The Law Reform Commission (“LRC”) published a report on 15 September 2009 (the “Report”) on Advance Care Directives (“ACD”), commonly referred to as a living will. A living will is generally understood to be a document, which sets out an individual’s wishes regarding the medical treatment which they do or do not wish to receive in the future. Although recent Irish cases in this area indicate that the courts may uphold an ACD in certain circumstances, in the absence of a definite legal framework in relation to ACDs, uncertainty exists and both individuals and health care professionals face difficulties in dealing with ACDs due to the many complex issues surrounding this area. 

The Report proposes that a legal framework be established which would provide for an ACD to be made by an individual, specifying the forms of medical treatment which he/she does or does not wish to receive in the future. An ACD would take effect in circumstances where an individual is not in a position to make such decisions in the future due to illness or incapacity. An ACD is different from an enduring power of attorney (“EPA”) which provides for the appointment by an individual of another person (an attorney) to make business, financial and/or personal care decisions in respect of that individual and their affairs, should he/she become incapacitated in the future. An EPA does not provide for the attorney to make healthcare decisions. 

The Report contains a number of recommendations and includes proposed draft legislation on ACDs.  If implemented, these would provide certainty for individuals wishing to make ACDs as well as for health care professionals who come into contact with patients who have ACDs in place.  The recommendations include the following:

• an ACD could be made verbally although in the case of refusal of life sustaining treatment the ACD must contain certain information, be in writing and witnessed. Life sustaining treatment is defined by the LRC in the Report as treatment intended to sustain or prolong life and that supplements or maintains the operation of vital bodily functions that are incapable of independent operation;
• individuals should not be allowed to refuse basic care (for example warmth, shelter, oral nutrition, hydration and hygiene measures); and
• an individual could nominate, by means of an ACD, a healthcare proxy. A healthcare proxy may be conferred with the power to ensure that the terms of the ACD are carried out and provide clarification should there be any ambiguity in relation to the terms of the ACD. They could also be given a general power to refuse health care treatment or provided with specific powers.  

The LRC have recommended that their proposals would not affect the current criminal law, which prohibits both euthanasia and assisted suicide. It also recommends that a code of practice be issued to assist health care professionals in relation to dealing with ACDs.
 
The recommendations and proposed draft legislation in relation to ACDs are proposals only but are likely to be the subject of public debate in the coming months.