does this undermine the role of families?
The doctor’s duty of care is to the patient. Therefore, the patient’s views on treatment are paramount. Of course, these views may be at odds with the views of a patient’s loved ones or even the opinion of the doctor. But the wishes of a patient who has capacity when making their decisions must be respected. Advance Healthcare Directives can be helpful in preventing family disputes during difficult times by removing uncertainty about a person’s wishes.
Can legislators be accused of wanting to save money through this provision by not wanting to treat older people?
No. This law brings Ireland into line with international conventions and fulfils government policy to take the patient’s views into account when treatment decisions are being made. It enhances the engagement of older people in their healthcare.
What should happen now?
The Act provides that Codes of Practice should be drawn up immediately to support Healthcare Professionals in understanding the new law and enforcing it. The Forum on End of Life in Ireland and the Irish Hospice Foundation urge the Government to support, enable and encourage people of all ages to discuss and plan for end of life needs – to Think Ahead.