Advance healthcare directives (ahds) are important

We strongly advise you discuss your AHD with your healthcare team who can guide you in making these decisions.

You can write the treatments you would like to receive too. Treatments you would like to receive are not legally binding, but healthcare workers are obliged to explain why they did not follow your preferences.

Below is an explainer video on the Assisted Decision-Making (Capacity) Act 2015 which was launched in September 2020 by the HSE.

Planning for your healthcare at end of life is based around two documents, your Advance Healthcare Plan and your Advance Healthcare Directive. Our Think Ahead form provides guidance on how to plan for your future and allows you record your wishes and instructions to share with your family and healthcare providers.  Our Think Ahead public engagement programmes provide more information and an opportunity to ask questions on Advance Healthcare Planning and Advance Healthcare Directive. 

Your Advance Healthcare Plan  

Your Advance Healthcare Plan is about your overall wishes and preferences about your end of life. It should focus on your wishes now for you’re the care you receive in the future. You should take some time to think about how and where you want to be cared for, and what you want to happen. Setting it out now will make your wishes clearer for those who need to know. 

If you feel you need more support you can seek the help of independent advocacy services or talk to a member of your healthcare team who may be able to put you in touch with someone who can help.  

You can download our Think Ahead form to complete in your own time.  

Your Advance Healthcare Directive  

Your Advance Healthcare Directive is a document legally recognised in Ireland where you set out your wishes about medical treatment you want to refuse or request in case you are unable to make these decisions in the future. 

It informs family, friends and doctors of your wishes for your treatment in the event you can no longer communicate them yourself. It’s a legally binding document where you write down what healthcare treatments you wouldn’t like in the future. You can write what treatments you would like to receive too but that is not legally binding. Health professionals are obliged to explain why they did not follow your preferences.  It relates specifically to your health care and your wishes with regard to your personal health. 

For example if a person did not want to be resuscitated in the event their heart stopped beating, or they did not want to be kept alive by a ventilator they could state that in the document.  It is important to be specific about the circumstances in which you wish to refuse treatment and to make sure that you update your directive if you change your mind. You can also verbally revoke a directive at any time 

Is that not euthanasia or assisted suicide? 

Absolutely not. Euthanasia and assisted suicide are both illegal in Ireland. A patient has the legal right to consent or refuse treatment even if their doctors strongly disagree with their decision. 

Note: In September of 2011, the Centers for Medicare & Medicaid Services released updated guidance on existing regulations to make it easier for family members, including same-sex partners, to make informed care decisions for incapacitated loved ones.

An advance healthcare directive is an individual healthcare instruction or a power of attorney for healthcare. Common names for types of advance healthcare directives include healthcare powers of attorney, durable powers of medical attorney, healthcare proxies and living wills. Advance healthcare directives honor the right of a competent individual to control the course of their medical care in all circumstances, as well as the corollary right to designate another person to make these choices in the event of the individual’s mental incapacity.

To ensure equal treatment of the LGBT community in the area of advance healthcare directives, the Healthcare Equality Index surveys participants on staff training related to the recognition of advance healthcare directives and their unique importance to the LGBT community.

The Unique Importance of Advance Healthcare Directives to the LGBT Community

The right of every American adult to create an AHD and the obligation of every hospital to honor these documents is critically important. Individuals place tremendous trust in their designated agents, who will guide medical care at a time of the individual’s incapacity. Default state medical decision-making laws are meant to provide a safety net for Americans who fail to execute advance healthcare directives. This default law provides a list of potential surrogate decision-makers from which healthcare providers select the patient’s default surrogate in the absence of an advance healthcare directive. These lists reflect the presumption that the most appropriate default surrogate is the spouse of the incapacitated individual. Due to the lack of relationship recognition laws in the majority of states, most same-sex couples are not protected by default surrogate-selection law.

Advance Healthcare Directive Policy Recommendations

Every validly executed advance healthcare directive deserves and legally demands recognition. Unfortunately, there have been tragic incidents involving hospital refusals to honor valid advance healthcare directives, simply because the directive involved same-sex couples.

Some of the most promising policies bearing on advance healthcare directive recognition for same-sex couples confront the obstacles that often hinder recognition of these advance healthcare directives. These best practices concern reciprocity and presumptive validity of advance healthcare directives, as well as the definition of designated agent.

• Reciprocity involves a hospital’s recognition of an advance healthcare directive that was executed in another state. Below are two examples of hospital policy language which treat advance healthcare directive reciprocal recognition:
  • A living will or other type of advance directive from another state, even though it does not meet the requirements of [HOME STATE], is legally valid and enforceable in [HOME STATE] if it satisfies the legal requirements of the state in which it was executed.”
  • “A patient may have completed an AHD in another state which follows that state’s law. Healthcare personnel should generally follow such an AHD to the same extent that they would follow one completed in [HOME STATE]. Questions about out-of-state AHD should be referred to your administrative manager or the administrator on call after hours.”
• Presumptive validity involves the presumption that a presented advance healthcare directive is valid in the absence of actual knowledge to the contrary. The following submitted hospital policy treats presumptive validity:
• “Ordinarily, all adult patients are presumed to be competent to execute and revoke a [AHD], and all [AHDs] are presumed to be valid, unless a court has determined otherwise.”
• “Who may serve as agent: any competent adult may be an agent, EXCEPT THAT: a [HEALTHCARE INSTITUTION] employee cannot be appointed as an agent during the patient’s hospitalization unless that administrator or employee is related to the patient by blood, marriage, or adoption.”
• Designated agent definitions involve delineating the persons who can be appointed as the designated agent in an AHD. State law is very consistent with these definitions. The following submitted hospital policy language treats designated agent issues:

The above policy language recommendations are not required for purposes of the Healthcare Equality Index. Many advance healthcare directive policies already express the institution’s commitment to follow all applicable state and federal advance healthcare directive law. These commitments would necessarily encompass the above legal concepts. The Healthcare Equality Index, instead, focuses on training related to advance healthcare directives.

Training on Advance Healthcare Directives

Healthcare facilities should provide training modules to staff that are specifically tailored to the special case of advance healthcare directives and same-sex couples.

These training modules should make explicit mention of LGBT individuals and detail the unique consequences that can result from a failure to recognize the advance healthcare directive of a same-sex couple. The training modules should reiterate the staff’s duty to follow all applicable state and federal advance healthcare directive law, especially in the areas of reciprocity, presumptive validity, and the definition of designated agents. Hospitals participating in the Healthcare Equality Index survey will be required to provide details of these training modules, including the content and frequency of these trainings, as well information about staff participation.

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