Advance Healthcare Directives under the Assisted Decision-Making (Capacity) Act 2015

In 2015, Ireland welcomed the long-awaited enactment of the Assisted Decision-Making (Capacity) Act 2015 which replaced the Lunacy Regulation Act 1871.  The landmark piece of legislation was signed into law on the 30th December 2015 and it is anticipated that it will be commenced by Ministerial Order later in 2016. The Act provides a statutory framework for individuals to make legally binding agreements such as an advance healthcare directive. An advance healthcare directive can be defined as: an express statement made by a competent adult over 18 years of age relating to the type and extent of medical treatments he or she would or would not want to undergo in the future should he or she be unable to express consent at that time.It is a useful tool for a person to enact (if they so wish) in the event that they may lose mental capacity to make their own decisions in the future.  It will allow an individual to make advance refusals or requests for treatment based on their own will and preferences.  A loss of capacity may occur for a number of reasons for example, development of dementia, mild cognitive impairment, or through an acquired a brain injury through a tragic accident.Advance healthcare directives can include both treatment refusals and requests. A treatment refusal will be legally binding. However it is important to note that, a treatment request will not be legally binding and will simply be taken into consideration by the doctor and other healthcare professionals.An individual can make any treatment refusal notwithstanding the fact that the refusal appears to be an unwise decision, not based on sound medical principles or may even result in the patient’s death. Therefore, having the power to refuse a treatment is a significant advantage of creating an advance healthcare directive. An advance healthcare directive can also include the appointment of a designated healthcare representative who makes healthcare decisions for the person at a time in the future when he or she is unable to make them for him or herself.Advance healthcare directives are not applicable to life sustaining treatment unless there is a specific statement to this effect in the document along with an acknowledgement that the person understands that this refusal may lead to death.   It also is not applicable to the refusal of basic care which includes ‘warmth, shelter, oral nutrition, oral hydration and hygiene measures but does not include artificial nutrition or artificial hydration’. Patients involuntary detained under the Mental Health Acts will not be in a position to make an Advance Healthcare Directive. Despite these limitations, the Assisted Decision-Making Capacity Act 2015 strengthens the rights of individuals who experience loss of capacity.Why should a person make an advance healthcare directive?Advance healthcare directives are positive documents that preserve a patient’s right of autonomy and self-determination. They help maintain the voice of the patient and can prevent unwanted medical interventions in the future. They provide certainty and clarity for the doctor treating the patient, as they are made aware in advance of the patient’s specific wishes and preferences.Besides the practical advantages of advance healthcare directives, they offer many therapeutic benefits. A patient is likely to feel relieved and comforted knowing his or her wishes and choices will be respected regarding treatment when they are incompetent. It also provides guidance and support to family members who will be alleviated from the burden of making difficult decisions on behalf of the patient regarding their health and medical treatment. Most important, it allows the patient to remain in control in an otherwise frightening time in their life.Advance healthcare directives are available in countries such as the US, UK, Denmark, Finland and the Netherlands and are now considered powerful tools for medical decision-making. It is anticipated that their use is likely to become increasingly common in the future and their introduction will be welcomed into Irish law.Once the law is commenced later this year, any applicable adult with capacity will be in a position to draft an advance healthcare directive.  Cantillons Solicitors will be happy to assist with advice and drafting the directive once the law comes into force.Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or info@cantillons.com if you would like more information.* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.  Share on Social

Karen Kearney

Partner

Experience

In her twenty years as a practising solicitor, Karen has worked with a number of leading law firms in Limerick and Cork where she has acquired extensive experience in all areas of the law, with a particular expertise in medical negligence cases.

Karen has represented clients effectively in many forums including the District Court, Circuit Court, High Court, Employment Tribunals and Coroner’s Court. She has acted for, and advised, State Bodies in respect of all areas of the law to include childcare law; employment issues; food safety and health and safety issues.

Karen joined Cantillons Solicitors in November 2009 and works in the Medical Negligence Department practising clinical negligence litigation.  She is expertly assisted by Patricia Sisk and April Wiseman, Legal Assistants.

She is very proud to be a member of the medical negligence team which  has been involved in precedent-setting  cases since 1980 and which received the inaugural award of Litigation Team of the Year, National Irish Bank Law Awards in 2012.

Karen regularly attends international conferences in order to add to  her pool of her experts and ensure access to the world’s best. She is also regularly asked to speak at national and international conferences concerning medico-legal issues. She is a regular speaker at the annual Medical Law Conference; giving presentations on healthcare law, practice and procedure to employees in the healthcare section and fellow lawyers. This lecturing experience means that Karen has an excellent grasp of law in theory as well as in practice.

Karen has featured on national television and on local and national radio  in relation to this specialised area of medical negligence litigation.She has been commissioned to write opinion pieces on topical issues in the medical negligence area, published in national newspapers. Notably, she first highlighted in the Irish Examiner, the Minister for Health’s failure to introduce a statutory Duty of Candour-  a legal requirement for medical staff, nurses and management to tell patients and their families if a mistake has been made which adversely affects the patient’s health – despite the Minister’s promise to do so.

Karen also writes a weekly column in a local daily newspaper, the Evening Echo, addressing reader’s legal queries. This column  appears in Monday’s edition of the paper.

Karen has developed real expertise in her field and has shown great dedication in pursuing complex injury cases to settlement.

Karen gets referrals from patients nationwide. She represents her patients with determination and compassion.

Qualifications

• BCL Honours 1992
• Admitted to the Roll of Solicitors in Michaelmas 1996

Associations

• Former Secretary of Limerick Bar Association
• Former member of the Litigation Committee of the Law Society of Ireland
• Member of the Medical Injuries Alliance
• Member of Action Against Medical Accidents (AvMA)