The Gazette 1995

GAZETTE

MARCH 1995

The Law at Life's End *

Peter Charleton, Barrister and Marguerite Bolger, Barrister

Part II

4. ADVANCE DIRECTIVES / LIVING WILLS

4.1 What is an Advance

Directive?

An advance directivé enables a person to dictate the medical procedures to be carried out on them, or not, in the event of their being incapable of directing such procedures themselves. It can be in the form of a document specifying exactly the person's wishes, usually known as a living will, or a power of attorney which empowers another person to act on the person's behalf. The most common specified request in such a directive is a DNR (Do Not Resuscitate) order declining CPR (Cardiopulmonary Resuscitation) in the event of heart failure. Sometimes a person might also decline life sustaining, as versus life saving, treatment such as force feeding or the treatment of infection. Whilst the former is largely accepted by the medical profession, 35 the latter poses some difficulties and a greater likelihood of litigation as can be clearly seen from the relevant American caselaw discussed earlier. It is estimated that some 15% of the North American population have drawn up living wills, although only half of those people have discussed them with their families. 36 The Federal US Patients Self-Determination Act of 1990 also obliges the physicians of patients under the Medicare scheme to inform them, in writing at the time of admission, of their right to draw up a living will, and many hospitals in America (and Canada) fulfil their obligations by giving their patients a booklet which gives a significant

Marguerite

Bolger

Peter Charleton

treatment in the UK and North American courts where doctors have been prosecuted for terminating life support measures 41 or for administering a drug the only effect of which could be to stop the patient's heart 42 and where families have been forced to go to court in order to cease life support for a vegetative patient 43 or to attempt to discontinue tube force feeding. 44 It is clear from the caselaw that many of the problems leading to litigation arise from the fear of the medical profession of withdrawing or declining treatment, thereby handing over the life or death decision to the judiciary. "In an absurdity of absurdities, patients and relatives have to fight both for an entrance to and exit from the health care system... The medical system has been bypassed, and courts and legislatures have stepped in to try to put patients and relatives in charge of what is now often mere chaos." 45 Whilst much of the caselaw concerns efforts by relatives to discontinue treatment on a patient for whom there is no clear written evidence of his 73 4.3 Issues emerging in Litigation

4.2 Advance Directives in Irish Hospitals

In the Irish context there has been little discussion of the legal validity of such documents and no judicial intervention in the area. Whilst this is probably as it should be, as the courts may not be the appropriate place to resolve the agonising personal problems underlying such cases, 38 unless clear guidelines on the legal status of such documents are forthcoming the courts may be forced to assume medical roles for which they are poorly suited. 39 Presently, the prevalent attitude amongst Irish patients and their relatives tends to be "doctor knows best", and advance directives are virtually unheard of, with any DNR orders that do exist being purely medical decisions with no patient input. However, this was also the attitude in America until the 1960s and '70s but more recent times have seen a distancing between patient and physician and a greater difficulty in defining 'family'. This, according to one American writer, is what has necessitated advance directives. 40 There is no reason to think that Ireland can remain immune to similar developments. Thus it is important to examine the possible difficulties with the legality and enforceability of living wills and their

amount of detail on advance directives, and even sample documents. 37