Minister for Health announces public consultation on legislating for “living wills”
Submissions Sought on the Draft General Scheme for Advance Healthcare Directives for Incorporation into the Assisted Decision-Making (Capacity) Bill 2013
The Minister for Health, Dr James Reilly TD, today announced the commencement of a public consultation on the draft General Scheme of legislative provisions for advance healthcare directives to be incorporated into the Assisted Decision-Making (Capacity) Bill 2013. The publication of the draft General Scheme for the purposes of the public consultation was approved by the Government on Tuesday, 4th February 2014.
Making the announcement, Minister Reilly said: “Advance healthcare directives represent an important means by which people can exercise their autonomy, which is an integral component of a patient-focused model of healthcare”.
“Given that there is currently no specific legislation pertaining to advance healthcare directives in Ireland, incorporating provisions for advance healthcare directives into the Assisted Decision-Making (Capacity) Bill 2013 represents an efficient and practical method of consolidating the law in this area”, he continued.
“I would encourage interested parties to participate in this consultation process which my Department has now commenced”, he concluded.
Advance healthcare directives (sometimes referred to as living wills) are statements made by adults with capacity setting out their wishes in relation to the type and extent of medical treatments they would or would not want to receive in anticipation of future incapacity to make decisions.
In line with the principles of non-discrimination and equality before the law, as outlined in the UN Convention on the Rights of Persons with Disabilities, the legislative provisions for advance healthcare directives provide a single legislative framework, encompassing both general healthcare and mental healthcare.
The Consultation Process
A consultation discussion document sets out the draft General Scheme and some structured questions to help interested parties focus their submissions. Submissions should be no more than ten pages and can be submitted by e-mail to or by post to
Department of Health
The closing date for submissions is Friday 7th March 2014 and will be strictly adhered to. All submissions received will be subject to the Freedom of Information Acts 1997 & 2003 and may be released in response to a Freedom of Information request.
Note for Editors
- It should be noted that these legislative provisions do not in any way pertain to euthanasia or assisted suicide.
- The purpose of the Assisted Decision-Making (Capacity) Bill 2013 is to reform the law and to provide a modern statutory framework that supports decision-making by adults and that enables them to retain the greatest amount of autonomy possible in situations where they lack or may shortly lack capacity. The Bill proposes to change the existing law on capacity, shifting from the current ‘all or nothing’ status approach to a ‘flexible functional’ one, whereby capacity is assessed on an issue and time-specific basis. The guiding principles for this Bill include: the presumption of capacity; and that, where practicable, interventions must give effect to an individual’s past and present will and preferences in so far as they are reasonably ascertainable.
- Given the increased focus on a more patient-centred model of healthcare, more and more people will wish to play an active role in their treatment decisions, even when they no longer retain capacity to do so. Advance healthcare directives are an important tool in this regard. The advance healthcare directive has been recognised as an expression of an individual’s autonomy and as a useful tool in enabling the individual to maintain some level of control over medical treatment into the future, when he or she lacks the capacity to express autonomous preferences. Medical professionals increasingly find themselves in a difficult legal and ethical position, in cases where there are diverging views amongst family members on the best treatment and care options for their relatives who no longer have capacity. The establishment of a statutory mechanism of advanced healthcare planning will bring clarity to individuals and their attending healthcare professionals regarding the individual’s will and preferences for future treatment.
- Given the intersection between the aims of the capacity legislation and the role of advance healthcare directives, the Assisted Decision-Making (Capacity) Bill 2013 is considered to be the most appropriate vehicle for providing a legislative framework for advance healthcare directives.
- It is important to note that there is widespread support for advance healthcare directives both nationally and internationally, for example from the Medical Council, the Law Reform Commission, the Irish Hospice Foundation’s Forum on End of Life, Amnesty International Ireland and the former Irish Council for Bioethics amongst others. A number of other jurisdictions within Europe have already established legislative frameworks pertaining to advance healthcare directives. In addition, the Council of Europe Recommendation CM/Rec (2009) 11 on principles concerning continuing powers of attorney and advance directives for incapacity proposes that Member States should promote self-determination for adults with capacity by introducing legislation on advance healthcare directives.