Living wills should not be legally binding, say doctors

Medical staff claim ‘disconnect’ between 2015 Act on patients’ advance healthcare directives and their professional ethics

Living wills, or advanced healthcare directives (AHDs), were provided for by The Assisted Decision-Making (Capacity) Act 2015.

Living wills, or advanced healthcare directives (AHDs), were provided for by The Assisted Decision-Making (Capacity) Act 2015.


Doctors in Ireland don’t want to see a new legally binding regime introduced which would allow people predetermine the medical treatment they would wish for in the event that they become incapacitated.

Doctors argue there is a “disconnect” between so-called living wills and their own professional ethics, and say a non-legally binding regime may better serve patients.

Living wills, or advanced healthcare directives (AHDs), were provided for by The Assisted Decision-Making (Capacity) Act 2015. These documents allow someone to set out the type and extent of medical or surgical treatment they may want at some point in the future should they become incapacitated and unable to communicate their own wishes.

For example, such a document could include information on treatment given to prolong or limit life, and may include a “Do Not Resuscitate Order” (DNR). Putting a legislative framework on living wills was seen as necessary, because while someone can create an enduring power of attorney, this does not allow for the making of healthcare decisions by another person.

Now however, doctors argue that there is a “disconnect” between part eight of the Act, which deals with AHDs, and the professional ethics that guide the work of doctors. The Irish Medical Organisation (IMO) doesn’t want people drawing up such living wills without the input of medical professionals.

“To expect a medical practitioner to comply with an advance healthcare directive when no medical advice or input has been provided poses a significant ethical and legal challenge for practitioners,” a spokesman for the IMO said.

As such, the IMO says it has “concerns about the Act as it currently stands”, and instead would rather see patients draw up non-legally binding plans.

Legal uncertainty

The issue is further complicated by the fact that despite legislation being passed in 2015, the Act has yet to be commenced, giving rise to legal uncertainty.

The Department of Health, which is responsible for commencing part eight, says it won’t give the commencement order until it has a code of practice for its use in place. But the multidisciplinary working group set up in 2016 to prepare this, which includes members from the Health Service Executive and the National Disability Authority (NDA), has yet to finish its work.

According to a spokeswoman for the department, this group is preparing a detailed series of recommendations on a code of practice and this “process is ongoing”. However, the doctors’ objections may be delaying the delivery of this code of practice.

Marie Kinsella, a partner in the health and regulatory department at Byrne Wallace solicitors, says that the courts do currently recognise AHDs as being legally binding.

But nonetheless, the whole area remains couched in uncertainty. As there has been no prescribed format for an AHD, it means that clinicians have been faced with the problem of determining whether the AHD is binding on them.

“For example, when managing an unconscious patient who has a purported AHD, the clinicians have had to make the determination as to whether the AHD covers the particular treatment being given, whether the person may have changed his or her mind since the making of the AHD or, if the refusal of treatment could result in death and this is not dealt with in the AHD, whether the person would continue to require the AHD to have effect.”

As such, she would like to see the Act come into effect, bringing certainty to AHDs, and setting out a “ prescribed format for the making, witnessing and registration of an AHD”.